Saturday, July 02, 2011

Charges Against Ottawa CAS Dismissed - Possible Appeal Pending

In the June 28th trial against the Ottawa Children's Aid Society (Society) and its executive director Barbara MacKinnon John Dunn decided to drop the charge personally against Barbara MacKinnon mid-trial in an effort to demonstrate good faith for future relations.

After approximately four to five hours of trial, the learned Justice Brian Mackie decided that the Society was not guilty of failing to furnish a list of their members as charged claiming that Dunn had not provided evidence which proved beyond a reasonable doubt that all of the elements of the offence were met.

Dunn believes that he submitted evidence proving all of the elements of the offence were met, but that the learned Justice Mackie in fact erred in that he added an extra element to the offence which does not exist under the statute and Dunn is therefore considering an appeal of the decision.

UPDATE: July 15, 2011 - For the following two reasons, Dunn -- while acting as a private prosecutor in the charge against the Society -- has decided not to appeal the dismissal of the charge against the Ottawa Children's Aid Society under the Corporations Act.

1. It is no longer in the public interest to appeal this particular matter since the relevant provision of the Act will not continue to exist past 2012 due to it being repealed and the public will not benefit from either the general or specific deterrent effect of a successful appeal

2. Financially it is not feasible to pursue an appeal as it would cost approximately $1,000 just to obtain the transcript.




Under subsection 307 (1) of the Corporations Act a person may require a non-profit corporation to furnish a list of their members so that they can advocate for corporate related changes through those members. They do so by filing a request for the list, which is accompanied by an affidavit and a reasonable fee.

Under subsection 307 (5) of the Corporations Act if a non-profit corporation fails to furnish a list of their members as required above, it is deemed an offence.

Therefore, all that was required of Dunn -- while acting as a private prosecutor in the charges -- was that he prove beyond a reasonable doubt each element of the offence had been proved by his evidence.

The question then becomes, what are the elements of the Offence? In this case, Dunn says that he believes that all he has to do is prove that he has evidence that:

1. The Society failed to furnish a list of their members as required under subsection 307 (1)

2. That he filed a request for the list with the non-profit corporation (Society)

3. That he filed a "reasonable fee" to cover the cost of furnishing the list

4. That he filed the affidavit provided in the statute which says he will not abuse or use the list for reasons which are not connected with the Society.



Dunn provided the court with evidence proving each element of the offence was met therefore only leaving the Society with the defences of "Due Diligence" and "Mistake of Fact" to defend themselves with.

Simply put, the defence of "Due Diligence" means that the Society did everything in their power to ensure the offence of failing to furnish a list of their members was not committed. Dunn says the CAS did everything in their power to ensure the offence of failing to furnish a list of their members WAS committed in that immediately after receiving the request, they had their external legal counsel respond to Dunn's request within a week telling him that they were in fact NOT going to furnish the list.

The other defence available to them is known as "Mistake of Fact" which simply put, means that the CAS believed in a set of facts, that if those facts where true, would have rendered their actions innocent if they were based on those Mistaken Facts. Dunn says that the Society appears to have said they believed Dunn would abuse the list based on the fact that over the years, he had sent many e-mails and created posters etc. in his advocacy efforts which made them believe he would abuse the list if he obtained it, however in all those previous communications, Dunn had never sworn an affidavit in relation to the use of his communications like he had to in his original request for a list of the Society's members making this situation different.

Dunn has 30 days to file an appeal meaning it has to be filed before July 28, 2011


Of Note: There is a documentary on CAS's in Ontario coming out just before the Ontario Election of 2011. Visit http://www.blakout.ca to learn more. The person who created the documentary has already received threats and notices of possible lawsuits in connection with the documentary. One such notice was from an Ontario Judge.

To ensure you read the latest version of this post, please visit http://www.fostercarenews.blogspot.com as this post may have been modified since being sent out.

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