Do not weep; do not wax indignant. Understand.


Baruch Spinoza (1632 - 1677)

Not polar bears or politics but interesting

Earliest use of "new found land" -- Canadian history is interesting but often overlooked (even here) in favour of the history of other nations. (Picture of Hen ry VII right)

Newly discovered letter reveals 1499 expedition to Canada


By Randy Boswell

British historians have unearthed a letter written 510 years ago by King Henry VII that sheds startling new light on Canadian history.

The letter reveals a previously unknown English expedition to this country in 1499 and appears to add the name of William Weston, an obscure shipping merchant from the west England port of Bristol, to the pantheon of early New World explorers.

The regal dispatch, believed to have been written the year after Anglo-Italian navigator John Cabot perished on his second voyage of discovery to Canada, indicates that Weston was set to embark on his own transatlantic journey to "serche and fynde" the same distant territory.
Specifically, the king names Weston's destination as "the new founde land" reached by Cabot in June 1497: the first European landfall in North America since the age of the Vikings.

That makes Henry's letter, believed to have been written on March 12, 1499, the earliest known use of the phrase that would eventually be used to designate Canada's easternmost province.
Until now, the first mention of "new found land" in connection with Canada's Atlantic shore was from a 1502 entry in Henry VII's royal daybook.

Costs against counsel personally

Yesterday’s Court of Appeal in Giglio v. Peters, 2009 ONCA 681 deals with a curious issue – is a claim for costs against counsel personally in a proceeding covered by the Limitations Act two year limitation period or is the limitation period irrelevant?  The Court ruled the limitation period is irrelevant if the motion is part of an action commenced within the limitation period:

[13]         Section 4 of Ontario’s Limitations Act, 2002 provides:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[14]         Peters “discovered” the basis for the costs order he seeks against Battiston in late 2001 and early 2002 when Giglio and Tenaglia changed their evidence.  He did not bring his motion until 2008.  Therefore, if his motion is subject to s. 4, it is well beyond the two-year prescription period and would be statute-barred.

[15]         The resolution of this issue turns on whether Peters’ motion is a “proceeding … in respect of a claim”.  Thus, we must decide whether Peters’ motion is a “proceeding” and if it is, whether it is in respect of a “claim”.  For the reasons set out below, I have concluded that Peters’ motion is not a “proceeding”.  That conclusion is supported by recent case law from our court, and by the context and legislative purpose of the statute.  It is therefore not necessary to decide whether Peters’ motion is in respect of a “claim”.

[16]         The word “proceeding” is not defined in the Limitations Act, 2002.  Battiston submits that it should be given a very broad meaning, which would encompass Peters’ motion, in order to achieve the overriding purpose of the statute: to prevent stale claims from going forward.  Battiston notes that he was not a party to the litigation and ceased to have any role in it after 2002.  Yet six years later, Peters seeks a costs order against him. 

[17]         In support of his submission, Battiston relies on the definition of “proceeding” in Black’s Law Dictionary, and on cases in the Superior Court such as Imoney Corp. v. Quebecor Communications Inc., [2002] O.T.C. 486 (S.C.), aff’d [2002] O.S. No. 4447 (C.A.) defining “proceeding” in other contexts.  Black’s Law Dictionary, 9th ed., defines “proceeding” as “an act or step that is part of a larger action”.  On its face, this definition is broad enough to include a motion in an action.

[18]         In the Imoney case the defendant brought a motion under s. 106 of the Courts of Justice Act, R.S.O. 1990 c. C.43 to stay the plaintiff’s summary judgment motion.  Section 106 gives the court discretion to “stay any proceeding”.  Although she declined to grant the stay, Hoy J. held that she had jurisdiction to do so.  Relying on the definition in Black’s Law Dictionary she held that a motion for summary judgment is a “proceeding” under s. 106. 

[19]         The meaning of “proceeding” in s. 4 of the Limitations Act, 2002 is a question of statutory interpretation.  As with any question of statutory interpretation, context and legislative purpose are paramount considerations.  In the well-known and often quoted words of the late Professor John Willis, “words, like people, take their colour from their surroundings” (“Statute Interpretation in a Nutshell” (1938), 16 Can. Bar. Rev. 1 at 6).  Neither a dictionary meaning of a word nor the meaning of that word in a different statutory context is determinative.

[20]         Here the word “proceeding” appears in a statute that, as Battiston points out, seeks to bar stale claims.  However, in the context of a prescriptive statute, the legislation seeks to bar the commencement of stale litigation, not steps within litigation that has been commenced within the statutory time period. 

[21]         In the light of this context and the statute’s purpose, and in the absence of any definition of “proceeding” in the statute itself, successive panels of this court have turned to the definition of “proceeding” in the Rules of Civil Procedure.  Both Feldman J.A. in Meady v. Greyhound Canada Transportation Corp. (2008), 90 O.R. (3d) 774 (C.A.), and later Simmons J.A. in Placzek v. Green (2009), 245 O.A.C. 220 (C.A.), have held that the word “proceeding” in s. 4 of the Limitations Act, 2002 has the same meaning as “proceeding” in r. 1.03 of the Rules of Civil Procedure.

[22]         “Proceeding” under r. 1.03 refers to the commencement of litigation either by action or application; it does not refer to a motion within an action.  Thus, under r. 1.03(1):

·                    “Proceeding” means an action or application;

·                    “Action” means a proceeding that is not an application and includes a proceeding commenced by statement of claim, notice of action, counterclaim, cross-claim, or third or subsequent party claim; and

·                    “Application” means a proceeding commenced by notice of application. 

[23]         Under these definitions, a motion within an action is not a “proceeding”.  Indeed, “motion” is defined in r. 1.03(1) to mean “a motion in a proceeding or an intended proceeding”.  Peters’ motion under r. 57.07 is an unusual kind of motion because it is brought against a non-party.  Yet our rules provide for just such a motion.  But it remains a motion, and, moreover, a motion in the existing action between Peters and Giglio and other parties.  It is not a “proceeding” under s. 4 of the Limitations Act, 2002.

 

Iran's side of the story

Well, the government of Iran's side of the story - does anyone have a link to what Iran did report? The media suggests it was not a true report but I'd like to know the facts (yes, we all spin but this is important enough to get the truth):

http://english.aljazeera.net/news/asia/2009/09/200992653918859243.html

Iran's president has denied his government violated International Atomic Energy Agency rules after disclosing the existence of a new nuclear-enrichment facility to the UN watchdog.

Speaking in Tehran on Saturday, Mahmoud Ahmadinejad said his country had in fact informed the IAEA a full year in advance of the deadline set by the Non-Proliferation Treaty (NPT).

"If you want to build the building, you can do that. If you want to lay the pipes, you can do that. Six months before you start processing itself ... then you need to inform the IAEA so it is prepared to begin its inspection programme," Ahmadinejad said.

"Now is this the right thing or the wrong thing to do?" he asked. "It is not a secret facility. If it was, why did we inform the IAEA a year ahead of time?"

Last fruit of summer

It's Monty Python's Flying Circus!!!

Here's a story from the Miami Herald that sounds like something from a Britcom -- Hondura's former leader says `Israeli mercenaries' are subjecting him to mind-altering gas and radiation.

It reminds me of the claim that secret Israeli agents had snuck into Peru with plans to undermine the government.

The story is just deranged -- but it seems to have legs and the people of Honduras have to put up with military roadblocks, curfews and violence. You'd think the parties could find enough to fight over without bringing Zionism into a distant part of the Western Hemisphere.

They're torturing me, Honduras' Manuel Zelaya claims

BY FRANCES ROBLES

frobles@MiamiHerald.com

TEGUCIGALPA -- It's been 89 days since Manuel Zelaya was booted from power. He's sleeping on chairs, and he claims his throat is sore from toxic gases and "Israeli mercenaries'' are torturing him with high-frequency radiation.



"We are being threatened with death,'' he said in an interview with The Miami Herald, adding that mercenaries were likely to storm the embassy where he has been holed up since Monday and assassinate him.

...
Zelaya was deposed at gunpoint on June 28 and slipped back into his country on Monday, just two days before he was scheduled to speak before the United Nations. He sought refuge at the Brazilian Embassy, where Zelaya said he is being subjected to toxic gases and radiation that alter his physical and mental state.
...
Honduran police spokesman Orlin Cerrato said he knew nothing of any radiation devices being used against the former president.

"He says there are mercenaries against him? Using some kind of apparatus?'' Cerrato said. ``No, no, no, no. Sincerely: no. The only elements surrounding that embassy are police and military, and they have no such apparatus.''
...
Israeli government sources in Miami said they could not confirm the presence of any "Israelis mercenaries'' in Honduras.
...
Zelaya told The Herald that Washington should be taking a stronger stance against the elite economic interests that "financed and benefited'' from the coup that ousted him three months ago.

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

416 225 2777

Objection overruled -- I'm sleeping with the prosecutor

Thomas Hood is on death row in Texas. He was convicted in 1990 of a double homicide.

I disapprove of and disagree with the death penalty but recognise if you have it, a double murder is a sensible place for its use.

But what has emerged now is the judge and prosecutor were having a secret affair during the trial.

The Texas Court of Criminal Appeals though (6 to 3) didn't see that as a conflict serious enough to allow the case to be reopened -- Mr Hood should have raised the (secret) affair more quickly and since he didn't, because he couldn't, he's out of luck.

Call me a bleeding heart, but I think if the judge and prosecutor are "in love" (as they said they were here) and sleeping together then there is a serious problem.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Time for George!!!

Note the announcement came the day after the disclosure the banked sick day costs were grossly understated. I wonder who will dive in?

I won't run again, Miller says

Vanessa Lu City Hall Bureau Chief

Citing the importance of family life and his record of accomplishments in office, David Miller said this morning that he will not seek re-election as Toronto's mayor next year.

Grant applied

From R. v. Connor, 2009 CanLII 48830 (ON S.C.), parargraph 81, just released:

Justice Molloy:

"Accordingly, it seems to me that an application of the Grant test, as further expanded on in Suberu, leads to the conclusion that there was no detention of Mr. Connor in this case up to the point of his arrest. Still, it seems strange to find no detention in circumstances where both the police and Mr. Connor believed that his liberty was restricted."

The case here:

http://canlii.com/en/on/onsc/doc/2009/2009canlii48830/2009canlii48830.html

Cell Phone Numbers Go Public next month.

JUST A REMINDER: All cell phone numbers are being released to telemarketing companies and you will start to receive sales calls.

YOU WILL BE CHARGED FOR THESE CALLS

Use the "Do Not Call List Canada" web site and register your phone there

This is the web address

https://www.lnnte-dncl.gc.ca/insnum-regnum-eng

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

416 225 2777

San Diego Panda Cub: 4th Exam

http://bing.search.sympatico.ca/?q=san%20diego%20zoo&mkt=en-ca&setLang=en-CA

Super prisons

Here's the problem -- prisons are difficult and dangerous places. Making them bigger doesn't make them better.

Prisons hold dangerous people many of whom are mentally unstable. The American experience has been pretty clear that "super prisons" don't succeed in rehabilitating convicts. They tend to make them worse. That's because they aggregate the worst of the worst and allow them to (functionally) take control.

We need prisons that will separate convicts and, if possible, rehabilitate them. If they can't be rehabilitated they must at least be taken out of society. That means smaller prisons with greater controls -- not larger with less.

Tory plans for U.S.-style prisons slammed in report

The Conservative government plans to bring in an American-style prison system that will cost billions of taxpayer dollars and do little to improve public safety, according to a report to be released Thursday in Ottawa.

The 235-page report, A Flawed Compass, is a scathing review of the government's plan, which it calls "immoral, unethical and illegal."

University of British Columbia law professor Michael Jackson and Graham Stewart, who recently retired after decades as head of the John Howard Society of Canada, prepared the report.

A panel led by Rob Sampson, a former corrections minister in Ontario's Mike Harris government, drafted the government plan, which is being implemented by the Correctional Service.
...
By stressing punishment rather than rehabilitation, the plan ignores lessons of the past, which led to the prison riots and killings that dominated Canadian news in the early 1970s, said Jackson.

"My greatest fear is with this road map's agenda and its underlying philosophy, we will enter a new period of turmoil and violence in Canadian prisons," he said.

"I do fear that prisons will become more abusive, prisoners will become more frustrated and that we could go back to a time not only when the rule of law was absent but a culture of violence is the dominant way in which prisoners express their frustrations."

The plan attempts to emulate the American "get tough" system, which incarcerated hundreds of thousands of people and has left some states on the verge of bankruptcy, said Stewart.

He called the plan "an ideological rant. All their recommendations are just that they believe in something.… There's no evidence for anything they recommend, there's no research, no background."

The federal road map flies in the face of the Correctional Service's own research of what works to rehabilitate prisoners and ensure community safety, said Stewart.

"The fact is that you cannot hurt a person and make them into a good citizen at the same time."
...
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Friends

The ambiguous President of Iran

In his speech to the United Nations Ahmadinejad spoke of a minority that had disproportionate power which acted to enslave the world.

No one was in any doubt as to who that minority was.

He said:

"It is no longer acceptable that a small minority would dominate the politics, economy and culture of major parts of the world by its complicated networks, and establish a new form of slavery, and harm the reputation of other nations, even European nations and the U.S., to attain its racist ambitions".

But still, he didn't name the minority.

Why?

Perhaps because he wanted to have deniability? Perhaps the minority isn't the obvious but rather, say, Freemasons?

More likely it's because Ahmadinejad knows express flat out Jew hatred isn't acceptable even in the United Nations.

Of course, if you're killed as a Jew or as a Zionist you're just as dead.

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

416 225 2777

Prisoners' rights -- from the New York Times

 http://www.nytimes.com/2009/09/24/opinion/24thu4.html?_r=1&th&emc=th 

In 1996, Congress passed a law that made it much harder for inmates to challenge abusive treatment. It has contributed significantly to the bad conditions — including the desperate overcrowding — that prevail today. The law must be fixed
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Someone sees the difference

From Eye Weekly



September 23, 2009







Edward Keenan is right to say the American debate over healthcare deals with a major issue worthy of vigorous debate ("The politics of pretext," Notebook, Sept. 17). But he's wrong to say Canada's politics don't matter. There is a huge difference between the Liberals and Conservatives and their policies. Just on the criminal justice front — an area I know well as a practising lawyer — the Conservative "tough on crime" policies present a very different future for Canadians than those of the Liberals.



Yes, there is a jockeying for position (and the odd spectre of a Conservative/NDP/Bloc alliance) but, beneath that, there are material differences that matter.

Evuidence at Osgoode Professional Development

Something uncontentious

Too many dramatic things today -- here's something that is just beautiful to look at -- a grizzly cub:

Getting off the record for non-payment during trial

Today's Court of Appeal decision in R. v. Okafor, 2009 ONCA 672 is an important practice case - it suggests that non-payment of fees is not grounds to be removed as counsel of record during trial. The decision is hardly surprising but it does clarify the law:

[7] The appellant's primary complaint on appeal is that the application judge should not have ordered Mr. Roach's removal from the record. In doing so, he violated the appellant's right to be represented by counsel and compromised the fairness of the trial. We agree with that submission.

[8] In our respectful view, the application judge erred in ordering Mr. Roach's removal from the record, part way through the trial, for what effectively amounted to non-payment of legal fees. Unlike the situation in R. v. Downey, [2002] O.J. No. 1524, this case did not involve a fundamental disagreement between the appellant and Mr. Roach; nor was it one involving a serious break down in communications or an ethical dilemma that prevented Mr. Roach from continuing to act. On the contrary, the record shows that while the appellant and Mr. Roach may have had some disagreements as to the manner in which the case should be defended, Mr. Roach was willing to stay on as counsel so long as he was remunerated for his services.

[9] In short, leaving aside minor disagreements as to how the case should be defended, Mr. Roach's concern was financial. To the extent that the application judge found otherwise, in our respectful view, he erred. The record simply does not support a finding of fundamental disagreement, communication break down or ethical dilemma.

[10] In the circumstances, where Mr. Roach had committed to the appellant's defence and represented him for a considerable portion of the trial, it was wrong for the application judge to order Mr. Roach's removal from the record for non-payment of legal fees. See R. v. Brundia, [2007] O.J. No. 4051 (Ont. C.A.) and R. v. Clement, [2002] 166 C.C.C. (3d) 219 (Ont. C.A.). Any disagreement about fees between Mr. Roach and the appellant should have been for the two of them to sort out, either amicably or by means of the civil process.

[11] In short, it was far too late in the process to let Mr. Roach off the record, at least without ensuring that the appellant had other counsel who could properly represent him. Any suggestion that Mr. Roach may have been duped by the appellant rings hollow. Mr. Roach had acted for the appellant in the past and this was not the first time he experienced difficulty collecting his fees. He also knew, or should have known, the strategy the appellant wished to pursue and either refused the brief or protected his fees.

Can you smell the silk roses?

Mirror

Cross examinations we can only dream of

Oh my, Christmas in July (or September):

LAKELAND, Fla. - It's game over for some police officers who played video games while they raided a convicted drug dealer's    home in central Florida.

Surveillance video obtained by WFLA in Tampa caught the officers playing a Nintendo Wii bowling game, with one furiously jumping up and down in celebration. ...

Officers with the anti-drug task force had just stormed into the home of the convicted drug dealer, who was already in custody. One Polk County sheriff's detective can be seen taking several breaks from cataloguing evidence so she can bowl frames.

The officers did not know a video camera had been set up in the house before the March raid.

YES, YOUR HONOUR, CONTINUITY WILL BE AN ISSUE.

Thanks to Sean Ellacott B.A. LL.B for this!!!
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Bear with staff ...

From Warren Kinsella's blog

http://www.warrenkinsella.com/index.php?entry=entry090922-192427

Case study one: Montreal cab driver fined hundreds because he displays small religious symbols in his cab. Common-sense solution: don't get in his cab, if it offends you. Or, leave him alone.

Case study two: Toronto Star columnist writes on Twitter: "MP Irwin Cotler's children join IDF. Which country are you loyal to, sir?" Common-sense solution: don't use canards as old as the Protocols, even on Twitter. Or, leave the foreign affairs journalism to those without an axe to grind.

Skill-testing question on the case studies: what is the issue that is common to both case studies?

Yep. The struggle goes on.

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

416 225 2777

Iranian UN address

KUDOS to the Federal Government for their UN walk out at the Iranian President's address. Support for the oppressed people of Iran and disgust at State sponsored anti-Semitism is not a political wedge issue.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Karen Mock Campaign News

Friends,

What a roller coaster ride we have had!

An election yes, an election no -- who knows?

But for sure we will have an election soon and we have in place a really splendid candidate, Karen Mock, who can bring Thornhill back to the Liberal camp.

And so we are in process of launching the pre writ campaign and we need your help in many areas:

Phone Calling

Volunteers

Community Events

Anything else you can think of

And of course, we need your help financing the election to come. Join Victory Fund or just make a donation. You can do it online at www.liberal.ca but make sure to note your contribution is to the Thornhill Federal Riding Association.

The election may be anytime so please help.

If you are able to get involved in any of the above, and in particular to go to the Thornhill Festival this Saturday between 11 a.m. and 4:30 p.m., please send an email to Karen@karenmock.ca or leave a message at the new Campaign Number 905-597-7564 

Our new website is under construction, but feel free to have a peek at www.karenmock.ca

Yours Liberally


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

416 225 2777

Fresh evidence

Today’s decision in R. v. Johnson, 2009 ONCA 668, relying on R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775, sets out the test for adducing fresh evidence, namely that:

 

 

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

 

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

 

(3) The evidence must be credible in the sense that it is reasonably capable of belief. [And]

 

(4) [The evidence] must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [Citations omitted.]

 

[30]         Here, because of its equivocal nature, the proposed evidence could not reasonably be expected to have affected the result, in our view.  Moreover, although due diligence is less of a factor for consideration in criminal cases, the type of fresh evidence proposed could very easily have been – and should have been – tendered at trial had it been felt to be germane at the time.

 

Blatchford in the Globe

Today Christie Blatchford complains the arguments in the Court of Appeal in the Dooley murder are too dry. The arguments remove the emotion from the case and even suggest the trial judge erred in showing sympathy for the deceased child.

In a way she has a point -- the case is about a dead child who suffered mightily in his short life. But that's really beside the point. The Court of Appeal isn't there to provide a cathartic release -- it's there to clarify points of law.

I would be surprised if the appeal is allowed. My sense is the case was, within the boundaries of trial practice, fair. That said, whatever the Court of Appeal decides should be decided as a matter of law and not emotion.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Koda

“Sometimes preserving a constitutional right is less important that preserving someone's life."

An interesting story:

http://m.theglobeandmail.com/news/national/british-columbia/its-our-duty-to-protect-the-homeless/article1296414/?service=mobile&page=0#article


It's our duty to protect the homeless

Sometimes ensuring citizens are safe means leaving aside their constitutional freedoms

Gary Mason
From Tuesday's Globe and Mail—

Should the homeless be allowed to risk their lives by sleeping outside in winter?

That is the moral question at the heart of legislation being drafted by the B.C. government that would give authorities the power to move homeless people into shelters during periods of extreme weather – whether they want to or not.

On the surface, there wouldn't seem to be much to debate. A just and civilized society wants its citizens protected. And occasionally, ensuring that happens means overriding their constitutional rights and freedoms in order to protect them from themselves.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Proposed B.C. homeless law has critics worried

Now, if we ignore politics for a moment, why is it so terrible that homeless (and often mentally unstable) people can be brought into a safe warm place (yes, by force if need be) in extreme weather? I supose it's one of those "whose life is it anyway" questions but still; I can see some merit in the plan; a bit like mandatory drug treatment for addicts... .


Proposed B.C. homeless law has critics worried

A proposed law that would give the B.C. government the power to force people into homeless shelters has civil liberty activists crying foul.

According to government documents leaked to the BC Civil Liberties Association, the proposed legislation would allow authorities to make a declaration of extreme weather, which would then allow police to force a homeless person into a shelter.

…

One of the memos says that after a local declaration of extreme weather is made, notices would be given to a homeless person and a police officer would encourage those on the street to seek shelter.

If the homeless person refuses, the officer would be able to "use force."

"As a last resort, the individual may be taken to police cells, either voluntarily or involuntarily," the memo concludes.

More clean up needed!

Civil tort of conspiracy

Today’s Court of Appeal decision in Keeton v. The Bank of Nova Scotia, 2009 ONCA 662 cites the unanimous Supreme Court in Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd. [1983] 1 S.C.R. 452, and sets out the elements of both branches of the tort of conspiracy in the following terms:

Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tort does not permit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claim against them in combination as the tort of conspiracy if:

(1)  whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff; or,

(2)  where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.

In situation (2) it is not necessary that the predominant purpose of the defendants' conduct be to cause injury to the plaintiff but, in the prevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury to the plaintiff would ensue. In both situations, however, there must be actual damage suffered by the plaintiff.

 

 

Ontario Prosecutors Conference at Clevelands House

Cross-Examination

Introduction

Cross-examination is arguably the most difficult and the most important part of a trial. Examination in chief, while critical, is basically just having witnesses tell their story and seldom poses difficulty.

A critical point to emphasize about cross-examination is that it does not consist of examining crossly! Great care must be taken to help your case and being abrasive seldom, if ever, achieves anything. Firm and determined examination is the way to go but never a hint of emotion should show, certainly not a hint of anger.

Legal Matters

Cross-examination is not required except in a very limited set of circumstances.

This is worth remembering because sometimes the best cross-examination is no examination at all. If there is nothing you can get from a witness then it is most prudent not to ask no questions.

Writing in the criminal context, Earl Levy, Q.C., put the difficulty well, writing:[i]

There is nothing sadder than seeing the cross-examiner use an aimless and scattergun attack on the prosecution witnesses hoping that something fruitful will occur for the defence. The almost inevitable result will be that the prosecution’s case is made stronger by this Russian roulette approach as the cross-examiner fills in gaps in the Crown’s case or, because he foolishly repeats the same questions as those asked in-chief, the witness repeats the same damaging answers. Worse, it may distract attention from the genuinely strong parts of the defence case.

In Canada there is no limit on the scope of cross-examination – any relevant question may be put to any witness.[ii] That said, generally speaking, unless cross-examination has a clear and unambiguous purpose it is better not to conduct cross-examination. No cross-examination is far more helpful than a bad cross-examination. The only exception to the principle that cross-examination ought to be avoided if it serves no immediate purpose is the Rule in Browne v Dunn[iii]. The Rule is well set out in the Dyck[iv] decision:

As a rule a party should put to each of his opponent’s witnesses in turn so much of his own ease as concerns that particular witness, or in which he had a share, e.g., if the witness has deposed to a conversation, the opposing should indicate how much he accepts of such version, or suggest to the witness a different one.

In effect, unless counsel cross-examines a witness on a topic the counsel you may be deemed to accept that witness’s story. The rule is not absolute[v] but should be followed unless there is some very good reason to ignore it. This sometimes leads to bizarre examinations beginning as follows:

Now, witness, I am going to ask you a series of questions that we all know how you will answer, but I am obliged to put these questions to you in fairness and so as to comply with the rule in Browne v Dunn.”

The witness is put questions which are always leading and usually denied[vi]. No matter how unnecessary this may seem, omit to do it and counsel may be barred from putting their case at all if it is based on a denial of testimony counsel have been deemed to accept. As the Ontario Court of Appeal noted:[vii]

... a party wishing to impeach the credibility of a witness must ordinarily put the contradictory material to the witness in order to give the witness an opportunity to explain it.
Even if there was no Rule from Browne v Dunn good advocacy would suggest the confrontation of a witness with a damaging statement or contradiction is far more effective than the mere adduction of evidence inconsistent with that of the witness whose evidence is to be discredited.

Cross-examination must be focused and the questions must be clear. An unclear question is improper and can even lead to a retrial. Ambiguities must be avoided[viii]. Cross-examination as to character of the accused is improper unless the accused has raised their own character – that said, cross-examination on prior convictions (not charges) is proper going to credibility.

Cross-examination of an opposite party’s witnesses is a matter of right – but what about co-defendants? Can one defendant cross-examine the witnesses of another defendant? The question is not without difficulty, but the better view is that where the defendants are taking adverse positions cross-examination is to be allowed. Adversity was described in Menzies thusly:[ix]

An actual issue in tangible form spread upon the record is not essential, so long as there is manifest adverse interest in one defendant against another defendant. “Adverse interest” is a flexible term, meaning pecuniary interest, or any other substantial interest in the subject-matter of litigation.
Of course, even if cross-examination is not proper, examination in chief (by non-leading questions) must be allowed.[x] A right to examine witnesses (whether in chief or by cross) is a fundamental part of a fair trial.[xi]

Practice Tips

An even and steady tempo for cross-examination makes good sense. This author writes out, in full, all the questions he expects to ask. That said, of course the questions to be asked must be altered to meet the evidence arising from examination in chief – and drafting such questions “on the fly” can be difficult.

The principle that you must never ask a question to which you do not know the answer is not quite accurate – a better position is not to ask a question the answer to which can hurt your case. Moreover, asking questions that merely repeat the evidence in chief is unhelpful – short, focused and to the point questions are best.

Witness preparation is quite proper. While you must never coach the witness to tell a falsehood, it is proper to prepare your witness, in major cases anyway, on how to truthfully answer difficult questions in cross-examination. Most people go to Court very seldom and will be confused and awkward unless they are given some explanation of what to expect. Louis Nizer, the leading American counsel, writes:[xii]

The law permits you – it does more than permit you, it makes it your duty – to examine your witness carefully in advance to refresh his recollection as to dates and details by exhibiting documents to him which establish these matters; to acquaint him with the sequence of questions so that the truth may be established in orderly fashion and without confusion which may through doubt on it. It is the only way, in fact, in which you can present the truth. For truth never walks into a court room. It never flies in through the window. It must be dragged in by you....

The best preparation is to think about what questions you would ask if you were cross-examining and then to put those to the witness. Then listen and see if there is a way for the witness to answer in a clearer and more direct way. Remember, it is essential never to have the witness deviate from the truth – rather, the witness must tell the truth but in a way that is as clear and convincing as possible.

[i] Examination of Witnesses in Criminal Cases (Toronto, 1991), 145
[ii] This is not the case in some of the United States where cross-examination is limited to issues raised during examination in chief.
[iii] (1893), 6 R. 67 (H.L.)
[iv] (1970), 2 CCC 283 (B.C.C.A.), citing with approved, Phipson on Evidence
[v] R. v Verney (1993), 87 C.C.C. (3d) 363
[vi] Occasionally witnesses will not respond as expected and will admit the facts put.
[vii] O’Brien v Shantz (1999), 167 D.L.R. (4th) 132, 136
[viii] R. v. M.F., 2009 ONCA 617
[ix] Menzies v McLeod (1915), 34 O.L.R. 572, cited with approval in Aviaco v Boeing (2000), 2 C.P.C. (5th) 48 (Ont. S.C.)
[x] Whiton v Pilot (1996), 132 D.L.R. (4th) 568 (O.G.D.)
[xi] Marchand v Public General (2000), 51O.R. (3d) 97
[xii] “The Art of the Jury Trial” (1946), 32 Cornell L. Q. 59, 66

Tories spend five times more on stimulus ads than flu awareness

This is pretty pathetic.

Conservative TV spots; financed using taxpayer dollars; feature anti-election pitch

Bruce Cheadle
Ottawa— The Canadian Press

The Conservative government is spending more than five times as many taxpayer dollars on promoting its economic plan as it is on raising public awareness about the flu pandemic.

And that's once again raising a long-standing question: when does government advertising cross the line into partisan boosterism?

Television viewers may have noticed the latest feel-good government ads about stimulus spending, including the Conservative-friendly, anti-election pitch: "We can't stop now," and "We have to stay on track."

All the ads direct viewers to a Tory-blue government website that includes more than 40 different photos of Prime Minister Stephen Harper and refers repeatedly to "the Harper government" — apparently in direct contravention of Treasury Board communications policy.

The TV spots are just the latest $4-million salvo in a $34-million media blitz trumpeting the Conservative's recession-fighting budget.

Meanwhile, with public health officials fretting over an onrushing fall flu season, the spread of the H1N1 virus and widespread public apathy about the need for vaccination, no television ads are in the works to combat swine flu.

Health Canada's home webpage, however, does include a prominent link to the Conservative economic action plan website .

The Public Health Agency of Canada says it has a total marketing budget of $6.5-million to inform Canadians about the H1N1 virus and how to avoid infection.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Can you spot when the Conservatives were elected on this chart???

Club Med???

Hands up, baby, hands up ...