File No.: CT 2005-006 Registry Document No.:
COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended; IN THE MATTER OF an application by B-Filer Inc., B-Filer Inc. doing business as GP AY GuaranteedPayment and Npay Inc. for an order pursuant to section 103.1 granting leave to make application under sections 75 and 77 of the Competition Act;
AND IN THE MATTER OF an application by B-Filer Inc., B-Filer Inc. doing business as GPA Y GuaranteedPayment and Npay Inc. for an interim order pursuant to section 104 of the Competition Act.
BETWEEN: B-FILER INC., B-FILER INC. doing business as GPAY GUARANTEEDPAYMENT and NPAY INC. ---C-0-MPE~T~ITl~ON~TIU~·~B~UN~A~L~ 'ftllaUNAL DE LA CONCURRENCE Applicants ~fWY " C_~ ~ I DEC 5 2005 D ~ ~ THE BANK OF NOV A SCOTIA D ET mtGISTRAR _ p.JiGlSTRAIR Respondent OlTAWA ON DO THIRD AFFIDAVIT OF PATRICK HEALY Affirmed December 2, 2005
I, PATRICK HEALY, of the City of Montreal m the Province of ()ucbec AFFIRM AND SAY AS FOLLOWS:
1. I hold the position of Full Professor in the Faculty of Law at McGill University. 2. A copy of my resume is attached hereto as Exhibit A. 3. For the purposes of preparing this Affidavit, I have reviewed the following documentation:
- 2 -a. Reasons for previous Order dated November 4, 2005, granting leave to apply only under section 75 of the Competition Act, of Justice Simpson, = in the matter of B-Filer Inc., B-Filer Inc. doing business as Gpay Guaranteedpayment and Npay Inc. v. The Bank of Nova Scotia, CT-2005-006, dated November 14, 2005; and
b. an Affidavit of Stanley Sadinsky, sworn November 22, 2005 and the Exhibits attached thereto.
4. On instructions from counsel to the Applicants I have delivered a legal opinion incorporntcd herein by reference and attached hereto as Exhibit 8.
AFFIRMED BEFORE ME at the City of Montreal in the Province of Quebec on this 2"d day of December 2005
PATRICKHEiLY
- 3 -Exhibit A Resume Professor Patrick Healy
Sworn before me this 2nd e 2005
"'
--- ----·--·---·-·· This is the Exhibit A referred to in the affidavit of Patrick Healy
PATRICK HEALY Curriculum Vitae November 2005
Faculty of Law & Institute of Comparative Law, McGill University, 3644 Peel Street, Montreal, Quebec, Canada. H3A 1W9.
Telephone-. (514) 398.6637 Fax. (514) 398.4659 E-maif. patrick.healy@mcgill.ca
Shadley Battista Barristers & Solicitors Suite 1000, 1100, de la Gaucheti.ere ouest, Montreal, Quebec. H3B 2S2.
Telephone-. (514) 866.4043 Fax. (514) 866.8719 E-mail: recepti.on@shadleybatti.sta.com
Canadian citizen, born 9 November 1955. LanguageS". English and French.
Professor of Law (1990-present), Faculty of Law & Institute of Comparative Law, McGill University (Suijects-. Criminal Law, Evidence, Criminal Procedure, International Criminal Law, Sentencing in Canadian Criminal Law, Corporate and Commercial Crime, Comparative Criminal Procedure, Advanced Problems in Evidence, Civil Procedure, Legal Clinics, Legal Research and Writing, supervision of graduate students).
Counsel, Shadley Battista, Barristers & Solicitors, Montreal, Quebec.
- 2 -Associations Barrister & Solicitor, Barreau du Quebec (1983) Canadian Bar Association International Association of Penal Law Society for Reform of the Criminal Law International Association of Prosecutors Canadian Institute for the Administration ofJ ustice Montreal Amateur Athletic Association
Education LL.M., University of Toronto B.C.L., McGill University B.A. (Hons.), University of Victoria
Awards Boulton Fellowship, McGill University (1989) Overseas Research Studentship, University of Oxford (1985, 1986) Research Fellowship, Social Sciences and Humanities Research Council of Canada (1984, 1985, 1986) Duff-Rinfret Scholarship in Law (1983) Fraser & Beatty Scholarship, University of Toronto (declined, 1981) Wainwright Essay Prize in Law (1981) Isidore Ballon Memorial Medal (1981) Scarlet Key, McGill University (1981) President's Supplement (1977) Kiwanis Club of Victoria Scholarship (1974)
Academic appointments Faculty of Law & Institute of Comparative Law, McGill University, 1990 - present.
Visiting Professor, Faculty of Law, Villanova University, Summer Term, 2005.
Visiting Professor, Faculty of Law, Villanova University, Summer Term2004.
Visiting Fellow in International Criminal Law, International Studies Centre, Queen's University, Herstmonceux Castle, England, Summer Term, 2003.
Lecturer, Criminal Law, Faculty of Law, McGill University, 1990.
- 3 -Boulton Fellow, Faculty of Law, McGill University, 1989-1990. Lecturer, Criminal Procedure and Evidence, Faculty of Law, McGill University, 1984.
Editor-in-Chief, MtG-ill Law Journal, 1980-1981. Editorial and research assistant, Faculty of Law, McGill University, 1980.
Editorial Board, MtG-ill Law Jo umal, 1979-1980. Commission of inquiry Commissioner of Inquiry (with the Honourable Chief Justice Joseph Daigle and the Honourable Mr Justice John Richard), Committee of Inquiry established under the Judges Act to Inquire into the Conduct ofR.obert Flahiff, February-April 1999.
Judicial education Arbitrary Detention, National Judicial Insitute, Hearing and Deciding Charter Cases V, 18 July 2005.
Instructor, National Judicial Institute, Hearing and Deciding Charter Cases V, Calgary, Alberta, 15- 22 July 2005.
Mutation of the Charter, Annual Conference of Ontario Court of Justice, London Ontario, 14 June 2005.
A Court of Competent Jurisdiction - Some Preliminary Thoughts, Annual Conference of the Ontario Court of Justice, London Ontario, 13 June 2005.
New Developments in Coporate Criminal Liabtliry, Governance of Public Institutions, Professions, Corporations, Tribunals and Courts: Ethics, Responsibility and Independence, Annual Conference of the Canadian Institute for the Administration of Justice, La Malbaie, Quebec, 15 October 2004.
Improperfy-Obtained Evidence, National Judicial Institute, Hearing and Deciding Charter Cases IV, La Malbaie, Quebec, 22 July 2004.
Instructor, National Judicial Institute, Hearing and Deciding Charter Cases IV, La Malbaie, Quebec, 18-24 July 2004.
Similar Problems with Similar Facts, Judges' University Programme, Ontario Court ofJ ustice, London Ontario, 8 June 2004.
Cumnt Problems with Conditional Sentences, Judges' University Programme, Ontario Court of Justice, London Ontario, 7 June 2004.
- 4 -A New Test for Judicial Notice, Annual Conference of the Ontario Court ofJ ustice, Ottawa, Ontario, 21 May 2004. Principles of Hearsqy, Annual Conference of the Ontario Court of Justice, Ottawa, Ontario, 20 May 2004. The Pitfalls of W.(D.), Annual Conference of the Ontario Court of Justice, Ottawa, Ontario, 19 May 2004.
Improperfy-Obtained Evidence, National Judicial Institute, Hearing and Deciding Charter Cases III, Whistler, British Columbia, 24 July 2003.
Instructor, National Judicial Institute, Hearing and Deciding Charter Cases III, Whistler, British Columbia, 21 - 27 July 2003.
The limits of Judicial Notice, Judges' University Programme, Ontario Provincial Court Judges' Association, London, Ontario (with Kent Roach), 12 June 2003.
The Du!J to Intervene at Trial, Judges' University Programme, Ontario Provincial Court Judges' Association, London, Ontario, 12 June 2003.
Investigative Detention, Judges' University Programme, Ontario Provincial Court Judges' Association, London, Ontario, 11 June 2003.
L 'Interoention du juge en cours du proces, L'A ssociation des juges de la Cour du Quebec (Chambre Criminelle), Lac Masson, Quebec, 19 February 2003. The Role of the Trial Judge, Annual Meeting of the Court of Queen's Bench for Alberta, Calgary, Alberta, 22 November 2002.
Excluding Evidence, Seminar for Judges of the Superior Court of Quebec, Mont Tremblant, Quebec, 20 August 2002.
How Section 24(2) has Changed, National Judicial Institute, Hearing and Deciding Charter Cases II, Mont Tremblant, Quebec, 28 July 2002.
Instructor, National Judicial Institute, Hearing and Deciding Charter Cases II, Mont Tremblant, Quebec, 28 July - 2 August 2002.
Twen!J Years of the Charter, Ontario Association of Provincial Court Judges, Niagara Falls, Ontario, 23 May 2002.
Applications for the Exclusion of Evidence on Constitutional Grounds, National Judicial Institute, Lake Carling, Quebec, 5 April 2002.
- 5 -L'Exclusion de la preuve selon /'article 24(2) de la Charte, L'Association des juges de la Cour du Quebec, Quebec City, Quebec, 21 January 2002.
New Directions far Judicial Education, National Judicial Institute, Ottawa, Ontario, 25 November 2001.
More Direction on Jury Directi{Jns, National Judicial Institute, Seminar on Criminal Law, Winnipeg, Manitoba, 4 October 2001.
Approaches to Search and SeiZ!'re under Section 8, National Judicial Institute, Hearing and Deciding Charter Cases, Montebello, Quebec, 31 July 2001.
The Right to Counsel, National Judicial Institute, Hearing and Deciding Charter Cases, (Intensive Course for Judges), Montebello, Quebec, 31 July 2001.
Instructor, National Judicial Institute, Hearing and Deciding Charter Cases, 29 July- 3 August 2001, Montebello, Quebec.
Instructor, Canadian Association of Provincial Court Judges, May -June 2001. Re conditional sentencing (on internet).
National Judicial Institute, Organising Committee, Hearing and Deciding Charter Cases II, Intensive Course for Judges, 2001 - 2002.
Evidence of Bad Character, Annual Seminar of the Judges of the Superior Court of Quebec, Montreal, Quebec, 10 May 2001. Twelve Months in the Development of the Criminal Law, National Judicial Institute, Appellate Judges Seminar, 26 April 2001.
A Reasonable Charter, Annual Seminar of the Supreme Court of Nova Scotia, Halifax, Nova Scotia, 12 March 2001.
Instructor, Canada - China Senior Judges Training Project, 2 - 14 February 2001. Re Jurisdiction and the Rule of Law.
Direction and Guidance on Reasonable Doubt in the Charge to the Jury, National Judicial Institute, Ottawa, 16 November 2000.
National Judicial Institute, Organising Committee, Hearing and Deciding Charter Cases, Intensive Course for Judges, 2000 - 2001.
L 'emprisonnement avec sursis, L'A ssociation canadienne des juges de cours provinciales, sur !'Internet, du ler au 26 mai 2000.
A-B-C du paragraphe 24(2), Congres annuel des Juges de la Cour du Quebec, Lac Delage, Quebec, 31 January 2000; Joumee d'etude de l'A ssociation des avocats et avocates de la defense de Montreal, le 27 avril 2000, Montreal.
- 6 -Instructor, Canadian Association of Provincial Court Judges, May 2000. Re conditional sentencing (on internet).
Instructor, Canada - China Senior Judges Training Project, Montreal, October - November 1999. Re comparative criminal procedure.
Instructor, Canada - China Senior Judges Training Project, Montreal, July 1999. Re economic and commercial crime. New Developments concerning Conditional Sentences, National Judicial Institute, Conference on Criminal Law, Vancouver, 19 March 1999.
Reasonable Doubt and the Defence Case, National Judicial Institute, MontreaL March 1998.
Principal consultancies and previous employment (excluding litigation mandates) Canadian Judicial Council, 2005. Re complaints procedure under the Judges Act.
Department of Justice (Canada), 2004. Re double criminality and immigration proceedings
Department of Justice (Canada), 2004. Re The Openness Principle and the Limits of Secrecy, (2004).
Adviser, Canadian Judicial Council, 2004 - present. Re complaints procedure in matters of judicial discipline (with Bruce Archibald, Q.C.).
Adviser, Canadian Judicial Council, 1999 - present. Re model jury directions for use in criminal cases in Canada.
Adviser, Canadian Bar Association, Canada - China Cooperation Project, 2003. Re development of a criminal defence bar in China. Counsel, The State of Eritrea, 2001 - 2003. Re revision of Code of Civil Procedure.
Counsel, The State of Eritrea, 2001 - 2002. Re revision of Civil Code and Commercial Code (with Richard A. Rosen and Martin Ganzglass).
Adviser, Department of Justice (Canada), 2000. Re jurisdiction of criminal courts.
Adviser, Department of Justice (Canada), 2000. Re recent developments in conditional sentencing.
- 7 -Adviser, Department of Justice (Canada), 1999. Re differential application of the criminal law in Canada.
Adviser, Department of Justice (Canada), 1998-1999. Re the principle of restraint in drafting criminal legislation.
Counsel, The State of Eritrea, 1997 - 2000. Re drafting a new Code of Penal Procedure of the State of Eritrea (with Richard A. Rosen and Martin R. Ganzglass).
Counsel, The State of Eritrea, 1997-1999. Re drafting a new Penal Code of the State of Eritrea (with Richard A. Rosen and Martin R. Ganzglass).
Adviser, Department of Justice, 1997. Re constitutional validity of Bill C-3 (acquisition of DNA samples).
Counsel, Coalition for Gun Control, 1996-1997. Re promotion and defence of gun-control legislation.
Adviser, Department of Justice (Canada), 1996. Re the constitutional validity of section 33.1 of the Criminal Code.
Adviser, Royal Commission of Inquiry concerning the Deployment of Canadian Forces in Somalia, Ottawa, 1995-1997. Re interrogation of prisoners, independence of military police and structure of prosecutorial decision-making in the military context (with James W. O'Reilly).
Adviser, Department of Justice (Canada), 1995. Re the role and powers of the Attorney-General of Canada.
Adviser, Department of Justice (Canada), 1994-1995. Re statements by accused young persons under section 56 of the Young Offenders Act.
Adviser, New Reproductive Technologies, Department of Justice (Canada), February 1994 - June 1994. Government of Canada concerning reproductive technologies.
Counsel, Extradition Working Group, Department of Justice (Canada), 1990-1994. Re policy and planning concerning a new Extradition Act.
Adviser, Department ofJ ustice (Canada), 1989-1990. Re regulatory liability.
Adviser, Department of Justice (Canada), 1989. Re revision of London Scheme on Rendition of Fugitive Offenders.
Re policy for the legislation on new
- 8 -Counsel (Litigation), Martineau Walker, Montreal, 1988-1989. Adviser, Department of Justice (Canada), 1988. Rt infanticide and other child homicides.
Adviser, Department of Justice (Canada), 1988. Rt section 11 (d) of the Canadian Charter of Rights and Freedoms. Adviser, Department of Justice (Canada), 1987. Rt homicide of children.
Law Reform Commission of Canada, Ottawa, 1985-1987. Rt the burden of proof and the presumption of innocence.
Law Reform Commission of Canada, Ottawa, 1983-1984. Rt pretrial disclosure by the prosecution (Report 22).
Adviser, Department ofJ ustice (Canada), 1983. Rt amendments of offences in the Criminal Code relating to driving offences.
Law Reform Commission of Canada, Ottawa, 1981-1983. Rt police interrogation (Working Paper 32 and Report 23).
Membership in professional committees Member, Standing Committee on Criminal Law, Bar of Quebec (1992 - 2003).
Director, Executive Committee, Criminal Law Division, Canadian Bar Association (Quebec) (1994 - present).
Member, General Council of the Canadian Bar Association in Quebec (1999 - 2000).
Publications Editorial Editor, Canadian Criminal Law Review (with Anne-Marie Boisvert, Guy Cournoyer and James O'Reilly), published by Carswell Legal Publications (from 1996).
Editorial Board, Canadian Journal of Criminology (from 1997). Editorial Board, Sentencing Matters (from 1997). Editorial Board, Journal of the International Association of Prosecutors (from 1999).
- 9 -Monographs Criminal Law and Procedure, 9th edition (2004), with Kent Roach and
Gary Trotter.
Sentencing and Penal Poliry in Canada: Cases and Materials (Emond-Montgomery, 2000), pp. 1 - 950, with Allan Manson and Gary Trotter.
Dawn or Dusk in Sentencing? (Themis, 1998), pp. 1 - 417, edited with Helene Dumont. Independence in the Prosecution of Offences in the Canadian Forces, with James W. O'Reilly, prepared for the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (1997), pp. 1 - 124.
Questioning Suspects, Report (N° 23) prepared for the Law Reform Commission of Canada (1984), pp. 1 - 25.
Disclosure lry the Prosecution, Report (N° 22) prepared for the Law Reform Commission of Canada (1984) (with Alan D. Reid, Q.C.), pp. 1 - 36.
Questioning Suspects, Working Paper (N° 32) prepared for the Law Reform Commission of Canada (1984), pp. 1 - 104.
-10-Articles Investigative Detention in Canada, [2005] Crim. L.R.98-107.
The Effect of Pre-Sentence Custocfy on Efigibili!J for a Conditional Sentence (2005) 9 Can. Crim. L.R. 261-271.
Counteifeit Canadian Bank Notes, Ontario Crown Internet (on line) (2004), pp. 1 - 24 (originally prepared for the Bank of Canada).
Canadian Cooperation with the International Criminal Court, in Dumont & Boisvert, The Highwqy to the International Criminal Court: Alf Roads Lead to Rome (2004), 483-487. Constitutional limitations upon the Allocation of Trial Jurisdiction to the Superior or Provincial Court in Criminal Matters (2003) 47 Crim. L.Q. 31-76. Judicial Notice in Sentencing (with William J. Vancise) (2002) 65 Sask. L. Rev. 97-105. The Future of Conditional Sentencing (with Julian V. Roberts) (2001) 44 Crim. L.Q. 309-341.
Direction and Guidance on Reasonable Doubt in the Charge to the Jury (2001) 6 Can. Crim. L.R. 161-178. The Punitive Nature of the Conditional Sentence (2000-2001) 80 Can. Bar. Rev. 1011-1018; also published in Department of Justice (Canada), The Changing Face of Conditional Sentencing (2001), 1-9. Six of the Best (2000) 4 3 Can. J. Criminology 389-404. "A Canadian Perspective on the Role of the Prosecutor in Criminal Prosecutions" in Arbour, Eser, Ambos & Sanders, The Prosecutor of a Pennanent International Criminal Court (1fax Planck Institute, Freiburg, 2000), 245-250.
Automatism Confined (2000) 45 McGill L.J. 87-105. "Legislating without Reverse Burdens", in Stuart, Delisle & Manson, Towards a Clear and Just Criminal Law (1999), 85-94.
"The Principle of Restraint in Drafting Criminal Legislation", in Bergeron et al., Essqys on Legislative Drqfting (1999), 209-211 (Ukrainian), 205-216 (French), 195-205(English). Questions and Answers on Conditional Sentencing in the Supreme Court of Canada (1999) 42 Crim. L.Q. 12-37.
Risk, Obligation and the Consequences of Silence at Trial (1997) 2 Can. Crim. L.R. 385-401.
-11-"The Criminalisation of New Technologies'', in Weir (ed.), Governing Medical!J Assisted Human Reproduction (1997), 65-73.
"Sentencing Reform: The Elephant in the Snake", in Developpements recents en droit criminel (1997), 3-27.
Beard Still Not Cut Ojf(1996) 46 C.R. (4th) 65-73. Reform of Criminal Law and the New Law Commission, Policy Options, Volume 17, N°1,January- February 1996, pp. 3-6.
Admissibiliry, Discretion and the Truth of the Matter (1995) 6 S;C.L.R. (2d) 379-451.
Statutory Prohibitions and New Reproductive Technologies under Federal Law in Canada (1995) 40 McGill L.J. 905-946.
Repeal Criminal Negligence (1995) 37 C.L.Q. 205-219. Another Round on Intoxication (1995) 32 C.R. (4th) 269-275. "Orientations of Corporate Criminal Liability in Canada" in Glenn, Contemporary Law 1994 / Droit contemporain 1994 (1995), 845-873; also published in Doelder & Tiedemann, Criminal Liabiliry of Corporations (1996), 169-202.
Intoxication in the Codijication of Canadian Criminal Law (1994) 72 Can. Bar Rev. 515-552.
The Creighton Quartet: Enigma Variations in a Lower Kry (1993) 23 C.R. (4th) 265-279.
Innocence and Defences (1993) 19 C.R. (4th) 121-131. Regulatory Offences: The Case far a Purposive Test ofP roportionaliry in Public Liabiliry [1990] Meredith Lectures 19 5-231.
Bernard: Difficulties with Voluntary Intoxication (1990) 35 McGill L.J. 610-632.
The Value ofS ilence (1990) 74 C.R. (3d) 176-190. Fundamental Questions in Wholesale Travel (1990) 69 Can. Bar Rev. 761-775.
Proof and Poliry: No Golden Threads [1987] Crim. L.R. 355-365. The Quantum Required far Proof of Voluntariness of Confessions (1985) 17 Ottawa L. Rev. 132-170.
The Process ofRefarm in Canadian Criminal Law (1984) 42 U. Toronto Fae. L. Rev. 1-24.
Reproductive and Genetic
-12-Motor Vehicles: &de.fining the Scope of Criminal Uabili!J for Dangerous and Impaired Driving (1984) 16 Ottawa L. Rev. 361-387.
Bill C-19: &forming the Criminal Law (1984) 16 Ottawa L. Rev. 231-240. Chabotage: Expanding the Crown's Power to Prefer Additional Counts (1984) 38 C.R. (3d) 344-351. A Technical Note on Subsection 454(1.1) of the Criminal Code and the &lease Powers of Police Officers (1982) 24 Crim. L.Q. 489-496 (with Stanley A. Cohen).
Notes and comments Uber!) under Stress (2004) 9 Can. Crim. L.R. 149-155 (editorial).
The International Criminal Court (2003) 8 Can. Crim. L.R. 1-4 (editorial). &newing &form of the Criminal Law (2002) 7 Can. Crim. L. R. 253-256 (editorial).
A &asonable Charter(2002) 7 Can. Crim. L.R. 1-4 (editorial). Conditional Sentencing at the Umit (2001) 6 Can. Crim. L.R. 1-5 (editorial). The Evolving ≤ of Law (2000) 5 Can. Crim. L.R. 241-246 (editorial).
&wn'tingAutomatism (1999) 4 Can. Crim. L.R. 119-126 (editorial). Awaiting Answers from the Supreme Court on Conditional Sentencing (1999) 3 Sentencing Matters 1-2.
Local Programmes under Part XXIII of the Criminal Code (1998) 2 Sentencing Matters 1-2.
Breach of a Conditional Sentence l?J Alleged/y Committing Another Offence (1998) 3 Can. Crim. L.R. 1-16 (editorial).
More Protection far the Silent Accused in Canada (1998) 2 Int'l ]. Evidence & Proof 247-252.
New Directions in Sentencing (1996) 1 Can. Crim. L.R. 262.1-262.9 (editorial).
Annotation to Daviau/! (1995) 39 C.R. (4th) 270-273. Gagnon: Suicide and Solitude (1994) 24 C.R. (4th) 389-394.
-13-Barbeau: Nihil ex nihilo fit (1992) 15 C.R. (4th) 190-197. Further Points on the Defence of Voluntary Intoxication: Problems with Penno (1992) 71 Can. Bar Rev. 143-155.
Some Answers and Some Questions on Insani!J (1991) 2 C.R. (4th) 95-106.
The Right to R.emain Silent: Value Added, but How Much? (1990) 77 C.R. (3d) 199-208.
Anderson: Marking Time or a Step Back on Criminal Negligence? (1990) 75 C.R. (3d) 58-68.
Hunt and Implied Exceptions to Woolmington (1986) 136 N.L.J. 423-424.
R. v. Talbourdet: Annotation (on arrest and detention) (1984) 39 C.R. (3d) 210-213.
"Preface", Issues in Medical Law in Canada (1981) 26 McGill L.J. 671-672.
Newspaper articles "Doing Time in Community can Work", The Toronto Star, 16 February 2000 (with Julian Roberts).
"Conditional Sentences: Jury is still out on Effectiveness", The LaU)lers' Weekfy, 11 February 2000, p. 5 (with Julian Roberts).
"Ruling will mean longer conditional sentences", The Gazette (J\fontreal), 4 February 2000, p. B-3 (with Julian Roberts).
"Prevention anchors Youth Crime Law", The Gaz:tte (Montreal), 1 June 1998, p. B-3.
"Canada has too many Public Inquiries covering Too Much Ground", The Gazette (Montreal), 15 January 1997, p. B-3.
"Top Court is not Letting Drunks get away with Murder", The Gazette (Montreal), 29 March 1996, p. B-3.
"Rock Solid", The Gazette (Montreal), 31January1996, p. B-3. ''Justice was Done", The Gazette (Montreal), 7 September 1995, p. B-3.
"A Sobering Thought", The Gazette (Montreal), 7 March 1995, p. B-3.
-14-"Prosecutor's Comments Jeopardize the Presumption of Innocence", The Citizen (Ottawa), 11 May 1994, p. A-11 (with James W. O'Reilly).
''Why Valery Fabrikant Had Such a Long, Torturous Trial", The Gazette (Montreal), 17 August 1993, p. B-6.
"Steps to Police Reform", The Globe and Mail, 8 December 1983; p. 7; also published in French in Le Devoir, 29 December 1983, p. 7 and in Le So/eil, 8 January 1984, p. A-7.
"Police Interrogation and the Charter of Rights", The Globe and Mail, 27 November 1981, p. 7.
Reviews Andrews & Hirst, Criminal Evidence (1987) in [1988] Crim. L.R. 71-72.
Heydon, Evidence: Cases and Materials, 2nd ed. (1985) in [1985] Crim. L.R. 467-468.
Ewaschuk, Criminal Pleadings and Practice in Canada (1982) in (1983) 28 McGill L.J. 1047-1051.
Berger, Fragile Freedoms (1982) in (1982) 45 M.L.R. 726-728. Manchester, Modern Legal History (1980) in (1981) 26 McGill LJ. 125-128.
Translations Imperial Tobacco Ltd. v. Attorney-General of Canada (1988) 55 D.L.R. (4th) 555-577.
R v. Clot (No. 1) (1982) 69 C.C.C. (2d) 349-365. R v. Clot (No. 2) (1982) 69 C.C.C. (2d) 365-367. R v. Clot (No. 3) (1982) 69 C.C.C. (2d) 367-380.
Parliamentary testimony Testimony on Corporate Criminal Liability, 28 May 2002, Minutes of the Standing Committee on Justice and Human "Rights (House of Commons).
Testimony on proposed Blood Samples Act (private member's bill), 21 February 2002, Minutes of the Standing Committee on Justice and Human "Rights (House of Commons).
-15-Testimony on Proposed Legislation concerning New Reproductive Technologies, 24 October 2001, Minutes of the Standing Committee on Health (House of Commons).
Testimony on Bill C-95, 24 April 1997, Minutes of the Standing Committee on Justice and Constitutional Affairs (Senate of Canada). Testimony on Bill C-45, 27 November 1996, Minutes of the Standing Committee on Justice and Constitutional Affairs (Senate of Canada).
Testimony on Bill C-45, 17 June 1996, Minutes of the Standing Committee on Justice and ugalAjfairs (House of Commons).
Testimony on Bill C-68, 18 September 1995, Minutes of the Standing Committee on Justice (Senate of Canada).
Testimony on Bill C-68 (for the Barreau du Quebec), 7 June 1995, Minutes ofthe Standing Committee on Justice (Senate of Canada).
Testimony on Bill C-68 (for the Barreau du Quebec), 17 May 1995, Minutes oft he Standing Committee on Justice and ugalA ffairs (House of Commons), Issue N° 110, First Session, Thirty-fifth Parliament.
Testimony on Bill C-72 (Intoxication Defence), 6 April 1995, Minutes of the Standing Committee on Justice and ugal Affairs (House of Commons), Issue N° 97, First Session, Thirty-fifth Parliament.
Submissions on Bill C-126 (Criminal Lawyers' Association of Ontario), presented to the Standing Committee on Justice and the Solicitor General (House of Commons), 2June 1993.
Testimony on Reform of the General Part of the Criminal Code, in Minutes of the Subcommittee on the Recodification of the General Patt of the Criminal Code oft he Standing Committee on Justice and the Solicitor General, 26 November 1992, Issue N° 9, Third Session, Thirty-fourth Parliament.
Submissions on Bill C49 (Criminal Lawyers' Association of Ontario), presented to the Legislative Committee on Bill C-49 (House of Commons), 14 May 1992, and published in Minutes ofP roceedings and Evidence of the ugislative Committee on Bill C49, Issue No. 1, 14 May 1992, Appendix C-49/2, pp. 1A:14-1A:26; also published in (1992) 13 Criminal Lawyers' Association Newsletter (2) 7-15.
-16-Changing the Rules on Coefessions, prepared for the Canadian Bar Association and presented to the Senate of Canada as part of the Association's brief on Bill S-33, the proposed new Canada Evidence Act: Senate of Canada, Proceedings of the S landing Senate Committee on Legal and Constitutional Affairs (Hansard), First Session, 32nd Parliament, Vol. 128, Issue No. 68 (28 June 1983), Appendix 68-A, pp. 58-111.
Expert evidence United States of America v. Del Vicchio, Osorio & Osorio, Superior Court of Quebec, October 2001. Re comparative analysis of legal systems for extradition. United States of America v. Palmucci, Superior Court of Quebec, June 2001. Re comparative analysis of legal systems for extradition. United States of America v. Rangasoonhian & Yang, Superior Court of Justice (Ontario), 6 September 2000. Re comparative analysis of legal systems for extradition.
Working committees and reports Canadian Judicial Council, Recommendations concerning the Complaints Procedure (2005).
Canadian Judicial Council, Judicial Accountability since 1995 (2005). Department of Justice (Canada), Mandatory Minimum Sentences, April 2005.
Minister's Roundtable on Reform of the Criminal Law, Toronto, Ontario, 1 November 2002.
Canadian Judicial Council, Working Committee on Model Jury Directions for Use in Criminal Cases, 1999.
Department of Justice (Canada), Differential Application of the Criminal Law in Canada (1999).
Dawn or Dusk in Sentencing, Canadian Institute for the Administration of Justice (1997), papers presented at a symposium in Montreal on 30 April 1997. Member of the Organising Committee (with Mr. Justice William J. Vancise and Judge David Arnot) for the Symposium.
Working Group on the Implementation of Alternative Measures and Other Sentencing Reforms, Montreal, September 1996 - 1997.
-17-Organising Committee, Portage Conference on Drug-Abusing Offenders and Criminal Justice, 1995-1996. The Role of the Attorney General of Canada in Criminal Matters, prepared for the Minister of Justice and the Attorney General of Canada (1996).
Minister's Consultative Group, Extradition from Canada, Department ofJ ustice (Canada), February 1995.
Adviser on Sexual Abuse and Harassment, Synod of Quebec and Eastern Ontario, Presbyterian Church of Canada, 1994 -1998. Minister's Consultative Group, The Defence of Voluntary Intoxication, Department ofJ ustice (Canada), December 1994. New Proposals for Evidence in Extradition Cases: The Record of the Case, prepared for the Extradition Working Group, Department of Justice (Canada), 1994. Minister's Consultative Group, The General Part of the Criminal Law, Department ofJ ustice (Canada), 24-25 March 1994. The Application of a New Extradition Act to the Commonwealth, prepared for the Extradition Working Group, Department of Justice (Canada), 1991.
The Authority to Stop Extradition Proceedings on Grounds other than the Strength of the Evidence, prepared for the Extradition Working Group, Department ofJ ustice (Canada), 1991. &ties of Evidence for a New Extradition Act, prepared for the Extradition Working Group, Department of Justice (Canada), 1991.
Proposals far the Modification of Arlic/e V of the London Scheme on Rendition of Fugitive Offenders, prepared for the Department of Justice (Canada), 1990.
For a Model of Regulatory Offences, prepared for the Compliance and Regulatory Remedies Group, Department of Justice (Canada), March 1990.
The Presumption of Innocence in the Draft Code of Substantive Criminal Law, prepared for Law Reform Commission of Canada, Ottawa, 1986.
-18-Lectures Crime and Punishment-Abridged, Mini-Law Series of Public Lectures, Faculty of Law, McGill University, Montreal, Quebec, 17 November 2005.
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- 4 -Exhibit 8 Legal Opinion of Patrick Beaty
This is the Exhibit B referred to in the affidavit of Patrick Healy
PATRICK HEALY PROFESSOR OF LAW AVOCAT BARRISTER & SOLICITOR
FACULTY OF LAW 514.398.6637 MCGILL UNIVERSITY (FAX) 514.398.4659 3644, RUE PEEL MONTREAL, QUEBEC. CANADA. H3A 1 W9. PATRICK.HEALY@MCGILL.CA 2 December 2005 Adam Atlas, Esq., Barrister & Solicitor, Suite 1400, 2000 Mansfield Street, Montreal, Quebec. H3A 3A2.
Dear Mr. Atlas, You have asked for my op1n1on concerrung criminal aspects of the following factual hypothesis:
BF receives funds electronically from X, who is in Canada, and transmits them electronically to Y, who is not in Canada, in the knowledge that Y is an off-shore gambling casino and that Y might place the funds at X's instructions for gambling in its casino that are not in Canada but that operate legally in the jurisdiction ofY.
Your question is whether BF is a party to criminal activity in Canada. It is assumed that the funds might be used for gambling that would be contrary to the Criminal Code if it occurred in Canada but is entirely lawful in Y.
The first question to consider is whether X is committing an offence in Canada and my answer is no.
Subject to several exceptions, Canadian criminal law respects the territoriality principle. 1 This means that, in the absence of an express exception, Canadian courts do not have jurisdiction over offences committed outside of Canada.
Criminal Code, section 6(2).
2 Gambling offences are not among the crimes over which Canada has asserted extra-territorial jurisdiction. If a Canadian enters a foreign casino and gambles legally, Canadian courts could not assert jurisdiction over that conduct. Indeed it makes no difference whether the conduct is or is not a crime in the foreign state and it makes no difference whether the specific conduct is a crime in Canada.
Gambling offences are not comparable, for example, to money-laundering, which is given an extra-territorial reach in the Criminal Code. 2 Another example would be providing financial assistance to facilitate terrorism, which is also given extra-territorial ambit. 3 Thus if X commits an act entirely outside of Canada, even if that conduct would be a crime in Canada, there can be no jurisdiction over that offence in the absence of an express assertion of extra-territorial jurisdiction. In the situation at hand, however, it is assumed that anything occurring in Y is entirely lawful according to the law of Y.
This is not the end of the matter, however, if it could be argued that an offence was committed in Canada or that a substantial part of an offence by X took place in Canada. In Libman the Supreme Court ruled that Canadian courts could assert jurisdiction over an offence if a significant portion of the activity constituting the crime occurred in Canada. 4 On the hypothesis under consideration this would be a difficult argument to sustain. The activities of X and BF, up to and including the moment of receipt by Y, constitute a transfer of funds. X has instructed BF to receive and transfer funds to Y that will be placed in a foreign casino. No gambling has occurred and no gambling could occur unless and until X instructs Y to place a bet or do some other gaming activity. In short, X's transfer of funds to BF is too remote from any conduct in a foreign casino for it to be a significant portion of an offence.
Moreover, on this hypothesis there could be no liability in X (and a fortiori in BF) if the precise conduct in the foreign casino is not also an offence in Canada. If the precise activity in question is not an offence in Canada X cannot be a party to something over which Canadian courts have no jurisdiction.
2 E.g., Criminal CQde, section 462.31 E.g., Criminal Code, sections 83.01 et seqq. [1985] 2 S.C.R. 178.
3 Much gambling activity is permitted under licensing schemes provided in Canadian law and thus there is no basis to assert jurisdiction. Simply put, if a Canadian court were to assert jurisdiction over conduct that is entirely lawful in Y, it would amount to an assertion by Canada of an extra-territorial jurisdiction for which no provision is made.
There are therefore profound obstacles to any theory of criminal liability in X or BF in Canada on the facts considered. Even if BF knows that X might ultimately instruct Y to gamble with his money in a foreign casino, a substantial portion of the offence must have taken place in Canada and the offence in question must also be an offence here. On the supposed facts, however, the only thing that has occurred in Canada is a transfer of funds by X to BF and by BF to Y. In that activity there is no gambling. There is not even an attempt to gamble in Canada although there might, at its highest, be conduct that constitutes preparation to gamble lauful/y in a foreign casino. BF cannot be an aider or abettor because, for reasons given above, no offence is committed over which a Canadian court has jurisdiction