Morton Arboretum 066 (Photo credit: Michael Kappel)
Morton Arboretum 060 (Photo credit: Michael Kappel)In Ontario, as a general proposition, a vendor is, apart from express contract, under no general duty to disclose defects relating to title or to quality
Outaouais Synergest Inc. v. Lang Michener LLP, 2013 ONCA 526:
[76] The trial judge found, at paras. 106-107, that the cost recovery
clause could be said to be a defect relating to the quality of the lands to
be conveyed and a defect relating to title – the two types of title defect
to which *caveat emptor*relates.[2] He noted that, aside from prohibiting
active concealment or a failure to disclose a latent defect rendering
premises dangerous, a vendor is under no duty to disparage his property and
may remain silent. This is because, in Ontario, as a general proposition, a
ve... more »
Quiet Enjoyment is not limited to breaches of title or possession but it must be a breach made by the lessor or of those lawfully claiming under the lessor
In Kenny v Preen [1963] 1 QB 499, Pearson LJ in the Court of Appeal said
(at 511):
The implied covenant for quiet enjoyment is not an absolute covenant
protecting a tenant against eviction or interference by anybody, but is a
qualified covenant protecting the tenant against interference with the
tenant’s quiet and peaceful possession and enjoyment of the premises by the
landlord or persons claiming through or under the landlord. The basis of it
is that the landlord, by letting the premises, confers on the tenant the
right of possession during the term and impliedly promises not to ... more »
"Les homes construisent trop de murs et pas assez de ponts." (Men build too many walls and not enough bridges.)
Commonly attributed to Isaac Newton and usually presented as "we built too
many walls and not enough bridges".
As even a cursory knowledge of Isaac Newton's thinking would suggest, this
is most unlikely to be something he said.
Indeed it is a recent, and erroneous, attribution. Dominique Pire
attributes the quotation to Isaac Newton upon receiving the Nobel Peace
Prize in 1958. Earlier attributions do not exist. It seems that Pire
confused Isaac Newton with another, less famous, Newton.
The real author was Joseph Fort Newton, a baptist minister and Freemason.
He wrote extensivel... more »
Why didn't Hitler use poison gas against Allied forces?
During the Second German War both sides expected the other to use poison
gas. And both sides were ready to retaliate in kind for the first use of
such gas.
So why didn't Hitler, especially when things got rough after Stalingrad use
poison gas? It certainly was not because he believed only in an ethical
war - and he was happy to use poison gas in other contexts.
There are three general views, and I incline to the last.
First, Hitler had himself been gassed and recognizing the inhumanity of the
weapon forbade its use. With another leader I might accept this. Mustard
gas, from the ... more »
Misapprehension of evidence
*R. v. Vokurka*, 2013 NLCA 51:
[20] In *R. v. MacIsaac*, 2013 NLCA 26 (CanLII), 2013 NLCA 26, Rowe
J.A. summarized the law relating to misapprehension of evidence:
[16] The test for misapprehension of evidence was set out by Doherty
J.A. in *R. v. Morrissey* 1995 CanLII 3498 (ON CA), (1995), 97 C.C.C. (3d)
193 (Ont. C.A.), at paragraph 83:
A misapprehension of the evidence may refer to a failure to consider
evidence relevant to a material issue, a mistake as to the substance of the
evidence, or a failure to give proper effect to evidence.
[17] The misapprehension... more »
Justice and Justices of the Peace
From the current edition of the Law Times, an Ontario newspaper for the
legal profession:
Judges and justices of the peace have their remuneration determined in a
peculiar way. Contract negotiations are forbidden and the government is
not permitted merely to establish a pay scale by fiat. Instead, a
commission is established to consider what is fair and reasonable and,
after hearing from witnesses and reading submissions, that commission
recommends a compensation package. The idea is that an independent body is
responsible for what judicial officers get paid.
The next commis... more »
Do appeals need transcripts? Courts say yes!
Most appeals do not really need the transcripts; the appeal is argued and
the dusty red books of transcripts remain unopened. This is especially
true in civil cases. The appeal is based on what the court of first
instance said and not much more.
All that said, appeals are generally not heard unless the transcripts have
been provided. *Ocean v. Economical Mutual Insurance Company*, 2013 NSCA
90 is a good source for the view that an appeal (absent remarkable
circumstances) cannot go ahead without transcripts:
[11] The compelling reasons for the need of t... more »
Best not advertise Viagra or Cialis in Canada
"Criminal Code 163 (2) Every one commits an offence who knowingly, without
lawful justification or excuse,
...
(d) advertises or publishes an advertisement of any means, instructions,
medicine, drug or article intended or represented as a method for restoring
sexual virility or curing venereal diseases or diseases of the generative
organs."
It really is time to revise the Criminal Code!
A carefully drawn employment agreement can exclude the usual damages for wrongful dismissal
Shekhdar v. K & M Engineering and Consulting Corporation, 2013 ONCA 521:
[2] On the trial judge's finding, the agreement of April 25, 2001
governed the working relationship between the appellant and the respondent,
K & M Engineering throughout the relevant time period. That agreement
provided for termination for "any reason whatsoever or no reason on 15
days' prior written notice."
[3] The trial judge found that the appellant did not breach the
terms of his agreement with K & M Engineering and Consulting Corporation at
least to the extent that K & M Engineering ... more »
Trial counsel’s approval of the jury charge, and to a lesser extent his or her failure to object, will be a significant consideration on appeal
*R.
v. P.G.*, 2013 ONCA 520 holds:
[25] I add that while not dispositive, the errors now alleged
about
the instructions concerning the burden of proof are that the
instructions
were legally inadequate. According to Doherty J.A. in *R. v.
Austin*(2006), 214 C.C.C. (3d) 38 (Ont. C.A.) at para. 14, in such
circumstances
trial counsel’s approval of the jury charge, and to a lesser extent his
or
her failure to object, will be a significant consideration on appeal.
(See
also: *R. v. Carrière* (2001), 159 C.C.C. (3d) 51 at para. 59 (Ont.
C.A.),
and *R. v. Johnson* (2002), 166 C.C.C. ... more »
Why was the charge murder?
The Toronto police officer was charged with murder and not manslaughter
because manslaughter (generally) is a wrongful killing where there was no
intention to kill or cause grievous bodily harm that could kill.
Shoot someone repeatedly cannot possibly be seen as something done without
recognizing grievous bodily harm would result.
That doesn't mean the police officer is guilty - he may well have a defence
of legitimate use of force. But if he is guilty of anything it is not
manslaughter.
Now some law school stuff.
Canadian law distinguishes between justifiable, accidental and c... more »
Yes, criminal charges ought not be driven by public pressure -- but this is the the Federal Government's current policy -- so it's hardly surprising it applies to the Sammy Yatim case...
But appeasing the families of victims, however terrific they may be;
quieting the howling mob, however loud their cries; playing to the changing
favourites of the public gallery, however much that may suit the agenda of
government or agency, such things aren’t conducive to good decision-making.
Worse, the only justice they have anything to do with is the sort preferred
by the Queen in Alice in Wonderland. “No! No!” she cried. “Sentence first —
verdict afterwards.”
Story
Compound interest appropriate for breach of trust damages
Bronson v. Hewitt, 2013 BCCA 367:
At para. 17 of his supplementary endorsement, the motion judge explained
why he awarded compound interest:
Courts of equity have always exercised the power to award compound interest
whenever a wrongdoer deprives a company of money which it uses in its
business. On general principles it should be presumed that had the business
not been deprived of the money, it would have made the most beneficial use
of it available to it. Alternatively, it should be presumed that the
wrongdoer made the most beneficial use of it. [Internal citations omitted.]
I a... more »
I wonder if this is still true?
If any of you have ever looked at your FBI file, you discover that
intelligence agencies in general are extremely incompetent. That's one of
the reasons why there are so many intelligence failures. They just never
get anything straight, for all kinds of reasons. Part of it is because of
the information they get. The information they get comes from ideological
fanatics, typically, who always misunderstand things in their own crazy
way. If you look at an FBI file, say, about yourself, where you know what
the facts are, you'll see that the information has some kind of relation to
the f... more »
Just remember as you read this blog the NSA is noting you reading
There was of course no way of knowing whether you were being watched at any
given moment. How often, or on what system, the Thought Police plugged in
on any individual wire was guesswork. It was even conceivable that they
watched everybody all the time. But at any rate they could plug in your
wire whenever they wanted to.
From "1984"
Mistake in contract
Lee v. 1435375 Ontario Ltd., 2013 ONCA 516:
[37] The formation of a legally binding contract requires a meeting
of the minds –*consensus ad idem*. When the meeting of the minds is based
on a common error as to some fundamental fact, the parties' agreement,
viewed objectively, is "robbed of all efficacy": *Ron Ghitter Property
Consultants*, at para. 13, referring to M.P. Furnston, *Cheshire, Fifoot
and Furnston's Law of Contract,* 14th ed. (London: Butterworths, 2001).
[38] The motion judge accepted the test set out by Lord Atkin in the
famous decision of the House of L... more »
The Provincial Offences Court, and the Ontario Court of Justice to which appeals go from that court, are the face of justice to many citizens
R. v. Massara, 2013 ONCA 519:
[15] Mr. Massara takes issue with the fairness of the proceeding on
the motion before the appeal court judge and with the disposition. The
Provincial Offences Court, and the Ontario Court of Justice to which
appeals go from that court, are the face of justice to many citizens. They
are often self-represented and are not familiar with the court, its manner
of proceeding or its arcane rules.
[16] As I noted in R. v. Georgalis, [2013] O.J. No. 1921 at para. 8,
the assumption behind the high threshold for leave to appeal to this court ... more »
Aggravated or moral damages in wrongful dismissal
Capital Pontiac Buick Cadillac GMC Ltd v Coppola, 2013 SKCA 80 deals with
the difficult question of Keays damages in wrongful dismissal. The decision
is very helpful and worth reading in full:
*(b) Did the trial judge err in awarding $20,000 in aggravated damages?*
[25] I start by settling on a label for these types of damages. The
appropriate label is "moral damages" as this is the label implicitly
adopted by the Supreme Court of Canada in *Keays* (at para. 59): [3]
… [T]here is no reason to retain the distinction between "true aggravated
damages" resulting from a separate ca... more »
Constructive first degree murder arising out of unlawful confinement or attempted unlawful confinement under Criminal Code s. 231(5)(e)
R. v. Parris, 2013 ONCA 515 holds:
[44] First, to establish first degree murder under s. 231(5)(e), the
Crown must prove each of five essential elements beyond a reasonable doubt:
i. that the accused unlawfully confined
or attempted to unlawfully confine the victim or another person;
ii. that the accused murdered the victim;
iii. that the accused participated in the
murder of the victim in such a way that the accused was a substantial cause
of the victim's death;
... more »
The court should not lightly interfere with a testator’s choice of the person to act as estate trustee
Chambers Estate v. Chambers, 2013 ONCA 511:
[95] The applications judge was fully alive to the legal principle
that the court should not lightly interfere with a testator's choice of the
person to act as his or her estate trustee: *Re Weil*, [1961] O.R. 888
(C.A.), at p. 889. Just as a court should remove an estate trustee only on
the "clearest of evidence", so too they should be reluctant to pass over a
named executor unless "there is no other course to follow":*Windsor*, at
para. 41, citing *Crawford v. Jardine* (1997), 20 E.T.R. (2d) 182 (Ont.
C.J. (Gen. Div.)), at para.... more »
Judge in judge alone trial has jurisdiction to reverse a finding of guilt suo sponte
R. v. Griffith, 2013 ONCA 510 holds:
[12] On the basis of this court's decision in *R. v. Lessard* (1977),
30 C.C.C. (2d) 70, it cannot be doubted that the trial judge was not *
functus* until he imposed sentence. In *Lessard,* Martin J.A., speaking for
the court, held that a judge sitting without a jury is not *functus officio* until
he has imposed sentence or otherwise finally disposed of the case.
Therefore, a judge who has made a finding of guilt, either as a result of a
guilty plea or on disputed facts, is empowered to vacate the adjudication
of guilt at any time before ... more »
Joint submissions on sentence
R. v. A.B., 2013 NUCJ 15 deals with joint sentencing submissions:
[49] The Court's discretion on sentence is constrained by the terms of a
joint submission. Jurisprudence from the Court of Appeal provides that a
sentencing court must not lightly interfere with the terms of a negotiated
settlement that has resulted in the entry of guilty pleas. The Court cannot
exceed the joint recommendation made by the lawyers in this case unless the
proposed sentence brings the administration of the criminal justice system
into disrepute.
[50] For sound public policy reasons, the criminal justice... more »
Is Supreme Court obiter binding?
R. v. Puddicombe, 2013 ONCA 506 deals with obiter from the Supreme Court of
Canada:
[67] *R. v. Henry** *instructs that some *obiter* from the Supreme
Court of Canada must be regarded as authoritative and other *obiter* will
be persuasive only:
All *obiter* do not have, and are not intended to have, the same weight.
The weight decreases as one moves from the dispositive *ratio decidendi* to
a wider circle of analysis which is obviously intended for guidance and
which should be accepted as authoritative. Beyond that, there will be
commentary, examples or exposition that ar... more »
Ineffective assistance of counsel
R. v. R.L., 2013 ONCA 504:
[5] The governing test for a claim of ineffective assistance of
counsel is an exacting one. As indicated by the Supreme Court in *R. v.
G.D.B.*, 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26, for an appeal to
succeed on this ground it must be shown, first, that trial counsel's
conduct constituted incompetence and, second, that a miscarriage of justice
resulted.
[6] With respect to the first requirement, the Supreme Court
explained in *G.D.B.*,at para. 27:
Incompetence is determined by a reasonableness standard. The analysis
proceeds... more »
Adverse inference properly taken for failure to call witnesses
Stetler v. Stetler, 2013 ONCA 508 approves of an adverse inference made by
a trial judge on the basis that witnesses who could have been called were
not. This is helpful because the use of an adverse inference for failure to
call witnesses is infrequent. Here is the passage of the trial judge
approved by the Court of Appeal:
[7] I have not had the help of any expert witness but it seems to
me that through two separate divorce proceedings, this man's character is
defined. He will not tell the court what his income is and defies us to
guess. He is not cooperating at all, nor ... more »
Interjurisdictional immunity of highly limited application
*Marine Services International Ltd. v. Ryan Estate*, 2013 SCC 44
effectively eliminates the doctrine of interjurisdictional immunity:
Interjurisdictional immunity exists to protect the "basic, minimum and
unassailable content" or the core of the "exclusive classes of subject"
created by ss. 91 and 92 of the*Constitution Act, 1867*: *Bell Canada*, at
p. 839. This Court discussed interjurisdictional immunity in *Canadian
Western Bank* and later in *Quebec (Attorney General) v. Canadian Owners
and Pilots Association*, 2010 SCC 39, [2010] 2 S.C.R. 536 ("*COPA*"). The
doctrine has a ... more »
Abuse of process
R. v. M.T., 2013 ONCA 476:
[67] Helpful summaries of the doctrine of abuse of process are found
in the recent decisions of *R. v. Nixon*, 2011 SCC 34, 2 S.C.R. 566 and *R.
v. Regan*, 2002 SCC 12, 1 S.C.R. 297. Those cases identify two categories
of abuse of process. The first, and more common, category is engaged by
prosecutorial conduct affecting the fairness of the trial; the second, the
residual category, is engaged by prosecutorial conduct that contravenes
fundamental notions of justice and undermines the integrity of the judicial
process: see *Nixon* at para. 36.
[68] ... more »
Public interest considerations for bail pending appeal
R. v. J.P., 2013 ONCA 505 holds:
[6] I must also consider the public interest, taking into account
the fact that the appellant was convicted of a serious crime against the
person. I am obliged to weigh the values of reviewability and
enforceability. As Arbour J.A. said in *R. v. Farinacci* (1993), 67 O.A.C.
197, at paras. 41-43:
The concerns reflecting public interest, as expressed in the case-law,
relate both to the protection and safety of the public and to the need to
maintain a balance between the competing dictates of enforceability and
reviewability. It is the need... more »
AMICUS HOURLY RATES
*Ontario** v. Criminal Lawyers' Association ofOntario *(O.N.C.A., April 19,
2011)(34317)
"In three cases arising in the context of criminal proceedings in Ontario,
trial judges appointed *amici curiae* to assist the accused, who had
discharged counsel of their choice. The judges did so in order to maintain
the orderly conduct of the trials or to avoid delay in these complex,
lengthy proceedings. The cases were not decided under the *Canadian
Charter of Rights and Freedoms* and did not proceed on the basis that the
accused could not have fair trials without the assistance of coun... more »
Failing properly to wear seatbelt absolute or strict
R. v. Wilson, 2013 ONCA 503 allows leave to determine if failing to wear a
seatbelt properly is absolute or strict liability :
[5] In my view, it is a question of law alone whether s. 106(2) of
the *Highway Traffic Act* imposes absolute liability or strict liability.
Resolution of that question would have an impact on the jurisprudence in a
way that is of interest to the public at large, given both the frequency
with which the offence is charged and its public safety purpose.
Heroin ad from 1902: "not addictive like morphine, does not cause constipation and is ten times less toxic than codeine"??
An ad from 1902 -- the good old days when men were men -- and they realized
heroin was better than morphine for those lingering coughs... more »
Admission of inappropriate expert evidence may be harmless
*R. v. Granada*, 2013 ABCA 273 points out that expert evidence may be
inadmissible but still not prejudicial. Generally expert evidence is
excluded because it will be given too much weight and be prejudicial. But
if the expert evidence is "unnecessary" (and so inadmissible) it may still
be non-prejudicial if it merely states the obvious:
[12] Even if we were to accept the first argument, namely that
the evidence was unnecessary and unhelpful, we fail to see any real
prejudice arising from its admission. Simply put, if the expert's evidence
was superfluous, in that... more »
Inference in the absence of evidence an error
Drawing an inference in the absence of any direct evidence is a material
error:
*1250264 Ontario Inc. v. Pet Valu Canada Inc.* 2013 ONCA 279, [2013] O.J.
No. 2012, at para 7:
[7] In my view, the motion judge erred in two material
respects: drawing the inference in the absence of any direct evidence and
holding the CPVF to a standard of objectivity. The information disseminated
amounted to no more than opinion as to the advisability of the lawsuit from
a business perspective. It did not purport to comment on the legal merits
of the action. Information relating to the... more »
Burdens of proof in a blended voir dire
R. v. Boston, 2013 ONCA 498 deals with the complexities of burdens of proof
in a blended voir dire. Even though all the evidence is heard at once it is
essential to keep the different decisions separate and decide them
according to the relevant legal principles. This author considers the
difficulties such that it may be better to avoid blended voir dires
generally:
[23] In a *Charter *application, the burden of proof is on the
defence to establish a breach on a balance of probabilities. In a criminal
trial, the burden of proof is on the Crown to establish the guilt of the
... more »
Now that's a cough suppressant!
This cough remedy contained codeine, chloroform and cannabis:
Corroboration absent and judgment set aside
Anten v. Bhalerao, 2013 ONCA 499 uses the concept of corroboration to set
aside a finding of incapacity. The testimony of a witness is said to be
corroborated when it is shown to correspond with the representation of some
other witness, or to comport with some facts otherwise known or
established. Corroboration is seldom seen in modern Canadian law – this is
an unusual case where it is key:
[28] It was common ground that s. 14(1) of the Evidence Act applied
in this case, and that, in order for the Board to uphold the respondent’s
finding of incapacity, the respondent’s evide... more »
Deference to findings of fact
Barclays Bank PLC v. Devonshire Trust, 2013 ONCA 494:
[90] Second, findings of fact by the trial judge attract deference on
appeal and are only reviewable by this court if they reveal palpable and
overriding error: *Waxman v. Waxman* (2004), 186 O.A.C. 201 (C.A.), at
para. 291. This standard applies to all factual findings, whether based on
credibility assessments, the weighing of competing evidence, expert
evidence, or the drawing of inferences from primary facts: see *Waxman*, at
paras. 359-60. Findings of fact grounded in credibility assessments are
particularly difficult t... more »
The essence of liberalism is an attempt to secure a social order not based on irrational dogma, and insuring stability without involving more restraints than are necessary for the preservation of the community.
- Bertrand Russell, in *A History of Western Philosophy* (1945),
Introductory, p. xxiii
Did Ulysses arrive in the same ship he left in?
Is identity the continuity of substance or essence?
Six Nations of the Grand River
The Grand River 'Champion of Champions' Powwow Committee is a group of
highly motivated, community spirited volunteers who have for the past three
decades, staged and organized, on behalf of the Six Nations of the Grand
River, a Aboriginal Multicultural event, annually the fourth weekend of
July; so as to promote our rich arts heritage by showcasing our 'pride' in
music, dance, arts and crafts.
Abuse of process and improper purpose
Doe v. A & W Canada, 2013 HRTO 1259 is an interesting decision where an
application was brought on openly bogus grounds to raise issues with human
rights legislation. In dismissing the application the Chair made a useful
comment about abuse of process and improper purpose:
[18] Moreover, it is an abuse of process to bring an application for
a purpose unrelated to the enforcement of the legislation. As noted in Behn
v. Moulton Contracting Ltd., 2013 SCC 26 (CanLII), 2013 SCC 26 at paras.
39-41, the doctrine of abuse of process is characterized by its
flexibility, and has at i... more »
Admission for truth of prior inconsistent statements
R. *v. *Youvarajah 2013 SCC 41:
B. *Admissibility of Prior Inconsistent Statements*
[26] Historically, an out-of-court prior
inconsistent statement of a non-accused witness was admissible only to
impeach the credibility of the witness. A prior inconsistent statement —
hearsay evidence — was not admissible for the truth of its contents unless
the witness adopted the prior statement in court. Otherwise, the jury was
limited to rejecting the *viva voce*evidence of the recanting witness; the
jury could not substitute the contents of the out-of-court statem... more »
No general constitutional right to bilingualism across all Provinces
scolaire francophone de la Colombie‑Britannique v. British Columbia - 2013
SCC 42 holds:
[56] However, the *Charter* also reflects a
recognition that Canada is a federation and that each province has a role
to play in the protection and advancement of the country's official
languages. This is evident from ss. 16 to 20, which require bilingualism in
the federal government, in Parliament, in courts established by Parliament,
and in the province of New Brunswick. The *Charter* does not require any
province other than New Brunswick to provide for court proceedin... more »
A search condition imposed on sentence without notice or consent is improper
R v Atadjuat, 2013 NUCA 06 holds a sentencing condition allowing a search
of a convict's premises imposed by the Court without notice or consent is
improper:
[1] Following a guilty plea, the appellant received a global sentence of 6
months custody and 18 months probation for one count of assault, one count
of assault with a weapon, and nine counts of failing to comply with release
conditions. The latter relate to breaches of court orders as a result of
the consumption of alcohol.
[2] The appellant is a 40-year old Inuk with a grade 7 education. He began
sniffing solvents at the age ... more »
This is hilarious
The *Sun Media editorialists *decide to call up the toll-free number
featured in the government's much-reviled Economic Action Plan
advertisements. Result? "A polite receptionist referred us to the ministry
of finance website Budget.gc.ca, explaining she didn't have a direct phone
line for the EAP, nor was she aware of the Actionplan.gc.ca website, which
we told her about." This is hardly surprising, considering a government
poll found that basically nobody is paying attention to the ads except to
hate them. So enough already, they say. This is "essentially an example of
the governm... more »
Balancing media access and informant privilege
XY v. United States, 2013 ONCA 497 holds:
[9] Since the privilege applies, the court's role is to
"accommodate the open court principle to as great an extent possible
without risking a breach of the informer privilege": *Vancouver Sun*, at
para. 55. I do not agree with the media's submission that the privilege
only covers information that poses a 'real and substantial' risk, to be
proven by evidence, of revealing an informer's identity. The privilege
protects any information that might implicitly reveal or would in fact tend
to reveal the informer's identity: *R. v. Leipert... more »
Primacy of arbitration agreements and need to respect arbitration process
*Hopkins v. Ventura Custom Homes Ltd*., 2013 MBCA 67 has a useful summary
of the law relating to the primacy of arbitral agreements:
[15] Many courts at all levels have accepted the
primacy of arbitration agreements and the need to respect the arbitration
process that has been chosen by the parties. In Burlington Northern
Railroad Co. v. Canadian National Railway Co. (1995), 59 B.C.A.C. 97,
Cumming J.A., in dissent, adopted by the S.C.C., 1997 CanLII 395 (SCC),
[1997] 1 S.C.R. 5, upheld the motion judge's order staying the action. In
doing so, he state... more »
Bail pending appeal
R. v. Shelly Annette Taylor 2013 PECA 1 holds:
[3] For this motion, the hearing and determination are
governed by the provisions ofs.679(3) of the *Criminal Code*. The judge of
the Court of Appeal may order that the appellant be released pending
determination of her appeal if the appellant establishes that:
a. the appeal is not frivolous;
b. the appellant will surrender herself into custody in accordance
with the terms of the order; and
c. her detention is not necessary in the public interest.
[4] Section 679(5) of the *Cri... more »
Burden of proof not on moving party in mobility cases
Sferruzzi v. Allan, 2013 ONCA 496:
[42] *Gordon v. Goertz*, [1996] 2 S.C.R. 27 is the seminal case on
mobility in family law cases. In it, the Supreme Court set out the
principles that govern such matters. Paragraphs 49-50 of *Gordon* contain
the following summary of those principles:
1. The parent applying for a change in the custody or access order must
meet the threshold requirement of demonstrating a material change in the
circumstances affecting the child.
2. If the threshold is met, the judge on the application must embark on
a fresh inquiry into what is in th... more »
Seven years for shooting at police in Kimmirut
R v Utye 2013 NUCJ 14:
1.
[1] On July 28, 2012, the early morning peace and tranquility of
Kimmirut was shattered by the sound of gunfire. Two members of the RCMP and
a youth were inside the police detachment when the attack began. A hail of
bullets penetrated the detachment building and the marked police vehicle
parked outside.
Defence of fair comment requires factual foundation disclosed or obvious to audience
Mainstream Canada v. Staniford, 2013 BCCA 341 holds:
[24] In order for the defence of fair comment to succeed, it is
necessary for the comment to have a factual foundation or factual
substratum. The comment must be an expression of opinion on a known set of
facts, and the audience must be in a position to assess or evaluate the
comment. The rationale for this requirement was explained over a century
ago in the South African case decided by the Transvaal Supreme Court in *Roos
v. Stent and Pretoria Printing Works, Ltd.*,* *1909 T.S. 988 at 998 per
Innes C.J.:
But it is ob... more »
True? NO! In the old days men would stand outside the courtrooms with straw in their shoes. That would indicate their willingness to be a false witness and lie in front of the judge. So a straw man became someone who lied deliberately?
Its nonsense.
Though repeated in websites and books - I saw it recently in a book about
London in the early 1700s - not a single legitimate source attests to the
concept.
And frankly you might wonder just how credible men standing around
advertising they would give false witness might be? At best it's a joke;
more likely just another urban myth.
Pleading not guilty, by itself, does not suggest an accused is a danger
*R. v. Hasan*, 2013 ONCA 487 makes the important point that a claim of
innocence prior to a finding of guilt is neither an aggravating factor for
sentence nor proof the accused is a danger:
"The fact that he pleaded not guilty and maintained his innocence was not
and does not show that he was dangerous."
In 1960 Detroit had the highest per capita income in America
And a population of two million.
Now with 700,000, half functionally illiterate, the city is bankrupt.
But the suburbs are fine. Troy is fantastically wealthy and Auburn Hills is
nice.
But if you live in Troy you don't go to Detroit.
What happened was the city died and the donut ring survived.
Now that seems impossible in Canada but is it? Industrial cities like
Hamilton can go downhill while Dundas and Ancaster grow. Even proud Toronto
could (especially if the current municipal politics continues) be overtaken
by Markham and Pickering and Oakville.
Don't think Detroit has n... more »
Complicity in international criminal law
Ezokola *v.* Canada (Citizenship and Immigration) 2013 SCC 40 deals with
complicity in a criminal organization for international criminal law
purposes:
[68] In sum, while the various modes of commission
recognized in international criminal law articulate a broad concept of
complicity, individuals will not be held liable for crimes committed by a
group simply because they are associated with that group, or because they
passively acquiesced to the group's criminal purpose. At a minimum,
complicity under international criminal law requires an individual to
... more »
"In the present case, the trial judge improperly used the appellant’s right to be present at his trial to discredit his testimony. She erred in doing so."
*R. v. Jorgge*, 2013 ONCA 485 is a very clear statement that a judge may
not consider the possibility that an accused tailored their evidence to
meet evidence already heard. The Court writes:
[12] There is a natural temptation to reason as the trial judge did in this
case. But this reasoning was improper because it subverted the appellant’s
right to be present at his trial. Under s. 650(1) of the Criminal Code,
accused persons have a statutory right, indeed an obligation, to be present
at their trial. Section 650(1) is grounded in an accused’s right to a fair
trial and right to ma... more »
Documentary Evidence in Civil Matters
Documentary evidence poses a major challenge for the Courts. This is
especially so for civil cases – often trials for these matters are
conducted with a focus on the substantive issues and without a focus on how
things are to be proven. As a result evidentiary issues relating to proof
of documents can be overlooked.
Prior to admission all documents must be authenticated and established as
relevant.
Authentication, that is proving the document is what it purports to be,
seldom poses an issue. A person who made or received the document can say
it is, in fact, for example, a letter ... more »
When is legislation of quasi-constitutional status?
Nunavut (Minister of the Environment) v. WSCC, 2013 NUCJ 11 has a
useful analysis of when a statute is to be given special consideration
as being of quasi-consititutional status:
A. Is the Safety Act "quasi-constitutional" legislation?
[22] Jenkins submits that the purpose and objectives of the Safety Act
are of such importance that the legislation is "quasi-constitutional"
in nature.
[23] Laws may be constitutional, quasi-constitutional, or of general
application. The paramountcy of legislation may be determined by
reference to, amongst other things, its characterization as
... more »
For there to be reconciliation, there has to be truth.
When the news of intentional malnutrition of aboriginal children in 1940s
Canada came out, a Crown Attorney I was sitting with said "that's just like
Nazi Germany".
My instinct was to say "no, there wasn't a plan to kill" but then I stopped
and thought a bit. And realized the Crown was right.
The imposition of malnutrition is not the same as the imposition of death.
But both actions are based in the same mindset - the people "we" are
dealing with are not the same as "us" and are lesser beings who can be used
without regard for their inherent dignity and value. "They" are other an... more »
Hostile and adverse witnesses
Canada Evidence Act:
9. (1) A party producing a witness shall not be allowed to impeach his
credit by general evidence of bad character, but if the witness, in the
opinion of the court, proves adverse, the party may contradict him by other
evidence, or, by leave of the court, may prove that the witness made at
other times a statement inconsistent with his present testimony, but before
the last mentioned proof can be given the circumstances of the supposed
statement, sufficient to designate the particular occasion, shall be
mentioned to the witness, and he shall be asked whether or... more »
Cross examination of own witness on prior statement
*McInroy et al. v. The Queen, [1979] 1 S.C.R. 588:*
Section 9(2) is not concerned with the cross-examination of an adverse
witness. That subsection confers a discretion on a trial judge where the
party producing a witness alleges that the witness has made, at another
time, a written statement inconsistent with the evidence being given at the
trial. The discretion is to permit, without proof that the witness is
adverse, cross-examination as to the statement.
The task of the trial judge was to determine whether Mrs. St. Germaine's
testimony was inconsistent with her statement to the... more »
Leading questions during examination in chief
*R. v. Muise*, 2013 NSCA 81 considers leading questions during examination
in chief:
[23] The law on the use of
leading questions during direct examination was reviewed by Charron J. (as
she then was) in *R. v. Rose*, [2001] O.J. No. 1150 :
9 A leading question is one that suggests the answer. It is trite law
that the party who calls a witness is generally not permitted to ask the
witness leading questions. The reason for the rule arises from a concern
that the witness, who in many instances favours the party who calls him or
he... more »
Documents referred to in Claim may be considered on motion to strike for no cause of action
*McCreight v. Canada (Attorney General*), 2013 ONCA 483 deals with the
principle that, on a motion to strike for no cause of action, documents
expressly referred to in the claim may be considered by the court. The
principle is well known from *Montreal Trust Co. of Canada v. Toronto
Dominion Bank** (1992), 40 C.P.C. (3d) 389. Here the Court writes:*
[27] On this appeal, the appellants seek to rely on five documents.
They submit that these documents form part of their pleading. The documents
consist of: a transcript from the criminal proceedings; the three decisions
of Justic... more »
Death of Alex Colville
I met Alex Colville in his studio in Nova Scotia over thirty years ago. The
precision and detail of his work was (and is) astonishing; certainly he
created an instantly recognizable style and body of work. Canada has lost a
significant artist.
Compound interest is the norm
*Zacharias v. Zurich Insurance Company*, 2013 ONCA 482 is an insurance case
with implications beyond the insurance field. The court considers whether
under specific legislation interest payable is simple or compound (an easy
decision on the specific legislation). In so doing the court makes general
statements showing that compound interest is the norm even where there is
some ambiguity; specifically for interest to be simple it needs to be
expressly identified as such. This has implications throughout commercial
law. The Court writes:
[51] The implications of this difference ... more »
An order dismissing a motion for contempt is interlocutory
Simmonds v. Simmonds, 2013 ONCA 479:
[3] The appellant relies on *Pimiskern v. Brophey**,* 2013 O.J.
No. 505 to argue that an order dismissing a motion for contempt is a final
order.
[4] The respondent concedes that an order finding contempt is a
final order but argues that because the motion judge dismissed the motion
for contempt, the motion judge's order is interlocutory and not binding on
the trial judge, and that an appeal accordingly does not lie to this court.
Dishonesty gives cause for termination in financial industry
Agostino v. Gary Bean Securities Ltd., 2013 ONSC 6918 holds:
[85] I recognize that dishonesty does not automatically mean that
an employer has cause for dismissal. Writing on behalf of a unanimous
court in *McKinley v. BC Tel*, 2001 SCC 38 (CanLII), [2001] 2 S.C.R. 161,
Iacobucci J. said at para. 57:
…I favour an analytical framework that examines each case on its own
particular facts and circumstances and considers the nature and seriousness
of the dishonesty in order to assess whether it is reconcilable with
sustaining the employment relationship. Such an approach mi... more »
Arviat children eat fewer than 3 fruit per month: Researcher says children also eat little local caribou and fish
"We found some terrible things. You know, most of our students are eating
caribou meat only once a week. They're eating fish only once a month.
They're eating fruit on average 2.8 times a month. They're getting a
vegetable only once a week," she said.
http://www.cbc.ca/news/canada/north/story/2013/07/15/north-children-arviat-diets.html
Custody arrangements of children cannot be used to punish contempt
Chan v. Town, 2013 ONCA 478 holds:
[6] We therefore set aside the finding of contempt. It is
nevertheless necessary to state that the remedy imposed by the motion judge
was not an available remedy under rule 31(5) of the *Family Law Rules*.
Custodial arrangements of children cannot be used as a punishment for
contempt. That is not to say that there may not be a circumstance where a
change in custodial arrangements would be in the best interests of the
child, but this is not that case. There was no motion to vary the final
order for custody based on a material change in circ... more »
Reasonable apprehension of bias
In murder cases bail is considered by a Superior Court judge. Is it
problematic for the bail judge to be the trial judge? No; see R. v. Williams, 2013
ONCA 477:
[2] The fact that Whitten J. presided at the appellant's
unsuccessful bail application and then at the trial, almost two years
later, did not create a reasonable apprehension of bias. The trial judge's
expression of opinion at the bail hearing as to the strength of the Crown's
case was justified by the record before him and, indeed, was later borne
out by the evidence called at the trial. The trial judge was not th... more »
What is required to change bail at the conclusion of a preliminary inquiry
The judge hearing a preliminary inquiry can, at the conclusion of the
inquiry vacate any existing bail order and make a new one: Criminal Code s.
523(2).
R. v. Prete, [1987] O. J. 2480 is usually taken to say such an order will
be made only if there material change in circumstance from the existing
order.
Other cases seem to consider the preliminary inquiry judge to be holding a
hearing de novo. So R. v. Grier, 2010 ONSC 6934 holds:
[4] The applicant suggests that errors were committed both at
first instance and at the *de novo *hearing. In my view, the *de novo*... more »
Canada is full?
Recently there has been a claim that Canada is full - the population cannot
grow larger.
Certainly in parts of the South good farmland has been, and continues to
be, paced over for shopping malls and housing. That's a mistake.
But anyone who thinks Canada is crowded probably hasn't left Toronto
recently.
The vastness of Canada is amazing but the emptiness of most of the country
is staggering.
Fly due north from Ottawa for three hours crossing Nunavik and on to
Baffin.
Look down - what do you see?
Buildings? Farming? Roads?
No.
And once you arrive in Iqaluit you are st... more »
Zimmerman
The acquittal was not a great surprise.
The prosecution's case did not come out especially well. The attempt last
week during closing (!!!) to allege child abuse was not a ploy to distract
the defence - it was a Hail Mary gambit by the prosecutor where the hope
was to salvage something.
Perhaps because it wouldn't fly on the facts the issue of race was not
brought forward in the trial. As a result further federal proceedings seem
highly implausible.
State Attorney Angela Corey said she believed prosecutors had "brought out
the truth on behalf of Trayvon Martin".
"This case has... more »
How should judges approach self-represented litigants at trial?
Bird v Bird, 2013 SKQB 157 sets out a useful checklist for how judges
should approach self-represented litigants at trial:
46) The Court went on to quote the guidelines established
in *Re F.* [2001] FamCA 348, the Full Court of the Family Court of
Australia, as follows:
1. A judge should ensure as far as is possible that procedural fairness
is afforded to all parties whether represented or appearing in person in
order to ensure a fair trial;
2. A judge should inform the litigant in person of the manner in which
the trial is to proceed, the order of calling wi... more »
Strip search must not be conducted as a matter of routine
*R. v. McKay*, 2013 ONCJ 298 holds:
[68] Since the Supreme Court of Canada's decision in *R. v. Golden, supra, *it
has generally been accepted that when it is necessary to place a detainee
in cells with other inmates, a strip search is usually necessary to ensure
the protection of the detainee, other inmates and the officers. Having
said that, the Supreme Court of Canada also held that strip searches should
not be the product of a routine policy but instead, the decision of whether
or not to conduct a strip search should occur on a case by case basis. The
Court held at paragra... more »
Rhetorical questions to be avoided in jury charge
R. v. Williams, 2013 ONCA 477 holds:
[8] We agree with the appellant that the trial judge's earlier
directions to the jury, when he was relating the evidence to the elements
of first and second degree murder, lacked balance. We are particularly
concerned with the trial judge's use of rhetorical questions. As this court
said in *R. v. Baltovich* (2004), 73 O.R. (3d) 481, at para. 146:
Rhetorical questions of that nature may have a place in the Crown's closing
address. They should be avoided in the jury charge, lest the trial judge be
seen as taking up the Crown's cause and... more »
Dangerous Driving and Negligence
*R. v. Robertson*, 2013 BCCA 268 is a useful analysis of the distinction
between dangerous driving and negligence. Merely driving badly is not
sufficient to establish dangerous driving:
[5] The more salient issue in the case revolves around the second
submission advanced on behalf of this appellant, namely that the verdict
was unreasonable and not supported by the evidence. It is not entirely easy
to characterize precisely the parameters of the offence charged, dangerous
driving, and it can be challenging to attempt to reconcile all of the
previous appellate authorities... more »
Being a witness at trial
Being a witness comes up in many different ways. First you can be a
witness in a case brought by or against you. So then you are a party and
it really is the only chance you will have to tell your story. In such a
case you have to be especially careful to answer only the questions asked
and not to get overly emotional. Second you can be a witness in support of
someone close to you – and almost the same considerations apply. Finally
you can be a witness in a case where you don’t really care who wins – there
your emotions are not as likely to get involved.
*In all cases the key p... more »
Charter values and exclusion of evidence
R. v. Akpalialuk, 2013 NUCJ 12 has a powerful statement of Charter values:
[79] All citizens have a profound interest to ensure that the legal rights
fundamental to a free and democratic society are preserved and protected.
[80] The Charter ensures that our legal rights and fundamental freedoms are
not eroded in a rush to justice. Where the forces of the state exceed their
authority and violate the rights guaranteed by the Charter, the evidence so
gathered must occasionally yield to a higher value. While society does have
a significant interest in having serious allegations of miscon... more »
Disposition costs in valuing family assets
*Willie v. Willie*, 2013 BCCA 318 deals with the often confusing issue of
when disposition costs ought to be considered in valuing family assets.
The British Columbia court said in valuing family assets, costs of
disposition should not be deducted if they are hypothetical or speculative,
and thus unlikely to be incurred:
[11] The case relied on by the chambers judge, Wheatley v. Oliver
1996 CanLII 3285 (BC CA), (1996), 21 B.C.L.R. (3d) 209, 133 D.L.R. (4th)
729 (C.A.), endorsed the widely accepted principle that, in valuing family
assets, costs of disposition should not b... more »
Bias based on race
*R. v. Gray*, 2013 ABCA 237 holds:
[17] However deplorable bias, prejudice or hate based on race, national
or ethnic origin may be, it is not a crime for an individual to entertain
such perverse views. Acting upon them in breach of the Criminal Code is
quite another matter. Section 718.2(a)(i) of the Criminal Code reflects our
community's distain for crime "motivated" by such factors. Mr. Many Shots
and Mr. Panther Bone were attacked by the Appellant for no reason other
than their Aboriginal heritage. It follows that the relevant inquiry is not
whether the Appellant harbou... more »
Students may reasonably rely on academic calendars
*Ramdath v. George Brown College of Applied Arts and Technology*, 2013 ONCA
468 holds that students may reasonably rely on representations in an
academic calendar. Such is significant because often such calendars have
statements related to formal designation and qualification – errors may be
actionable:
[5] First, the appellant argues that the trial judge erred in
finding that it owed a duty of care to its students. In the appellant's
submission, a special relationship giving rise to a duty of care would only
be created if the respondents acted reasonably in relying ... more »
Happy Nunavut Day! Iqaluit comes to Google Street View
From Google's official blog:
Nunavut, in the Inuktitut language, means "our land". When Google Maps teamed
up with the nonprofit Nunavut Tunngavik Inc to improve the maps of Canada's
Arctic, our aim was to help the people of Canada's most northern territory
build a map that accurately reflects the land they know so well.
Today, as we celebrate Nunavut Day, we're thrilled to share these new maps
and Street View imagery from the snowy streets, snowmobile trails and dog
sled runs of Nunavut's capital, Iqaluit.
A Court must allow submissions to be made on material issues
*R. v. Cook*, 2013 ONCA 467 is a good source for the principle that where a
material issue is before the Court there must be opportunity given to
address that issue. A Court is not required to allow endless argument
however it is an error to refuse an opportunity to make submissions:
[35] The appellant challenges his long term offender designation,
particularly the 10-year community supervision order imposed by the trial
judge. He submits that he was denied the right to make submissions on
whether the requirements of the long term offender provisions of the Code
had be... more »
Happy Nunavut Day
Nunavut Day, which is annually celebrated on July 9, commemorates passing
of two Nunavut acts. The Canadian Parliament passed the Nunavut Land Claims
Agreement Act and the Nunavut Act on July 9, 1993. Nunavut officially split
from the Northwest Territories and became a Canadian territory on April 1,
1999.
Smile -- it's summertime!
Related articles
Isaac Newton: The Enlightened Sorceror(richardodixon.wordpress.com)
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