A Master in Chambers hearing his action struck it out; a Court of Queen’s Bench Justice agreed; and the disgruntled litigant continued on to the Alberta Court of Appeal.

The Court of Appeal wrote

“Rawlinson [the N.Z. case] is readily distinguishable from the case at bar. Here, we are dealing with a judge of a superior court who made the order in open court within the exercise of her jurisdiction. A superior court judge enjoys absolute immunity in such circumstances, as pointed out by the unanimous judgment of the Supreme Court of Canada in Morier v. Rivard.”

Jordan v. Nation 2013 ABCA 117

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Otherwise, the judges pointed out, accused persons who are allowed out on bail and subsequently convicted of the same offence as those kept in custody pending trial will serve less time. However, the Court said that this enhanced credit is not automatic.

Justice Cronk wrote

“There must be some basis in the evidence… before the sentencing judge to support the conclusion that this factor merits enhanced credit for a particular offender in a given case.”

R. v. Summers, 2013 ONCA 147 (CanLII)

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The Court also found that for reasons of public policy, the tort of conspiracy should not be used in the family law context. It relied on comments made by the Supreme Court of Canada in a 1987 case, in which the judges commented that use of the tort was not in the best interests of children and would do little to encourage the maintenance and development of a relationship between both parents and their children.

Waters v. Michie, 2011 BCCA 364 (CanLII)

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“The potential for the use of phrases such as ‘this is a horse of a different colour’ or equine and beer jokes jump out at one. The Court will refrain from such frivolities for this is a case about beer and beer is a serious matter.”

At issue was the names of their beers: San Miguel wanted to trademark the name “Red Horse Malt liquor” but Molson objected, arguing that it had owned the trademark “Black Horse” since 1922, and consumers would be confused by the similarity of the names. Justice Phelan sided with San Miguel, stating

“One look at the labels of RED HORSE and BLACK HORSE is sufficient to dispel any notion of confusion between RED HORSE (with just a horse’s head) and BLACK HORSE (with a horse in profile). He found that there was no evidence that consumers would be confused and “as a matter of common sense, I find it unlikely.”

San Miguel Brewing International Limited v. Molson Canada 2005, 2013 FC 156 (CanLII)

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“Text messaging is, in essence, an electronic conversation. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications. The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled under Part VI” (of the Criminal Code).

R. v. Telus Communications Co.,2013 SCC 16

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Beyond this, there are a variety of interesting online resources to help children and teens navigate this difficult passage in their lives. Note that because the issues addressed are general in scope and because divorce is governed by federal legislation, resources produced in one province can be useful in any part of the country except for sections listing support services, which tend to have a more local focus.

The Department of Justice Canada provides “What happens next? Information for kids about separation and divorce”. The text can be read as web pages while the downloadable PDF version is colourful with appealing illustrations. The booklet aims to help children between the ages of nine and twelve learn about family law, and realize that it is normal for them to have an emotional response to their parents’ separation.

From the Public Health Agency of Canada comes a guide for parents called “Because Life Goes On – Helping Children and Youth Live with Separation and Divorce”. Again, it is available in either a webpage version or as a PDF. Topics addressed include: strategies for co-operative parenting, tips for communicating effectively with children and specific suggestions for supporting children at various ages and stages of development. The resources section includes a list of books and videos for parents, children and youth.

Families Change is an attractive and colourful suite of websites developed by the Justice Education Society of B.C. in partnership with the British Columbia Ministry of the Attorney General. It is available in both English and French and is divided into four sections. The Kids’ Guide to Separation and Divorce is aimed at children aged five to twelve. Using clickable images, a cast of characters and simple text, it addresses the law, changes, feelings, tools for coping, and the question of why. The Teen Guide to Parental Separation and Divorce deals with similar issues using more advanced text and appropriate photographs. The Parent Guide to Separation and Divorce looks at these same issues from the perspective of the adults who are trying to cope with their own feelings while supporting and communicating with their children. It also provides a section to help parents make an agreement about child support without going to court. Finally, the Parenting After Separation section presents an online course in a choice of three languages: English, Mandarin and Punjabi.

For children ages six to twelve, the interactive website Changeville (also from the Justice Education Society of B.C.) offers an interesting way to explore the changes that divorce and separation can create in a family. The user creates an avatar who can visit the Park, Legal Street, Break Up Street and the Mall, gathering information and doing activities along the way.

“Family Law Handbook: Don’t Get Lost in the Shuffle” is a publication from the Alberta Civil Liberties Research Centre and the Children’s Legal and Educational Resource Centre. The question and answer format of this 33-page PDF allows young people to zero in on the issues that concern them the most.

Also using a question and answer format is a small booklet from the Ontario Ministry of the Attorney General, “Where Do I Stand? A Child’s Legal Guide to Separation and Divorce”. Answers are short and to the point. Attractive pastel illustrations make the PDF version appealing.

The turmoil of divorce is a challenge for anyone. Children, and teens in particular, need information and support during this stressful time.

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The Fatal Gift of Beauty:The Trials of Amanda Knox

I had largely finished this book when the news came that the Italian Appeals Court – the Court of Cassation – had, on March 26 ruled that American university student Amanda Knox and Italian student Raffaele Sollecito, briefly her boyfriend, are to be retried for the murder of British student Meredith Kercher. This ruling comes more than five years after the 21-year-old from Surrey, England was found in her room, with her throat slashed and with evidence of a sexual encounter, in the university town of Perugia. The first appeals court had, in 2011, overturned the original convictions for murder and substituted acquittals for the co-accused. A new trial – at the first appellate level – will be held in Florence. Media reports strongly suggest that Knox will not attend that trial (although perhaps she will nonetheless be represented?) and interesting issues relating to extradition might arise should she be convicted a second time. Sollecito, who continues to reside in Italy, would seem to have no option but to attend the new trial.

In light of the many passionate utterances on the fate of these two accused since the 2007 murder of Meredith Kercher – but wait, the vast majority of comments concern only Amanda Knox, the attractive young student who came from Seattle to study Italian in the beautiful hilltown of Perugia – I will inject a note of caution into my response to Burleigh’s book. I agree with her conclusion that Knox and Sollecito are innocent of the charges and that the third individual involved, Rudy Guede, who was tried separately and convicted, was the only individual that we know to have been culpable. However, I think that the author feels the need to make hard-hitting statements about the foolishness of the original verdict that go beyond what a reasonable and thoughtful analysis warrants.

Of the numerous books about the case, Burleigh’s may well be the best-written. Burleigh is a veteran journalist and has written for a number of magazines including Time. She offers tart and candid observations about the rich cultural history of Italy, and in particular, the Umbrian town of Perugia and the unique aspects of life there. Perugia has an amazing history and as someone who has travelled there and marveled at the outstanding art and architecture, I can imagine showing up in the capital city of this central Italian region of Umbria for the Knox/ Sollecito trial and wandering the winding streets at the end of the day, stopping at the Arch of Augustus, the famed Etruscan Arch that serves as a gateway into the city centre. I would reflect on the fact that the so-called primitive lifestyle of the Etruscans, albeit capable of great cultural production, at least operated without the media circus that accompanies trials of this kind. Burleigh is one of many American writers who decry the inflammatory headlines and newscasts that cast considerable suspicion on the accused in the months leading up to the trial.

Two other parts of A Fatal Beauty that I found of particular interest were her discussion of the sexual objectification and exploitation of women in Italy. The country ranks very low indeed in the Gender Equality ratings for an advanced Western European nation. Perugia has, in recent decades, developed a dark side as a criminal hub, operating as a crossroads for the heroin coming up from Naples and being then transported by low-level dealer gangs to Rome and elsewhere. Further, as one of the most important locations for Masonic lodges and the unusual rituals engaged in by the Freemasons, the city apparently is prone to extravagant conspiracy theories. In any event, Burleigh makes a plausible case that where one of the accused, Knox, is a beautiful woman, brash and yet a relatively inexperienced newcomer to Italy, the rumour mills will work overtime and prejudices may come into play once the trial starts. However, while the author does a good job of painting a vibrant picture of contemporary Perugia and the culture clash that ensued when Knox became first, a suspect and then, an accused facing trial, I am not sure that she accomplished her goal of linking the culture clash to the deliberations of the professional and lay judges (the latter sometimes called jurors). Can individuals hearing testimony day in and day out and charged with the awesome responsibilities they possess in a murder trial not develop a fair-minded and relatively unbiased approach to the evidence? If the allegation is that they do not, what is it based on?

It is a difficult task for a writer of a book for a general audience to explain the intricacies of a foreign legal system to the target audience – American and other Anglo-American countries) – and go on to describe the major moments in the trial itself. However, given that this is not the type of true crime book where the main mystery to solve is capturing the right person and putting together a solid case, it would have been helpful to have devoted more than 30 pages to the trial itself. As well, at times Burleigh descends into standard journalese. She tells us that the chief judge is a “Woody Allen look-alike” and that not only was Amanda a hippie, but the trial is taking place on the very spot where St.Francis of Assisi was held prisoner and that he was the “Western world’s original hippie.”

I would, for all of these flaws, recommend The Fatal Gift of Beauty as a lively and at times insightful account of a fascinating trial that has captured the imagination of millions around the world. Of course, a definitive account will only be achieved by some future writer and the plot continues.

Blood on the Altar: In Search of a Serial Killer, by Tobias Jones

Nina Burleigh actually begins her first chapter with a quote from the outstanding account of recent Italian history and culture, The Dark Heart of Italy, by Tobias Jones. Jones states, in relation to postwar Italian history:

… surrounding any crime or political event, there are always confusion, suspicion, and “the bacillus of secrecy.” So much so that dietrologia has become sort of a national pastime.

Blood on the Altar is, like the Knox case, a classic cronica nera, or black crime because it has lurid or sensational elements, mysterious presences and an impenetrable aspect. So, for a very long time, conspiracy theorists in Italy of all sorts can weigh in and know that it is most unlikely that they will be definitely refuted.

Blood on the Altar is one of the best true crime books and true justice books I have read. The story involves the shocking disappearance of Elisa Chaps, last seen in a church on a lazy Sunday afternoon in Potenza in 1993. She was the deeply loved 16-year-old daughter of a hardworking tobacconist and his ever-hopeful wife. Elisa was an idealist who dreamed of working for Medicin Sans Frontieres. I was particularly moved by the portrait Jones gives us of the family, whom he got to know over the years, and particularly of Elisa’s brother Gildo. The young man who had to mature beyond his years from the date of the disappearance – he was a few credits short of a law degree but gave that up to concentrate on finding his missing sister – emerges as a true hero. Gildo not only shouldered the ongoing misery of not knowing what vile act had been done to his sister but, seeing the need to help others, founded the Associazione Penelope for missing persons. He realized that many others in Italy needed a support network to help keep their courage up in the ongoing struggle to carry on in the absence of an opportunity to mourn in a truly meaningful way.

The book gives a finely etched portrait of Lucania in Southern Italy. It seems somehow fitting that this deeply sorrowful tale takes place in this remote region, immortalized by Carlo Levi when he was sent there under confinement by Mussolini. In Christ Stopped at Eboli, Levi describes it in haunting terms as a land “hedged in by custom and sorrow, cut off from history and the State… a land without comfort or solace.” The book also contains a rather eerie villain, a likely suspect whom authorities seem to fail to pursue diligently even though the family offers invaluable information to them.

By a rather remarkable coincidence Jones, sometime after failing to find the phantom criminal, moves to England. He reads in astonishment that a despicable murder has been committed in Bournemouth which will be linked directly back to the disappearance that had occurred a full, agonizing 17 years earlier. What follows is a moving account of the tracking down of Elisa’s body back to the very church where the family had suspected the murder had occurred all those years earlier. The obstacles placed in the way of a full investigation, including the baffling actions of the Roman Catholic Church, lend credence to the notion that Italy is a country governed by mysterious and at times sinister forces. What shines through is the author’s love of the unlovely region and of the poor, grieving family which suffered what no family should suffer but carried on with heads held high and in solidarity with others in their situation.

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Calgary-based Griffiths Energy International Inc. (Griffiths) was created in August 2009 to obtain oil and gas production sharing contracts in the Republic of Chad. Within two years, the corporate leadership had changed, the corporate founder Griffiths was dead, and the company faced a major corruption scandal.

In November 2011, when it was conducting due diligence for an initial public offering scheduled to occur the next month, Griffiths detected a few dubious “consulting” agreements. It promptly struck a committee of independent directors, hired outside professionals to comb through 212,000 documents, and interviewed many people related to the transactions.¹  At a cost of over $5 million, Griffiths’ internal investigation revealed that between August 30, 2009 and February 9, 2011, prior management had entered into two contracts with a Chad foreign public official, Mahamoud Adam Bechir, and his wife, Nouracham Niam. Mr. Bechir was Chad’s ambassador to Canada and the United States at the time.

These contracts, a U.S. $2 million cash payment and four million “founders” shares of Griffiths, were bribes to obtain exclusive drilling rights in two oil and gas properties in Chad. The consulting services promised in return by the ambassador’s wife were about “providing advisory, logistics, operational and other assistance with respect to implementing Griffiths’ oil and gas projects in Chad”. She formally arranged a meeting between Griffiths and Chad’s president through the embassy. The drilling rights were a big win for the fledgling Griffiths, which had failed in several earlier attempts to purchase rights to produce oil and gas in Chad’s rich southern oil fields.

The $2 million was transferred to Ms. Niam’s Washington-based company Chad Oil Consultants LLC.² The shares, transferred at a price of less than one cent each, were by the start of 2013 trading at over $6, so that the value of the original four million shares now exceeded $20 million.

Although there is no self-reporting obligation in Canada, Griffiths handed the entire incriminating file over to the Royal Canadian Mounted Police, the Public Prosecution Service of Canada and the United States Department of Justice.³

At the time of the illegal bribes, Griffiths had been receiving legal advice from the law firm in Toronto that employed former Canadian Prime Minister Jean Chrétien. While Mr. Chrétien had helped numerous Canadian companies in their dealings with African countries, there was no evidence he had specific input into, or knowledge of, the Griffiths bribes.

On January 25, 2013, two years after signing the drilling rights contract with Chad, Griffiths pleaded guilty to bribery under section 3(1)(b) of the Canadian anti-corruption legislation with an Agreed Statement of Facts in the Court of Queen’s Bench in Calgary, Alberta.⁴ The “negotiated resolution” was a guilty plea accompanied by a fine of $9 million and a 15% victim fine surcharge, for a total of $10.35 million dollars, and an obligation for Griffiths to assist prosecutorial authorities “in other processes or legal remedies that the Crown may pursue that are relevant to this matter.”

Griffiths was not placed on probation. All of its directors and senior executives had changed since the time of the offence. The company, under new management, had adopted an anti-corruption compliance program and strengthened its internal controls. The fact that Griffiths had initiated the internal investigation and turned itself in to law enforcement authorities was viewed as a mitigating factor.⁵ This is the first instance under the Canadian anti-corruption legislation where a company has voluntarily disclosed its own corruption after an internal investigation.

There is no maximum fine set out in the Canadian federal anti-corruption legislation and no limitation period for the most serious category (indictable) offence. In addition to corporate liability, directors and officers can be sanctioned with fines and imprisoned for up to five years, although no individual has been charged under this legislation in Canada yet.

In July 2011, a few weeks after the new management took over at Griffiths , founder Brad Griffiths, a former investment banker, fell out of his fishing boat and drowned in the lake outside of his Ontario cottage.⁶ It was shortly after his death that the bribes were discovered by the new management. No charges were laid against other members of the original Griffith management team.

Mahamoud Bechir continues to dispute the Griffiths bribe, and disclaims any benefit from the $2 million given to his wife. Nevertheless, he was relieved of his duties as Chad’s ambassador (to South Africa, by this time) on January 26, 2013.⁷

Griffiths continues to operate with 44 workers in Chad. The company began to spud its third well on January 24, 2013 and expected to be testing the well within a month.⁸ It hopes to start pumping oil from one of these properties within a few months. It maintains rights to explore and extract resources over a total area of 26,103 square kilometres in southern Chad.

The prosecutor in the Griffiths case is seeking to reclaim both the $2 million payment and the shares. Some of the proceeds have already been spent – on a luxury house in the suburbs of Washington D.C., investments, and a car for a teenager, one of the couple’s nine children.

Griffiths plans an initial public offering in London this spring at a 50% premium on its current grey market price, which would value the company at more than $1.1-billion.⁹ If this European IPO is successful, it would tend to vindicate the new management’s strategy in voluntarily dealing with this corruption. The company may be seen as replacing its management, investigating its own previous malfeasance, blowing the whistle on itself, co-operating with legal authorities and paying the fine. A full corruption clean-up cost of significantly less than $20 million is a miniscule price to pay for a $1.1 billion market reset valuation of the company.

Shortly after this guilty plea to corruption, on February 5, 2013, the Government of Canada introduced An Act to Amend the Corruption of Foreign Public Officials Act (Bill S.14). Promising to “redouble” its fight against corruption, the federal government proposes by this amendment to increase the maximum jail term to 14 years (from 5 years) for individuals, permit prosecutions against Canadians and their companies regardless of where the alleged bribery took place, enact a new records crime of falsifying records or hiding payments related to bribery of foreign public officials, and stage out the exemption for facilitation payments.

Notes

1. Globe and Mail, “Getting to the bottom of the Griffiths Energy bribery case”, February 2, 2013.

2. Osler, Hoskin & Harcourt LLP. Rlyaz Dattu. Vigorous Canadian anti-corruption enforcement continues unabated: Griffiths Energy fined $10.3 million pursuant to the CFPOA (January 29, 2013).

3. Petroleum Africa. “Griffiths Works to Close Investigation”. January 18, 2013.

4. Corruption of Foreign Public Officials Act, SC 1998, c 34, Canada NEWSWIRE. Griffiths Energy International Announces Settlement. January 25, 2013.

5. Canadian Press. “Griffiths Energy to pay $10.35M fine for bribing officials in Chad”, January 22, 2013.

6. Financial Post. “Energy, Judge approves $10.35M fine for Griffiths Energy in Chad bribery case”. January 25, 2013.

7. Globe and Mail. “Fired Chadian ambassador defends ‘done in the daylight Griffiths deal’,” Press release. January 31, 2013.

8. Griffiths Energy International. Griffiths Energy Provides Development and Exploration Update. January 28, 2013.

9. Globe and Mail, “In wake of scandal, Griffiths Energy plans IPO in London”, February 04, 2013

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In UNICEF’s most recent Report Card on child well-being, Canada’s child poverty rate ranked 24th out of 35 countries. Canadian children have higher than average rates of injury, suicide, drug and alcohol use, and unhealthy weight compared to their peers in many other industrialized countries. These rankings are not inevitable – they are influenced by policy decisions.

While these problems are complex, there is a clear step Members of Parliament can take to improve the well-being of our children – supporting Bill C-420, An Act to Establish the Office of the Commissioner for Children and Young Persons in Canada.

Independent from government, a National Commissioner will advocate for children at the national level, ensure children are more visible and prioritized in government decisions that affect their lives, and help our children catch up to their peers from other countries.

Putting children at the centre of decision-making is a responsibility of all parliamentarians, regardless of their political stripes.

The idea of an independent national office focused on children is neither radical nor new. Approximately 60 countries have similar positions: New Zealand, England, Scotland, Sweden and others have found it an effective way to promote the rights of children.

For these reasons, most provincial and territorial governments have child and youth advocates. With no national equivalent, the impacts of federal laws, policies and services on children (like marriage and divorce laws, criminal justice, social transfers and immigration) are rarely fully considered.

The only growing child populations in Canada are Aboriginal and immigrant, and many decisions that affect the well-being of these groups are federal in scope. It is these children who are struggling most to improve their quality of life.

Every child deserves the opportunity to develop to his or her full potential. It is not only their right, it is necessary in order to support our aging population and ensure continued economic prosperity. A strong economy and healthy society can be sustained only if we raise strong and healthy children. A National Children’s Commissioner would make a lasting contribution to a stronger Canada for all Canadians.

This article was originally published in the UNICEF Canada Newsletter, Winter 2012 and is reprinted with permission.

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People often remark that such spending is wasteful. The reason I collect the cable TV offers, which arrive every couple of weeks or so, is that I know they are wasteful. Since I don’t own a television, it is rather unlikely I’m ever going to subscribe to cable. So those for-profit companies are incurring unnecessarily high administrative costs – and some of those glossy marketing efforts must be quite pricey – in the vain hope of winning me over as a customer.

And when my friends and family raise the issue of charities not devoting all their resources to front-line work, I have a ready answer.

Sometimes it is suggested that charities, because they are exempt on tax on their income and because their donors can receive tax credits or deductions for contributions to them, ought to be more prudent in the use of their resources. It is said that we all bear the cost of charities’ administrative expenses through the tax system.

But under the Income Tax Act (ITA), cable companies can write their marketing costs off. Section 18 of the ITA provides for deduction of expenses “incurred by the taxpayer for the purpose of gaining or producing income from the business or property”. So their wasteful spending is a tax expenditure too.

All this is brought to mind by two recent media reports. In one, British philanthropist Gina Miller called for a cap on the amount charities can spend on administration (including fundraising). She also took aim at what she considered high salaries in some organizations and said the sector had too many “careerists”.

Meanwhile, an Edmonton group announced a for-profit initiative to offer back office services to charities at lower cost than their current administrative spending. The initiative is to be called NPO Zero.

This name plays on the unfortunate but widespread public misconception that charities can achieve zero spending on administrative costs. There are certainly groups that claim to spend nothing on back office work, and in the case of small all-volunteer organizations that might be true, but those are few and far between.

More common are medium-size or large organizations that – under accounting and Canada Revenue Agency rules – can understate or ignore their administrative costs because they are covered by in-kind corporate or personal donations. And sometimes groups simply misstate their administrative costs as program expenses. If you look hard enough, it is always apparent that someone is paying to keep the lights on.

Rather than play into misconceptions about costless administration, sector organizations and the public can take concrete steps to reduce unnecessary costs and promote a more accurate notion of the overhead entailed in running an effective charity.

Among the measures that could be taken:

• encouraging donors to make fewer, but larger gifts (since it usually costs charities the same amount to administer a donation whether it is $25, $100 or $1,000);
• encouraging adoption of standardized government and/or foundation reporting mechanisms (by having foundations such as Ms. Miller’s require the same information from grant recipients, charities’ paperwork could be reduced); and
• discouraging the practice of charities under-reporting their administrative costs (so that the public develops more realistic expectations about overhead expenses).

More difficult, perhaps, is tackling the idea that charitable work ought to be predominantly, if not exclusively, the province of volunteers. The starkest argument cited against such an approach is the suggestion that by giving a donation directly to the beneficiary, rather than the charity, one can be certain of the entire amount of the gift going to the end user, rather than being eaten up by a charity’s overhead. Few people think that is an adequate solution to addressing complex social problems. There are no administration costs but there is also no value-added.

The alternative – developing sophisticated, multi-faceted organizations dealing with issues pro-actively and holistically – necessarily entails incurring overhead costs, and yes, may be more effectively accomplished by people who have made a career in the field and are remunerated in keeping with their skills and experience. Such organizations ought to be expected to keep administrative costs reasonable, but not to make a fetish of them.

Because charities’ traditional reporting through the T3010 and their financial statements can give a distorted picture of their operations, and downplay organizational accomplishments that may not be fully reflected in the numbers, charities also need to be encouraged to present a fuller picture of their work to the public, so they can be judged on more than their inputs. Imagine Canada’s recently launched Charity Focus provides charities with the opportunity to upload success stories and other details about their activities.

As I read the two news reports, I couldn’t help thinking how those in the sector are often told to act more like their counterparts in business. That led me to wondering what the overhead costs of the new Edmonton initiative would be. But then that wouldn’t be the sole criteria one used to decide whether it would be a good investment, would it?

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