Date: 20080327
Docket: T-1758-03
Citation: 2008
FC 392
Ottawa, Ontario, March 27, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
THE CANADIAN COPYRIGHT
LICENSING AGENCY
(“ACCESS COPYRIGHT”)
Plaintiff
and
U-COMPUTE
and RIAZ A. LARI
Defendants
REASONS FOR ORDER AND ORDER
[1]
The
Canadian Copyright Licensing Agency (plaintiff) asks that a warrant of
committal (warrant) be issued. The warrant would require the defendant Riaz A.
Lari to be imprisoned for a period of six months. For the following reasons,
the warrant of committal shall issue in substantially the same form as sought
by the plaintiff.
RELEVANT CHRONOLOGY
[2]
The
following facts are established in the evidence before me and are not
contested.
[3]
On
December 7, 2005, Justice Lemieux found Mr. Lari to be in contempt of a
permanent injunction issued by Justice Harrington on July 19, 2004. This was
the third time that Mr. Lari was found to be in contempt of this Court. In
coming to this decision, Justice Lemieux found that Mr. Lari gave
"contradictory testimony to the Court which irreparably affected his
credibility." Justice Lemieux doubted the sincerity of Mr. Lari's apology
made to the Court and found "no evidence of substantial good faith."
[4]
In
consequence, Justice Lemieux issued an order (contempt order) that, in material
part, provided as follows:
(1) RIAZ A. LARI is hereby
sentenced to a six-month term of imprisonment at Montée St-François Institution,
600 Montée St-François, Laval, Quebec, H7C 1S5;
(2) RIAZ A. LARI is hereby
ordered to pay the costs of these contempt proceedings to the plaintiff on a
reasonable solicitor-client scale to be taxed forthwith by a taxing officer
inclusive of disbursements and GST; such costs shall be paid by Mr. Lari
thirty (30) days after taxation.
(3)
The imposition
of the prison sentence in paragraph (1) is hereby suspended on the following
terms:
(a)
RIAZ A.
LARI shall at
all times comply with the terms of the permanent injunctions contained in
paragraphs (1) and (2) of Justice Harrington’s July 19, 2004 judgment;
(b)
RIAZ A.
LARI shall,
within thirteen (13) months of the date of this Order perform four hundred
(400) hours of community service at a hostel operated by the Salvation Army in Montreal or its suburbs by performing
such volunteer work as may be directed by the Director of such hostel
(Director). The Director shall inform the Court and counsel for the plaintiff
in writing when such arrangement has been put into place. The performance of
the community service shall be verified by the Director forwarding a certificate
of performance with the Court and with counsel for the plaintiff no later than
January 31, 2007.
(4) In the event the plaintiff
wishes to prove that Mr. Lari has not complied with one of more of the
terms set out in this Order, the plaintiff shall be at liberty to seek a
warrant of committal from any Federal Court judge, on an ex parte basis
or otherwise, as directed by such Judge, and RIAZ A. LARI shall, upon
the Court finding a breach of one or more of such terms be committed to jail
for six months.
[5]
On January
6, 2006, an appeal of the contempt order was filed on Mr. Lari's behalf in the
Federal Court of Appeal. No motion for a stay of the contempt order was
brought, notwithstanding that the contempt order required Mr. Lari to complete
his community service by January 31, 2007.
[6]
On
March 28, 2007, the Federal Court of Appeal rendered judgment from the Bench in
respect of Mr. Lari's appeal. As to the merits of the appeal, Justice Létourneau,
writing for the Court, wrote at paragraphs 35 through 37 of the Court's reasons
that:
[35] The judge who had the benefit
of seeing and hearing the appellant saw little remorse in him and no evidence
of substantial good faith. He doubted the sincerity of his apology: see
paragraph 89 of the reasons for judgment.
[36] In these circumstances, we cannot say
that a sentence of imprisonment was undeserved and that the sentence imposed
was disproportionate to the gravity of the offence and the degree of
responsibility of the appellant.
[37] As for the length of the community
service, it reflects the seriousness of the appellant’s defiance of the law and
judicial process. The community service was not meant to be an easy alternative
to or a way out of imprisonment. It offers the appellant an opportunity to
benefit from lessons learned by spending time and effort on more worthy causes:
see R. v. Brand (1996), 105 C.C.C. (3d) 225 (B.C. S.C.). While it is
more than what the appellant expected, it is not a length that requires our
intervention in the circumstances of this case.
[7]
One adjustment was made to the contempt order. It was described
as follows by the Court of Appeal:
[41] Counsel for the appellant seeks a
clarification of paragraph 4 of the judge’s Order issued on December 7, 2005.
The paragraph authorizes the respondent to seek a warrant of committal in the
event that the appellant does not comply with one or more terms set out in the
Order. It reads:
(4) In the event the plaintiff wishes to
prove that Mr. Lari has not complied with one or more of the terms set out
in this Order, the plaintiff shall be at liberty to seek a warrant of
committal from any Federal Court Judge, on an ex parte basis or
otherwise, as directed by such Judge, and RIAZ A. LARI shall,
upon the Court finding a breach of one or more of such terms be committed to
jail for six months.
[Emphasis added]
[42] The payment of costs on a
solicitor-client basis is part of the judge’s Order. In a loose sense, it is a
term of the Order which could result in the imprisonment of the appellant if he
failed to comply with it. Counsel for the respondent conceded that this was not
what he sought and what was intended. Rather, compliance in paragraph 4 refers
to the terms imposed for the suspension of the sentence of imprisonment which
are found in paragraph 3 of the Order. We are satisfied that this is what the
judge intended to achieve and we will adjust the Order accordingly.
CONCLUSION
[43] For these reasons, the appeal will be
allowed for the limited purpose of adding in paragraph 4 of the Order, after
the words “the terms set out in”, the words “paragraph 3 of”. In all other
respects, the appeal will be dismissed with solicitor-client costs fixed at
$22,000 inclusive of taxes and disbursements.
[8]
Shortly
after March 28, 2007, Mr. Lari was informed by his lawyer that his appeal had
been dismissed.
[9]
As
of March 28, 2007, Mr. Lari had performed no community service and the time for
performing such service had expired.
[10]
The
plaintiff then brought a motion, in writing, for the reconsideration of the
judgment of the Federal Court of Appeal. By order dated May 31, 2007, the
Federal Court of Appeal extended the time in which Mr. Lari's community service
could be performed from January 31, 2007, to December 31, 2007.
[11]
Mr.
Lari learned of the extension order in early June of 2007.
[12]
Mr.
Lari's first contact or arrangement with the Salvation Army in respect of
community service was not made until sometime in the middle of July, 2007.
[13]
As
of December 31, 2007, Mr. Lari had performed no more than 64 hours and 29
minutes of community service. Mr. Lari's first day of community service was
September 10, 2007. His last day of community service was November 26, 2007.
[14]
On
February 27, 2008, the plaintiff filed its motion for the warrant. On the
return date of the motion, March 3, 2008, Mr. Lari attended without counsel.
The motion was adjourned to the Court's general sitting on March 17, 2008, so
that Mr. Lari could attend with counsel.
MR. LARI’S POSITION
[15]
Mr.
Lari submits in his written representations that "[d]espite [his] best
efforts … and due to … extraordinary circumstances … it was impossible for
[him] to complete the four hundred (400) hours of community service." He
says that, after his presence in court on March 3, 2008, he has taken steps to
"begin again performing his community service." Mr. Lari seeks an
extension of time until July 17, 2008, in order to complete his community
service.
[16]
In his
affidavit sworn in response to the plaintiff's motion for a warrant, Mr. Lari
describes the "extraordinary circumstances" that prevented compliance
with the contempt order, as extended, to be as follows:
(i)
His
community service had to be supervised by Mr. H. Mantinga, the Supervisor of
Technical Services at the Salvation Army's Centre Booth, and Mr. Mantinga
"was not always present at the Center."
(ii)
Mr.
Lari’s wife left Canada to visit her family in Pakistan "sometime in
November 2007 for a period of one (1) month, I was left taking care of our
three (3) children aged 15, 17 and 18. As such, every morning I had to drop
off my daughter at school where she attends Villa Maria College and pick her up
at the end of the day and travel back home in Kirkland." This left him
little time to continue performing his community service. For these reasons, Mr.
Lari had to discontinue his community service as of November 26, 2007.
(iii)
Shortly
after his wife returned to Canada, Mr. Lari became "very ill with the flu," was
prescribed medication, and attended at his doctor's office.
APPLICABLE LEGAL PRINCIPLES
[17]
Mr.
Lari asserts that, despite his best efforts, extraordinary circumstances made
it impossible for him to complete his community service. He therefore seeks an
extension of time.
[18]
By
analogy with the jurisprudence that has developed under Rule 8 of the Federal
Courts Rules with respect to extensions of time, I find that an extension
should be granted if Mr. Lari demonstrates that, because of circumstances
beyond his control, he was unable to complete his community service and comply
with the contempt order, as extended.
CONSIDERATION OF MR. LARI’S EXPLANATIONS
1. The period
prior to May 31, 2007
[19]
On May
31, 2007, the Federal Court of Appeal extended, at the plaintiff's request, the
deadline for completion of Mr. Lari's community service.
[20]
Missing
from Mr. Lari’s affidavit is any explanation as to why he did nothing to
perform his community service from the date he learned of the contempt order
(early January of 2006) to May 31, 2007. When cross-examined on his affidavit,
Mr. Lari stated that his lawyer had told him that the contempt order was
suspended until the outcome of the appeal. After giving this explanation, Mr.
Lari claimed solicitor-client privilege and did not provide any confirmatory
evidence on this point.
[21]
It
is settled law than an appeal of an order of this Court does not operate as a
stay. See: Rule 398 of the Federal Courts Rules. I would be inclined to draw
an adverse inference from Mr. Lari's assertion of privilege immediately
following his explanation that his lawyer told him that the contempt order was
stayed. However, in view of the special and important nature of
solicitor-client privilege, I will not do so.
[22]
Instead,
I will confine my consideration to the period put in issue by Mr. Lari: from
early June of 2007, when he learned of the extension order, to December 31,
2007.
[23]
Before
leaving this time period, I note that Mr. Lari's counsel argued that it was not
necessary to seek a stay of the contempt order pending the appeal because of
the defect in the contempt order discussed by the Federal Court of Appeal at
paragraph 41 of its reasons (quoted above at paragraph 7). I disagree. Even
an invalid court order must be followed until it is set aside by legal
process. See: Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at
paragraphs 176-180.
2. From June,
2007 to December 31, 2007
[24]
Each
circumstance put in issue by Mr. Lari will be considered.
i. The
availability of Mr. Mantinga
[25]
Mr.
Mantinga swore an affidavit on March 11, 2008, in which he stated that:
5. During
my meeting with Lari on September 10, 2007, I advised Lari that he should
perform his community service while I was present at the Centre Booth. I told
Lari that my scheduled work hours were Monday to Friday, 8:30 a.m. to 4:30 p.m.
Lari did not request any kind of schedule or arrangement that would permit him
to complete 400 hours of community service by a certain date, nor did I impose
a schedule as this kind of work is done on an “honour system”.
6. I
maintained my scheduled work hours with the exception of the period of October 19,
2007 to November 2, 2007 when I was on leave.
7. Lari began his
community service on September 10, 2007, following our meeting. The last
date Lari worked at the Centre Booth was November 26, 2007. Between
September 10 and November 26, 2007 Lari did not express any concerns
to me as his supervisor with respect to meeting his 400 hour obligation or ask
to spend more time at the Centre Booth. Lari did not provide any advance notice
that November 26, 2007 would be his last day; he did not indicate any
intention at that time to continue his community service.
[26]
Mr.
Mantinga was not cross-examined on his affidavit.
[27]
Where
there is any conflict between the evidence of Mr. Mantinga and Mr. Lari, I
prefer the evidence of Mr. Mantinga for the following reasons. First, counsel
for Mr. Lari did not cross-examine Mr. Mantinga on his affidavit. Second,
there is no evidence of any animosity between Mr. Mantinga and Mr. Lari. Mr.
Mantinga also has no interest in this proceeding. As a result, his evidence is
less likely than Mr. Lari's to be coloured by any self-interest. Third, as
demonstrated below, Mr. Lari made significant concessions when cross-examined
on his affidavit. I find his affidavit to have over-reached the truth.
[28]
Mr.
Lari admitted on cross-examination that:
·
he
was unemployed throughout all of 2007; and
·
it
was not impossible for him to have completed 400 hours of community service in
the period from June 1, 2007 to December 31, 2007.
[29]
Mr.
Lari further testified on cross-examination that:
…
Q. Did
you ever ask Mr. Mantinga to give you more hours or to assign somebody
else to your case at any time?
A. I
can’t specifically ask him that, no.
Q. Did
you ask anybody else at Salvation Army, say, “Listen, I’m up against this
deadline. I need more hours”? Did you ever do that?
A. No.
My only point of contact was Mr. Mantinga, so I’m not going to go around
and asking everybody else.
Q. So
you made no efforts to go beyond Mr. Mantinga to try to get more hours to --
of community service, right?
A. Right
Q. You
never alerted Mr. Perras that you were not going to meet that deadline --
A. No,
I --
Q. --
before the deadline elapsed?
A. No,
I didn’t contact him, no.
Q. You
never brought a motion to the Court to extend a deadline?
A. No.
Q. Never
contacted me to explain that you were not going to meet the deadline?
A. No.
Q.
Never asked your wife to defer her trip?
A. No.
…
[30]
On
the basis of this evidence, I find no extraordinary circumstance and no
reasonable excuse for non-compliance with the contempt order arising from any
lack of availability on the part of Mr. Mantinga.
ii. The
absence of Mr. Lari's wife and his parental responsibilities
[31]
Mr.
Lari's wife's airline itinerary/receipt in connection with her trip to Pakistan was marked as an
exhibit to Mr. Lari’s cross-examination. It shows that his wife left Montréal
on November 19, 2007, and returned on December 10, 2007.
[32]
Salvation
Army records show that 11 hours and 29 minutes of Mr. Lari's community service
(or about 18%) were performed on November 22 and November 26, 2007. Mr. Lari's
wife was in Pakistan at this time.
[33]
With
respect to Mr. Lari's obligation to drive his daughter to school, Mr. Lari’s
evidence on cross-examination was:
…
Q. No?
Okay. So you chose to drive your daughter to school rather than have her take
public transit. I understand that. School hours are from 8:00 ‘til 3:00 right?
A. Yes.
Q. Seven-hour
days?
A. Yes.
Q. The
school is located about four miles away from Centre Booth, right?
A. Yes.
Q. So
about a ten-minute drive in non-rush hour?
A. 15
to 20 minutes’ drive, yes. Sometimes there’s always rush hour.
Q. Right.
But it’s a short drive between where you drop your daughter of at eight o’clock
in the morning and Centre Booth?
A. Yes.
That’s why I used to be there for 8:30.
Q. For
where?
A. Those
days that I worked, I’d start at 8:30. I used to drop her for 8:30, I used to
be there.
Q. Those
two days you dropped her off -- sorry, it was two days referred to at page 163
of the record -- were days you drove your daughter to school, right?
A. Yes.
Q. And
in between the time when you dropped her off and picked her up after school,
for those two days at least, you went to Centre Booth?
A. Yes.
Q. And
you cannot explain to me today why you didn’t do it any other day, can you?
A. No,
I can’t.
Q. So
what did you do on the days that you didn’t go to Centre Booth? Just drive back
home?
A. Yes.
Q. So
you made four one-way trips back and forth to your house instead of staying
downtown and doing community service?
A. Yes.
…
Q. So
dealing with your wife away, sir, there was no reason you could not have spent
your days at the Centre Booth performing your community service while your
daughter was in school, correct?
A. Yes.
…
[34]
On
the basis of this evidence, I find no extraordinary circumstance and no
reasonable excuse for non-compliance with the contempt order arising out of Mr.
Lari's wife's absence or his parental responsibilities.
iii. Mr.
Lari's Illness
[35]
On
cross-examination Mr. Lari clarified that he became ill "during the holidays,
just before the holidays" and that he had "a very bad cough."
Mr. Lari saw his family doctor in January, 2008. On January 17, 2008, his
doctor issued a prescription to him.
[36]
Mr.
Lari's very bad cough arose in the latter part of December 2007. The nature of
the illness was such that he was prepared to wait for medical treatment until
he could see his family doctor in January of 2008.
[37]
This
late-occurring illness is not an extraordinary circumstance that prevented compliance
with the contempt order nor does it provide a reasonable excuse for non-compliance
with the contempt order.
OTHER RELEVANT EVIDENCE FROM MR. LARI’S
CROSS-EXAMINATION
[38]
The
following evidence is also relevant to understanding Mr. Lari's failure to
comply with the contempt order.
[39]
With
respect to the summer of 2007 and the fact that Mr. Lari commenced his
community service only on September 10, 2007, Mr. Lari testified as follows:
…
Q. Right.
Between the middle of August and September is yet another month, right? What
was preventing you from beginning immediately in August?
A. Mr.
Renaud, nothing was preventing me to go to work. It’s just, I had a hesitation
for this work, you know. Like, I’ve never done anything like this, and I just
was not comfortable with it, and I brought myself to doing that, and I did it.
Q. What
kind of work were you asked to do that you felt so uncomfortable with?
A. Basically,
washing walls, you know, like --
Q. Labour.
A. Very
menial labour jobs. Labour jobs also, there’s some recent ones, and there’s some
very menial. This was most menial labour job.
Q. The
same kind of labour jobs you were doing throughout 2006, ten, 20 hours a week.
A. Yeah.
Q. Correct?
A. Well,
those are a little bit more respectable than this.
Q. But
you understood, sir, this was punishment for your --
A. I
understand, and that’s why I was doing it right now. That’s why I have done it,
whatever I’ve done. I’ve been doing it. I brought myself -- mentally, I brought
myself to doing it, yes.
Q. So
there was nothing preventing you from doing it from the middle of August to
September the 10th, other than your sense of -- sense that it would
be demeaning? It that your evidence?
A. I
wouldn’t say “demeaning”. It’s just, you know, I’ve never been – I’m not used
to this type of thing, that’s all.
Q. Used
to what? Doing labour jobs?
A. This
type of labour jobs, yes.
Q. So
you couldn’t bring yourself to do it between August and September. You had to
get your -- had to wrap your head around that. Is that your evidence?
A. Right.
I had to -- I had to adjust my mental attitude, yes.
Q. So
it was your mental attitude that was preventing you from beginning your
community service until September of ’07. Is that your evidence?
A. Yes.
Q. And
in terms of the court order, the Federal Court of Appeal issued an order on May
31st extending the time line to December 31st, 2007. You
were made aware of that extension again by phone by Mr. Perras?
A. Yes.
Q. Within
a day or two after the order was made?
A. Yes.
Q. So
you were aware by early June of ’07 of the obligation of the new deadline of
December the --
A. Definitely,
yes.
Q. Right.
And your evidence is that you waited until the middle of July before you made
efforts to contact the Salvation Army, this Juan something?
A. Yes.
Q. And
there was nothing preventing you between early June and middle of July from
making that contact, was there?
A. No.
…
[40]
Mr.
Lari’s cross-examination concluded as follows:
…
Q. So
it wasn’t impossible for you to have completed those 400 hours in the period
January ’06 --
A. No,
it wasn’t --
Q. --
to December 31st, right?
A. Yeah.
Q. And
it’s not impossible for you to have not completed -- sorry, it wasn’t
impossible for you to have completed 400 hours of community service in the
period June 1st, ’07 to December 31st, ’07, right?
A. That’s
right.
Q. Throughout
the entire period of June 1st to December 31st, 2007,
when you were unemployed, right?
A. Yes.
Q. You
had access to a vehicle throughout the entire period?
A. Yes.
Q. Your
licence was not suspended?
A. Right.
Q. Your
daughter’s school was four miles away from Centre Booth?
A. Yes.
Q. It
certainly was possible to perform significant community service throughout that
entire period of June the 1st and December 31st, 2007,
right?
A. Yes.
…
CONCLUSION WITH RESPECT TO MR. LARI’S
EXPLANATION
[41]
I
conclude from the totality of the evidence that Mr. Lari failed to perform 400
hours of community service before December 31, 2007, as required by the
contempt order, as extended. No circumstance, either alone or in combination
with others, prevented compliance by Mr. Lari with the contempt order. As a
result, no reasonable explanation exists for Mr. Lari's failure to comply with
the contempt order.
[42]
Thus,
Mr. Lari's request for a further extension of time is denied.
THE WARRANT
[43]
The
contempt order is mandatory in its language. Paragraph 4 provides that, if Mr.
Lari is found to have breached the term with respect to community service, he
"shall" be committed to jail for six months.
[44]
This
reflected the gravity of the charge of contempt that Mr. Lari faced, and the
fact that it was his third conviction for contempt of court.
[45]
As
discussed by the Federal Court of Appeal at paragraphs 30-34 of its reasons,
Mr. Lari had, at that time, benefited from the Court's clemency on two previous
occasions. After the Court of Appeal’s reasons were published, the time for
fulfilling the community service requirement was extended. Yet, Mr. Lari did
not take advantage of the plaintiff’s or the Court's leniency in extending the
period.
[46]
The
evidence and excuses Mr. Lari presented to the Court in response to the
plaintiff's motion for a warrant lead me to conclude that he still has not
grasped the seriousness of his failure to comply with the contempt order. Mr.
Lari's fresh efforts (after the March 3, 2008, court appearance) to comply with
the contempt order are, simply, too little too late.
[47]
Consideration
of both individual and general deterrence causes me to conclude that the
requested warrant for committal should issue in the form attached to the following
order.
COSTS
[48]
The
plaintiff seeks its costs of the motion on a solicitor-client basis. Mr. Lari
does not oppose this request. Since Mr. Lari has made an assignment in
bankruptcy, the utility of such an order is in some doubt.
[49]
However,
in accordance with the Court's general practice on these matters, solicitor-client
costs will be awarded.
ORDER
FOR THE ABOVE REASONS, THIS COURT ORDERS that:
1.
The
motion for an order for a warrant of committal under Rule 429 of the Federal
Courts Rules is allowed, and a warrant in the form attached as a schedule to
this order shall issue.
2.
Mr.
Lari shall pay to the plaintiff its costs of this motion as assessed on a
solicitor-client basis, in any event of the cause.
“Eleanor R. Dawson”
Date: 20080327
Docket: T-1758-03
FEDERAL COURT
Ottawa, Ontario, March 27, 2008
PRESENT: The
Honourable Madam Justice Eleanor R. Dawson
BETWEEN:
THE CANADIAN COPYRIGHT LICENSING AGENCY
(“ACCESS COPYRIGHT”)
Plaintiff
and
U-COMPUTE and RIAZ A. LARI
Defendants
WARRANT OF COMMITTAL
TO ALL PEACE OFFICERS
AND ALL POLICE OFFICERS;
AND TO ALL OFFICERS OF
THE ROYAL CANADIAN MOUNTED POLICE;
AND TO THE OFFICERS of Montée
St-François Institution, 600 Montée St-François, Laval, Quebec, H7C 1S5, Canada;
WHEREAS by order of the
Court, dated December 7, 2005, the Honourable Mr. Justice Lemieux found the
defendant, Riaz A. Lari, in contempt (Contempt Order);
AND WHEREAS the Contempt
Order stated, at paragraph 1, that:
RIAZ
A. LARI is hereby sentenced to a six-month term of imprisonment at Montée
St-François Institution, 600
Montée St-François, Laval, Quebec, H7C 1S5;
AND WHEREAS the Contempt
Order stated, at paragraph 3(b), that:
RIAZ
A. LARI shall, within thirteen (13) months of the date of this Order perform
four hundred (400) hours of community service at a hostel operated by the
Salvation Army in Montreal or its suburbs by performing such
volunteer work as may be directed by the Director of such hostel (Director).
The Director shall inform the Court and counsel for the plaintiff in writing
when such arrangement has been put into place. The performance of the
community service shall be verified by the Director forwarding a certificate of
performance with the Court and with counsel for the plaintiff no later than
January 31, 2007;
AND WHEREAS the Contempt
Order stated, at paragraph 4, that:
In
the event the plaintiff wishes to prove that Mr. Lari has not complied with one
or more of the terms set out in this Order, the plaintiff shall be at liberty
to seek a warrant of committal from any Federal Court judge, on an ex parte
basis or otherwise, as directed by such Judge, and RIAZ A. LARI shall, upon the
Court finding a breach of one or more of such terms be committed to jail for
six months;
AND WHEREAS paragraph
3(b) of the Contempt Order was varied by an order, dated May 31, 2007, fixing
the date for completion of the community service obligation to be December 31,
2007;
UPON MOTION made by the
plaintiff, The Canadian Copyright Licensing Agency, on February 21, 2008, for a
warrant of committal to arrest and commit the defendant, Riaz A. Lari, whose
last known address is 134 Boulevard Meridian, Kirkland, Quebec, H9H 4A4,
Canada;
AND UPON reading the
materials filed on behalf of the plaintiff and the defendant, Riaz A. Lari,
including the transcript of the cross-examination of Mr. Lari on his affidavit;
AND UPON hearing the oral
submissions of counsel for the plaintiff and the oral submissions of the
defendant, Riaz A. Lari;
AND UPON the Court being
satisfied that the defendant, Riaz A. Lari, was served with a copy of the
Contempt Order, as amended;
AND UPON the Court being
satisfied that the defendant, Riaz A. Lari, was given notice of this motion;
AND UPON the Court being
satisfied that the defendant, Riaz A. Lari, has failed to comply with paragraph
3(b) of the Contempt Order, as amended, having not completed his community
service obligation by December 31, 2007;
AND UPON the Court being
satisfied that a warrant for committal shall issue pursuant to paragraph 4 of
the Contempt Order, as amended;
YOU ARE HEREBY ORDERED
to arrest Riaz A. Lari and deliver him to Montée St-François Institution, 600 Montée St-François, Laval, Quebec, H7C 1S5, Canada, and to admit and
detain him there for a period of six months.
“Eleanor R. Dawson
Date: 20080402
Docket: T-1758-03
Ottawa, Ontario, April 2, 2008
PRESENT: The
Honourable Madam Justice Dawson
BETWEEN:
THE CANADIAN COPYRIGHT LICENSING AGENCY
("ACCESS COPYRIGHT")
Plaintiff
and
U-COMPUTE and RIAZ A. LARI
Defendants
ORDER
UPON noting that the Warrant of Committal
issued by the Court on March 27, 2008, mistakenly altered the form of the
warrant that was a schedule to the plaintiff’s notice of motion filed on
February 27, 2008, by deleting from the operative portion of the warrant the
phrase “or the nearest corrections or detention facility (minimum security);
AND UPON Rule 397(2) of the Federal
Courts Rules permitting the Court to correct errors or omissions in an
order;
THIS COURT ORDERS that:
1. The
Court’s Order of March 27, 2008, is amended so that the form and content of the
Warrant of Committal appendixed to the Order and issued by the Court on March
27, 2008, is amended by inserting in the second line of the last paragraph of
the warrant, after the word “Canada”, the phrase “or the nearest corrections or
detention facility (minimum security).”
2. For greater certainty, the last
paragraph of the warrant shall read:
YOU ARE HEREBY
ORDERED to arrest Riaz A. Lari and deliver him to Montée St-François
Institution, 600 Montée St-François, Laval, Québec, H7C 1S5, Canada, or the
nearest corrections or detention facility (minimum security), and admit and
detain him there for a period of six months.
“Eleanor R. Dawson”
Date: 20080402
Docket: T-1758-03
FEDERAL COURT
Ottawa, Ontario, April 2, 2008
PRESENT: The
Honourable Madam Justice Eleanor R. Dawson
BETWEEN:
THE CANADIAN COPYRIGHT LICENSING AGENCY
(“ACCESS COPYRIGHT”)
Plaintiff
and
U-COMPUTE and RIAZ A. LARI
Defendants
AMENDED WARRANT OF COMMITTAL
TO ALL PEACE OFFICERS
AND ALL POLICE OFFICERS;
AND TO ALL OFFICERS OF
THE ROYAL CANADIAN MOUNTED POLICE;
AND TO THE OFFICERS of Montée
St-François Institution, 600 Montée St-François, Laval, Quebec, H7C 1S5,
Canada;
WHEREAS by order of the
Court, dated December 7, 2005, the Honourable Mr. Justice Lemieux found the
defendant, Riaz A. Lari, in contempt (Contempt Order);
AND WHEREAS the Contempt
Order stated, at paragraph 1, that:
RIAZ
A. LARI is hereby sentenced to a six-month term of imprisonment at Montée
St-François Institution, 600
Montée St-François, Laval, Quebec, H7C 1S5;
AND WHEREAS the Contempt
Order stated, at paragraph 3(b), that:
RIAZ
A. LARI shall, within thirteen (13) months of the date of this Order perform
four hundred (400) hours of community service at a hostel operated by the
Salvation Army in Montreal or its suburbs by performing such
volunteer work as may be directed by the Director of such hostel (Director).
The Director shall inform the Court and counsel for the plaintiff in writing
when such arrangement has been put into place. The performance of the
community service shall be verified by the Director forwarding a certificate of
performance with the Court and with counsel for the plaintiff no later than
January 31, 2007;
AND WHEREAS the Contempt
Order stated, at paragraph 4, that:
In
the event the plaintiff wishes to prove that Mr. Lari has not complied with one
or more of the terms set out in this Order, the plaintiff shall be at liberty
to seek a warrant of committal from any Federal Court judge, on an ex parte
basis or otherwise, as directed by such Judge, and RIAZ A. LARI shall, upon the
Court finding a breach of one or more of such terms be committed to jail for
six months;
AND WHEREAS paragraph
3(b) of the Contempt Order was varied by an order, dated May 31, 2007, fixing
the date for completion of the community service obligation to be December 31,
2007;
UPON MOTION made by the
plaintiff, The Canadian Copyright Licensing Agency, on February 21, 2008, for a
warrant of committal to arrest and commit the defendant, Riaz A. Lari, whose
last known address is 134 Boulevard Meridian, Kirkland, Quebec, H9H 4A4,
Canada;
AND UPON reading the
materials filed on behalf of the plaintiff and the defendant, Riaz A. Lari,
including the transcript of the cross-examination of Mr. Lari on his affidavit;
AND UPON hearing the oral
submissions of counsel for the plaintiff and the oral submissions of the
defendant, Riaz A. Lari;
AND UPON the Court being
satisfied that the defendant, Riaz A. Lari, was served with a copy of the
Contempt Order, as amended;
AND UPON the Court being
satisfied that the defendant, Riaz A. Lari, was given notice of this motion;
AND UPON the Court being
satisfied that the defendant, Riaz A. Lari, has failed to comply with paragraph
3(b) of the Contempt Order, as amended, having not completed his community
service obligation by December 31, 2007;
AND UPON the Court being
satisfied that a warrant for committal shall issue pursuant to paragraph 4 of
the Contempt Order, as amended;
YOU ARE HEREBY ORDERED to
arrest Riaz A. Lari and deliver him to Montée St-François Institution, 600 Montée
St-François, Laval, Québec, H7C 1S5, Canada, or the nearest corrections or
detention facility (minimum security), and admit and detain him there for a
period of six months.
“Eleanor R. Dawson”
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