Monday, February 7, 2011
Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind. Hugo Black
Living tree or dead letter?
In concluding the section is valid the Court of Appeal reviews the history of privilege claims by the Crown. Since such claims were unknown at the time of Confederation the Court holds they cannot be part of the core jurisdiction of the Superior Court.
Some might ask whether it makes sense to determine the meaning of "core jurisdiction" by reference to what existed in 1867. Perhaps a better approach would be to ask what a Superior Court's role should be today (that seems to be consistent with Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714 speaking of the power conferred "broadly conform" to a power or jurisdiction exercised by a superior, district or county court at the time of Confederation). After all, division of net family property litigation did not exist in 1867 and yet it forms a significant part of today's Superior Court; is the Constitution a living tree or a dead letter? Perhaps these issues are best left for another place?
The Court holds:
[14] In Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186 at para. 74, McLachlin J. re-stated as follows the three-part test for determining whether the conferral of jurisdiction on an inferior court or administrative tribunal deprives a s. 96 court of its constitutionally protected jurisdiction, initially laid down by Dickson J. in Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714 at pp. 734-735:
(1) does the power conferred "broadly conform" to a power or jurisdiction exercised by a superior, district or county court at the time of Confederation? (2) if so, is it a judicial power? (3) if so, is the power either subsidiary or ancillary to a predominantly administrative function or necessarily incidental to such a function?
[15] McEvoy v. New Brunswick (A.G.), [1983] 1 S.C.R. 704 holds that s. 96 applies to limit Parliament as well as the provincial legislatures from removing or devolving protected powers to tribunals or statutory courts.
[16]It is common ground that this case falls to be decided on the first branch of the test. In [1995] 4 S.C.R. 725 at para. 15, the first branch was refined to relate to what Lamer C.J. described as the "core or inherent jurisdiction which is integral to their operations." If the power or jurisdiction at issue falls within that "core", it "cannot be removed from the superior courts by either level of government, without amending the Constitution."
[17] The question, then, is this: was the power or jurisdiction to review claims of Crown privilege on grounds of international relations, national defence and national security exercised by superior, district or county courts at the time of Confederation and was that power or jurisdiction essential to the existence of a superior court of inherent jurisdiction and to the preservation of its foundational role within our legal system?
[18] As the motion judge held, at para. 99, there is a long line of authority to the effect that at common law, there was no pre-trial discovery against the Crown: Tomline v. The Queen (1879), 4 Ex. D. 252; Quebec (A.G.) and Keable v. Canada (A.G.), [1979] 1 S.C.R. 218 at pp. 245-246; Waverley (Village) v. Nova Scotia (Acting Minister of Municipal Affairs) (1993), 16 C.P.C. (3d) 64 (N.S.S.C.) at paras. 33-40; Crombie v. The King (1922), 52 O.L.R. 72 (C.A.) at p. 77. As no discovery of any kind was available against the Crown at the time of Confederation, the issue of public interest privilege could not have arisen until legislation enacted in the 1950s made discovery against the Crown in right of Canada possible (Crown Liability Act, S.C. 1952-1953, c. 30, s. 14; Crown Liability (Provincial Court) Regulations, P.C. 1954-1687, ss. 7-8; Peter W. Hogg & Patrick J. Monahan, Liability of the Crown, 3d ed. (Scarborough: Thomson Canada, 2000) at pp. 65-66).
...
[31] I assess the relevant historical context and the operation and effect of s. 38 as follows. Pre-trial discovery was not available against the Crown at Confederation and even after discovery against the Crown was made possible by statute, claims of crown privilege based upon international relations, national security and national defence were effectively immune from judicial review or scrutiny.
...
[33] Section 38 does not remove anything that falls within the core jurisdiction of the Superior Court and that is protected by s. 96. To the contrary, s. 38 provides for a more generous form of judicial review – albeit in another court – of claims of crown privilege than was ever available in the Superior Court at common law.
[34] I also agree with the motion judge that from the perspective of protecting the Superior Court's "core" jurisdiction, there is little or no practical difference between delegating issues of pre-trial production and disclosure to a Master and the regime that assigns that responsibility to the Federal Court. Under either scheme, issues of production and disclosure are determined before the trial by a judicial officer other than the trial judge and the trial judge is left to decide the case on the merits on the basis of the record that has been defined and refined in the pre-trial procedure.
[35] I therefore conclude under the first branch of the test for an infringement of s. 96 that in relation to pre-trial production and discovery, the jurisdiction that is conferred exclusively on the Federal Court by s. 38 did not fall within the power or jurisdiction exercised by the Superior Court at the time of Confederation. It follows that in relation to pre-trial discovery, s. 38 does not deprive the Superior Court of the core jurisdiction protected by s. 96 of the Constitution Act, 1867.
Appellant Court may decline to order new trial where such would not serve interests of justice
[1] We agree with the Crown's submission that the appeal judge wrongly refused to order a new trial and stayed the proceedings on the basis that the appeal judge believed the allegations to be trivial and not worthy of prosecution. It is not for judges to second guess the decision to prosecute a particular allegation.
[2] An appellate court may, in exceptional cases, having determined that the order made at trial should be set aside, decline to order a new trial and direct a stay. The appellate court can do so where, in the circumstances, a new trial would not serve the interests of justice. In the circumstances of this case, the focus of that inquiry should be on the impact of a new trial on the respondent at this point in the proceedings.
[3] The respondent has been before the court on four occasions at personal expense and inconvenience. The allegation against him is minor both in its nature and in respect of the particulars of this allegation. The Crown has made its legal point through this endorsement which makes it clear that judges cannot interfere with the Crown's exercise of its discretion to initiate prosecutions, except in those few cases that come within the abuse of process doctrine. A new trial at this stage would not serve any useful purpose and would cause further inconvenience and expense to the respondent. He has done nothing to contribute to the prolonged litigation of this minor allegation, but is in a sense a victim of self-initiated judicial errors.
Drawing An Adverse Inference From Failure To Call Witness Limited By Court of Appeal
A popular trial technique is to assert that the failure to call a material witness, otherwise within the power of a party, ought to lead to an adverse inference that the evidence of that witness would be unhelpful for the party:
Specifically, an unfavourable inference can be drawn in circumstances where a party has failed to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not offer an explanation for the failure to do so. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it: Sopinka & Lederman, The Law of Evidence in
Although a popular technique, the argument that an adverse inference should be drawn has powerful limitations. The courts are alive to the fact there is no property in a witness and if someone should be called, usually, either party can call that witness: Vescio v. Garfield 2007 CarswellOnt 4243. The fact a witness may be hostile is no bar to calling that witness.
Additionally, the decision by the Court of Appeal in 365 Bay New Holdings Limited v. McQuillan Life Insurance Agencies Limited, 2008 ONCA 100 placed another limit on the use of adverse inference. The Court reasoned that an adverse inference ought not to be taken where a documentary record belies that inference. Specifically, where the documents say one thing there is no obligation on a party to call a witness who will merely corroborate those documents.
The Court held:
[10] The trial judge bolstered his finding of an agreement by drawing an adverse inference against the tenant, who called no evidence on the issue. However, in our view, an adverse inference was not available on this record. The landlord’s claim of an agreement was undermined by the documentary record, which showed that there was no agreement. An adverse inference cannot add weight to evidence of a belief or understanding that is belied by the record on which it was said to be based.
Sunday, February 6, 2011
Superbowl Sunday
~P.G. Wodehouse, "Very Good, Jeeves", 1930
Saturday, February 5, 2011
"Nothing to Envy" by Barbara Demick
"Nothing to Envy" is a depressing book but gripping -- it is oddly reminiscent of Bloodlands by Timothy Snyder.
The famine in Ukraine caused by Stalin is not very different from the mid-1990s famine in North Korea. Arguably Stalin's famine was more intentional than that of Kim Jong-il but they both arose from a murderous purity of ideology that ignored the individual in favour of the collective.
My own sense is that the terror-famine in Ukraine (Holodomor:
Голодомор) is properly seen as genocide intended to destroy Ukraine as a nation -- but how different is that from Kim Jong-il starving perhaps 10% or more of North Korea to maintain Juche?
Regardless, download or buy "Nothing to Envy"; it is an important book.
Sales of e-books outpaced sales of paperbacks for the first time last week
Friday, February 4, 2011
Publish an E-Book -- it's easy to do on Amazon
Who gets my stuff when I die:
http://www.amazon.com/gp/aw/d/B004M18UE6/ref=mp_s_a_1?qid=1296879974&sr=8-1
This post isn't a pitch for my book (fine though it is) but rather to say how easy it is to put a text on Amazon.
The main thing to remember is the text file itself should be saved as an .rtf file and should have no page numbering. The cover needs to be a .jpeg file and should be very simple remembering on most e-book readers all you get are shades of grey.
That's about it. Apart from filling in a few forms and confirming your book is yours to sell, you can post a book to Amazon in ten minutes.
So, write a book and publish on-line. It's easy!
Credit for pretrial time spent in rehabilitation centre
R. c. Brassard, 2011 ONCA 96, released today online, makes clear that a judge may, but not must, give credit for time spent pretrial in a rehabilitation centre where such rehabilitation relates to the matters giving rise to the offence. The Court holds:
[2] En imposant la peine, la juge de première instance a tenu compte du fait que l'appelant avait été résident au centre de réhabilitation pour traiter son problème d'alcool. Pour cette raison, au lieu d'une peine pénitentiaire, elle a imposé une peine de 24 mois moins un jour réduit par 8 mois de crédit pour la détention préventive. Elle a rejeté l'argument de l'appelant à l'effet que la période passée dans le centre de réhabilitation devrait donner lieu à un crédit un pour un….
[5] À notre avis, la peine infligée par la juge dans la présente instance ne violait pas les principes de « step » et de « gap ». De plus, en déterminant la peine appropriée, la juge a spécifiquement considéré le fait que l'appelant a fait des efforts sincères envers la réhabilitation. Ayant ainsi tenu compte de la période de temps passé au centre de réhabilitation pour réduire la peine imposée, la juge n'était pas obligée d'ensuite donner un crédit additionnel en guise de crédit pour détention préventive.
Burden of proof in criminal matters
R. v. Kilabuk, 2011 NUCJ 1 is a recent and useful restatement of the law regarding burden of proof in criminal cases. The decision follows, of course, R. v. W.(D.), [1991] 1 S.C.R. 742 closely but has a nice clarity:
"[49] The standard of proof necessary to establish guilt is high. It is only proof beyond a reasonable doubt that can displace the presumption of innocence. Suspicion alone is not enough. If there is a reasonable doubt arising from the evidence on any essential element required to be proved by the Crown, the Defendant is entitled to the benefit of that doubt.
[50] A criminal trial is not a credibility contest between Crown and Defence witnesses. If a reasonable doubt arises from the credibility of any witnesses heard at trial, the Defendant is entitled to the benefit of that doubt and must be found not guilty.
[51] If the Defendant's evidence is not believed, but this evidence raises a reasonable doubt, the Defendant is still entitled to the benefit of this fragile doubt. An acquittal must result.
[52] Even in circumstances where a Defendant's evidence has been rejected a finding of guilt can only be made where the Court is satisfied, on credible evidence, that the Crown has established the proof necessary for a conviction.
[53] This is the standard required for a criminal conviction. Nothing less will suffice."
Just for a reminder, the critical language from W(D) was:
"In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle"
Thursday, February 3, 2011
Let's hear some details of the "considerable efforts"
Owner of slaughtered sled dogs says half had to be put down
The Canadian Press
VANCOUVER—The B.C. man linked to the slaughter of upwards of 100 sled dogs in Whistler says he estimated about half had to be put down because they were "too old," "sick" and "not adoptable."
In his first comments on the gruesome case this week, Robert Fawcett says he told the owner of a business buying his dogsled tour company that about 50 dogs would be euthanised.
...
Howling Dog Tours cared for the dogs and ran tours on behalf of Whistler tourism company Outdoor Adventures, which had a financial stake in Howling Dog until it took full control last May — the month after the slaughter.
The joint statement by Fawcett and Outdoor Adventures says "considerable efforts" were made to find adoptive homes for the dogs but those efforts were unsuccessful.
Wednesday, February 2, 2011
Relevance, materiality and admissibility
R. v. Luciano, 2011 ONCA 89, a rather nasty double murder case released this week, has a useful passage regarding relevance, materiality and admissibility:
Relevance
[204] Relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between an item of evidence proposed for admission and a proposition of fact that the proponent seeks to establish by its introduction. Relevance is a matter of everyday experience and common sense. Attaching a label like "evidence of after-the-fact conduct" or "post-offence conduct" to an item of evidence does not establish its relevance. An item of evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than it (the fact) would be without the evidence, through the application of everyday experience and common sense.
[205] We assess the relevance of items of evidence in the context of the entire case and the positions of counsel. Relevance does not exist in the abstract or in the air: R. v. Cloutier, [1979] 2 S.C.R. 709, at pp. 730-32. An item of evidence does not cease to be relevant or become irrelevant because it can support more than one inference: R. v. Underwood (2002), 170 C.C.C. (3d) 500 (Alta.
[206] To be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is offered, or even make that proposition of fact more probable than not. What is essential is that the item of evidence must reasonably show, by the application of everyday experience and common sense that the fact is slightly more probable with the evidence than it would be without it: 1 McCormick on Evidence (6th ed.), para. 185, at p. 733.
Materiality
[207] To make its way into a criminal trial, an item of evidence must also be material. Evidence is material if what it is offered to prove or disprove is a fact in issue. What is in issue is determined by and a function of the allegations contained in the indictment and the governing procedural and substantive law. If the fact the evidence is offered to prove is not in issue, for example because of an admission, the evidence is immaterial: Candir at para. 49.
[208] In a prosecution for unlawful homicide charged as murder, evidence that tended to show the identity of the killer and the killer's state of mind contemporaneous with the killing would be material.
Admissibility
[209] Admissibility is a legal concept. Its rules, which are negative and exclusionary, are rooted in policy considerations we regard as of sufficient importance to justify the exclusion of relevant and material evidence. No single policy underlies every admissibility rule. Sometimes, an admissibility rule is animated by concerns about the reliability of evidence. In other instances, a rule may attempt to curb a prohibited chain of reasoning.
[210] Admissibility rules are not unyielding. They give ground, admitting evidence by exception. What justifies exceptional admission varies from one admissibility rule to another, but is generally linked to the policy that underpins the rule of exclusion.
Tuesday, February 1, 2011
I hope Joe Lieberman has a plan to help US border cities after Canadians stop shopping... .
The economy is bad -- so, let's close down cross-border trade with our biggest trading partner.
WASHINGTON — The Harper government has flatly rejected the spectre raised by an influential U.S. senator of requiring Canadians to obtain visas to enter the United States following the release of an "alarming" report about security along America's northern border.
The development came Tuesday as Senator Joe Lieberman, the chairman of the U.S. Senate's powerful Homeland Security committee, commented on a report that found the U.S. Customs and Border Protection agency provides an "acceptable level of security" along less than one per cent of America's 6,400-kilometre border with Canada.
Lieberman said the challenges posed by the world's longest non-militarized border were complicated by the fact that "most Canadians do not need a visa to enter the United States."
Appeals from an Arbitral Award to Superior Court require leave
Kingsway General Insurance Company v. Gore Mutual Insurance Company, 2011 ONCA 87, released today, makes clear that appeals from arbitrations require leave:
[1] This motion raises a point of general application: may a party to an arbitration award appeal a decision of the Superior Court of Justice to this court in accordance with s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, instead of in accordance with s. 49 of the Arbitration Act, 1991, S.O. 1991, c. 17?
[2] Kingsway General Insurance Company seeks an order that it may appeal from the decision of the Superior Court of Justice dismissing its appeal from an arbitration award without leave of this court.
[3] Section 49 of the Arbitration Act states as follows:
An appeal from the court's decision in an appeal of an award, an application to set aside an award or an application for a declaration of invalidity may be made to the Court of Appeal, with leave of that court.
[4] However, s. 6(1)(b) of the Courts of Justice Act contains the general provision:
An appeal lies to the Court of Appeal from … a final order of a judge of the Superior Court of Justice….
[5] Kingsway argues that although s. 49 of the Arbitration Act requires the party appealing from the Superior Court to obtain leave to appeal to the Court of Appeal, s. 6(1)(b) of the Courts of Justice Act provides for an appeal to the Court of Appeal as a matter of right.
[6] I disagree.
[7] Section 49 of the Arbitration Act and s. 6(1)(b) of the Courts of Justice Act are in fundamental conflict. One requires leave and the other does not. Both cannot be given effect. Section 6(1)(b) of the Courts of Justice Act has general application. However, in s. 49 of the Arbitration Act the legislature has specifically addressed the right to further appeal the decision of an arbitrator. The legislative intent, obviously, was that the specific legislation should prevail over the general.
[8] The motion is dismissed. Kingsway requires leave to appeal the decision of the Superior Court to this court.
