Long-forgotten Vivaldi flute concerto found in Edinburgh

http://bit.ly/cQFjMQ

Composer's piece gets its first public airing for 250 years

By Jonathan Brown

Friday, 8 October 2010


He was the flame-haired musical star of 18th century Venice, known to his fans as Il Prete Rosso – the Red Priest. Antonio Vivaldi's reputation, however, spread further than the confines of the Italian city state where he groomed young abandoned girls to become musical prodigies.

Is it bedtime yet???

Superior Court has (limited) Jurisdiction to hear an action based upon a dispute as to academics

Jaffer v. York University, 2010 ONCA 654 was released today and holds that academic disputes can, in certain circumnstances, be subject to the jurisdiction of the Courts.

The decision provides:

Jurisdiction to hear an action based upon a dispute as to academics

[18]          Jaffer submits that the motion judge erred in finding that the action related to a matter of academics and therefore in finding that the court had no jurisdiction to hear an action based in contract and tort. He argues that having pleaded that it was an implied term of his contract with York that he was to be provided with appropriate accommodation for his disability, the scope and extent of the contract raises triable issues. Further, Jaffer argues that he has properly pleaded that York owed him a duty of care and a duty to act in good faith to provide appropriate accommodations.  With respect to the negligent misrepresentation claim, Jaffer claims that he has pleaded the elements of the tort and seeks damages for his unnecessary expenses and for the resulting delayed entry into the workforce.  Jaffer asserts that, given that these causes of action were properly pleaded, the Superior Court had jurisdiction to hear the claim.

[19]          York submits that, even if Jaffer frames the dispute in contract or tort, the essential character of the dispute is academics as it arises out of academic decisions and procedures of the university and is therefore beyond the jurisdiction of the court. Essentially, York argues, Jaffer complains that during his first academic year he should have obtained a deferred grade standing instead of failing grades, and that in assigning him failing grades, York failed to follow its own internal policies and procedures. York submits that a student has a right of judicial review with respect to procedural matters, but the court should not be asked to interfere with a university's decisions or judgments relating to academic matters. York submits that Jaffer has attempted to frame his dispute with his professor regarding his paper assignment as grounds for a claim for negligent misrepresentation; however, that dispute is "part and parcel" of the dispute over Jaffer's grades.

[20]          The motion judge did not have the benefit of this court's decision in Gauthier c. Saint-Germain, 2010 ONCA 309, when he concluded at para. 24 of the endorsement that "[w]hile there may be contractual or tortious issues within the broader claim, if the pith and substance of the impugned conduct is academic in nature, the action cannot be continued in the courts." After the release of the motion judge's reasons, this court in Gauthier addressed the basis upon which a university may be sued in relation to academic matters.

[21]          In Gauthier, Rouleau J.A. at para. 29 started from the proposition that the Superior Court of Justice is a court of inherent jurisdiction. Its jurisdiction is therefore limited only by express language in a statute or a contractual provision. After analyzing the case law related to academic questions, he determined at para. 45 that the jurisprudence did not stand for the broad proposition that the court lacks jurisdiction solely because a breach of contract or negligence claim arises out of a dispute of an academic nature. At para. 46, Rouleau J.A. found that where the elements of a breach of contract or negligence are properly pleaded, the Superior Court will have jurisdiction to hear a claim even if the dispute is academic in nature and arises out of the academic activities of the university.

[22]          I do not accept York's submission that Gauthier was wrongly decided or that there are conflicting cases of this court. Gauthier has clarified that the decisions of this court upholding the dismissal of claims relating to academic matters did not do so on the basis that the court lacked jurisdiction pursuant to r. 21.01(3)(a), but rather under r. 21.01(1) because the pleadings did not disclose a reasonable cause of action based upon contract, tort, or negligence or under r. 25.11 because the cause of action was untenable in law.

[23]          For example, in Wong v. University of Toronto (1992), 4 Admin. L.R. (2d) 95 (Ont. C.A.), the question of jurisdiction was not argued on appeal.  The plaintiff argued in that case that the university's decision to assign him a new supervisor constituted a breach of contract.  However, this court noted that for a cause of action based upon breach of contract to succeed, the plaintiff would have to show that it was an implied term of the contract that the university agreed that it would provide a specific professor as supervisor. The court held that it was not necessary to imply such a term in that case in order to give the "contract" efficacy.  The basis for the Court of Appeal's decision was therefore based upon the terms of the contract between the university and its student, and not the jurisdiction of the Superior Court.

[24]          In Dawson v. University of Toronto, 2007 ONCA 875, this court did not adopt all the reasons of the motion judge by agreeing with the result that the statement of claim disclosed no cause of action. The court did not base its decision upon the court's lack of jurisdiction; rather, the court concluded that the particulars of the plaintiff's "negligence" claim demonstrated that the plaintiff's complaint was part and parcel of her academic dispute with the university. The court also noted that in advising the plaintiff of her options, the supervising professor referred her to the calendar which clearly set out the options available to her. Thus, the claim did not disclose a valid cause of action in negligence.

[25]          In Zabo v. University of Ottawa, 2005 CanLII 22452 (ON C.A.), leave to appeal refused, [2005] S.C.C.A. No. 354, this court agreed that the motion judge properly dismissed the action because, on the facts pleaded, breach of contract could not succeed as a cause of action. The court was doubtful that the action could have been dismissed under r. 21.01(3)(a) on the ground that the court had no jurisdiction, but concluded that the claim was untenable in law as essentially an academic matter and thus could be struck under r. 25.11.  It should also be noted that the motion judge refused to strike out claims based on allegations of bad faith and a conspiracy to cause the plaintiff harm:  [2004] O.J. No. 1499, at para. 57.  Thus, neither the motion judge nor the Court of Appeal found that the court lacked jurisdiction over the dispute by virtue of its academic nature.  Rather, the question was one of the tenability of each claim.

[26]          After reviewing the cases, Rouleau J.A. concluded at para. 46 of Gauthier that it is the remedy sought that is indicative of jurisdiction.  Judicial review is the proper procedure when seeking to reverse an internal academic decision.  However, if a plaintiff alleges the basis for a cause of action in tort or contract and claims damages, then the court will have jurisdiction even if the dispute arises out of an academic matter:

Ŕ mon avis, pour déterminer si la cour est compétente, il est plus révélateur de se pencher sur la réparation revendiquée par le demandeur.  Quand une partie cherche ŕ faire renverser la décision académique interne d'une université, la voie appropriée est le contrôle judiciaire.  Par contre, si la partie demanderesse allčgue les éléments constitutifs d'une cause d'action fondée en délits civils ou en rupture de contrat, tout en réclamant des dommages-intéręts, la cour s'avérera compétente et ce, męme si le différend découle des activités scolaires ou académiques de l'université en question. 

[In my opinion, to determine whether the court has jurisdiction it is more useful to look at the remedy claimed by the plaintiff. When a party is seeking to have the internal academic decision of a university reversed, the proper procedure is judicial review. However, if the plaintiff is alleging the basis for a cause of action in tort or breach of contract and claiming damages, the court will have jurisdiction even if the dispute arises out of the scholastic or academic activities of the university in question. [Note: this is an unofficial translation] 

[27]          At para. 47, Rouleau J.A. noted that by enrolling at the university, it is understood that the student agrees to be subject to the institution's discretion in resolving academic matters, including the assessment of the quality of the student's work and the organization and implementation of university programs. As a result, a student will usually have to do more than simply argue that an academic result is wrong or a professor is incompetent in order to make out a cause of action in breach of contract or a duty of care.

[28]          Thus, although the court has jurisdiction to hear such claims, Rouleau J.A. noted at para. 50 that the court may strike a claim under r. 21.01(1), or in exceptional circumstances r. 25.11, when it appears that the cause of action is untenable or unlikely to succeed. This will occur if, for example, an action is simply an indirect attempt to appeal an academic decision and the appropriate remedy would be judicial review, or if the pleadings do not disclose details necessary to establish that the university's actions go beyond the broad discretion that it enjoys.

[29]          The Superior Court's jurisdiction over the action in this case is thus not ousted by the raising of issues relating to the university's academic function.  As in Gauthier, the action is not simply an indirect attempt at judicial review, as the appellant does not seek to reverse decisions with respect to his grades or compel the university to readmit him.  His claim is that the university owed him various obligations in both contract and in tort, and that its failure to meet those obligations has caused him pecuniary and non-pecuniary damages.  Such claims fall within the jurisdiction of the Superior Court and may proceed if they are properly pleaded and tenable in law and disclose a reasonable cause of action.

[30]          There is no dispute that the relationship between a student and a university has a contractual foundation, giving rise to duties in both contract and tort: Young v. Bella, [2006] 1 S.C.R. 108, at para. 31.

[31]          The real issue in this case is not whether the dispute is academic in nature, but rather whether the pleadings support a cause of action in either contract or tort.

Do nothing without reason

I learned this wise saying today from a 4th Level Blackbelt.

Colonel Williams to plead guilty to murders

This is a bit curious. He will get 25 years for sure so why not do a trial on the offchance the Crown case falls apart. Maybe there is remorse? (Not that such would affect sentence here)

BELLEVILLE– Colonel Russell Williams, once the commander of Canada's largest air force base, will plead guilty to killing two women, sexually assaulting two others and to a string of fetish break, enter and thefts, his lawyer told a court this morning.

Another type of traffic jam ...

The Chinatown shopkeeper's prosecution encourages vigilante behaviour

The story is simple enough.

A career thief stole $60 worth of flowers from a Chinatown grocery store. When he came back to steal more the shopkeeper and assistants held him until the police could be called.

Store owner David Chen and two others were then charged with forcible confinement and assault.

Canada's laws on citizen's arrests state that you can only detain someone caught committing a crime.

The prosecution is supposed to teach the lesson that vigilante conduct is unacceptable -- it actually does the reverse and encourages lawless violence.

So what will shopkeepers learn from this prosecution? Well, imagine the shopkeeper had merely beaten the thief and let him go.

Would the shopkeeper have been charged? Probably not -- the thief would have been unlikely to go to the police -- in fact, it was only because the shopkeeper called the police that the matter became public.

Lesson -- don't bring the police into a situation you can deal with yourself. Or, private violence makes sense -- keep the law out.

Is this a good lesson? No -- but that's what the prosecution shows.

How to fix it? First, take property crime more seriously. Chinatown shopkeepers have long complained the police ignore shoplifting. Second, use some prosecutorial discretion -- don't prosecute guys like Chen -- it just brings the administration of justice into disrepute.

Julian Fantino to run for Conservatives in Vaughan

What a surprise!!! (Who will run against him? There’s an interesting question – and will there even be a by-election or will we have a Federal election in November as some are suggesting?)

 

OTTAWA—Julian Fantino, for years Ontario’s best known and highest-ranking cop, will be the Conservative candidate in the Vaughan federal by-election when it’s called by Prime Minister Stephen Harper, the Toronto Star has learned.

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Gridlock Hurts!

Yesterday I had to travel by car from downtown Toronto, starting at 3:30 pm to Humber College (a distance of say 20 km). It took me, as I expected it would, about two hours.

Many small things made the trip longer. A police stop that, for unknown reasons, blocked a lane entering a highway (why not do a traffic stop off to the side?). Construction blocking roads, briefly but completely, just as rush hour started.

Biggers things caused delay too -- the fact the freeway system has not been materially improved for a generation.

And so a short trip took a long time, with additional environmental costs.

I say all this not as a Thursday rant but rather to say it's time we make traffic flow. Cars are a big part of moving people in the GTA and (especially until we have light rail, subways and who knows what else that is practical to move people quickly around the area) policies that slow traffic are a bad idea.

Similar fact evidence

R. v. Johnson, 2010 ONCA 646 released online this week outlines in detail the general principles behind similar fact evidence. The Court writes:

I.    GENERAL PRINCIPLES

[81]          The fundamental rule that underpins the law of evidence in Canada is that all evidence that is logically probative to some material issue at trial is relevant, and therefore admissible unless excluded by some particular rule of law: R. v. Abbey, [1982] 2 S.C.R. 24, at p. 40; Morris v. The Queen, [1983] 2 S.C.R. 190, at p. 201.

[82]          However, evidence that is relevant may still be inadmissible if it is subject to a specific exclusionary rule.  Underlying many particular exclusionary rules is the broad principle that where the prejudicial effect of admitting otherwise relevant evidence would exceed its probative value, it is inadmissible: R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 736-740; R. v. Potvin, [1989] 1 S.C.R. 525, at p. 552.

[83]          The bad character evidence rule is an example of an exclusionary rule that rests upon this general principle.  Evidence of the accused's bad character cannot be adduced simply to show that the accused is the sort of person likely to commit the offence charged.  While this evidence might arguably be relevant, it is inherently prejudicial when used in this fashion: Morris, at pp. 201-202; R. v. G.(S.G.), [1997] 2 S.C.R. 716, at para 63.

[84]          One particularly prejudicial form of bad character evidence is evidence that establishes past criminal conduct on the part of the accused that does not form the basis of the charges before the court.  This type of past misconduct evidence has been identified as raising two forms of prejudice that will generally outweigh any probative value that might exist in the evidence itself.  They are commonly referred to as moral prejudice and reasoning prejudice: R. v. Handy, [2002] 2 S.C.R. 908, at paras. 31, 139-147.

[85]          Moral prejudice refers to the possibility that a jury, presented with evidence of uncharged misconduct, might choose to convict an accused person for the crimes charged, not because they are satisfied beyond a reasonable doubt that the charges have been proven, but as substitute punishment for the uncharged misconduct: R. v. D.(L.E.), [1989] 2 S.C.R. 111, at p. 128.  Even where a jury does not follow this explicit line of reasoning, they might still convict based on a belief that the accused is generally the kind of person likely to commit crimes, rather than on the basis of any particular evidence showing the accused to have committed the specific crime charged: Handy, at para. 139.

[86]          Reasoning prejudice, on the other hand, refers to the distracting nature of past misconduct evidence.  Rather than focusing the trial on the question of whether the charges have been proven by the Crown, past misconduct evidence risks distracting a jury with evidence of other criminal conduct: D. (L.E.), at p. 128; Handy, at para. 144.

[87]          Evidence that tends to prove the commission of uncharged criminal acts will normally appear much like the evidence adduced to prove the commission of charged criminal conduct.  Excessive court time devoted to proof of extraneous criminal conduct might well distract the jury from their ultimate task of considering whether the crimes that have actually been charged by the Crown have been proven beyond a reasonable doubt.

II.        ADMISSIBILITY OF SIMILAR FACTS

[88]          Three basic principles of evidence – relevance, balancing probative and prejudicial impact, and the prohibition against bad character evidence – underpin the modern doctrine of 'similar fact evidence'.  The similar fact evidence rule is really an exception to the exclusionary rule related to bad character evidence.  It permits the introduction of evidence demonstrating uncharged misconduct on the part of the accused where, due to its particular characteristics, its probative value exceeds the prejudicial effect normally associated with bad character evidence.

[89]          In 2002, the Supreme Court of Canada released its decision in Handy, which rationalized the law of similar fact evidence in Canada and provided critical guidance to trial judges on how to determine whether the proposed similar fact evidence is to be admitted under a principled framework. At the core of this framework is a balancing between prejudice and probative value.

A.     Threshold Matters

[90]          Before engaging in any balancing, the trial judge must first determine the threshold question of whether the presumptive exclusionary rule applies. The trial judge must determine whether the evidence in question is "discreditable" to the accused, in the sense that an ordinary person would disapprove of their conduct: Handy, at para. 34; S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams' Canadian Criminal Evidence, 4th ed. Loose-leaf (Aurora: Canada Law Book, 2003), at para. 10:40.10.10.  If the evidence is not discreditable, the bad character justification for the exclusionary rule is never engaged in the first place. The evidence, if relevant, will be admissible, unless excluded by some other rule.

[91]          The trial judge must also determine whether there is some evidentiary link between the similar acts and the accused.  Where there is no evidence connecting the accused to the similar fact evidence itself, the evidence is irrelevant and inadmissible: Sweitzer v. The Queen, [1982] 1 S.C.R. 949, at p. 954. 

[92]          Once the evidence falls within the exclusionary rule and there is some evidence that links the accused to the acts in question, the Crown bears the onus of establishing, on a balance of probabilities, that the probative value of the similar fact evidence outweighs its prejudicial effect.  It is impossible to measure probative value without first understanding how the proposed evidence might be relevant. Thus, to meet their burden, the Crown must identify a matter in issue that the similar fact evidence is relevant to.  As Binnie J. explained in Handy at para. 27, "The contest […] is all about inferences."  It is therefore incumbent on the Crown to  identify a series of inferences that it asks the trier of fact to draw other than that the accused is merely of bad character and therefore more likely to have committed the offence: R. v. Perrier, [2004] 3 S.C.R. 228, at para. 18.

[93]          Because the probative force of the inferences that the Crown asks the jury to draw may be inexorably linked with the reliability of the proposed evidence, the trial judge must first be satisfied that the proposed evidence is capable of being reasonably believed and supporting the inferences that the Crown asks the trier of fact to make: Handy at para. 134.

B.    Measuring Probative Value

[94]          The next task for the trial judge is to evaluate the probative value of the evidence within the context of the Crown's formulation of the issue in question. 

[95]          In Handy, Binnie J. provided, at para. 82, a useful list of considerations that had developed over the years for measuring probative force:

·        Proximity in time between the similar acts and the charged conduct;

·        Similarity in detail between the similar acts and the charged conduct;

·        Number of occurrences of the similar acts;

·        The circumstances surrounding the similar acts;

·        Any distinctive features that unify the incidents;

·        Any intervening events; and

·        Any other factor that would tend to support or rebut the underlying unity of the acts.

[96]          As the last point makes clear, this list is not exhaustive.  Similarly, in any given case, not all of these factors will necessarily be relevant.  Rather, they serve as useful guideposts to assist the trial judge determine the strength or weakness of the probative force of the evidence.

[97]          Where the matter at issue is proof of a motive, a somewhat different analysis is required.  Evidence of an accused's motive is relevant, as it can impact questions of identity and intent: Lewis v. The Queen, [1979] 2 S.C.R. 821, at p. 833; R. v. Griffin, [2009] 2 S.C.R. 42, at para. 60.  Consequently, evidence establishing motive is normally admissible.  However, where, as in the present case, the evidence of motive arises from discreditable conduct, the evidence's admissibility must still be gauged.  In these circumstances, motive evidence is not automatically admissible.  The trial judge must still balance probative value versus prejudicial effect: R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.), at para. 27. 

[98]          This said, motive evidence does not fit neatly within the normal similar fact evidence "test".  This, in large measure, is due to the fact that its probative value does not arise from any similarity.  Rather, as set out at para. 80 of Handy:

[W]here the issue is animus of the accused towards the deceased, a prior incident of the accused stabbing the victim may be admissible even the victim was ultimately shot … The acts could be said to be dissimilar but the inference on the "issue in question" would nonetheless be compelling. [Emphasis in original]

[99]          It is not sufficient for the Crown to identify some past conflict between an accused and a victim, and then speculate that it establishes animus and therefore motive.  The Supreme Court in R. v. Barbour, [1938] S.C.R. 465, at p. 469, warned that "it is rather important that the court should not slip into a habit of admitting evidence which, reasonably viewed, cannot tend to prove motive or explain the acts charged merely because it discloses some incident in the history of the relations of the parties."

[100]      Thus, evidence of past misconduct that is woven into a speculative theory of motive does nothing more than bring in the bad character of the accused, and ought to be excluded on the basis that its prejudicial value exceeds any small probative value it might have: see, e.g. R. v. Smith, [1992] 2 S.C.R. 915, at pp. 938-941.

[101]      On the other hand, evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which genuinely helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the charged offence: see, e.g. R. v. Moo (2009), 247 C.C.C. (3d) 109 (Ont. C.A.), at paras. 70-109.

C.    Measuring Prejudicial Effect

[102]      Even where proposed similar facts are probative, the trial judge must still guard against admitting evidence that is, on balance, overly prejudicial.  It is the task of the trial judge to determine the extent to which moral and reasoning prejudice are engaged on the facts of the case. 

D.    Balancing the Factors

[103]      After measuring and weighing the probative value and the prejudicial effect of the proposed evidence, the trial judge decides whether to admit the evidence.  Although a trial judge has no discretion to admit proposed similar fact evidence that is more prejudicial than probative, a trial judge must still be afforded appropriate deference given the inherent difficulty in balancing probative and prejudicial effects: Handy, at para. 153.

[104]      If similar fact evidence is found to be admissible, the trial judge must give the jury a limiting instruction to minimize the risk that they would engage in the prohibited reasoning the exclusionary rule seeks to avoid.  The instruction must also provide guidance to the jury as to how they can use the evidence properly.

Streetwalkers

In today’s Post Barbara Kay suggests that street prostitutes do not need sex trade legalization but rather rescue. Rescue is necessary but, tragically, that hasn't happened up to now.

 

Whether a result of a misguided zeal for personal liberty or because of cost cutting, the will to take lost souls wandering the streets into care has vanished.

 

So long as we are content to ignore the plight of those streetpeople who cannot care for themselves - the addicted, the mentally incompetent, the underaged abused - tragedies like the Pickton killings will continue. Absent a commitment to care for the uncared for legalizing prostitution will have little impact on streetpeople.

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Breakfast

One person with a belief is equal to a force of 99 who have only interests: John Stuart Mill

And this explains why the gun registry interests the government even when a large majority of Canadians what the registry to remain.

Nearly all men can stand adversity, but if you want to test a man's character, give him power.

Abraham Lincoln

Two-thirds of Canadians back long-gun registry: poll

Supporters of the registry tend not to be passionate about it -- we, and I'm one of the supporters, think it makes sense and helps a bit (not a vast amount but it's paid for and does help some).

Those who oppose it are passionate.

So it's a squeeky wheel issue:

Postmedia News, National Post
Tuesday, Oct. 5, 2010

By Mark Kennedy

OTTAWA — Two-thirds of Canadians support the controversial long-gun registry and even voters who back Prime Minister Stephen Harper's Conservatives are split on the issue, a new poll has found.

The national survey conducted exclusively for Postmedia News and Global Television finds that support for the registry stands at 66% nationally. Moreover, support is strong in regions throughout the country — even though Harper has said his party will not "rest" until it abolishes the registry.

Rocco ‘no sugar coating’ Rossi

A realistic plan:

Robyn Doolittle      
Urban Affairs Reporter     

 

Rocco Rossi is prescribing some bitter medicine to heal Toronto's financial woes in the form of his fiscal plan.

No tax cuts or freezes and a tough line with the city's unions are central to balancing the 2011 budget, he says.

But through reduced labour costs, contracting-out and opening up non-essential services to outside bidders, Rossi says he will be able to trim $460 million from the annual budget by the end of his first term.

"With my fiscal plan, what you see is what you will get. No sugar coating. No typical politician 'Tell them what they want to hear,'" he said from his Yorkville campaign office.

At a time when the city needs to find $503 million in savings to balance the 2011 budget, Toronto can't afford impractical promises, he said.

"Unlike my two principal opponents … I'm not offering unrealistic tax freezes or cuts. But neither will I have to resort to painful service cuts and labour strife to pay for rash election promises," he said. "A little sacrifice, a little restraint, and a whole lot of progress each and every year."

Rossi's plan is being praised in some quarters as the most realistic of the four. Frontrunner Rob Ford has promised to do away with both the vehicle registration tax and land transfer tax if elected.

Jury Vetting does not lead to new trial

R. v. Yumnu, 2010 ONCA 637

 

It is common to hear complaints that the Courts are soft on crime and allow criminals to go free because of procedural errors by police or prosecutors.  Such complaints are misfounded – Canadian courts are focused on substance.  This week’s Ontario Court of Appeal decision in the Yumnu (“jury vetting”) case makes that abundantly clear.

 

On December 22, 2005 Ibrahim Yumnu and two others were convicted of first degree murder and conspiracy after a nine month jury trial in Barrie, Ontario. Yumnu and the others appealed their convictions;  it was a straightforward appeal until, during the hearing of the appeal, an allegation of jury vetting was raised.

Jury vetting occurs when the Crown has special additional information, unknown to the defence, about jurors.  This may allow the Crown to choose a jury less inclined to acquit.  The Attorney General has repeated forbidden the practice.  In Yumnu's case the Crown received the jury list at least a month before it was supposed to.  The list was then circulated to police for review. 

 

A secretary for the senior Crown in Barrie wrote to six OPP detachments in Simcoe County, as well as three other police services saying:

"Please check the attached jury panel list, for the persons listed in your locality and advise if any of them have criminal records. It would also be helpful if comments could be made concerning any disreputable persons we would not want as a juror. All we can ask is that you do your best considering the lack of information available to us. Please relay the information by telephone."

Despite the scope of the Crown Attorney’s request, in the end, the police inquiries were limited to as to whether a prospective juror had a criminal record. It is proper to determine if a juror has a criminal record.

The Juries Act requires the list of names to be "under lock and key" until 10 days before a panel of potential jurors is to appear in court. The letter with the "attached jury panel list" was sent to police six weeks before jury selection began for Yumnu and his two co-accused-- more than four weeks before Crown or defence were supposed to be permitted to see the jury rolls.  Nevertheless, even though the Crown seems to have had the jury list early, there was no significant impact on the jury process because only criminal background checks were performed.  Such checks are proper and could have been performed within the ten day period had the Crown not received the list early.

In deciding if the trial should be set aside the Court of Appeal faced a difficult task.  On the one hand, the reputation of justice depends on the public seeing that trials are fair – but on the other hand, persons convicted of dreadful crimes should not be allowed to go free because of procedural failures. 

A basic principle of Canadian justice is that the person deciding a case is impartial. The Supreme Court has stressed that the process of picking a jury is aimed at selecting an impartial jury, not one favourable to the Crown or defence. Jury vetting puts that principle aside and risks bringing the administration of justice into disrepute.  As the Court wrote: “Essential to the overall fairness of a criminal jury trial is a jury that is and appears impartial in their determination of the adequacy of the prosecutor’s proof.  Neither the composition nor the conduct of the jury should give rise to a reasonable apprehension of bias.  …To sustain a claim of a lack of trial fairness based on a reasonable apprehension of bias, the composition of the jury must be such that it leaves the well-informed observer with a reasonable apprehension of bias in favour of the prosecution.”

 

That said, the Court concluded that here, no actual prejudice resulted from the Crown’s request for review of records related to potential jurors.  To demonstrate an impairment of the right to make full answer and defence, an accused must establish a reasonable possibility that the failure affected the outcome at trial or the overall fairness of the trial process.  Here no such failure was shown and the trial decision stood.

 

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Lots of big cases coming out of the Court of Appeal today -- Jury Vetting and ORC -- Stay Tuned!

Frivolous and vexatious defined

Pickard v. London Police Services Board, 2010 ONCA 643, released on line today, holds:

[19]          A frivolous appeal is one readily recognizable as devoid of merit, as one having little prospect of success.  The reasons may vary.  A vexatious appeal is one taken to annoy or embarrass the opposite party, sometimes fuelled by the hope of financial recovery to relieve the respondent's aggravation.

Browne v Dunn not absolute

R. v. Johnson, 2010 ONCA 646, released online today, states:

[79]          To the extent that the Browne v. Dunn issue might arise during a new trial, I would simply note the following:  The rule is one of fairness, and is not absolute.  Its application should be determined according to the circumstances of each case.  Counsel should not necessarily be obliged to plod through a witness' evidence in-chief, putting him or her on notice of every detail that they do not accept: see R. v. Henderson (1999), 44 O.R. (3d) 628 (C.A.), at pp. 636-37; R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 42.  A pragmatic approach to the rule is most appropriate.

Jumping into the week ahead!

All whilst awake are in one common world: but each, when asleep, is in a world of their own. Plutarch

Through perseverance many people win success out of what seemed destined to be certain failure: Benjamin Disraeli

Speed limits

Speed limits are sensible and necessary -- but only if realistic. Unrealistically slow speed limits are a significant urban problem.

WHAT REALISTIC SPEED LIMITS DO

Realistic speed limits:

- invite public compliance by conforming to the behaviour of the majority.

- give a clear reminder of reasonable and prudent speeds to non-conforming violators.

- offer an effective enforcement tool to the police.

- tend to minimise the public antagonism toward police enforcement which results from obviously unreasonable regulations.



WHAT UNREALISTIC SPEED LIMITS DO

Unrealistic speed limits:

- do not invite voluntary compliance, since they do not reflect the behaviour of the majority.

- make the behaviour of the majority unlawful.

- maximise public antagonism toward the police, since the police are enforcing a "speed trap" (a road where the posted speed is lower than the safe speed for driving).

- impede the flow of traffic.

Build the roads and the jobs follow. Tommy Thompson

The quotation isn't quite right; it's over simplistic.

But it reflects a reality that economic growth -- jobs -- depends on there being available transport for goods and people.

Time spent on gridlocked streets, or waiting for buses, or sitting in stopped subway cars is time wasted. Goods trapped in railway cars shunted to the side are goods doing no one any good.

Gridlock hurts.

Clear writing

George Orwell:

"I think the following rules will cover most cases:

(i) Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

(ii) Never us a long word where a short one will do.

(iii) If it is possible to cut a word out, always cut it out.

(iv) Never use the passive where you can use the active.

(v) Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

(vi) Break any of these rules sooner than say anything outright barbarous. "

PM gave Jean pledges in prorogation crisis

This is hardly a surprise -- what it does highlight, though, is the the G-G had a choice. So it does matter who is G-G. It is not pure ceremony:

A constitutional scholar who advised Michaëlle Jean during the 2008 parliamentary crisis says Prime Minister Stephen Harper gave the Governor General certain commitments ahead of her decision to grant his request for prorogation.

The revelation by Peter Russell comes amid a sea of praise for Jean as she departed Rideau Hall this week following a five-year term as Governor General. But at the time of the crisis, many questioned her decision to grant Harper a reprieve from a House of Commons confidence vote that his minority Conservative government would almost certainly have lost.

Russell was among several of Canada's foremost constitutional experts summoned to Rideau Hall on Dec. 4, 2008 to advise Jean on whether she should grant the prime minister's request to shut down Parliament, though he didn't sit in on her private meeting with Harper.

In an interview aired Saturday on CBC Radio's The House, Russell said Harper made at least two important commitments: that Parliament would return soon, and that his government would then produce a budget that could pass

Read more: http://www.cbc.ca/politics/story/2010/10/01/harper-jean-prorogation.html#ixzz11DwREKHr

Gossip...

A timid person is frightened before a danger, a coward during the time, and a courageous person afterward.

Jean Paul Richter (1763 - 1825)

Klezmer Band

“The jury, passing on the prisoner's life, may in the sworn twelve have a thief or two guiltier than him they try”

Measure for Measure, Act II  
William Shakespeare (1564-1616)

Jury vetting -- at least a dozen cases at risk of retrial

On Tuesday the Court of Appeal will release its decision in R. v. Yumnu, Duong and Cardoso.

Yumnu, Duong and Cardoso were convicted on December 22, 2005 of first degree murder and conspiracy to commit murder after a nine month trial before a jury in Barrie, Ontario. The appellants appealed their convictions. During the hearing of the appeal, it became known that what is colloquially referred to as "jury vetting" had taken place prior to the commencement of the trial.

The Crown was given the jury lists in advance of what was is customary -- otherwise confidential information from government data bases was then used to choose jurors potentially favourable to the prosecution. Local police services had searched confidential databases to uncover information about hundreds of potential jurors, which was passed on to the Crown. The prosecutor, when picking the jury, had a list of potential jurors with notations from police beside their names such as "ok," "possible record," "fraud-dismissed," "criminal record peace bond entered," and, for a teacher: "accused of assaulting student." The defence had no such material -- and didn't know the Crown did.

The appeal was adjourned to permit the appellants and the respondent Crown to introduce evidence and arguments regarding the validity of the proceedings in light of this information.

A basic principle of Canadian justice is that the person deciding a case is impartial. The Supreme Court has stressed that the process of picking a jury is aimed at selecting an impartial jury, not one favourable to the Crown or defence. Jury vetting puts that principle aside and risks bringing the administration of justice into disrepute.

There are at least a dozen other outstanding appeals where jury vetting took place, including the case of a young man convicted of killing a police officer, all awaiting the outcome of the Yumnu case on Tuesday. Should a new trial be ordered -- and such a result is very possible -- many other cases will likely have to be retried.

Jury vetting decision to be released this Tuesday

The Court of Appeal for Ontario just announced that Yumnu (on jury vetting) will be released on Tuesday at 11am.

Bulgogi ciabatta

Wow - now that's Canadian - Korean BBQ on an Italian bun!!!

Corroboration

R. v. Ahmadi, 2010 ONCA 639 presents an interesting example of corroboration in modern Canadian law. Historically for certain offences evidence corroborating the complaint was necessary. Such evidence had to tend to show an offence occurred and the accused was linked to the offence. Conviction was no available on the uncorroborated word of the complainant.

That situation is no long past and corroboration is only a "common sense" type requirement. The Court holds:

[6]               Second, the appellant contends that the trial judge erred with respect to corroborating or confirmatory evidence. The trial judge initially decided that the complainant's evidence could only be relied on where corroborated, given her level of intoxication. The appellant submits that he erred by relying on certain evidence as being confirmatory of the sexual assault.

[7]               We disagree. Some of the evidence criticized by the appellant in this submission was indeed directly corroborative of the sexual assault – for example, the injuries the complainant suffered after she left the Tim Horton's store with the appellant and his friend. The other evidence, although not directly corroborative of the sexual assault, was confirmatory of the complainant's account of the events generally, and was used as such by the trial judge.

TGIF -- need to sleep all weekend!

Open Mike with Michael Ignatieff and Ken Dryden

This will be a big event and well worth attending – regardless of whether you are a Liberal or not…

 

Wednesday, October 13, 2010 — 6:30 p.m.

Banquet Hall, Beth Emeth Bais Yehuda Synagogue

100 Elder Street

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