http://www.slate.com/id/2203911
On Tuesday, California voters passed Proposition 8, the amendment to the state constitution that eliminates the right of same-sex couples to marry, scuttling a California Supreme Court ruling in May that granted that right. The amendment's passage represents a serious setback to the right of gays and lesbians to marry.
But how serious? Prop 8's consequence can be best understood by examining its effects on three different groups: gay couples who seek to marry in California in the future, gay couples who entered into legal marriages in California before the amendment passed, and gay couples in other states who are wondering when same-sex marriage will be legalized where they live.
The effects of Prop 8 on gay couples who seek to marry in California in the future are clear. California will have a moratorium on same-sex marriage for the foreseeable future. Although a state constitutional challenge was filed today, the only plausible legal challenge to Prop 8 is a federal constitutional one. But gay-rights groups will be loath to bring such a challenge, as it could be reviewed by the U.S. Supreme Court, which is not viewed as a friendly audience. A more likely response would be another proposition to reverse this one, offered through California's relatively flexible referendum process. But that political remedy will likely be some years away, given the political and financial capital expended on this last fight.
The effects of Prop 8 on the more than 16,000 gay couples in California who got married after the state high court authorized them to do so is much less clear. California Attorney General Jerry Brown has opined that he believes those marriages will not get washed out by Prop 8. His position comports with the general intuition that retroactive legislation should not deprive people of vested rights like marriage.
However, that intuition will not necessarily be vindicated. As I have pointed out elsewhere, there is a surprising dearth of federal constitutional authority that would protect existing same-sex marriages from retroactive attempts to undo them. It may well be, as California constitutional-law professor Grace Blumberg of UCLA has argued, that the California Constitution would preclude the retroactive application of Prop 8. But as most experts agree, the outcome here is uncertain.
This is in part because a court might find that Prop 8 does not even constitute retroactive legislation. The amendment states that "only marriage between a man and a woman is valid or recognized in California." A court could find that the pre-election marriages remain in existence but that California cannot recognize their validity going forward. Under that interpretation, a California same-sex marriage that was valid before today could be recognized by another state but not in the Golden State itself. Indeed, a state like New York that recognizes out-of-state same-sex marriages—even though it doesn't yet grant same-sex marriages—might be required to recognize a pre-election California marriage because of a state court decision that ordered the recognition of same-sex and cross-sex marriages.
Finally, the effects of Prop 8 on the national movement for same-sex marriage are significant but not devastating. Before Tuesday, court opinions legalizing same-sex marriage in Massachusetts, California, and Connecticut suggested that the right was gaining traction. The passage today of constitutional bans on same-sex marriage not just in California but also in Arizona and Florida provides a counterpoint.
Nonetheless, generational and global trends both ultimately favor full marriage equality in this country. The situation here is similar to the two-steps-forward, one-step-back trajectory that led to the legalization of interracial marriage. To be sure, Prop 8 represents a large step back. But the nation's march toward marriage equality won't stop.
Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at the NYU School of Law.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Obama win triggers run on guns in many storesOTTAWA — Grassroots Conservatives are urging Prime Minister Stephen Harper to act on long-standing demands of the Canadian right, such as less government and more health-care privatization, as they head into the party's second-ever policy convention next weekend in Winnipeg.
Resolutions from Conservatives across the country have been whittled down to a few dozen that will be up for debate on the convention floor.
The final list includes demands that, if adopted, could challenge Mr. Harper's efforts to soften the party's image among those who aren't traditional Conservatives.
"I think people are becoming impatient and they want to see some action. They want to see this government deliver a real, small c, conservative agenda," said Gerry Nicholls, a conservative commentator with the Democracy Institute.
Mr. Nicholls said he expects traditional conservatives will be more vocal in their demands now that the party has two consecutive victories under its belt. He predicted resistance to Mr. Harper's view that conservative policies must be adopted slowly so as not to alienate Canadian voters.
That tension may surface at the convention over several issues, including extra legal penalties for individuals who commit violence against a pregnant woman. The item is up for debate in spite of the fact that Mr. Harper distanced himself from the idea just days before the last election. His move blunted criticism that the measure, advocated at the time through a Conservative private member's bill, could criminalize abortion indirectly.
The last time Conservatives gathered to vote on policy in 2005, Mr. Harper was spotted backstage kicking a chair in frustration as his young party threatened to unravel. In the end, Tories emerged united with a platform that sidelined thorny issues such as abortion and capital punishment.
Don Plett, the president of the party's national council, said he expects lots of lively debate but pointed out the majority of the resolutions simply update policy to reflect the government's decisions.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
It has long been accepted that a criminal conviction (as opposed to a dismissal) provided prima facie proof of the facts underlying the criminal conviction. That said, many have argued (with some success) that the conviction does not forbid argument that the civil case still needs to be proven independently.
The basis for this argument usually is the decision of the Divisional Court in Taylor v. Baribeau (1985), 51 O.R. (2d) 541, where it was held that a criminal conviction is only prima facie proof of the defendant's negligence, that the findings of fact in support of a conviction are not admissible as evidence in the related civil proceedings, and that the doctrine of abuse of process has no application in civil proceedings.
Yesterday's Court of Appeal decision in Caci v. Dorkin, 2008 ONCA 750 makes it very clear this argument no longer has legs. Relying on Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77 the Court holds a verdict in the criminal case and the findings essential to that verdict are conclusive in the civil proceedings (there may be some wiggle room in the language but not much - a criminal conviction after trial seems to end the debate).
The Court writes:
[9] The appellant does not quarrel with the trial judge's decision admitting MacArthur's conviction for dangerous driving causing bodily harm. It submits, however, that the trial judge erred in his application of the abuse of process doctrine. It relies upon the decision of the Divisional Court in Taylor v. Baribeau (1985), 51 O.R. (2d) 541, where it was held that a criminal conviction is only prima facie proof of the defendant's negligence, that the findings of fact in support of a conviction are not admissible as evidence in the related civil proceedings, and that the doctrine of abuse of process has no application in civil proceedings.
[10] Further, the appellant submits that the abuse of process doctrine had no application because the appellant was not attempting to relitigate MacArthur's negligence but rather show that Dorkin was also negligent, a theory not at issue in MacArthur's criminal trial. It submits that the effect of the trial judge's ruling was to preclude it and MacArthur from adducing evidence of speed of the MacArthur and Dorkin vehicles that would have demonstrated that Dorkin was at least partially responsible for the accident.
[11] Finally, the appellant, relying upon Taylor and this court's decision in Franco v. White (2001), 53 O.R. (3d) 391, submits that where, as here, a party attempts to use proof of a prior conviction for offensive purposes to establish liability it is only prima facie proof of negligence. It submits that it is only where the conviction is used defensively to resist a claim by a convicted party that relitigation is precluded.
[12] I can deal briefly with the decision in Taylor. Taylor was decided before the decision in C.U.P.E., where the court clarified and explained the application of the doctrine of abuse of process. To the extent that Taylor holds that the criminal conviction is only prima facie proof of negligence and that the findings of fact in support of the conviction are never admissible, it has been overtaken by C.U.P.E. and decisions of this court, especially Hanna v. Abbott (2006), 272 D.L.R. (4th) 621.
[13] I am also of the view that the distinction drawn between offensive and defensive uses of the prior criminal conviction is inconsistent with C.U.P.E. Whether or not the person convicted may be precluded by the doctrine of abuse of process from contesting the underlying facts will depend on the application of the principles set out in C.U.P.E. and not simply upon whether the use is characterized as offensive or defensive. I note that this court in Franco, while referring to the line of authority that had drawn such a distinction, held at para. 31 that it was unnecessary to consider whether the abuse of process doctrine "should be extended beyond its apparent present limits". As a result of C.U.P.E., the law of abuse of process has been explained and extended beyond the limits referred to in Franco. In particular, in C.U.P.E., Arbour J. speaking for the court at para. 47 held that there is "no reason to constrain the doctrine of abuse of process only to those cases where the plaintiff has initiated the relitigation" (i.e. the defensive use of the doctrine). Also see the discussion of this issue at para. 49 of the C.U.P.E. decision.
[14] As explained in C.U.P.E., the abuse of process doctrine engages the court's inherent power to prevent the administration of justice from being brought into disrepute. In the context of a case such as this where the court must consider the evidentiary effect of a prior conviction, the issue is "whether relitigation would be detrimental to the adjudicative process": C.U.P.E., at para. 45.
[15] In my view, the trial judge properly applied the principles from C.U.P.E. in holding that the verdict in the criminal case and the findings essential to that verdict were conclusive in the civil proceedings. To permit MacArthur or the appellant, whose interest was identical to MacArthur, to relitigate the issue of negligence and the findings essential to that verdict would undermine the integrity of the adjudicative process. MacArthur had been found to have committed dangerous driving, an offence of negligence at least as high if not higher than civil negligence. Further, that negligence had been proved to the criminal standard of proof beyond a reasonable doubt. Finally, MacArthur had a full opportunity to defend the allegation of negligence in circumstances where he had every reason to mount a complete defence.
Officials with the prime minister's office are downplaying expectations for the three-hour afternoon meeting, saying they expect a "consultative" session.
Full story here: http://www.canada.com/topics/news/story.html?id=2715452f-9134-470b-9663-20456dfaabab
One of these issues is whether a patent is invalid on the basis it is an attempt to patent something obvious. Obviousness is largely concerned with how a skilled worker would have acted in the light of the prior art.
The Court held that an obviousness inquiry should follow a four-step approach.
First, the notional "person skilled in the art" and that person's relevant common general knowledge must be identified.
Second, the inventive concept of the claim in question must be determined or construed.
Third, the differences, if any, that exist between the matters cited as forming part of the "state of the art" and the inventive concept of the claim or the claim as construed must be identified.
Fourth, a court must consider whether, viewed without any knowledge of the alleged invention as claimed, those differences constitute steps which would have been obvious to the person skilled in the art or whether they require any degree of inventiveness.
It is at this final step that the issue of "obvious to try" will arise and the nature of the invention in this case is such as to warrant this test. For a finding that an invention was "obvious to try", there must be evidence to convince a judge on a balance of probabilities that it was more or less self-evident to try to obtain the invention. Mere possibility that something might turn up is not enough.
The Court writes:
[67] It will be useful in an obviousness inquiry to follow the four-step approach first outlined by Oliver L.J. in Windsurfing International Inc. v. Tabur Marine (Great Britain) Ltd., [1985] R.P.C. 59 (C.A.). This approach should bring better structure to the obviousness inquiry and more objectivity and clarity to the analysis. The Windsurfing approach was recently updated by Jacob L.J. in Pozzoli SPA v. BDMO SA, [2007] F.S.R. 37, [2007] EWCA Civ 588, at para. 23: In the result I would restate the Windsurfing questions thus:
(1) (a) Identify the notional "person skilled in the art";(b) Identify the relevant common general knowledge of that person;
(2) Identify the inventive concept of the claim in question or if that cannot readily be done, construe it;
(3) Identify what, if any, differences exist between the matter cited as forming part of the "state of the art" and the inventive concept of the claim or the claim as construed;
(4) Viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of invention? [Emphasis added.]
It will be at the fourth step of the Windsurfing/Pozzoli approach to obviousness that the issue of "obvious to try" will arise.
i. When Is the "Obvious to Try" Test Appropriate?
[68] In areas of endeavour where advances are often won by experimentation, an "obvious to try" test might be appropriate. In such areas, there may be numerous interrelated variables with which to experiment. For example, some inventions in the pharmaceutical industry might warrant an "obvious to try" test since there may be many chemically similar structures that can elicit different biological responses and offer the potential for significant therapeutic advances.
ii. "Obvious to Try" Considerations
[69] If an "obvious to try" test is warranted, the following factors should be taken into consideration at the fourth step of the obviousness inquiry. As with anticipation, this list is not exhaustive. The factors will apply in accordance with the evidence in each case. (1) Is it more or less self-evident that what is being tried ought to work? Are there a finite number of identified predictable solutions known to persons skilled in the art? (2) What is the extent, nature and amount of effort required to achieve the invention? Are routine trials carried out or is the experimentation prolonged and arduous, such that the trials would not be considered routine? (3) Is there a motive provided in the prior art to find the solution the patent addresses?
[70] Another important factor may arise from considering the actual course of conduct which culminated in the making of the invention. It is true that obviousness is largely concerned with how a skilled worker would have acted in the light of the prior art. But this is no reason to exclude evidence of the history of the invention, particularly where the knowledge of those involved in finding the invention is no lower than what would be expected of the skilled person.
[71] For example, if the inventor and his or her team reached the invention quickly, easily, directly and relatively inexpensively, in light of the prior art and common general knowledge, that may be evidence supporting a finding of obviousness, unless the level at which they worked and their knowledge base was above what should be attributed to the skilled person. Their course of conduct would suggest that a skilled person, using his/her common general knowledge and the prior art, would have acted similarly and come up with the same result. On the other hand, if time, money and effort was expended in research looking for the result the invention ultimately provided before the inventor turned or was instructed to turn to search for the invention, including what turned out to be fruitless "wild goose chases", that evidence may support a finding of non-obviousness. It would suggest that the skilled person, using his/her common general knowledge and the prior art, would have done no better. Indeed, where those involved including the inventor and his or her team were highly skilled in the particular technology involved, the evidence may suggest that the skilled person would have done a lot worse and would not likely have managed to find the invention. It would not have been obvious to him/her to try the course that led to the invention.
A disciplinary hearing for two high-ranking OPP officers came to an abrupt halt on Wednesday afternoon when lawyers for the force sought to have the judge in the case removed.
The two Ontario Provincial Police internal affairs officers are facing internal charges, but are claiming they are victims of a political prosecution by Commissioner Julian Fantino, accusing him of being in cahoots with the OPP union.
The hearing against Supt. Ken MacDonald and Insp. Allison Jevons is being held at OPP headquarters in Orillia.
MacDonald used to head the unit that probes internal police corruption, and Jevons was a senior investigator in the unit. Both now face charges of neglect of duty and deceit.
They claim they are victims of a witch-hunt inside the OPP being orchestrated by Fantino and the head of the OPP union, the Ontario Provincial Police Association.
In the case in question, MacDonald and Jevons were ordered to look into why OPP supervisors in eastern Ontario looked the other way when a local officer allegedly took a baseball bat to his wife's car.
When MacDonald and Jevons concluded there was misconduct, the police union filed a complaint claiming major problems with the whole investigation.
Fantino, who was fresh to the job as commissioner, ordered a review of the findings.
He later agreed with the union and charged the two senior officers with neglect of duty and deceit for their handling of the investigation.
MacDonald and Jevons, however, are fighting back, and in the process made their own allegations, which Fantino has called "hysterical nonsense" in his testimony.
In earlier testimony, the OPP commissioner denied he was bowing to pressure from the OPP union.
Fantino also denied any personal vendetta against MacDonald and Jevons.
But on Wednesday, before Fantino could take the stand again, his lawyers demanded the judge recuse himself, claiming Judge Leonard Montgomery is biased.
They're upset over comments Montgomery made in court about Fantino's testimony and his professional conduct. They told the judge that if he doesn't step aside, they'll take their complaint to a higher court, claiming they even have the support of Ontario Attorney General Chris Bentley.
The lawyer for MacDonald and Jevons called the allegations against the judge "astounding" and an attempt to derail the hearing so Fantino won't have to continue testifying.
Two previous adjudicators have already stepped aside due to legal wrangling.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
That said, a court will not consider a defence to a criminal case unless the evidence discloses the defence has an 'air of reality'. Merely asserting, say, self defence will not allow the trier of fact to consider self defence; there must be some evidence that supports, in some way, that defence.
Today's Court of Appeal decision in R. v. Mathisen, 2008 ONCA 747 sets out the test well:
(b) The Air of Reality Test
[47] A defence should be put to the jury only if it is sound in law and meets the air of reality test. The air of reality test requires that there be evidence in the record on which a properly instructed jury, acting reasonably, could acquit: see R. v. Cinous, [2002] 2 S.C.R. 3. In applying the air of reality test, a trial judge assumes that the evidence the accused relies on is true. Moreover, the trial judge does not decide the substantive merits of the defence, weigh the evidence, make findings of fact or credibility, or draw firm factual inferences: see Cinous at paras. 53-54.
[48] Thus, in performing this gatekeeper function, a trial judge must not usurp the jury's role as finder of fact. It is not part of the trial judge's role to determine whether the defence is or is not likely to succeed. "The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue": see Cinous at para. 54.
[49] Where the defence has more than one element, as do ss. 34(1) and (2), the air of reality test applies to each of the elements. If any element lacks an air of reality, the defence should not be put to the jury. Further, each of the elements in ss. 34(1) and (2) has both a subjective and an objective component. The subjective component is the accused's perception of the situation he or she confronts; the objective component requires that the accused's perception of the situation be objectively reasonable: see Cinous at paras. 93-95.
G-d willing that may be so ... .
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
R. v. J.F., 2008 SCC 60 (released last week) deals with a sad case where a child was killed in foster case. The Court considered the curious situation where the accused, the child's foster father, was charged with manslaughter by criminal negligence and manslaughter by failing to provide the necessaries of life. He was convicted by a jury on the first count, but acquitted on the second. The Court ruled the the verdicts inconsistent. A case comment and part of the decision follow.
M was four years old when he died in his foster home from multiple blunt traumas to his head. M's body was extensively bruised. M's foster mother confessed to beating M and pleaded guilty to manslaughter. The accused, M's foster father, was charged with manslaughter by criminal negligence and manslaughter by failing to provide the necessaries of life. He was convicted by a jury on the first count, but acquitted on the second. The accused appealed his conviction. A majority of the Court of Appeal overturned the conviction and ordered a new trial on the charge of manslaughter by criminal negligence on the basis that the verdicts were inconsistent. The Crown appealed as of right on the issue of inconsistent verdicts. The accused cross‑appealed the order for a new trial, contending that an acquittal ought to have been entered.
The Supreme Court held that the appeal should be dismissed and the cross‑appeal should be allowed. The order setting aside the conviction on the charge of manslaughter by criminal negligence should be affirmed and an acquittal entered.
The verdicts rendered at trial are inconsistent and the conviction of manslaughter by criminal negligence must be quashed. There was no reasonable basis upon which to convict and acquit the accused at the same trial, of the same offence committed in the same way against the same victim. The accused was tried on two counts of manslaughter by omission. Though each count alleged different "underlying" or "predicate" offences, the accused's guilt in respect of both counts was made by the Crown to depend on exactly the same failure to perform exactly the same duty: the duty to protect his foster child from foreseeable harm from his spouse.
The actus
The verdicts signify that a lesser degree of fault was not established whereas a greater degree of fault was proven beyond a reasonable doubt. Even if the fault requirements were treated as equivalent, the verdicts are incomprehensible.
The verdicts cannot be reconciled retrospectively based on arguments that the offences differ or the trial judge misdirected the jury. Abstract differences between the offences formed no part of the trial and are of no relevance on the facts of the case. Nor is it likely that the jury was misled by the trial judge's instructions with respect to failure to provide the necessaries of life. Even if the intructions were erroneous, improper instructions do not make improper verdicts proper, nor inconsistent verdicts consistent.
Where criminal negligence and failure to provide the necessaries of life are alleged, the jury first should consider whether the accused failed a duty to provide the necessaries of life. If so, the jury is bound to find the accused guilty of that offence. The jury then should consider whether the accused, in failing to provide the necessaries of life, showed a wanton or reckless disregard for the life or safety of the child. If so, the jury is bound to find the accused guilty of criminal negligence. If not, the jury could still find the accused guilty of failure to provide the necessaries of life, but not of criminal negligence.
This is not an appropriate case in which to order a new trial. Rather, an acquittal should be entered on the count of manslaughter by criminal negligence. Since, in this case, the Crown did not appeal the accused's acquittal on the count of manslaughter by failing to provide the necessaries of life, a new trial would deprive the accused of the benefit of his acquittal and expose him to a finding that he did in fact commit the offence of which he was acquitted.
The Court writes:
[7] The fault element required for conviction at trial was essentially common to both counts of manslaughter. On count 1, the requisite fault element was that of the underlying offence of criminal negligence; on count 2, the requisite fault element was that of failure to provide the necessaries of life. Neither criminal negligence nor failure to provide the necessaries of life requires proof of intention or actual foresight of a prohibited consequence. Under both counts, the jury was required to determine not what the respondent knew or intended, but what he ought to have foreseen.
[8] On the count alleging failure to provide necessaries, the Crown was bound to establish that the respondent's failure to protect his foster child represented "a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child": R. v. Naglik, 1993 CanLII 64 (S.C.C.), [1993] 3 S.C.R. 122, at p. 143 (emphasis added). It will later become apparent why I have emphasized the word "risk" in this description of the offence by the Chief Justice, speaking for the Court on this point.
[9] On the count alleging criminal negligence, the Crown was bound to show that the respondent's very same omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave no thought to that risk: R. v. Tutton, 1989 CanLII 103 (S.C.C.), [1989] 1 S.C.R. 1392, at pp. 1430-31; R. v. Sharp reflex, (1984),12 C.C.C. (3d) 428 (Ont. C.A.).
[10] The difference between a marked departure and a marked and substantial departure has been considered in several appellate decisions since Naglik and Tutton, mainly but not exclusively in the context of driving offences: See, for example, R. v. Willock 2006 CanLII 20679 (ON C.A.), (2006), 210 C.C.C. (3d) 60 (Ont. C.A.); R. v. L. (J.) 2006 CanLII 805 (ON C.A.), (2006), 204 C.C.C. (3d) 324 (Ont. C.A.); R. v. Palin (1999), 135 C.C.C. (3d) 119 (Que. C.A.); R. v. Fortier 1998 CanLII 12917 (QC C.A.), (1998), 127 C.C.C. (3d) 217 (Que. C.A.); R. v. Brown 2000 CanLII 2048 (ON C.A.), (2000), 134 O.A.C. 151; R. v. Baker 2006 CanLII 19332 (ON C.A.), (2006), 209 C.C.C. (3d) 508 (Ont. C.A); R. v. E. (A.) 2000 CanLII 16823 (ON C.A.), (2000), 146 C.C.C. (3d) 449 (Ont. C.A.). This case does not turn on the nature or extent of the difference between the two standards.
[11] A brief comment on this branch of the matter will therefore suffice. If the fault element under both counts was the same — if a marked departure was sufficient in both instances — an acquittal on one and a conviction on the other would be plainly inconsistent because both counts alleged the identical actus reus as well. It is undisputed, however, that criminal negligence, unlike failure to provide the necessaries of life, involves a marked and substantial departure from the norm of a reasonable person. In this light, the verdicts at trial — not guilty of failing to provide necessaries, yet guilty of criminal negligence — are not only inconsistent, but incomprehensible as well.
[12] Moreover, Parliament has made it clear not only in the relevant procedural provisions of the Criminal Code, R.S.C. 1985, c. C-46, but also in the sentencing provisions that criminal negligence is the more serious of the two offences. Criminal negligence causing bodily harm must be prosecuted by indictment; failure to provide the necessaries of life, a hybrid offence, can be prosecuted either by indictment or on summary conviction. Criminal negligence is punishable by a maximum of 10 years' imprisonment; failure to provide the necessaries of life is punishable, on indictment, by a maximum of 5 years (at the time of trial, 2 years) and, on summary conviction, by 18 months (at the time of trial, 6 months).
[13] That criminal negligence is a more serious offence, signifying more blameworthy conduct, has been recognized by the courts as well. This is reflected in cases where the accused has been found guilty of both offences: Applying the rule against multiple convictions in accordance with Kienapple v. The Queen, 1974 CanLII 14 (S.C.C.), [1975] 1 S.C.R. 729, and R. v. Provo, 1989 CanLII 71 (S.C.C.), [1989] 2 S.C.R. 3, courts have systematically recorded a conviction of criminal negligence, as the more serious of the two offences, and entered a stay on the charge of failure to provide the necessaries of life (see, for example, R. v. Johnson, 2007 CarswellOnt 7765 (Ct. J.)). And in the few reported cases where the accused was finally acquitted of one of these offences and convicted of the other, the conviction was for failure to provide the necessaries of life and the acquittal for criminal negligence (see, for example, R. v. J.R.B., [2002] N.J. No. 296 (QL) (Prov. Ct.); R. v. Fitze reflex, (2000), 35 C.R. (5th) 114 (Alta. Q.B.)). I am not aware of a single case in which a conviction has been recorded for failing to provide the necessaries of life and a stay entered for criminal negligence pursuant to the rule against multiple convictions.
For Canada Obama poses challenges -- his plans to renegotiate NAFTA are a problem -- and he will not be favourably disposed towards our current government.
That said, give the man his due. Tonight is an amazing result.
Tomorrow the work begins.
