Politics in 2018

[Cloud Cover]

In respect to an arrest under s 494(2), s 25 of the CCC provides that anyone who is authorized or required by law to do anything in the administration or enforcement of the law (specifically here, making an arrest) is justified in using such force which is reasonably necessary if acting on reasonable grounds.

The problem, as with much of the law, is determining what the facts are at any given time and if the response or acts of the "innocent" person are in fact reasonable in the circumstances. That generally runs on a continuum. At one end using deadly force to protect yourself from imminent deadly force is fairly clear and obvious. At the other is the question of how much force is reasonable to apprehend a criminal who is trying to escape or evade capture and no longer a risk to the property.

The police and the crown should analyze those situations in order to determine if charges should be laid against the "innocent" party. Regrettably, in many cases they tend to charge and let the trial sort it out. I don't think that this is necessarily out of an overabundance of caution but because, more often than not, there are conflicting stories muddy the waters.

At the end of the day, the questions may need to be answered by either a judge or jury who, of course, will be analysing the situation with typical twenty/twenty hindsight in a quiet courtroom rather than the chaos of a farmyard.

:cheers:

Section 27 also goes directly towards the use of force to prevent (immediate future tense)the commission of an offence and in R v Hebert the Supreme Court confirmed that Section 27 includes an offence that also is being committed (present tense) in the moment:

"Similarly, s. 27 justifies the use of force which is reasonably necessary to prevent the commission of an offence.  This section is of general application and the person asserting the justification need not be a peace or public officer or a member of a restricted class of persons. However, the section is clearly designed to permit an innocent bystander, who witnesses an offence being or about to be committed, to use force to prevent the offence from occurring.”

This does allow a person to step in and use force for example, to break up a bar fight, prevent or stop any type of assault, theft, etc. as long as the force applied is not excessive (ie reasonable and proportionate) in the circumstances. Curiously, the section says nothing about arresting and then delivering the offender to the police. 

• " ...Section 27 (1)  ... requires that the trier of fact apply the accused’s perception of the situation and his or her belief as to the reaction necessary to the situation as long as there is a reasonably verifiable basis for that perception...... I will repeat yet again that an accused does not have an onus of demonstrating that he or she was acting in defence of another; rather, the Crown has the onus of demonstrating the contrary beyond a reasonable doubt." 
  
  "The sections of the Code authorizing the use of force in defence of a person or property, to prevent crime, and to apprehend offenders, in general, express in greater detail the great principle of the common law that the use of force in such circumstances is subject to the restriction that the force used is necessary; that is, that the harm sought to be prevented could not be prevented by less violent means and that the injury or harm done by, or which might reasonably be anticipated from the force used, is not disproportionate to the injury or harm it is intended to prevent."
  

 

[Piece of Cake]

I have attached the national use of force model.

 

[Loachman]

Somewhat related to what FJAG posted earlier, here, courtesy of the National Post, is the full transcript of Chief Justice Martel Popescul instructions to the jury in the Stanley murder trial.

Thank-you very much for that. It was a lengthy read, but an absolutely fascinating and educational one.

I have never read the transcript of a judge's instructions before. I was very impressed by its detail and completeness.

It also provided much more detail regarding the unfortunate events as they unfolded.

I was already completely confident that the verdict was a correct and just one, and this confirmed it.

Not being a lawyer, I do not know if it contains any weaknesses that could be exploited in a potential appeal, but I could not see any.

I found "it is not disputed that Mr. Stanley was legally justified in defence of his property to retrieve his handgun and fire it into the air" to be of great interest. I have, previously, read accounts where that act has resulted in charges of careless use being laid, and often convictions being made.

Much appreciated. Thanks again.

 

[FJAG]

Somewhat related to what FJAG posted earlier, here, courtesy of the National Post, is the full transcript of Chief Justice Martel Popescul instructions to the jury in the Stanley murder trial.

Full transcript of judge’s instructions to Colten Boushie jury: Put yourself in a juror’s shoes

Can't get past the d*** pay wall. 

Section 27 also goes directly towards the use of force to prevent (immediate future tense)the commission of an offence and in R v Hebert the Supreme Court confirmed that Section 27 includes an offence that also is being committed (present tense) in the moment:

"Similarly, s. 27 justifies the use of force which is reasonably necessary to prevent the commission of an offence.  This section is of general application and the person asserting the justification need not be a peace or public officer or a member of a restricted class of persons. However, the section is clearly designed to permit an innocent bystander, who witnesses an offence being or about to be committed, to use force to prevent the offence from occurring.”

This does allow a person to step in and use force for example, to break up a bar fight, prevent or stop any type of assault, theft, etc. as long as the force applied is not excessive (ie reasonable and proportionate) in the circumstances. Curiously, the section says nothing about arresting and then delivering the offender to the police. 
. . .

True enough but I would think that by going to the car to take the keys, Stanley was more than likely involved in preventing escape and/or effecting arrest; if anything.

The reason that s27 probably does not include the "deliver to police" provision is most likely because s 27 is an act to stop an offence before it occurs and where arrest isn't available because at the time no offence has happened yet. S494(2) and (3) relate to an arrest after a crime has been committed and therefore there is a need to provide for the disposition of the arrested offender.

:cheers:

 

[Oldgateboatdriver]

I found "it is not disputed that Mr. Stanley was legally justified in defence of his property to retrieve his handgun and fire it into the air" to be of great interest. I have, previously, read accounts where that act has resulted in charges of careless use being laid, and often convictions being made.

That, Loachman, is because it is still dependant on other circumstances surrounding the discharge. In the case of Mr. Stanley , discharging his handgun in the air in the middle of his farm which is  hundreds of acres big made it safe. I live in the country, in farmland, but the way the farmhouses are arrayed, I have a neighbour's residence about 75 meters from my house, and his next neighbour is maybe fifty meters away. On the other side, my next neighbour's residence is about 150 meters away, and all of us are about 25 meters from the main road. It's the old French colonial "long and narrow" land organization, combined with building extra houses in between the original farms for kids of the original farmers over the years. So, in my case, if I was to discharge my hand gun in the air, while not in a position to prove that I was very careful as to the direction I shot in, I might still be considered to have been careless.

 

[Cloud Cover]

Loach: for me the discussion about careless use of a firearm was enlightening. On the one hand the Crown argues intent to murder, on the other they say death caused by careless use.
Jury says no to both.

 

[Cloud Cover]

I have the jury instructions document in MS Word, how do I send it by PM? I don't see an attachment option.

 

[FJAG]

I have the jury instructions document in MS Word, how do I send it by PM? I don't see an attachment option.

Maybe print it as a pdf and then attach it to a post?

:dunno:

 

[Oldgateboatdriver]

You can actually attach it to a post in this thread as a word document, no need to transfer to an other format. It's just in PM's that we don't have the attachment function

 

[FJAG]

You can actually attach it to a post in this thread as a word document, no need to transfer to an other format. It's just in PM's that we don't have the attachment function

I don't like opening Word documents on the web. Too many macro viruses out there. PDF's are a bit safer.

:cheers:

 

[Cloud Cover]

attached ...

 

[FJAG]

attached ...

Excellent!

Thx

:cheers:

 

[Loachman]

That, Loachman, is because it is still dependant on other circumstances surrounding the discharge. In the case of Mr. Stanley , discharging his handgun in the air in the middle of his farm which is  hundreds of acres big made it safe.

The only case that I can identify by memory is the famous Ian Thomson one:

http://nationalpost.com/news/canada/firebombs-left-no-choice-homeowner-tells-gun-trial

http://nationalpost.com/opinion/matt-gurney-after-two-years-judge-acquits-man-who-defended-himself-with-a-gun

In that case, two charges were dropped prior to the trial. I thought he was tried for all four charges.

I probably cannot track the other cases down now, as they were older and received much less press.

Mr Thomson's legal experience - the dropped charges - may have influenced Mr Stanley's legal experience regarding warning shots. Those are still not recommended, for real safety as well as legal liability issues. Mr Thomson, being a firearms instructor, aimed his a little more carefully.

 

[Altair]

Looks like brown is trying to pull a Moore.

 

[Loachman]

Yes, the broken windows theory.  I agree with some points but not all.  What about a person who makes a simple mistake?  Should that mistake follow him /her around for the rest of their life?

As long as the penalty is reasonable; the prime intent was to educate and deter at an early stage. From what I remember, arrests for such things resulted an overnight stay at taxpayers' expense and a release the next day, with charges either dropped or stayed.

If the petty crook failed to lean, subsequent police action also escalated.

Where will the extra resources come from that are needed to process and house those who commit a simple crime? Given that resources are limited, what would you like to trade in exchange?  Should we take money from education? Sports programs? Housing? All of the above have a negative correlation to crime.  How about we take it from health care?

The theory was, and it appeared to work, that, by influencing career choice at an early stage there was much less drain upon scarce resources overall.

One night in a cell, perhaps two for slower leaners, was better than a month for something bigger after no action at all prior to that, and then followed later by three months, six months, a year or two, and then life once the crook's chosen profession really takes off.

Deterrence, as in military defensive matters, is much cheaper than lengthy prison sentences or wars.

Lastly, and this is a personal opinion. I would rather have 10 people who committed a crime go free, than convict one innocent person.

On that we agree, as does lengthy legal tradition.

 

[ModlrMike]

Looks like brown is trying to pull a Moore.

I rather think he's trying to reclaim his reputation.

On the other hand, that Tanya Granic Allen sounds like someone they should be very, very afraid of.

 

[Altair]

I rather think he's trying to reclaim his reputation.

On the other hand, that Tanya Granic Allen sounds like someone they should be very, very afraid of.

Hes running for the leadership with a cloud of alleged sexual misconduct over his head and a massive target for the wynne party. He's doing the party no favors,  he's in this for himself at this juncture.

Its very Roy Moore like. Of all the leadership candidates Wynne wants to fact you know she's kneels down and prays she goes up against Brown. Or Doug. But mostly Brown.

I would imagine the PCs don't pick him to be leader but they've come this far down the road of self destruction,  why not go all the way?

 

[GR66]

...

On the other hand, that Tanya Granic Allen sounds like someone they should be very, very afraid of.

http://www.cbc.ca/news/canada/toronto/tanya-granic-allen-ontario-pc-leadership-1.4538156

Yes, that's exactly what the Ontario PC party needs...a hard swing to the social conservative right.
:

 

[Cloud Cover]

Ref the earlier discussions about use of information to fill jury pools, there is an article pin todays Toronto star about this regarding problems with Ontario's system:
https://www.thestar.com/news/investigations/2018/02/16/how-a-broken-jury-list-makes-ontario-justice-whiter-richer-and-less-like-your-community.html

*********************
"A two-year Toronto Star/Ryerson School of Journalism investigation documenting the racial makeup of jurors in 52 criminal trials since 2016 in Toronto and Brampton reveals flaws in the jury selection process that skews towards property owners, fails to reflect the GTA’s growing diversity and excludes potentially millions of Ontarians from serving their civic duty.

The jury selection list is based on the province’s property assessment rolls, excluding many renters, boarders, students, seniors, spouses who are not named on property titles, transient and low-income people, Indigenous people and those unable to afford property in a red-hot real estate market.

What remains is a prospective juror list disproportionately comprised of white Ontarians able to afford the significant costs of serving in a system that often pays jurors less than minimum wage and does not cover expenses such as travel, parking, meals and child care. It is a particular hardship for hourly workers — Ontario has no law compelling companies to compensate employees for jury duty — the self-employed or those in temporary or contract jobs."
*********************************
Something is wrong with their information. I know people who rent, are mature students (white,asian, female), and have been called to jury duty in Ontario.

 

[Cloud Cover]

http://www.cbc.ca/news/canada/toronto/tanya-granic-allen-ontario-pc-leadership-1.4538156

Yes, that's exactly what the Ontario PC party needs...a hard swing to the social conservative right.
:

Might not be what the PC party needs, but a hard swing to the fiscal and ethical right as an immediate correction is what the province of Ontario needs. That does not mean "social conservatism" but it does mean getting financially lean and shedding a lot of government involvement and politically correct regulatory involvement in things that are creating divisions, not solving problems and generally dragging the province down.