The Court held the drop in value not actionable. There needed to be proof of harm at the time of the pollution:
[57] Where the nuisance is said to flow from the physical harm to land caused by the contamination of that land, the claimants must show that the alleged contaminant in the soil had some detrimental effect on the land or its use by its owners. In this case, potential health concerns were the only basis upon which it could be said that the nickel particles harmed the land of the claimants. It was incumbent on the claimants to show that the nickel particles caused actual harm to the health of the claimants or at least posed some realistic risk of actual harm to their health and wellbeing. The authors of The Law of Nuisance in Canada, at p. 85, although in a somewhat different context, aptly describe the nature of the harm the claimants had to prove:
It is true that private nuisance is predicated on harm to the plaintiff's property rights; but surely one of those rights must be the right to occupy the property without harm to one's health or even at the risk of one's life. This is particularly necessary for residential property, where the heart of the property interest stems from the desire to live on the property. Private nuisance vindicates the bundle of rights associated with one's property, and the right to live on one's land without risk to life or health must be a right in that bundle. Additionally, the 'health' aspect of the bundle of rights that are protected by nuisance law has been noted in several cases. [Emphasis added.]
[58] Had the claimants shown that the nickel levels in the properties posed a risk to health, they would have established that those particles caused actual, substantial, physical damage to their properties. However, the claims as advanced and as accepted by the trial judge were not predicated on any actual risk to health or wellbeing arising from the particles in the soil. The result at trial would presumably have been the same had it been established beyond peradventure that nickel particles at any level had no possible effect on human health.
[59] The approach followed by the trial judge effectively removes any need to show that Inco's operation of its refinery caused any harm of any kind to the claimants' land. It extends the tort of private nuisance beyond claims based on substantial actual injury to another's land to claims based on concerns, no matter when they develop and no matter how valid, that there may have been substantial actual injury caused to another's land. On this approach, nuisance operates as an inchoate tort hanging over a property to become actionable, not by virtue of anything done to the property by the defendant, but because of public concerns generated many years after the relevant events about the possible effect of the defendant's conduct on the property.
Clearly this was more a PC loss that a Liberal win. We more or less just kept doing what we had been doing; and the huge PC lead just evaporated into the mist.
What did Hudak do wrong? Well, focusing on crime was a mistake; it's a federal matter anyway. Besides, people are not very worried about crime. Being 'tough on crime' won't lose you any votes (except mine) but it won't win you many either. More generally, Hudak offered 'change' but without a real plan; and promises to cut taxes without losing services seem weak post Mayor Ford.
The big issue left unspoken is finances. The Province is out of money -- so we need to raise taxes or cut spending. That's going to be hard.
[16] It is important for the administration of justice that litigants be able to readily determine the appropriate forum in which to bring a proceeding, including an appeal. Appeals are purely creatures of statute: see R. v. Meltzer, [1989] 1 S.C.R. 1764, at p. 1773. Appeals in civil matters are governed by provincial legislation, most notably the Courts of Justice Act. Appeals in criminal matters are governed by federal legislation, most notably the Criminal Code: see Kourtessis v. Canada (Minister of National Revenue – M.N.R.), [1993] 2 S.C.R. 53, at pp. 69-75. The characterization of a proceeding as civil or criminal is, therefore, a crucial first step in determining the appropriate forum, if any, in which to launch an appeal.
[17] Usually, it will not be difficult to distinguish a criminal proceeding from a civil proceeding. An application for an order made in the course of a criminal proceeding, an application for an order directly impacting on an ongoing or pending criminal proceeding, or an application for an order rescinding or varying an order made in a criminal proceeding will all be criminal proceedings: see Canadian Broadcasting Corp. v. The Queen, [2011] 1 S.C.R. 65; R. v. Adams, [1995] 4 S.C.R. 707; Dagenais; French Estate v. Ontario (Attorney General) (1998), 122 C.C.C. (3d) 475 (Ont. C.A.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 139.
[18] The order under appeal does not fit into any of the categories set out above. It was not made in the course of a criminal proceeding and has no effect on any ongoing criminal proceeding. Indeed, there is no ongoing criminal proceeding. Nor does the order obtained by the CBC rescind or vary any order made in a criminal proceeding. The only order made in the criminal proceeding that could potentially be affected is the non-publication order made at the bail hearing. However, all counsel agree that the non-publication order ended with the acquittal.
A summary follows:
H was acquitted at trial of two counts of sexual assault on his 17 year-old cousin. A alleged that on two occasions in 2006, H had non-consensual sexual intercourse with her while she was sleeping with him in his bed. A testified that she told H to "stop" both times but that he eventually had intercourse with her. On both occasions, she spent the rest of the night with H in his bed. A did not tell anyone about the occurrences but posted a poem online very soon after the first incident as "an outlet", and this led to the incidents coming to light. At trial, H denied any sexual contact with A. The trial judge had "absolutely no doubt" that sexual intercourse had taken place between H and A but was not satisfied that A was sexually assaulted without her consent. The court of appeal concluded that the trial judge erred in law in mishandling the evidence by taking a "piecemeal" approach incompatible with his obligation to consider the cumulative effect of all relevant evidence.
While it is an error of law for a trial judge to assess the evidence piecemeal, the trial judge's reasons here did not disclose any such error. The court of appeal misapprehended the record when it faulted the judge for not referring to A's testimony on the issue of consent, as he did so on at least three occasions. Moreover, the trial judge did not have to "reject" A's evidence in order to be left with a reasonable doubt arising from the whole of the evidence. In fact, he gave extensive reasons as to why he was left with a reasonable doubt on consent. There was also no basis for concluding that the trial judge used small excerpts from the poem out of context. He quoted the poem as a whole and then drew attention to language that raised concerns in his mind. Finally, the court of appeal erred in concluding that a couple of brief excerpts from the poem that had "tipped" the balance in favour of acquittal. The trial judge's concerns regarding consent were based on the evidence of the relationship between H and A, the testimony of the A's sister about how many times she had been in H's bed, and the fact that A had returned both times to the same bed in which she had been violated. The judge's references to the poem excerpts were in the context of his references to other aspects of the evidence, and he explicitly stated that he was taking account of all the circumstances of the case in reaching his conclusion.
The Crown's right of appeal from an acquittal of an indictable offence is limited to "any ground of appeal that involves a question of law alone". The jurisprudence currently recognizes at least four types of cases in which alleged mishandling of the evidence may constitute an error of law alone giving rise to a Crown appeal of an acquittal; this may not be an exhaustive list. First, it is an error of law to make a finding of fact for which there is no evidence. However, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule. Second, the legal effect of findings of fact or of undisputed facts may raise a question of law. Third, an assessment of the evidence based on a wrong legal principle is an error of law. Fourth, the trial judge's failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law, but this error will be found to have been committed only if the reasons demonstrate that this was not done. The trial judge's reasonable doubt did not have to be based on the evidence; it could arise from the absence of evidence or a simple failure of the evidence to persuade him to the requisite level of beyond reasonable doubt. It is only where that reasonable doubt is tainted by a legal error that appellate intervention in an acquittal is permitted.
Regardless of who you support.
I am a Liberal and say the Liberals deserve your vote but if you've read the platforms and think another Party is better, go for it. The main thing is to decide and then exercise your franchise!
Drabinsky has applied in the Court of Appeal for Ontario for bail while the Supreme Court considers his case. The bail hearing is scheduled for Friday.
There is not an application on file for bail from his former business partner and Livent Inc. co-founder, Myron Gottlieb, a court of appeal official said.
R. v. Khan, 2011 BCCA 382 is an important decision from the British Columbia Court of Appeal. It deals with Oath Helping, Vetrovec and something akin to the rule in Browne v. Dunn (1893) 6 R. 67, H.L. The rule in Browne v Dunn says that a cross examiner cannot rely on evidence that is contradictory to the testimony of the witness without putting the evidence to the witness in order to allow them to attempt to justify the contradiction. Here the Crown read transcripts of statements to the police during cross-examination; these statements were not part of the Crown's case in chief. This amounted to splitting the Crown's case – the form of cross-examination took the witness by surprise and did not allow for proper explanation.
Presumably the improper splitting of the case from this use of transcripts is not limited to criminal matters; it could apply in civil and family cases also.
The Court held:
[93] The last ground I will deal with is Mr. Khan's complaint that he was improperly cross-examined on statements he made to the police that the Crown did not tender as part of its case. Those statements were recorded and transcribed but neither the recordings nor the transcripts were before the jury. Before cross-examination commenced, Mr. Khan admitted that the statements were voluntary and admissible.
[94] During the cross-examination, Crown counsel, without objection from Mr. Khan's counsel, read out passages from the transcripts. Mr. Khan contends that the Crown used some of those passages, not as prior inconsistent statement to impeach his credibility, but as evidence of post-offence conduct demonstrating consciousness of guilt. In response, the Crown submits that the cross-examination was properly probing of Mr. Khan's lack of feelings and respect for Ms. Rossette. I disagree with the Crown. While it was open to Crown to lead evidence to show what it contended was Mr. Khan's uncaring attitude towards Ms. Rossette and their unborn child, it was not open to it to do so by cross-examining as it did on statements it had elected not to tender as part of its case. I should note that whether the Crown was entitled to rely on Mr. Khan's reaction to Ms. Rossette's death was not raised as a ground of appeal: see R. v. Perlett (2006), 212 C.C.C. (3d) 11 at paras. 82-86 (Ont.
…
[96] In her closing address, Crown counsel referred to portions of Mr. Khan's cross-examination on his statements to the police. While she did not specifically mention the cross-examination pertaining to his demeanour during those interviews, she did ask the jury to have regard to what she submitted was his inappropriate attitude towards Ms. Rossette:
What we know about the relationship between Mr. Khan and Ms. Rossette was told to you by Mr. Khan. They'd known each other in high school. Then Mr. Khan had ran into he [sic] again in 2004 and at that time they exchanged phone numbers. Mr. Khan told you that Ms. Rossette called him, they talked here and there and as he said, "That was pretty much it." They he told you that they "hooked up," meaning they had sex once or twice. Wouldn't you agree that's a rather demeaning way of describing the relationship that a person had with the now deceased mother of his child?
...
Mr. Khan's testimony concerning Kristin Marrs and Tasha Ros[s]ette and he denied dating them and only had sex with them showed his complete lack of respect and feelings for them.
[Emphasis added.]
[97] In the course of summarizing the Crown's position for the jury, the trial judge said:
[277] …
10. The Crown asks that you disbelieve Mr. Khan's evidence and to note his cavalier demeanour about Ms. Rossette and women in general; …
[98] My difficulty with the above-mentioned cross-examination stems from the fact that it was not directed at impeaching Mr. Khan's testimony or demonstrating inconsistencies in what he told the police, but was designed to place before the jury his demeanour during the interviews and his apparent lack of concern at the time for the death of Ms. Rossette and the loss of their unborn child, e.g., by not asking about them at the outset of an interview. As previously mentioned, the Crown relied on Mr. Khan's apparent indifference to Ms. Rossette's death as supportive of its theory that he either killed her or had her killed to prevent her having a child that would bring shame to his family and bring him a lifetime of responsibility.
[99] In my view, the Crown impermissibly split its case. It was not what Mr. Khan said during the interviews that Crown counsel sought to place before the jury but how Mr. Khan acted during them and when he did, or did not, express concern for Ms. Rossette and the unborn child. I agree with Mr. Khan that parts of what occurred are not cross-examination as it is normally understood, but are tantamount to Crown counsel playing a video-clip from an interview and pointing out to the jury how Mr. Khan was acting or not acting at the time.
[100] How the Crown used the statements was fundamentally unfair to Mr. Khan. It enabled the Crown, after it had closed its case, to present additional evidence of his post-offence conduct; evidence the Crown could have tendered as part of its case. In proceeding as it did, the Crown contravened the "case to meet" principle discussed in R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, where the Court stated:
[47] The "case to meet" principle is a component of the accused's constitutional right to make full answer and defence. It means that an accused has the right to know the case he must meet before answering the Crown's case: R. v. Underwood, [1998] 1 S.C.R. 77, at para. 6; R. v. Rose, [1998] 3 S.C.R. 262, per Cory, Iacobucci and Bastarache JJ., at para. 102. The rationale behind this principle is that the accused, before embarking on his defence, should be able to assume that the Crown has called all the evidence it will rely on to establish guilt. …
[101] Although R. v. Krause, [1986] 2 S.C.R. 466, deals with the Crown's right to call rebuttal evidence, the following from the judgment of Mr. Justice McIntyre is apposite nonetheless (at 473):
At the outset, it may be observed that the law relating to the calling of rebuttal evidence in criminal cases derived originally from, and remains generally consistent with, the rules of law and practice governing the procedures followed in civil and criminal trials. The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case. The Crown or the plaintiff must produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to all the issues raised in the pleadings; in a criminal case the indictment and any particulars: see R. v. Bruno (1975), 27 C.C.C. (2d) 318 (Ont. C.A.), per Mackinnon J.A., at p. 320, and for a civil case see: Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd., [1967] 1 O.R. 18 (Ont. C.A.), per Schroeder J.A., at pp. 21‑22. This rule prevents unfair surprise, prejudice and confusion which could result if the Crown or the plaintiff were allowed to split its case, that is, to put in part of its evidence–as much as it deemed necessary at the outset–then to close the case and after the defence is complete to add further evidence to bolster the position originally advanced. The underlying reason for this rule is that the defendant or the accused is entitled at the close of the Crown's case to have before it the full case for the Crown so that it is known from the outset what must be met in response.
[Emphasis added.]
[102] As Mr. Khan's right to a fair trial was adversely affected by the improper cross-examination, I would allow his appeal on this ground alone.
Khurana v. Khurana, 2011 ABCA 261 deals with appeals from support awards. The Court emphasizes the deference to be paid to the judge of first instance saying:
Standard of Review
[5] The appellant appeals the part of the order dismissing his application. A chambers judge’s discretion regarding support awards is typically given considerable deference and not overturned on appeal “unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or the award is clearly wrong”: Hickey v Hickey, 1999 CanLII 691 (SCC), [1999] 2 SCR 518 at para 11.
Some Justices of the Peace require prosecutors to tell absent defendants of any new date. This is a proper (and ethical) practice. It is not, however, a required practice and the Court has not obligation to tell a defendant of a new date for trial.
The Court holds:
[15] Proceedings under Part III are commenced by information. A defendant, such as the applicant, must receive notice of the charge and the first appearance date by a summons issued under s. 22 or 24. Section 26 prescribes the content of such a summons and how it must be served. Section 26(1) reads:
26(1) A summons issued under section 22 or 24 shall,
(a) be directed to the defendant;
(b) set out briefly the offence in respect of which the defendant is charged; and
(c) require the defendant to attend court at a time and place stated therein and to attend thereafter as required by the court in order to be dealt with according to law. [Emphasis added.]
[16] Section 32 of the Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200 prescribes that a summons under s. 22 shall be in form 104 and a summons under s. 24 shall be in form 106. Both of these forms contain the language set out above in s. 26(1)(c) of the POA:
Therefore you are commanded in Her Majesty's name to appear before the Ontario Court (Provincial Division) at [blank] on the [date] at [time] at [courtroom] and to appear thereafter as required by the court in order to be dealt with according to law. [Emphasis added.]
[17] Section 49 of the POA deals with adjournments. It gives the Ontario Court of Justice, and in specific cases the clerk, the power to adjourn matters from time to time. There is nothing in s. 49 that requires a defendant to be notified of an adjourned date.
[18] Section 50 of the POA speaks to how a defendant may appear in court and provides that he may do so in person or by representative.
[19] Finally, s. 54 of the POA specifically deals with convictions in absentia. Section 54(1) reads as follows:
54(1) Where a defendant does not appear at the time and place appointed for a hearing and it is proved by the prosecutor, having been given a reasonable opportunity to do so, that a summons was served, a notice of trial was given under Part I or II, an undertaking to appear was given or a recognizance to appear was entered into, as the case may be, or where the defendant does not appear upon the resumption of a hearing that has been adjourned, the court may,
(a) proceed to hear and determine the proceeding in the absence of the defendant; or
(b) adjourn the hearing and, if it thinks fit, issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant.
[20] As can be seen, s. 54 requires the prosecutor to prove that the defendant had notice of the original trial date. It does not require the prosecutor to prove that the defendant received any notice of an adjourned date.
[21] There is nothing in the POA that requires that notice be given to a defendant of dates subsequent to those set out in the initial summons, or gives a defendant any expectation of receiving such notice. It is implicit in the wording of the summons under s. 26(1)(c), and the scheme of the POA, that the defendant receive notice of further appearances and trial dates directly from the court in court either in person or through his representative. The court does not bear the responsibility of providing formal notice of court dates beyond those contained in the initial summons.
[22] The constitutionality of s. 54 and its predecessor, s. 55(1), were upheld in R. v. Felipa (1986), 55 O.R. (2d) 362 (C.A), and more recently in R. v. Jenkins, 2010 ONCA 278. This court held that these provisions do not deprive the defendant of the right to be present at his or her trial. The defendant may exercise that right by appearing at the time and place fixed for the trial. Section 54 merely provides the machinery to be employed if the defendant does not avail himself of his or her right to appear at trial. The court has the discretion to proceed with the trial in the absence of the defendant, or the court can adjourn the matter and, if it thinks fit, issue a further summons or a warrant for the arrest of the defendant.
[23] The court observed in Felipa, at p. 363, that:
The appellant was not served with any notice of the adjourned date. If he had inquired, he could have ascertained the date from the court office and appeared on December 4th.
27. It is perhaps trite but nonetheless fundamental law that on a jury trial, it is for the judge to decide all questions of law and to direct the jury accordingly; but the jury, who must take its direction on the law from the judge, is the sole arbiter on the facts. The judge also has the duty, insofar as it is necessary, to assist the jury by reviewing the evidence as it relates to the issues in the case. The judge is also entitled to give an opinion on a question of fact and express it as strongly as the circumstances permit, so long as it is made clear to the jury that the opinion is given as advice and not as direction.
[71] In this case, it was made clear to the jury that they were the sole arbiters of the facts. At the beginning of his charge, the judge explained that while he would try to assist the jury by making some suggestions about how they might use the evidence, he also told them that, "at the end of the day, you, and you alone, must decide what the facts ... are ..." He further instructed the jury that "I might say something that you construe as my opinion on the question of whether Mr. Fry is guilty or not guilty. You must ignore my opinion. You are the sole judges of the guilt or innocence in this case".
The front page had a dedication, signed by twenty or so lawyers, to a recently deceased judge. The dedication spoke of the judge as a person of 'near perfect justice and insight'. Affection and sorrow came off the yellowing page.
Who was the judge?
What did the judge do?
Who were the lawyers who signed the dedication?
Why did they feel so strongly about the judge?
All lost in the mists of time. No one remembers the judges or the lawyers. At most they are minor entries in Wikipedia. Our greatest triumphs and defeats, our joys and sorrows, all pass and are forgotten:
And on the pedestal these words appear:
`My name is Ozymandias, King of Kings:
Look on my works, ye mighty, and despair!'
Nothing beside remains. Round the decay
Of that colossal wreck, boundless and bare,
The lone and level sands stretch far away.
