Dog tired...

There are some duties we owe even to those who have wronged us. There is, after all, a limit to retribution and punishment: Cicero

Vera's cubs named: Greg and Aleut

Not sure which this one is!

Life is God's novel. Let him write it: Isaac Bashevis Singer

(Of course, the quotation pre supposes G-d has a gender and that it's masculine -- still, the point's well taken)

Agreement to agree or binding contract?

Ward v. Ward, 2011 ONCA 178 is an important family law decision upholding a domestic contract. The Court considered various factors and, in dealing with an argument that the contract lacked certainty, wrote:

[53]         At common law, an agreement is binding if the parties consider that it contains all essential terms, even if the parties also agree that those terms will subsequently be recorded in a more formal document together with the usual terms ancillary to that type of agreement. However, an agreement is not final or binding if it is merely an agreement to later agree on essential provisions, or to defer the binding nature of the agreement until the execution of the proposed subsequent formal contract. The proper approach was discussed in Bogue v. Bogue (1990), 46 O.R. (3d) 1 (C.A.) where, at para. 12, Rosenberg J.A. cites Robins J.A. in Bawitko Investments Ltd. v. Kernels Popcorn Ltd.  (1991), 79 D.L.R. (4th) 97 (Ont. C.A.) at pp. 103 - 104 as explaining the "true legal position":

As a matter of normal business practice, parties planning to make a formal written document the expression of their agreement, necessarily discuss and negotiate the proposed terms of the agreement before they enter into it. They frequently agree upon all of the terms to be incorporated into the intended written document before it is prepared. Their agreement may be expressed orally or by way of memorandum, by exchange of correspondence, or other informal writings. The parties may "contract to make a contract", that is to say, they may bind themselves to execute at a future date a formal written agreement containing specific terms and conditions. When they agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract.

However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the "contract to make a contract" is not a contract at all. The execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself. [Emphasis added, citations omitted.]

[54]         As well, to be binding, it is not necessary that the original contract include all the ancillary terms that are already implicit in its content. As Rosenberg J.A. observed in Bogue at para. 13:

While there was no express discussion about a release, the settlement of the action implied an obligation to furnish releases: Fieguth v. Acklands Ltd. (1989), 59 D.L.R. (4th) 114 (B.C.C.A.). At the end of those negotiations, the parties had bound themselves to the settlement. It only remained for the lawyers to reduce the terms to a formal document. This was not simply an agreement to agree.

A change of work is the best rest - William Gladstone

Infanticide - an unanticipated concession to human weakness?

L.B. killed two of her children by smothering them shortly after they were born. L.B. was seventeen years old at the time she killed her first baby but was an adult at the time of the second killing.

In both cases the killings came to light only after L.B. admitted to smothering the children. L.B's admission came while she was a patient in a psychiatric facility -- the two deaths had previously been thought accidental. In both cases, L.B. smothered the children shortly after birth and while she suffered from significant mental illness arising, at least in part, from the consequences of childbirth.

The facts of the killings were not contentious. L.B. gave a detailed statement to the police admitting that she killed her children. She explained to the police that she was "really confused" and "fighting with her thoughts" at the time. L.B. insisted that she did not want to hurt her children, but wanted to help them.

L.B. was charged with two counts of first degree murder. At her trial the judge found L.B.'s thinking suffered a "disturbance" as a result of giving birth. Nevertheless, the Court found that she did have the mental capacity to understand what she was doing and concluded that L.B. intended to kill her children.

In the end, the judge found that L.B. was guilty of infanticide and not guilty of murder. She was given a sentence of one year in jail and probation. The sentence was far less severe than it would have been for murder.

In Canada the killing of a human being is always called homicide. Homicide is divided into two categories -- culpable and non-culpable. In almost all cases culpable homicide is murder (where the accused intended to kill or was reckless as to killing) or manslaughter (where the accused didn't intend to kill but did so where there was a clear risk of bodily harm).

In some very rare cases, as with L.B.'s case, there is a third form of culpable homicide -- infanticide.

Infanticide occurs where a mother's mental state is "disturbed" from the "effects of giving birth" or the "effects of lactation" and she, "by wilful act or omission", causes the death of her newly born child.

Infanticide is a fairly new offence. It entered the law in the United Kingdom (and thence to Canada) in the 1920's because juries flatly refused to find mothers who killed their newborn children guilty of murder. At the time the penalty for murder was hanging and juries, faced with a mother who had obviously killed her child, refused to convict for murder and acquitted or found against the mother for lesser offences such as concealing a pregnancy.

Infanticide was not brought into law as a way to show clemency to the weakness of mothers but rather as a way to ensure that mothers would be convicted of something in spite of the inclination of juries to acquit. This last point is significant.

The Crown appealed the trial decision in L.B.'s case and said that she should have been convicted of murder, saying that infanticide is just a special case or murder. In so arguing the Crown said the offence of infanticide itself "rests on discredited medical opinions and assumptions about the plight of young unwed mothers that do not accord with present reality, and constitutes an unacceptable devaluation of the worth of a newborn child". In fact, far from devaluing the worth of a newborn child, the offence of infanticide was created precisely so as to ensure that there would be some punishment imposed for the killing of a baby. The crime of infanticide does not rest on paternalistic assumptions about women but rather on a "law and order" desire for conviction.

In any event, the rarity of facts justifying charges of infanticide led to real doubt as to what relationship the offence had to other offences such as murder -- is infanticide merely a specific example of murder, as the Crown argued in L.B.'s case, or is infanticide a separate offence which offered a defence to a charge of murder? This was the main issue before the Court of Appeal for Ontario.

The two options are of significance. If the mother can raise infanticide as a partial defence to murder she is liable to a maximum penalty of five years. Based on prior caselaw she stands a good chance of avoiding a jail term altogether. However, if infanticide is merely a special case of murder, when a mother is convicted of murder she must be sentenced to life imprisonment. The distinction is far from trivial.

The Court of Appeal made its decision largely on statutory interpretation. The Criminal Code provides "culpable homicide is murder or manslaughter or infanticide". That suggests that murder and infanticide are mutually exclusive. Certainly the dramatically different penalties for the offences would are consistent with the offences being mutually exclusive -- it makes little sense for an accused to be facing either a maximum penalty of five years or a minimum penalty of life imprisonment for the same act depending only on what particular form of charge the Crown employs. Based on these considerations that Court of Appeal held that where infanticide is made out, a conviction for murder is not available and the maximum sentence is five years imprisonment. Put otherwise, infanticide is a defence to a charge of murder.

The Court of Appeal's decision, while legally sound, leads to an odd policy result. Infanticide was intended to ensure stiffer punishment for the killing of newborn children. The effect of the Court of Appeal's decision that infanticide is a defence is to lessen the penalty that would otherwise follow for murder. The effect has been to make the law on infanticide the reverse of what Parliament intended; rather than increase, it decreases, punishment. A "law and order" initiative from the 1920s has an unexpected consequence today.

Wonderful line from National Geographic

...there is one natural wonder just about all of us can see: dinosaurs using their feathers to fly -- birds.

What is it about Pandas and Hobby Horses?

Leave granted in signalling case

A startling number of injuries and fatalities arise from accidents where trucks or other machinery are operated without signallers.

When a signaller is legally required is a significant issue (as a practical matter a signaller should always be employed but cost and expediency sometimes override that).

Today the Court of Appeal agreed to hear a case on point in R. v. Sheehan's Truck Centre Inc., 2011 ONCA 170. The Court held, granting leave:

[2]              In this case, a worker was seriously injured when his co-worker reversed a truck over part of his body.  The workers' employer, the applicant, was charged for its failure to provide a "signaller" to guide the truck's reversal.  The charge was laid pursuant to s. 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 for the breach of the prescription contained in section 56 of Industrial Establishments, R.R.O. 1990, Reg. 851.

[3]              Section 25(1)(c) of the Occupational Health and Safety Act requires an employer to ensure that "the measures and procedures prescribed are carried out in the workplace".  Section 56 of the applicable Regulation governs all industrial establishments in Ontario.  It prescribes when a signaller must be provided:

Where the operator of a vehicle, mobile equipment, crane or similar material handling equipment does not have a full view of the intended path of travel of the vehicle, mobile equipment, crane or similar material handling equipment or its load, the vehicle, mobile equipment, crane or similar material handling equipment shall only be operated as directed by a signaller who is a competent person and who is stationed,

(a)       in full view of the operator;

(b)       with a full view of the intended path of travel of the vehicle, mobile equipment, crane or similar material handling equipment and its load; and

(c)       clear of the intended path of travel of the vehicle, mobile equipment, crane or similar material handling equipment and its load.

[4]              At first instance, the justice of the peace acquitted the applicant based largely on his interpretation that section 56 applied only if the vehicle was engaged as material handling equipment at the time of the accident.  On appeal, the Ontario Court of Justice appeal judge allowed the appeal, concluding that the legislation required a liberal interpretation to include the vehicle in question and that the legislative provision was not overbroad.  He found the applicant guilty.   

[5]              The applicant argues that leave should be granted on two issues.  First, regarding the correct interpretation of s. 25(1)(c) of the Occupational Health and Safety Act, and section 56 of the Industrial Establishments Regulation.  In particular, the interpretive question focuses on the circumstances in which a "signaller" is required for a "vehicle, mobile equipment, crane or similar material handling equipment".  Second, the applicant takes the position, arising from the proper interpretation, that section 56 is unconstitutionally overbroad.

[6]              In my view, the proper interpretation of this legislative provision raises issues important to the public interest's interest in occupational safety at the workplace. Accordingly, I am satisfied that leave is essential in the public interest:  see R. v. Krukowski (1991), 2 O.R. (3d) 155 (C.A.); Ontario (Ministry of Labour) v. Hamilton (City) (2002), 58 O.R. (3d) 37 (C.A.); R. v. Rankin (2007), 216 C.C.C. (3d) 481 (Ont. C.A.). 

Trustees in bankruptcy not immune from cost orders but such should rarely be made

Credifinance Securities Limited v. DSLC Capital Corp., 2011 ONCA 160:

[48]         While trustees in bankruptcy are not exempt from liability for costs, the jurisprudence in the field suggests that they will only be liable in limited circumstances: see Farm Mutual Financial Services Inc. (Re) (2010), 66 C.B.R. (5th) 85 ( Ont. S.C.).  I fail to see any such limited circumstances in this case.  DSLC has not met its heavy burden and has not satisfied me that this is an obvious case.

Conferences are very important

Infanticide a defence to charge of murder

L.B. was charged with two counts of first degree murder arising out of separate incidents resulting in the deaths of two of her infant children.

After a trial in the Superior Court of Justice, she was acquitted of the two charges but convicted of infanticide in relation to the death of each child.

R. v. L.B., 2011 ONCA 153 examines the infanticide provisions of the Criminal Code and concludes infanticide is a defence to murder and if a culpable homicide otherwise being murder falls within the definition of infanticide then the defence applies and conviction only for infanticide follows.

The Court holds:

[55]         Section 222(4) divides culpable homicides into three different indictable offences: murder, infanticide and manslaughter.  Murder is defined in s. 229 and subdivided into first and second degree murder by s. 231.  All murders are punishable by a minimum sentence of life imprisonment: Criminal Code, s. 235.  Infanticide is defined in s. 233 and is punishable by a maximum of five years in prison: Criminal Code, s. 237.  There is no minimum punishment.  All culpable homicides that are neither murder nor infanticide are manslaughter: Criminal Code, s. 234.  Manslaughter is punishable by a maximum of life imprisonment: Criminal Code, s. 236(b).  There is no minimum punishment for manslaughter unless a firearm is used in the commission of the manslaughter: Criminal Code, s. 236(a).

[56]         Murder and manslaughter are distinguished by the mental element required to prove murder.  Murder requires proof of an intention to kill (s. 229(a)(i)) or an appreciation that one's acts are likely to cause death (s. 229(a)(ii), s. 229(c)).  Manslaughter does not require either an intention to kill or an appreciation that death may be caused by one's acts, but instead requires objective foreseeability of the risk of bodily harm: R. v. Creighton, [1993] 3 S.C.R. 3, at pp. 44-45.  The requisite mental element required to prove murder is what makes murder more morally culpable than manslaughter and justifies the more punitive sentence.

[57]         Unlike murder and manslaughter, infanticide and murder are not distinguished by the required mental element.  Infanticide requires a "wilful act or omission" that causes death.  The conduct must also be culpable homicide within s. 222(5), meaning, in most cases, that the conduct must constitute either an unlawful act or criminal negligence:  Criminal Code, ss. 222(5)(a) and (b).  As will be explained later in these reasons, although the mental element of infanticide is not limited to the intention to kill, an act or omission done with the intent necessary for murder will satisfy the mens rea component of infanticide.  The distinction between murder and infanticide lies more in the actus reus than the mens rea. 

[58]         Infanticide, as defined in s. 233, targets a very particularized form of culpable homicide.  The section has potential application only where a mother kills her newborn child, defined in the Criminal Code as a child under one year of age.  The potential application of infanticide is further limited by requiring that at the time of the homicide, the mother's mind must be "disturbed", either because she is not fully recovered from the effects of giving birth or by reason of the effect of lactation. 

[59]         The definition of infanticide focuses on two things.  First, it requires a mother-child relationship between the perpetrator and the victim.  Second, the mental state of the perpetrator/mother must be disturbed and that disturbance must be connected to the effects of giving birth or lactation.  Unlike other mental states that may mitigate criminal responsibility, infanticide does not require any causal connection between the disturbance of the mother's mind and the decision to do the thing that caused her child's death: R. v. Guimont (1999), 141 C.C.C. (3d) 314 (Q.C.A.), at p. 317; E. Cunliffe, "Infanticide:  Legislative History and Current Questions" (2009) 55 Crim. L.Q. 94, at pp. 112-113;  I. Grant, D. Chunn & C. Boyle, The Law of Homicide, loose-leaf (Scarborough: Carswell, 1995), at p. 4-91.  Because the mother's mental "disturbance" is not connected to the decision to kill, that "disturbance" is better considered as part of the actus reus and not a mens rea component of the crime of infanticide.
...

[99]         My application of the "modern principle" of statutory interpretation leads me to conclude that Parliament intended to make infanticide a partial defence to murder when it introduced infanticide into the Criminal Code in 1948.  Parliament did not intend to alter the status of infanticide by the 1954 amendments.  Infanticide was initially, and still is, both a stand alone indictable offence and a partial defence to a charge of murder.

Something not seen in Baker lake, NU

Review of tertiary ground on bail release

R. v. Gale, 2011 ONCA 144, which arises in the context of a bail release following a murder charge, is useful for its discussion of the tertiary ground for release:

[24]         Bearing in mind the nature of the s. 680 review and the standard of review to be applied, I turn to the arguments advanced by the Crown on its application for the order directing a review.  The Crown does not allege an error in law or any misapprehension of the evidence.  Nor does the Crown indicate that it will seek to produce additional material relevant to the question of bail.  The Crown argues that in considering the tertiary ground, the bail judge failed to give sufficient weight to certain features of the evidence, … [the balance of this paragraph refers to evidence adduced at the bail hearing and has been edited pending completion of the proceedings to comply with the non-publication order of  Justice Rogin. The full text of the decision is available at the Registry of the court.] 

[25]         The motion judge's determination that the respondent's detention was not justified on the primary or secondary ground is not challenged.  The tertiary ground is to be used sparingly to justify detention:  R. v. R.D. (2010), ONCA 899, at paras. 51-55.  A bail judge, in considering the tertiary ground, must take the pulse of the reasonable, informed member of the community.  A judge sitting within the community where the homicide occurred and hearing the bail application in that community is in a better position to perform that function than a panel of this court.  That is not to say that bail orders that turn on the tertiary ground are immune from review under s. 680.  However, where it is not suggested that the bail judge misapplied the law, misapprehended the evidence, or reached an unreasonable conclusion, I think it unlikely that a panel will "second guess" the bail judge on the proper application of the tertiary ground.

[26]         Accepting that s. 680 contemplates a correctness standard of review that does not mean that every decision can be reviewed on a correctness standard.  Some decisions involve the exercise of a broad discretion based on the application of general principles to a specific fact situation.  In some fact situations, the exercise of that broad discretion will quite properly admit of different decisions.  Those decisions cannot be classified as either "right" or "wrong", but only as a proper exercise of the discretion. 

[27]         A decision to grant or refuse bail based on the tertiary ground involves a careful assessment of the interaction of subtle factors that are difficult to measure and which readily admit of different assessments by reasonable people.  An appellate court reviewing that decision must take into account the nature of the decision and recognize the clear advantage that the local judge has over the appellate court in making the kinds of assessments required by the criteria relevant to the tertiary ground. 

[28]         This was a close call on bail.  This is a case that falls into that category of cases where reasonable judges could reach different conclusions on the question of bail.  However, absent any claim that the bail judge fell into legal error, misapprehended material evidence, or reached an unreasonable result, I do not think there is any realistic prospect that a panel of this court would reverse the bail judge's exercise of his discretion on the tertiary ground.