MacKay threatens to sue MPs who questioned veracity of chopper tale

At the height of his fame Oscar Wilde sued the Marquess of Queensberry for libel. The libel trial unearthed evidence that caused Wilde to drop his charges and led to his own arrest and trial for gross indecency. After two more trials he was convicted and imprisoned for two years' hard labour. I often remind people who want to sue for libel of Oscar Wilde. Sometimes it's not prudent to sue:

http://bit.ly/rMHSgp

Defence Minister Peter MacKay is considering legal action against MPs who accused him of lying about a ride he took aboard a search-and-rescue helicopter.

Opposition members have called for Mr. MacKay to apologize and even to resign over his use of military resources to shuttle him to the airport in Gander from a personal vacation at a remote Newfoundland fishing lodge.

Documents released last week showed some National Defence staff predicted the trip could be perceived badly, with one suggesting the pick-up was only to be under the "guise" of a search-and-rescue exercise. The cost of the flight has been estimated at $16,000.

Wow - Government held to have breached Wheat Board Act! I didn't see that coming!

"In a ruling today, Federal Court Judge Douglas Campbell said the government violated the Canadian Wheat Board Act by not holding a vote among farmers before introducing legislation eliminating the Wheat Board's monopoly position."

Politics - The Globe and Mail http://bit.ly/uROWSf

"Judge Campbell admonished the government for not consulting with farmers and "simply pushing ahead" with plans to essentially abolish the board. "Had a meaningful consultative process been engaged to find a solution which meets the concerns of the majority, the present legal action might not have been necessary," the judge ruled. He added that the government had to be "held accountable for [its] disregard for the rule of law.""

Punitive damages

Gill v. Singh, 2011 ONCA 770, released today, has some useful language about when punitive damages are available:

(b) Punitive damages

[8]              This was not a case for punitive damages which in law are reserved for exceptional cases.  Malice was neither pleaded nor proven as found by the trial judge.  The lack of an apology standing by itself did not, in our view, provide an adequate basis for punitive damages. The other factors identified by the respondent as justifying punitive damages namely, late admissions at trial, were matters of trial tactics that would more appropriately be taken into account with respect to the costs of the trial.

‘Desperate’ Tories fire back at MacKay’s critics

What troubles me most about this story is how it seems the Forces are being co opted into a political matter:

Ottawa Notebook - The Globe and Mail http://bit.ly/tkcOFX


Department of National Defence resources are now being poured into finding ways of extricating Peter MacKay from the controversy he's created over his 2010 helicopter adventure.
Mr. MacKay's officials have been aggressively searching for ammunition against the opposition and also shopping around stories that put the Defence Minister in a better light. This, after several days of pummeling by the opposition in the House of Commons.

Causation in fact and law

 R. v. Kippax, 2011 ONCA 766 is a helpful case clarifying causation in criminal matters:

[21]         To determine whether a person can be held responsible for causing a particular result, in this case death or bodily harm, we must determine whether the person caused that result not only in fact but also in law: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 44.

[22]         Factual causation involves an inquiry about how the victim died or suffered bodily harm, in a medical, mechanical or physical sense, and an accused's contribution to that result: Nette, at para. 44.

[23]         Factual causation involves a determination of whether A caused B. The answer to the question of whether A caused B is resolved in a criminal case by the evidence of witnesses, those who testify about facts and others who offer relevant opinions: R. v. Smithers, [1978] 1 S.C.R. 506, at 518. The factual determination of whether A caused B has nothing to do with intention, foresight or risk: Smithers, at p. 518.

[24]         To prove factual causation, the Crown does not have prove that an accused's conduct was either the direct or predominant contributing cause of the prohibited consequence, whether death or bodily harm. It is no defence for an accused to say that the conduct of another was a greater or more substantial cause of the death or injuries. The Crown need only prove that an accused's conduct was a significant contributing cause of the death or injuries or, said another way, that the accused's conduct was "at least a contributing cause…outside the de minimis range": Smithers, at p. 519; Nette, at paras. 70-71; and R. v. Hughes, 2011 BCCA 220, 305 B.C.A.C. 112, at paras. 56 and 64.

[25]         Factual causation, as the term itself would indicate, is a question of fact, reviewable only in accordance with a standard of palpable and overriding error: Hughes, at para. 65; and R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 18.

[26]         Legal causation, on the other hand, has to do with whether an accused should be held responsible in law for a prohibited consequence of his or her conduct, for example, death or bodily harm: Nette, at para. 45. In legal causation, the inquiry is directed at the question of whether an accused should be held criminally responsible for the consequences that occurred: Nette, at para. 45; R. v. Shilon (2006), 240 C.C.C. (3d) 401 (Ont. C.A.), at para. 32. In the analysis of legal causation in negligence-based offences, like dangerous driving, reasonable foreseeability of harm is a relevant consideration: Shilon, at para. 33.

[27]         Conduct that is inherently dangerous and carries with it a reasonably foreseeable risk of immediate and substantial harm satisfies the standard required for legal causation: Shilon, at para. 38. Where the conduct of another is a reasonably foreseeable consequence of the conduct of an accused, the accused may be liable as a principal for the conduct of that other person: Shilon, at para. 54. A person may be liable as a principal if she or he actually does or contributes to the actus reus with the required mens rea: Hughes, at para. 77.

[28]         It is well-established that independent, voluntary human intervention in events started by an accused may break the chain of causation: Shilon, at para. 43. A new event may result in an accused's conduct not being a significant contributing cause of a prohibited consequence. But legal responsibility for an event will remain and the chain of causation will not be broken where an accused intentionally produced the outcome, recklessly brought it about, or if the ordinarily circumspect person would have seen it as a likely consequence of his or her own conduct: R. v. Maybin, 2010 BCCA 527, 263 C.C.C. (3d) 485, at para. 35

The test for bias varies depending upon the functions of the decision maker and the question being decided

Davis v. Guelph (City), 2011 ONCA 761 is a useful case dealing with several issues including bias. The Court writes:

[71]         It is well settled, however, that the test for bias varies depending upon the functions of the decision maker and the question being decided.  For example, in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at pp. 636, 638-39, Cory J. observed that there is a spectrum of decision-making tasks to be considered when determining the question of bias in the administrative law context, and the test to be applied is a flexible one, varying with the nature of the decision making body.  At the adjudicative end of the spectrum, the traditional "reasonable apprehension of bias" test will apply in full force.  At the other end of the spectrum, however – where the nature of the decision is more of an administrative, policy or legislative nature – the courts have held that a more lenient test, known as the "closed mind" test is applicable: see also TransCanada Pipelines Ltd. v. Beardmore (Township) (2000), 186 D.L.R. (4th) 403 (Ont. C.A.), at paras. 147-150; Pelletier v. Canada (A.G.), 2008 FCA 1, [2008] F.C.R. 40, at para. 55; Chrétien v. Canada, 2008 FC 802, [2009] 2 F.C.R. 417, aff'd 2010 FCA 283, 409 N.R. 193, at para. 67. 

Atleo vows to fight for First Nations rights

'"To the Crown we say: Do not ever believe that this national chief, or any future national chief, will ever quit or will ever compromise treaty or inherent rights. No First Nations leader will ever take one step away from insisting on the rights as the foundation of our relationship," he said, garnering applause from the chiefs.'

http://www.cbc.ca/news/politics/story/2011/12/06/pol-afn-special-chiefs-meeting.html

A sentencing judge must give considerable weight to a joint submission

While in Canada the judge is not bound by sentencing submissions, the caselaw is clear those submissions ought to be given considerable weight: R. v. Hagen, 2011 ONCA 749. This week’s decision in R. v. Gruden, 2011 ONCA 762 is a good example of how ignoring a joint submission can lead to a reversal on appeal:

[1] The 12 month sentence imposed by the trial judge increased the joint submission at trial twelve fold. In doing so the trial judge in our view overemphasized the fact of the dangerousness of the drug involved.

[2] He also gave too short shrift to the lack of severity of the crime itself, particularly its very low level of sophistication, and the very unfortunate circumstances and background of the offender.

Snowy roads

Just resting

My Commitments as the Next Vice President (English) of the Liberal Party

Within our Liberal family, there is universal agreement that we have a once in a generation opportunity to rebuild our Liberal Party and re-engage Canadians. At the Biennial Convention in Ottawa, dedicated, passionate Liberals will debate the new policies and processes which will define our Party to its members and to Canadians at large. By the end of the convention, we will be committed to a path of major change. I can envision thousands of delegates returning to their ridings, excited and empowered, ready to do whatever is needed.

Then what? Will the Party fall back into old habits, fighting for power and turf, wasting the passion of almost 4000 delegates and thousands of members. As Vice-President (English) I am committed to preventing such a waste.

Electing me as VP of the Liberal Party, you provide me a great opportunity to define the role. My experiences rebuilding and improving organizations, including the Ontario Bar Association, will serve well in working with the National Board and all Liberal members to improve our Party.

The VP must be a core part of Party success, driving and overseeing the progress of new initiatives and communicating this progress to all members. I am stating here my primary goals and would dearly appreciate your thoughts via my website, Facebook or by calling me directly. As Vice-President, I commit myself to the following goals:

 

IMPLEMENT PREDICTIVE VOTER MODELING IN LIBERALIST

Our party has fallen far behind in communicating with Canadians. Our competitors are able to communicate both on broad topics and on micro-targeted concerns by collecting and purchasing immense amounts of data about Canadians. Our competitors currently have more than 10 points of data for every Canadian voter.  We have less than 1.

Predictive Voter Modeling (PVM) is a highly accurate science of using demographic data, including our  polling, survey and election information, to predict how each individual voter might vote, the issues they care about and how likely they are to donate to or join the party.

Our voter management tool, Liberalist, is designed from the ground up to support PVM but we are not making full use of its capabilities. I am committed to purchasing a comprehensive set of predictive scores and making this data available to all ridings using Liberalist.  Using this data, I commit to working with the Ridings and the PTAs to achieve these goals:

To have an improved understanding of what matters to Canadians.

To tailor our messaging to resonate with individuals' concerns and passions

To grow our fundraising and membership. Using PVM, we will respond rapidly to the issues of the day, quickly creating targeted fundraising campaigns to those most likely to care about those current issues.

To make more efficient use of our paid and volunteer communications resources

To improve the effectiveness and return of our communications efforts – phone, mail, online or at the door. Our tools will allow us to better communicate our message and to record and understand their responses.

Simply put, let's talk with the right people about the right things, in the right way, at the right time.

 
CREATE A NATIONAL LIBERAL TALENT BANK

Every time I meet with a group of Liberals, I am overwhelmed by the broad range of talent and expertise. From business leaders to artists, programmers to event planners there are so many talented people willing and able to help the party. Yet there is no easy way for fellow Liberals to access this treasure trove. I am committing to addressing this obvious issue in the following ways:

I commit to drive the creation of a Liberal Talent Bank, providing an effective way to find the expertise within the Party to help them move forward. For example, when an EDA director wants to find a great designer to help update the web site, the Talent Bank will give them a list of Liberals with that capability and talent.

To create a national program of incentives for EDA's and PTA's to collect talent information.  

To create the position of National Volunteer Director, who will work with EDA's and PTA's. Our greatest assets are dedicated volunteers. We need a resource focused on supporting and expanding that volunteer base.

To include under the purview of the Volunteer Director the responsibility for expanding and maintaining Liberal University and making it a vital and well-used source of training for Liberal volunteers.

To expand existing programs celebrating the hard work of our volunteers.

 
ONGOING AND RELEVANT COMMUNICATIONS

In talking with Liberals across Canada, I have heard a recurring complaint, "I have no idea what is happening. The only time I hear from the party is when they are asking for money."

The Party has started down the path of better communications with Liberal.ca and its social media initiatives. But more is needed. As VP (English) I commit to a focus on communication, including these specific initiatives:

Within thirty days of the end of the Biennial, I will issue in both official languages, a report listing all of the initiatives, projects and decisions taken and authorized. This report will provide information about each item, including specific goals, ownership and timeline. Our members, our stakeholders, must be able to track our success and commitment.

Every three months, I commit to reporting our progress to members, as well as the issues and obstacles which stand in the way of success.

I will use all the communications tools at Party disposal to bring this and more information to the membership.

I will expand and extend the ability of the membership to provide their concerns and feedback.

To visit PTA's, Commissions and EDA's across the country, evangelizing new initiatives, processes and policies to all levels of Liberal membership

I commit to working with all members to return our Liberal Party to a respected place in Canadian politics.

Je suis de tout coeur avec vous

Tomorrow is the anniversary of the École Polytechnique Massacre.

I remember it vividly.

On December 6, 1989 Marc Lépine entered the École Polytechnique in Montreal, Quebec, Canada, armed with a legally obtained Mini-14 rifle and a hunting knife, and shot twenty-seven people before killing himself.

He began his attack by entering a classroom at the university, where he separated the male and female students. After claiming that he was "fighting feminism", he shot all nine women in the room, killing six. He then moved through corridors, the cafeteria, and another classroom, specifically targeting women to shoot. Overall, he killed fourteen women and injured ten other women and four men in just under twenty minutes before turning the gun on himself.

The victims killed are listed below:

Geneviève Bergeron (born 1968), civil engineering student

Hélène Colgan (born 1966), mechanical engineering student

Nathalie Croteau (born 1966), mechanical engineering student

Barbara Daigneault (born 1967), mechanical engineering student

Anne-Marie Edward (born 1968), chemical engineering student

Maud Haviernick (born 1960), materials engineering student

Maryse Laganière (born 1964), budget clerk in the École Polytechnique's finance department

Maryse Leclair (born 1966), materials engineering student

Anne-Marie Lemay (born 1967), mechanical engineering student

Sonia Pelletier (born 1961), mechanical engineering student

Michèle Richard (born 1968), materials engineering student

Annie St-Arneault (born 1966), mechanical engineering student

Annie Turcotte (born 1969), materials engineering student

Barbara Klucznik-Widajewicz (born 1958), nursing student

"The essence of the Liberal outlook lies not in what opinions are held, but in how they are held: instead of being held dogmatically, they are held tentatively, and with a consciousness that new evidence may at any moment lead to their abandonment."

- Bertrand Russell

Thanks to Fabrice Rivault for this quotation

Aboriginal Rights in the Constitution are not subject to the "notwithstanding clause"

I received a message today from a reader who suggested aboriginal treaty rights should be abolished and if they were protected under the Constitution the 'notwithstanding clause' should be used to overrule the protection.

Ignoring anything else, such a proposal does not work as a matter of Constitutional law.

Specifically, the notwithstanding clause (section 33) authorizes governments temporarily to override the Charter rights and freedoms in sections 2 and 7–15 for up to five years, subject to renewal. The clauses of the Constitution protecting Aboriginal Rights are not among those subject to override.

Section 35 of the Constitution Act, 1982 "recognizes and affirms" the "existing" aboriginal and treaty rights in Canada. Section 35 also provides protection of aboriginal title which protects the use of land for traditional practices. These rights extend to people whom make up the Indian, Inuit, and Métis peoples. The other relevant section is also not subject to the 'notwithstanding' clause. Section 25 states that the Charter does not derogate existing Aboriginal rights and freedoms, including treaty rights.

Of course, there are moral and pragmatic reasons to honour the solemn obligations of the Crown. But that is another post.

A very important decision regarding summary judgment

 Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 was just released – it is a very important decision regarding summary judgment:

 Analysis of the Amended Rule 20

1.         Overview

[35]         By the time these appeals were argued, a well-developed body of jurisprudence from the Superior Court of Justice under the new Rule 20 was already in place: see e.g., Healey v. Lakeridge Health Corp., 2010 ONSC 725, 72 C.C.L.T. (3d) 261; Cuthbert v. TD Canada Trust, 2010 ONSC 830, 88 C.P.C. (6^th) 359; New Solutions Extrusion Corp. v. Gauthier, 2010 ONSC 1037; Hino Motors Canada Ltd. v. Kell, 2010 ONSC 1329; Lawless v. Anderson, 2010 ONSC 2723; Canadian Premier Life Insurance Co. v. Sears Canada Inc., 2010 ONSC 3834; Enbridge Gas Distribution Inc. v. Marinaccio, 2011 ONSC 2313; and Optech Inc. v. Sharma, 2011 ONSC 680, with supplementary reasons at 2011 ONSC 1081. We have carefully reviewed and considered the conflicting jurisprudence from the Superior Court. However, we have chosen not to comment on the relative merits of the various interpretative approaches found in this body of case law because our decision marks a new departure and a fresh approach to the interpretation and application of the amended Rule 20.

[36]         The amendments to Rule 20 are meant to introduce significant changes in the manner in which summary judgment motions are to be decided. A plain reading of the amended rule makes it clear that the Aguonie and Dawson restrictions on the analytical tools available to the motion judge are no longer applicable. The motion judge may now weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence in determining whether there is a genuine issue requiring a trial with respect to a claim or defence: see rule 20.04(2.1). Moreover, the new rule also enables the motion judge to direct the introduction of oral evidence to further assist the judge in exercising these powers: see rule 20.04(2.2).

[37]         As we shall go on to explain, the amended rule permits the motion judge to decide the action^[4] where he or she is satisfied that by exercising the powers that are now available on a motion for summary judgment, there is no factual or legal issue raised by the parties that requires a trial for its fair and just resolution.

[38]         However, we emphasize that the purpose of the new rule is to eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court.

[39]         Although both the summary judgment motion and a full trial are processes by which actions may be adjudicated in the “interest of justice”, the procedural fairness of each of these two processes depends on the nature of the issues posed and the evidence led by the parties. In some cases, it is safe to determine the matter on a motion for summary judgment because the motion record is sufficient to ensure that a just result can be achieved without the need for a full trial. In other cases, the record will not be adequate for this purpose, nor can it be made so regardless of the specific tools that are now available to the motion judge. In such cases, a just result can only be achieved through the trial process.  This pivotal determination must be made on a case-by-case basis.

2.         The Types of Cases that are Amenable to Summary Judgment

[40]         Speaking generally, and without attempting to be exhaustive, there are three types of cases that are amenable to summary judgment. The first two types of cases also existed under the former Rule 20, while the third class of case was added by the amended rule.

[41]         The first type of case is where the parties agree that it is appropriate to determine an action by way of a motion for summary judgment. Rule 20.04(2)(b) permits the parties to jointly move for summary judgment where they agree “to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.” We note, however, that the latter wording – “the court is satisfied” – affirms that the court maintains its discretion to refuse summary judgment where the test for summary judgment is not met, notwithstanding the agreement of the parties.

[42]         The second type of case encompasses those claims or defences that are shown to be without merit. The elimination of these cases from the civil justice system is a long-standing purpose well served by the summary judgment rule. As stated by the Supreme Court of Canada in Canada (A.G.) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 10:

The summary judgment rule serves an important purpose in the civil litigation system.  It prevents claims or defences that have no chance of success from proceeding to trial.  Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system.  It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage.  Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.

[43]         As we shall discuss further below,^[5] the amended Rule 20 has given the motion judge additional tools to assess whether a claim or defence has no chance of success at trial. 

[44]         Moreover, the amended Rule 20 now permits a third type of case to be decided summarily. The rule provides for the summary disposition of cases other than by way of agreement or where there is “no chance of success”. The prior wording of Rule 20, whether there was a “genuine issue for trial”, was replaced by “genuine issue requiring a trial”. This change in language is more than mere semantics. The prior wording served mainly to winnow out plainly unmeritorious litigation. The amended wording, coupled with the enhanced powers under rules 20.04(2.1) and (2.2), now permit the motion judge to dispose of cases on the merits where the trial process is not required in the “interest of justice”.

[45]         The threshold issue in understanding the application of the powers granted to the motion judge by rule 20.04(2.1) is the meaning to be attributed to the phrase “interest of justice”. This phrase operates as the limiting language that guides the determination whether a motion judge should exercise the powers to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence on a motion for summary judgment, or if these powers should be exercised only at a trial. The phrase reflects that the aim of the civil justice system is to provide a just result in disputed matters through a fair process. The amended rule recognizes that while there is a role for an expanded summary judgment procedure, a trial is essential in certain circumstances if the “interest of justice” is to be served. 

[46]         What is it about the trial process that certain types of cases require a trial for their fair and just resolution? In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the majority decision of Iacobucci and Major JJ., at para. 14, quotes a passage from R.D. Gibbens in “Appellate Review of Findings of Fact” (1991-92), 13 Advocates’ Q. 445, at p. 446, which refers to the trial judge’s “expertise in assessing and weighing the facts developed at trial”.  The quoted passage states:  “The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence.” The passage further notes that the trial judge gains insight by living with the case for days, weeks or even months. At para. 18, Iacobucci and Major JJ. go on to observe that it is the trial judge’s “extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge’s familiarity with the case as a whole” that enables him or her to gain the level of appreciation of the issues and the evidence that is required to make dispositive findings.

[47]         As these passages reflect, the trial judge is a trier of fact who participates in the dynamic of a trial, sees witnesses testify, follows the trial narrative, asks questions when in doubt as to the substance of the evidence, monitors the cut and thrust of the adversaries, and hears the evidence in the words of the witnesses. As expressed by the majority in Housen, at para. 25, the trial judge is in a “privileged position”. The trial judge’s role as a participant in the unfolding of the evidence at trial provides a greater assurance of fairness in the process for resolving the dispute. The nature of the process is such that it is unlikely that the judge will overlook evidence as it is adduced into the record in his or her presence.   

[48]         The trial dynamic also affords the parties the opportunity to present their case in the manner of their choice. Advocates acknowledge that the order in which witnesses are called, the manner in which they are examined and cross-examined, and how the introduction of documents is interspersed with and explained by the oral evidence, is of significance. This “trial narrative” may have an impact on the outcome. Indeed, entire books have been written on this topic, including the classic by Frederic John Wrottesley, The Examination of Witnesses in Court (London: Sweet and Maxwell, 1915). As the author instructs counsel, at p. 63:

It is, perhaps, almost an impertinence to tell you that you are by no means bound to call the witnesses in the order in which they are placed in the brief.

It will be your task, when reading and noting up your case, to marshall your witnesses in the order in which they will best support your case, as you have determined to submit it to the [trier of fact].

[49]         In contrast, a summary judgment motion is decided primarily on a written record. The deponents swear to affidavits typically drafted by counsel and do not speak in their own words. Although they are cross-examined and transcripts of these examinations are before the court, the motion judge is not present to observe the witnesses during their testimony. Rather, the motion judge is working from transcripts. The record does not take the form of a trial narrative. The parties do not review the entire record with the motion judge. Any fulsome review of the record by the motion judge takes place in chambers.

[50]         We find that the passages set out above from Housen, at paras. 14 and 18, such as “total familiarity with the evidence”, “extensive exposure to the evidence”, and “familiarity with the case as a whole”, provide guidance as to when it is appropriate for the motion judge to exercise the powers in rule 20.04(2.1). In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question:  can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial? 

[51]         We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings.  Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.  

[52]         In contrast, in document-driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues. The full appreciation test may also be met in cases where the record can be supplemented to the requisite degree at the motion judge’s direction by hearing oral evidence on discrete issues.

[53]         We wish to emphasize the very important distinction between “full appreciation” in the sense we intend here, and achieving familiarity with the total body of evidence in the motion record. Simply being knowledgeable about the entire content of the motion record is not the same as fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute. The full appreciation test requires motion judges to do more than simply assess if they are capable of reading and interpreting all of the evidence that has been put before them.

[54]         The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words, and without the assistance of counsel as the judge examines the record in chambers.

[55]         Thus, in deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record – as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) – the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment. 

[56]         By adopting the full appreciation test, we continue to recognize the established principles regarding the evidentiary obligations on a summary judgment motion. The Supreme Court of Canada addressed this point in Lameman, at para. 11, where the court cited Sharpe J.’s reasons in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co.(1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434, in support of the proposition that “[e]ach side must ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried.” This obligation continues to apply under the amended Rule 20. On a motion for summary judgment, a party is not “entitled to sit back and rely on the possibility that more favourable facts may develop at trial”:  Transamerica, at p. 434.

[57]         However, we add an important caveat to the “best foot forward” principle in cases where a motion for summary judgment is brought early in the litigation process.  It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.

[58]         Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial. As we point out below, at para. 68, counsel have an obligation to ensure that they are adopting an appropriate litigation strategy. A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.

3.         The Use of the Power to Order Oral Evidence

[59]         It is necessary at this point to discuss the limits on the discretion of the motion judge to order oral evidence under rule 20.04(2.2) of the amended Rule 20. First, while the terminology of the “mini-trial” provides a convenient short form, this term should not be taken as implying that the summary judgment motion is a form of summary or hybrid trial. A summary judgment motion under the new rule does not constitute a trial. Mr. Osborne’s recommendation of adopting a summary trial mechanism was not adopted, and his recommendation relating to mini-trials was not accepted in full. Indeed, the term “mini-trial” did not find its way into the body of the rule. 

[60]         The discretion to order oral evidence pursuant to rule 20.04(2.2) is circumscribed and cannot be used to convert a summary judgment motion into a trial. Significantly, it is the motion judge, not counsel, who maintains control over the extent of the evidence to be led and the issues to which the evidence is to be directed. The distinction between the oral hearing under rule 20.04(2.2) and the narrative of an actual trial is apparent. The discretion to direct the calling of oral evidence on the motion amounts to no more than another tool to better enable the motion judge to determine whether it is safe to proceed with a summary disposition rather than requiring a trial.

[61]         In appropriate cases, the motion judge is empowered to receive oral evidence on discrete issues for purposes of exercising the powers in rule 20.04(2.1). In other words, the motion judge may receive oral evidence to assist in making the determination whether any of the issues raised in the action require a trial for their fair and just resolution. We discuss below, at paragraphs 101-103, the circumstances in which it will be appropriate to order the presentation of oral evidence. However, at this stage, we stress that the power to direct the calling of oral evidence under rule 20.04(2.2) is not intended to permit the parties to supplement the motion record. Nor can the parties anticipate the motion judge directing the calling of oral evidence on the motion.

[62]         The latter point requires that we address a practice issue in the Toronto Region. As a case management matter, parties to a summary judgment motion in Toronto are required to complete a summary judgment form, which includes questions about whether the parties intend to call viva voce evidence on an issue in dispute, and estimating the time required for such evidence. Although no doubt well-intentioned, these questions are misplaced in that they create the misconception that a summary judgment motion is in fact a summary trial.

[63]         A party who moves for summary judgment must be in a position to present a case capable of being decided on the paper record before the court. To suggest that further evidence is required amounts to an admission that the case is not appropriate, at first impression, for summary judgment. It is for the motion judge to determine whether he or she requires viva voce evidence under rule 20.04(2.2) “for the purpose of exercising any of the powers” conferred by the rule.  This is not an enabling provision entitling a party to enhance the record it has placed before the court. It may be that, for scheduling reasons, the oral evidentiary hearing will need to be held after the hearing of the main motion. Nonetheless, it is the purview of the motion judge, and the motion judge alone, to schedule this hearing, which is a continuation of the original motion and not a separate motion.

4.         Trial Management Under Rule 20.05

[64]         Rule 20.05 facilitates a greater managerial role for judges and masters in circumstances where a summary judgment motion is dismissed in whole or in part and where the court orders that the action proceed to trial expeditiously. The summary judgment court, having carefully reviewed the evidentiary record and heard the argument, is typically well-positioned to specify what issues of material fact are not in dispute and to define the issues to be tried. Rule 20.05(2) sets out a lengthy list of directions that a court may make with a view to streamlining the proceedings and empowers the court to make a variety of orders, including requiring the filing of a statement setting out what material facts are not in dispute, specifying the timing and scope of discovery, and imposing time limits on any oral examination of a witness at trial.^[6]

[65]         While the court may make use of the provisions in rule 20.05 to salvage the resources that went into the summary judgment motion, the court should keep in mind that the rule should not be applied so as to effectively order a trial that resembles the motion that was previously dismissed. For example, while rule 20.05(2)(f) provides that “the affidavits or any other evidence filed on the motion and any cross-examinations on them may be used at trial in the same manner as an examination for discovery”, these materials should not be treated as a substitute for the viva voce testimony of the witnesses in the trial judge’s presence.  Any trial management order flowing from a failed summary judgment motion must facilitate the conduct of a genuine trial that will permit the full appreciation of the evidence and issues required to make dispositive findings. In other words, the trial ought not to be simply a reconfiguration of the dismissed motion. 

[66]         Further, litigants must not look to rule 20.05 as a reason for bringing a motion for summary judgment or as a substitute for effective case management of the trial of an action. The newly-introduced Rule 50 permits parties to obtain orders and directions that will assist in ensuring that a trial proceeds efficiently.

 

Monday and off to work!!!

An Ontario Liberal

I had a good chat with a former MP and a well known Ontario Liberal today.

He emphasized just how important it is for the Liberal Party to show unity -- mindless internal squabbles will achieve nothing and rightly turn off the electorate.

The Board Elections have, to date, been marked by a solid unity of purpose. Division has been set aside and all candidates are genuinely concerned to improve and rebuild the Party. Perhaps (we can hope) that spirit will continue after the Biennial?

The real math behind Attawapiskat’s $90 million

http://fullcomment.nationalpost.com/2011/12/04/brett-hodnett-the-real-math-behind-attawapiskats-90-million/

Excellent article -- and good for the National Post to publish it!

Never be bullied into silence. Never allow yourself to be made a victim. Accept no one's definition of your life, but define yourself.

~ Harvey S. Firestone (thanks to ‪Carolyn Weatherson for showing this quotation)

Have a drink

"Those communities really shouldn't exist"

So reads the headline on a two-page story in the Post which talks about 'voluntary relocation' for remote First Nations and Inuit communities. A comment noted in bold in the editorial section suggested stopping the 'gravy train' and said (this part was in bold) "If native populations choose not to improve their situation with resources agreed to, too bad".

Expect to see some forthcoming government policies dressed up as reform of the Indian Act which will (a) move populations to urban areas (b) pay some large sounding but actually small monies to the people moved and (c) terminate treaty and aboriginal rights.

Replacing manufacturing jobs with call centres - unemployment up again

The numbers alone mask a deeper problem. Not only are jobs disappearing -- the jobs that remain are low paying and often part-time. Canada's manufacturing sector is especially hit; and replacing manufacturing jobs with call centres is not a good societal exchange:

http://bit.ly/rLwM5O

Canada's labour market has hit a wall, with job declines in three of the past four months suggesting turmoil outside the country's borders is denting the confidence of employers.

The country shed 18,600 jobs last month after a tumble of 54,000 in October, marking the first back-to-back monthly drop since the recession. The jobless rate hit a five-month high of 7.4 per cent, Statistics Canada said Friday.

Setting aside a default

Roth v. Bourollias, 2011 ONCA 760, released today, deals with setting aside a default. 

 

In general on a motion to set aside a default, the court will consider: (a) whether the motion to set aside the judgment was brought promptly; (b) where there is a plausible excuse or explanation for the defendant's default in complying with the Rules of Civil Procedure; and (c) whether the facts establish at least an arguable case: Nelligan v. Lindsay, [1945] O.W.N. 295 (H.C.J.); Laredo v. Sinnadurai (2005), 78 O.R. (3d) 321 (C.A.); Morgan v. Toronto (Municipality) Police Services Board, [2003] OJ. No. 1106 at para. 19 (C.A.); MacNaughton v. The Royalton, 2011 ONSC 17. 

 

Today’s decision is a helpful appeal decision upholding, albeit slightly restating,  the long established test:

 

[1]              Justice Strathy addressed the motion based on the governing case law set out in Scaini v. Prochnicki, [2007] ONCA 63, which confirmed the factors from Reid v. Dow Corning Corp., (2001), 11 C.P.C. (5th) 80. He considered each of the four factors: (1) explanation for the ten-and-one- half year delay; (2) inadvertence in missing the deadline; (3) bringing the motion promptly after discovering the dismissal; and (4) prejudice to the defendant. He found in favour of the respondent on each of the factors. He found that there was no adequate explanation for the delay and that the appellant did not show diligence in prosecuting the action.

 

Attawapiskat

Various newspaper and media commentary have suggested the answer to the problem in Attawapiskat, and other isolated First Nations communities, is to move everyone to a southern urban setting.

A typical comment is:

She believes the only solution to improving the lives of natives on isolated reserves is to get them off those reserves. “For the sake of this generation of children, having to grow up in those squalid conditions, we have to face the fact that isolated reserves have been a failed experiment and that it’s time to move on.”

A strong attachment to the ancestral homeland is understandable but the price in dollars and lost human potential is too steep to pay.

On the surface this seems reasonable. Canadians, living in poverty, in economically backward and profoundly isolated settings should move (or be moved).

Now the subtext (which I put in brackets) is relevant. Forcible movement has been done before. In the High Arctic successful Inuit lives were crushed when RCMP, largely so as to require settlement and end a nomadic lifestyle, killed Inuit dogs (http://www.qtcommission.com/actions/GetPage.php?pageId=39) . Residential Schools were designed (and imposed on unwilling communities) to integrate, by force if necessary -- in 1928, a government official predicted Canada would end its "Indian problem" within two generations. The result was untold suffering and, of course, utter failure (http://archives.cbc.ca/society/education/topics/692/). And yet despite this history there are still calls to impose a new order on First Nation, Metis and Inuit communities. It is not at all implausible that entire communities could still be forcibly moved under the guise of emergency aid or better long terms services. This cruelty has failed before and we must state clearly it must not happen again.

But more generally, why is it that there is such poverty and First Nations, Metis and Inuit? Why are so many communities suffering?

One of the real sins of apartheid in South Africa was the distribution of land. Blacks were “given” tribally based self-governing homelands; but the problem was the homelands, broadly speaking, were on poor land and economically undevelopable. The Reservations are, if anything, even less developable than South Africa’s bantustans. In 1907 the creation of Reservations was described, quite truthfully, as follows:

A natural result of land cessions by the Indians to the British Government and, later, to the Dominion was the establishment of reservations for the natives. This was necessary not only in order to provide them with homes and with land for cultivation, but to avoid disputes in regard to boundaries and to bring them more easily under control of the Government by confining them to given limits. This policy, was followed under both French and English control. It may be attributed primarily to the increase of the white population and the consequent necessity of confining the aboriginal population to narrower limits. (http://faculty.marianopolis.edu/c.belanger/quebechistory/encyclopedia/IndianreservationsinCanada.htm)

“The consequent necessity of confining the aboriginal population to narrower limits” was to put people onto territory that is not, and cannot be, self sufficient. Attawapiskat has an urgent and immediate need – that cannot be overlooked – but solutions along the lines of “move them to Timmins and let them melt into the general population” ignores the fact that “them” are people with the right to self determination and ignores why Attawapiskat is poor to begin with.

York Region Bus strike will continue

Would this be allowed to continue in Toronto -- I think not!

York Region won't intervene in transit strike

BY KEVIN CONNOR ,TORONTO SUN

NEWMARKET - York Regional Council is refusing to ask the province for back-to-work legislation to end the YRT and Viva transit labour dispute.

“York Region wants a fair deal for bus drivers and mechanics but not at the expense of taxpayers,” chairman Bill Fisch said Friday.

“The reality of the unions current wage demands would mean a $26 annual increase for the typical York Region property taxpayer, or an additional 45-cent fare increase for transit riders.”

http://www.torontosun.com/2011/12/02/york-region-wont-intervene-in-transit-strike

O’Connor production

R. v. Kokopenace, 2011 ONCA 759 deals with production of records relating to jury lists under R. v. O'Connor, [1995] 4 S.C.R. 411. The Court ordered such production saying:

[10]         There is no dispute as to the legal test to be applied on this application.  As the Supreme Court of Canada explained in O'Connor, at para. 22, "likely relevant" in the context of production means that there is a "reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify" (emphasis omitted).

[11]         The Supreme Court of Canada confirmed this meaning of "likely relevant" in McNeil and further explained, at para. 33, that:

An "issue at trial" here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also "evidence relating to the credibility of witnesses and to the reliability of other evidence in the case"….  At this stage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial.  The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch-22 position. [Citation omitted.]

[12]         The position taken by the applicants in the appeals is that there was systematic underrepresentation of First Nations persons in the 2008 Kenora District and 2007 Simcoe County jury rolls.  As a result, the juries in the trials of the two applicants were not representative and new trials should be ordered.

...

[16]         In our view, the applicants have demonstrated that these records are likely relevant.  They seek the very lists used to prepare the impugned jury rolls.  These records may contain annotations, entries or other information that can be used in testing the statements made by CSD deponents and in better understanding the process used to prepare the jury rolls.

[17]         The applicants need not establish the probative value of the records; they must only show that there is a reasonable possibility that the documents are "logically probative" to the issues raised respecting the representativeness of the jury rolls.

I'm really not resigning...

Power tends to corrupt, and absolute power corrupts absolutely.

John Emerich Edward Dalberg-Acton, 1st Baron Acton, KCVO, DL is often misquoted in that line. But misquoted or not Lord Acton was right.

What's startling is how quickly the corruption has spread to the Conservatives. My sense is they are tired -- having gotten a majority, having rammed through their legislation -- they have nothing else to do except get into trouble.

Someone whose opinion I value, and who was a Harper Conservative commented, after hearing about the Cotler scandal, "they are such scum -- I am so disappointed in the Conservatives".

And it is a fair, if harsh, comment. Stephen Harper was supposed to be different. He was supposed to be principled and to care about taxpayers. To be a change from the sponsorship scandal tainted Liberals (and yes, that tainted us -- I'm sure the trolls who will comment on this post will endlessly talk about it).

But in very rapid order the Conservatives have become more corrupt than anyone could imagine. Leave aside the moral corruption of the crime bills, the abandonment of environmental leadership, the gutting of StatsCan and end of orderly farm marketing. Let's look at everyday misfeasance in TODAY's news:

Defence Minister Peter MacKay's fishing trip

More on Treasury Board President Tony Clement's G8/G20 spending

Attawapiskat and Ministers who didn't know until 'last Thursday' there was a problem

The Irwin Cotler affair

And this does not include the 'in and out' scandal, the new (lack of) women and bilingual appointments or the general disdain for First Nations, Metis and Inuit.

There is a long time to the next election but this government has already run out of ideas and is living on a dwindling intellectual capital.

If he is to survive the next election, Stephen Harper needs to bring forward some new goals that will focus his team -- but are there any such goals left that will be accepted by Canada?

We'll see... .

What the Conservatives really think of Quebec

The story out of Irwin Cotler's Riding -- that the CPC spread false news about him resigning -- at first struck me as merely a new low in CPC dirty tricks.

But then it dawned on me -- this says something about Quebec and the attitude towards French Canada.

Recent actions have suggested the CPC has abandoned any pretense of seeking French Canadian support (see my post on the RCAF from a few days ago). But the English in Quebec may be a different story.

Hence the idea, take an English seat or two -- even if that requires lying to a large number of people -- and forget the rest of Quebec.

And if that means 'two solitudes' well, whatever... .

Where's Waldo

Unnecessary complexity of the jury charge can constitute a stand alone basis for the reversal of the verdicts?

R. v. Rowe, 2011 ONCA 753 is an interesting case dealing with the proper treatment of an unsavory witness who is both inculpatory and exculpatory. The case also considers, without finally deciding, if an overly complex jury charge can ground an appeal. The Court holds simpler and more direct charges are necessary. Quaere -- if trial judges do follow this guidance will they be risking an appeal based on 'leaving out' something? The Court holds:

[52]         I would allow the appeal for the reasons set out above.  I will, however, consider one further argument made by the appellant because it raises an important matter of general concern in the conduct of criminal jury trials.  This was a factually and legally straightforward, but by no means easy, case.  The jury instructions were lengthy and, according to the trial judge, "tedious".  Counsel for the appellant submitted that the charge was unnecessarily complex and contained superfluous instructions that must have confused the jury and distracted it from the real issues in the case.  Counsel contended that the unnecessary complexity of the jury charge constituted a stand alone basis for the reversal of the verdicts:  see R. v. Hebert, [1996] 2 S.C.R. 272, at para. 13.

[53]         As I would allow the appeal on the grounds set out above, I need not decide the ultimate merits of this submission.  However, and with respect to the trial judge who clearly worked very hard on her jury instructions, the charge was unnecessarily complex and confusing. 

[54]         There are two explanations for the confusion and complexity.  First, I think the indictment contained counts which, by the end of the trial, were unnecessary to a fair and full adjudication of the merits.  There were five counts in the indictment.  The trial judge was required to deal with each count and with each element of the offence described in each count.  This necessarily made the jury instruction longer, more complicated, repetitive and inherently confusing. 

[55]         I do not fault the Crown for placing the five charges in the indictment, or proceeding through the trial with those charges.  In my view, however, the Crown should have taken a hard look at the need to instruct the jury on all counts and require that it return verdicts on all counts.  Counts two and three related to the use of pepper spray against Mr. Al-Ali.  One of the two, either one, was redundant.  I see no disadvantage to the Crown had it asked for a verdict on only one of those two counts and relieved the trial judge of her obligation to address the second.[2] 

[56]         I also see no need from the Crown's perspective for a verdict on the unlawful confinement charge.  There was no chance that a reasonable jury would convict of unlawful confinement if it did not convict on the robbery charge.  If the jury convicted of robbery, an additional conviction for unlawful confinement, while virtually inevitable, would add nothing to the case.  A conviction on the unlawful confinement count was not necessary to accurately reflect the nature and extent of the appellant's criminal culpability, or to permit the imposition of an appropriate penalty.  Apart from adding another line to the appellant's criminal record, I see no purpose served by the unlawful confinement charge.    

[57]         I emphasize that I am not suggesting that a trial judge can unilaterally decide to take counts in an indictment away from a jury as a means of facilitating the jury's deliberations.  Subject to the judge's power to order severance, and assuming there is an evidentiary basis for the allegation in each count in the indictment, it is up to the Crown to decide whether a charge in the indictment should go to the jury for a verdict. 

[58]         Crown counsel in the exercise of his or her responsibility to further the due administration of justice should consider whether multiple count indictments can be trimmed before the case goes to the jury without compromising the case the Crown seeks to have determined by the jury.  The possibility of not requiring verdicts on all counts in a multiple count indictment should be canvassed with counsel as part of the pre-charge conference.  It is self-evident that the fewer the charges a jury must consider, the less likely it is that confusion will intrude upon the jury's deliberation, or that the trial judge will fall into legal error.  Jury confusion can lead to a hung jury and legal error can necessitate a new trial.  Neither result serves the Crown's interest in the due administration of justice.  A properly trimmed indictment serves everyone's interests in the criminal process. 

[59]         The second source of unnecessary complexity in the jury instruction flows from what this court has described as "over-charging":  see R. v. Pintar (1996), 30 O.R. (3d) 483 (C.A.), at p. 493.  In Pintar, the appellant complained that the self-defence instruction was so complex as to be incomprehensible.  Moldaver J.A. said:

Unquestionably, trial judges do encounter difficulties in explaining the self-defence provisions to juries for the reasons expressed by the Chief Justice.  In my opinion, these difficulties are compounded by the standards which appellate courts have imposed, or are perceived to have imposed, when assessing the adequacy of self-defence instructions.  Trial judges are often heard to say that 90 per cent of their legal instruction on self-defence is for the Court of Appeal and 10 per cent for the jury.  Expressed somewhat differently, fear of under-charging has led to over-charging. 

Ironically, many trial judges have taken to leaving multiple self-defence provisions with the jury as a means of defending themselves against appellate assault.  This phenomenon, which I describe as "over-charging", has itself come under attack....

[60]         My former colleague's comments were directed at the law of self-defence, a notoriously complicated area of the criminal law.  His comments, however, have more general application.  Like him, I think that fear of appellate reversal is one of the causes of "over-charging".  Trial judges perceive, correctly I think, that legally accurate instructions that are superfluous will seldom lead to reversal, while a failure to instruct on an issue that may have been on the periphery of the trial, but has become central on the appeal, will lead to reversal and a new trial.  Instructions on anything and everything that have any possible relevance are seen as the best defence against the hindsight inherent in appellate review.

[61]         There is a second cause of "over-charging" that is the unfortunate by-product of a recent and beneficial development in the conduct of criminal jury trials.  Counsel and trial judges now engage in detailed pre-charge conferences in which proposed jury instructions are thoroughly vetted.  That vetting generates a written version of the jury instructions that is provided to counsel and to the jurors.  The pre-charge discussions often centre around the model jury instructions found in Watt's Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005).  Those instructions provide valuable assistance to judges and counsel in the formulation of appropriate jury instructions:  see R. v. Banwait, 2010 ONCA 869, 265 C.C.C. (3d) 201, rev'd 2011 SCC 55, at para. 173, MacPherson J.A., dissenting. 

[62]         The model instructions are not, however, a "one-size-fits-all" product to be used without modification or variation:  see R. v. McNeil (2006), 84 O.R. (3d) 125 (C.A.), at para. 21.  Watt J.A., author of the model instructions, put it this way in Helping Jurors Understand (Toronto: Thomson Carswell, 2007), at p. 82:

A specimen is a sample.  A specimen instruction is a sample instruction about its subject-matter.  Specimen instructions do not and cannot be expected to provide legally accurate directions for every set of circumstances that fall within their reach.  There are no one-size-fits-all jury instructions.  At best, specimen instructions provide the basic building blocks for finals and other instructions.  The twists and turns of individual cases will dictate the nature and extent of modification required to ensure legal accuracy. [Emphasis in original.]

[63]         In keeping with the purpose of the model instructions, it does not follow that because an accused is charged with robbery it is either necessary or appropriate to read to the jury all of the model instructions referable to the offence of robbery.  Certainly, those model instructions will provide a valuable starting point for discussions between counsel and the trial judge as to the appropriate instructions.  Those discussions should tailor the model instructions to the specific circumstances.  Unfortunately in the present case that tailoring did not occur.  Large parts of the model instructions were used without modification and without regard to the specifics of the case.

[64]         Two examples from the trial judge's instructions make the point that the model instructions must be tailored to the specifics of the case.  The trial judge spent five pages instructing the jury on the law of theft.  She read most of the model jury instructions on the crime of theft to the jury.  On the evidence, however, the trial judge had only to tell the jury that, as a matter of law, a theft occurred if Mr. Al-Ali's assailants took anything from his pockets.  On the evidence adduced in this case, it was unnecessary to make any reference to concepts such as colour of right, and the mens rea for theft.  None had anything to do with the issues that arose in this case. 

[65]         The instructions on the law of assault provide a second example.  Once again, the trial judge used the model instructions without regard to the evidence or the positions taken at trial.  It will be recalled that it was conceded by the defence that Mr. Al-Ali was attacked and assaulted in the apartment.  The trial judge had only to tell the jury that if it accepted the unchallenged evidence that Mr. Al-Ali was attacked and/or threatened with a weapon, either or both of those actions constituted an assault in law.  Instructions about the need for the intentional application of force and the absence of consent were unnecessary and could only distract the jury. 

[66]         As explained in Pintar, at pp. 495-96, jury instructions must be shaped by trial judges and reviewed by appellate courts having regard to the purpose those instructions are intended to serve.  A proper jury instruction is one that fully and fairly arms a jury with the information it needs to reach a fair and proper verdict in the circumstances of the particular case.  Trial judges cannot simply cut and paste their charges together using the model instructions in Watt's Manual.  Nor can appellate courts review the adequacy of jury instructions without regard to the positions taken at trial and the circumstances of the particular case.

[67]         A functional approach to the jury instructions required for count one – robbery with a firearm – would produce something like the following:

(i)          You [the jury] should first decide whether you are satisfied beyond a reasonable doubt that Mr. Al-Ali was attacked by one or more persons while he was in the apartment.  If you are not so satisfied, you should acquit on count one.  If you are satisfied, you should continue to the next stage of your deliberations on count one.

(ii)       Are you satisfied beyond a reasonable doubt that the accused either alone or with others participated in the attack on Mr. Al-Ali by threatening him and/or striking him?  If you are not so satisfied, you should acquit the accused on count one.  If you are, you should move to the next stage of your deliberations on count one.

(iii)     Are you satisfied beyond a reasonable doubt that when the appellant participated in the attack on Mr. Al-Ali he intended to and/or did steal something from Mr. Al-Ali, or alternatively he knew that others participating in the attack intended to and/or did steal something from Mr. Al-Ali?  If you are not satisfied, you will acquit the accused on count one and move on to the aggravated assault charge in count four.  If you are so satisfied, you will move to the next stage in your deliberations on count one.

(iv)     Are you satisfied beyond a reasonable doubt that the accused was armed with a firearm (as I will define it) when he participated in the attack on Mr. Al-Ali?  If you are so satisfied, you will convict on count one as charged, that is, that the accused did rob Mr. Al-Ali while armed with a firearm.  If you are not so satisfied, you will convict him of the included offence in count one of simply robbing Mr. Al-Ali.

[68]         The approach outlined above would, in my view, avoid references to unnecessary legal concepts, focus on the nature of the allegations made against the appellant, and direct the jury to the live issues in the case.