Why filming police is good

Police have a hard job and their actions must not be judged by hindsight or by too fine an analysis. But .... once an accused is restrained violence must not be used. This is a good example of why independent filming or photographing is ago of thing. Some police already have automatic video of arrests - this protects the accused AND the police who can show they behaved properly:

Vancouver police officer filmed kicking handcuffed man

http://www.cbc.ca/news/canada/british-columbia/story/2012/08/16/bc-vancouver-violent-arrest.html

You have the right to a camera

'There is no law in Canada that prohibits people from openly photographing police. Section 129 of the Criminal Code prohibits "wilfully obstructing" police in the execution of their duty, but it is hard to imagine how standing by peacefully and videotaping as police searched the premises and piled up items for seizure could be considered obstructing'

http://www.nationalpost.com/m/wp/full-comment/blog.html?b=fullcomment.nationalpost.com/2012/08/17/karen-selick-you-have-a-right-to-remain-silent-and-film-the-proceedingse

I hate paparazzi

Bank of Canada ethnically cleanses new $100 bills

This story would be funny if it wasn't so offensive.   To my thinking everyone is overlooking the obvious - the disputed woman is First Nations:

http://m.thestar.com/news/gta/article/1243487--bank-of-canada-ethnically-cleanses-new-100-bill-mallick

The news that focus groups outside Toronto objected to the image of an Asian-looking woman scientist on the back of the redesigned $100 billed — the cowardly Bank of Canada hastily replaced her with a "neutral" woman, whatever that may be — is shocking.

Bear

Stand Down!!!

“As a rock on the seashore he standeth firm, and the dashing of the waves disturbeth him not. He raiseth his head like a tower on a hill, and the arrows of fortune drop at his feet. In the instant of danger, the courage of his heart here, and scorn to fly.”

– Akhenaton

Dangerous Driving

R. v. Adams, 2012 PECA 15 has a helpful summary of the law regarding dangerous driving:



[33] Section 249(1) <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec249subsec1_smooth> (a) of the Criminal Code <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html> reads as follows:



249.(1) Every one commits an offence who operates



(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place; ...



[34] Like all criminal offences, there are two essential elements that must be proven by the Crown before a conviction is entered against the accused pursuant to s.249 <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec249_smooth> . First, the accused must have engaged in prohibited conduct of " ... driving in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated..." Second, the Crown must prove the accused acted with the intent necessary to warrant criminal sanction. Dangerous driving is a serious criminal offence; thus, it is very important that the mental element, sometimes referred to as the fault requirement or mens rea, is proven beyond a reasonable doubt.



[35] The offence established by s.249 <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec249_smooth> is negligence based. The challenge for the courts has been to assess and find a level of fault which is significantly greater than the level of fault necessary to prove simple negligence. In R. v. Roy, 2012 SCC 26 (CanLII) <http://www.canlii.org/en/ca/scc/doc/2012/2012scc26/2012scc26.html> , 2012 SCC 26, Cromwell J., writing for the Court discussed the importance of finding a degree of fault greater than that required to establish civil liability in negligence. At paragraph 31 he stated:





[31] From at least the 1940s, the Court has distinguished between, on the one hand, simple negligence that is required to establish civil liability or guilt of provincial careless driving offences and, on the other hand, the significantly greater fault required for the criminal offence of dangerous driving (American Automobile Ins. Co. v. Dickson, [1943] S.C.R. 143). This distinction took on added importance for constitutional purposes. It became the basis for differentiating, for division of powers purposes, between the permissible scope of provincial and federal legislative competence as well as meeting the minimum fault requirements for crimes under the Canadian Charter of Rights and Freedoms <http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html> (O'Grady v. Sparling, 1960 CanLII 70 (SCC) <http://www.canlii.org/en/ca/scc/doc/1960/1960canlii70/1960canlii70.html> , [1960] S.C.R. 804; Mann v. The Queen, 1966 CanLII 5 (SCC) <http://www.canlii.org/en/ca/scc/doc/1966/1966canlii5/1966canlii5.html> , [1966] S.C.R. 238; Hundal). Thus, the "marked departure" standard underlines the seriousness of the criminal offence of dangerous driving, separates federal criminal law from provincial regulatory law and ensures that there is an appropriate fault requirement for Charter <http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html> purposes.



[36] In R. v. Hundal, 1993 CanLII 120 (SCC) <http://www.canlii.org/en/ca/scc/doc/1993/1993canlii120/1993canlii120.html> , [1993] 1 S.C.R. 867 (SCC), the Court concluded proof of the mental element of the offence is determined not by assessing what the accused person subjectively intended, but rather whether on an objective assessment the accused exercised the appropriate standard of care. The intent of the accused should be assessed objectively and in the context of all the circumstances that surround the incident. The trier of fact must be assured the conduct of the accused was a marked departure from the standard of care a reasonable person would observe in the circumstances. See: R. v. Hundal, at paragraphs 24 and 33.



[37] In concurring reasons for herself and Lamer C.J.C., McLachlin J. pointed out that the use of the term "modified objective test" does not mean the court must consider a combination of subjective and objective factors - looking first at what ought to have been in the mind of the accused and then considering what was actually there or not there. To the contrary, McLachlin J. noted in her reasons that the term "modified objective test" was developed to allow the court to take into consideration all the circumstances and to give the accused the opportunity to raise a reasonable doubt as to what the reasonable person would think or do in the circumstances.

Ecuador grants political asylum to Julian Assange

My my LONDON/QUITO (Reuters) - Ecuador granted political asylum to Julian Assange on Thursday, ratcheting up tension in a standoff with Britain which has warned it could revoke the diplomatic status of Quito's embassy in London to allow the extradition of the WikiLeaks founder.

Want to sleep more

I just want to do God's will. And he's allowed me to go to the mountain. And I've looked over, and I've seen the promised land! I may not get there with you, but I want you to know tonight that we as a people will get to the promised land.

Martin Luther King, Jr.

The United Church need not stick to "matters of faith"

The United Church has a perfect right to express political and social views.  Indeed, to a large extent that is the mission of a Church -- to bring faith into the world through action.  The Public Square need not be naked.

That's why I disagree with today's National Post Editorial calling on the United Church to stick to "matters of faith" link.  Churches are entitled to enter the political realm -- but when they do so they must expect to be challenged.

The Roman Catholic Church's position on contraception and marriage, for example, is one I disagree with -- and I'm prepared to say why -- but I do not think the Church is wrong to have a position.  By contrast, the Roman Catholic view on, say, did Jesus have brothers is really none of my business.

Accordingly, just because the United Church takes a position does not mean the position is beyond discussion -- as soon as a religious group makes a social or political statement that statement is open to the world.

As my earlier posts say, I disagree with the United Church's current proposals about Israel.  They are misguided, one-sided and anti-Semitic.  They are totally wrong.  They may be imprudent for the Church to adopt.  But the United Church is entitled to hold them.

Dr. Martin Luther King did much of his work as a Pastor -- he had "political" views.  Those views were motivated by his faith.  His views, in large measure, prevailed after a vigorous (and sometimes violent) political debate.  I am very glad Dr. King did not stick to "matters of faith".

"The most important thing in communication is to hear what isn't being said." --- Peter F. Drucker

United Church as Useful Idiot

I will get some heavy flak for this but by taking away the recognition of Israel's fundamental nature as a Jewish state the United Church proposals have lost any measure of legitimacy.

It is one thing to call upon Israel to abandon lands gained in 1967 and to back that up by saying there will be commercial pressure to promote that result. It is something else entirely to say Israel need not be a Jewish state. 

That, bluntly, is to say the Jews are specially chosen to be stateless - and that is not anti-Israel, that is anti-Semitic. 

Now, seeing as the United Church is rapidly fading away perhaps all this is meaningless but still, there is a tragedy in seeing a former rock of Canadian identity being reduced to a useful idiot of present day fascism. 

http://www.torontosun.com/2012/08/15/united-church-of-canada-drops-israel

"The United Church working group also reversed one of its original recommendations that called for Palestinians to acknowledge Israel as a Jewish state, instead recommending that Palestinians need not make that recognition until significant peace talks commence."

Polar bear and ice

Ontario Place repair plan gets go-ahead as all-season park to work and play

John Tory has done a great service to Ontario -- his plan makes very good sense -- it is impressive that Conservatives and Liberals could come together like this!Share on facebook

DAVID COOPER/TORONTO STARA report last month headed by John Tory says Ontario Place said its survival lies in adding a mix of condos, businesses and festivals to the area to keep people coming.

Rob Ferguson
Queen’s Park Bureau 

Ontario Place could host beach volleyball for the Pan Am Games but there are no guarantees the iconic Cinesphere will stay as the province vows to move at “lightning speed” to revitalize Ontario Place by 2017.

Tourism Minister Michael Chan said Wednesday the government has endorsed the 18 recommendations in last month’s report from former Progressive Conservative leader John Tory to turn the waterfront park into an all-season destination with places to live, work, shop, eat and play.

“Today is the first step to move ahead,” said Chan, who has earmarked $5.5 million to get the site ready for developers to make proposals for condos, a hotel, stores, restaurants and offices within two or three years.

"Consent" of underaged indivvidual not a mitigating factor for sexual offences

R. v. Bjornson, 2012 ABCA 230, a recent Alberta Court of Appeal decision, holds that the fact an underage complainant was a "willing participation", is not a mitigating factor in a charge of sexual touching :

[11] As for the degree of responsibility of the offender, Bjornson was 22 years of age, a mature adult. He knew that the complainant was only 15. As the adult, Bjornson had the responsibility to ensure that his actions did not cross the line from the legal - friendship - to the illegal - sexual intercourse and fellatio with an underage complainant, no matter how willing she was to engage in that activity.

Care and Control

R v Coleman, 2012 SKCA 65 is a useful decision discussing the often-visited question of what must be proven in order for an accused person to be held to have been in “care and control” of a motor vehicle within the meaning of s. 253(1) of the Criminal Code:

 [22] It is useful to begin the analysis of this appeal by considering the meaning of the term “care and control”. That meaning was spelled out by the Supreme Court of Canada nearly 30 years ago in R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119. McIntyre J., writing for the Court, said this (at p. 126): ... acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous.

 [23] The case law since Toews has emphasized that the central consideration in relation to “care and control” is the risk that the accused person will create a dangerous situation, whether by putting the vehicle in motion or some other way. For example, Bastarache J.A. (as he then was) explained the situation as follows in R. v. Clarke (1997), 27 M.V.R. (3d) 91 (N.B.C.A.):

[8] ... The care and control offence lies not in the intention to drive the vehicle, but in voluntarily becoming intoxicated and in taking some actions by which the offender is involved with the vehicle in a way which may cause danger to the public....

[9] There is no necessity of proving that the offender was posing an immediate danger to the public in order to find him guilty. It is the possibility that the vehicle may be put in motion, intentionally or unintentionally, by a person who is intoxicated, that poses a problem of public ... See also: R. v. Wren (2000), 2 M.V.R. (4th) 188 (Ont. C.A.) at paras. 16 and 25.

 [24] The relevant risk does not relate solely to the possibility of an impaired driver acting inadvertently to put a vehicle in motion. It also includes the possibility of such a driver acting intentionally in this regard. The reason for this is self-evident. Impaired drivers have a diminished capacity to make safe judgments. They frequently act, deliberately, in ways which endanger themselves and the public. The Court of Appeal for Ontario put it this way in R. v. Pelletier (2000), 6 M.V.R (4th) 152 (Ont. C.A.):

[6] . . . As the summary conviction appeal court judge pointed out there was a risk that the appellant would change his mind and drive the car. There was also the risk that, in his impaired condition, the appellant would misjudge his level of impairment and drive the car while his condition continued to pose a risk. See also: R. v. Gent (1997), 30 M.V.R. (3d) 318 (Alta. C.A.) at para. 2.

 [25] This same concern is reflected in several of this Court’s decisions. Thus, for example, in R. v. Buckingham, supra, Smith J.A., dealing with a situation where the offender occupied the driver’s seat of his truck while waiting for a taxi, explained the core issue of the case by stating as follows:

[19] ... The question was whether [the offender’s] use of the vehicle's ‘fittings and equipment’ (i.e., his turning on the engine to activate the truck's heater) together with his state of intoxication, created the risk that the vehicle could be set in motion, creating a danger to the public. That risk has two aspects: the first is that the intoxicated accused will awaken, and be too intoxicated to remember or adhere to his previous determination not to drive; the second is that in his intoxicated state he will inadvertently set the vehicle in motion... [emphasis added]

 [26] Caldwell J.A., writing recently in R. v. Anderson, 2012 SKCA 37 (CanLII), 2012 SKCA 37, focused on the same sources of risk when examining the situation of an intoxicated driver found at the wheel of a parked vehicle:

[16] ... The question before the summary conviction appeal court judge then was whether the trial judge had correctly found Mr. Andersen's use of his vehicle or its fittings and equipment or his conduct in relation to his vehicle had involved that risk. Practically speaking, the risk of danger will be established where the evidence indicates the accused might have intentionally or inadvertently put the vehicle in motion, or both. See also: R. v. Price (1978), 40 C.C.C. (2d) 378 (N.B.C.A.) at p. 384.

Pandas

When people talk, listen completely. Most people never listen.

Ernest Hemingway

Teddy bear trial

Teddy bears in Court -- a fairly typical trial...Video here

Stay of proceedings for abusive police conduct

R. v. Bellusci, 2012 SCC 44 deals with a stay of prosecution because of abusive police conduct. The Court, albeit restricting its position to rare cases, upheld such a stay. Some might argue that abusive police conduct unrelated to the charge itself (in this case the conduct was related to the offence directly) ought never to ground a stay - such argument did not find favor with the Court:

[31]   In short, the trial judge in this case carefully and correctly considered all the relevant principles. He assessed the gravity of the prejudice and explained why he thought alternative remedies were inadequate. He did not misdirect himself on the applicable law or commit a reviewable error of fact. Nor was his exercise of discretion to grant a stay of proceedings “so clearly wrong as to amount to an injustice” (Regan, supra). My conclusion in this regard relates exclusively to the circumstances of the present matter. In fairness to the trial judge, however, I note that other judges have considered a stay of proceedings to be a proportionate remedy for mistreatment suffered at the hands of law enforcement officers: R. v. Walcott (2008), 57 C.R. (6th) 223 (Ont. S.C.J.); R. v. Maskell, 2011 ABPC 176, 512 A.R. 372; R. v. Jackson, 2011 ONCJ 228, 235 C.R.R. (2d) 289; R. v. Mohmedi, 2009 ONCJ 533, 72 C.R. (6th) 345; R. v. J.W., 2006 ABPC 216, 398 A.R. 374; R. v. R.L.F., 2005 ABPC 28, 373 A.R. 114; R. v. Wiscombe and Tenenbein, 2003 BCPC 418 (CanLII); R. v. Murphy (2001), 29 M.V.R. (4th) 50 (Sask. Prov. Ct.); Spannier v. R.,1996 CanLII 978 (B.C.S.C.).^[

Gun ownership and violence towards the RCMP

At the risk of sounding like the NRA, the possession of guns standing alone does not lead to violence.  If you look at world statistics, some countries with very high gun ownership rates have low murder rates.  That said, gun ownership (which is very high in Canada - it's only in comparison to the US it looks low) needs to be regulated and made safe:

Article here

Nunavut justice minister urges more support for police, more firearms safety

Another working day!

What are reasonable steps to ascertain the age of the person?

In respect of the offence of child internet luring (s. 172.1(1)(c)), s. 172.1(4) of the Code provided in material part as follows:

It is not a defence to a charge [of internet luring under s. 172.1(1)(c)] that the accused believed that the person ... was at least ... fourteen years of age ... unless the accused took reasonable steps to ascertain the age of the person.  

What does that mean? Today's decision in R. v. Dragos, 2012 ONCA 538 holds:

[35]       In my view, s. 172.1(4) requires an accused who claims mistake of age to have exercised a degree of care in ascertaining a complainant's age that a reasonable person in the circumstances would have exercised.  I say this for the following reasons.

At the airport after the Olympics?

Compensation for contingent events in civil matters

Beldycki Estate v. Jaipargas, 2012 ONCA 537 has a helpful analysis of how courts approach compensation for future contingent events:

 

[72]       Courts deal with alleged past events and potential future or hypothetical events in different ways.

[73]       Past events must be proven on the evidence adduced at trial by the party who bears the onus of proof. Once proven to the applicable standard of proof, we treat those past events as certainties: Athey, at para. 28.  In an action for negligence, the court must decide whether the defendant was negligent and whether the defendant’s negligence caused the plaintiff’s injury. Once proven, negligence and causation are accepted as certainties: Athey, at para. 28.

[74]       On the other hand, hypothetical or future events, such as how the plaintiff’s life would have proceeded without the failed diagnosis, need not be proven, but simply accorded weight on the basis of their relative likelihood. A future or hypothetical possibility will be taken into account provided it is a real and substantial possibility and not mere speculation: Athey, at paras. 27 and 41.

[75]       A trier of fact required to assess future pecuniary loss becomes engaged in an exercise that is, perforce, somewhat speculative. The ultimate questions to be decided cannot be proved or disproved in the same way as facts relating to past events. A plaintiff who seeks compensation for future pecuniary loss need not prove on a balance of probabilities a loss or diminution of future earning capacity or a requirement of future care because of a defendant’s wrong. A plaintiff who establishes a real and substantial risk of future pecuniary loss is entitled to compensation: Graham v. Rourke (1990), 75 O.R. (2d) 622 (C.A.), at p. 634.

[76]       However, a plaintiff who establishes a real and substantial risk of future pecuniary loss is not necessarily entitled to the full measure of that potential loss.  Entitlement to compensation depends, in part at least, on the degree of risk established. Risk in this sense refers to the risk of future loss – not the degree to which causation was established. The measure of compensation will also depend on the possibility, if any, that a plaintiff would have suffered some or all of the projected losses even if the wrong done to him or her had not occurred: Graham, at pp. 634-635.

[77]       A contingency is a chance occurrence, something that is dependent on an uncertain event. We refer to factors that affect the degree of risk of future economic loss and the possibility that all or part of these losses may have occurred apart from the tortious conduct that underpins the litigation as contingencies: Graham, at p. 635.

[78]       As a general rule, we take account of contingencies that might affect future earnings. This is so despite the fact that these contingencies are already implicitly contained in an assessment of the projected average level of earnings of the person wronged. Not all contingencies are adverse. And some public and private schemes cushion individuals against adverse contingencies. The percentage deduction is generally small: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, at p. 253.

[79]       Contingencies may be general or specific. General contingencies represent the common lot of all of us. Adjustments based on general contingencies should only be modest: Graham, at p. 636. Specific contingencies are peculiar to an individual plaintiff and require evidentiary support for the conclusion that the occurrence of the contingency is a realistic, not merely a speculative possibility: Graham, at p. 636; and Schurrip v. Koot (1977), 18 O.R. (2d) 337 (C.A.), at p. 343.

 

Decline of the United Church

Like all main line churches in Canada, the 87-year-old United Church — Canada's largest Protestant denomination — is facing multiple challenges.

It has far fewer people in its pews than it once did. Since peaking at more than one million in 1965, membership has fallen by nearly half. The declines have been even steeper for Sunday school enrolment — down about 90 per cent since 1961 — baptisms and professions of faith.

Those who do come to church are predominantly older. Among the nearly 7,500 church members who responded to a major identity study last year, the average age was 65.

The church's 1,970 ordained ministry personnel are also aging. As of April 2011, their average age was 56. Just six (0.3 per cent) were under age 30.

In a country in which most people live in large cities, more than 50 per cent of the church's congregations and 30 per cent of its members reside in communities of less than 2,000. Another 23 per cent of congregations and 26 per cent of members live in communities with populations between 2,000 and 30,000.

http://www.montrealgazette.com/touch/life/story.html?id=7077919