Criminal proceedings for young persons between the ages of 12 and 18 fall under the Youth Criminal Justice Act and within the jurisdiction of a specialized youth court.  The age of the individual at the time of the alleged offence determines the eligibility of the matter to be resolved in youth court.

Because youths are a vulnerable class of society who often have much potential and many years ahead of them, the youth court generally may impose sanctions that promote rehabilitation while assisting their reintegration into society.

Typically parents will be informed of the process and proceedings.  Youths are afforded the right to counsel, as guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms, and must be advised of this right at the outset.  It is the goal of your defence lawyer to make every attempt to assist the youth to be rehabilitated and reintegrated into society, and preferably avoid the imposition of a criminal record.

Ontario’s Securities Act governs and regulates transactions involving securities and aims to protect the investing public.  The Act gives the Ontario Securities Commission broad power to govern securities transactions and to deal effectively with those who fail to comply with the provisions of the Act.

An underlying principle of the Act is that the public should be provided with honest and straightforward information concerning the potential investment in order to make an informed decision.  The trade of a security may require the filing of a Prospectus with the OSC providing sufficient information about the security.

As an administrative agency, the OSC has its own procedures for a fair review where non-compliance is alleged to have occurred.  Consultation with counsel who has experience with the Act and the OSC procedures may assist to mitigate the serious penalties one may face if found guilty of an OSC offence.

One of the benefits of being a Canadian citizen is the protection you receive from being deported upon conviction of wrong-doing.  However, this benefit is not extended to non-citizens, such as landed immigrants and permanent residents.  Non-citizens found guilty of certain offences or found to have misrepresented information on citizenship and immigration applications may face investigation from officials and possibly deportation.

Due process requires that you receive a fair hearing before a decision to deport is made in your case.  You have the right to be represented by counsel at hearings before administrative agencies and tribunals.  Legal counsel can assist in ensuring that you receive a fair hearing and that you are properly and effectively defended.  Successful representation may result in a stay of investigations or deportation.

Bail Hearings:

Bail is considered to be such an integral part of the legal process in Canada that s.11(e) of the Canadian Charter of Rights and Freedoms guarantees the right of the accused “not to be denied reasonable bail without just cause.”  The Canadian Criminal Code requires anyone who is arrested to be brought before a justice of the peace who will determine whether the accused is to be released before his/her trial.

The purpose of bail is to give the accused the opportunity to participate in the development of his/her defence while assuring his/her presence at trial.  The Crown may adduce evidence as to why the accused should not be released until trial. A good defence lawyer may strategically assist you to retain your liberty until trial.  Don’t risk spending your time in custody awaiting trial.

The Role of a Surety:

A surety is an integral part of the release of the accused from jail once charges have been laid. A surety is usually a friend or family member of the accused who signs bail for the accused and pledges to sign an amount of money so that the accused can be released from jail until trial, or resolution of the case. Most of the time, you will not be required to deposit that amount of money, rather just show that the money is available if needed.

It is the responsibility of the surety to supervise the accused, and make sure they are present for all court appearances and abide by the conditions of their bail, otherwise the accused may go back to jail, and the surety may face serious consequences, including losing the money they put up.  Selecting a proper surety will expedite the process of release from jail pending trial/resolution.

Who can be a Surety?

Someone who:

1.     Is at least 21 years of age;

2.     Is a Canadian Citizen or a Permanent Resident;

3.     Can show that they have the sufficient amount of money available for the bail;

4.     Is not involved with the charges;

5.     Does not have a criminal record;

6.     Is employed;

7.     Is not an employee of the accused;

8.     Can show formal picture ID and proof of residence;

9.     Is not currently a surety for someone else.

*Exceptions may apply.

What is Disclosure?

Disclosure is the information that the police and other authorities have gathered relating to the charges. It could include documents like police reports, photographs of the scene of the incident, testimony of witnesses, and diagrams.  It is the case that the Crown (the state) has against you.

The Crown has a constitutional obligation to provide Disclosure. Disclosure is usually made available to the accused as early in the process as possible to allow the accused to prepare a full and defence.

A defence lawyer can review Disclosure with you and identify the strengths and weaknesses of the Crown’s case against you.  As such, counsel can assist you to prepare an effective defence after considering constitutional or other issues presented by the Disclosure.

The Construction Lien Act contains special rules to govern the process of placing and removing construction liens. The Act is the government’s response to the issues faced by the suppliers of goods and services, such as contractors, sub-contractors, etc. and aims to protects suppliers against the default of others.

A lien is one remedy provided for under theAct, and gives the supplier(s) a right akin to those of secured creditors. A contractor, for example, gains the right to a lien on the property that is the subject of improvement from the date of the commencement of the work on the property.

The provisions of the Act setting out the requirements for a lien are highly technical and often require the assistance of counsel, such as the meeting of deadlines for preservation and perfection of a lien.  It is imperative that certain deadlines be adhered to for an effective claim.  We can assist you whether you are the supplier of goods and services looking to create a lien or the owner of the property seeking removal of the lien.

In particular the rules about summary judgment in a civil case were revised. The mechanism of summary judgment has existed for some time. It was first introduced to provide faster access to justice and to resolve claims that could be disposed of on mostly legal grounds. A motion for summary judgment would be brought where there were very few or no factual issues in dispute. So the matter could be determined on issues of law without needing testimony. Judges were not permitted to make findings of fact.

The changes implemented on January 1, 2010 permit judges to make findings of credibility and even to conduct what is now referred to as a “mini-trial”. Now, almost two years after the rules for summary judgment were revised, the Ontario Court of Appeal has provided guidance about how the revised rules should be applied. The Court heard five separate appeals and released its 110-page omnibus decision on December 5, 2011 in Combined Air Mechanical Services Inc. v. Flesch

The Court stated that there are basically three types of cases where summary judgment would be appropriate, below.

Cases where the parties agree that summary judgment would effectively resolve the litigation. These cases will be rare.
Cases where the claim or the defence is clearly without merit. These cases will continue to be brought and resemble closely the types of motions that would have been common under the previous summary judgment rules.
Cases where a judge is capable of fully appreciating all of the evidence to decide the case without a trial.

The “full appreciation test” is novel. It asks whether “the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?” The “full appreciation test” will be used to determine whether, in the interests of justice, the issues raised in an action require the unique forensic machinery of a trial, or whether instead, the issues can be appropriately resolved with summary judgment, using the motion judge’s new expanded powers under rule 20.04(2.1).

The Court held that in “deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings can be attained on the motion record – as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) – the judge cannot be ‘satisfied’ that the issues are appropriately resolved on a motion for summary judgment.

“Presenting oral evidence in a motion for summary judgment is likely only appropriate where: 1) there are few witnesses; 2) the oral evidence will have a significant impact on whether summary judgment is granted; or 3) the evidence is tailored to a very narrow and discrete issue.

In Combined Air Mechanical Services Inc. v. Flesch, the Court of Appeal provided guidance about the revised rules for summary judgment while ensuring that any result is still a fair and just resolution. The revised summary judgment procedure, despite references to a “mini trial”, should not replace the utility of a trial. The procedure is designed to provide a cost effective and proportional resolution to disputes that do not need the full mechanism of a trial for a judge to fully appreciate the issues and the evidence at the core of the dispute.

Further case law will likely enhance the Court of Appeal’s recent guidance. The revised summary judgment rules are still in their infancy and will undoubtedly mature and develop as more summary judgment cases are heard and decided.

The first type of transaction occurs through the “primary” market, where issuers trade directly or indirectly with investors, while the second type of transaction is referred to as “secondary” market trading.

Every province and territory has its own securities laws and regulatory agency. These agencies exercise a variety of responsibilities. They include: prospectus review and clearance; oversight of disclosure requirements; takeover bids and insider trading; registration and regulation of market intermediaries; enforcement of compliance with the regime; recognition and supervision of exchanges and other self-regulated organizations; and public education.

As the Supreme Court of Canada recently confirmed in its much-anticipated decision in Reference re Securities Act (December 22, 2011), Canadian securities law remains largely the responsibility of the provincial and territorial governments. Canada has no national securities law and no national securities regulator. Rather, many substantive aspects of securities regulation, such as registration and prospectus requirements and exemptions and continuous disclosure requirements are harmonized using “national instruments” or “national policies”. They are adopted by each of the provincial and territorial regulators. Moreover, initiatives such as the national electronic filing system (SEDAR) and the Passport System encourage regulators to delegate responsibilities to one another. This creates a system of “one stop shopping” for issuers and registrants.

Ontario is the jurisdiction of the Toronto Stock Exchange (TSX) and the principal regulator for most of Canadian reporting issuers. The Ontario Securities Commission (OSC) has generally taken a more active role in developing Ontario securities law using various regulatory instruments, policies and rules. The OSC exercises a very broad regulatory and disciplinary jurisdiction, similar to the American SEC.

In the last decade, efforts to increase interprovincial cooperation and to harmonize provincial and territorial securities laws have intensified. The possibility of replacing the provincial and territorial securities regulators with a single national regulator has gained momentum.

In fact, the federal government drafted legislation to establish a federal securities regulator to administer a national regulatory regime. The draft legislation and the federal government’s ability generally to nationalize securities regulation was referred to the Supreme Court of Canada for a ruling on its constitutionality. While the Province of Ontario supported the draft bill, the provinces of Alberta, Quebec, Manitoba and New Brunswick opposed it.

The Court resolved the reference question by concluding that proposed “Securities Act as presently drafted” was unconstitutional; specifically, it was “not valid under the general branch of the federal power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867”.

One awaits the federal government’s next step in its initiative. Will it re-draft the proposed legislation to make it compatible with the division of powers under the Constitution Act, 1867? Or will it seek a non-legal route, such as negotiating deeper harmonious arrangements with the provinces and territories? Will it seek to follow the example in Australia? There, a national scheme involving cross-vesting of jurisdiction faced constitutional setbacks. As a result, since 2001, the national scheme of securities regulation in Australia is premised on powers referred by the states to the Commonwealth. Watch this space to see what happens in this country.

1. What is the Office of Foreign Assets Control?

The Office of Foreign Assets Control (OFAC) operates within the U.S. Department of the Treasury. OFAC administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the U.S.

OFAC acts under Presidential national emergency powers, as well as authority granted by specific legislation, to impose controls on transactions and freeze assets under U.S. jurisdiction. Many of the sanctions are based on United Nations and other international mandates, are multilateral in scope, and involve close cooperation with allied governments.

2. Who must comply with OFAC regulations?

All U.S. persons must comply with OFAC regulations, including all U.S. citizens and permanent resident aliens regardless of where they are located, all persons and entities within the U.S., and all U.S. incorporated entities and their foreign branches.

3. What are “prohibited transactions”?

By enforcing the necessary economic and trade sanctions, OFAC restricts prohibited transactions. OFAC defines a “prohibited transaction” as a “trade or financial transaction and other dealing in which U.S. persons may not engage unless authorized by OFAC or expressly exempted by statute.” OFAC is largely responsible for investigating the “prohibited transactions” of individuals, organizations, and companies who operate in foreign nations. OFAC also has the ability to grant exemptions for prohibited transactions on a case-by-case basis.

4. What are OFAC’s investigation powers?

OFAC investigation tools include administrative subpoenas. They allow OFAC to order individuals or entities to keep full and complete records regarding any transaction engaged in, and to provide these records if requested. OFAC’s director may hold hearings, administer oaths, examine witnesses, take depositions, require testimony, and demand the production of any books, documents, or relevant papers relating to the matter of investigation. Once OFAC has issued an administrative subpoena, the addressee must respond in writing within thirty days.

5. How much are the fines for violating these regulations?

The fines for violations can be large. Depending on the program, criminal penalties can include fines from $50,000 to $10,000,000 and imprisonment from 10 to 30 years for willful violations. Depending on the program, civil penalties range from $250,000 or twice the amount of each underlying transaction to $1,075,000 for each violation.

6. Are there exceptions to the prohibitions?

Yes. OFAC regulations provide for the granting of licenses. A license is an authorization from OFAC to engage in a transaction that otherwise would be prohibited. There are two types of licenses: general licenses and specific licenses. A general license authorizes a particular type of transaction for a class of persons without the need to apply for a license. A specific license is a written document issued by OFAC to a particular person or entity, authorizing a particular transaction in response to a written license application. Persons engaging in transactions pursuant to general or specific licenses must make sure that all conditions of the licenses are strictly observed. OFAC’s regulations may contain statements of OFAC’s specific licensing policy about particular types of transactions.

This post gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For more information about OFAC regulations and guidance on how to apply for a specific license, please feel free to contact us.

Should you consult a lawyer before discussing debt and credit issues with a bankruptcy trustee?

A common misconception is that a bankruptcy trustee works for the creditors. A bankruptcy trustee does not work for the creditors, but he also does not “work” for the debtor or bankrupt person.

A bankruptcy trustee in Ontario is appointed by the court to administer the bankruptcy. The trustee’s job is to ensure that both the creditors and the bankrupt person follow the rules. A couple of examples follow.

The bankrupt must report his or her income each month, and to provide the trustee with information to file their taxes. Here, the trustee makes sure all required information is provided.

Suppose a creditor tries to garnish the bankrupt’s wages after the bankruptcy starts. Garnishment is a drastic measure for collecting a debt . It allows a creditor to take the property or wages of a debtor before the debtor gets possession of that property or income. Garnishment is always made by court order. A garnishing order always requires that money is paid to the court. It’s never paid directly to the creditor. Hence, the creditor’s actions are against the rules. So the trustee would seek a court order to stop that.

As the above situations exemplify, the bankruptcy trustee is the “middle man”, like a referee in a hockey game, making sure both sides follow the rules. Link: Lawyer Aurora

So the main question is: should you talk to a lawyer before you talk to a bankruptcy trustee? The answer is: “Yes, of course”. A lawyer works entirely for you, He or she can review your debt situation and advise you.  Also, bankruptcy lawyers usually have good working relations with several trustees and debt counselors. This relationship can work to your advantage.

We suggest that you first do your homework before dealing with a trustee.  Retaining a lawyer to assist you with your bankruptcy or debt reduction procedure is always highly recommended.

Article provided by Richmond Hill Lawyer

This post gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For more information about debtor-creditor and bankruptcy law issues, please feel free to contact us.