Furtwangler on 4.19.1942 playing Beethoven's 9th

http://tinyurl.com/38varn

A remarkable video -- the best and the worst of humanity -- worth watching... .

Cross of Gold speech

On July 8, 1896 William Jennings Bryan gave his "Cross of Gold" speech at Democratic national convention.

It's a remarkable speech -- full of difficult concepts and allusive language; note especially the trickle down economics. It's (sadly) hard to imagine such a speech being given today. 114 years ago political speeches had more substance -- or so it seems.

Here's a link to the full text and a few of the paragraphs:

"Mr. Carlisle said in 1878 that this was a struggle between the idle holders of idle capital and the struggling masses who produce the wealth and pay the taxes of the country; and my friends, it is simply a question that we shall decide upon which side shall the Democratic Party fight. Upon the side of the idle holders of idle capital, or upon the side of the struggling masses? That is the question that the party must answer first; and then it must be answered by each individual hereafter. The sympathies of the Democratic Party, as described by the platform, are on the side of the struggling masses, who have ever been the foundation of the Democratic Party.

There are two ideas of government. There are those who believe that if you just legislate to make the well-to-do prosperous, that their prosperity will leak through on those below. The Democratic idea has been that if you legislate to make the masses prosperous their prosperity will find its way up and through every class that rests upon it.

You come to us and tell us that the great cities are in favor of the gold standard. I tell you that the great cities rest upon these broad and fertile prairies. Burn down your cities and leave our farms, and your cities will spring up again as if by magic. But destroy our farms and the grass will grow in the streets of every city in the country."

http://bit.ly/da7tDK

World Cup

Costs follow event

In general terms, in Ontario civil law, the loser pays costs. That general rule can be displaced by formal offers to settle made under R 49, but absent an applicable offer to settle, the loser pays rule applies.

Some have argued that where a claim is only modestly successful the costs should be to the defendant -- on the basis that the defendant "really won".

That argument fails, as we learn from Key Designs v. Zovko, 2010 ONCA 487.

Here the plaintiff succeeded, albeit modestly, and the defendant claimed it should succeed and get costs. The Court of Appeal said nay. That said, the Court did approve a reduced amount for costs as a result of the modest success.

The Court held:

[8]  ... The respondents also challenge the trial judge's costs award. They say that they were substantially successful in the damages trial and that they should receive costs of approximately $190,000.

[9]  ... As for costs, the important point is that the appellant was successful in the action, albeit modestly so. Accordingly, a modest costs award of $40,000, far below the $288,000 sought by the appellant, seems appropriate to us.

Whither Fantino now?

So will Mr. Fantino run for Mayor? Or MPP? Or MP? He's be a strong candidate!


Premier Dalton McGuinty has announced that Ontario Provincial Police Commissioner Julian Fantino will be replaced on Aug. 1.

Deputy Commissioner Chris Lewis, a 32-year veteran of the force, will take over the province’s top cop job when Mr. Fantino retires at the end of next month.

Read more: http://news.nationalpost.com/2010/07/07/opp-commissioner-julian-fantino-to-be-replaced-by-charles-d-lewis/#ixzz0t0ZqBriH

Special considerations for sentencing aboriginal accused applies regardless of the seriousness of the offence

R. v. McKay, 2010 ONCA 323 makes clear that Gladue factors are to be considered regardless of how serious the offence is:

[4] We agree that the trial judge's statement that the more serious the offence, the less applicable are the Gladue considerations is not an accurate reflection of the law: see R. v. Wells, [2000] 1 S.C.R. 207. However, we are satisfied that, at the end of the day, the trial judge applied Gladue correctly and that he did take the Gladue factors into account.

Is a stay of proceedings right for police brutality?

Last week the Court of Appeal stayed charges against an accused in R v. Tran because he was beaten by police who broke his jaw. The beating was motivated by an attempt to get Mr. Tran to confess.

It is hard to think of a more serious breach of civil rights than to have a confession beaten out of you. Had a confession been obtained there is no doubt it would be inadmissible.

But no confession was obtained and the case against Mr. Tran was based on other evidence.

And the offences Mr. Tran was convicted of were appalling -- sexual assault, threatening, cutting a victim with a knife, threatening a child. At trial Mr. Tran was convicted and the judge sentenced with regard to the police brutality -- he reduced the sentence.

The Court of Appeal went further and stayed the charge -- I think that was wrong. I've written on this story before but have been generally interpreted to support the Court of Appeal decision.

I don't.

I respect the decision and understand why it was made. Preventing police attempts to beat confessions from accused is essential -- but here I think the crimes too serious to let go -- sexual assault, and a brutal one, (among other crimes) is not something to overlook for procedural reasons, even very good procedural reasons.

I think the trial judge was right.

Lawyer's duty to client alone

Di Biase v. The Toronto Dominion Bank, 2010 ONCA 482 makes clear that, subject to the lawyer taking on a specific duty to the other side or intentionally misleading the court, a lawyer’s duty is to their client alone.  The Court writes:

 

[3]              There was no basis for any claim against SNF [a law firm]. At all times, SNF was acting for TD and its actions would be the responsibility of TD.  The appellant Mikhail has no legal standing to advance a claim in either action.  The appellant Di Biase’s claims could and should have been made in the enforcement proceedings commenced by TD.

 

 

 

Misunderstood

Language is very slippery (or as they say in the Ottawa Valley, slippy).

I wrote a brief piece on a home invasion case in the Court of Appeal.

I, perhaps with too much tact, suggested the Court got it wrong.

Many readers thought I was saying the Court was right -- and what's more, I see an on-line legal magazine printed a summary of legal news and flatly said I applauded the Court's decision.

I gotta be less respectful and more blunt... .

The Shriners are in town

The truth is that sharks have much more to fear from us than we do from them

Rob Stewart

In an about-face, Toronto police are moving to establish an independent civilian review of police conduct during the G20

http://bit.ly/9gw3r1

Creepy kid's shows

Waiting to go on air at 7:30 (way too early) I am watching a kids show in the green room.

An animated little girl with an adult's face (creepy already) is speaking to a lava and a wasp (?) both with the faces of adult men (creepier). And now she is joined by an animated little boy who appears to have the face of an adult woman -- and both 'children' have grown insect wings and are flying around (ok, I am totally creeped out).

Mammoliti quits mayoral race

July 5, 2010
Urban Affairs Bureau Chief    
     
Councillor Giorgio Mammoliti has officially ended his bid to become the next mayor of Toronto, but is vowing to try again in the future.

...

He did not endorse another candidate, saying he is going to take a vacation and think about it. Rivals Rocco Rossi and Joe Pantalone were at his announcement and, after complimenting Mammoliti on his candidacy — Pantalone endorsed his council re-election bid — said they expect to pick up some of Mammoliti's suporters

Fruit is good for you

Federal Court revisits Khadr

In the Matter of Omar Khadr was released by the Federal Court a few hours ago.  The Court, in brief, said that Khadr had not been afforded procedural fairness and ordered the Federal Government to take some step within seven days.  Part of the decision, and a link, follows:

 

[92] In this case, if the Court was satisfied on the record that the only potential remedy not yet tried by Canada that could cure the breach was to issue an order requiring Canada, before Mr. Khadr’s military commission proceeding commences on August 10, 2010, to request the U.S. to return Mr. Khadr to Canada, that order would be issued. I have previously stated that this is the only alternative remedy I can see that can potentially cure the breach. It may be, however, that Canada and/or Mr. Khadr can fashion other potential curative remedies. If there are others, and keeping in mind the ruling of the Supreme Court in Khadr II, it is the role of the executive, after providing Mr. Khadr an opportunity to be heard, to decide which of the alternative potential curative remedies to choose. It must continue that process until Mr. Khadr is provided with an effective remedy that vindicates his rights. As was stated by the Supreme Court in Doucet-Boudreau at para. 55:

 

 

… [A]n appropriate and just remedy in the circumstances of a Charter claim is one that meaningfully vindicates the rights and freedoms of the claimants. Naturally, this will take account of the nature of the right that has been violated and the situation of the claimant. A meaningful remedy must be relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied. An ineffective remedy, or one which was "smothered in procedural delays and difficulties", is not a meaningful vindication of the right and therefore not appropriate and just. [citations omitted]

 

 

[93] If after such a process there remains but one potential remedy that can cure the breach, then Canada must advance it; it is the only “appropriate and just” remedy.

 

[94] The parties deserve an opportunity to explore effective remedies. Given that Mr. Khadr’s hearing is scheduled to commence imminently, this process must be undertaken with some urgency and the Court must reserve the right to oversee this explorative process, to amend the short time frame set out in the Judgment for the steps that are to be taken, and to reserve the right to impose a remedy if none is forthcoming from that process.

 

http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Index

 

Federal Court decision requiring Federal Government in Khadr to act within 7 days

http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Index

First Nations and prison

As I have written elsewhere I am unconvinced prison has any rehabilitation effect. Indeed, I am not sure it deters many. At best prison serves to denounce and separate -- two valid enough goals but only where appropriate.

That said, the more I deal with First Nations, especially those from the far north who have never lived in centres of more than 500 people, the more I realize prison is specially hard for First Nations.

Gladue is rightly decided -- sentencing aboriginal people from isolated hamlets to lengthy terms must be done only when absolutely necessary and with great caution.

No man dares say so much of what he thinks as to appear to himself an extremist

George Bernard Shaw

 

 

No undertakings required during cross-examination on affidavit unless of information and belief

Caputo v. Imperial Tobacco Ltd.  2002 CarswellOnt 3270 is a good source for the proposition that, in general, undertakings are not required to be given on cross-examinations on affidavits unless the affidavits are those of information and belief.

 

The case, which remains good law, holds:

 

 

41          Given how ubiquitous the notion of "undertakings" is in examinations for discovery, it is perhaps surprising to find that this is not a concept articulated in the rules. The reason undertakings are given on discoveries is that our form of discovery in Ontario typically permits discovery of each party only once and in the case of corporate or other non natural persons, typically only requires a single representative to be examined. It follows that the person being examined has the obligation to fully inform himself or herself about the case and if information is not within his or her knowledge, but the question is acknowledged as proper and relevant, an undertaking to obtain the information is usually given. On a motion, by contrast, evidence may be put in by affidavit or by examining a witness in aid of the pending motion under Rule 39.03 and every witness tendered by the other side may be examined or cross examined. Arguably therefore there is a reduced need for undertakings.

 

42          This is not to say that undertakings may never be required. There is little authority on this point but Rabbiah v. Deak & Co., [1961] O.W.N. 280 (Ont. H.C.) and Mutual Life Assurance Co. of Can. v. Buffer Investments Inc. (1985), 52 O.R. (2d) 335 (Ont. H.C.) remain good law. A deponent of an affidavit may be asked to make reasonable inquiries in order to answer proper questions put on cross examination. The need for undertakings may be particularly acute when an affidavit is given on "information and belief". To hold otherwise would permit a party to give a witness only certain relevant facts and to insulate the other facts from disclosure by putting up what is in effect a straw witness. Of course the undertakings must be relevant and should not be unduly onerous. In the case of information and belief affidavits sworn by members of law firms, there is the additional concern to protect properly privileged information unless it is apparent the privilege has been waived by the nature of the evidence itself.

 

43          I have no hesitation in holding that requesting an expert witness to review articles or data and undertake an analysis which can not be done within a reasonable time during the cross examination itself goes well beyond the ambit reasonably required of a witness under cross examination. I also have no hesitation in finding that a witness who has sworn an affidavit on information and belief who can not answer a relevant question must undertake to ask the source of the information and belief and supply the answer. Between these extremes the questions will have to be dealt with on a case by case basis.

 

44          Another consideration in determining the obligation to be imposed on a party being examined is whether or not the examining party already has the information. In that case, since the examining party has chosen not to put the information in evidence, there seems little justification for imposing on the other party the obligation to do extensive work to put the facts in evidence through the cross examination. This is distinctly different from discovery. At a discovery, one is concerned to know what evidence the other party will give at trial which may differ from evidence in the possession of the examining party. On a cross examination, each party already knows what the evidence is they will have to meet on the motion.

 

 

"Expert" Opinion Evidence

I suppose if there were flaws in the initial investigations this may be a good story – but the underlying concept gives me concern, to say the least. Put otherwise, I cannot see this going in as expert testimony under the broadest interpretation of Abbey….

http://www.google.com/hostednews/ap/article/ALeqM5h5AA60jnoBRpPklX-Snv9ypEoaHAD9GMOFFG1

'VIRGINITY TEST' HELPS FREE 3 IN VIETNAM RAPE CASE

by TRAN VAN MINH, Associated Press, July 1, 2010

HANOI, Vietnam - An acupuncturist who claims she can detect a man's virginity based on a small dot on the ear has become a minor celebrity in Vietnam, where she is credited with helping to free three convicted rapists from prison. Traditional medicine practitioner Pham Thi Hong started lobbying for the men's release, pleading their case all the way to the President, because she believes all three men are virgins and therefore could not be guilty of rape. "They all had small red spots on the back of their ears," said Hong, 54. "The spots should have disappeared if they had had sex. My many years of experience told me that these men did not have sex before."

Her claims are unusual even for a country where acupuncture and traditional medicine are still common remedies, but Hong's determination to have the case reopened - even threatening to light herself on fire - led to prosecutors re-examining the case. The convictions eventually were suspended due to flaws by initial investigators. "Thanks to her efforts, investigators revisited the case which otherwise could have been buried," said Nong Thi Hong Ha, a lawyer for one of the freed men

Off to work - Monday!

Robot Armies

Scientific American warns that robot armies, that conduct battles without human control, are very near.

Shades of Terminator?

I must say my experience with "thinking" machines is such as to my the likelihood of robot armies look very far away ... .

http://tinyurl.com/22oeho9

He who confuses political liberty with freedom and political equality with similarity has never thought for five minutes about either.

George Bernard Shaw

Canadian Press reorganisation: let's hope it pulls through!

After nearly a century, The Canadian Press wire service will cease to function as a not-for-profit co-operative under a tentative new deal that will place the media organisation under private ownership. I hope they survive -- they faced a bad pension problem and the loss of the Sun papers -- CP provides good Canadian content for media across the country and they have some very fine reporters.

A federal appeals court has sided with a Guantánamo prisoner

Guantánamo remains a real test for Obama -- likely one the administration would like to forget -- but this decision will force action of some sort.

http://tinyurl.com/2eq9zh6

Appeals Court Sides With Detainee

By CHARLIE SAVAGE
Published: July 04, 2010

WASHINGTON - A federal appeals court has sided with a Guantánamo prisoner whose case prompted a major internal argument among Obama administration legal advisers last year over how broadly to define terrorism suspects who may be detained without trial.

Belkacem Bensayah, an Algerian who was arrested in Bosnia in 2001 and accused of helping people who wanted to travel to Afghanistan and join Al Qaeda, cannot be considered part of the terrorist organization based on the evidence the government presented against him, a panel of the United States Court of Appeals for the District of Columbia Circuit has ruled.

"The government presented no direct evidence of actual communication between Bensayah and any Al Qaeda member, much less evidence suggesting Bensayah communicated with" anyone else to facilitate travel by an Al Qaeda member, Judge Douglas H. Ginsburg wrote in a 17-page opinion that was declassified late last week. Parts of the ruling were censored by the government.

It's so hot!!!

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.

 -- John Adams, 1770

Wizardry gone wrong?

An odd story; who knows what issues arise with child actresses and their families (especially once they come of age)


LONDON - The father and brother of an actress who starred in the Harry Potter movies have been charged with threatening to kill her.

The 22-year-old Afshan Azad is cast as Padma Patil, a classmate of the teenage wizard, in the movie series.

Her father, 54-year-old Abdul Azad and elder brother, 28-year-old Ashraf, are alleged to have threatened her at her home in the northern English city of Manchester on May 21.
Ashraf is also accused of assaulting his sister.

The Queen and security

It's worth pointing out that although the Queen is protected wherever she goes, she eschews the security paranoia that overshadowed the G20. Indeed, she does her famous walkabouts, never hiding behind 3-metre fences and specially enacted laws. Her courage, not to mention her common sense, put so-called world leaders to shame

http://tinyurl.com/2ewp8kn


In fairness the Queen is not generally subject to attack by anarchists

Georgio Mammoliti drops out of mayoral race

The field is narrowing. My guess is the ones at the end will be limited to Rob, Rocco and George -- they have the financial staying power and that's key -- no money, no race.

And then the issue will probably be as much who do you want to lose as much as who do you want to win?

Fabiola Carletti      
Staff Reporter 

http://bit.ly/c53tdg


Toronto mayoral candidate Georgio Mammoliti is expected to announce on Monday that he's dropping out of the race to concentrate on keeping his council seat.

"At this point I can neither confirm nor deny this information," Mammoliti spokesman Dan Leggieri told the Star late Saturday.

But, Leggieri added, Mammoliti is slated to make a "big" announcement at noon Monday at Porto Restaurant, 2965 Islington Ave.

A government that robs Peter to pay Paul can always depend on the support of Paul.

George Bernard Shaw

Canada was the first apartheid state! Who knew?

If you go onto the QuAIA web-site (here: http://bit.ly/8WXeX2 ) you'll find the passage below.

"BANNER MAKING!
Thursday, July 1, 2010 at Noon: Instead of celebrating this colonial country (which the apartheid state of South Africa was modeled after), come hang out with us and help prepare for Sunday.  We'll provide materials, but if you can contribute paint, brushes, placards, etc. we'll take em!  Email keli.bellaire@gmail.com for the address."

One might ask, if Canada is an apartheid colonial state, why protest Israel on the streets of Toronto?

But maybe there are such protests at the PRIDE Parade in Tel Aviv?

Industry and Frugality are Virtues which have been buried out of Sight; ’tis Time, high time to revive them. He that Leads in this Cause, and is himself the Example, is a Patriot.

Philo Publicus.
Cambridge, Sept. 26, 1764

This quotation may seem to be nothing more than an indirect argument to cut taxes and force workfare.

It could be used that way but I use it to mean we should husband our resources wisely.

Do we really need a peak usage power plant, for example, on the best farmland in Ontario just so we can keep air conditioning real cool? Do we really need 3,000 sq ft homes far away from workplaces?

I like comfort -- Canada is a rich nation and we ought to enjoy that wealth but "Frugality is a Virtue" and excess use is not a good thing.

PRIDE still matters

This weekend is the PRIDE Parade in Toronto.

It has been controversial -- to say the least -- with battles over matters having effectively no relevance to Gay rights.

There is an attempt to link Gay rights with other political agendas. The linkage is seen on the basis that Gays are outsiders and therefore must be sympathetic to other outsiders. To state the thesis is to see how weak it must be.

The PRIDE Parade -- a must for politicians and media -- shows how mainstream Gays have become. And in truth sexual preference is little different from any other preference -- Gays should fall on all ends of the political spectrum.

But clearly there remains work. The Gaybashings in BC last week are merely examples. PRIDE has done much but has much to do -- and eventually the Parade will become irrelevant -- and then not worth hijacking for radical politics.

Privatising roads

If we privatise roads -- which are clearly an essential government service -- why not healthcare?

http://bit.ly/9rgeUH

Proposals include:

A regional gas tax of 10 to 20 cents per litre;

A new levy of $1 to $2 a day per commercial parking space;

A regional sales tax adding 1 to 2 per cent on the HST; and

Special fees to bring your vehicle into designated areas, like downtown Toronto.

Walker decision in Sask C.A.

http://www.lawsociety.sk.ca/judgments/2010skca84.pdf

Here is the link for the decision -- several readers have written and asked for it.

TTC Museum

Amazing photograph from Bay TTC Station taken in 1966. Might as well have been taken yesterday (well, maybe not the fashions!) ... .

“I made two mistakes and both of them are sitting on the Supreme Court," Dwight Eisenhower said about Justices Earl Warren and William Brennan, both beacons of liberal activism

If you board the wrong train, it is no use running along the corridor in the other direction.

Dietrich Bonhoeffer

Three bombings and the group is "obscure"?

The group may be “obscure” but this is its third bomb attack – that’s not trivial.

http://tinyurl.com/24t2zf6

I know it's a work day but it feels like it should be a weekend... .

Angus Reid poll on views about #G20

When asked about the reaction of the police in Toronto to the demonstrations, two-thirds of Canadians (66%) and three-in-four Torontonians (73%) believe it was justified. In addition, 57 per cent of respondents across the country think it was a mistake to hold the G20 summit in Toronto—a view shared by 73 per cent of Toronto residents.

 

http://www.visioncritical.com/category/global-opinions-and-trends

 

 

 

Fresh evidence, interests of justice and competence of counsel

The test for admission of fresh evidence on appeal is fluid and depends on the interests of justice.  Sometimes, as in R. v. White, 2010 ONCA 474, evidence will be admitted as fresh even though it is arguably neither new nor unavailable at trial – if the interests of justice so demand.  Where there is an issue as to competence of counsel evidence that would have otherwise been available may well be admitted as if it were properly fresh evidence.

 

The Court writes:

 

[2]               We agree with Crown counsel that the test for fresh evidence has been met and that the appeal must be allowed.  The Crown’s case in 1995 depended upon the evidence of Daniel Wither, another employee at the Centre.  Four years after the alleged assault, he claimed that he saw the appellant sexually assault a severely developmentally-delayed resident.  The alleged assault and accompanying lewd remarks were completely out of character for the appellant, who was described at sentencing as a caring and dedicated employee.

 

[3]               The appellant’s 1995 trial was a brief one.  Defence counsel did not call the appellant nor adduce any defence evidence.  Substantial material that could have undermined the credibility of Mr. Wither was available to the defence, and actually in counsel’s file, but was not used by the appellant’s trial counsel.  We note in particular that there was substantial evidence available to the defence showing that Mr. Wither had a motive to falsely implicate the appellant and that Mr. Wither was in breach of a directive, that he would have known about, to immediately report incidents of sexual abuse.

 

[4]               We agree with Crown counsel that while not all of the proposed evidence meets the test for fresh evidence, there is a substantial body of admissible fresh evidence showing that the appellant did not receive effective assistance of counsel.  We refer in particular to the material concerning the so-called Herring Report that could have demonstrated Wither’s motive to lie and the material that could have undermined Wither’s explanation for his failure to report the alleged assault at the time.  These materials were either actually available to trial counsel or could easily have been obtained.  The failure to use the materials in cross-examination of Wither and as part of a defence case demonstrates ineffective assistance of counsel, even granting the strong presumption that counsel’s conduct falls within the wide range of reasonable and professional assistance.

 

[5]               We are also satisfied that failing to use the evidence resulted in a miscarriage of justice.  The appellant has demonstrated that the verdict is unreliable since if counsel had performed in a competent fashion, there is a reasonable possibility that the verdict could have been different.  The Crown’s case depended upon Mr. Wither’s testimony.  The fresh evidence, used effectively, could have so undermined his credibility as to leave the jury with a reasonable doubt that the alleged assault ever occurred.

Canada Day!

Canada Day (French: Fête du Canada), formerly Dominion Day (French: Le Jour de la Confédération), is Canada's national day, a federal statutory holiday celebrating the anniversary of the July 1, 1867, enactment of the British North America Act (today called the Constitution Act, 1867), which united two British colonies and a province of the British Empire into a single country called Canada. Canada Day observances take place throughout Canada as well as internationally.

Home invasions

Violent home invasions are among the most terrible of crimes. A home should be a refuge from the world, a place of peace and safety. That's why Sir Edward Coke, almost 400 years ago, held:

"For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge]."

In 2002 a series of specially brutal home invasions took place in Mississauga. A gang of thugs, wearing masks and armed with guns and knives, forced their way into homes in the early hours of the morning.  They used plastic tie wraps to bind the half asleep residents by their wrists and ankles.  The gang then did whatever was necessary to get the victims to cooperate in locating valuables. 

The gang inflicted dreadful abuse upon some of the victims, including:

1.     confining an elderly woman and telling her she would be shot if something went wrong;

2.     using a knife to carve a dollar sign into a man's back and to try to cut off his finger;

3.     grabbing an eight-year old, pushing her down, telling her to say goodbye to her parents, and threatening the child's parents that they would take her unless all their money was handed over; and

4.     sexually assaulting a woman by placing a gun in her mouth while digitally penetrating her vagina, and by placing a gun in her vagina.

It is hard to find any sympathy for those committing such horrific crimes. Put otherwise it is not hard to understand investigating police and prosecutors feeling righteous indignation against those they believed guilty.

Perhaps it is that anger that explains why, when a gang member surrendered, he was badly beaten by police.

In 2003 one of the gang, Quang Hoang Tran, surrendered to police.

During transport from Hamilton, where Mr Tran surrendered, Peel police officers tried to get a statement. Mr Tran refused and relied on his right to silence. In reply the police officers said they would get a statement "the hard way".

On arrival at the Peel police station, Mr Tran was shoved and punched by the police officers.  They then put him in locked interview room and again demanded a statement.  Mr Tran remained silent.  One officer punched Mr Tran in the ribs and the jaw.  Mr Tran's mouth bled profusely but still he would not talk.  In fact, he might have had trouble talking even if he wanted to as his jaw had been broken in two places.

The officers gave up trying to get a statement and attempted to conceal their assault.  They cleaned up the blood in the interview room.  They placed Mr Tran in front of a video camera and tried (unsuccessfully) to get him to say that he had hit his chin on the table.  

At trial Mr Tran's lawyers sought to stay the charges on the basis his constitutional rights had been breached by the police. There was little doubt as to the breach -- Mr Tran had surrendered into custody and posed no danger to the officers. Indeed, he was beaten specifically to make him give up his right to silence.

Arguably making matters worse, the officers who attacked Mr Tran remained unchastised and took a full role in the prosecution case.  Indeed, until the trial judge held it inappropriate in the circumstances, one of the officers sat with the prosecutor at the counsel table in court. The question was not whether there was breach of Mr Tran's rights but rather what followed from the breach.

The assault of a prisoner by police intent on forcing a confession is as despicable a form of misconduct as can be imagined. On the other hand, the victims of the home invasion surely they deserved vindication by convicting those who tortured them? These were the alternatives for the Court to consider. At trial the judge held Mr. Tran, while abused, must still be convicted and serve a sentence. He reduced the sentence to take into account the police misconduct.

The Court of Appeal, while recognising a stay for police misconduct must be very rare, overturned the trial judge and ruled the police misconduct so serious as to make a stay necessary. Mr. Tran was not to be convicted.

The Court unanimously held:

"It is essential for the court to distance itself from this kind of state misconduct – an unwarranted, grave assault causing bodily harm, delayed medical attention, a cover up that included perjury, a prosecutorial response that affected the perception of trial fairness and no effective response.  Not to do so would be to leave the impression that it tacitly approves of it."

One might question whether society as a whole is as troubled by Mr Tran's broken jaw as by the harm to the woman who had a gun put in her vagina, however the Court's view is clear.  The police conduct, and the lack of sanctions for that conduct, meant any prosecution of Mr Tran would bring the administration of justice into disrepute and so the charges had to be stayed.