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Abstract: A collection of materials on the Pete Rose gambling investigation of 1989, assembled by journalist Jim Newton of the Fort Hamilton (OH) Press. The collection consists primarily of photocopied documents and news clips. Included is a copy of the Dowd Report (Major League Baseball's investigation into Rose's activities) with its many attendant volumes of exhibits.
Preferred Citation: [Identification of item], Jim Newton Collection on Pete Rose, [Folder no.], Department of Rare Books and Special Collections, Hesburgh Libraries of Notre Dame.
Acquisition and Processing Note: The collection was acquired by the Libraries from Jim Newton in 1990. Arranged and described 1998, by George Rugg. Finding aid 2017, by George Rugg.
Folder 1-1 (BAS920-1-1) Report to the Commissioner. In the Matter of: Peter Edward Rose, Manager, Cincinnati Reds Baseball Club [Dowd Report], 1989 May 9. Photocopy. 225 pages.
Folder 1-2 (BAS920-1-2) Report to the Commissioner: Exhibits - Volume I, 1989 May 9. Photocopy. 355 pages.
Folder 1-3 (BAS920-1-3) Report to the Commissioner: Exhibits - Volume II, 1989 May 9. Photocopy. 188 pages.
Folder 2-1 (BAS920-2-1) Report to the Commissioner: Exhibits - Volume III, 1989 May 9. Photocopy. 386 pages.
Folder 2-2 (BAS920-2-2) Report to the Commissioner: Exhibits - Volume IV, 1989 May 9. Photocopy. 393 pages.
Folder 2-3 (BAS920-2-3) Report to the Commissioner: Exhibits - Volume V, 1989 May 9. Photocopy. 141 pages.
Folder 3-1 (BAS920-3-1) Report to the Commissioner: Exhibits - Volume VI, 1989 May 9. Photocopy. 274 pages.
Folder 3-2 (BAS920-3-2) Report to the Commissioner: Exhibits - Volume VII, 1989 May 9. Photocopy. 321 pages.
Folder 3-3 (BAS920-3-3) Report to the Commissioner: Exhibits - Volume VIII, 1989 May 9. Photocopy. 47 pages.
Folder 3-4 (BAS920-3-4) Agreement and Resolution and related documents, 1989 August 23-24. Photocopy.
Folder 3-5 (BAS920-3-5) Final Report to the Commissioner, 1989 September 11. Photocopy. 34 pages.
Folder 4-1 (BAS920-4-1) Report to the Commissioner: Exhibits - Volume VIII, 1989 September 11. Photocopy. 253 pages.
Folder 4-2 (BAS920-4-2) Report to the Commissioner: Exhibits - Volume IX, 1989 May 9. Photocopy. 249 pages.
Folder 4-3 (BAS920-4-3) Thomas B. Dowd schedule of investigation, 1989 February 23-June 21. Photocopy. 22 pages.
Folder 4-4 (BAS920-4-4) Dowd and BRI investigators list of interviews, n.d. Photocopy. 6 pages.
Folder 4-5 (BAS920-4-5) Transcripts and summaries of 23 interviews conducted by investigators for Business Risk International, Cincinnati, 1989 March-April. Photocopy. 174 pages.
Folder 4-6 (BAS920-4-6) Transcripts and summaries of 27 interviews conducted by investigators for Business Risk International, Cincinnati, 1989 March-May. Photocopy. 166 pages.
Folder 5-1 (BAS920-5-1) Transcripts of six telephone conversations, primarily involving Paul Janszen, 1988 April-1989 March. Photocopy. 66 pages.
Folder 5-2 (BAS920-5-2) Transcript of John Dowd interview with Michael Bertolini, 1989 March 29. Photocopy. 170 pages.
Folder 5-3 (BAS920-5-3) Peter E. Rose v. A. Bartlett Giamatti, et al. Rose's motion for temporary restraining order and preliminary injunction, 1989 June 19. Photocopy. 2 pages.
Folder 5-4 (BAS920-5-4) Peter E. Rose v. A. Bartlett Giamatti, et al. Nadel decision on restraining order, 1989 June 25. Photocopy. 3 pages.
Folder 5-5 (BAS920-5-5) Peter E. Rose v. A. Bartlett Giamatti, et al. Deposition of A. Bartlett Giamatti, 1989 June 29. Photocopy. 193 pages.
Folder 5-6 (BAS920-5-6) Peter E. Rose v. A. Bartlett Giamatti, et al. Deposition of Reuven Katz, 1989 July 3. Photocopy. 174 pages.
Folder 5-7 (BAS920-5-7) Peter E. Rose v. A. Bartlett Giamatti, et al. Deposition of Roger Makley, with exhibits, 1989 July 3. Photocopy. 72 pages.
Folder 5-8 (BAS920-5-8) Peter E. Rose v. A. Bartlett Giamatti, et al. Memorandum of law submitted by Giamatti in opposition to motion to remand, 1989 July 11. Photocopy. v, 32 pages.
Folder 5-9 (BAS920-5-9) Peter E. Rose v. A. Bartlett Giamatti, et al. Affadavit of John M. Dowd, 1989 July 11. Photocopy. 2 pages.
Folder 5-10 (BAS920-5-10) Peter E. Rose v. A. Bartlett Giamatti, et al. Deposition of Edwin M. Durso, 1989 July 11. Photocopy. 8 pages.
Folder 5-11 (BAS920-5-11) Peter E. Rose v. A. Bartlett Giamatti, et al. Holschuh decision, 1989 July 31. Photocopy. 47 pages.
Folder 6-1 (BAS920-6-1) United States v. Thomas P. Gioiosa. Testimony of Joseph B. Mansour, 1989 August 29. Photocopy. 74 pages.
Folder 6-2 (BAS920-6-2) United States v. Thomas P. Gioiosa. Testimony of Paul Janszen, 1989 August 30. Photocopy. 140 pages.
Folder 6-3 (BAS920-6-3) United States v. Thomas P. Gioiosa. Testimony of Danita Marcum, 1989 August 30. Photocopy. 10 pages.
Folder 6-4 (BAS920-6-4) United States v. Thomas P. Gioiosa. Testimony of John Bruce Battaglia, 1989 August 30. Photocopy. 26 pages.
Folder 6-5 (BAS920-6-5) United States v. Thomas P. Gioiosa. Testimony of Faye Cordes, 1989 September 6. Photocopy. 15 pages.
Folder 6-6 (BAS920-6-6) Thomas B. Dowd rebuttal to Pete Rose: My Story, and related documents. n.d. Photocopies. 2 copies, each 14 pages. Folder includes chapter 10 of Roger Kahn's Pete Rose: My Story.
Folder 6-7 (BAS920-6-7) Miscellaneous documents, n.d. Photocopies. 13 items.
Folder 7-1 (BAS920-7-1) Clippings on Pete Rose case, 1989 March 19-25. Photocopies.
Folder 7-2 (BAS920-7-2) Clippings on Pete Rose case, 1989 March 26-April 1. Photocopies.
Folder 7-3 (BAS920-7-3) Clippings on Pete Rose case, 1989 April 2-8. Photocopies.
Folder 7-4 (BAS920-7-4) Clippings on Pete Rose case, 1989 April 9-15. Photocopies.
Folder 7-5 (BAS920-7-5) Clippings on Pete Rose case, 1989 April 16-22. Photocopies.
Folder 7-6 (BAS920-7-6) Clippings on Pete Rose case, 1989 April 23-29. Photocopies.
Folder 7-7 (BAS920-7-7) Clippings on Pete Rose case, 1989 April 30-May 6. Photocopies.
Folder 7-8 (BAS920-7-8) Clippings on Pete Rose case, 1989 May 7-13. Photocopies.
Folder 7-9 (BAS920-7-9) Clippings on Pete Rose case, 1989 May 14-20. Photocopies.
Folder 7-10 (BAS920-7-10) Clippings on Pete Rose case, 1989 May 21-27. Photocopies.
Folder 7-11 (BAS920-7-11) Clippings on Pete Rose case, 1989 May 28-June 3. Photocopies.
Folder 7-12 (BAS920-7-12) Clippings on Pete Rose case, 1989 June 4-10. Photocopies.
Folder 7-13 (BAS920-7-13) Clippings on Pete Rose case, 1989 June 11-17. Photocopies.
Folder 7-14 (BAS920-7-14) Clippings on Pete Rose case, 1989 June 18-24. Photocopies.
Folder 7-15 (BAS920-7-15) Clippings on Pete Rose case, 1989 June 25-July 1. Photocopies.
Folder 8-1 (BAS920-8-1) Clippings on Pete Rose case, 1989 July 2-8. Photocopies.
Folder 8-2 (BAS920-8-2) Clippings on Pete Rose case, 1989 July 9-15. Photocopies.
Folder 8-3 (BAS920-8-3) Clippings on Pete Rose case, 1989 July 16-22. Photocopies.
Folder 8-4 (BAS920-8-4) Clippings on Pete Rose case, 1989 July 23-29. Photocopies.
Folder 8-5 (BAS920-8-5) Clippings on Pete Rose case, 1989 July 30-August 5. Photocopies.
Folder 8-6 (BAS920-8-6) Clippings on Pete Rose case, 1989 August 6-12. Photocopies.
Folder 8-7 (BAS920-8-7) Clippings on Pete Rose case, 1989 August 13-19. Photocopies.
Folder 8-8 (BAS920-8-8) Clippings on Pete Rose case, 1989 August 20-26. Photocopies.
Folder 8-9 (BAS920-8-9) Clippings on Pete Rose case, 1989 August 27-September 2. Photocopies.
Folder 8-10 (BAS920-8-10) Clippings on Pete Rose case, 1989 September 3-9. Photocopies.
Folder 8-11 (BAS920-8-11) Clippings on Pete Rose case, 1989 September 10-16. Photocopies.
Folder 8-12 (BAS920-8-12) Clippings on Pete Rose case, 1989 September 17-1990. Photocopies.
Folder 8-13 (BAS920-8-13) Articles by and about A. Bartlett Giamatti, 1981-1989. Photocopies and one issue of Brandeis Review.
Folder 8-14 (BAS920-8-14) Clippings on Pete Rose's earlier career, 1978-1985. Clippings.

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A. Parties and Amici: The parties below were the defendant-appellant, xxxxxxx A. xxxxxxx, the codefendant, xxxxxxx A. xxxxxxx, and the plaintiff-appellee, the United States of America. Defendant's appeal has been consolidated with the appeal of xxxxxxx xxxxxxx, No. 91-3057, by order of this court dated March 6, 1991. There are no amici.
The defendant-appellant, xxxxxxx A. xxxxxxx, was indicted on August 28, 1990, along with his brother, xxxxxxx xxxxxxx, in a four- count indictment (APP 1). Both defendants were charged in all of the counts, and all the counts specifically included an aiding and abetting charge, 18 U.S.C. § 2. Count One charged assault with a deadly or dangerous weapon of a federal officer engaged in the performance of duty, 18 U.S.C. § 111(b). Count Two charged assault with intent to commit murder within the special maritime and territorial jurisdiction of the United States, 18 U.S.C. § 114(a). Count Three charged maiming within the special maritime and territorial jurisdiction, 18 U.S.C. § 114. Count Four charged attempted murder of an officer or employee of the United States, 18 U.S.C. § 1114. All the offenses were alleged to have occurred on August 12, 1990, and the alleged victim of all the offenses was United States Park Police Officer James xxxxxxx.
The charges arose out of an admittedly brutal attack on Officer xxxxxxx late on the night of August 12, 1990, in Rock Creek Park in the Northwest section of the District. Officer xxxxxxx was severely injured and lost the sight in his left eye as a result of the attack. Defendant's theory at trial was that his brother xxxxxxx was the one who attacked xxxxxxx, and that defendant had no involvement whatsoever in the attack. Defendant's contention throughout the trial was that if he was guilty of anything, it was of being an accessory after the fact.
The defendant lived at 1401 Tuckerman Street in Washington, while xxxxxxx lived at 1415 Tuckerman (11/28/90 : 90). Defendant worked for three to five years for Thomas Weldon, who did demolition and rehabilitation work (11/30/90 : 46-48). xxxxxxx was the head maintenance worker in the apartment building in which he lived, which has 60 units (12/3/90 : 30).
On Sunday, August 12, 1990, from 7:00 a.m. to 5:30 p.m., Mr. Weldon was supervising drywall finishing work at Mayfair McLean, a town house development in Fairfax County, Virginia (11/30/90 : 46). Defendant worked that day, as did Pedro Compose, who worked occasionally (11/30/90 : 53). Because all the other expected workers did not show up, Weldon asked defendant if he knew anyone who wanted to work (11/30/90 : 48-49). Defendant called xxxxxxx, who came in his Isuzu Trooper four wheel drive vehicle to the job, accompanied by a young woman, who also worked that day (11/30/90 : 49). That was the first day xxxxxxx had ever worked for Weldon (11/30/90 : 48). They all worked doing sanding (11/30/90 : 47).
The woman who accompanied xxxxxxx that day was Olinda Martinez, who was the only person other than Officer xxxxxxx and the defendants present when the assault itself occurred. She was the only witness who testified as to the events of the attack itself, although Officer xxxxxxx also testified at the trial about what occurred immediately before the attack.
Ms. Martinez met xxxxxxx about a year before the trial and had lived with him for seven to eight months in apartment J2 at 1415 Tuckerman (11/30/90 : 129). She had known defendant almost as long as she had known xxxxxxx (11/20/90 : 129).
On Sunday, August 12, 1990, she and xxxxxxx were in the apartment when defendant called and asked for help at the job site (11/30/90 : 130-131). She went with xxxxxxx; they left the apartment about 8:30 a.m., got to the job around 10:00 a.m., and worked until about 7:00 p.m. (11/30/90 : 131). At the job site defendant and xxxxxxx were with her the entire time (11/30/90 : 132).
After finishing work that day they first dropped off a coworker, a man named Pedro (11/30/90 : 132). Pedro had gone with defendant in his car, while Ms. Martinez went with xxxxxxx in his car (11/30/90 : 132). She and xxxxxxx were going home, but on the way defendant and xxxxxxx bought a case of beer (11/30/90 : 133, 168). Ms. Martinez and xxxxxxx then stopped in Rock Creek Park on the way home, and defendant met them there about fifteen minutes later (11/30/90 : 133, 168).
Defendant and xxxxxxx got out of their cars and began drinking (11/30/90 : 134). Ms. Martinez did not drink any beer, as she never drinks (11/30/90 : 134). She waited in xxxxxxx's car while he and defendant sat outside and drank all the beer (11/30/90 : 169).
The Park Police have a Rock Creek substation at Beach Drive and Military Road, near the scene of the incident (11/27/90 : 95). Only two officers were working out of that station on the night shift on Sunday, August 12, 1990, from 10:00 p.m. to 6:00 a.m. (11/27/90 : 96-97). Officer xxxxxxx was working that night with his supervisor, Officer Charles Stuby (11/27/90 : 95).
The officers received a call from the mayor's command post for help in dealing with a washout on Klingle Road (11/27/90 : 98). Stuby told xxxxxxx to try to find some barricades while Stuby went to the Klingle Road site (11/27/90 : 102). xxxxxxx was unable to locate any barriers in the park, and was then cleared from that assignment (11/30 /90 : 64). He was driving a Chevy Caprice police cruiser and was in uniform with a short-sleeve shirt, no tie, and a badge (11/30//90 : 65). Officer xxxxxxx drove by a parking area known as Grove 13, and drove into the area when he saw a car with people around it (11/30/90 : 66).
While Officer xxxxxxx testified about the events immediately preceding the attack, Ms. Martinez was the only witness who testified about the assault itself. xxxxxxx testified that he pulled into the parking lot and parked his cruiser with the headlights facing the car and people he had seen (11/27/90 : 68). He first saw two males sitting on the curb to the rear of the driver's side of the parked car (11/30/90 : 68). xxxxxxx saw alcoholic beverage containers in the men's hands, which was illegal (11/30/90 : 69). He had the men stand up and the one closest to xxxxxxx appeared intoxicated (11/30/90 : 85). He performed a horizontal gaze test and determined that the man could not drive a car (11/30/90 : 70).
Both men produced identification cards at xxxxxxx's request, one a District of Columbia driver's license, and one a non-operator's license from another state (11/30/90 : 72, 86). xxxxxxx than called the dispatcher to tell him of the location (11/30/90 : 71). xxxxxxx decided at that point to check xxxxxxx's car for weapons (11/30/90 : 71). He opened the driver's door of the car and saw Ms. Martinez sitting in the front on the passenger's side (11/30/90 : 73, 95, 97). The keys were not in the car, so xxxxxxx asked Martinez for them, but she said she did not have them (11/30/90 : 73). xxxxxxx intended to lock the car and bring the keys to the station until someone was fit to drive it (11/30/90 : 73-74). xxxxxxx turned to ask for the keys from the person to whom he had given the test and that is the last thing xxxxxxx remembered about that night (11/30/90 : 74). The next thing he remembered was waking up in the hospital (11/30/90 : 75).
xxxxxxx recognized with certainty that xxxxxxx was the male with whom he had spoken and to whom he had given the sobriety test, and he recognized Martinez as the woman in the car (11/30/90 : 80). xxxxxxx thought he recognized defendant, who seemed to fit in his memory (11/30/90 : 79, 81).
Ms. Martinez, who was sitting in xxxxxxx's car at the time, saw xxxxxxx drive up in his cruiser, wearing his uniform (11/30/90 : 135-136). She told a slightly different version of the subsequent events than xxxxxxx. She testified that xxxxxxx got out of his car and asked defendant and xxxxxxx for identification, which they gave to xxxxxxx (11/30/90 : 136). Martinez stated that xxxxxxx shined his flashlight on her from the driver's side, but he did not open the door (11/30/90 : 171). xxxxxxx then asked xxxxxxx for the keys to his car and xxxxxxx went to his car to get them (11/30/90 : 136). When xxxxxxx opened the door to his car he told her, "I will not give him the keys", and told her not to give the keys to xxxxxxx (11/30/90 : 136, 172).
According to Martinez, xxxxxxx then grabbed a stick, that was about two feet long, from under the seat and then he hit xxxxxxx with it (11/30/90 : 136). Martinez stayed in the car and screamed at xxxxxxx not to hit xxxxxxx, but xxxxxxx ignored her (11/30/90 : 138; APP 5). She did not know how many times xxxxxxx hit xxxxxxx because she screamed and covered her eyes and could only hear the blows (11/30/90 : 138, 175; APP 5).
When xxxxxxx hit xxxxxxx, defendant was 32 feet away (11/30/90 : 174; APP 13). She never saw defendant hit xxxxxxx (11/30/90 : 138; APP 5). Martinez uncovered her eyes, raised her head and looked over (11/30/90 : 176; APP 15). At that point the assault was over and xxxxxxx was lying on the ground (11/30/90 : 139; APP 6) As xxxxxxx put the stick back in the car, she saw defendant come over and bend over near xxxxxxx, but did not know what defendant was doing (11/30/90 : 141; APP 8). She had not heard any argument between xxxxxxx and xxxxxxx, nor did she go over to xxxxxxx after he was hit (11/30/90 : 181, 185).
Defendant then said to xxxxxxx, "let's go" (11/30/90 : 141; APP 8). Defendant asked xxxxxxx to push defendant's car, which was parked away from xxxxxxx's car, to get it started (11/30/90 : 142; APP 9). Defendant drove away in his car and Martinez and xxxxxxx drove away in his car.
Officer xxxxxxx somehow put out a call for help over his car radio. Park Police Officer Lance Ludwick was the first person to reach xxxxxxx in Grove 13, about 11:37 p.m. (11/27/90 : 141). Ludwick immediately pulled up to the cruiser, which was the only car there (11/27/90 : 143). Ludwick could not recognize xxxxxxx, who was sitting in his cruiser, because he was so covered with blood (11/27/90 : 144). xxxxxxx told Ludwick it was a red four by four Toyota with three people, two hispanic males and one female (11/27/90 : 145). Ludwick yelled this information to Stuby, who arrived just after Ludwick, and Stuby broadcast a lookout for the car (11/27/90 : 110, 116, 146). Ludwick comforted xxxxxxx for about four minutes until an ambulance arrived (11/27/90 : 150). A helicopter arrived a few minutes later and took xxxxxxx to Washington Hospital Center (11/27/90 : 150).
The paramedic who arrived at the scene testified that Officer xxxxxxx stopped breathing twice at the scene and once in the helicopter, and each time a blood clot had to be removed from his throat or he would have died (11/27/90 : 190-91, 196, 198). xxxxxxx had a cut above his left eyebrow which went from the middle of his forehead to the back of his head and exposed his skull (11/27/90 : 190). It looked like wood fragments in his eye (11/27/90 : 190).
Officer xxxxxxx spent eleven days in the hospital (11/28/90 : 12-13). He suffered skull, jaw, and multiple facial fractures and underwent eye surgery, ear, nose, and throat surgery, and neurosurgery (11/29/90 : 90-93). xxxxxxx lost the sight in his left eye, and because the optic nerve was damaged there is no chance he will regain vision in the eye (11/30/90 : 194-95).
Park Police Officer Renee Abt was at the hospital on August 15, when xxxxxxx first regained consciousness (11/30/90 : 39). xxxxxxx said that an Hispanic male with a mustache had hit xxxxxxx in the head (11/30/90 :41). xxxxxxx specifically said "he" hit me in the head, not "they" (11/30/90 : 45).
The most important pieces of evidence found at the scene, lying at the curb, were defendant's Virginia identification card and xxxxxxx's District driver's license (11/28/90 : 25-26). The right end of the light bar on top of the cruiser had been broken, and part of it was lying on the cement (1/27/90 : 178). xxxxxxx's dented badge, flashlight, keys and key keeper were scattered around the area (11/28/90 : 31, 67). Just before he was hit, xxxxxxx had the badge on his shirt, the flashlight in his hand, and the keys and key keeper attached to his belt (11/30/90 : 77). Also found at the scene were a tape measure and ten Budweiser beer bottles, as well as a paper bag with a plastic bag inside containing two cardboard Budweiser six-pack holders (11/28/90 : 59, 65). No weapon was ever found (11/28/90 : 43).
Fingerprints taken from the beer bottles and bags were submitted to the FBI for analysis (1/28/90 : 63). Two of xxxxxxx's fingerprints were on the shopping bag and one on one of the beer bottles (12/3/90 : 12). Defendant's fingerprints were not found on the bag or bottles (12/3/90 : 12).
The Park Police subsequently obtained search warrants to both the residences and cars of xxxxxxx and defendant (11/28/90 : 92).
As the police were investigating, defendant and xxxxxxx and Martinez went from Grove 13 to Tuckerman Street (11/30/90 : 142; APP 9). Martinez asked xxxxxxx for the keys to their apartment and she went inside right away (11/30/90 : 142; APP 9). Before she went into the apartment xxxxxxx told her that she had not seen anything and that she should not say anything (11/30/90 : 144; APP 11). Defendant also told her in the garage before she went into the apartment that she should not say anything (11/30/90 : 145; APP 12). Defendant and xxxxxxx stayed outside for a little while, and then xxxxxxx came into the apartment (11/30/90 : 143; APP 10). Defendant did not come into the apartment (11/30/90 : 145; APP 12).
When xxxxxxx came into the apartment he changed his shirt, but not the blue jeans he had worn to work (11/30/90 : 144-145). xxxxxxx told her that he was leaving, but did not say where he was going, and that she should stay in the apartment (11/30/90 : 146) She left the apartment later to stay with her brother and went back to the apartment the next Saturday only to get her clothes (11/30/90 : 146, 185). The only time she had talked to xxxxxxx after the incident was when he called her shortly before trial to ask her to change a little bit of testimony and say she had been drinking (11/30/90 : 156).
Defendant and xxxxxxx then went to the house of their half sister, Martha xxxxxxx, in Hyattsville, Maryland (11/29/90 : 16, 17). They arrived unexpectedly between 10:00 and 11:00 p.m., both of them drunk (11/29/90 : 69). xxxxxxx came to the door and Ms. xxxxxxx's husband, Luis Jimenez, went outside to talk with xxxxxxx and defendant (11/29/90 : 70). xxxxxxx wanted to leave his Isuzu behind their house (11/29/90 : 70). In order to drive the Isuzu behind the house, Mrs. xxxxxxx's son, Carlos xxxxxxx, had to move his car out of the driveway (11/29/90 : 47, 70). After Carlos moved his car, xxxxxxx drove his Isuzu behind the house (11/29/90 : 71). After xxxxxxx left his car, he and defendant drove away in defendant's car (11/29/90 : 71).
xxxxxxx returned to his half-sister's house the next morning, Monday, August 13, between 9:00 and 10:00 a.m., and stayed at the house all day (11/29/90 : 20). That night xxxxxxx asked Carlos to take xxxxxxx's car somewhere and leave it (11/29/90 : 48). Carlos and a friend took xxxxxxx's car to a park a few miles away and left it (11/29/90 : 99). Before doing so they took the roof rack off the top and took the stereo out (11/29/90 : 50). xxxxxxx gave them some belongings from the car (11/29/90 : 50). The belongings were put in a little closet at Martha xxxxxxx's house (11/29/90 : 22). xxxxxxx also gave Martha some jewelry (11/29/90 : 21). Carlos's friend took the license plates off xxxxxxx's car and xxxxxxx put them in the trash (11/29/90 : 51, 75).
Also on Monday night xxxxxxx asked Carlos to call the Greyhound bus station to check on busses to Houston (11/29/90 : 51). xxxxxxx said he was going back to El Salvador (11/29/90 : 52). The bus station in Silver Spring was closed that night (11/29/90 : 52). xxxxxxx stayed that night at Martha xxxxxxx's house and left about 5:00 a.m. Tuesday morning, August 14 (11/29/90 : 52).
On Wednesday, August 15, xxxxxxx was arrested by the FBI in Mobile, Alabama on a bus (11/29/90 : 118-120). A ticket agent at the Silver Spring Greyhound station had remembered that xxxxxxx had been there about 9:00 a.m. on Tuesday (11/29/90 : 101). When the agents in Mobile asked xxxxxxx his identity he told them he was xxxxxxx Torres (11/29/90 : 120). The agents found a resident alien card with xxxxxxx's true name in his possession, as well as a bus ticket from Silver Spring to Houston in his baggage (11/29/90 : 122).
xxxxxxx was interviewed by a Spanish speaking FBI agent the next day, after he waived his Miranda rights (11/29/90 : 131-33). xxxxxxx admitted he owned a red 1989 Isuzu trooper which he had recently abandoned in Maryland, although he could not remember exactly where, because he was going back to El Salvador (11/29/90 : 140). xxxxxxx stated that a woman had told him someone was looking for him and he was leaving to hide from whomever it was, although he did not know who it was (11/29/90 : 140). xxxxxxx thought it involved something that happened one night, which he could not remember (11/29/90 : 140). xxxxxxx said he had been drunk on August 12 and could not remember what he did with his driver's license (11/29/90 : 141). xxxxxxx first claimed he shaved his mustache because it did not look good, then he said he did it because someone was looking for him (11/29/90 : 140).
xxxxxxx recalled going to work with defendant on August 12, buying a lot of beer after work, and stopping in Rock Creek Park on the way home (11/29/90 : 142-43). xxxxxxx stated that at one point a car came to the parking area in the park where he and defendant were drinking beer, stopped, and then left (11/29/90 : 143). When asked what happened next xxxxxxx terminated the interview, stating that his recollection of what happened that night was vague because he had been drinking so much (11/29/90 : 143).
The government introduced several items of physical evidence, and testimony about them. A pair of blue jeans was found on a couch in xxxxxxx's apartment (11/30/90 : 11). They did not belong to Ms. Martinez (11/30/90 : 190). Blood grouping tests were done at the FBI lab, on a red stain on the bottom right leg (11/30/90 : 118). The tests first determine if a stain is blood, and if it is then it is tested to see if it is human blood, and if it is then certain characteristics of the blood are determined to try to show whether it could have come from a certain person (11/30/90 : 113). Blood samples from defendant, xxxxxxx, and Officer xxxxxxx were submitted to the lab (11/30/90 : 106-107). The blood on the jeans found in xxxxxxx's apartment absolutely could not have come from xxxxxxx or defendant, and could have come from xxxxxxx, because it had the characteristics of his blood, which are only present in about one percent of the population (1/30/90 : 115).
xxxxxxx's car, with no license plates, was found in Buck Lodge Community Park, an isolated wooded area, about two miles from Martha xxxxxxx's house (11/30/90 : 6). The items from xxxxxxx's car were found in a tool shed at her house (11/29/90 : 98). Tests performed on a swab used to take a blood sample from xxxxxxx's car likewise showed human blood, but inconclusive grouping (11/30/90 : 18, 177).
The Maxitt brand tape measure found at the scene had human blood stains on it, but the grouping test on it was also inconclusive (11/30/90 : 116). xxxxxxx had a tape measure on his hip while working for Weldon, which was unusual for a day laborer (11/30/90 : 51). Defendant carried a Stanley tape measure while working for Weldon, not a Maxitt, which is not a standard brand ordinarily used by most construction people (11/30/90 : 52).
The defendant and xxxxxxx stipulated that Grove 13 was within the special maritime and territorial jurisdiction of the United States (12/3/90 : 13).
Neither xxxxxxx nor defendant testified. xxxxxxx presented two character witnesses, the manager of the apartment building in which xxxxxxx lived and worked, and one of the tenants (12/3/90 : 29, 35). xxxxxxx's stepdaughter also testified, primarily about his drinking habits (12/3/90 : 38). xxxxxxx also presented the testimony of a psychologist, Lanning E. Moldauer, who testified about xxxxxxx's drinking and that xxxxxxx suffered from diffuse brain damage (12/3/90 : 48, 60-61). xxxxxxx also called a friend of his, who also knew Ms. Martinez (12/3/90 : 92). None of xxxxxxx's witnesses testified about defendant or his activities.
Defendant had filed a pretrial motion for severance of his case from that of xxxxxxx, primarily based upon the disparity of the evidence in the case (10/25/90 : 13). Defendant pointed out that Ms. Martinez's statements showed that defendant was an accessory after the fact, but not an aider and abettor (10/25/90 : 15). Defendant argued the motion again just before the beginning of the trial (11/21/90 : 190). Defendant repeated his argument about being an accessory after the fact (11/21/90 : 204). The court denied the severance motion (11/21/90 : 210).
At the close of all the evidence, defendant renewed all his motions (12/4/90 : 2). In its closing argument the government told the jury that it was xxxxxxx who struck xxxxxxx with the club (12/4/90 : 26). The government argued that defendant was guilty as an aider and abettor because he assisted xxxxxxx at the scene and later in the cover up and concealment of the assault (12/4/90 : 26).
At one point the jury sent out a note asking for, among other things, defendant's shirt and all the pictures in evidence (12/5/90 : 2). The jury subsequently convicted defendant of Counts One, Three, and Four, and convicted xxxxxxx of all four counts (12/5/90 : 6-7).
Defendant filed a renewed motion for a judgment of acquittal after the verdict as well as a motion for a new trial on the ground that his severance motion should have been granted. This was at least the fourth time defendant had raised the arguments (2/21/91 : 22; APP 38). The district court discussed both these motions at some length, and expressed its concerns about the issues involved. Defendant essentially repeated his argument that he was guilty, if at all, of being an accessory after the fact, not an aider and abettor. The government argued that defendant's presence, his flight afterwards, his statement to Martinez in the garage, the attempted destruction of evidence at the scene, the blood on the shirt taken from defendant's car, and defendant being bent over xxxxxxx, all justified the verdict (2/22/91 : 16-17; APP 32-33). The government also argued that defendant should have tried to stop the attack and "leave to get help, or at least leave" (2/22/91 : 18; APP 34). The government also felt that if Martinez had testified that defendant told xxxxxxx to stop, a judgment of acquittal would have been appropriate (2/22/91 : 25; APP 41).
Defendant contends that the evidence was insufficient to sustain his conviction as an aider and abettor. The evidence conclusively established that defendant had no advance knowledge of the offense and did not participate in it in any way. At most, defendant may have been guilty of being an accessary after the fact, as all defendant's actions occurred after the offense was complete. In addition, defendant claims the extreme disparity in the evidence between defendant and xxxxxxx resulted in defendant suffering prejudice when the district court refused to sever the trials. Finally, defendant argues that a remand for resentencing is required because the district court failed to state any findings at the sentencing, and failed to give defendant a downward adjustment for his mitigating role in the offense.
There was no plan to assault Officer xxxxxxx that night. Defendant, xxxxxxx, and Ms. Martinez stopped in Rock Creek Park on their way home. It was happenstance that xxxxxxx pulled in to see what was taking place. There was no evidence defendant and xxxxxxx talked about the attack at all. xxxxxxx did tell Martinez that xxxxxxx would not get the keys, but xxxxxxx said nothing to defendant, and there was no evidence defendant overheard xxxxxxx tell Martinez about the keys. Indeed, while Ms. Martinez heard xxxxxxx ask defendant and xxxxxxx for identification, she did not testify to hearing defendant and xxxxxxx converse at all while xxxxxxx was there.
xxxxxxx's action was a bizarre, unprovoked act. There is no evidence defendant had any idea xxxxxxx was about to do such a thing. Martinez's testimony was clear that defendant was 32 feet away when xxxxxxx struck xxxxxxx. There was no testimony that defendant offered any encouragement or support. Indeed, all the witnesses who saw xxxxxxx at the time, including xxxxxxx, testified that xxxxxxx was intoxicated. There was also testimony about xxxxxxx suffering from brain damage. Defendant could not have anticipated xxxxxxx's irrational and unplanned act.
Martinez testified that defendant did nothing with respect to xxxxxxx, except bend over him, after xxxxxxx had completed the attack and while xxxxxxx was putting the club back in the car. All defendant did was bend over and look at xxxxxxx. That there were tiny unidentified blood stains on a shirt found in defendant's car adds nothing to the case. It may have been xxxxxxx's shirt that he had taken off after leaving Martha xxxxxxx's house. The stains may have been old. Even if it were defendant's shirt, Officer xxxxxxx was suffering from an arterial bleed, and it would not be surprising that when defendant bent over xxxxxxx, some blood may have gotten on defendant's shirt.
All of defendant's actions occurred after xxxxxxx had committed the crime. "A person cannot be found guilty of aiding and abetting a crime that already has been committed." United States v. Shulman, 624 F.2d 384, 387 (2nd Cir. 1980). An example of this concept in a situation analogous to the present case is found in Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969). In Roberts, one defendant knew in advance that a codefendant was going to pass a counterfeit $20.00 bill in a store. Id. at 1220. The defendant was with the codefendant, who was detained by store employees to await the police. Id. at 1218. The codefendant gave the defendant nine other counterfeit bills, which the defendant took and burned. Id. The court reversed the defendant's conviction for aiding and abetting the passing of the counterfeit bill, because the defendant's "act could not have aided and abetted [the codefendant] in the passing of the counterfeit currency because that was already an accomplished act." Id. at 1221. The court noted that the defendant "may well . . . have been charged and convicted as an accessory after the fact on the basis of the destruction of the money as helping [the codefendant] escape detection or punishment, but the charge was not so framed in the indictment." Id. The reasoning of Roberts is equally applicable to the present case.
There is no indication defendant had any advance knowledge or warning about xxxxxxx's actions. The factors which the government pointed out to the district court were all efforts to help xxxxxxx avoid capture. They in no way, however, indicate that defendant aided and abetted the attack itself. Leaving the scene with xxxxxxx, and telling Ms. Martinez to say nothing, and trying to avoid the police all indicate an effort by defendant to help xxxxxxx or for defendant to avoid being wrongfully blamed himself, especially because defendant was an alien and did not speak English. It is noteworthy that, unlike xxxxxxx, defendant returned to his apartment and was making no attempt to leave the area. In addition, xxxxxxx is the one who called Martinez asking her to change her testimony.
Defendant in the present case contends that he fits squarely within the rule of Grey Bear. The most that was shown was his mere presence and "negative acquiescence" in the assault. The government admitted as much in its closing argument when it told the jury that defendant assisted xxxxxxx at the scene, but never described how. (12/4/90 : 26). In the rebuttal portion of its closing the government merely said that defendant was with xxxxxxx "every step of the way" (12/4/90 : 65). That is not enough to make defendant guilty, however, where the attack was clearly a sudden, unanticipated event, and he took no part in it.
Had defendant done something to assist or encourage xxxxxxx, this would be a much different case. A good example of such a situation occurred in United States v. Ferreboeuf, 632 F.2d 832 (9th Cir. 1980), cert. denied, 450 U.S. 934 (1981). In Ferreboeuf, the defendant was convicted of being an accessory after the fact to murder and of aiding and abetting an assault on a federal officer. The defendant and her husband were in a customs building at the Canadian border. One customs inspector was shot and killed inside the building. Id. at 833. While defendant held the door open her husband shot at another inspector who was outside. Id. During an ensuing chase, defendant acted as the lookout. Id. The court found conviction on both charges was proper. Proof of acting as the lookout supported the accessory after the fact of the murder charge. Id. at 836. Proof that defendant held the door open to assist in the assault satisfied the aiding and abetting charge. Id. It is interesting that the defendant was not charged with aiding and abetting the murder, apparently because there was no evidence whether she assisted that crime in any way during its commission.
The obvious difference between Bryant and the present case is that in the present case there was an eyewitness, Martinez, who testified that defendant had nothing to do with the assault. Nothing about xxxxxxx's brief, although brutal, attack showed any concert of action.
Obviously, if the court finds that the evidence was insufficient to sustain defendant's convictions, as discussed above, then the court need not decide the other issues discussed in this brief. Should the court find the evidence sufficient, then defendant contends he should have received a trial separate from xxxxxxx, because of the disparity in the evidence. The district court's decision to deny a severance motion is reviewed for abuse of discretion. United States v. Tarantino, 846 F.2d 1384, 1398-99 (D.C. Cir.), cert. denied, 488 U.S. 840 (1988).
Defendant acknowledges that it was proper to charge xxxxxxx and him in the same indictment under Fed. R. Crim. P. 8. Defendant argues that under Fed. R. Crim. P. 14, he was prejudiced by joinder with xxxxxxx for trial, and that the district court should have severed the trials.
In the present case, it is, of course, defendant's position that the disparity in the evidence was so extreme that there is not enough to support defendant's conviction. In fact, it is likely that defendant's conviction was obtained just as a result of being on trial with xxxxxxx. The danger of prejudice was especially great in this case because defendant and xxxxxxx are brothers, and it is likely the jury viewed them as acting in concert by that fact alone. The government played upon this in its closing by arguing to the jury that defendant was guilty because he was with xxxxxxx every step of the way, even though there was no evidence to support this assertion.
The disparity in this case was reflected in the testimony about the crucial fact that xxxxxxx talked mostly to xxxxxxx. Only xxxxxxx struck xxxxxxx. It was xxxxxxx who hid and abandoned his car. xxxxxxx fled on a bus headed for Houston, while defendant went back to his apartment. xxxxxxx's statement was introduced into evidence. xxxxxxx's blood was identified only on the pants found in xxxxxxx's apartment. xxxxxxx talked to Martinez to ask her to change her testimony.
For all these reasons, defendant respectfully requests that even if the court does not reverse his conviction for insufficient evidence, it at least reverse his conviction and afford him a new trial free from the taint of being tried with xxxxxxx.
The district court's decision regarding a downward adjustment under § 3B1.2 is given due deference, Williams, 891 F.2d at 926, and is largely committed to the discretion of the trial judge. Caballero, 936 F.2d at 1299. Defendant's position is, once again, that there was no evidence to convict him of the offenses. Even if the court finds there was sufficient evidence, however, it is clear that defendant's role was minimal compared to that of xxxxxxx. In determining the adjustment for a mitigating role the district court must assess the defendant's culpability "compared to that of the other participant." Id.
Defendant was plainly far less culpable than xxxxxxx. "There is a thin line between a minor and a minimal participant, and at times, it is difficult to determine just where to draw it." United States v. Vega-Encarnacion, 914 F.2d 20, (1st Cir. 1990), cert. denied, 111 S.Ct. 1626 (1991). Without repeating all the facts above, defendant contends he is entitled to a four-point downward adjustment as a minimal participant under § 3B1.2(a). Interestingly, had defendant been charged and convicted of being an accessory after the fact, which is the most of which he contended he was guilty, he would have received a six-point downward adjustment from the offense level, pursuant to U.S.S.G. § 2X3.1. Thus, the four-point reduction is clearly warranted if the court upholds the conviction itself. Defendant respectfully requests that if the court affirms the conviction it remand the case for findings by the district court with respect to the appropriate guideline range and adjustments, including a mitigating role adjustment.


(ix) Especially aggravated sexual exploitation of a minor under § 39-17-1005.
(b) This section shall not apply in any case in which the child has been adopted by any person other than a stepparent or other relative of the child.
HISTORY:Acts 1971, ch. 74, §§ 1, 2; 1975, ch. 330, § 1; T.C.A., §§ 36-1101, 36-1102; Acts 1985, ch. 341, § 1; 1985, ch. 478, § 22; 1995, ch. 428, § 3; T.C.A. § 36-6-301; Acts 1997, ch. 503, § 1; 2000, ch. 981, § 51.
This is for informational purposes only, laws change please contact an attorney.
Do Grandparents have visitation rights in the State of Tennessee?
Left is the Tennessee Code Section that sets forth the intial steps of grandparent visitation rights. There are additonal Tennessee Laws that govern grandparents' s visitation as well as case law. Traditionally, under Tennessee Law, Granparents had no right of visitation with their granchildren. Currently, the Tennessee Statutes provide for grandparents' visitation rights, but only under certain narrow circumstances. It is important to consult an attorney that has experience with this area of law.


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Under the Code, housing providers have a duty to accommodate the Code-related needs of tenants, to make sure that the housing they supply is designed to include people identified by Code grounds, and to take steps to remove any barriers that may exist, unless to do so would cause undue hardship.
“Housing providers” includes landlords and other responsible parties, such as governments or agencies that provide housing-related services. The obligation of government to meet its own duty to accommodate does not relieve housing providers and others from fulfilling their respective duties under the Code. For example, in constructing new social housing buildings, governments have a responsibility to consider inclusive design requirements; where accommodation needs continue to exist, however, housing providers have a duty to accommodate these remaining needs.
Housing providers are only required to implement accommodations that would not amount to undue hardship. The test for undue hardship is set out fully in the OHRC’s Policy and Guidelines on Disability and the Duty to Accommodate. The same standard applies to all grounds of the Code.
No other considerations, other than those that can be brought into these three, can be properly considered. For example, a housing provider is not justified in denying accommodation to a tenant based on the discriminatory views of other tenants.
The onus of proving that an accommodation would cause undue hardship lies on the housing provider. The evidence needed to show undue hardship must be real, direct, objective, and in the case of costs, quantifiable.
In most cases, accommodations for Code-identified people will not require significant expenditures, and will often have the potential to benefit many other tenants not just in the present, but also in the future.
Example: Installing a ramp for a tenant who uses a wheelchair has the potential to make the premises more accessible for other people with mobility disabilities, older people, and families with children in strollers.
In other cases, accommodation may simply involve making policies, rules and requirements more flexible. This may involve some administrative inconvenience, but inconvenience by itself is not a factor for assessing undue hardship. Section 11 of the Code, combined with section 9, operates to prohibit discrimination that results from requirements, qualifications, or factors that may appear neutral but that have an adverse effect on people identified by Code grounds. Section 11 allows a housing provider to show that the requirement, qualification or factor is reasonable and bona fide by showing that the needs of the tenant cannot be accommodated without undue hardship.
As a result of this test, the rule or standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship rather than maintaining discriminatory standards and then providing accommodation for people who cannot meet them. This makes sure that each person is assessed according to their own personal abilities instead of being judged against presumed group characteristics.
The ultimate issue is whether the housing provider has shown that they have provided accommodation up to the point of undue hardship. In this analysis, the procedure to determine what changes are needed is as important as the substantive content of the accommodation.
Dignity will include consideration of how accommodation is provided and the person’s own participation in the process. Housing providers should consider different ways of accommodating people identified by Code grounds along a continuum, ranging from those ways that most respect privacy, autonomy, integration and other human rights values, to those that least respect those values.
There is no set formula for accommodating people identified by Code grounds. Each person’s needs are unique and must be considered afresh when an accommodation request is made. While some accommodations may meet one person’s needs and not another’s, housing providers will likely find that many of the identified changes that they implement will benefit large numbers of people.
Accommodations should be developed and implemented with a view to maximizing a person’s integration and full participation. Achieving integration and full participation requires barrier-free and inclusive design and removing existing barriers. Where barriers continue to exist because it is impossible to remove them at a given point in time, then accommodations should be provided to the extent possible, short of undue hardship.
Example: In response to concerns from an older tenant with a hearing loss, a landlord installs, as part of the building’s fire safety system, a visual alerting component with a flashing light. This feature allows the tenant, and all other tenants with hearing loss, to live their lives independently and not have to rely on their neighbours in the event of an emergency.
The Supreme Court of Canada has made it clear that society must be designed to include all people. It is no longer acceptable to structure systems in a way that ignores needs related to Code grounds. Instead, systems should be designed in a way that does not create physical, attitudinal or systemic barriers for people identified by Code grounds.
Housing providers, and other responsible parties, including government, should use the principles of universal design when they are developing and constructing the physical features of housing, and when they are designing housing policies, programs, and procedures. New barriers should never be created when building new facilities or when renovating old ones. Instead, design plans should incorporate current accessibility standards such as the Canadian Standards Association’s Barrier-Free Design and the Principles of Universal Design. This type of planning makes premises attractive to a larger pool of prospective tenants and decreases the need to remove barriers and provide accommodations at a later date.
Example: As part of a renovation initiative to modernize her rental housing complex, a housing provider decides to sound-proof five of her units. This example of forward-thinking inclusive design will allow her to provide comfortable units to older tenants who use canes or walkers, and families with small children. It will also stave off potential complaints from other tenants about excessive noise.
Example: A co-op housing program ensures that design plans for a new housing complex include units of varying sizes, ranging from bachelor units to four-bedroom apartments. This design choice is meant to make its premises accessible to a diverse range of tenants, from people who have mental illnesses who may prefer to live alone, to new Canadians or extended families who may have multiple generations living under one roof.
The Ontario Building Code Act governs the construction of new buildings and the renovation and maintenance of existing buildings. The OHRC has expressed concerns that the accessibility requirements set out in the Building Code do not always result in equal access to people with disabilities as required by the Human Rights Code. Many housing providers continue to rely only on the requirements of the Ontario Building Code without considering their obligations under the Human Rights Code. However, the Human Rights Code prevails over the Building Code and housing-providers may be vulnerable to a human rights claim if their premises fall short of the requirements of the Human Rights Code. Relying on relevant building codes has been clearly rejected as a defence to a complaint of discrimination under the Human Rights Code.
The Accessibility for Ontarians with Disabilities Act provides a mechanism for developing, implementing and enforcing accessibility standards to provide full accessibility for Ontarians with disabilities in goods, services, facilities, accommodation, employment, buildings, structures and premises by January 1, 2025. Under the AODA, housing providers will be required to comply with accessibility standards for people with disabilities. Accessibility Standards for Customer Service have already been passed into Regulation and begin to apply to designated public sector organizations on January 1, 2010 and for other providers of goods and services on January 1, 2012. Accessibility standards for communications, transit, employment, and the built environment have been proposed, but have not yet passed into regulation as of the date of this Policy. If accessibility standards under the AODA fall short of the requirements in the Code, the requirements of the Code will prevail.
Inclusive design is not just a principle of human rights - it also makes good sense. Housing providers who do not consider the Code-related needs of people are likely to experience higher levels of vacancy, and turnover among tenants. Flexible and inclusive practices can be a considerable draw in attracting and retaining tenants. Similarly, housing providers who do not take into account the Code-related needs of people and families may alienate a significant potential target market.
Along with the expectation to prevent barriers at the design stage through inclusive design, organizations should be aware of systemic barriers in systems and structures that already exist. They should actively identify and seek to remove these existing barriers. Where barriers have been identified, organizations must remove the barriers rather than making “one-off” accommodations, unless to do so would cause undue hardship.
Administrative tribunals and other decision-makers should also take steps to make sure that their facilities, procedures and requirements are designed inclusively. For example, decision-makers might consider making information about their processes available in multiple languages to ensure equal access to people whose first language is not English. Interpretation services for adjudicative proceedings and other more informal procedures should also be available.
Where an accommodation need related to Code grounds has been identified, a housing provider must identify and implement the most appropriate accommodation, short of undue hardship. Determination of what is and is not an appropriate accommodation is separate from an undue hardship analysis.
An accommodation will be considered appropriate if it will result in equal opportunity to attain the same level of performance or to enjoy the same level of benefits and privileges experienced by others, or if it is proposed or adopted to achieve equal opportunity and meets the person’s Code-related needs.
Example: A housing co-op sends out its monthly newsletter and other communications in both electronic and print versions so that it is accessible to members who have visual disabilities and use assistive devices.
The most appropriate accommodation will be the one that most promotes inclusion and full participation, respects dignity, meets individual needs, and effectively addresses any systemic issues.
A housing provider that has not taken steps to investigate and implement policies and practices that support and include all people will have a more difficult time justifying a failure to accommodate individual requests for flexibility.
Where the most appropriate accommodation would cause undue hardship, a housing provider should consider next-best, phased-in, or interim accommodations.
Example: Within a short time, a landlord receives several requests for Code¬-related accommodations that, when combined, would require significant capital outlay. Because the total cost of the changes would amount to a financial undue hardship that would jeopardize the organization’s viability, the landlord develops a timeline for completing the work required. The timeline projects that all of the accommodations would be completed within the calendar year. After the landlord completes the work, he creates a reserve fund and makes regular monthly deposits. The sole purpose of the fund is to cover the cost of Code-related accommodation expenses that may arise in the future.
Appropriate accommodation should be provided promptly. Housing providers may contravene the Code if they do not provide accommodations in a timely way.
A housing provider need not provide more than a tenant requires to meet the actual identified needs related to grounds in the Code. For example, if a tenant with a physical disability cannot shovel snow and cut grass as part of his co-op duties, it would be an appropriate accommodation to relieve him of these specific duties. It would not be necessary, however, for the co-op to relieve him of all co-op duties if the tenant is able to complete other tasks, such as office paperwork.
Not all of a tenant’s disability-related accommodation needs will necessarily fall under the direct responsibility of the housing provider. Some tenants might rely on attendant care or other support services, personal assistive devices, mobility aids, or public para-transit services. In these situations, a housing provider may have a duty to help facilitate a tenant’s access to and use of such accommodations, where appropriate.
There are various ways a housing provider may be called upon to accommodate a person’s Code-related needs. People with disabilities, older people, families and others may have specific requirements that necessitate accommodation in the housing context.
Example: To make his high-rise apartment building accessible to families with children, a building manager installs safety devices on all the windows and balconies.
Inaccessible buildings and non-inclusive housing design are among the obstacles people with disabilities often face. Accommodations may include physical modifications such as installing ramps and elevators, visual fire alarms and doorbells for the hearing impaired, different door handles, lower counters, etc.
Example: A tenant in a rental unit develops arthritis. She requests that doorknobs in her suite and to common areas such as the laundry room be changed from round knobs that are difficult to grip to handles that are suitable for people with arthritis. The landlord willingly makes this change as it is not an undue hardship to do so. It will also benefit other tenants in the building who are aging.
The duty to accommodate may require waiving or changing a rule (for example, allowing guide dogs or other service animals in a building with a “no pets” policy. ) It may also require flexibility when enforcing rules and requirements. In social housing programs, for example, tenants must promptly report changes in income and family size. Where a tenant is unable to meet a reporting deadline for a Code-related reason, the duty to accommodate may require a housing provider to extend the timeline.
Example: Due to unforeseen symptoms arising from a change in medication, a tenant with a mental disability fails to meet the deadline for filing information on a change in income. Before this incident, the tenant had complied fully with the rules and requirements of his social housing program and had been very proud of his demonstrated ability to live independently. The social housing provider, in this instance, uses his discretion to extend the deadline, thus avoiding much embarrassment for the tenant and a possible revocation of the tenant’s subsidy.
Housing providers may need to inquire further into a prospective tenant’s inability to meet a specific rental requirement, and, where appropriate, provide alternative ways for a tenant to satisfy the requirement. New Canadians, women who are leaving an abusive relationship, and people who have spent time in public institutions may not have a recent rental history, for example. In such circumstances, the lack of a rental history should not count against the applicant. An appropriate accommodation may be for the landlord to allow the tenant to establish their reliability in other ways. At all times, a housing provider’s inquiries should be consistent with the Code’s housing regulation and with Code objectives, that is, to prevent discrimination and unequal treatment, and to respect a tenant’s dignity and privacy.
Often, it is neither difficult nor a major imposition for a housing provider to provide needed accommodations. In one case, a tenant alleged discrimination because of disability due to the landlord’s lack of designated “disabled” parking. Under a settlement, the landlord agreed to provide two designated parking spots for tenants, one designated spot for visitors and further designated spots for tenants as needed so that each tenant entitled to a spot would have one. The landlord also agreed to maintain the parking spots by clearing snow, sanding or salting the parking spots and the route to the door of the building.
There may be situations where the conduct of one tenant causes tension and affects the enjoyment of the living environment by others. A housing provider, when faced with such a situation, may feel challenged to meet the needs of an individual tenant or family while also preserving the harmony of the larger housing community. Situations where a tenant’s conduct is disruptive, or perceived to be disruptive, may be linked to a Code-protected ground. For example, a family with small children may be perceived by a neighbour to be too noisy. Or, the behaviour in question may be linked to the ground of disability. Certain forms of mental illness, for example, may lead to disruptive behaviour. Disruptive behaviour may also stem from a tenant reacting to being harassed or treated differently based on a Code ground, such as race or sexual orientation.
Under the Code, a housing provider has a duty to consider such factors and take prompt and appropriate action, to the extent possible, including exploring and implementing any interim or long-term accommodation solutions that might help address the situation. At the same time, housing providers are also responsible for managing the legitimate concerns of other tenants, while not tolerating any discriminatory views and preferences. Tenants may be asked to cooperate and help facilitate situations, to the best of their ability, including aiding in the provision of accommodation to themselves and, where appropriate, to their fellow tenants.
The duty to accommodate under the Code exists for needs that are known. Housing providers and others responsible for accommodation are not, as a rule, expected to accommodate Code-related needs of which they are unaware. However, some people may be unable to disclose or communicate their needs, particularly in a situation that involves some forms of mental illness. While most people with a mental illness will be capable of identifying their own needs and fully taking part in the accommodation process, some people will have difficulty acknowledging a mental illness, or will be unable to do so due to the nature of their disability.
Before taking any kind of punitive action, a housing provider should try to offer assistance and accommodation, where appropriate, to a person who is clearly unwell or perceived to have a disability. Even if a housing provider or landlord has not been formally advised of a mental disability, the perception of such a disability will engage the protection of the Code.
Several decisions stand for the principle that decision-makers must consider a tenant’s Code-related circumstances and needs and whether that person could be accommodated before considering or ordering an eviction.General Comment 7: The Right to Adequate Housing: Forced Evictions by the United Nations Committee on Economic, Social and Cultural Rights also states that forced evictions are incompatible with the Covenant, and that evictions should not result in a person ending up homeless. A housing provider has a duty to assess each tenant individually before imposing measures that may affect the tenant negatively, such as threatening eviction, starting eviction proceedings, revoking subsidies, etc.
whether the tenant has undetected Code-related needs that require accommodation.
Where a tenant’s conduct is objectively disruptive, housing providers and landlords must consider a range of strategies to address such behaviour. Strategies will include assessing, and where necessary, reassessing and modifying any accommodations that are already in place for the tenant, and/or providing or arranging for additional supports.
Example: The erratic behaviour of a woman with schizophrenia had the potential to endanger the safety of other tenants in her building. For example, on several occasions, she screamed loudly in the halls and other common areas, and once she left food on her stove unattended. By working with the woman and members of her family, a housing provider developed a crisis response plan, which included the woman’s brother and mother being available by phone and being willing to intervene when the tenant’s behaviour was disruptive.
Tension and conflict between tenants can often be minimized by putting appropriate accommodations in place.
Example: A tenant using a walker made thumping noises as he walked around his apartment, causing considerable disruption to the tenants who lived beneath him. The landlord installed carpeting in the man’s apartment, thus minimizing the noise for other tenants.
It may be necessary to tolerate a certain amount of disruptive behaviour in the interim, while more ideal accommodations or solutions are being worked out. However, an accommodation that would call for permanent tolerance of significantly disruptive behaviour may be neither appropriate nor required.
Being a tenant comes with a number of responsibilities, including: paying the rent on time, keeping your unit clean, avoiding damage to the property, respecting health, fire, safety and noise regulations, not disturbing the peace and well-being of others, and generally being a good neighbour.
The extent of a housing provider’s obligation to accommodate a tenant’s behaviour related to a Code ground may be limited if ultimately the tenant is unable to substantially fulfill the responsibilities of being a good tenant, particularly where there is a real risk to the health and safety of other tenants, the landlord, etc. See “Health and Safety Concerns” in the “Undue Hardship Standard” section of the Policy for more detailed information.
Once a landlord has provided appropriate accommodation to a tenant, the tenant can then be expected to live in the housing environment without causing unreasonable disruption to the greater harmony of the housing community. Where a tenant’s conduct continues to interfere significantly with the tranquility of the larger housing environment, despite appropriate accommodations being in place and despite diligent and active participation on the part of the housing provider to engage in the accommodation process, the housing provider may have no other choice than to end the tenancy. It is important, however, that housing providers not rush to such a conclusion, and continue, where possible, to explore possible solutions where they exist.
While housing providers and tenants have a responsibility to come together to develop creative solutions to help address disruptive behaviour, government and other social service agencies may offer programs and services that can also help tenants live independently as good neighbours. Housing providers may still have a role to remove any existing barriers, design systems and practices inclusively, and otherwise help facilitate these external forms of support.
Smoking can be a major source of tension when balancing the rights of tenants.
the workplace, restaurants, bars and hotel services. Improved standards for elements that affect indoor air quality for occupants, especially people with environmental sensitivities, have been set out in the proposed Accessible Built Environment Standard under the Accessibility for Ontarians with Disabilities Act. The proposed Standard identifies a number of building contaminants including gases from materials used in construction and finishes, poor ventilation, cleaning chemicals, scented personal care products, and tobacco smoke. Advocacy organizations are also seeking further progressive change on such issues.
It is clear that cigarette smoke can have a detrimental effect on the health and well-being of others, particularly people with respiratory and chemical sensitivity related disabilities, pregnant women and children. Landlords may be asked to provide accommodation to tenants whose disabilities are worsened by exposure to second-hand smoke.
At the same time, the medical community recognizes that smoking is an addiction detrimental to one’s health. Different forms of addictions, such as alcohol and drug dependences, have been found to be a disability within the meaning of the Code. At this time, the case law is divided on whether addiction to nicotine is a disability.
Smoking has also been shown to be related to other disabling conditions such as emphysema and cancer. Research shows that people with mental illness are about twice as likely to smoke as other people. Similarly, the OHRC has heard that people with physical disabilities, such as multiple sclerosis or chronic back pain, may smoke cigarettes or may be prescribed medicinal marijuana to control symptoms.
A housing provider has a duty to explore accommodation requests from tenants with any form of disability. Tenants may also be asked to cooperate and help facilitate the provision of accommodation for themselves, and where appropriate, for their fellow tenants as well.
However, given the inherent risks associated with smoking, a housing provider may have little or no obligation to accommodate a tenant’s need to smoke when to do so would amount to undue hardship, for example, by negatively affecting the health and safety of other tenants. For more information, see the “Undue Hardship Standard” section of this Policy.
Accommodation is a multi-party process. Everyone in the accommodation process should work together cooperatively and respectfully to develop and implement appropriate accommodation solutions.
The person seeking accommodation is responsible for telling the accommodation provider (landlord, housing provider, decision-maker, etc.) that they have Code-related needs that require accommodation.
Before asking the housing provider, landlord, etc. for accommodation, people may be expected to make reasonable efforts to first avail themselves of outside resources available to them, such as funding through government programs. However, such resources should most appropriately meet the accommodation needs of the person. Accommodation seekers are often in the best position to identify and evaluate such outside resources. At the same time, it is a best practice for landlords, housing providers, decision-makers, etc. to help people to find information on such resources; for example, by keeping information in a common location, or posting information on a website.
Accommodation providers should accept requests in good faith, unless there are objective reasons not to do so. Where necessary, landlords and other accommodation providers may make reasonable requests for information that is necessary to clarify the nature and extent of the accommodation need.
Example: A woman applying for tenancy in a housing complex asks the landlord if he will accept a guarantor in lieu of a credit history. She explains that she is leaving an abusive relationship and that her spouse controlled all of the couple’s finances during the years they were together. She states that she is staying at a women’s shelter and is in the process of setting up a bank account, ordering cheques, getting a credit card, etc. The landlord asks for a letter from the women’s shelter to verify the woman’s explanation. Upon being satisfied that the explanation is legitimate, the landlord accommodates the woman’s needs.
The accommodation provider may also ask a tenant about any available outside resources that the person has enquired into.
As information related to Code grounds may be highly personal, landlords and other accommodation providers should take steps to make sure that information related to accommodation requests is kept confidential, and shared only with people who need it.
Adjudicative bodies and other decision-makers are responsible for making their proceedings accessible to people identified by Code grounds. Where an accommodation need is identified, these bodies have a duty to accommodate that need to the point of undue hardship. For example, where a person is not able to make submissions in writing due to a disability, a decision-maker should provide an alternative way for them to provide the required information. Also, all documents should be available in alternate formats. Where a person’s failure to comply with required procedures is due to a Code-identified ground, decision-makers have a duty to accommodate related needs.
Example: A woman fails to show up at an eviction hearing before an adjudicative tribunal. Rather than proceed with the eviction in her absence, the tribunal adjourns. In follow-up communication, the woman reveals that she has a mental illness that she is generally able to manage quite well, but that on the date of the hearing she had a crisis that prevented her from attending. The tribunal agrees to re-schedule the hearing and allow the woman to bring a representative with her for support.
Accommodation providers should act in a timely way, take an active role in seeking solutions, and bear any appropriate costs associated with the accommodation. Accommodation seekers should cooperate in the accommodation process, provide relevant information, and meet any agreed-upon standards once accommodation has been provided.
Before initiating the revocation of a subsidy, eviction proceedings, or any other measure that may affect the tenant in a negative way, a housing provider is expected to consider whether a Code-related need exists, and whether that need has been accommodated appropriately.
Example: A tenant fails to make his rent payment on time. Before contemplating consequences, his landlord inquires into the tenant’s circumstances and discovers that he has been bedridden in the hospital due to a workplace accident. He allows the tenant to pay his rent late as it is not an undue hardship for him to do so.
advise the accommodation provider of difficulties they may be experiencing with arranged accommodations.
take immediate remedial action in situations where harassment is or may be taking place.
make sure that accommodation costs are spread as widely as possible throughout the operation, if required and where appropriate.
Housing providers, tribunals, government and others responsible for making housing decisions can plan to meet accommodation needs by proactively putting in place policies and procedures and informing themselves about the primacy of the Code and the duty to accommodate to the point of undue hardship.
As mentioned previously, the duty to accommodate Code-related needs exists for needs that are known. Housing providers and others responsible for providing accommodation are not, as a rule, expected to accommodate needs they are unaware of. However, some tenants and others seeking housing-related accommodation may be unable to identify or communicate their needs because of the nature of their disability. There may be cases where housing providers should try to help the accommodation seekers, by offering assistance and accommodation. Once Code-related needs are known, the legal onus shifts to those with the duty to accommodate.
A housing provider is also responsible for facilitating accommodations provided by others, where appropriate. As mentioned previously, some tenants may rely on third parties for attendant care or other support services, personal assistive devices, mobility aids, public para-transit services, etc.
Under the Code, every tenant who is identified by a Code ground is entitled to accommodation up to the point of undue hardship. The Code sets out only three factors that may be considered when assessing whether an accommodation would cause undue hardship: cost; outside sources of funding, if any; and health and safety requirements, if any.
It is the OHRC’s longstanding position that only factors that can be brought within these three factors will be considered.
Example: A housing provider tells a tenant who has just announced her pregnancy that she will have to find another place to live once she has the baby as the majority of his tenants are older and some have expressed concern about the baby compromising the peace and quiet of the building. Unless the housing provider can show that allowing the woman to maintain her tenancy will cause undue hardship based on one of the three factors set out above, the preferences and opinions of other tenants will not, by themselves, be enough to establish undue hardship.
To claim the undue hardship defence, the party responsible for accommodation has the onus of proof. The accommodation seeker does not have to prove that the accommodation can be accomplished without undue hardship. As mentioned previously, the nature of the evidence required to prove undue hardship must be objective, real, direct, and, in the case of cost, quantifiable. The accommodation provider must provide facts, figures and scientific data or opinion to support a claim that the proposed accommodation in fact causes undue hardship. A mere statement, without supporting evidence, that the cost or risk is “too high” based on impressionistic views or stereotypes will not be sufficient.
information about the conditions surrounding the activity and their effects on the person or group identified by Code grounds.
The costs standard is a high one. Where possible, an accommodation provider may take steps to recover the costs of accommodation. This can be done, for example, by obtaining grants, subsidies and other outside sources of funding that help to offset accommodation expenses. Tax deductions and other government benefits flowing from the accommodation may also be considered. Also, inclusive design and other creative design solutions can often avoid expensive capital outlay.
The size of the operation – what might prove to be a cost amounting to undue hardship for a small housing operation will not likely be one for a larger housing operation.
Can other divisions, departments, etc. of the housing operation help to absorb part of the costs?
Can the costs be phased in – so much per year?
Can the housing provider set aside a certain percentage of money per year to be placed in a reserve fund to be used for accommodation issues?
Will the housing-related amenities, services, conditions, etc. for all tenants be substantially and permanently altered?
The government is required to make sure that social housing providers have access to sufficient funding to ensure equal access to housing. Where a housing provider receives funding from government for promoting accessibility and meeting the accommodation needs of tenants, the housing provider should track accommodation data and alert the government to any funding deficiencies that exist.
Housing providers cannot use limited resources or budget restrictions as a defence to the duty to accommodate without first meeting the formal test for undue hardship based on costs. Further, housing providers are not to decide which accommodations are most appropriate for a tenant based on financial considerations or budgetary constraints. Whether an accommodation is “appropriate” is a determination completely distinct and separate from whether the accommodation would result in "undue hardship." If the accommodation meets the tenant’s needs and does so in a way that most respects dignity, then a determination can be made as to whether or not this “most appropriate” accommodation would result in undue hardship.
Accommodation is a process and a matter of degree, rather than an all-or-nothing proposition, and can be seen as a continuum. At one end of this continuum would be full accommodation that most respects the person's dignity. Next is phased-in accommodation over time, followed by the most appropriate accommodation only being implemented once sufficient reserve funds have been set aside. Alternative accommodation, or “next best” accommodation, might be next on the continuum when the most appropriate accommodation is not feasible. Alternative accommodation might also be accomplished at a later date if immediate implementation would result in undue hardship. Or, alternative accommodation might be implemented as an interim solution while the most appropriate accommodation is being phased in or implemented at a later date.
If an accommodation exceeds a housing provider’s pre-determined accommodation budget, the housing provider must look to its global budget, unless to do so would cause undue hardship.
Example: A social housing provider informs a tenant with small children that they cannot install child locks on her windows and balcony door because they only have a certain amount of resources to fund accommodations to tenants, and that they have already spent the money on the “most needy” tenants. The housing provider in this instance would be required to review its overall budget before supporting a conclusion that the accommodation could not be provided without causing undue hardship based on costs.
In larger housing operations, the costs of accommodation should be distributed as widely as possible within the operation so that no single complex or division disproportionately assumes the costs of accommodation. The appropriate basis for evaluating the costs is based on the budget of the housing operation as a whole, not the specific complex or division in which the tenant has requested an accommodation.
Larger housing operations may be in a better position to set an example or provide leadership in accommodating people with Code-related needs, as accommodation costs will likely be more easily absorbed by them.
Housing providers are expected to investigate and access outside sources of funding, where they exist, to help defray costs associated with accommodation. Before being able to claim that it would be an undue hardship based on costs to accommodate a tenant with disability-related needs, for example, a housing provider would have to show that they took advantage of any available government funding (or other) program to help with such costs.
A tenant is also expected to avail themselves of any available outside sources of funding to help cover expenses related to their own accommodation.
Maintaining a safe housing environment is clearly an important objective. Health and safety issues will arise in various housing contexts and have the potential to affect individual tenants and the broader housing community. Depending on the nature and degree of risk involved, it may be open to a housing provider to argue that accommodating a tenant’s Code-related needs would amount to an undue hardship.
Is the tenant willing to assume the risk in circumstances where the risk is solely to their own health or safety?
Would changing or waiving a requirement or providing any other type of accommodation be reasonably likely to result in a serious risk to the health or safety of other tenants, or staff, where appropriate?
What other types of risks are assumed within the housing operation, and what types of risks are tolerated within society as a whole?
The probability of the risk: How likely is it that the potential harm will actually occur? Is it a real risk, or merely hypothetical or speculative? Could it occur often?
If the potential harm is minor and not very likely to occur, the risk should not be considered serious. If there is a risk to public safety, consideration will be given to the increased numbers of people potentially affected and the likelihood that the harmful event may occur.
Where a tenant identified by a Code ground engages in behaviour that affects the well-being of others, it may be open to a housing provider to argue that to accommodate that tenant would cause undue hardship based on health and safety concerns, specifically, that the accommodation would pose a risk to public safety. However, the seriousness of the risk will be evaluated only after accommodation has been provided and only after appropriate precautions have been taken to reduce the risk. It will be up to the housing provider to provide objective and direct evidence of the risk. Suspicions or impressionistic beliefs about the degree of risk posed by a tenant, without supporting evidence, will not be enough.
A claim of undue hardship must stem from a genuine interest in maintaining a safe environment for all tenants, rather than as a punitive action. Even where a tenant poses a risk to him or herself or the safety of others, a housing provider still has a duty to canvass accommodation options, where possible and appropriate.
Ultimately, a housing provider must balance the rights of the tenant with the needs of the larger housing community. There may be situations where a tenant poses a health and safety risk to themselves or to others that would amount to an undue hardship, or an otherwise appropriate accommodation is impossible to implement in the particular circumstances. However, it is important that housing providers not rush to such a conclusion. Further training for staff in larger housing complexes, or additional supports for the tenant may resolve the issue. The accommodation process must be fully explored, to the point of undue hardship.
 British Columbia (Public Service Employee Relations Commission) v. BCGSEU [“Meiorin”]  3 S.C.R. 3 at para. 54.
 See Hydro-Québec v. Syndicat des employé-e-s de techniques preofessionnelles et de bureau d’Hydro-Québec, section locale 2000, (2008) SCC 43 for the Supreme Court of Canada’s recent comments on what the third part of this test means, in a practical sense, in the context of a disability accommodation in the workplace.
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),  3 S.C.R. 868 at para. 20.
Meiorin, supra, note 177 at para. 66.
Meiorin, ibid, at para. 65.
 Ontario Building Code Act, 1992, S.O. 1992, c. 23. See also O.Reg. 350/06 under the Building Code Act.
 See, for example, Quesnel v. London Educational Health Centre (1995), supra, note 18.
 Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11.
Di Marco v. Fabcic (2003), supra, note 63.
 See Di Marco v. Fabcic (2003), ibid.
J.R. v. S.W.M.I, (August 22, 1994), No. 642 (Ont. Bd. Inq.) [unreported].
 See, for example, Walmer Developments v. Wolch (2003), supra, note 191; Ottawa Housing Corporation and Mongeon,  O.R.H.T.D. No. 36 (Ontario Rental Housing Tribunal); and, Longo Properties Limited v. Patricia Clarke,  TSL-35686-SA (Ontario Rental Housing Tribunal). The Supreme Court of Canada has made it clear that administrative decision-makers are required to consider and apply the Code: see Tranchemontagne v. Ontario (Dir. Disability Support Program)  1 S.C.R. 513.
 See United Nations, General Comment 7: The Right to Adequate Housing: Forced Evictions, available on-line at: www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+Comment+7.En?OpenDocument (date accessed: May 13, 2009).
 See Walmer Developments v. Wolch (2003), supra, note 191.
 As this Policy has noted, it is the OHRC’s view that governments have a primary role to play in ensuring that appropriate alternative housing is available to meet the needs of individuals who require more support than the average rental housing provider can reasonably provide.
 While Section 5.4. of Ontario Building Code Regulation 350/06 addresses air leakage between building components separating interior from exterior space and environmentally dissimilar interior spaces giving consideration to the health or safety of building users, it does not appear to address air leakage between apartment units.
 The Heart and Stroke Foundation of B.C. & Yukon, for example, commissioned a legal opinion to determine the legality, process and challenges for creating smoke-free multi-unit dwellings in compliance with the British Columbia Residential Tenancy Act. See: smokefreehousingbc.ca/tenants/legal-opinion.html.
 Heavily addicted smokers have been found to have a disability by an arbitrator in the labour relations context: see Cominco Ltd. v. United Steelworkers of America, Local 9705,  B.C.C.A.A.A. No. 62, where a company policy, that affected workers addicted to nicotine by subjecting them to symptoms of withdrawal, was found to constitute discrimination based on disability. However, addiction to nicotine was found not to be a disability within the meaning of the Charter of Rights and Freedoms in a case challenging a smoking ban at a detention centre: see McNeill v. Ontario Ministry of the Solicitor General and Correctional Services,  O.J. No. 2288 (Ont. Ct. Gen. Div.). More recently, in Club Pro Adult Entertainment Inc. v. Ontario,  O.J. No. 5027 (S.C.J), the court acknowledged the possibility that it might reach the conclusion that smoking is a disability within the meaning of the Charter if the court had before it the type of evidence that was before the arbitrator in Cominco. The Court of Appeal did not comment on this observation; see Club Pro Adult Entertainment Inc. v. Ontario,  O.J. No. 777 (C.A.). In a recent interim decision, the British Columbia Human Rights Tribunal agreed to hear a case alleging discrimination against a smoker based on disability: Stevenson v. City of Kelowna, B.C., (2009), 2009 B.C.H.R.T. 50.
 The broad and purposive interpretation of the Code and human rights generally means that rights must be construed liberally and defences to those rights should be construed narrowly. There are a number of cases that confirm this approach to the interpretation of human rights statutes. The Supreme Court has summarized these cases and outlined the relevant principles of human rights interpretation: see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27. Moreover, as per section 47(2), the Code has primacy over other legislation.
 Note that both phasing in and establishing a reserve fund are to be considered only after the accommodation provider has shown that the most appropriate accommodation could not be accomplished immediately.
 This is consistent with the OHRC’s approach in the employment context, where an employer or other entity cannot refuse to accommodate an employee with Code-related needs because the accommodation would exhaust the funds that the employer had earmarked for Code-related accommodations.
 Risk is evaluated after all accommodations have been made to reduce it.

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Misconduct by Prosecutors is sometimes intentional…sometimes not. But whether it’s intentional or not doesn’t matter. Because Jurors get what they get at trials, so it’s important to have both the evidence and the arguments be within the law.
I’m using this page as a way to track Court decisions about what is Prosecutorial Misconduct per California state law.
As new cases come down, I’ll group them under the headings below. I’m going through a lot of cases and this will take some time to go through older cases to list the other main topics.
To make this like my other posts, I write this page like I write legal motions: I’ll state a rule of law and give the citation.
To be able to appeal on grounds of prosecutorial misconduct, Defendant must first object timely, then ask the Court to admonish the Jury: “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety.” People v. Ayala (2000) 23 Cal.4th 225, 284.
But what if the Judge overrules your objection? “[T]he absence of a request for a curative admonition does not forfeit the issue for appeal if `the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.'” People v. Hill (1998) 17 Cal.4th 800, 820.
Also, even if the claim is forfeited the Court can still use its discretion to address the issue. “[A]n appellate court may review a forfeited claim—and `[w]hether or not it should do so is entrusted to its discretion.'” In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.
What is Prosecutorial Misconduct, per California Law?
Prosecutorial Misconduct under state law involves “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”‘ People v. Cunningham (2001) 25 Cal.4th 926, 1000. “[T]he question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'” Cunningham at 1001.
This Misconduct can be intentional or unintentional: “Despite the usual formulation of the state-law standard in terms of deceptive or reprehensible methods, the prosecutor’s behavior need not be in bad faith in order to constitute reversible error; the impact on the defendant can be just as prejudicial if the conduct is inadvertent. People v. Bolton (1979) 23 Cal.3d 208, 213-214. For this reason, Courts say maybe Prosecutorial Misconduct should actually be called Prosecutorial Error. See People v. Hill (1998) 17 Cal.4th 800, 823, fn. 3.
What makes the Prosecutorial Misconduct reversible error?
“Under the federal Constitution, to be reversible, a prosecutor’s improper comments must `so infect the trial with unfairness as to make the resulting conviction a denial of due process.” People v. Rodriguez, decided 8/28/18 (internal citations omitted).
This is where I’ll keep the cases decisions of what is or is not either unlawful error or misconduct by the People.
It is unlawful to vouch for a witness. Vouching can occur in various forms.
“An argument constitutes vouching if it bolsters a witness’s credibility by relying on matter outside the record, matter the jury might improperly accept based solely on the prestige and authority of the prosecutor’s office.” See People v. Rodriguez below (note this was first unpublished, but then published…see more below).
Vouching is unlawful because “such statements `tend to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, “although worthless as a matter of law, can be `dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.’ ‘Statements of supposed facts not in evidence . . . are a highly prejudicial form of misconduct, and a frequent basis for reversal.'” Again, citing People v. Rodriguez, cited below.

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