Saturday, July 4, 2015
Friday, July 3, 2015
So Section 718.2 of the Criminal Code says:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
… (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
Thursday, July 2, 2015
R. v. Graziano, 2015 ONCA 49:
 ... The proper approach would have been to consider whether permitting the Crown to call Hogan in reply offended the rule that prohibits the Crown from splitting its case. In Krause v. The Queen (1986), 29 C.C.C. (3d) 385 (S.C.C.), at pp. 390-91, McIntyre J. set out the rule against case-splitting and its rationale:
The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case. The Crown or the plaintiff must produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to all the issues raised in the pleadings; in a criminal case, the indictment and any particulars… The underlying reason for this rule is that the defendant or the accused is entitled at the close of the Crown's case to have before it the full case for the Crown so that it is known from the outset what must be met in response. [Citations omitted.]
 In my opinion, however, the Crown's calling Hogan in reply did not breach this rule. In Krause, at p. 391, McIntyre J. discussed the exception to the rule against case-splitting – that is, when the Crown may be entitled to call reply evidence:
The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated.
Tuesday, June 30, 2015
Monday, June 29, 2015
 I begin with an important contextual point. After the two applications were filed, they were scheduled for hearing on an urgent basis on the first available date that permitted time for responding materials, examinations and facta. In its Notice of Application, PDM said, under a separate heading titled “Urgency”: (eee) [I]t is imperative that the Application be heard on an urgent basis. PDM has funding applications that are presently being considered and, if there is uncertainty as to the ownership of the rights, the funding applications may have to be withdrawn[.]
 Moreover, at the conclusion of argument on January 22, 2015, PDM’s counsel advised the application judge of the urgency of the matter and requested that, if possible, a decision be issued quickly. There is no indication that the appellants took issue with that request or with PDM’s justification therefor. The application judge released his decision the next morning, on January 23, 2015. He gave the parties what he had been asked for: an early hearing and an immediate decision.
 In F.H. v. McDougall, at para. 98, Rothstein J. summarized the rationales underlying the duty to give adequate reasons: (1) to justify and explain the result; (2) to tell the losing party why he or she lost; (3) to provide for informed consideration of the grounds of appeal; and (4) to satisfy the public that justice has been done.
 In my view, the application judge’s reasons in this case meet this standard.