Right to counsel without delay

R. v. Suberu 2009 SCC 33, one of several important Supreme Court of Canada decisions released yesterday, deals with the right to counsel. One issue arising is what does the Charter means when it refers to "without delay"? The Charter reads:

10. Everyone has the right on arrest or detention...

 (b) to retain and instruct counsel without delay and to be informed of that right; ... .

Does "without delay" mean "soon", "quickly" or "immediately".

The Court ruled it means "immediately" saying:
 

[2]                              The specific issue raised in this case is whether the police duty to inform an individual of  his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention — a question left open in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 22.  It is our view that this question must be answered in the affirmative.  The concerns regarding compelled self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, s. 10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel "without delay".  The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.

 ...

[42]                          To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill‑defined and unworkable test of the application of the s. 10(b) right.  The right to counsel requires a stable and predictable definition.  What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding.  An ill‑defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police.  In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b).  Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

They never put on enough dressing ...

Judge Sonia Sotomayor

So the big deal with this potential appointment to the US Supreme Court is that she said her background and experience enhances her legal vision -- or something like that.

Opponents of her appointment seized on her comment and suggested that showed she'd be biased on the bench.

Nonsense.

Judging is not a matter of binary decision making -- it involves a vast amount of discretion and discernment. Even the simplest motor vehicle case requires the judge to decide what was 'reasonable' in the circumstances leading to the car crash. And deciding what is 'reasonable' requires the judge to consider the circumstances in context -- and context comes from the judge's life experience.

Put otherwise, if a white, middle aged man is appointed a judge his background and experience will determine many of his decisions. That doesn't mean his decisions will be biased -- it means that he will see the world, and the law, through his eyes. The same way Sotomayor will see the world through her eyes.

James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Charles Gonthier, former SCC judge, dies

OTTAWA_ Charles Gonthier, a former Supreme Court judge ... has died.

Gonthier passed away at age 80 on Thursday.

...
Gonthier sat on the Supreme Court of Canada from 1989 to 2003.
...

Gonthier was named to the Supreme Court of Canada on Feb. 1, 1989, after being appointed to the Quebec Court of Appeal the previous year.

He first became a judge at the Quebec Superior Court in 1974.

Gonthier was known for dissenting from the court's majority, offering a more conservative interpretation the individual rights guaranteed under the Charter of Rights and Freedoms.

In 1999, he argued in a dissent that provincial legislation excluding same-sex couples from the legal definition of marriage did not breach the Charter.

The best-known decision in which he wrote for the majority of the court was the Thibaudeau v. Canada in 1995, a ruling that upheld Income Tax Act provisions that taxed the recipients, not the payers, of alimony and support monies.

James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Protest behaviour

A reader has asked me about an upcoming protest rally where there is expected to be major police presence. How should people behave?

At the outset, the right of peaceful protest is fundamental to democracy. Canadians have the right to assemble and protest and petition the government. But note the term peaceful in the last sentence. Similarly, protest must be lawful -- by which I mean trespass to private property can and will lead to arrest and detention.

So, the best approach is to rally, speak and behave as responsible citizens making a point. Violence or lawless behaviour is totally inappropriate. Remember when Gandi protested and used civil disobedience (where a critical element is the intention to be arrested) the protests were peaceful -- that's why Gandi remains a hero.

But what if police behave badly? The answer is to obey the police and complain later -- if you are told to "move along" and you think there is no reason to move along, do so and complain later -- that's why we have courts and complaints commissioners. Moreover, you may be wrong and the police may indeed have a good reason for you to move along -- submit now and review later.

Now all this sounds scary -- and it is -- but speaking out is a key part of the political process.

What a perfect coffee cup!

Charges stayed because Crown comes into possession of privileged document

Today has been a busy day for the release of important cases.

This morning the Court of Appeal delivered a strong decision making clear the centrality of solicitor-client privilege. Specifically, a privileged document fell into the hands of the Crown and, in the specific circumstances, charges were stayed.

The Court writes:

THE QUESTIONS FOR THE COURT

(i) When the Crown has come into possession of a defence document that is protected by solicitor-client and litigation privilege, does the accused bear the burden of proving actual prejudice or will prejudice be presumed?

[52] The answer to this question is clearly found in the reasons for judgment of Binnie J. in Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, at para. 3:

This Court's decision in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, makes it clear that prejudice will be presumed to flow from an opponent's access to relevant solicitor-client confidences. The major difference between the minority and majority in that case is that while the majority considered the presumption of risk of prejudice open to rebuttal in some circumstances (pp. 1260-61), the minority would not have permitted even the opportunity of rebuttal (p. 1266).

[53] Celanese involved the execution of an Anton Piller order that resulted in documents of the defendants, which were protected by solicitor-client privilege, falling into the hands of the lawyers for the plaintiffs. Binnie J. distinguished the case from the "moving solicitor" situation in MacDonald Estate. He discussed the kind of rebuttal evidence that would be expected from the party who obtained improper access to the privileged documents at para. 4.

The Anton Piller situation is somewhat different because the searching solicitors ought to have a record of exactly what was seized and what material, for which confidentiality is claimed, they subsequently looked at. Here again, rebuttal should be permitted, but the rebuttal evidence should require the party who obtained access to disclose to the court what has been learned and the measures taken to avoid the presumed resulting prejudice. While all solicitor confidences are not of the same order of importance, the party who obtained the wrongful access is not entitled to have the court assume in its favour that such disclosure carried no risk of prejudice to its opponent, and therefore does not justify the removal of the solicitors. For the reasons that follow, I conclude, contrary to the view taken by the Court of Appeal, with respect, that Celanese and its lawyers did have the onus to rebut the presumption of a risk of prejudice and they failed to do so. [Emphasis in original.]

[54] Celanese involved the removal of the solicitors for the plaintiffs from the case. That said, I see no difference in principle between the situations in MacDonald Estate and Celanese and the case at bar.

[55] Counsel for the Crown in this court sought to distinguish Celanese on the basis that it was a civil case in which the appellants were "attempting to utilize a civil onus to achieve a criminal result". I reject this submission. In my view, the above cases support the proposition that when the Crown comes into possession of a defence document that is protected by solicitor-client and litigation privilege, prejudice to the defence will be presumed. The presumption, however, is rebuttable.

(ii) Additionally, in such circumstances, must the charges be stayed or is a lesser remedy appropriate?

[56] It is obvious that there is a significant public interest in proceeding to a trial of the merits in cases such as this. A stay of proceedings is the remedy of last resort for the purpose of curing the prejudice visited on the appellants by the breach of their solicitor-client privilege.

[57] LeBel J., writing for the majority in R. v. Regan, [2002] 1 S.C.R. 297, at paras. 54, 56 articulated the test for a stay as follows:

Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is reasonably capable of removing that prejudice.

The Court's judgment in Tobiass, at para. 91, emphasized that the first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future.

…

Any likelihood of abuse which will continue to manifest itself if the proceedings continue then must be considered in relation to possible remedies less drastic than a stay. Once it is determined that the abuse will continue to plague the judicial process, and that no remedy other than a stay can rectify the problem, a judge may exercise her or his discretion to grant a stay. [Citation omitted.]

[58] Common sense suggests that every breach of solicitor-client privilege does not attract the ultimate remedy. Some breaches of privilege are trivial and would not call for a stay of proceedings.

[59] In my view, the real issue for consideration in this case is whether the appeal judge erred in reversing the justice of the peace's decision to grant a stay of proceedings. I turn to that issue.

IS THIS AN APPROPRIATE CASE FOR A STAY?

[60] The standard of review to be applied to a trial judge's decision under s. 24(1) was described by Binnie J. (in dissent, but agreeing with the majority on this point) in Regan at para. 139:

I agree with my colleague LeBel J. that the standard of review of the trial judge's decision to grant a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms was authoritatively stated by Gonthier J. in Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375, as follows: "[A]n appellate court will be justified in intervening in a trial judge's exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice"; see also R. v. Carosella, [1997] 1 S.C.R. 80, at para. 48.

In Carosella, Sopinka J. said at para 50:

It is only after reaching the conclusion that the discretion has not been exercised in accordance with these principles that an appellate court is entitled to exercise a discretion of its own.

[61] The justice of the peace did a thorough review of the evidence and cited the appropriate authorities in respect of her consideration of whether a stay was the only available remedy.

[62] The appeal judge concluded that the justice of the peace was premature in ordering the stay. In her view, the trial should have proceeded and the issue of a stay deferred until the end of the trial. That may well be the preferred course in a different case. However, given the record before the justice of the peace and, in particular, the failure of the Crown to rebut the presumption of prejudice, I am not persuaded that she misdirected herself on the appropriate test or that her decision is so clearly wrong as to amount to an injustice.

[63] As I have already said, if the Crown had been able to lead evidence to rebut the presumption of prejudice, it would have done so. To let the trial proceed in these circumstances is, in effect, to permit the Crown to have a second chance to disprove prejudice when the record to date suggests it is incapable of doing so.

[64] In my view, the appeal judge erred in reversing the decision of the justice of the peace. The appeal judge said her decision would have been different had the report contained advice or recommendations of legal counsel. She failed to give any credit to the justice of the peace's finding that the report clearly sets out items that could well be used to the disadvantage and prejudice of the appellants. The appeal judge also gives little or no weight to the failure of the Crown to rebut the presumption of prejudice.

[65] The appeal judge said there was no evidence to support the justice of the peace's finding that the Crown failed to limit access to the report except to counsel for Vipond. The fact is that the Crown's witness list at trial contains the names of four employees from Vipond. There is no evidence as to what distribution, if any, was made of the contents of the report by Vipond. All we know is that counsel for Vipond retrieved the report from his client and returned it to counsel for Bruce Power.

[66] I would allow the appeal and restore the stay of the proceedings on the charges against the appellants.

[67] Finally, I return to the two questions raised by this appeal. In respect of the first question, I would conclude that when the Crown has come into possession of a defence document that is protected by solicitor-client and litigation privilege, prejudice will be presumed. The presumption is rebuttable by the Crown. In respect of the second question, I would conclude that in such circumstances, it does not necessarily follow that the charges should be stayed where a lesser remedy can solve the problem.

Protecting Ontario's Heritage of Human Rights

Especially in light of recent suggestions that Ontario's human rights protections should be watered down it's very important to speak up for human rights. Despite suggestions to the contrary, the human rights system has worked well in Ontario and has had the support (until recently) of all Provincial political parties.



In this regard, I'm glad to say Attorney General Chris Bentley spoke up in support of the human rights system this past Wednesday at the Bora Laskin Law Library. His speech can be viewed in three parts at the following links:





Protecting Ontario's Heritage of Human Rights

Hon. Chris Bentley, Ontario's Attorney General, addressing the University of Toronto's Faculty of Law re "Protecting Ontario's Heritage of Human Rights" on July 15, 2009.



P1: http://www.youtube.com/watch?v=cJXtLojXekw



P2: http://www.youtube.com/watch?v=Kc3ujN0xB4g



P3: http://www.youtube.com/watch?v=A7OjMnkfBEs

Supreme Court rules on tainted evidence

This analysis is pretty well dead on:


Supreme Court rules on tainted evidence

In a quartet of cases it decides that evidence obtained by police in violation of the Charter of Rights and Freedoms can be used to convict an accused, unless the violation is blatant

Kirk Makin Toronto — Globe and Mail Update

The Supreme Court delivered a mixed victory today in a landmark tussle pitting advocates for criminal rights against those who favour a law-and-order agenda.

It ruled in a quartet of cases that evidence obtained by police in violation of the Charter of Rights and Freedoms can be used to convict the accused, unless the violation is blatant. The Court voted to permit the use of tainted evidence in most of the test cases, which ran the gamut from possession of a loaded gun, to cocaine trafficking, possession of stolen property, and impaired driving.

While the upshot of the rulings was not as devastating toward the rights of the accused as defence counsel had feared, they will almost certainly lead to a reduction in the number of cases where important evidence is tossed out because of police misconduct. ...

In the gun case, the majority laid down a particularly nuanced set of rules governing the admission of tainted evidence. It said evidence against the accused, Donnohue Grant, could be used at his trial because the young man should have realized that police had moved from casual questioning into an actual investigation when they stopped him on a Toronto street.

"The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law," the Court said.

James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Two Important Supreme Court of Canada cases released this morning

The Supreme Court of Canada just released two important decisions today dealing with the exclusion of evidence in the face of unconstitutional conduct by the State.  The cases also deal with when someone is "detained".  Each decision is careful and deserves a full reading – a brief summary of some of the law and a few passages from each case follows:

 

R. v. Harrison, 2009 SCC 34

 

In considering exclusion of evidence the three lines of inquiry are relevant to determining whether the admission of the evidence would bring the administration of justice into disrepute are:  (1) the seriousness of the Charter‑infringing state conduct; (2) the impact of the breach on the Charter‑protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits. 

 

The Court writes:

 

[21]                          Breaches of the Charter established, the question is whether the evidence thereby obtained should be excluded under s. 24(2) of the Charter.  The test set out in s. 24(2) is simply stated: would the admission of the evidence bring the administration of justice into disrepute? Grant identifies three lines of inquiry relevant to this determination. Once again, they are:  (1) the seriousness of the Charter infringing state conduct (2) the impact of the breach on the Charter protected interests of the accused, and (3) society's interest in the adjudication of the case on its merits. …

 

 

R. v. Grant, 2009 SCC 32     

 

Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.  In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.  To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:  (a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual; (b) the nature of the police conduct; and (c) the particular characteristics or circumstances of the individual where relevant.  To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements.  In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go.  It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual's right to choose, and conduct that does not.  Deference is owed to the trial judge's findings of fact, although application of the law to the facts is a question of law. 

 

  The right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes.   

 

The criteria relevant to determining when, in "all the circumstances", admission of evidence obtained by a Charter breach "would bring the administration of justice into disrepute" must be clarified.  The purpose of s. 24(2), as indicated by its wording, is to maintain the good repute of the administration of justice.  Viewed broadly, the term "administration of justice" embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.  The phrase "bring the administration of justice into disrepute" must be understood in the long‑term sense of maintaining the integrity of, and public confidence in, the justice system.  While exclusion of evidence resulting in an acquittal may provoke immediate criticism, s. 24(2) does not focus on immediate reaction to the individual case.  Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence.  The inquiry is objective.  It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.  Section 24(2)'s focus is not only long‑term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice.  Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.  Section 24(2)'s focus is also societal.  Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. 

 

 

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter‑infringing state conduct, (2) the impact of the breach on the Charter‑protected interests of the accused, and (3) society's interest in the adjudication of the case on its merits.  At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence.  The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.  The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right.  The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.  At the third stage, a court asks whether the truth‑seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.  Factors such as the reliability of the evidence and its importance to the Crown's case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case.  Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. 

 

The Court writes:

 

 

[29]                          The language of ss. 9 and 10 is consistent with this purpose-based approach to detention.  The pairing of "detained" and "imprisoned" in s. 9 provides textual guidance for determining where the constitutional line between justifiable and unjustifiable interference should be drawn. "Imprisonment" connotes total or near-total loss of liberty.  The juxtaposition of "imprisoned" with "detained" suggests that a "detention" requires significant deprivation of liberty.  Similarly, the words "arrest or detention"  in s. 10 suggest that a "detention" exists when the deprivation of liberty may have legal consequences.  This linguistic context requires exclusion of police stops where the subject's rights are not seriously in issue.

 

 

 

 

 

[30]                          Moving on from the fundamental principle of the right to choose, we find that psychological constraint amounting to detention has been recognized in two situations. The first is where the subject is legally required to comply with a direction or demand, as in the case of a roadside breath sample. The second is where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject's position would feel so obligated. The rationale for this second form of psychological detention was explained by Le Dain J. in Therens as follows:

 

 

 

In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. …

 

 

 

 

 

[31]                          This second form of psychological detention — where no legal compulsion exists — has proven difficult to define consistently.  The question is whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand. As held in Therens, this must be determined objectively, having regard to all the circumstances of the particular situation, including the conduct of the police.  As discussed in more detail below and summarized at para. 44, the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.

 

 

 

[32]                           The objective nature of this inquiry recognizes that the police must be able to know when a detention occurs, in order to allow them to fulfill their attendant obligations under the Charter and afford the individual its added protections.  However, the subjective intentions of the police are not determinative. (Questions such as police "good faith" may become relevant when the test for exclusion of evidence under s. 24(2) is applied, in cases where a Charter breach is found.) While the test is objective, the individual's particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceived power imbalance between the individual and the police, and thus the reasonableness of any perception that he or she had no choice but to comply with the police directive.  To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go.  It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual's right to choose, and conduct that does not.

 

 

…

 

 

[67]                          The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice.  The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried.  More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.

 

 

 

[68]                          The phrase "bring the administration of justice into disrepute" must be understood in the long‑term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism.  But s. 24(2) does not focus on immediate reaction to the individual case.  Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence.  The inquiry is objective.  It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. 

 

 

 

[69]                          Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice.  Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. 

 

 

 

[70]                          Finally, s. 24(2)'s focus is societal.  Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

 

 

 

 

 

[71]                          A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective.  When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.  The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.  These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

 

Weird tee

It looks like a tee-shirt for a mausoleum groupie – I assume it’s for a construction company that builds mausoleums but still…

Arrest warrant issued in Ianiero killings

Readers may remember this bizarre story where two Canadians were fingered by the Mexican police for reasons that are unclear -- a lesson though, the police can make mistakes... .

Of course, whether the real killer will ever be caught is another matter. The victims mustn't be forgotten.


Arrest warrant issued in Ianiero killings

A Mexican judge has issued an arrest warrant for a suspect in the grisly slaying of a vacationing Canadian couple that took place in 2006.

Nancy and Domenic Ianiero were found brutally murdered, their throats slashed, in their hotel at the Barcelo Maya Beach Resort. The arrest warrant is for a security guard, Blas Delgado Fajardo, who worked there but disappeared shortly after the incident.

The warrant should put to rest any fears that two Thunder Bay, Ont., women might have had about being linked to the crime, as authorities are finally clearing them as suspects, their lawyer said Thursday.
...
The Thunder Bay women, who were also at the resort, left for Canada the day the couple were found murdered. A few days later, Mexican police linked the murders to them.

One Mexican official went so far as to call the single mothers, "professional assassins."

Mexican police did attempt to issue warrants for the women in March 2008, but that was shot down by a court.

Delgado was a bodyguard to the governor of Quintana Roo, and local papers say he was a trained commando. He has not been seen since the killings.

The Ianieros travelled to the resort for their daughter's wedding. After dinner on Feb. 19, they went to their room, where at some point over the evening they were killed by a "professional" who slit their throats in a single slice, so that they couldn't even scream for help.

My toy -- stay back!!!

Canada Life Building

It's easy to forget Canada has some wonderful buildings -- you don't need to go to Europe to see Art Deco!!!

Polling results

OTTAWA (Reuters) - The Conservatives have moved into a small lead in public opinion, a poll released on Thursday showed, as the Liberals mull whether to try to bring down the minority government this autumn.

But the Ekos poll showed the lead to be within its margin of error, with neither major party able to break out and take a clear lead.

Ekos put the Conservatives at 34.1 percent and the Liberals at 32.4 percent, with the left-leaning New Democrats at 15.2 percent and the Bloc Quebecois at 8.7 percent. A week ago, the Liberals led the Conservatives 32.2 percent to 31.8 percent and the two parties have been seesawing back and forth for weeks.

James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

I guess the flu danger hasn't passed yet ...

WHO says flu pandemic spreading too fast to count

The World Health Organization said Thursday the H1N1 flu pandemic has been the fastest-moving pandemic ever and that it is now pointless to ask countries to count every case.

Who shall govern Jerusalem

This is a nasty business and the arrest is clearly just a mugufin for the rioting.

While a third of the Jewish population of Jerusalem may be Orthodox, two thirds are not. Moreover Orthodox covers a lot of ground -- not all Orthodox are extremists -- indeed a trivial minority are violent.

Nevertheless, these riots do go to an increasing question of who shall govern -- I cannot imagine the State of Israel will back down to force.

By MATTI FRIEDMAN

JERUSALEM — Ultra-Orthodox Jews clashed with police using horses and water cannon in Jerusalem Thursday in the third day of rioting over the arrest of a mentally ill Hasidic woman who authorities say was starving her child.

The clashes are the latest sign of increasing tensions between authorities, who allege the woman starved her 3-year-old son over a period of several years, and the insular ultra-Orthodox community that often resents outside interference in its affairs. The child is currently hospitalized.
...

Tensions between authorities and ultra-Orthodox Jews, who make up a third of Jerusalem's residents, have been high in recent months since voters replaced an ultra-Orthodox mayor with a secular candidate in a November election.

In recent weeks, ultra-Orthodox Jews and authorities have clashed repeatedly over a plan by Jerusalem Mayor Nir Barkat to open a municipal parking lot on the Sabbath. Ultra-Orthodox Jews oppose the idea because driving is forbidden on the Sabbath, saying the move would violate the city's religious status quo.

In the wake of this week's disturbances, City Hall has cut off municipal services to some ultra-Orthodox areas, saying it can't guarantee the safety of its workers.

Rosenfeld said Thursday that 28 protesters were arrested overnight and one officer was lightly wounded. The protesters burned dozens of trash cans and garbage was strewn across city streets.

Police used horses and a water cannon to control the protests. On Thursday, protesters demonstrated outside the hospital where the 3-year-old is being treated. The Israeli daily Yediot Ahronot published a photograph of the emaciated child and reported that his weight was currently 15 pounds (7 kilograms).
...
The woman claims the child is sick and that she is not responsible for his condition, a position accepted by many of those protesting her arrest.

Vera rests in the sun

Stakeholders in society

By James Morton, Citizen Special​July 14, 2009​

 

When new investors tried to take over BCE Inc., a major Canadian company, some bondholders tried to stop the deal.

The bondholders said that a business has to be considered as being more than just an engine for the enrichment of its owners. They argued that a business needs to be looked at from the long term and all the stakeholders, the employees, the managers, the shareholders and perhaps even the customers, ought to be considered in deciding the business's future.

That argument was novel and would have made a significant change in Canadian law which normally looks at profit to owners as being the guide for commercial transactions. The Quebec Court of Appeal thought the argument had merit and the takeover was delayed until the Supreme Court of Canada could consider the case.

I remember thinking the bondholders' argument seemed legally unsound and was not overly surprised to see it ultimately rejected last year by the Supreme Court of Canada. But the deal itself fell apart and never closed. And perhaps that's a good metaphor for the problem facing Canada today -- the unbridled profit motive has failed us. In fact, the market, if left unguided, leads to collapse and chaos.

At the end of June Pope Benedict XVI dealt with this collapse when he wrote:

"What should be avoided is a speculative use of financial resources that yields to the temptation of seeking only short-term profit, without regard for the long-term sustainability of the enterprise, its benefit to the real economy and attention to the advancement, in suitable and appropriate ways, of further economic initiatives in countries in need of development."

And so a careful analysis of the issue, and a sensible solution, comes from what might seem to be an unexpected quarter -- the Vatican and a Papal letter.

Papal letters are seldom seen as having much "real world" application. Most people see the Pope's encyclicals as being merely religious documents. But the most recent encyclical is far more than just theology. The Pope says that legal systems and justice require a consideration of more than just selfish interest. Business decisions cannot be based solely on the profit motive. Looking at businesses and the economy as being amoral leads to calamity:

"Then, the conviction that the economy must be autonomous, that it must be shielded from 'influences' of a moral character, has led man to abuse the economic process in a thoroughly destructive way. In the long term, these convictions have led to economic, social and political systems that trample upon personal and social freedom, and are therefore unable to deliver the justice that they promise."

The key then is to see that the marketplace must be put into a context that recognizes all human aspects and potentials. Business management cannot concern itself only with the short-term interests of the owners, "but must also assume responsibility for all the other stakeholders who contribute to the life of the business: the workers, the clients, the suppliers of various elements of production, the community of reference." The BCE Inc. bondholders were right; a business is, and must be, more than just a profit-making centre.

Therein lies an answer to our current economic crisis. Businesses ought to be responsive, in the long term, to the market. The market is a tremendous mechanism for production of goods people want and will use. But such market responsiveness ought not to blind businesses to their duty to more than just the owners -- businesses have a duty to their stakeholders and to society as a whole.

The ability to use financial markets to make a quick profit at the expense of employees and society is wrong. Business decisions must be informed by more than just the ability to turn a quick profit -- they must be seen in light of the broader implications of that decision.

Investment always has moral, as well as economic, significance.

James Morton is a lawyer with Steinberg Morton Hope & Israel LLP and was counsel to a group of investors in the BCE Inc. litigation.

James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

You missed a spot

Good help is so hard to find!

Hotel reviews

The phoney reviews are pretty easy to spot -- they stand out as just waaaaay too good. Of course, then there are the grudge reviews that say dreadful things without basis. Probably the best approach is to eliminate the top and bottom 10% and go with the middle reviews only.

Associated Press     
 

BOSTON – The influential travel website TripAdvisor has been quietly posting disclaimers to warn customers about hotels writing fake reviews to improve their online popularity rankings or hurt their competitors.
...
The company, based in Newton, Mass., said it has a successful system to root out inaccurate reviews.

"The 23 million reviews and opinions are authentic and they're unbiased and they're from real users," spokesman Brooke Ferencsik said. Last month travel websites and blogs began to log and discuss the red warnings.
...

The company has policies to weed out suspicious reviews, screens reviews before they are posted, and uses automated tools to identify attempts to corrupt the system, Ferencsik said.

Users can also report reviews they find are not credible.

...
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Quebec physicians tentatively propose legal euthanasia

The College, it seems, is not proposing legalising euthanasia as much as assisted suicide. Nevertheless, this is a remarkable position for the College to take.

Giving medication to alleviate suffering that has the incidental effect of hastening death is quite different from giving medication to cause death.

Many argue there is danger that the patient will not be in a position to make a properly informed decision when ill and in pain. And the requirement that a doctor be "part of the decision" raises other significant issues.

As we saw recently in Toronto, "hopeless" cases aren't always so and sometimes expediency is gussied up as necessity.

My own thinking isn't terribly focussed but the College's suggestion troubles me:

College's task force on ethics believes province's society has evolved to the point that it would be acceptable in limited circumstances

Rhéal Séguin Quebec City — From Thursday's Globe and Mail

With great caution, the Quebec College of Physicians is prepared to cross the line on the controversial debate over euthanasia and propose that it be included "as part of the appropriate care in certain particular circumstances."

After examining the issue for three years, the College's task force on ethics concluded that Quebec society has evolved to the point where it could tolerate euthanasia in specific circumstances. The task force's recommendation will likely be part of a "reflection" document the College will release next fall, hoping that a public debate on the issue will pressure the federal government to eventually amend the criminal code.
...

It is common knowledge that physicians often have no choice but to constantly increase medication such as morphine to alleviate the pain and suffering of terminally ill patients.

Sometimes, the pain is so unbearable that the amount of painkillers or analgesics used to control it can be fatal. And this, according to the Quebec College of Physicians, can be viewed as a form of euthanasia.
...
The College says there are three conditions required in order to amend the criminal code, which currently defines euthanasia as a criminal act. The first would require that the decision be made in accordance with the patient's will. A physician alone could not decide, Dr. Robert said. The second condition would require that clear rules be established to protect society from abuses. And thirdly, the doctor has to be part of the decision-making process and not someone who simply carries out orders.

James Morton

1100-5255 Yonge Street

Toronto, Ontario

M2N 6P4



416 225 2777

Tiny Paws

Tiny Paws Dog Rescue Canada (TPDRC) is a charitable organisation, comprised of volunteers who rehabilitate and re-home abused, stray or surrendered dogs of any breed up to 20lbs.



Tiny Paws volunteers work with shelters, pounds, other rescues, and private individuals to save dogs who might otherwise be euthanized and to place those dogs into the homes of volunteer foster families pending adoption. While in the care of Tiny Paws, dogs receive standard veterinary care and other needed medical treatment such as spay/neuter, dental care, vaccines.



Quite often dogs will come to Tiny Paws that have been abandoned or as strays that have been abused or hit by cars. Tiny Paws will look after emergency vetting and surgeries. The volunteer members of Tiny Paws also work on training issues with the end goal of finding these dogs carefully screened forever homes. We also stress the importance of educating the public about the necessity to spay/neuter, the deplorable conditions of puppy mill and pet store dogs and the need to adequately care for and train the family pet.



Recently Tiny Paws ran into exceptionally high emergency vetting bills saving two little dogs, Didi, a 3 year old Chi mix and Rose, a 6 month old Pom mix, both needing extensive surgeries for horribly broken legs. Both will be carefully monitored while they make lengthy recoveries and then the work begins to find them a forever home.



Tiny Paws would be most grateful for donations of any amount to help with these surgical costs and the required aftercare. You can make a donation online through PayPal on the Tiny Paws Website



http://www.tpdr.ca/donations.html



and a tax receipt will automatically be generated for donations over $10. While you are on the website http://www.tpdr.ca/ check out the available dogs for adoption.



Don't shop – adopt!

Thornhill Federal Liberal Riding

There is ongoing preparation for the upcoming election. A significant youth group has now been established under President Jonathan Spiegel.

The Lights

Eda Lou Walton

The Sun is a luminous shield
Borne up the blue path
By a god;
The moon is the torch
Of an old man
Who stumbles over the stars.

Conditional sentences

There were no new Court of Appeal decisions today.

But here's an Alberta case that may be of interest. It suggests a conditional sentence is inappropriate where the convict is unemployed and stays at home:

R v Harlos, [2005] A.J. No. 541‪69

In this case, a CSO is an inappropriate sentence. Although not determinative, one of the apparent weaknesses in the CSO regime, with respect to this offender's circumstances, is that a term of house arrest, with or without other optional conditions, would only maintain his status quo. He is a self admitted homebody, with or without his computer. He spends the majority of his day, if not all day, in his residence.

See also R v Haskell, [2004] A.J. No. 1110 (QB):‪

21 I agree that the accused is eligible for a conditional sentence. However obviously not every offender who is eligible for a conditional sentence should receive one......

36 In this regard, granting a conditional sentence to Mr. Haskell presents some challenges given that unlike young offenders, a conditional sentence will not really change the circumstances of the offender here significantly or at all. Mr. Haskell does not work, he is not going to school, and he has no dependents. Other than personal comfort and relative freedom, granting Mr. Haskell a conditional sentence is not for example going to contribute to his rehabilitation or enhance his ability to contribution to society.‬

Curious factoid

If you yelled for 8 years, 7 months and 6 days you would have produced enough sound energy to heat one cup of coffee. (Hardly seems worth it.)
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Smiling Flocke

We're not out of the woods yet

And much though I like bears, I'd prefer to be out of the woods...


OTTAWA — Canadian manufacturing sales drop six per cent to $38.4 billion in May, the lowest level in more than 10 years, Statistics Canada said Wednesday.

“Manufacturing sales had levelled off between February and April, after falling by 18.7 per cent between October 2008 and January 2009,” the federal agency said.

“Plant shutdowns in the motor vehicle and primary metal industries, along with continued volatility in the aerospace industry, accounted for most of the decline in May.”

The May sales number was the lowest since November 1998.

Canada and the USA

Canada is not the United States.



That's obvious but easy to overlook, especially when considering politics. For us in English speaking Canada it is almost natural to see the US political divide as mirrored here with the Conservatives as Republican and the Liberals as Democrats.



Tonight I heard a relatively sane radio host say, not as an proposition, but just as an explanatory fact, that the Liberals were Democrats in Canada.



But, of course, this is a false analysis. The Conservatives are not the Republicans and Liberals are not democrats. In fact, both of Canada's major parties would be seen as to the left and the right in US terms.



Thus, despite some side comments by backbenchers the Conservative government has been clear they will not touch abortion. That's not very Republican. And Liberal fiscal policy is far more restrained than Democrats like -- in fact it's being considered as a model by the UK Conservative Party. Both parties are communitarian in a way unknown in America.



My point is to remember we are not just political subsidiaries of US giants.



PS don't get me started on Republicans for Ignatieff...

Corinna diving

Spousal support

Many Court of Appeals decisions on family law are so fact driven as to be unhelpful to anyone beyond the parties.

Today's decision in Rioux v. Rioux, 2009 ONCA 569 is not like that.

The Court restates the law relating to spousal support in a helpful fashion:

[36]          The principles and approach for determining spousal support are well-established in the case law:  see Bracklow v. Bracklow (1999), 169 D.L.R. (4th) 577 (S.C.C.), and Hickey v. Hickey (1999), 172 D.L.R. (4th) 577 (S.C.C.).  Spousal support is not merely a consideration of needs and means.  In determining the appropriate quantum of support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the adverse consequences of the marriage breakdown.

[37]          To determine the amount of support, the court should take into account the objectives of spousal support orders, as set out in section 15.2(6) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.).  These objectives are to:

a)        recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

b)       apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c)       relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

d)       in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Polling resulting regarding minority government

A new poll shows a spike in the number of Canadians who are pining for the days of federal majorities, and who might vote strategically in order to avoid the fourth straight minority in the next election.



The Canadian Press Harris-Decima survey showed 64 per cent of respondents prefer a majority over a minority government, up from 52 per cent two years ago.



Only 24 per cent said they preferred a minority, as compared to 36 per cent in 2007.



The pollsters gave respondents four different scenarios to ponder: A Liberal majority or minority, or a Conservative majority or minority.



The Liberals came out on top in both respects — with 30 per cent preferring a Liberal majority, and 14 per cent a Liberal minority, as compared to the 24 per cent who backed a Conservative majority and 9 per cent who wanted a Conservative minority.



Jeff Walker, senior vice-president at Harris-Decima said the results are an indication that the Liberals are the second choice for a majority of Canadian voters, and that could be a significant factor in the next election.



"There has the potential to be more strategic voting in this next election than maybe we've seen in the last couple of elections, with more pressure for there to be a majority government and more of a sense that maybe the minority concept doesn't quite work as well as people had hoped," Mr. Walker said.

Police error?

Michael Dambrot is a well respected and senior Superior Court judge. He was a prosecutor for many years before becoming a judge and he is not someone to speak loosely or without care. He is a man worth listening to. For Justice Dambrot to suggest the police erred says, "yes, they really did".

A Superior Court judge has criticized Toronto police for an "ill-conceived" decision not to arrest a purported gang leader who allegedly went on four days later to shoot two teenagers in broad daylight.

Investigators had decided on April 15, 2004, to intercept Tyshan Riley's phone calls rather than arrest him, even though he had been implicated in several shootings by confidential informants and a friend and was seen to be breaching bail conditions from an unrelated charge.

Riley, said to be the leader of the Galloway Boys, was eventually arrested on April 19, 2004, about 90 minutes after allegedly shooting the teenagers at a townhouse complex in the Malvern area of Scarborough. The young men, who were not gang members, were each hit multiple times but survived.

One of the intercepted communications "apparently captured Riley describing the shooting ... as it happened," Superior Court Justice Michael Dambrot wrote in a ruling last October.

Earlier police wiretaps of phones belonging to members of Riley's hated rivals, the Malvern Crew, had been buzzing with talk of his incursions into the neighbourhood. The wires picked up one unidentified man telling Malvern leader David Francis on March 31, 2004, that Riley had brandished his pistol "in my face" at the Malvern Mall.

So in mid-April, Toronto police took the rare but legal step of intercepting Riley's phone calls without first obtaining a judge's permission. While investigators wanted to prevent Riley from shooting someone, they felt they could build a better case against him if they tapped his lines and kept him under surveillance.

Unfortunately, it didn't work out that way.

In fact, the judge at the trial where Riley stands accused of murder has described that police decision as "ill-conceived."

Arresting Riley, "a man with a serious record for violence ... would have succeeded in preventing him from shooting anyone else," Dambrot concluded last summer in a ruling that up until now has been covered by a publication ban.

At the time, Toronto-born Riley was the main suspect in a drive-by shooting six weeks earlier. Brenton "Junior" Charlton, 31, who worked at SkyDome, died in the attack at Finch Ave. E. and Neilson Rd. Leonard Bell, a renovator who is now 48, survived and testified before a jury that began its deliberations yesterday following an eight-week trial.

The Crown alleges Riley and his accomplices had mistaken Charlton and Bell for gang rivals who lived in northeast Scarborough.
...
The jury is deciding whether they are guilty of first-degree murder, attempted murder and committing both for the benefit of a criminal organization.

...
Before the trial, Dambrot ruled the Riley wiretaps inadmissible because police had not shown they intercepted the phone calls "to prevent serious harm to persons" as called for in the Criminal Code.

"... It was far more likely that an arrest would have taken Riley off the street for a considerable period of time and so would have been more effective than intercepting his communications in preventing serious harm," Dambrot wrote.

There was a "perfect opportunity" to arrest Riley "easily and safely" when he appeared at the Oshawa courthouse on April 14, Dambrot noted. He had been seen by police surveillance teams regularly to breach a curfew and travel restrictions under bail conditions from a previous charge.

James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

New video of Flocke

http://blog.br-online.de/eisbaer/

King Lear in the Ontario Court of Justice

For the last few days I have had the dubious honour of spending most mornings at the College Park criminal courts. The courts are filled with the poor, the deranged, the frightened and yes, sometimes, the vicious and wicked.

I noticed, every day, a distinguished looking older man dressed neatly but in old clothes. He had a long beard but was not unkempt. He stared ahead without affect; he reminded me of an old fashioned performer doing Lear.

So far as I could see he was there without any legal requirement. He spent the day, every day, quietly sitting in the public area.

Why was he there? A lost soul? Who's to say -- there are plenty of them here.

Czech visas -- not as trivial as first seems

The re imposition of visas for Czech visitors is more than the trifle it might appear to be.

Why is the requirement being made? (And remember, as a tit for tat Canadians may need visas to go to the EU soon).

Because Canada is getting Roma refugee claims and a way to limit them is to require a visa.

This means one of two things.

Either there is an intention to exclude legitimate refugee claimants or our refugee system is so dysfunctional that it can't separate legitimate claimants from posers.

And that's a real issue.

My sense is the concern is more that the system is dysfunctional rather than an intention to exclude legitimate refugees. But either way there's a significant problem and one that Parliament ought to review.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Lawyer Gets 20 Years in $400 Million Fraud

Readers may recall that Marc Dreier was in Toronto last year and was caught impersonating someone else. Toronto was the start of the end... .

Lawyer Gets 20 Years in $400 Million Fraud

By THE ASSOCIATED PRESS

NEW YORK (AP) -- A once-prominent Manhattan attorney was sentenced Monday to 20 years in prison for a hatching a massive fraud in a desperate attempt to keep his law firm afloat and bankroll a lavish lifestyle.

Marc Dreier, 59, had pleaded guilty to a $400 million scheme that, though dwarfed by Bernard Madoff's multibillion dollar swindle, was so outlandish prosecutors labeled him "the Houdini of impersonation and false documents."

"I'm sorry -- deeply sorry -- for the harm and sadness I've caused to so many people," Dreier said before hearing the sentence. He was later led out of court in handcuffs.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Home invasions

R v Wright, [2006] O.J. No. 4870  (C.A.) is a useful source for sentencing for home invasions: ‪

23     The cases to which we have been referred, and which my own research has uncovered, reflect a gamut of sentencing dispositions in "home invasion" cases from as low as four or five years,7 to as high as eleven to thirteen years8 - with the suggestion that even higher sentences may be reserved for situations involving kidnapping, the infliction of serious injuries, sexual assault or death.9 Whether a "range" of that elasticity is of much assistance to trial judges in their efforts to preserve sentencing parity for similar offences involving similar offenders - apart from signalling that a significant penitentiary jail term is generally called for - is not clear to me. The downside of attempting to articulate a range for a type of crime that can manifest itself in such a wide variety of ways, and be committed by such a wide variety of individuals, is that the "range" becomes so broad, it is virtually meaningless. Nonetheless, to the extent there can be said to be a range in home invasion cases, it would appear that the one that currently exists is the expansive one outlined above.

24     In my view, however, "home invasion" cases call for a particularly nuanced approach to sentencing. They require a careful examination of the circumstances of the particular case in question, of the nature and severity of the criminal acts perpetrated in the course of the home invasion, and of the situation of the individual offender. Whether a case falls within the existing guidelines or range - or, indeed, whether it may be one of those exceptional cases that falls outside the range and results in a moving of the yardsticks - will depend upon the results of such an examination. I agree with the British Columbia Court of Appeal in A.J.C. (at para. 29), however, that in cases of this nature the objectives of protection of the public, general deterrence and denunciation should be given priority, although of course the prospects of the offender's rehabilitation and the other factors pertaining to sentencing must also be considered. Certainly, a stiff penitentiary sentence is generally called for.... 

7 See R. v. Wang (2001), 153 C.C.C. (3d) 321 (Ont. C.A.); R. v. Ferreira,  [1997] O.J. No. 799 (C.A.); R. v. Barnes 2006 CarswellOnt 4043 (S.C.J.). 

8 See R. v. Nelson (2001), 147 O.A.C. 358; R. v. Harriott (2002), 161 C.C.C. (3d) 481 (Ont. C.A.), affirmed [2003] 1 S.C.R. 39; R. v. A.J.C. (2004), 186 C.C.C. (3d) 227 (B.C.C.A.); R. v. D.W., [2004] O.J. No. 5825 (S.C.J.). 

9 R. v. A.J.C., supra, at paras. 42 and 46.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Meow

House cats know what they want and how to get it from you

Anyone who has ever had cats knows how difficult it can be to get them to do anything they don't already want to do. But it seems that the house cats themselves have had distinctly less trouble getting humans to do their bidding, according to a report published in the July 14th issue of Current Biology, a Cell Press publication.

The rather crafty felines motivate people to fill their food dishes by sending something of a mixed signal: an urgent cry or meowing sound embedded within an otherwise pleasant purr. The result is a call that humans generally find annoyingly difficult to ignore.

"The embedding of a cry within a call that we normally associate with contentment is quite a subtle means of eliciting a response," said Karen McComb of the University of Sussex. "Solicitation purring is probably more acceptable to humans than overt meowing, which is likely to get cats ejected from the bedroom." She suggests that this form of cat communication sends a subliminal sort of message, tapping into an inherent sensitivity that humans and other mammals have to cues relevant in the context of nurturing their offspring.

McComb said that she was inspired by her own cat, who consistently wakes her up in the mornings with a very insistent purr. She learned in talking with other cat owners that some of their cats too had mastered the same manipulative trick. As a scientist who already studied vocal communication in mammals, from elephants to lions, she decided to get to the bottom of it.

It turned out that wasn't so easy to do. The cats were perfectly willing to use their coercive cries in private, but when strangers came around they tended to clam right up. Her team therefore had to train cat owners to record their own cats' cries.

In a series of playback experiments with those calls, they found that humans judged the purrs recorded while cats were actively seeking food as more urgent and less pleasant than those made in other contexts, even if they had never had a cat themselves.

"We found that the crucial factor determining the urgency and pleasantness ratings that purrs received was an unusual high-frequency element—reminiscent of a cry or meow—embedded within the naturally low-pitched purr," McComb said. "Human participants in our experiments judged purrs with high levels of this element to be particularly urgent and unpleasant." When the team re-synthesised the recorded purrs to remove the embedded cry, leaving all else unchanged, the urgency ratings for those calls decreased significantly.

McComb said she thinks this cry occurs at a low level in cats' normal purring, "but we think that cats learn to dramatically exaggerate it when it proves effective in generating a response from humans." In fact, not all cats use this form of purring at all, she said, noting that it seems to most often develop in cats that have a one-on-one relationship with their owners rather than those living in large households, where their purrs might get overlooked by poorly trained people.

In those instances, she said, cats seem to find it more effective to stick to the standard meow.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777