What does 'child' mean? A significant Court of Appeal decision with broader implications

R v Levkovic, 2010 ONCA 830, released today online, deals with a prosecution for concealing the body of a dead child. As a result of the way the case was presented at trial it became necessary to consider how "child" is defined in the phrase "died before ... birth".

The potential importance of the decision is obvious.

The Court held that the standard set forth in R v Berriman (1854), 6 Cox C C 388 applied. Berriman held a foetus is a "child" if it had a "chance of life" or was viable. When Berriman was decided the Court suggested that time was about 7 months -- today of course one could argue a much earlier time of viability.

The Court holds:

[78]          To provide meaning for the term "child" as it is used in "the child died before … birth" in s. 243 the prosecutor invoked the standard articulated by Erle J. in his charge to the jury in Berriman. 

[79]          In Berriman rumours were afloat in Ms. Berriman's neighbourhood that she had given birth to a child. What fuelled the suspicion, apparently, was Ms. Berriman's gradual enlargement, followed by a sudden recovery of "her usual form".  A police officer paid a visit to Ms. Berriman, confronted her about her recent delivery and suggested that she had either murdered or concealed the birth of her child. Berriman's response formed a substantial part of the prosecutor's case against her, along with evidence about recovery of some calcined bones of a child of seven to nine months gestation. 

[80]          Erle J. left the case to the jury, instructing them in these terms:

            This offence cannot be committed unless the child had arrived at that stage of maturity at the time of birth, that it might have been a living child. It is not necessary that it should have been born alive, but it must have reached a period when, but for some accidental circumstances, such as disease on the part of itself or of its mother, it might have been born alive.  There is no law which compels a women to proclaim her own want to chastity, and if she had miscarried at a time when the foetus was but a few months old, and therefore could have had no chance of life, you could not convict her upon this charge. No specific limit can be assigned to the period when the chance of life begins, but it may, perhaps, be safely assumed that under seven months the great probably is that the child would not be born alive.

Berriman at p. 390.

[81]          In Berriman's case, as under s. 243, the offence can be committed even if the child was not born alive. To determine whether a child not born alive comes within the prohibition, Berriman postulates a "chance of life" standard.  Without a chance of life, a foetus would not be a "child".  Erle J. rejected any specific limit at which a chance of life begins, but considered it a safe assumption that "under seven months the great probably [sic] is that the child would not be born alive".

...

[112]      The Criminal Code declares when a child becomes a human being. When a child has completely proceeded, in a living state, from the body of its mother, the child becomes a human being for the purposes of the Criminal Code.  It is of no consequence for Criminal Code purposes whether the child has breathed, has an independent circulation, or remains attached to the navel string. This transition into a human being is of signal importance for the law of homicide.  But for the first year of life, at least so far as the Criminal Code is concerned, the new "human being" remains a child, a "newly-born child".

[113]      The Criminal Code offers no assistance about the meaning of "child" otherwise than in the transition from child to human being.  In other words, the Criminal Code does not help us about when a foetus becomes a child for the purpose of determining whether certain conduct involving the child will attract criminal liability.

[114]      The test that Berriman proposes, a chance of life standard, marks the outer boundary of when a foetus becomes a child for the purpose of the concealment offence at common law. Under Berriman, for a foetus to become a child, the foetus must have reached a period when, but for some accidental circumstances, such as disease, it might have been born alive.  The standard is one of viability.  Under Berriman a foetus becomes a child when it reaches a stage in its development from which it might grow into a human being, given proper care.

[115]      For the purposes of establishing liability for an offence under s. 243 in cases involving death before birth or those in which the time of death in relation to birth is unclear, a foetus becomes a child when it (the foetus) has reached a stage in its development when, but for some external event or other circumstances, it would likely have been born alive.

Armand P, La Barge, O.O.M. Chief of Police

With Armand P. La Barge, O.O.M.Chief of Police

Chief Armand La Barge began his career with York Regional Police in 1973. On December 12, 2002, he was appointed as Chief of Police. Chief La Barge is the Past President of the Ontario Association of Chiefs of Police and the Board of Directors for the Canadian Association of Chiefs of Police and he is a member of the First Nations Chiefs of Police Association.

Chief La Barge has been a moving force for community involvement in York Region and his retirement will leave big boots to fill. That said, I cannot imagine we have heard the last of the Chief!

Judgment under reserve for 11 years -- Excessive? Perhaps...

The ABA Journal reports that the Tennessee Court of the Judiciary has reprimanded a county judge who, it said, violated the rule requiring judges "to dispose of all matters promptly." That is a flexible rule, as it has to be given the caseload judges face, but the TCJ decided that 11 years was too long.

 

http://bit.ly/gAwO65

 

 

Scientists are dressing up as panda bears

http://bit.ly/fdxs0a

By Daily Mail Reporter

It gives a whole new meaning to pandering to the kids.

But in this case it's a matter of survival.

Chinese conservationists are dressing up in fluffy panda costumes as they help prepare captive-born cubs to live in the wild.

They are anxious to ensure the endangered animals have as little contact with humans as possible.

So rather than being hand-reared as precious pandas often are, they are being brought up by their mothers in a piece of protected woodland.

But they make sure to slip into their panda suits before venturing anywhere near, as they are anxious that their charges don't become used to seeing humans.

Humans have only two sets of teeth in their lifetime; sharks have forty!!!

‘Cluster’ strategy puts Conservatives on track for majority, poll suggests

The Conservatives are adopting an American tactic -- and that's smart -- of focusing on Ridings and not global numbers. It's pretty clear no one can win a majority on the basis of the aggregate national vote -- but on a Riding by Riding basis it might be possible to cooper up something. We need to do similar.

From today's Globe

"Nanos survey has Harper's team at 38.1% compared to 31.2% for Liberals, with rural and suburban gains leaving coveted mandate within PM's reach despite lack of Quebec breakthrough

...
The Nanos end-of-year survey is significant, revealing an emerging Tory strategy in which the governing party is concentrating on winning groups of riding with focused issues. And it appears to be bearing fruit for the Prime Minister.
...
"The current configuration of national support for the Conservatives suggests that numerically a Tory majority government can be formed without significant breakthrough in the province of Quebec," pollster Nik Nanos told The Globe. "In this paradigm, the Conservatives narrowcast messages to clusters of ridings on a diversity of issues such as crime, the long-gun registry and social issues that align with their base and which divide the opposition."

...
Mr. Nanos's polling suggests the ridings the Tories appear to be concentrating on are in the 905 and 416 area codes – seats now occupied by the Liberals.

He says these "key cluster" ridings had been Conservative under Brian Mulroney. In suburban ridings, Mr. Nanos believes Mr. Harper's team is using "crime as a hot button" and in the rural Liberal and NDP ridings, they are using the long-gun registry as a wedge issue.

"This basically speaks to a strategy where the Conservatives focus on rural and small town Canada along with being competitive among suburban voters," Mr. Nanos said.
...
The regional breakdowns are also telling. In Ontario the Tories are leading the Liberals, 42.3 per cent compared to 35.5 per cent. Mr. Harper and his team are also ahead in Atlantic Canada, usually a Liberal bastion, by 43.5 per cent compared to 36 per cent for the Grits. In Quebec, however, the Liberals are still leading the Conservatives – 26.7 per cent compared to 18.3 per cent – although the Bloc is way ahead, polling at 40.1 per cent."

Citytv’s Mark Dailey dies of cancer

After more than 30 years as an ebullient and authoritative nightly presence, the beloved 57-year-old anchor, reporter and announcer lost his battle with recurring cancer on Monday.

Flocke in France

Who graduates, who votes and who's unemployed -- in one graph

From the Washington Post -- the numbers are American but it seems reasonable to project them to the Canadian experience.

Holograph Wills

A holograph Will is a Will written entirely in hand by the testator.

It is subject to no other formal requirement ; witnesses are not required for the Will to be legal. Of those provinces that accept a holograph Will, some require the testator’s signature, others do not. In Ontario a holograph Will should be signed and dated by the testator. The entire Will must be in the handwriting of the testator ; a typed Will with testator’s signature is not accepted as a legal holograph Will.

Holograph Wills need only to meet minimal requirements in order to be valid:

1. there must be evidence that the testator wrote the will, which can be proved through the use of witnesses, friends, other handwritten documents that verify identity.

2. the testator must have had the mental capacity to make a will, although there is a presumption that a testator had such capacity unless there is evidence to the contrary.

3. the testator must be expressing a wish to direct the distribution of his or her estate to beneficiaries.

Judicial review under reasonableness standard

United States of America  v.  Michaelov,  2010 ONCA 819 is an extradition case but sets out clearly the test for judicial review where the standard of review is reasonableness. The language is broadly useful:


[80]          Under s. 57(2) of the Act, the standard of review is reasonableness: Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, at para. 26.  The surrender decision of the Minister is a determination to which this court owes deference: Lake at para. 34.  Interference with the decision is limited to exceptional cases of "real substance": Lake at para. 34.

[81]          On judicial review it is not for us to reassess the relevant factors and to substitute our own view of where the balance falls. What we must do is ask whether the Minister considered the relevant facts and reached a defensible conclusion, one that falls within a range of reasonable outcomes: Lake at para. 41. The Minister's conclusion is not defensible if he has failed to carry out a proper analysis: Lake at para. 41

Where should Fantino go?

From the Vancouver Sun

"Former Ontario Provincial Police commissioner Julian Fantino won last week's byelection in Vaughan, Ont., a longtime Liberal bastion. He is now the poster boy for the Tories' tough-on-crime agenda.

Harper might decide the former officer, who has a reputation as a publicity-seeker with a large ego, needs to spend some time on the backbenches. But there is already a widespread expectation --including among the voters in Vaughan who elected him -- that he has a ticket into cabinet. But where? A front-bench portfolio, such as public safety, or a junior post, where he'll have time to learn the political game and stay out of trouble?

Already, he has made waves, saying in a media interview last week that the Charter of Rights has been "exploited" and that court rulings on the Charter have "benefited some criminals." "

Read more: http://www.vancouversun.com/news/Stakes+high+Tories+Harper+shuffles+cabinet/3932834/story.html#ixzz17LXZHJUX

Monday morning growl!!!

Jews for Jesus case not so weird

Today's Post has a front page story about an evangelist for Jews for Jesus who was fired for getting married without permission. I grant you that is odd especially as the evangelist, a man, married a woman, who was also a committed Christian.

But the core of the story comes at the very end.

It closes by mentioning, in passing, that the evangelist had started his own ministry and had obtained a "donor list" from Jews for Jesus. And he obtained that list in a clandestine manner.

Sheesh -- it's just another wrongful dismissal where the former employee grabbed a client list and went into competition with the old employer -- we must have a dozen just like it in my office right now!

One can't judge Wagner's opera 'Lohengrin' after a first hearing and I certainly don't intend hearing it a second time: Rossini

Very droll -- but in fairness Rossini and Wagner were in a famous flame war (I know that's anachronistic). And Lohengrin is magnificent when properly performed.

Near Starbucks

Wilmer Mills

"A homeless woman sleeps outside the door.
She smells of urine so the customers Who eat brioche and talk about the poor Step wide of her in winter and in summer.
But she has noticed them in their retreat
Of tea and café latte ambiance."

This is a brief part of a fine polemic poem in the December First Things.

First Things is often portrayed as an extremist conservative magazine -- a very unfair assessment. Yes, First Things is a magazine of faith (tending to Catholic but with Jewish and Protestant writers), but it is faith expressed with intellectual rigour and care.

First Things is a good place for poetry and its articles reflect a genuine concern for people here and now.
As the poem suggests, from an expressly Christian perspective, people matter more than ideas about people -- it's better to care for a poor person than to talk about "the poor".

Knut's birthday -- it's hard to be a gentle polar bear

At least he got some goodies:

http://www.monstersandcritics.com/news/europe/news/article_1603509.php/Ice-cream-ice-and-I-m-alone-for-Knut-on-polar-bear-birthday

Happy Birthday Knut!

Here is a link to the Bonds case from Ottawa

http://bit.ly/hjw1ZH

R. v. Bonds, 2010 ONCJ 561 (CanLII)

The decision concludes:

"The officers have tried to justify their actions on the principles of safety, officer safety and accused's safety, as well as risk of suicide.  No inquiry whatsoever was made by the officers prior to their taking action, and that is a common trait that we too often see in the recent past with the influx of a multitude of new recruits, who are often trained by other officers who have one, two, maybe three years of experience.

It is quite clear that the Ottawa Police Service has not been made aware, or is lending a blind eye to the recommendations of the Supreme Court of Canada in Regina vs. Golden.

I was appalled by the fact that a strip search was undertaken by Constable Morris in the presence of, and with the assistance of at least three male officers.

It is quite evident that none of these officers have received gender training, and that they do give only lip service to female dignity and privacy. 

There is no reason whatsoever that Special Constable Morris undertook that search without another female officer present, and with no male officers present in the room.

There is no reasonable explanation for Sergeant Desjourdy to have cut Ms. Bonds' shirt and bra off, and there is no reason, apart from vengeance and malice to have left Ms. Bonds in the cell for a period of three hours and 15 minutes half naked and having soiled her pants, before she received what is called a blue suit.  That is an indignity towards a human being and should be denounced.

Therefore, it is more than evident that the search at 474 Elgin was an extremely serious breach of Ms. Bonds' rights, apart from it being unlawful.  And with the sheer number of appalling behaviours which I have noted, it is quite clear that the only possible outcome, and fair outcome, pursuant to a Section 24 analysis, is one of a stay of proceedings, because as alluded to by Mr. Webber, it would be a travesty to permit these proceedings to go on.  And I certainly would not be a party to such an action."

Snow on the way for GTA

The city will be hit with several centimetres of snow along with high winds, reducing visibility for drivers and creating hazardous driving conditions.

The temperature is expected to hover well below zero, staying around -10 C, with a high of -2 C.

Israeli police blame negligence for deadly forest fire International help flowing into country for Israel’s worst blaze

SEBASTIAN SCHEINER Ein Hod, Israel— The Associated Press

Saturday, Dec. 04, 2010
Negligence, not arson, appears to have caused the worst forest fire in Israel's history, police said Saturday as firefighters from around the world worked to quell the deadly blaze for a third consecutive day.

Two people were arrested in connection with the fire, police spokesman Micky Rosenfeld said without providing further details about the suspects. "We're talking negligence at the moment," Mr. Rosenfeld said.

Israel Radio, citing unidentified police officials, said the blaze likely was started by a family that failed to extinguish a picnic fire

The Trade in Silence

http://www.desdecuba.com/generationy/?p=2129

A remarkable post from Generation Y blog

Sleepy Saturday!

The Progressive Conservatives are a coalition

The PC's have a libertarian group as well as social conservatives and fiscal conservatives. They jockey for position. Sometimes that inevitable jockeying causes problems.

Of course the NDP and we Liberals also have similar groupings -- although the Ontario Liberal Party isn't running candidates against each other in held ridings!

http://bit.ly/dX3U8x

Snowy daze

Haifa fires

SO 31 from the Hansard Blues:

    Hon. Bob Rae (Toronto Centre, Lib.):

Mr. Speaker, the forest fire in
northern Israel has cost dozens of lives and come close to the city of Haifa
and many of its people and institutions, including Haifa university which
has just been evacuated. Canada and Canadians will respond to this tragedy,
and Israel's request for assistance in fighting this fire needs a speedy and
firm "yes" from federal and provincial governments, including sending fire
retardant agents and water bombers.

    Our own country knows only too well the devastating impact such fires
can have. We can all imagine the impact on a much smaller country and its people. This transcends politics and parties. It is about people helping people, and doing so as quickly and effectively as we can.

Today Newfoundland has a woman premier

'Until 1925, a woman could not even vote in Newfoundland and Labrador and today for the very first time in our province's history a woman serves as premier.'—Kathy Dunderdale, Premier

Jury Vetting

R. v. Davey, 2010 ONCA 818, released online today, is another jury vetting case.

In Davey, however, while the jury list was released early it appears both the Crown and defence received the lists at the same time. Further, while police were asked about the jury list they did not access otherwise confidential databases. As a result, the claim of improper jury vetting failed.

The Court writes:

[21] The jury array in this matter came from two panel lists. These lists were provided to the Crown on December 18, 2006, 21 days before the jury was empanelled. The lists would have been available to the defence at the same time and trial counsel (not Mr. Hicks) believes that he received the list a couple of weeks before the trial. Section 20 of the Juries Act provides that the jury list shall not be disclosed until ten days before the sittings of the court for which the panel has been drafted. The parties speculate that the early disclosure in this case is related to the fact that the Christmas holidays intervened before the January 8, 2007 scheduled date for the trial.

[22] In accordance with the practice in the Crown's office in this jurisdiction, copies of the lists were provided to the court officers from the three local police services in the region from which the jurors would be drawn. The officers were asked for their opinions as to the suitability of any of the potential jurors about whom they had an opinion. The officers added notations such as "good", "yes", "ok" or "no" to their copies of the lists, which were then returned to the Crown. An employee of the Cobourg Crown's office then transferred the information to a master list. The master list was given to Crown counsel prosecuting the appellant, but not to defence counsel.

[23] The court officers who received the lists might ask fellow officers for their opinions. They did not, however, access police databases such as CPIC. The common understanding of the police and Crown was that the Crown was inviting comments based on the officers' knowledge of potential jurors in the community. One of the court officers noticed that the deceased's brother-in-law was on the jury list. The officer notified Crown counsel who in turn notified the court and this person was removed from the jury array. Comments were made in relation to 118 of the 400 potential jurors. In this case, there was a challenge for cause. Thirteen of the 118 jurors about whom there were comments, made it past the challenge for cause stage.

[24] Defence counsel, who was from Toronto, showed his copy of the list to the appellant, his family and possibly the local referring solicitor.

…

[27] The appellant submits that the jury vetting in this case violated various provincial statutes concerning protection of privacy as well as the Juries Act. He submits that the failure to disclose the information in the master list was a breach of the Crown's disclosure obligations. Finally, he submits that the non-disclosure and the use Crown counsel made of the information led to an appearance of unfairness thus requiring a new trial.

Violation of Provincial Legislation

[28] The premature release of the jury list in apparent violation of s. 20 of the Juries Act does not affect the fairness of the trial or the validity of the jury selection process. The appellant submits that the purpose of the requirement that the list be kept under lock and key until ten days before the sittings of the court is so that neither Crown nor defence receives an unfair advantage. That may or may not be the purpose of the legislation. In any event, there is no evidence that the Crown did obtain an unfair advantage by reason of the release 21 days before the sittings of the court. According to the agreed statement of facts the defence also received the list before the ten-day period. There is no evidence to show that the defence was hampered in any way in making whatever inquiries it wished in preparation for jury selection.

[29] The appellant also submits that in seeking opinions from police officers, the Crown and the police violated various provisions of provincial privacy legislation such as the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56. This is a complex legislative scheme with various exceptions permitting disclosure of information in the law enforcement context. The matter has been examined by the Privacy Commissioner, who has issued a report, Excessive Background Checks Conducted on Prospective Jurors: A Special Investigative Report (Toronto: Information and Privacy Commissioner of Ontario, 2009) which will no doubt be helpful in the future to the government in shaping privacy policy. In fact, there have already been amendments to the Juries Act since the jury vetting issue came to public attention. However, the appellant has not established any violations of the legislation. In any event, violations of privacy legislation do not in and of themselves undermine the fairness of the jury selection process. In this case, the appellant has not articulated how the alleged violation of this provincial legislation undermined the fairness of his trial and, in particular, how alleged violations of the privacy rights of others (the potential jurors) affected his right to a fair trial.

Disclosure

[30] The Crown's disclosure obligations are broad but they are not unlimited. In my view, the limit is reached where what is sought is nothing more than the personal opinions of police officers about potential jurors. The most recent explanation of the Crown's obligation is provided in R. v. McNeil, [2009] 1 S.C.R. 66 at para. 17:

The Crown's obligation to disclose all relevant information in its possession relating to the investigation against an accused is well established. The duty is triggered upon request and does not require an application to the court. Stinchcombe [R. v. Stinchcombe, [1991] 3 S.C.R. 326] made clear that relevant information in the first party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence (pp. 343-44).

[31] Police officers' personal opinions about potential jurors are not relevant information relating to the investigation and are clearly not evidence to be adduced against the accused. Finally, such opinions are not "information" that will assist the accused in making full answer and defence. Obviously, some opinions fall comfortably within the Stinchcombe/McNeil disclosure regime. Opinions by experts, opinions by witnesses about the identity of the perpetrator and opinions by police and lay witnesses about the speed of a vehicle involved in a collision are potential evidence, or may assist the accused in the exercise of their right to make full answer and defence. Personal opinions about potential jurors are not.

Appearance of a Miscarriage of Justice

[32] The appellant's principal submission on this branch of its argument is that the Crown had an unfair advantage in jury selection that potentially enabled it to select, not an impartial jury, but a jury that would be biased in favour of the Crown. The appellant submits that he need not establish actual bias, merely the appearance of bias. An examination of what actually occurred in this case does not support this submission. I begin with the "information". What Crown counsel received were one-word opinions not based on CPIC or any other police data base. Only 13 of the potential jurors with these notations made it past the challenge for cause phase to a point where the information would have been useful to Crown counsel. The usefulness of the information is demonstrated by the fact that Crown counsel did not challenge one of the potential jurors with a "no" comment and that person became a member of the jury.

[33] The highest the defence can put its case, is that had they had the same information as the Crown, they might have exercised their peremptory challenges differently. Speculation that the accused might possibly have exercised his peremptory challenges in a different way does not establish the appearance that the Crown was able to obtain a favourable jury or establish the appearance of a miscarriage of justice. A reasonable and right-minded person viewing what occurred realistically and practically would not come to the conclusion that the jury appeared biased. In reaching that conclusion the reasonable person would take into account the following.

[34] First, the information was of limited use to Crown counsel. Second, Crown counsel actually disclosed instances where there was a real potential for bias: the brother of the deceased's widow and the juror who expressed an opinion about the appellant's guilt. Third, there was a challenge for cause in which potential jurors were questioned about their connection to the police force. Specifically, the trial judge agreed to ask if anyone was "closely associated with" a member of the police force or a correctional worker, and excused individuals accordingly.

[35] Finally, this so-called jury vetting must be put in context. The opinions gathered by Crown and defence were all in aid of the exercise of their peremptory challenges. Even where there has been a challenge for cause, as in this case, counsel have little more than intuition to assist in making decisions about how to exercise their peremptory challenges. In a smaller town, like Cobourg, the counsel, the accused and local police officers may have some information about the character or reputation of potential jurors, but little or no information that could possibly predict how a potential juror would act. Even with the short comments provided to the Crown counsel in this case, the exercise of peremptory challenges was little more than guess work, guess work that is permitted and sanctioned by the peremptory challenge regime.

Just thinking

Remember that great achievements involve great risk

Requirements of Forensic Evidence

The proof of forensic evidence depends upon a number of other areas of evidence.

First, there has to be proof establishing that the evidence adduced in Court can be traced back to the place where whatever incident is at issue took place. Second, usually, there has to be an expert to interpret the meaning of the forensic evidence.

Thus, suppose a bullet casing is to be adduced in a murder trial – in order for the casing to be admitted the party seeking adduction must show (1) the casing was found at the murder site and (2) the casing is relevant to some issue at trial. In all likelihood, the proof the casing was found at the murder site can be established by a police witness who identifies the casing as being found at the crime scene. The meaning of the bullet case, however, will likely require expert evidence to interpret and explain the casing.

It is worth noting that there is, or can be, a significant cultural gap between scientists and lawyers that impacts on their understanding of evidence. The point is well put by Chayko and Gulliver:[1]

"...forensic science and the law differ in their approaches to the concept of “proof”. The scientist demands a higher degree of empirical evidence to reach a conclusion. Through endless trial and error and tested techniques involving multiple factors and controlled methodology, scientific “proof” in a laboratory is stricter, requiring indisputable substantiation. In contrast, the law has, as it is often said, no laboratories for testing theories. “Legal Proof” is more practical, focussing on probable legal effective causation."

While proof beyond reasonable doubt may approach scientific proof, the balance of probabilities standard is very much lower than such as to satisfy a scientist. The contrasting meanings of “proof” must be remembered whenever dealing with scientific experts. That said, forensic evidence can be critical and indeed, in the proper case, dispositive.[2]

[2] R. v Perlett [2006] OJ No. 3498

[1] G.M. Chayko, E.D. Guilliver, Forensic Evidence in Canada (2d ed) (CLB, Aurora, 1999) 5

Many of us crucify ourselves between two thieves - regret for the past and fear of the future.

Snow

Prostitution case stayed

Bedford v. Canada (Attorney General), 2010 ONCA 814.

As expected the prostitution decision was stayed. The Court writes:

[9]               The test for granting a stay pending appeal is set down in RJR-MacDonald.  The court must be satisfied that:

(i)        There is a serious issue to be tried;

(ii)       The party seeking the stay would suffer irreparable harm should the stay not be granted; and

(iii)     The balance of convenience and public interest considerations favour a stay.

[10]          The first part of the test has been satisfied; it is not disputed by the respondents that the issue before the court is a serious issue. The focus of the analysis will be on stages two and three of the RJR-MacDonald test.  In cases involving the constitutionality of legislation, irreparable harm and balance of convenience tend to blend together and they are often considered together.  This blending of the two stages in cases involving the constitutionality of legislation is understandable because the public interest is engaged at both stages: RJR-MacDonald, at p. 349.

[11]          RJR-MacDonald instructs a motion judge that, in Charter cases, the onus of demonstrating irreparable harm to the public interest is less on a public authority than on a private applicant: p. 346.

[12]           At the balance of convenience stage, I must determine which of the two parties will suffer the greater harm from the granting or refusal of the stay: RJR-MacDonald at p. 342.  In constitutional cases, the public interest is a "special factor" that must be considered in assessing where the balance of convenience lies: p. 343.  As I will explain more fully below, while the Attorney General does not have a monopoly on the public interest,  a private party relying on the public interest to justify continuing suspension of legislation must, at the balance of convenience stage, demonstrate that the "suspension of the legislation would itself provide a public benefit": RJR-MacDonald at p. 349.

[13]          Therefore, unlike the application judge, I must determine whether a stay should be granted in a context where (1) there is a prima facie right of the government to a full review of the first-level decision; (2) the government has a presumption of irreparable harm if the judgment is not stayed pending that review; and (3) the responding parties must demonstrate that suspension of the legislation would provide a public benefit to tip the public interest component of the balance of convenience in their favour.

[14]          This application is particularly difficult because of the findings made by the application judge concerning the link between the impugned provisions and the violence suffered by prostitutes.  The application judge found that the applicants had established that there are ways in which the risk of violence towards prostitutes can be reduced but that the impugned provisions throw up barriers, enforced by criminal sanction, that prevent prostitutes from taking measures that could reduce the risk of violence. 

[15]          There are obvious advantages to maintaining the status quo by staying the judgment.  A stay will minimize public confusion about the state of the law in Ontario; for the time being the law in Ontario will be the same as in the rest of Canada.  The police will be able to continue to use the tools associated with enforcement of the law that they say provides some safety to prostitutes, especially those working on the streets.  The various levels of government will have the opportunity, should they choose to do so, to consider a legislative response to the judgment, which might be better informed following a full review by this court of the application judge's decision.  Further, if a legislative response is required, sufficient time is needed because a response may be difficult to design not only because of the complexity of the issues surrounding prostitution but because of the uncertainty of the role of the province and municipalities in light of the Supreme Court of Canada's decision in Westendorp v. The Queen, [1983] 1 S.C.R. 43.  In that case, the court struck down a municipal by-law directed at control of street prostitution.

[16]          On the other hand, maintaining the status quo will leave in place a legislative framework that the application judge found seriously impacts on the physical security of a group of people, mostly women, who are pursuing an occupation that is not per se illegal.  While it is not my task to review the correctness of the application judge's decision, I cannot simply ignore those findings as they may inform the test for granting a stay.  I am also conscious of the application judge's concern about staying the judgment as expressed at para. 2 of her reasons on October 15, 2010, granting a further temporary stay:

I expressed to counsel that I was concerned about extending the period of stay in light of my findings that the impugned provisions were being rarely enforced or were ineffective and that the law as it stands is currently contributing to danger faced by prostitutes. However, because all the parties consented and the extension was only for an additional thirty days, I am exercising my discretion and granting a stay of my judgement that the provisions are unconstitutional and should be of no force and effect, for an additional thirty days.

Grumpy

Can you question police?

The new Citizenship Exam (and I am generally in favour of it) asks, in Canada can you question police and their actions?.

Now I think of it, I'm not sure what the correct answer is... .

We walk in circles, so limited by our own anxieties that we can no longer distinguish between true and false, between the gangster's whim and the purest ideal: Ingrid Bergman

Punishment does not follow finding of Not Criminally Responsible

R. v. Ferguson, 2010 ONCA 810 deals with a case of a Not Criminally Responsible individual and release in the community. Anita Szigeti, who argued the case, obtained a remarkable result and drew the case to my attention. The Court pointed out that a finding of NCR is not to be followed by punishment:

II: The Significant Risk Requirement in Section 672.54


[7] An accused who is found NCR cannot be punished for his or her criminal act. Any post-verdict limitation on the liberty of the person found NCR must be justified on the basis that he or she poses an ongoing danger to the community: R. v. Owen, [2003] 1 S.C.R. 779, at para. 25. That constitutionally mandated precondition to restriction on liberty finds its statutory expression in s. 672.54(a). That section provides that if the Review Board concludes that the NCR accused does not pose "a significant threat to the safety of the public", the Review Board must order an absolute discharge.

[8] The meaning of the phrase "significant threat to the safety of the public" has been authoritatively set down in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 49-62, 69. The phrase refers to a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying. A very small risk of even grave harm will not suffice. A high risk of relatively trivial harm will also not meet the substantial harm standard. While the conduct must be criminal in nature, not all criminal conduct will suffice to establish a substantial risk. There must be a risk that the NCR accused will commit a "serious criminal offence".

Prostitution decision released tomorrow

Bedford et al. v. Attorney General of Canada
Court of Appeal file C52799, Motion M39380

On Monday, November 22, 2010, Justice Rosenberg heard an application brought by counsel for the Attorney General of Canada seeking to stay the order of Madam Justice Himel pending the hearing of the appeal in this matter. His decision is under reserve. Although the order of Himel J. staying her judgment expired on November 27, 2010, Justice Rosenberg made an order further staying the judgment until he has delivered his decision on this application.
His decision will be released at 11 am on Thursday, December 2, 2010.

Liberals won't support human smuggling legislation

Election issue? Election early New Year?

The Canadian Press
Date: Wednesday Dec. 1, 2010 1:42 PM ET
OTTAWA — The Harper government's controversial legislation to combat human smuggling is all but dead.

Liberal Leader Michael Ignatieff has announced that his party won't support the bill at second reading, meaning they'll try to kill it before it can even be studied by a Commons committee.

Sentencing peculiarly within trial judge's expertise

R. v. Kimpe, 2010 ONCA 812 is a nasty manslaughter case. On the facts the trial judge's sentence might be seen as too high but the Court of Appeal declined to vary the sentence (except on a calculation of deadtime) noting the sentencing process was one peculiarly within the expertise of the trial judge:

[18] Our task at the appellate level was succinctly described by Iacobucci J. in the often cited case of R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46:

An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.

[19] In respect of the 10 year sentence, and in spite of Mr. Sheppard's able argument, I am not able to conclude that the sentence is clearly unreasonable.

Snow at last!