Dean Clifford - A Tale of Two Gurus

[Jeffrey]

Can the Crown appeal the acquittal based purely on the Crown being incompetent?

[Burnaby49]

You have to be quick to catch things on the Free Dean Clifford page. Step outside the party line and you're gone.

Case in point the video I linked above. I found it posted on Free Dean Clifford, that's where I got the link. I went back to see the response to it and it was gone, replaced by a cut and paste of the Brandon Sun article and the nonsense comment;

"There seems to be some confusion on how to read the article from the Brandon Sun so here it is copy and pasted ..."

Our posting was hard to read? A sad indication of a dismal level of literacy amongst the Deansters.

So, thanks to the deletion, you didn't get to see the identity of the person who put it up for one bright shining moment, our favorite child-molesting OPPT fan Jonathan Livingston Seagull!

viewtopic.php?f=48&t=9580

There was no activity on his Facebook page from June 26, 2013 to Nov. 14, 2014. He was sentenced to 22 months in August, 2013. That means he was paroled after 14 months, 2/3 of his sentence and he's back in action;

https://www.facebook.com/jonathan.seagull1

Trolling through his Facebook page, he's changed his orientation just a little. He remains an unrepentant OPPT fan and has strongly oriented himself with Kevin Annett's "Republic of Kanata". He's VERY excited that Kevin has abolished the Crown. Sorry Johnny but things have taken a turn for the worse for OPPT during your enforced absence. Annett's still at it though.

[Pottapaug1938]

So a proclamation of a Republic is enough to bring about an end to the previous regime, in and of itself? Gee, I wish that the 13 colonies had thought of that back in 1776 -- they could have just told the British government to withdraw its Army, Navy and civil authorities from our territory, and that would have been all it took to get the Brits to leave.

Right?

[Jeffrey]

Referring back to the Bates video, I hate to say anything that may be interpreted as being positive towards Dean, but you need to admit, his decision to not put up a defense ended up helping him because if he had gone up on the stand to defend his statements, it would have confirmed he made the statements and he'd be boned.

[Fmotlgroupie]

Can the Crown appeal the acquittal based purely on the Crown being incompetent?

Sadly the Crown can only appeal on errors of law (I.e not mistakes of fact, and definitely no mulligans allowed).

[Burnaby49]

Can the Crown appeal the acquittal based purely on the Crown being incompetent?

Can the Crown appeal the acquittal based purely on the Crown being incompetent?

Sadly the Crown can only appeal on errors of law (I.e not mistakes of fact, and definitely no mulligans allowed).

While I would agree that the Crown's own legal ineptitude is not grounds an appeal I'm not aware that the Crown is precluded from appealing a decison on the basis of fact. If the Crown chose to appeal this on the basis that the witnesses had actually identified Dean adequately this would be an appeal of the facts, that the judge had erred in deciding the identification was insufficient.

Some background. There are two basis for an appeal, each with it's own standard that the appellant has to meet. An appellant can appeal on either or both. The first is an error in law, did the judge correctly apply the law to the evidence at trial. This is fundamental since it would be a miscarriage of justice to convict a man based on an incorrect interpretation of the law he has been charged under. The standard for a review of an error in law is correctness. Was the judge correct in his interpretation? This is a fairly low barrier and is often successful.

The second basis for appeal is an error of fact. Did the judge correctly apply the facts presented to him? An example of this is is the court's analysis of the evidence given by two expert witnesses, say doctors in a malpractice case. One says the defendant met the standards required of a doctor doing the medical work at issue, the other testifies that he didn't. These are just opinions but once the judge decides on one or the other (or neither) the judge's conclusion becomes a fact. The standard of review for questions of fact is "palpable and overriding error". This is a deferential standard that requires a very obvious error on the trial judges's part for the appeal to succeed.

The key case on this issue is a Supreme Court of Canada case involving expert witness testimony regarding a lawsuit over a traffic accident.

Housen v. Nikolaisen. [2002] 2 S.C.R. 235 (Supreme Court of Canada) - October 2, 2002

http://www.canlii.org/en/ca/scc/doc/200 ... ultIndex=3

In Housen v. Nikolaisen the trial judge was faced with conflicting expert evidence on the issue of the correct speed at which an ordinary motorist would approach a curve in a road. The Court of Appeal overturned the trial judge’s decision on the basis that she had not correctly understood or applied some of the expert evidence. The Supreme Court confirmed the original trial court decision on the basis that the role of the appellate court is to uphold decisions unless a palpable error leading to a wrong result has been made by the trial judge. The Supreme Court referred to standard dictionary definitions of “palpable error” and concluded that a common element of all the definitions was that palpable is plainly seen. Based on this definition the Supreme Court concluded that the appellate court was in error in deciding that the trial court judge has made any palpable error. To quote the SCC in its summary of the decision;

The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error”. A palpable error is one that is plainly seen. The reasons for deferring to a trial judge’s findings of fact can be grouped into three basic principles. First, given the scarcity of judicial resources, setting limits on the scope of judicial review in turn limits the number, length and cost of appeals. Secondly, the principle of deference promotes the autonomy and integrity of the trial proceedings. Finally, this principle recognizes the expertise of trial judges and their advantageous position to make factual findings, owing to their extensive exposure to the evidence and the benefit of hearing the testimony viva voce. The same degree of deference must be paid to inferences of fact, since many of the reasons for showing deference to the factual findings of the trial judge apply equally to all factual conclusions. The standard of review for inferences of fact is not to verify that the inference can reasonably be supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, a stricter standard. Making a factual conclusion of any kind is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion.

Questions of mixed fact and law involve the application of a legal standard to a set of facts. Where the question of mixed fact and law at issue is a finding of negligence, it should be deferred to by appellate courts, in the absence of a legal or palpable and overriding error. Requiring a standard of “palpable and overriding error” for findings of negligence made by either a trial judge or a jury reinforces the proper relationship between the appellate and trial court levels and accords with the established standard of review applicable to a finding of negligence by a jury. Where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error. A determination of whether or not the standard of care was met by the defendant involves the application of a legal standard to a set of facts, a question of mixed fact and law, and is thus subject to a standard of palpable and overriding error, unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law, subject to a standard of correctness.

In respect to the comment that the Crown cannot appeal on fact I can give an example of at least one case that the Crown appealed purely on the basis of fact and won. This was;

Attorney General of Canada v. Nash, Quinn and Tolley. Barbara Quinn v. The Queen, 2004 DTC 3328 (Tax Court of Canada), A.G. of Canada v. Nash et al. 2005 D.T.C. 5696 (F.C.A.). Leave to appeal to S.C.C. denied with costs. (CanLII) — 2005-11-21

This involved the fair market value of art, limited edition prints. The prints were sold as part of a tax donation scheme that resulted in the donors getting much larger tax refunds for their donations than the actual price they paid for the artwork. Great scheme if it worked. The Canada Revenue Agency reassessed all of the taxpayers involved on the basis that the value of the artwork listed on the tax donation receipts was much greater than their real value. The taxpayers appealed and had an expert witness testify as to the value of the prints at the Tax Court hearing. The Tax Court judge agreed with the expert and allowed the appeals. The Crown appealed to the Federal Court of Appeal on the basis of fact, that the judge had determined an incorrect value.

The FCA said in its decision;

STANDARD OF REVIEW

[9] An appeal court will not interfere with findings of fact or inferences of fact by the trial judge absent palpable and overriding error (see Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235 at paragraph 25). Fair market value has often been referred to as a question of fact. However, it is probably more accurate to say that fair market value is a determination of mixed fact and law. A determination of mixed fact and law involves applying a legal standard to a set of facts (see Housen at paragraph 26). In fair market value cases, the judge must apply the legally accepted definition of fair market value to the facts found from the evidence adduced before him.

[10] Normally, in a fair market value determination, the dominant component of the mixed question of fact and law is factual and the appeal is based on a dispute as to some aspect of the factual component of the determination. That is the case here. Therefore, the standard of review in this case will be the deferential standard, palpable and overriding error.

And concluded;

CONCLUSION

[37] The Tax Court Judge made two palpable and overriding errors. The first was to accept Ms. Tropper's valuation evidence based on the retail market for individual prints when there was a normal market for the groups of prints, the specific property he was required to value. The second was to find the fair market value of the property to be approximately three times the amount paid for the property with no credible explanation for the apparent three-fold increase.

[38] The appeal should be allowed with costs here and in the Tax Court. The matter should be remitted to the Minister to reassess the taxpayers on the basis of the fair market value of the groups of prints they acquired being the highest price CVI obtained for the sale of the groups, in 1997 $8,648, in 1998 $8,625 and in 1999 $9,315. The fair market value of the group donated by Ms. Quinn was $8,648. As the group donated by Ms. Tolley included only 99 prints, the fairmarket value of her donation was $8,539. As the group donated by Mr. Nash included only 84 prints, the fair market value of his donation was $9,205. Section 46 of the Act is not applicable.

We in the CRA loved this comment;

"The second was to find the fair market value of the property to be approximately three times the amount paid for the property with no credible explanation for the apparent three-fold increase."

This was just a scam where promoters sold a pre-packaged donation scheme where taxpayers could make a profit from donations by getting more back in refunds than the actual amounts the taxpayers spent for it. So the promoters had entirely made-up fair market values for the art at much higher amounts than the taxpayers' costs. They got compliant art experts to support the excessive values with opinion reports. The judge, for no stated reason, and in the face of almost identical facts cases where the appeals were dismissed, agreed with the taxpayers. The Federal Court of Appeals was not kind to him.

[arayder]

It's all much ado about nothing and amounts to mere fodder for Deaner keyboard warriors to whine about from their momma's basements.

The man Dean Clifford was still taken back to his cell after it was all done.

One has to figure some crown attorney has created a bump in his/her carrer path and that the A Team will be called in for Dean's next charge.

What's the odds that the Crown will go 0 for 4 on the firearms, grow-op, bail jumping and cop assault charges Dean has before him?

[Fmotlgroupie]

Can the Crown appeal the acquittal based purely on the Crown being incompetent?

Sadly the Crown can only appeal on errors of law (I.e not mistakes of fact, and definitely no mulligans allowed).

Ok, this is why I should preface each post with IANAL. I meant to only refer to the Crown in criminal acquittals but on closer examination it may only be true of indictments. Section 813 refers to summary conviction appeals ( http://laws-lois.justice.gc.ca/eng/acts ... html#h-293 )and doesn't seem to restrict crown appeals. Section 676(1)(a) does seem to back me up in appeals against convictions by indictment:

676. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal
(a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;

http://laws-lois.justice.gc.ca/eng/acts ... ml#docCont

It's a bit of a fiddly code at times. You can see why criminals usually see it as more "guidelines"

[Burnaby49]

I make no claim to expert knowledge or any particualr legal competence outside of tax cases. I know about Housen v. Nikolaisen because, as you can see from my quote, it crops up a lot in Federal Court of Appeal decisions. So I figured I'd better read it.

[Fmotlgroupie]

I make no claim to expert knowledge or any particualr legal competence outside of tax cases. I know about Housen v. Nikolaisen because, as you can see from my quote, it crops up a lot in Federal Court of Appeal decisions. So I figured I'd better read it.

That's what I love about the Quatloos forums - lots of sensible decent folks sharing a hobby and a remarkable breadth of knowledge on different topics. I specialise in second-rate thoughts about the criminal courts (real lawyers like Bill Lumbergh know WAY more than I do but I waste more hours thinking about freemen so I'm more likely to be around the forum).

[Hanslune]

Dang and I'm here for the Persian soup recipes and the hot gossip on Paris Hilton's servants.....

[Burnaby49]

Dang and I'm here for the Persian soup recipes and the hot gossip on Paris Hilton's servants.....

Here you go. Can't help you with Paris's servants though. Sorry;

Ash – Iranian Barley Soup
2 onions peeled and thinly sliced
½ pound stew meat cut into ½ inch cubes
¼ cup oil
2 teaspoons salt
½ teaspoon pepper
1 teaspoon turmeric
½ cup dried red kidney beans
¼ cup dried chick peas
¼ cup lentils
12 cups water
1 cup barley
2 cups fresh chopped parsley
1 cup fresh chopped coriander
½ cup fresh or 2 tablespoons dried dill
4 cups fresh chopped spinach (or 1 cup chopped frozen)
¼ cup rice
1 cup sour cream or yogurt

1 - Brown onions and meat in oil in a large pot. Sprinkle with salt turmeric and pepper. Add kidney beans, chick-peas and lentils and sauté for a few minutes. Pour in water, bring to boil then simmer for 50 minutes stirring occasionally.

2 – Add barley, cover and cook for an hour stirring occasionally. Then add parsley, coriander, dill, spinach, and rice. Cook for 50 minutes.

3 – Check that meat and beans are done. Thicken if desired by blending some of mix in processor.

4 – Stir in yogurt and stir for five minutes to stop curdling.

For best results prepare a day in advance without yogurt. Reheat just before serving adding yogurt as in part 4.

[grixit]

By "chopped coriander", i assume you mean cilantro. At least that's what we call the leaves in the US, reserving the term "coriander" for the seeds. It's an important distinction because i find a little coriander adds intensity to dishes, but a absolutely hate cilantro. I also hate parsley. So i would substitute basil and thyme.

Other than that, it seems a very hearty soup.

[Burnaby49]

By "chopped coriander", i assume you mean cilantro. At least that's what we call the leaves in the US, reserving the term "coriander" for the seeds. It's an important distinction because i find a little coriander adds intensity to dishes, but a absolutely hate cilantro. I also hate parsley. So i would substitute basil and thyme.

Other than that, it seems a very hearty soup.

Up here the leaves are called both cilantro and coriander. An absolute staple for my wife. She is (way back) of Iranian descent via India and Africa. The recipe is from one of her Iranian friends who emigrated to Canada when things got too repressive in Iran for anyone holding religious beliefs apart from Islam. I had the soup at her place once and demanded the recipe.

[Hanslune]

Thanks for the recipe

I wonder if a Deanites who might view the above discussion - would think it was a representation of secret corporation of Canada code talk!

[Jeffrey]

This isn't exactly the most elite cabal, Deanites act like we're CSIS or RCMP agents when our top secret information source is a 99 cent newspaper subscription.

[arayder]

. . . and an 8th grade civics book.

I am reminded of a guy who used to post over on the Icikes forum who was trying to get into an Australian law school with the stated aim of finding out how the powers that be had "stolen the law" and finding out how he could help get it back.

It seemed to me he had a really poor grasp of how societies and their laws change. It never occurred to him he could find the answer to his question in a few honest, unbiased history books. Instead he assumed the course of modern Australia law and history is a mystery kept in the secrets of some law school library.

Freemen don't seem to grasp that there is a simple reason why western democracies have rejected their brand of anarcho-libertarianism. Simply put the complete and total sovereignty of the individual as expressed by the cult of the freeman runs counter to the democratic ideal that the power to govern rests with the people and their representatives, not with the individual.

[Jeffrey]

Simply put the complete and total sovereignty of the individual as expressed by the cult of the freeman runs counter to the democratic ideal that the power to govern rests with the people and their representatives, not with the individual.

And of course they're arguing this in western Democracies which is the place where you have the most individual freedom possible on this planet, short of finding an uninhabited island.

[Hanslune]

They could achieve a measure of non-governmental 'influence" by living out at sea under a flag of convenience - but that would take money and a lot of hard work - and leaving Canada.

[notorial dissent]

I think it is pretty safe to say that the "hard work" part is what trips them up and separates the FOTL types out of the herd, they're allergic to it, can't/won't do it, have no idea what it is.

That's one of the reasons I think the FOTL Valley thing is such a hoot, they'd have all starved to death and died of exposure since no one would have been handing out food to them or providing them with shelter.