Archive for the 'Courts' Category
Beginning 1 January 2010, the new limit for claims has increased from $10,000 to $25,000. This makes it worth searching for Small Claims Court actions when doing due diligence research. However, the Small Claims Court is often in a building some distance from the Superior Court.
Bungled Canadian Criminal Background Check
The Courthouse News Service reports on a bungled background investigation:
CHICAGO (CN) - An investigation agency claims it was ruined by a firm that did a slipshod background check on “reality” TV star Ryan Jenkins, who allegedly murdered his wife, dismembered her body and then killed himself. Collective Intelligence says it was hired to screen contestants for the VH1 show “Megan Wants a Millionaire,” but could not check Jenkins’ background in Canada, so it hired defendant Straightline International to do it.
Collective says Straightline told it Jenkins had no criminal record, though in fact he had a conviction for domestic assault on a girlfriend, according to the complaint in Cook County Court.
In August, Jenkins killed his wife, model Jasmine Fiore, dismembered her body, then fled to Canada and killed himself in a hotel, according to the complaint.
VH1 canceled the show, as well as “I Love Money 3,” on which Jenkins also appeared, to distance itself from media scrutiny, the complaint states.Collective claims that Viacom, which owns VH1, CBS and MTV, ended its relationship with Collective over the mistake.
Collective says Straightline did not request a background check on Jenkins from the Royal Canadian Mounted Police, as expected, but instead got its erroneous information from a court clerk in Alberta.
Collective claims Straightline will not answer or return phone calls and will not provide it with more information about the background check it did on Jenkins.
Collective claims it has more than 90 clients in the entertainment industry and now its reputation is tarnished. It says that Viacom, ABC and NBC have since rejected it as a screener for their shows.
Collective seeks damages for breach of contract, unjust enrichment, negligence, fraud, and tortious interference.
It is represented by Louis Chronowski with Seyfarth Shaw.
In the full copy of the Complaint you will notice a document (Exhibit E starting on page 22) from the John Howard Society dated 2000 titled Understanding Criminal Records. A link to this document appears on the web site of Straightline International to this day.
Canadian Criminal Background Checks
Background checks for criminal activity are often done for several reasons:
- Job Applications
- Security Clearance
- Emigration
For example, many truck companies complete checks to ensure their trucks will not be seized at the border because the driver has a criminal record. The Access to Information Act permits an individual to apply for a copy of his or her criminal record. This may be done in one of two ways.
The first is done by providing a certified copy of the person’s fingerprints. The report will show all the particulars, including the disposition and whether or not there was an acquittal or dismissal. If the offence was committed abroad, there will be no record. Also, if prints were taken at the time of the offence and not sent to Ottawa, there will be no record.
Conditional and Absolute Discharges
The CPIC system includes Conditional and Absolute Discharges prior to July 1992. However, after July 1992 time limits were placed on Conditional Discharges of 3 years and Absolute Discharges of 1 year. After these periods they are removed from the system.
Police Certificate
The second method of acquiring one’s criminal record is not as reliable. The applicant may request a copy of his record based upon a computer inquiry using his name and date of birth. Of course this may not disclose offences where the accused’s name is different from the one provided. The report will only include offences for the exact surname and the first four characters of the given name. This method is called a Police Certificate.
The Applicant must appear in person with two of the following forms of identification: passport, citizenship certificate, birth certificate, or driver’s licence. This is required under either the federal Privacy Act or the Access to Information Act or both.
If no record is found a certificate is issued. If a record is found for the applicant, or a very similar name or date of birth and name, fingerprints will be requested to determine if the applicant is the same person recorded in CPIC.
Liability
If you are an employer doing a criminal record check you must consider name of the organisation providing the Police Certificate. Is is just a letter from a screening company or is an official document from a police agency? If the certificate contains errors, then you are in a much better position if it is a police service that made the mistake. If it is a screening company, then you have to question whether they did the search at all or used something other than CPIC.
Court Case-management Systems
While the Criminal Code of Canada is federal legislation, the administration of the courts is a provincial responsibility. Consequently, each province maintains a case-management system. It appears from the complaint that Straightline only checked the Alberta case-management system. Of course this system is useful to the Investigator, but it is for case-management, not a source of criminal record information for the entire country. Also, such systems have schedules for the removal of records no longer deemed necessary for case-management purposes. Furthermore, the court clerk is not liable in any way should he or she fail to be diligent in conducting the search, even if you can identify the clerk when the error is discovered.
A San Francisco Private Investigator working for a defense attorney crossed the line by leaving messages on a witness’s phone telling him that if he went to court that he would be arrested. This inept PI compounded his outrageous behavior by leaving the recorded messages for posterity.
At least the police and prosecutors who do this type of thing, do it more professionally and don’t leave behind recordings.
I have always been skeptical of DNA evidence being the holy grail in criminal cases. Now we find that DNA evidence can be faked.
Process Server Falsifies Affidavits of Service
Angus McEachern, a former process server for Minnesota based Major Legal Professional Process Serving is now facing trial for perjury for creating nearly 200 false affidavits of service.
As a result of this case John Bauer, the owner of Major Legal and a professional process server for almost twenty years, is now dissolving the business due to the complete destruction of his local reputation. “The defendant had been fully trained in process serving, but simply made the decision not to do his job. He was lazy; that’s what it comes down to,” Bauer said.
In my experience, this is not an isolated incident — this is more common than you might think.
A honeypot is a trap set to attract (or detect) some manner of interaction with an information system.
FBI posts fake hyperlinks to snare child porn suspects
The FBI has recently adopted a novel investigative technique: posting hyperlinks that purport to be illegal videos of minors having sex, and then raiding the homes of anyone willing to click on them.
Undercover FBI agents used this hyperlink-enticement technique, which directed Internet users to a clandestine government server, to stage armed raids of homes in Pennsylvania, New York, and Nevada last year. The supposed video files actually were gibberish and contained no illegal images…
The implications of the FBI’s hyperlink-enticement technique are sweeping. Using the same logic and legal arguments, federal agents could send unsolicited e-mail messages to millions of Americans advertising illegal narcotics or child pornography–and raid people who click on the links embedded in the spam messages…
Civil libertarians warn that anyone who clicks on a hyperlink advertising something illegal–perhaps found while Web browsing or received through e-mail–could face the same fate.
When asked what would stop the FBI from expanding its hyperlink sting operation, Harvey Silverglate, a longtime criminal defense lawyer in Cambridge, Mass. and author of a forthcoming book on the Justice Department, replied: “Because the courts have been so narrow in their definition of ‘entrapment,’ and so expansive in their definition of ‘probable cause,’ there is nothing to stop the Feds from acting as you posit.”
Iranian HoneyPots
The Iranian authorities are creating a different type of honeypot to catch people who may object to the re-election of Ahmedinejad and his crowd.
Marked for Death by Twitter
But in recent days people believed to be members of the Iranian security apparatus have set up apparent decoy Web sites about the demonstrations to gather IP addresses that will allow them to locate the computer of anyone tricked into clicking on them. Others—again believed to be government agents—have begun what appears to be an active campaign to mis- and dis-inform through Twitter postings.
The jury vetting scandal in Ontario illustrates what happens when an act (in this case the Juries Act) assumes that the bureaucracy will act properly and in good faith. Shannon Kari, the reporter, quoted me in the National Post this morning.
No move to set up outside review into secret juror checks
The Ontario government has agreed that the broad background checks, which led to notations on jury lists that included mental heath data and comments such as “dislikes police” went too far…
Richard McEachin, who runs a Toronto-based company that does data research for private clients, said he was not surprised Versadex was used. “The main CPIC criminal record database has a robust audit trail and procedures to prevent abuse,” he said…
He echoed the views of Mr. Stuart, that any criminal record searches should only be on behalf of the court sheriff.
“This would create a visible and dated audit trail,” Mr. McEachin said…
The recent controversy surrounding the improper investigation of potential jurors in Ontario has exposed some of the information the government has on Canadians and their contact with the police. One such database is known as Versadex.
National Post editorial board: Ontario stonewalls justice, one mistrial at a time
The Versadex database administered by the Canadian Police Information Centre contains information obtained by police on any call to a private address, even if that call did not lead to an arrest, and appears to contain other informal police annotations concerning individuals. Notes on mental health status are included.
The term Versadex, refers to a family of products from Ottawa-based Versaterm which produces public safety software. Versaterm produces Computer Aided Dispatch (CAD) software with integrated E911 emergency response, (along with advanced mobile workstations in the patrol vehicles, this puts vital information at police officers’ fingertips) and the Police Records Management System (RMS) for gathering intelligence and disseminating information on involved individuals, businesses, vehicles and locations. The Records Management System (RMS) is the core of the Versadex software suite. When RMS is fully integrated with both PoliceCAD and the Mobile Workstation they ensure a seamless information flow.
A person falsely accused of a crime in Ontario does not have the right to censor the records lawfully held by the police and by extension, the records held by the courts according to the Ontario Court of Appeal.
This decision is important as it ensures, at least for the time being, that records held by the Ontario criminal courts are available when searching for background information. If this decision went the other way, then many would seek to interpret it as meaning that copies of the Information and related court documents would in some way be subject to censorship.
Walmart was permitted by the Colorado courts to subpoena Facebook, Myspace and Meetup.com for the profiles of several employees that were suing the retailer regarding work related injuries.
I wrote about a similar Canadian case that established that what you find in Google, other search engines, and unrelated Facebook pages may be used as the basis for a motion for the production of the subject’s entire Facebook page as happened in KOURTESIS V. JORIS (2007). Another Canadian case is Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.) (QL). These cases are becoming more common and of greater significance as social sites become a larger part of our lives.
The Court of Appeal for Ontario launched an RSS feed for when:
- Decisions are added to the decisions page
- Case lists are available
- Leave to appeal notifications are posted
- Non-publication orders and in-camera hearings are announced
Additional feeds are under development and in the future you will be able to subscribe to separate feeds for each service.
Check out this new service at http://www.ontariocourts.on.ca/coa/en/rss/index.htm.
Litigation may tell you what the target company doesn’t want you to know.
Here are five things to look for when reviewing a company’s legal entanglements:
- Is the company the target of large scale mass tort actions?
- Is the company facing class action claims for faulty products and/or services?
- Is the company facing lawsuits claiming shoddy or unfair business practices?
- Have employees sued for wrongful dismissal?
- Are shareholders claiming the company knew about material facts that depressed their stock price and failed to disclose them?
Last year I wrote about the Tort for Negligent Investigations and how this would reach out and touch a Private Investigation firm in Canada soon.
Private Investigator Sued
The Ontario Court of Appeal has expanded the tort of negligent investigation to allow employees to sue private investigators hired by employers to probe suspected wrongdoing in the workplace. The unanimous ruling by Associate Chief Justice Dennis O’Connor and Justices Marc Rosenberg and Kathryn Feldman extends the newly created tort of negligent investigation to private investigators. This tort was first recognized by the Supreme Court in 2007 as applicable to police.
In Correia v. Canac Kitchens, 2008 ONCA 506 & [2008] O.J. No. 2497, the court has imposed a new duty of care regarding investigators. The plaintiff was an innocent employee mistakenly fired and arrested for theft following a private investigation launched by his employer. His name was confused with that of another employee with a similar name. The sequence of events that led to erroneous identification of Mr. Correia is summarized in the chronology in paragraph [8].
Every Private Investigator in Canada should pay close attention to this case and the circumstances that gave rise to it.
The Ontario Divisional Court, ruled in Petti v. George Coppel Jewellers Ltd. that polygraph test results are inadmissible as evidence in Ontario civil court proceedings:
Justice Quinn reviewed the law. He said that evidence that a person has offered to submit to polygraph testing can be admissible, but that was a neutral factor here, since both parties had made such an offer. Secondly, the questions and answers from the testing can be admissible, if they constitute admissions against interest. But the test results themselves are not admissible because they usurp the jurisdiction of the trier of fact. As His Honour said, “the court should not delegate its jurisdiction, even on consent”. Hence, a new trial was ordered.
Polygraphy was disallowed in criminal proceedings in a 1987 ruling of the Supreme Court of Canada.
John J. Furedy, Emeritus Professor of Psychology at the University of Toronto, maintains a site opposed to the polygraph that has links to research articles on the efficacy of polygraph tests.