2017 QCCQ 7271, 2017 QCCQ 7271

Barreau de Montréal c. Greenbaum 2017 QCCQ 7271 JW0192 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-61-407867-150 DATE: June 14, 2017 BEFORE MADAM JOHANNE WHITE PRESIDING JUSTICE OF THE PEACE AND JUDGE BARREAU DE MONTRÉAL Plaintiff v. URA GREENBAUM Defendant JUDGMENT [ 1 ] Mr. URA GREENBAUM is charged with two counts of offence as regards to acting “in such a manner as to lead to the belief that he is authorized to fulfill the functions or to act as an advocate” [1] without being a member of the Bar. [ 2 ] More specifically, Mr. Greenbaum sent a letter to Mrs.

YUSUYO ENDO KEATING on March 2nd 2015, requesting that she provides information related to the succession of an uncle who died in 1997. Mr. Greenbaum stated that he was acting on behalf of her uncle’s son, Mr. Tsuyoshi Endo. [ 3 ] The information requested by the Defendant concerned the succession of Kiyoshi Endo. Mrs. Keating’s mother was the liquidator of the succession. Mrs. Keating spoke to the Defendant and explained that her aging mother was now living in Ontario. Convinced that the letter was sent by a lawyer, Mrs. Keating said that she would try to gather the information requested by Mr.

Greenbaum. [ 4 ] On April 27, 2015 Mr. Greenbaum sent another letter to Mrs. Yusuyo Endo Keating. The letter entitled “ Association pour la défense des personnes et des biens sous curatelle publique ” was signed Ura Greenbaum, Executive Director. Complaining that he had not received the information requested, he wrote: “ This is a final notice.

Would you kindly comply with the wishes and instructions of Tsuyoshi Endo within 10 days of reception of these presents, failing which the matter will be referred for legal proceedings against you and your mother, in both Toronto and Montreal, without further notice or delay.” (P-2). [ 5 ] Mrs. Keating showed the letter to a friend who happened to be a lawyer, Mr. Robert W. Lord. Mr. Lord verified with the Quebec Bar and confirmed his suspicions that the Defendant was not a member of the Bar. He wrote to Mr.

Greenbaum informing him that a copy of his letter has been forwarded the Syndic of the Quebec Bar for appropriate action, and that Mrs. Keating was under no obligation to respond to his demands. [ 6 ] Changing strategy, the Defendant then sent a letter to of Mrs. Keating’s mother on June 15, 2015, this one simply entitled ‘URA GREENBAUM, LL.L.’ and again signed URA GREENBAUM, LL.L., Executive Director.

He also concluded that letter as follows: “Would you kindly comply with his wishes and instructions within 10 days of reception of these presents failing which the matter will be referred for legal proceedings, the whole without further notice or delay.” Do govern yourself accordingly. [ 7 ] Mr. Robert W. Lord again wrote to the Defendant, this time by e-mail, informing him that a copy of the letter had also been forwarded to the Syndic of the Quebec Bar for appropriate action, and that Mrs. Endo was under no obligation to respond to his demands. [ 8 ] Mr.

Greenbaum has been a member of the Quebec Bar from September 20 1972 until April 1 st 1988 ( P-1 ).

[ 9 ] Mr. Greenbaum mentioned in his letter that he was acting in behalf of the uncle’s son, Mr. Tsuyoshi Endo, but according to Mrs. Keating, her cousin died on April 4 th 2015. QUESTIONS AT ISSUES I. By writing these letters, did Mr. Greenbaum act in such a manner as to lead to the belief that he is authorized to fulfill the functions or to act as an advocate? II. If so, did he present a valid defense? THE DEFENDANT’S POSITION [ 10 ] Mr. Greenbaum does not deny sending those letters. However, during the trial, he was far more interested in demonstrating, and resting his defense, on the fact that Mrs.

Keating and her mother had not then complied with the law of succession. [ 11 ] He chose not to testify, but argued that he never acted or pretended to act as a lawyer. [ 12 ] In fact, he describes his situation as executing a ‘civil mandate’, “une procuration”, which does not require being a lawyer. [ 13 ] Since the evidence provided by the prosecution did not show that he acted or pretended to act as a lawyer, but rather as the Executive Director of the Association, he argues that the elements of the offence have not been established.

THE LAW [ 14 ] The relevant sections of the Act respecting the Barreau du Québec are: 132. Notwithstanding any law to the contrary and without limiting the scope of this Act, whoever practices the profession of advocate without being entered on the Roll is guilty of an offence and is liable to the penalties provided in

section 188 of the Professional Code (

chapter C - 26 ). 133. Any person other than a member of the Bar practises the profession of advocate illegally within the meaning of

section 132 and in each of the following cases, who: ( a ) (…) ( b ) (…) (

c) acts in such manner as to lead to the belief that he is authorized to fulfil the functions of or to act as an advocate. 136. Any person other than a member of the Bar shall be presumed to be acting in such a manner as to lead to the belief that he is authorized to fulfil the office of an advocate and to act as such, within the meaning of

section 133, who: ( a ) (…) ( b ) (…) (

c) saving the case of a creditor addressing his debtor, writes or sends any card, letter or circular (1) (…) (2) (3) requiring the execution or non-execution of any act or prestation or demanding of the debtor the payment of a sum of money, either with costs or implying that legal proceedings will be taken. This provision shall not apply to a notary, provided that the demand or notice of default proceeds from an authentic deed and is made or given without costs against the debtor; or (…) ANALYSIS [ 15 ] According to the Supreme Court in City of Lévis v.

Tétreault ; City of Lévis v. 2629-4470 Québec Inc ., [2] in the absence of clear indication of legislative intent, an offence must be categorized as one of strict liability . This is the case for the two counts of the offence attributed to Mr. Greenbaum.

[ 16 ] Once the actus reus has been proven beyond reasonable doubt, the defendant can avoid liability only by showing that he acted with due diligence. It must therefore be asked whether the due diligence defense was available and, if so, whether the Defendant discharged its burden of proof in this regard. [ 17 ] A defendant can avoid liability by showing that he or she took all reasonable steps to avoid the particular event.

The defense of due diligence is based on an objective standard: it requires consideration of what a reasonable person would have done in similar circumstances. [ 18 ] In this case, the Defendant never denied sending those letters. Futhermore, he had practiced law in the past, so he should have known where to inquire to avoid liability. There is no evidence of due diligence from his part. [ 19 ] As for his argument regarding the “civil mandate”, it is relevant to mention that the death of the mandator ends the civil mandate or “procuration”. Since Mr. Tsuyoshi Endo died in April 2015, Mr.

Greenbaum could not pretend to execute a civil mandate on his behalf. [ 20 ] Furthermore, there is no evidence before the Court of the mission of the “ Association pour la défense des personnes et des biens sous curatelle publique ” nor of the work and functions of the Defendant for such association. FOR THESE REASONS, THE COURT: CONVICTS the Defendant of the two counts of the offence with which he is charged; SETS THE REPRESENTATIONS according to

Section 224 of the Penal Code regarding the fine, the costs or the delay to pay that fine, June 29, 2017, Room 13.06 (to be confirmed) at 9:30. If there are no representations to be made, parties or the lawyers do not have to be present. In that case, the Defendant will have to pay the minimal fine plus costs, and the Court will grant a delay of THREE months to pay. __________________________________ JOHANNE WHITE For the Plaintiff, Barreau de Montréal Me Nathalie Guertin The Defendant assumed his own defense. Date of hearing: February 28, 2017