Thursday, June 28, 2012

The Military Police Complaints Commission Final Report – MPCC 2008-042 – Concerning a complaint by Amnesty International Canada and British Columbia Civil Liberties Association in June 2008

Commission’s Final Report – MPCC 2008-042 – Concerning a complaint by Amnesty International Canada and British Columbia Civil Liberties Association in June 2008

National Defence Act – Part IV

FINAL REPORTFollowing a Public Interest Hearing
Pursuant to Subsection 250.38(1) of the National Defence ActWith Respect to a Complaint
Concerning the Conduct of Captain (N) (ret’d) Steven Moore,
Lieutenant-Colonel (ret’d) William H. Garrick, Major John Kirschner,
Major Bernie Hudson, Major Michel Zybala, Major Ron Gribble,
Chief Warrant Officer Barry Watson and Master Warrant Officer (ret’d) Jean-Yves Girard

File: MPCC 2008-042
Ottawa, June 27, 2012
Mr. Glenn M. Stannard, Chairperson
Mr. Roy Berlinquette, Commission Member

Table of Contents

Glossary of Terms / Acronyms used throughout this Report viii

Executive Summary. xi

I. Introduction. 1

II. Outline of the Complaint 5

2.1 Factual and Legal Allegations Made by the Complainants
2.2 Time Period Covered by the Complaint
2.3 Subjects of the Complaint

III. The Hearing Process. 13

3.1 The Commission Decision to Commence a Public Interest Investigation into the Transfer Complaint
3.2 The Commission Decision to Hold a Public Interest Hearing into the Transfer Complaint
3.3 Application for Judicial Review of the February 21, 2007 Complaint and Decision to Hold Public Interest Hearings
3.4 Failure to Investigate Complaint Filed June 12, 2008 by the Complainants
3.5 The Commission’s September 30, 2008 Reasons Accepting Jurisdiction Over the June 12, 2008 Complaint
3.6 Attorney General of Canada’s Second Application for Judicial Review, in Respect of the June 12, 2008 AIC/BCCLA Complaint (October 30, 2008)
3.7 December 4, 2008 Procedural Overview
3.8 The BCCLA Application for Funding
3.9 Stay Application
3.10 Commencement of Hearings in May 2009 (Transfer and Failure to Investigate Complaints)
3.11 September 16, 2009 Federal Court Ruling on Jurisdiction
3.12 October 7 and 14, 2009: Hearings, Motions and Indefinite Adjournment
3.12.1 Issues with Respect to Document Disclosure
3.12.2 Commission Court Challenge to Section 38 Redactions
3.12.3 Obstacles with Respect to Witnesses
3.12.4 The Disruptive Impact of Section 38 Notices
3.12.5 The Pre-Hearing Motions Scheduled in October 2009
3.12.6 The Commission’s Decision to Adjourn (October 14, 2009)
3.13 December 10, 2009: Case Conference Convened to Set Schedule for Document Production
3.14 Start of Hearings, March 24, 2010
3.14.1 The Status of Document Production
3.14.2 Interlocutory Motions
3.14.3 Status of LCol (ret’d) Garrick
3.14.4 Standard of Conduct
3.14.5 Means of Knowing
3.15 April 6, 2010: Commencement of Substantive Hearings
3.15.1 Continuity with Past Sittings of the Afghanistan Public Interest Hearings
3.15.2 Status of Documentary Disclosure
3.15.3 In Camera Proceedings
3.16 April 20, 2010: Update on Document Production
3.16.1 Evidence on the Document Production Process: Gagnon and Edwards Testimony
3.16.2 DND Document Production Process
3.16.3 DFAIT Document Production
3.16.4 Issuance of the Gagnon Summons and a Return to Federal Court
3.16.4.1 Commission’s Process Upheld by Federal Court

IV. Other Processes Addressing Detainee Issues in Afghanistan. 85

4.1 The Complaint from Professor Attaran to the Commission
4.2 Amnesty International Charter Litigation before the Federal Court (the Mactavish Decisions)
4.3 Parliamentary Proceedings
4.4 The April 25, 2010 UK Judgment on the Legality of Detainee Transfers

V. List of Witnesses and Dates of Testimony. 100

VI. History of Detainee Handling by the Canadian Forces. 109

6.1 Detainees are an Operational Command Responsibility
6.2 Military Police Role in Detainee Handling and Transfer
6.3 Military Police Detainee Handling for Task Force Afghanistan

VII. Technical Arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan, dated December 18, 2005. 112

7.1 Detainee Treatment
7.2 Monitoring and Tracking of Detainees Post Transfer

VIII. Supplementary Arrangement for the Transfer of Detainees Between the Government of Canada and the Government of the Islamic Republic of Afghanistan, dated May 3, 2007. 116

8.1 Purpose of the Supplementary Arrangement
8.2 Assurances from the Government of Afghanistan
8.3 Monitoring and Tracking of Detainees Post-Transfer

IX. Theatre Standing Orders. 121

9.1 Background
9.2 Theatre Standing Order 321 (May 2007)
9.3 Procedures Following the Capture of Detainees
9.4 Determination of the Requirement for Continued Detention, Transfer or Release
9.5 Procedures for Transfer of Detainees

X. Directives and Orders Particularly Applicable to the Military Police. 127

10.1 Military Police Doctrine
10.1.1 Definition and Purpose
10.1.2 Effect and Authority of Doctrine
10.1.3 Key Doctrinal Elements of MP Duties
10.1.3.1 Role of MPs in Support of the CF
10.1.3.2 Specific Roles and Responsibilities - Policing Duties
10.1.4 Command Structure and Technical Control
10.1.4.1 Command Structure – General
10.1.4.2 Command Structure - CFNIS
10.1.5 The Geneva Conventions, Detainee Issues, MPs and the NIS
10.2 Military Police Policy and Technical Procedures
10.3 Military Police Technical Directive
10.4 Status as Peace Officers under the National Defence Act

XI. The Duties Assigned to the Military Police with Respect to Treatment of Detainees, the Enforcement of Laws and Initiating Investigations. 152

11.1 Canadian Forces Provost Marshal (CFPM)
11.1.1 Canadian Forces Military Police Accountability Framework
11.2 Canadian Expeditionary Forces Command (CEFCOM) Provost Marshal
11.3 Task Force Provost Marshal (TFPM)
11.4 Military Police Located at the Kandahar Air Field (KAF) Detention Facility
11.5 Canadian Forces National Investigation Service (CFNIS)

XII. The Information Environment about Detainee Abuse in Afghanistan. 164

12.1 General Information about the Risk of Detainee Torture in Afghanistan
12.1.1 AIC/BCCLA Complaint Letter Regarding the Transfer of Detainees by Military Police in Afghanistan (February 21, 2007)
12.1.2 Independent Reports
12.1.2.1 Afghan Independent Human Rights Commission (AIHRC) Reports
12.1.2.2 UN Reports
12.1.2.3 US Department of State Country Reports
12.1.2.4 DFAIT Reports
12.1.2.5 Amnesty International Reports
12.1.3 Newspaper Articles / Globe and Mail and La Presse Reports, April 2007
12.1.4 Reports on Site Visits Post May 3, 2007
12.1.5 Conclusion regarding General Information on the Risk of Mistreatment and Torture of Detainees in Afghanistan
12.2 The CEFCOM Information Environment
12.2.1 What is CEFCOM?
12.2.2 Role of CEFCOM PM
12.2.3 Information about Detainee Treatment Post-Transfer at CEFCOM
12.2.4 Military Police Access to the Information about Detainee Treatment Post-Transfer at CEFCOM
12.2.5 The Development of a New Transfer Regime and the Diminishment of the Military Police Role
12.2.6 The CEFCOM Investigation into the Graeme Smith Globe & Mail Articles
12.2.7 Investigation by the CEFCOM Provost Marshals into Post-Transfer Issues Between May 2007 and June 12, 2008
12.2.8 Conclusion with Respect to MP Knowledge at CEFCOM
12.3 The Afghanistan Theatre
12.3.1 ROTO 3 – MP Knowledge at the Detention Facility
12.3.1.1 Evidence of Sgt Carol Utton
12.3.1.2 Evidence of Capt Gillian Worsfold
12.3.2 ROTOs 4 & 5 – MP Knowledge at the Detention Facility
12.3.3 ROTO 3 – Task Force Headquarters
12.3.4 ROTOs 4 & 5–Task Force Headquarters
12.3.4.1 MGen Laroche
12.3.4.2 BGen Juneau
12.3.5 ROTO 3 – DFAIT in Afghanistan
12.3.6 ROTOs 4 & 5 – DFAIT in Afghanistan
12.3.6.1 Ed Jager, POLAD
12.3.6.2 John Davison, PRT Political Director
12.3.6.3 Nicholas Gosselin, Policy Officer, Human Rights

XIII. CFNIS Investigations. 306

13.1 General Occurences
13.1.1 GO 2007-2598 – Operation Camel Spider
13.1.2 GO 2008-6259 – Investigation into Allegations of Extended Detention
13.1.3 GO 2008-3134 – ROTO 4 Human Dimensions Operations (HDO) Survey
13.1.4 GO 2008-6906 – Operation Centipede
13.1.5 GO 2008-6912 – Investigation into Allegations of Possible Summary Execution, ROTO 1
13.1.6 GO 2008-6913 – Investigation into Allegations of Assault by ANA
13.1.7 GO 2008-6917 – Investigation into Allegations of Summary Executions – ROTO 2
13.1.8 GO 2008-6918 – Col Noonan Affidavit
13.1.9 GO 2008-6919 – Investigation into Tactical Questioning
13.1.10 GO 2008-6920 and 6921 – Investigation into Globe and Mail Reports of Abuse
13.1.11 GO 2008-23231 – Investigation into Disclosure during MP Training
13.2 Delays, Investigative Procedures, Resources and Priorities for NIS Investigations

XIV. The Analysis of Professors Forcese and Sassoli Relating to Legal Allegations in the Complaint 323

XV. The Legal Standard of Conduct Applicable to Military Police. 335

15.1 The Standard of the Reasonable Police Officer
15.2 The Duty to Self-Initiate an Investigation
15.2.1 Case Law
15.2.2 MP Policies and Directives
15.2.3 The Means of Knowing Standard

XVI. Did the Subjects Possess Knowledge that Triggered a Duty to Investigate?. 347

16.1 Major Bernie Hudson
16.2 Chief Warrant Officer Barry Watson
16.3 Major Michel Zybala
16.4 Master Warrant Officer (ret’d) Jean-Yves Girard
16.5 Major Ron Gribble
16.6 Major John Kirschner
16.7 Lieutenant-Colonel (ret’d) William H. Garrick
16.8 Capt (N) (ret’d) Steven Moore
16.8.1 Capt (N) (ret’d) Moore’s Access to Information about the Detainee Process and Detainee Treatment
16.8.2 Capt (N) (ret’d) Moore’s Responsibility for the NIS
16.8.3 Issues Related to Command and Control

XVII. The Commission’s Findings and Recommendations. 505

17.1 Commission Commentary on the Hearing Process
17.1.1 Commission Comments on the Documentary Disclosure Process
17.1.2 Commission Comments on Access to Witnesses
17.1.3 Commission Comments on Government of Canada Use of s. 38 of the Canada Evidence Act
17.1.4 Claims of Cabinet Confidentiality Under s. 39 of the Canada Evidence Act517
17.1.5 Looking Back on the Somalia Inquiry: The Parallels and a Chance to Move Beyond

XVIII. Recommendations. 522

XIX. Summary of Findings and Recommendations. 532

Appendix A : Chief of Defence Staff's Notice of Action dated April 3, 2012. 522

Monday, June 25, 2012

SUPREME COURT OF CANADA Citation: Annapolis County District School Board v. Marshall, 2012 SCC 27 Date: 20120607 Docket: 34189

Source: http://scc.lexum.org/en/2012/2012scc27/2012scc27.html

SUPREME COURT OF CANADA

Citation: Annapolis County District School Board v. Marshall, 2012 SCC 27

Date: 20120607

Docket: 34189

Between:

Annapolis County District School Board and Douglas Ernest Feener

Appellants / Respondents on cross-appeal

and

Johnathan Lee Marshall, represented by his Guardian, Vaughan Caldwell

Respondent / Appellant on cross-appeal

Coram: McLachlin C.J. and Deschamps, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

Reasons for Judgment:

(paras. 1 to 13)

Dissenting Reasons:

(paras. 14 to 15)

Deschamps J. (McLachlin C.J. and Abella, Rothstein, Moldaver and Karakatsanis JJ. concurring)

Cromwell J.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

annapolis county dist. sch. bd. v. marshall

Annapolis County District School Board and

Douglas Ernest Feener Appellants/Respondents on cross‑appeal

Johnathan Lee Marshall, represented by his Guardian,

Vaughan Caldwell Respondent/Appellant on cross‑appeal

Indexed as: Annapolis County District School Board v. Marshall

2012 SCC 27

File No.: 34189.

2012: May 8; 2012: June 7.

Present: McLachlin C.J. and Deschamps, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

on appeal from the court of appeal for nova scotia

Torts — Negligence — Standard of care — Contributory negligence — Child running into path of oncoming bus suffering severe injuries — Whether trial judge erred in improperly inviting jury to find child responsible for accident — Motor Vehicle Act, R.S.N.S. 1989, c. 293, s. 248.

J, a four‑year‑old boy, suffered catastrophic injuries when he ran onto a highway and into the path of an oncoming empty school bus driven by F. A jury decided that there was no negligence by F that caused or contributed to J’s damages. The Court of Appeal ordered a new trial finding that, in referring to statutory right‑of‑way provisions, the trial judge improperly invited the jury to treat J like an adult and therefore find him responsible for the accident.

Held (Cromwell J. dissenting): The appeal should be allowed and the cross‑appeal dismissed.

Per McLachlin C.J. and Deschamps, Abella, Rothstein, Moldaver and Karakatsanis JJ.: There were no errors in the trial judge’s instructions to the jury. Rather, the Court of Appeal failed to appreciate the dual function of the statutory right‑of‑way provisions, which inform the assessment of whether a pedestrian was contributorily negligent and also help determine whether a driver breached the applicable standard of care. When the instructions on those provisions are read in light of the entire charge, it is clear they served only to delineate the standard of care applicable to F. The jury was invited to consider the conduct of a reasonable pedestrian in assessing whether F had demonstrated the requisite degree of precaution. The trial judge made it clear that, as a child, J’s liability was not at issue, and in no part of the charge did he instruct the jury to adjudicate on J’s negligence.

Per Cromwell J. (dissenting): As held by the Court of Appeal, there was a real risk that the charge, viewed as a whole, left the jury with the understanding that it was to consider whether the child was responsible for the accident. The critical point, which was not made clearly in the charge, was that the jury had to consider whether the circumstances were such as to put the defendant on notice that children might be present and that he should exercise greater care. The misdirection may have given rise to an injustice. The cross‑appeal should be dismissed. The evidence is not of such a character that only one view can reasonably be taken of its effect.

Cases Cited

By Cromwell J. (dissenting)

Byrne v. Hodgins (1972), 30 D.L.R. (3d) 128, rev’g (1972), 27 D.L.R. (3d) 617 (sub nom. Bryne v. Hodgins); Petijevich v. Law, [1969] S.C.R. 257; Jardine v. Northern Co‑operative Timber and Mill Association, [1945] 1 W.W.R. 533.

Statutes and Regulations Cited

Motor Vehicle Act, R.S.N.S. 1989, c. 293, s. 248.

APPEAL from a judgment of the Nova Scotia Court of Appeal (MacDonald C.J.N.S. and Saunders and Beveridge JJ.A.), 2011 NSCA 13, 298 N.S.R. (2d) 373, 945 A.P.R. 373, 6 M.V.R. (6th) 1, [2011] N.S.J. No. 54 (QL), 2011 CarswellNS 54, reversing the dismissal of the plaintiff’s action and ordering a new trial. Appeal allowed and cross‑appeal dismissed, Cromwell J. dissenting.

Scott C. Norton, Q.C., G. Grant Machum, Sara Scott and Scott R. Campbell, for the appellants/respondents on cross‑appeal.

R. Malcolm Macleod, Q.C., and Robert K. Dickson, Q.C., for the respondent/appellant on cross‑appeal.

The judgment of McLachlin C.J. and Deschamps, Abella, Rothstein, Moldaver and Karakatsanis JJ.was delivered by

Deschamps J. —

[1] On the afternoon of April 12, 1994, the respondent, four-year-old Johnathan Lee Marshall, was playing with his brothers in front of the family home, located along Highway 201. At the same time, the appellant Douglas Ernest Feener was driving his empty school bus along Highway 201 after having dropped off a load of elementary school children. As Mr. Feener approached the Marshall home, Johnathan ran onto the highway and into the path of the oncoming bus. Mr. Feener could not stop in time and Johnathan was struck. He suffered catastrophic injuries.

[2] Through his litigation guardian, Johnathan brought an action against Mr. Feener and his employer, the Annapolis County District School Board. The matter was heard in the Supreme Court of Nova Scotia before Pickup J. and a jury. After a ten-week trial, the jury answered “no” to the following question:

Was there negligence on the part of the defendant, Douglas Feener, that caused or contributed to the damages suffered by the plaintiff, Jonathan [sic] Marshall?

[3] The resulting order was appealed to the Nova Scotia Court of Appeal on four principal grounds: (1) the trial judge’s reference in his charge to the provisions of the Motor Vehicle Act, R.S.N.S. 1989, c. 293, concerning the duty of pedestrians to yield the right of way to vehicles; (2) his handling of the reverse onus provisions contained in s. 248 of the Motor Vehicle Act; (3) his explanation of the special duty of care owed by motorists where children are present; and (4) his admission of an RCMP investigation report. The Court of Appeal ordered a new trial on the basis of the first ground alone. With respect to the other grounds of appeal, MacDonald C.J.N.S., writing for the Court of Appeal, did not find that the trial judge had committed reversible errors, but simply made suggestions to improve the instructions to be given to the jury in the event of a new trial (2011 NSCA 13, 298 N.S.R. (2d) 373, at paras. 36, 40, 47 and 50).

[4] At issue in this appeal is whether the Court of Appeal erred in finding that the trial judge had misdirected the jury in referring to the right-of-way provisions of the Motor Vehicle Act. For the reasons that follow, I conclude that it did and that the appeal should be allowed. No other elements of the trial judge’s charge warrant intervention.

[5] The portion of the charge to the jury which the Court of Appeal found to constitute reversible error is reproduced below (A.R., vol. I, at pp. 100-3):

Now, I’m going to mention another section of the Motor Vehicle Act. This is the Motor Vehicle Act of 1989 which was in effect at the time, it’s RSN is 1989, Chapter 293 in particular Section 125(3) and (4). And that says, 125(3), “Every pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk, shall yield the right of way to vehicles upon the highway.” The next, Sub 4, 125(4) says, “This section shall not relieve the driver of the vehicle or the pedestrian from the duty to exercise care.”

So a pedestrian has the right to cross the highway at a point which is not a regular crossing for pedestrians, but in such a case, a duty is cast upon him to take special care to use greater vigilance and to yield the right of way to vehicles upon the highway. So in a crosswalk, cars stop. If you’re not in a crosswalk, then what I just told you applies.

This reason — this is for the obvious reason that drivers of motor vehicles know that there’re safety zones and crosswalks for the use of pedestrians where they are normally expected to cross. This is not to say however, that if a pedestrian crosses between intersections, a motorist can run him down with impu[nity]. The question is could or should the driver have seen the pedestrian in time to avoid the collision?

The pedestrian on the other hand has a duty to look out for his own safety, and to keep a lookout for approaching vehicles. Did he do what a reasonable person would be expected to do? Did he step from a place [of safety] to a place of danger and fail to use reasonable care as required by the circumstance? These are the questions you must put to yourself.

Now standard of care owed to children crossing the highway. Johnathan was four years, four months old. So the standard of care owed to children on a highway is the same as that owed to adults, but there may be circumstances which should put motorists on their guard.

. . .

He [the driver] has the right to expect that a pedestrian will not act without care. The duty of a pedestrian when using the public street or highway is to use reasonable care at all times for his own safety, and to avoid placing himself in a position from which injury might result. However, he’s entitled to assume that motorists will drive according to the law.

[6] MacDonald C.J.N.S. concluded that, in referring to the right-of-way provisions of the Motor Vehicle Act, the trial judge improperly invited the jury to treat Johnathan “like an adult” (para. 16). This, according to MacDonald C.J.N.S., would have left the jury “with little choice but to find Johnathan responsible for this accident” (para. 19) even though the trial judge had already concluded that Johnathan could not be contributorily negligent because of his young age. In offering guidance for a possible retrial, MacDonald C.J.N.S. recommended expunging the entire passage dealing with the right-of-way provisions of the Motor Vehicle Act (para. 38).

[7] I agree with the appellant that the Court of Appeal failed to appreciate the dual function of statutory right-of-way provisions. Not only do such provisions inform the assessment of whether a pedestrian was contributorily negligent by failing to yield a right of way, they can also help determine whether a driver breached the applicable standard of care in the circumstances. In this case, even though Johnathan’s contributory negligence had been ruled out as a matter of law, the statutory right-of-way provisions continued to inform the standard of care that Mr. Feener owed to all pedestrians. The jury needed to be told that, absent special circumstances, where the driver has the right of way, he or she can reasonably proceed on the assumption that others will follow the rules of the road and yield the right of way to drivers.

[8] I respectfully disagree with the Court of Appeal’s conclusion that, in referring to the right-of-way provisions, the trial judge effectively invited the jury to find Johnathan legally responsible for the accident. At the outset of his charge, Pickup J. made it clear that Johnathan’s liability was not at issue because of his young age (A.R., vol. I, at p. 44). In no part of the charge did the trial judge instruct the jury to adjudicate on the child’s negligence. When the trial judge’s instructions on the right-of-way provisions are read in light of the entire charge, it is clear that they served only to delineate the standard of care applicable to Mr. Feener. The jury was invited to consider the conduct of a reasonable pedestrian in assessing whether Mr. Feener had demonstrated the requisite degree of precaution.

[9] A further factor that had to inform the jury’s ruling on Mr. Feener’s negligence was whether there were special circumstances that would indicate to the driver that he was in an area where children were likely to be present. In this respect, the trial judge made the following comment to the jury:

In a school or playground area or in a built up residential district, a motorist should drive more slowly and carefully and keep a lookout for the possibility of children running out into the street. Here you must decide whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be, and therefore should exercise greater care in the operation of his motor vehicle. [A.R., vol. I, at p. 102]

[10] The respondent argues that the jury would have inferred from the trial judge’s instructions that a motorist need only take precautions in the three specific circumstances cited, and therefore that Mr. Feener would not have had to take precautions in this case. I cannot accept this submission. The accident clearly did not take place in a school or playground area or in a built-up residential district. The trial judge was asking the jury whether the situation was one in which Mr. Feener should have expected children to be present. In this context, I see no error in the trial judge’s instruction.

[11] In this Court, as in the Court of Appeal, the respondent maintains that the trial judge also erred in explaining the burden of proof on motorists under s. 248 of the Motor Vehicle Act and in admitting an RCMP report. For the reasons given by the Court of Appeal, I am of the view that there is no reversible error.

[12] The respondent has cross-appealed, seeking a finding of liability against the appellants in the event that the Court dismissed the appeal. As I would allow the appeal, the merits of the cross-appeal do not need to be considered.

[13] For these reasons, I would allow the appeal with costs throughout, including costs of the application for leave to appeal in this Court, dismiss the cross-appeal without costs and restore the order after trial with jury of the Supreme Court of Nova Scotia.

The following are the reasons delivered by

Cromwell J. —

[14] With respect to my colleagues who have taken the opposite view, I would uphold the decision of the Court of Appeal. Although I make no comment on the Court of Appeal’s suggestions for the conduct of a second trial, I would adopt as my own, paras. 16-18 of the Court of Appeal’s reasons: 2011 NSCA 13, 298 N.S.R. (2d) 373. Much like in Byrne v. Hodgins (1972), 30 D.L.R. (3d) 128 (S.C.C.), affirming the dissent in (1972), 27 D.L.R. (3d) 617 (B.C.C.A.) (sub nom. Bryne v. Hodgins), there was a real risk in this case that the charge left the jury with the understanding that it was to consider whether the plaintiff was responsible for the accident. The critical instruction was that the jury had to consider whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be and should therefore exercise greater care. This instruction was given almost in passing and in the midst of confusing instructions about the duty of pedestrians and self-contradictory instructions about the burden of proof. The plaintiff was entitled to have the key liability issue in the case put to the jury in clear terms. Looking at the charge as a whole, this, in my respectful view, did not occur. The misdirection may have given rise to an injustice. I would therefore dismiss the appeal.

[15] I would also dismiss the cross-appeal from the Court of Appeal’s decision to send the matter back for a second trial. It cannot be said in this case that “the evidence is of such a character that only one view can reasonably be taken of its effect”: Petijevich v. Law, [1969] S.C.R. 257, at p. 265, quoting from Jardine v. Northern Co-operative Timber and Mill Association, [1945] 1 W.W.R. 533, at p. 535 (B.C.C.A.). This Court is not in a position to make a determination on liability.

Appeal allowed with costs throughout, Cromwell J. dissenting. Cross‑appeal dismissed.

Solicitors for the appellants/respondents on cross‑appeal: Stewart McKelvey, Halifax.

Solicitors for the respondent/appellant on cross‑appeal: Boyne Clarke, Dartmouth.

The geek with a cynical view

Thursday, June 28, 2012

The Military Police Complaints Commission Final Report – MPCC 2008-042 – Concerning a complaint by Amnesty International Canada and British Columbia Civil Liberties Association in June 2008

Commission’s Final Report – MPCC 2008-042 – Concerning a complaint by Amnesty International Canada and British Columbia Civil Liberties Association in June 2008

Monday, June 25, 2012

SUPREME COURT OF CANADA Citation: Annapolis County District School Board v. Marshall, 2012 SCC 27 Date: 20120607 Docket: 34189

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