Polar Bear Tonja

http://www.youtube.com/watch?v=L5pd_aBS514&feature=player_embedded

Lead up to intervention in Syria?

French Foreign Minister Alain Juppe called the killings in Homs a "massacre" and a "crime against humanity." In remarks clearly aimed at Moscow, he said any country that blocked U.N. action would bear a "heavy responsibility in history."

Mental illness and sentencing

R. v. Prioriello, 2012 ONCA 63 deals with when mental illness is a mitigating factor in sentencing.  The Court holds:

[11]. In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct:  R. v. Robinson, [1974] O.J. No. 585 (C.A.).

When can a consent order be appealed?

Air Kisses

Bears are not companions of men, but children of God, and His charity is broad enough for both...

We seek to establish a narrow line between ourselves and the feathery zeros we dare to call angels, but ask a partition barrier of infinite width to show the rest of creation its proper place. Yet bears are made of the same dust as we, and breathe the same winds and drink of the same waters. A bear's days are warmed by the same sun, his dwellings are overdomed by the same blue sky, and his life turns and ebbs with heart-pulsings like ours and was poured from the same fountain.

- John Muir

What is the appropriate remedy where a trial judge has misapprehended the evidence?

R. v. B.W., 2012 NSCA 13 deals with the appropriate remedy where a trial judge has misapprehended the evidence.  The Court holds that where there is evidence that could reasonably result in a finding of guilt, the appropriate remedy is a new trial;  hardly a surprising result.  The Court holds:

 

 

[19]      The traditional test is well known.  The function of a court of appeal, under s. 613(1)(a)(i) of the Criminal Code, goes beyond merely finding that there is evidence to support a conviction. The court must determine on the whole of the evidence whether the verdict is one that a properly instructed judge or jury, acting judicially, could reasonably have rendered.  The court of appeal must not merely substitute its view for that of the trial judge or jury, but to apply the test the court must re-examine and to some extent reweigh and consider the effect of the evidence (see R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381). 

 

[20]      An expanded scope to review a verdict under s. 613(1)(a) by a trial judge for reasonableness was first articulated by the dissenting reasons of Fish J. in R. v. Beaudry, 2007 SCC 5.  The existence of such a scope was recently confirmed by the Supreme Court of Canada in R. v. Sinclair, 2011 SCC 40.  In a nut shell, illogical or irrational reasoning can also render verdicts unreasonable under s. 686(1)(a)(i) of the Code, but the remedy may well be different.  If a verdict is unreasonable on the basis that a reasonable trier, properly instructed and acting reasonably could not have reached it, an acquittal is entered.  If an appellate court finds a trial judge’s verdict to be unreasonable on the Beaudry criteria, the remedy is a new trial if there is evidence reasonably capable of supporting a conviction (Sinclair, para. 23)

 

The judge didn't find the accused was remorseful

The judge wrote:

"[96] Mr. Kaziuk would rip-off the wings of all the angels in heaven and sell them to the devil for his own gain if he could."

R. v. Kaziuk, 2012 ONCJ 34

The accused got ten years jail for fraud and theft.

When it is appropriate to assign counsel for an individual who is party to an appeal in a criminal matter

R. v. Hoskins, 2012 BCCA 51 considers when it is appropriate to assign counsel for an individual who is party to an appeal in a criminal matter.  The test is two-fold:  the part must be both indigent and the position of the individual of some merit and unlikely to be put fully to the court without counsel.  The Court writes:

 

[29]         In R. v. Donald, 2008 BCCA 316, Madam Justice Saunders, in chambers, described the test under s. 684 as follows:

 

[10]      Section 684(1) provides:

 

684(1)  A court of appeal or a judge of that court may … assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.

 

[11]      It is clear from the material that Mr. Donald lacks the means to obtain assistance of counsel and he has been denied legal aid.  The question is whether it is in the interests of justice that he should have legal assistance on either of his appeals.

 

[12]      The purpose of s. 684 was described by Madam Justice Ryan in R. v. Barton, 2001 BCCA 477 at para. 7:

 

One of the fundamental principles upon which our legal system operates is the right of each side in a legal dispute to be heard … The Court is impressed with the duty to fully hear and consider both sides and to render a considered judgment as to the proper disposition of the case.  A hearing will not be fair if either of the two sides cannot be properly heard … A person is properly imprisoned when he is serving a sentence that he truly deserves having had the opportunity to put his position before the Court.

 

[13]      Madam Justice Southin, in R. v. Mills, 1999 BCCA 269 at para. 13, 122 B.C.A.C. 157, observed that:

 

“Interests of justice”, as that phrase is used in s. 684, is not a term which admits of closed categories.

 

[14]      The factors often considered in determining whether the interests of justice favour the application include factors such as the points to be argued on appeal; the complexity of the case; the level of education of the accused and his competency to advance his appeal; whether the assistance of counsel is necessary in order to marshal the evidence and make the argument; the nature and extent of the penalty imposed; and the merits of the appeal:  R. v. Aiwekhoe, 2000 BCCA 287, 139 B.C.A.C. 158; R. v. Madrusan, 2004 BCCA 194.

 

[15]      As to the merits of the proposed appeal, I adopt the observation of Madam Justice Rowles in R. v. Butler, 2006 BCCA 476, 231 B.C.A.C. 303, that the factors the court considers when determining whether counsel ought to be appointed, are not the same criteria the Legal Services Society applies under its statutory mandate.  The merits on an appeal are not always able to be discerned with clarity at the time of an application for the appointment of counsel.  However, as set out by Doherty J.A. in R. v. Bernardo (1997), 105 O.A.C. 244,121 C.C.C. (3d) 123 at para. 22, the merits inquiry need not go any further than determining whether the appeal is an arguable one. Given the nature of the issues raised and the volume of the materials before me, I cannot conclude that the appeal is not arguable.

 

Big Yawn!!!

As I grow older, I pay less attention to what men say. I just watch what they do

Andrew Carnegie

Jury verdicts to be set aside rarely

Gutbir v. University Health Network, 2012 ONCA 66 is a sad case about medical negligence. As part of the decision the Court ruled on the standard to met setting aside a jury verdict:

[5]          It is well-established that a jury verdict may be set aside only if the verdict is "so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it": McCannell v. McLean, [1937] S.C.R. 341, at p. 343.  Where there is some evidence to support the verdict, a jury will be accorded a high degree of deference.

Wagner - Parsifal - Furtwängler (1938)

A pretty clean recording with some fine illustrations:

http://www.youtube.com/watch?v=GlIbqzSeIeE

Wiarton Willie sees early spring ahead

Early Spring? We never had a Winter!!!

From the Star:

Wiarton Willie sees early spring ahead.

Canada’s best-known furry forecaster is calling for an early spring.

Ontario’s Wiarton Willie failed to see his shadow in the annual Groundhog Day ritual this morning.

Willie’s prediction agrees with Nova Scotia’s prognosticating rodent Shubenacadie Sam.

Hope - A Polar Bear

Globe piece panders to worst instincts of 'us' and 'them'

The Shafias are (and were) Canadian.

Period.

Entitled to the same respect as other Canadians and subject to the same laws as other Canadians.

Saying everyone who is a Muslim (or an Indian or German or Japanese or Jew) acts in a certain way is offensive and, worse, wrong.

The plurality of Canadians who are murders are (nominally) Catholic; I don't look to that as meaning much beyond the fact that a plurality if Canadians are (nominally) Catholic.

Motivation for killing is relevant only insofar as it goes to making the killing more likely and so helps the jury in deciding the matter; beyond assisting in proof, why the victims in the Shafia case were killed is irrelevant.

The jury found they were murdered after careful planning and deliberation. That's all that matters.

Murder is murder.


http://bit.ly/wDGmTi

"There is no "honour" concept in Muslim communities, but there is a long-standing belief that a family's reputation is dependent on the behaviour of all its family members. (This is never articulated openly; the subject is taboo.) A large number of people belonging to South Asian communities in Canada believe that women of Judeo-Christian cultures are the worst role models. They have sexual freedom, they wear indecent clothing, they have children as single mothers, they demand equality in every aspect of life – this is not what these communities desire for their daughters. The rise of South Asian matrimonial dating and marriage websites in the West is not as innocent as it may appear. It all has to do with choosing one kind of woman over another."

Give murderers rope in their jail cells: Senator

This is an odd story. Perhaps it was a foolish offhand remark of Senator Boisvenu. If so, well, we all say dumb things.

On the other hand if the remark was serious it shows a remarkable lack of insight into punishment. Suicide is usually a tragic end of a mental illness. The death penalty, while highly problematic, is still a punishment within the range of penalties intended to deter crime. Suicide is not punishment.

Encouraging suicide is not justice.

Toronto SUN http://bit.ly/AsV5pD

OTTAWA - A Conservative senator is in hot water for saying Wednesday that murderers should be given a rope in their cell in case they want to hang themselves.

Senator Pierre-Hugues Boisvenu, who sits on the Senate legal committee, made the controversial comments while talking to reporters before the Conservative caucus meeting.

"I think of (Clifford) Olson," he said. "I think of the people who were serial killers who have no chance of rehabilitation. I think, in the end, each murderer should have the right to a rope in his cell. He could decide his fate. But I'm against the death penalty."

Adjournments generally granted even at start of trial

Graham v. Vandersloot, 2012 ONCA 60 deals with the propriety an adjournment sought on the start of trial. The broad lesson is, generally, such adjournments will be granted. The Court writes:

[5]              Adjournment decisions are highly discretionary and appellate courts are rightly reluctant to interfere with them.  Laskin J.A. succinctly summarized the operative legal principles in Khimji v. Dhanani (2004), 69 OR. (3d) 790 (C.A.).  Although he was in dissent, the majority accepted his articulation of the statement of principles.  At paras. 14 and 18 he said:

14.  A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial.  The decision is discretionary and the scope for appellate intervention is correspondingly limited.  In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits.  In any particular case several considerations may bear on these interests.  A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening.  In my opinion, that is the case here. [Emphasis added.]

18.  I begin with the overriding goal of our modern Rules of Civil Procedure: to ensure as far as possible that cases are resolved on their merits.  This goal is expressly set out in Rule 2.01(1)(a), which gives a judge power to grant any relief necessary "to secure the just determination of the real matters in dispute".  Courts should not be too quick to deprive litigants of a decision on the merits.  The trial judge does not appear to have sufficiently taken into account that his order deprived the parties, especially the appellant, of a determination of "the real matters in dispute."

See also Ariston Realty Corp v. Elearim Inc. [2007] O.J. No. 1497 (S.C.J.), at paras. 33, 36 and 38.

...
[10]         Finally, while the motion judge was justified in observing that the medical assessments should have been arranged prior to May 2010, she gave undue weight to the appellant's lawyer's failure to do so when all of the foregoing factors are taken into consideration.  As Hambly J. noted when granting leave to appeal to the Divisional Court in this matter, "the often applied principle that the sins of the lawyer should not be visited upon the client applies in this case."  This principle was enunciated by this Court in Halton Community Credit Union Ltd. v. ICL Computers Canada Ltd. (1985), 8 O.A.C. 369, at para. 11:

Undoubtedly counsel is the agent of the client for many purposes ... but it is a principle of very long standing that the client is not to be placed irrevocably in jeopardy by reason of the neglect or inattention of his solicitor, if relief to the client can be given on terms that protect his innocent adversary as to costs thrown away and as to the security of the legal position he has gained.  There may be cases where the plaintiff has so changed his position that this is impossible.

[11]         This is such a case, in my opinion.  There is nothing to indicate that a further adjournment of six months would have in any way affected "the security of the legal position [the respondents had] gained" or changed their position in any way that could not be compensated for in costs.  Mr. Black submitted that it is inaccurate to say the appellant was "placed irrevocably in jeopardy" by reason of the adjournment refusal and the dismissal of the action, because she has other remedies open to her, namely a potential claim against her solicitor.  I am not prepared to say that she should be required to resort to such a remedy in the circumstances of this case.

[12]         Apart from the understandable frustrations experienced by presiding judicial officials and opposing parties over delays in the processing of civil cases, it is the overall interests of justice that, at the end of the day, must govern.  Perell J. expressed this sentiment well in Ariston Realty Corp., at para. 38:

In my opinion, a concern for the principles of natural justice and the appearance of justice being done explains why, perhaps to the chagrin of those opposing adjournments, courts should tend to be generous rather than overly strict in granting indulgences, particularly where the request would promote a decision on the merits.  This liberality follows because it is in the public interest that whatever the outcome, a litigant should perceive that he or she had their day in court and a fair chance to make out their case.

[13]         Here, at the end of the day, the interests of justice favour the appellant's having her day in court to put forward her claim for damages on the merits.

Is it Friday yet???

Is the application of a legal test to specific facts a legal or mixed question of fact and law?

R. v. Hirsekorn, 2012 ABCA 21 deals with whether the application of a legal test to specific facts can give rise to an error of law. The Court holds it can -- an important point for appeal purposes:

[14] I do not agree with the respondent that the second question is one of mixed law and fact. The misapplication of a legal test can raise a question of law, see Canada (Director of Investigation and Research) v Southam Inc, 1997 CanLII 385 (SCC), [1997] 1 SCR 748, 144 DLR (4th) 1 at paras 35 and 39; and Housen v Nikolaisen, 2002 SCC 33 (CanLII), 2002 SCC 33 at para 36, 2002 SCC 33 (CanLII), [2002] 2 SCR 235. Part of the applicant's argument about the misapplication of Powley concerns the summary conviction appeal judge's failure (at para 122) to identify the historic rights-bearing community (the second part of the Powley test). Without such an identification, asserts the applicant, the balance of the test cannot be properly applied. This is a legal argument extricable from the trial judge's fact findings and, based on Southam and Housen, a question of law.

Lohengrin: Act III, 3, "In fernem Land" - Franz Völker (Furtwängler, Bayreuth: 1936)

http://www.youtube.com/watch?v=7ytIY3CKn_Y&feature=BFa&list=ULyzKIB_wjhkE&lf=mfu_in_order

When is an amendment to a claim a new cause of action?

Dee Ferraro Limited v. Pellizzari, 2012 ONCA 55 deals with when an amendment to a claim pleads a new cause of action.  Basically if the necessary facts are already before the court a claim based on those facts is not a new cause of action.  The Court writes:

 

[5]          The distinction between pleading a new cause of action and pleading new or alternative remedies based on the same facts is set out in one of the seminal cases, Canadian Industries Ltd. v. Canadian National Railway Co., [1940] O.J. No. 266 (C.A.), affd. [1941] S.C.R. 591. The plaintiff sued for damages following the destruction of a cargo of sodium cyanide due to a derailment on the defendant’s railway line. He pleaded that the defendant was a common carrier and that the goods had been damaged. The trial judge allowed an amendment, at trial, to plead negligence. Middleton J.A., writing for the court, held at para. 18 that the amendment was properly allowed – it was not the institution of a new cause of action, but simply an alternative claim with respect to the same cause of action: “The amendment relates to the remedy sought upon facts already pleaded.”

Economy unexpectedly declines in November

OTTAWA — Real gross domestic product unexpectedly edged down 0.1 per cent in November after showing no growth in October, Statistics Canada reported Tuesday.

Lower output in the energy sector accounted for most of the November decline, as oil and gas extraction fell 2.5 per cent. Reduced production of crude petroleum, in part due to maintenance shutdowns, led the sector’s decline.

There were also drops in wholesale trade, finance and insurance, and construction, the federal agency said in its report, which caught analysts by surprise.

Most had expected a 0.2 per cent rise in GDP in November.

Playing in the sun

Thomas Mulcair discusses Bill C-10 and other criminal justice and immigration issues

Regardless of your political views you are  invited to hear Thomas Mulcair address  Bill C-10 and other criminal justice and immigration issues.

He is one of the front runners for the leadership of the NDP and one of the most eloquent voices against this regressive legislation.

He is speaking Feb 10 at 5:00 pm at the Madison Pub, Madison Ave, Toronto, just north of Bloor Street in the Annex.

Does the "faint-hope" clause apply to the Shafia murders? No

The punishment for first degree murder in Canada is life imprisonment without chance of parole for 25 years. Until recently certain truly reformed offenders could seek release after 15 years.

However, on February 15, 2011 Parliament passed Bill S-6 (Serious Time for the Most Serious Crime Act) which effectively repealed the "faint-hope" clause of the Criminal Code for all future offenders.

The repeal of the "faint-hope" clause means that offenders who commit murder on or after the day the repeal came into force will no longer be able to apply to be eligible for early parole.

Since the Shafia murders took place June 29/30, 2009 the old sentencing regime applies to them and Shafia, Tooba and Hamed could in theory apply for release after 15 years except for s. 745.6 of the Criminal Code which bars multiple murderers from faint hope (I thank @anthonydoran31 for pointing this out). In practice, however, it is virtually inconceivable they would qualify for early release.

Evidence given on voir dire not thereby trial evidence

R. v. Chaing, 2012 ONCA 59 deals with a case where there was confusion about evidence given on a voir dire and actual testimony. Evidence given on a voir dire is not thereby evidence given in a trial. The distinction is critical to remember; with some many blended voir dire cases special care must be taken. The Court holds:

[4]              It is clear from the record that the appellant testified on the Charter voir dire only, and not at the trial proper.  This is reflected in the following exchange between the trial judge and defence counsel:

THE COURT: ...you don't plan to call any evidence on the substantive charge?

MR. ANBER: That's correct, Your Honour.

[5]              Unfortunately, the trial judge appears to have forgotten this when he turned to his brief oral decision.  He said:

THE COURT: ...I can only say on the issue of possession, frankly the evidence is there.  The evidence is overwhelming, and I have no difficulty whatsoever in being satisfied beyond a reasonable doubt on all the evidence including his own client's own evidence, that Mr. Chaing had possession, in other words that he had knowledge, and that he had control over the drugs that were found in the trunk. 

Who moved my carrots?

Data mining and politics

An interesting read about US Political Parties and data mining -- despite some legal issues here (PIPEDA for one) I am sure we'll see this here too:

The Co-op and the Data Trust: The DNC and RNC get into the data mining business. - Slate Magazine:

http://slate.me/ziudYv

Useful passage on the importance of process in litigation

Shebib v. Victoria (City), 2012 BCCA 42 is a very recent decision dealing with a self-represented litigant who failed to follow the Rules of the British Columbia Court of Appeal.  In discussing an application for leave to extend the time to apply for leave to appeal the Court made some observations that may be useful generally in all litigious matters:

 

 

 

[1]             This case illustrates the tension that often develops among the aspirations of self-represented parties, the interests of parties who are represented and the responsibilities of the court in overseeing the orderly administration of litigation.

 

…

 

[11]         Court rules, procedures and provisions governing appeals are designed to achieve an effective appellate process.  Their objective is to facilitate, not obstruct, the achievement of a correct legal result.  Appellate procedural rules protect and promote the interests of parties, including Mr. Shebib.  When rules and procedures are not followed, it is difficult for this Court to administer appeals effectively.  Parties who do not follow the appropriate rules and procedures often obscure their legitimate positions, making it hard for this Court to address their concerns.  Failure to comply with the appropriate rules and procedures also may unfairly compound the difficulties of the opposing party’s task of presenting its position and resisting the position of the defaulting party.

Monday and off to work!!!

Shafia verdict prompts debate: Was it an honour killing, or just murder?

It was, of course, both.

Broadly put, the motivation for murder is irrelevant. The question is not 'why' but 'if'?

The ethnic and religious background here may play well for some as a background trope but the vast majority of murders in Canada are committed by those who are nominally Christians (and most murderers in Egypt are Muslim and in India, or at least certain states, Hindu).

About 15% of Canadian murders are committed by husbands who are motivated by jealousy. These cases are standard fare -- if a woman is murdered the police always look first to the husband or boyfriend. In a strong sense the spousal murders can be seen as 'honour' killings.

Of course, the Shafia case was made for media. It has the battle of the old country immigrant and his children's radical change to meet the new society (as in the Jazz Singer: that said Cantor Rabinowitz doesn't murder his son, he just despairs of him). It has attractive young (and now dead) women of whom there are lots of photos and at least one tragic romance. It has polygamy and a rejected (and humiliated first wife). It has CSI style eavesdropping.

In the end, this was just a sordid case of a tyrannical father, who convinced a second wife and a deluded son to help murder his first wife and some disobedient daughters. Nasty yes. But not very different (except in scale) from spousal murders across Canada:

http://bit.ly/yT7NTm

Die Meistersinger von Nürnberg - 1943 (Furtwängler, Bayreuth)

A magnificent recording -- now YouTube is allowing long videos there are some wonderful older pieces going up. Four hours and two minutes and worth listening to every second:

http://www.youtube.com/watch?v=MAokG9BrvPo&feature=related

No passion so effectually robs the mind of all its powers of acting and reasoning as fear

Edmund Burke

A dense fog covering seven city blocks, to a depth of 100 feet, is composed of something less than one glass of water

I read this on-line (it was part of a motivational blog; "so much confusion from so little a source so don't worry be happy" sort of thing) and thought that doesn't sound right.

Well, I was wrong and it is right (more or less).

A cubic mile of a fog contains, on average, a gallon of water.

Now that doesn't actually motivate me to do anything or worry less, but it is an interesting fact... .

Frobisher Bay around noon

Arctic Golf