Simon's Megalomaniacal Legal Resources

Criminal - Gladue (Indigenous Defendant)

. R. v. Necan

In R. v. Necan (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's appeal where the only issue was intent to murder:

The court considered whether the jury charge was inadequate wrt it's 'anti-bias' aspect, here where the appellant was indigenous:

[26] As is customary, the jury charge contained general opening instructions to the jury, touching on how they should approach their duties. One such instruction included a somewhat typical caution about guarding against being influenced by “sympathy, prejudice or fear”. The draft instruction was as follows:

You must consider the evidence and make your decision without sympathy, prejudice or fear. You must not be influenced by public opinion. We expect and are entitled to your impartial assessment of the evidence. That was the promise you made and the oath you took or affirmation you gave after you were accepted by the parties as jurors, and they have the right to expect nothing less.

[27] This instruction closely tracks the standard instruction on “Irrelevance of Prejudice and Sympathy” found in David Watt, Watt’s Manual of Criminal Jury Instructions, 2023 ed. (Toronto: Thomson Reuters, 2023), at p. 44 (Preliminary 18).

[28] Although neither party expressed concern over the content of this instruction, the defence requested more. Specifically, defence counsel asked that the trial judge add two sentences to the instruction as follows:

Nicholas Necan is a First Nations man. You must judge the evidence in this case without bias, prejudice or partiality.

[29] Although the trial Crown took no issue with the suggested addition, the trial judge expressed some concern over the first proposed sentence, that “Nicholas Necan is a First Nations man.” The trial judge asked counsel to address why that sentence should be included in the charge.

[30] Defence counsel responded that the wording had been derived from a “sort of mutation, or an amendment to the typical Parks challenge for cause type wording”, changed to be a statement rather than a question. By this, I understand counsel to mean that they borrowed the language from the standard Parks question, which focusses in on determining whether a potential juror’s “ability to judge the evidence in the case without bias, prejudice or partiality” would be affected by x: see R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), at p. 331. For instance, the question approved by this court in Parks, at p. 331, was: “[w]ould your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is a black and the deceased is a white man?” See also R. v. Campbell (1999), 1999 CanLII 2688 (ON CA), 139 C.C.C. (3d) 258 (C.A.), at paras. 2-8.

[31] Defence counsel, who acknowledged that the defence had not requested a challenge for cause at the time of jury selection, maintained that the proposed addition to the charge would cause the jurors to reflect on the issue of racial prejudice.

[32] Ultimately, the trial judge was willing to instruct the jury in accordance with the requested sentence about eschewing “bias, prejudice or partiality” in their deliberations, but said that there was no need to state what he considered to be “abundantly obvious” to all based upon the testimony at trial: that Mr. Necan was a First Nations man. Accordingly, the trial judge left the first requested sentence out of the final instruction but incorporated the second sentence. For the sake of clarity, the relevant portion of the final jury charge merits being reproduced:

You must consider the evidence and make your decision without sympathy, prejudice or fear. You must not be influenced by public opinion. You must judge the evidence in this case without bias, without prejudice and without partiality. We expect and are entitled to your impartial assessment of the evidence. That was the promise you made and the oath you took, or affirmation you gave after you were accepted by the parties as jurors, and they have the right to expect nothing less. [Emphasis added.]

....

(c) Analysis

(i) The Applicable Legal Principles from Barton and Chouhan

[40] The law pertaining to when an anti-bias instruction should be given has evolved substantially since this jury was charged in February 2018. It is important not to lose sight of the fact that when the jury was charged, Barton and Chouhan had not even been argued, let alone resolved.

[41] With that said, both Barton and Chouhan provide helpful guidance on how the administration of criminal justice can better respond to the concerning fact that bias continues to pose a risk to fair and impartial juror deliberations. The criminal justice system has long addressed concerns about bias infecting juror deliberations. However, until Barton and Chouhan, the response had been largely directed toward biases that jurors were aware of or held deliberately – what I refer to in these reasons as conscious bias. For example, the challenge for cause procedure and the standard Parks question asked during a challenge for cause have historically been targeted at identifying those jurors who would have difficulty or be unwilling to set aside conscious biases – ones they are aware of – when fulfilling their duties as jurors.

[42] In the more recent past, the law has evolved to reflect a more advanced understanding of how biases operate, including at the unconscious level. It is now recognized that even jurors without conscious biases may hold unconscious biases that can infect their deliberations: Chouhan, at para. 49, per Moldaver and Brown JJ. The fact is that even well-meaning people can unwittingly carry biases, springing from conscious and unconscious beliefs, assumptions and perceptions about the traits associated with a particular group: Chouhan, at para. 53, per Moldaver and Brown JJ.

[43] Unconscious bias is particularly insidious because, by definition, it is concealed and can be directed at anything, including race, ethnicity, sexual orientation, religion, gender, and much more. And, unlike a conscious bias, an unconscious bias allows the holder of that bias to quite unintentionally act on it and, in fact, propagate it.

[44] When it comes to jury trials, we expect jurors to act impartially, arriving at their verdict based solely upon the evidence elicited and the instructions given by the trial judge. Where a juror holds a conscious or unconscious bias, it can have the effect of undermining the impartiality that is so necessary to ensuring a fair trial.

[45] So, what can we do about it?

[46] There are several mechanisms that can be used to address concerns over partiality.

[47] For example, a fundamental tool for addressing the concern over potential partiality is through a robust challenge for cause procedure, a procedure which allows for the exclusion of those who cannot be impartial. The risk of prejudice and discrimination is properly the subject of a challenge for cause. It is for the trial judge, in a broad exercise of discretion, to determine the parameters of a challenge for cause in circumstances suggesting a realistic potential for partiality: Chouhan, at para. 62, per Moldaver and Brown JJ.; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 24; and R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 at para. 45.

[48] As for unconscious bias, there is nothing wrong, and indeed much right, with reminding prospective jurors, before the challenge is put, or even when there is no challenge for cause, that they must engage in an exercise of introspection and that being an impartial juror demands “active and conscientious work”: Chouhan, at paras. 53-55, 63. Bearing this in mind, jurors who face a challenge for cause should be encouraged to reflect on unconscious biases that they may hold, and to challenge themselves to cast those aside during their service as a juror: see Chouhan, at para. 63, per Moldaver and Brown JJ.; Find, at para. 40.

[49] As I will return to later in these reasons, the appellant did not pursue a challenge for cause in this case.

[50] Another mechanism for addressing concerns over partiality, and specifically how partiality can arise from unconscious bias, is the jury instruction. It is beyond dispute that jury instructions can act as an additional safeguard when it comes to pushing back against biases, whether racially motivated or otherwise, and whether conscious or unconscious in nature.

[51] Accordingly, both Barton and Chouhan provide guidance on jury instructions as they relate to protecting and promoting juror impartiality by combatting conscious and unconscious biases.

[52] Barton and Chouhan make clear that anti-bias instructions should be given wherever “specific biases, prejudices, and stereotypes … may reasonably be expected to arise in the particular case”: Chouhan, at para. 50; Barton, at para. 203. The need for these instructions to be directed at both conscious and unconscious biases that “may taint the integrity of jury deliberations” is clear: Chouhan, at para. 50, per Moldaver and Brown JJ. As for unconscious biases, the key is to attempt through the instruction to expose them – biases, prejudices and stereotypes – all of which may “lurk beneath the surface, thereby allowing all justice system participants to address them head-on – openly, honestly and without fear”: Chouhan, at para. 49, per Moldaver and Brown JJ., citing Barton, at para. 197. See also: Barton, at para. 201; R. v. Bhogal, 2021 ONSC 4925, 73 C.R. (7th) 351; R. v. Douse, 2022 ONSC 3228; R. v. Smith, 2021 ONSC 6173.

[53] Encouraging jurors to approach their duties with a healthy dose of introspection, and to confront and set aside prejudices, may involve both general and specific instructions. Whether either, or both, type of instruction is necessary will depend on the circumstances of the case and must be determined in consultation with the parties: Chouhan, at para. 50, per Moldaver and Brown JJ. Indeed, Moldaver and Brown JJ. in Chouhan characterized the submissions of counsel as “integral” to crafting a specific anti-bias instruction: at para. 58.

[54] Where such instructions are required, they should be delivered early in the trial before evidence has been elicited: Chouhan, at para. 53, per Moldaver and Brown JJ. While there is nothing to preclude a further instruction later in the trial or during the charge to the jury at the end of the case, it is best to get the jury doing the work of confronting any possible biases before they start hearing and considering evidence. Examples of such preliminary instructions include: “Duties of Jurors” in Watt’s Manual of Criminal Jury Instructions, at pp. 36-38 (Preliminary 15); Canadian Judicial Council, Model Jury Instructions: Preliminary Instructions (2021), online (pdf): National Judicial Institute .

[55] In summary, the combined message from Barton and Chouhan is that conscious and unconscious bias continues to exist. Where bias exists, it threatens impartiality, which in turn threatens trial fairness. Where it arises, it is up to all justice participants to keep an open mind as to how to address concerns over bias. One of the means to do so, is by way of a challenge for cause. Another important mechanism to combat bias is through carefully crafted jury instructions, ones that encourage jurors to engage in the hard work necessary to challenge themselves by engaging in a degree of self-awareness about what might lurk below the surface.

The court continues at paras 61-71 to consider these issues in light of the case facts and events.

. Cooper (Re)

In Cooper (Re) (Ont CA, 2024) the Ontario Court of Appeal allows an appeal against a refusal to order a Gladue report, here in an NCR context:

[5] The appeal focuses on the Board’s refusal to order that a Gladue Report be prepared for the next annual hearing.

[6] We agree that the Board’s failure to order the requested Gladue Report was unreasonable in the circumstances of this case. We see no basis at all for the Board’s refusal.

[7] The Board has a duty to search out, gather, and review all relevant and available evidence pertaining to the four factors, set out in s. 672.54 of the Criminal Code, that are to be considered when making a disposition – namely, public protection, the mental condition of the accused, the reintegration of the accused into society, and other needs of the accused: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 54-55. In the case of an Indigenous NCR accused, in the absence of equivalent information, it is difficult to see how the Board can properly carry out its duties without a Gladue Report. We also note that while the parties can request it, only the Board can require the preparation of a Gladue Report.

[8] It is well-established that Gladue principles apply to proceedings before the Board: R. v. Sim (2005), 2005 CanLII 37586 (ON CA), 78 O.R. (3d) 183, at para. 16; Mitchell (Re), 2023 ONCA 229, at para. 23. The Board is required to take Gladue principles into account when considering the four factors set out in s. 672.54 of the Criminal Code in the case of an Indigenous NCR accused.

[9] As this court explained in Mitchell (Re), at para. 22, in cases involving Indigenous accused persons, the Board is to engage in a “different method of analysis”, which “requires adjudicators to pay particular attention to the unique circumstances of Indigenous people detained in psychiatric facilities, and how those circumstances affect the four statutory criteria” under s. 672.54.

[10] There is no dispute that a Gladue Report is relevant here. The appellant is an Indigenous man with Indian status. His paternal grandmother was a Residential School survivor, and the September 21, 2023 Hospital Report prepared by his attending psychiatrist suggested that intergenerational trauma may exist in his family. Specifically, the Hospital Report addresses the following: the appellant’s father grew up in poverty and experienced abuse; as a child, the appellant witnessed domestic violence; there is family history of substance use and mental illness; and the appellant’s history of polysubstance use.

[11] There is also no dispute that his attending psychiatrist opined that a Gladue Report may be helpful in assisting with his treatment.

[12] Finally, there is no dispute that there was no objection to the ordering of the Gladue Report. In the circumstances of the hearing, it was the parties’ reasonable expectation that a Gladue Report would be ordered by the Board.

[13] In keeping with Board’s duty to obtain and consider all relevant information when coming to a disposition, it was up to the Board and not to the treatment team to determine if and when to order the Gladue Report. It is no answer that the appellant may not have been immediately available to participate in the preparation of the Gladue Report. This indicates a misapprehension of the scope of a Gladue Report that goes well beyond an interview with the appellant, and a misunderstanding of how long it typically takes for a Gladue Report to be prepared – often several months. Moreover, given the breadth of a Gladue Report’s contents, these reports provide a wealth of valuable information for the Board regardless of an Indigenous NCR accused person’s ability to participate.

[14] It was therefore unnecessary and plainly unreasonable for the Board to delay the commencement of the preparation of the Gladue Report. As noted above, the appellant’s attending psychiatrist indicated that the appellant would benefit from a couple of months for his condition to stabilize before being interviewed. There was no need to wait for a year to order a Gladue Report. Even if the appellant were never in a stable enough position to participate in a meaningful way, the Gladue Report would provide important information necessary for the Board’s execution of its duties, including the availability of and access to Indigenous-specific programming not available in the Hospital.

[15] We understand from the inquiries made of the office that would prepare the Gladue Report that once the order and file assignment are made, the turn-around time for the preparation of a Report is about eight weeks. The office is hopeful a Report could be prepared in this case by the time of the appellant’s next review on October 22, 2024. The appellant consents to the writers of the Gladue Report speaking with whomever they need in order to prepare the Report. Counsel for the Hospital indicates that the Hospital is ready, willing, and able to facilitate the preparation of the Report in time for the October 22, 2024 hearing.

[16] For these reasons, we order that a Gladue Report be prepared prior to the appellant’s next hearing before the Board scheduled for October 22, 2024. The appellant’s disposition shall therefore be amended to require that a Gladue Report be prepared prior to the appellant’s next hearing before the Board scheduled for October 22, 2024. Except upon the appellant’s request, the appellant’s October 22, 2024 disposition shall not be delayed or adjourned in the event that the Gladue Report is not completed by that date.

. R. v. Normand

In R. v. Normand (Ont CA, 2024) the Ontario Court of Appeal considered a Gladue Report:

[6] The sentencing judge did not specifically refer to ss. 718.2(d) or (e) of the Criminal Code, R.S.C. 1985, c C-46, which requires that less restrictive sanctions be considered short of prison, particularly if the offender is Aboriginal. Her reasons nevertheless show that she both considered and applied the principle of restraint. She referred to it explicitly. She identified the appellant’s limited criminal record and lack of previous convictions for firearm-related offences as mitigating factors. She turned her mind to the Gladue report and reviewed it. She acknowledged that the appellant’s past trauma and alcoholism had contributed to bringing him before the court.

. R. v. Bourdon

In R. v. Bourdon (Ont CA, 2023) the Court of Appeal considered the sentencing of indigenous offenders:

C. SENTENCE APPEAL

[25] When sentencing an Indigenous offender, a judge must consider the unique systemic or background factors that may have played a part in bringing that particular Indigenous offender before the court, and the types of sentencing procedures and sanctions that may be appropriate in the circumstances. The judge must then go on to consider whether the systemic and background factors have impacted the offender’s life experience in a way that diminishes their moral culpability: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 66; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 73. These considerations are relevant even when the dangerous offender scheme is engaged: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 63, but are subordinate to the protection of the public, which is the paramount objective when sentencing a dangerous offender: Boutiler, at para. 56; R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 51, 63.

[26] While a sentencing judge would fall into error if, as a precondition to considering and applying Gladue principles, they required a causal link between an offender’s Indigeneity and offending behaviour, that is not what the trial judge did here. He took judicial notice of the systemic and background factors affecting Indigenous people, conducted a thorough Gladue analysis, and in the end found that the appellant’s circumstances had not been lifted from the “general to the specific”, which was clearly his way of saying that the systemic and background factors were not “tied” to the appellant and the offences: Ipeelee, at para. 83; R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 90, at para. 115; and R. v. F.H.L, 2018 ONCA 83, 360 C.C.C. (3d) 189, at paras. 38-39, 41. It is not enough, as the appellant did, to simply point to the systemic and background factors affecting Indigenous people in Canada or to make a bare assertion of Indigenous status. As the Supreme Court directed in Ipeelee, at para. 73, the systemic and background factors must “shed light on [the offender’s] level of moral blameworthiness”, which the trial judge reasonably found did not in the appellant’s case.

. R. v. Mandino

In R. v. Mandino (Ont CA, 2023) the Court of Appeal addressed a Gladue issue:

[2] The appellant argues that the trial judge erred by incorrectly applying Gladue principles, largely because the trial judge is said to have failed in her duty to fill in evidentiary gaps in the record: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 84.

[3] Aboriginal Legal Services said it was unable to assist the appellant with a Gladue report given that it could not confirm the appellant’s Indigenous descent. Upon returning to court six months after the guilty pleas were entered, the trial judge noted that the sentencing should proceed. She accepted the appellant’s Indigenous heritage and that it had impacted his moral culpability. However, she found that his Indigenous heritage was of no assistance in considering the possibilities for rehabilitation.

[4] The appellant contends that the trial judge should have done more to fill in the evidentiary gaps in relation to what might be available for rehabilitation. To do so would have required another adjournment.

[5] In the circumstances of this case, we disagree that this was required.

[6] The trial judge was under no obligation to adjourn. She specifically requested the assistance of defence counsel and received that assistance. Defence counsel put significant relevant information about the appellant’s Indigenous background before the court. As well, the trial judge specifically inquired about the availability of a rehabilitation program that the appellant could access. In response, defence counsel noted that there was an addiction program that the appellant had been pre-screened for, but that he did not wish to make this part of his sentence.

[7] We see no error in the trial judge’s approach in the circumstances of this case. In our view, the trial judge complied with her duties under Gladue.

. Summers (Re)

In Summers (Re) (Ont CA, 2023) the Court of Appeal considered NCR in an indigenous context:

[12] As noted by the majority in its reasons, the application of Gladue principles to ORB dispositions requires a consideration of “the unique circumstances and background of aboriginal NCR accused”: R. v. Sim, 2005 CanLII 37586 (ON CA), 78 O.R. (3d) 183, at para. 19; see also Mitchell (Re), 2023 ONCA 229, at paras. 22-23.

. Gibbon v. Justice of the Peace Review Council

In Gibbon v. Justice of the Peace Review Council (Div Court, 2023) the Divisional Court considered (and dismissed) a JR against the decision and disposition of the 'Justice of the Peace Review Council' of a complaint about a justice of the peace's (JP) misconduct when her son was charged with an HTA offence. The JP was removed from office.

The applicant was indigenous and raised Gladue doctrine, which sets out a methodology for criminal sentencing of indigenous offenders - an application which was accepted by the tribunal although this was in an administrative/professional-discipline context. At paras 37-69 the court considers Gladue and the found misconduct in relation to the issues of: the role of indigenity in causation of the misconduct (1), non-participation in a healing circle (2), rehabilitation and the importance of having indigenous participation in the judicial system (3), remorse and it's absence (4-5), and credibility and judicial integrity (6):

(c) The Proceedings Below

[30] On January 13, 2020, the Respondent received a complaint about the Applicant’s misconduct, as described above. As set out in the Amended Notice of Hearing (upon which the decisions below were based), the Applicant was alleged to have engaged in a pattern of conduct towards the prosecutor who had carriage of her son’s case, towards her judicial colleagues, and towards court staff, that constituted or gave the appearance of a failure to act with independence, impartiality and integrity in respect to court proceedings involving her son. It was further alleged that the pattern of inappropriate conduct undermined independence, impartiality and integrity of the Applicant’s judicial office.

[31] The hearing into these allegations took place over seven days on June 14-16, 18, July 4-5 and November 12, 2021. In the unanimous Merits Decision, dated February 7, 2021, the Review Council panel found that the Applicant had engaged in a pattern of conduct that, taken all together, constituted judicial misconduct. The Review Council panel heard submissions as to disposition on April 6, 2022 and May 24, 2022 and rendered their Disposition Decision on August 25, 2022. Subsequently, the Review Council made a recommendation for payment towards legal fees of the Applicant in connection with the proceedings before the Review Council.[4]

The Disposition Decision

(a) The Majority Decision

[32] The majority of the panel found that a recommendation that the Applicant be removed from office was necessary to restore public confidence in the administration of justice. (Disposition Decision, para. 121)

. R. v. R.S.

In R. v. R.S. (Ont CA, 2023) the Court of Appeal considers the leading indigenous case of Gladue, here in a sentencing appeal context:

[34] Gladue prescribes a method that must be followed when determining a fit sentence for Indigenous offenders, regardless of the seriousness of a particular offence: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 59, 84-86. But as the sentencing judge noted, Gladue does not establish a “race-based discount”: see also Ipeelee, at para. 75. The overarching purpose remains achieving a proportionate sentence for Indigenous offenders.

. Mitchell (Re)

In Mitchell (Re) (Ont CA, 2023) the Court of Appeal considered the Ontario Review Board's Gladue (indigenous defendant) treatment:

(2) The Board’s consideration of Gladue principles was inadequate

[18] Although we conclude that the Board’s decision to detain the appellant in a maximum security setting is reasonable, we note that the Board’s consideration of the Gladue Report, and Gladue principles generally, was inadequate.

[19] The Board referred to the Gladue Report several times in its reasons and acknowledged that the appellant “had an unfortunate childhood”. The Board wrote that it had reviewed “attempts by the hospital social worker to facilitate support for [the appellant] from local native services that had been to no avail since [the appellant] had declined involvement in this regard”; and later that “[the appellant] was primarily raised by his mother, who is not Indigenous, and had very little contact with his father.”

[20] The Board’s reasons do not engage with enough detail on this point to discern what relevance the appellant’s indigeneity, family history (including residential schools), and the appellant’s difficult upbringing, had for the Board. Further, while it is not clear why the Board thought it noteworthy that the appellant’s mother is not Indigenous and that he has had little contact with his father, if it was to attenuate the need to consider Gladue principles, the Board would have fell into error: see R. v. Kehoe, 2023 BCCA 2, at paras. 52-57. Gladue principles seek to address precisely the kind of disconnection and related lack of positive social structures found in this case.

[21] As in sentencing, taking into consideration Gladue principles does not mandate a different result or favoured treatment for Indigenous people. What is required is a “different method of analysis”, which guards against the discrimination that “as experience demonstrates, will occur where decision-makers fail to advert to the specific and particular problems faced by [Indigenous] Canadians in our system of justice”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59; United States of America v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496, at para. 63; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at paras. 58-59.

[22] In the context of the Board’s process, this different method of analysis requires adjudicators to pay particular attention to the unique circumstances of Indigenous people detained in psychiatric facilities, and how those circumstances affect the four statutory criteria to be considered by the Board under the Criminal Code, R.S.C., 1985, c. C-46.

[23] Pursuant to s. 672.54 the Board is to consider the following four criteria when making a disposition: i) the need to protect the public from dangerous persons, ii) the mental condition of the accused, iii) the reintegration of the accused into society, and iv) the other needs of the accused. In Sim (Re) (2005), 2005 CanLII 37586 (ON CA), 78 O.R. (3d) 183, at para. 16, this court confirmed that Gladue principles apply to proceedings before the ORB, though the court raised some question with respect to the application of Gladue principles to the first and second criteria (i.e., public protection and mental condition of accused). In Faichney (Re), 2022 ONCA 300, at para. 24, Paciocco J.A. clarified that Sim, when read in context, did not suggest that Gladue principles are irrelevant to the first and second statutory criteria. Rather, while Gladue principles may “more commonly inform statutory factors three and four” (reintegration into society and other needs of the accused), they may be relevant to all four factors and the Board should rely on as full a record as possible.

[24] All of that said, this court’s task is to consider whether the Board’s disposition was reasonable. While improper or inadequate consideration of Gladue may result in an unreasonable decision, we are satisfied that the Board’s disposition here remained reasonable.