Trial Debacle Leads to Freedom for Nova Scotia Sex Offender

Despite what you hear or read, you can’t blame Ernest MacIntosh for today’s Supreme Court of Canada decision to quash his convictions for sex charges involving young boys in the 1970′s.

A successful Cape Breton businessman, MacIntosh was transferred by his employer to Singapore and then to India in 1994 where he remained until his extradition back to Canada in 2007 to face numerous counts of indecent assault and gross indecency charges stemming from allegations made by six young men in 1995.

When MacIntosh left Canada in 1994 there were no charges against him and he had no idea that charges may be laid. Over the years he travelled between India and Canada, renewing his Canadian passport from time to time as required by Canadian law.

He was not hiding from the law. Canadian authorities knew where he lived in New Delhi and had his phone number. Coincidentally, one of his neighbours was an RCMP officer who worked as a liaison in India.

MacIntosh finally became aware of two criminal charges in 1997 but was led to believe by Canada Passport authorities that the charges were not proceeding. He heard nothing more until nine years later, despite the fact that in 2001 fifteen more charges were brought against him and he renewed his passport in 2002. The Crown acknowledged their decision to extradite Mr. MacIntosh in 1997 but as you will read, did nothing about it for nine years.

In 2006 the Crown filed extradition proceedings in India, some 11 years after the first charges were laid and five years after the second group of charges were filed against him.

Mr. MacIntosh was brought back to Canada in June 2007 but did not receive complete mandatory disclosure from the Crown until eleven months later, an astonishing delay considering that the Crown had readied their cases years before.

He finally went to trial in July 2010 and was convicted on several of the charges. However, the Nova Scotia Court of Appeal overturned the convictions based on the 14 year delay of the Crown in proceeding against MacIntosh. But that wasn’t the only problem with the convictions.

The trial judge had so badly confused the evidence, even mixing up the witnesses and attributing evidence to one witness that was derived from another, that the Appeal Court determined that even absent the extraordinary delay, the judge’s errors would be cause for a new trial.

A key issue at the trial was centred on statements made by an alleged victim in 1995 and again in 2000 concerning details of the abuse he suffered, that simply could not be reconciled.

The trial judge acknowledged the discrepancies and based on the victim’s evidence and the testimony of another witness, determined that the assault did not take place at all. Yet despite this finding, the judge did not turn his attention to the issue of the victim’s overall credibility.

The finding that the alleged abuse did not occur as described, or at all, points to a flaw in the Crown’s preparation of their witness. In cases where a witness signs a comprehensive statement which he radically amends five years later, it is incumbent upon the Crown to test the evidence of the witness to ensure its reliability. Under cross-examination, this witness agreed that the event did not occur.

That the Supreme Court of Canada denied the Crown’s appeal in an oral judgment from the bench speaks to the Crown’s flimsy case. After all, an accused is not obliged to turn himself into the police or give a statement. It is the Crown’s job to bring an accused to trial.

Most notably, the Crown was unable to provide any rationale for their delay in prosecuting this case and cries for a public inquiry may well be revived now that our highest court has spoken.

Has an injustice occurred? Perhaps, but the fault lies with those paid to bring criminals to trial.

Divorce Becomes “Forensic Point Scoring”

Americans Mark and Jenifer Evans started their marriage with nothing, but after 25 years were worth millions of dollars as a result of their successful internet technology company. They lived primarily in the United Kingdom, but had homes in the United States and in the Turks and Caicos.

When Ms. Evans learned her husband was having an affair the marriage ended in trauma, but the drama had just begun.

In a three-year court battle, referred to by the judge as a “forensic point scoring”, the Evans’ ran up legal bills of over $3 million dollars in their collective efforts to make the other spouse pay…I mean really pay!

Lord Justice Thorpe divided their assets, valued at $60 million dollars, equally between them. Ms. Evans kept their London home and would receive the balance of her cash upon the sale of shares in their company. But the judge was not amused by what he had observed. He described their dispute as “puerile”, telling them “Somebody has to come into the nursery to make some rules”.

But nursery school was not over. Ms. Evans was nervous and fearful that her husband would dispose of the shares, leaving her with nothing, so she asked the Court for a rehearing and a new order.

By this time, Mark Evans had sold 65% of the business to a venture capitalist firm for $30 million. Jenifer Evans got her rehearing, but now the assets were worth $10 million dollars less and Judge Moylan reduced her share of the pot to 45%.

Yes, she should have stuck with what she had, as she lost millions in the new order. I somehow have the feeling that this case is not over.

Ms. Evans remains in London with one of her teenage daughters, while Mr. Evans has married the woman who distracted him from his marriage and lives in California with his eldest daughter. His wife is pregnant with their first child.

Lawdiva aka Georgialee Lang

Former Governor Ignores Divorce Court Order

Remember Governor Mark Sanford of South Carolina? He was the guy who disappeared for five days in 2009 and when he returned explained he’d been off on his own, hiking the Appalachian Trail. He didn’t explain why nobody, including his closest aides and his wife, were kept in the dark.

But then the truth came out: He had a girlfriend in Argentina that he was in love with and wanted to marry. Jenny Sanford, mother of four children, was shocked and humiliated. Like those before her, she entered the talk-show circuit and wrote a book about the Governor. Their divorce followed shortly thereafter.

Sanford went through an impeachment hearing in South Carolina but when it concluded his punishment was not impeachment but censure. He spent the last few years working on restoring his reputation and image as a trustworthy politician and he was succeeding, until this week.

He’s been on the road campaigning for a congressional seat in South Carolina and was expected to win the election on May 7, until the news leaked that he breached a court order which prevented him from being at his ex-wife’s home, unless she specifically consented.

He admitted that he went to Mrs. Sanford’s home to watch a football game with his 14-year-old son when his ex-wife was out-of-town and did not have her consent.

You say, what’s the problem? First of all, there is a court order restricting him from attending at the home and secondly, in a situation like his, where the divorce was far from amiable, he would be naive to think that he could ignore the order without consequences.

As well, Mrs. Sanford is entitled to her privacy. Like most divorced spouses, the last thing she wants is for her ex to be snooping through the house, invading her space.

It’s difficult to know whether Mark Sanford is shamelessly arrogant or just plain stupid. After the story was leaked to the media, the National Republican Party announced they would no longer support Mark Sanford’s campaign, leaving Democratic candidate Elizabeth Colbert, sister of Stephen Colbert, as the likely winner.

To make matters worse, he recently gave a campaign speech with his fiance, Maria Chapur and two of his young sons on the platform. Turns out the boys had never met Sanford’s paramour until on the stage that evening. Parenting 101? Slowly introduce the children to your new partner in a setting that is comfortable for the child.

Sanford appears in court on trespassing charges on May 9, two days after the election.

Lawdiva aka Georgialee Lang

When Adoption Goes Awry

South Carolina couple Matt and Melanie Capobianco were over the moon when they adopted new-born baby Veronica in 2008. But their joy turned to grief, when at the age of three, Veronica was removed from their home and placed with her biological father, a person Veronica had never met, but whose ancestory trumped the Capobianco’s legal parenthood.

Father Dusten Brown, who lives in Oklahoma, was a member of the Cherokee nation.
He brought a court action seeking to have custody of his daughter in accordance with the provisions of the Indian Child Welfare Act, a federal law passed in 1978. The Act provides that Native American tribes and relatives should have a say in the placement of aboriginal children.

Mr. Brown successfully argued he was unaware that Veronica’s mother had given her up for adoption and her Native American heritage could only be fostered if she was raised by her father. The Appeal Court agreed. The judges said the Capobianco’s are “ideal parents”, but the law demanded a change in custody.

This week the United States Supreme Court will hear the Capobianco’s appeal and will weigh in again on the vexing question of aboriginal adoption.

The Court ruled in 1989 that tribal courts should determine these issues. In the 1989 case a tribal court permitted the adoptive parents to keep their adopted toddler twins, despite a claim by the children’s aboriginal relatives.

The federal government and eighteen other states, including Washington, California and Oregon, support the law. It’s difficult to believe that the removal of a three-year-old from the only parents she knows is in her best interests, particularly if the adoptive parents embrace and encourage her native heritage.

Lawdiva aka Georgialee Lang

Twenty-Year Old Divorce Case Reopened: It’s Not Over Til It’s Over

In 1990 New York securities trader Steven Cohen was just beginning to see the fruits of his Wall Street career ripen. The only bad news was that his marriage didn’t survive and he needed to negotiate a financial settlement with his wife, Patricia Cohen.

At the time he told his wife that he had lost $9 million dollars in a co-op apartment investment he made in 1986, leaving his net worth at a mere $8.1 million. She didn’t believe him, but had no grounds to refute his assertion.

Mr. Cohen remarried two years later and built his business, SAC Capital, growing it from $25 million in assets to several billion dollars. Life was very good for him, until 2008.

It was then Ms. Cohen discovered a court file that revealed her ex-husband had settled the investment loss case with one of his co-op partners and recovered $5.5 million. She filed a lawsuit against him in 2009 alleging fraud.

Unfortunately, the first judge who heard the case threw it out saying the claim was too old to pursue and was unsubstantiated.

The Manhattan Appeals Court saw it differently. This month they reinstated Ms. Cohen’s lawsuit holding that the lack of timeliness in its filing was because she only discovered evidence of fraud eighteen years after the divorce.

My advice to Mr. Cohen: “Settle this case now, after all, you are a multi-billionaire and will likely not even notice a shortage of a couple of million.”

Besides, Cohen’s $15-billion dollar hedge-fund is the target of an insider trading investigation that has already seen the arrest of five individuals related to his Connecticut-based business. As well, two companies affiliated with SAC Capital have recently settled insider trading allegations with the US Securities and Exchange Commission for $614 million dollars, the largest insider trading settlement in the United States.

While there have been no charges laid against Mr. Cohen, the SEC is breathing down his neck. He really doesn’t need the aggravation of his ex-wife’s court action and the publicity that accompanies it.

Family law is different however. Cases that should be settled often are not because of petty vindictiveness and the need to win, and of course, Cohen can afford to bury his ex in legal fees.

Lawdiva aka Georgialee Lang

No Good Deed Goes Unpunished

So, you’re just a regular guy doing your thing and you happen to come across a Craigslist ad where a lesbian couple want to have a baby and need a sperm donor. Because you’re such a good guy, you figure, what the heck, why not help them out?

They offer to pay you $50.00 but you say “hey, I’m not doing this for the money, keep your $50.00″. Of course, you sign an agreement waiving all your paternal rights so you can’t be on the hook down the road. Your good deed results in a bouncing baby girl.

Fast forward to today, the little girl is three-years old, and the couple have split up. An application is made for health insurance for the child and the Kansas Department for Child and Families won’t approve the application until the name of the sperm donor is provided.

Now our good guy is faced with a lawsuit brought by the government agency for child support of $6000.00 to cover past payments and a claim for ongoing support.

How can that be, you say? Doesn’t the agreement he signed protect him? Not according to the Kansas authorities. Kansas does not recognize same-sex couples as parents unless conception is through a licensed physician or clinic. They say they are obliged by the law to pursue the father for support payments.

No good deed goes unpunished.

Lawdiva aka Georgialee Lang

Making Babies Is a Tricky Business

With the extraordinary science that benefits childless couples and the growing popularity of reproductive technologies, the prediction from early naysayers that baby-making would create criminal, social and ethical problems can no longer be ignored.

Public awareness of the foibles of procedures such as artificial insemination, in vitro fertilization, and anonymous sperm donation began with the news that a California woman, Nadya Suleman, gave birth to eight children via in vitro fertilization in 2009. Twelve embryos had been implanted, apparently at her request.

Ms. Suleman’s octuplets joined her already large family of six children, also born through in vitro fertilization. That she was a single mother with limited financial resources and was eventually compelled to work as a stripper and a nude model further rankled critics who denounced her physician, Dr. Michael Kamrava, who later lost his medical license.

The latest scandal in the baby-making industry involves a home-grown business called Canadian Fertility Consultants, with offices in British Columbia and Ontario, whose CEO, Leia Picard, has been charged with 27 criminal offences including purchasing sperm and egg from a donor and paying a surrogate to carry a baby for a client.

Under Canadian law it is illegal to pay sperm or egg donors and surrogates are only allowed to be paid for their reasonable expenses. While limited information has been released by the RCMP, it has been reported that two women who donated eggs were paid $5000.00 each.

Ms. Picard has also been charged with four counts of forgery in relation to allegations that her clients received false profiles of two of her sperm donors and two potential surrogate mothers.

Canada’s legislation has been in force for almost nine years, but this appears to be the first time that charges have resulted from a breach of the law, with related criminal charges.

There is speculation that Ms. Picard’s present legal problems arise from her purely innocent interaction with Maryland lawyer Hilary Nieman, who ran a surrogacy business with California lawyer, Theresa Erickson, that later proved to be anything but altruistic.

Under a unique California law, a woman can enter into a surrogacy agreement with prospective parents, but the agreement must be signed and finalized prior to the fertilization of the surrogate. Where there is a surrogacy agreement, the prospective parents do not need to go through an adoption to become the child’s legal parents as the child’s birth certificate will record the names of the prospective parents, not the surrogate’s name.

Lawyers Nieman and Erickson both specialized in reproductive technology law. Working together, they paid American women an average of $40,000 to travel to the Ukraine to be implanted with embryos. This was necessary because no doctor in California would do the in vitro procedure under the circumstances presented by the surrogates.

The lawyers got around the requirement for an executed agreement prior to fertilization by submitting forged documents to the Court which attested to the agreement being signed as required by the law.

Ms. Erickson with Hilary Nieman’s help, accumulated a stable of new-born babies ready to be sold to unsuspecting couples for $100,000 to $150,000 each.

In the twelfth week of their pregnancy the women, referred to as “gestational carriers”, flew back to the United States where the lawyers would find a couple who were told that a surrogacy agreement with another couple had fallen through after the couple backed out.

For couples who had tried numerous procedures over many years without the blessing of a child, the prospects of a new-born baby was like winning the lottery.

Erickson and Nieman, both plead guilty to wire fraud and conspiracy, involving the sale of twelve babies. Although lawyers for the State and Ms. Nieman agreed to a plea bargain of nine months of home confinement, the Court would have no part of that and sentenced Nieman to five months in federal prison and seven months of home confinement. She was also order to pay back profits of $133,000 and was later disbarred.

We now await full particulars of the charges against Ms. Picard, but payments of several thousand dollars to egg donors hardly seems worth the cost of the RCMP’s year-long investigation. Allegations of forgery, however, puts an entirely different spin on the agency’s practices.

Ms. Picard says she will vigourously defend against the charges and is inviting donations to her legal fund.

Lawdiva aka Georgialee Lang