Court File and Parties

Court File No.: CR-22-61-MO Date: 20231003 Superior Court of Justice - Ontario

Re: R. v. Shawn Amos

Before: The Honourable Justice C. Boswell

Counsel: Michael Flosman for the Crown Shawn Amos in Person

Heard: Application in Writing

Ruling on Mr. Amos’ Faint Hope Application

The Application

[1] On November 13, 2009, Mr. Amos was convicted of first-degree murder in relation to the killing of Richard Boxall, who died in late February 2007. He was sentenced to life imprisonment, without eligibility for parole for a minimum of 25 years, commencing on February 25, 2007 when he was first taken into custody. His conviction appeal was dismissed by the Court of Appeal on May 22, 2012. [1]

[2] Having now served more than 15 years of his sentence, Mr. Amos is before the Court on an application for judicial review, seeking a reduction in the period of his parole ineligibility. The judicial review regime is set out in ss. 745.6 to 745.64 of the Criminal Code of Canada. This regime is perhaps better known as the “faint hope” provision. It was repealed over a decade ago by Bill S-6, which received Royal Assent on March 23, 2011 and came into force on December 2, 2011, however only prospectively. Offenders convicted of first-degree murder committed on or after the coming into force of Bill S-6 are no longer entitled to apply for a reduction in the number of years of their sentence to be served without eligibility for parole. The repeal does not impact Mr. Amos’ application. He remains eligible to apply.

The Preliminary Screening Test

[3] A faint hope application is ultimately determined by a jury. But before a jury is empanelled, the application must be screened by a judge designated by the Chief Justice of the province in which the application is commenced. On May 26, 2022, I was designated to screen Mr. Amos’ application. [2]

[4] The screening process is set out in s. 745.61 of the Criminal Code. It requires the screening judge to vet the application to ensure that it has a reasonable prospect of success. If it does not, a jury will not be empanelled to consider it. I note, by the way, that Bill S-6 not only eliminated the faint hope provision for persons convicted of first-degree murder after December 2, 2011. It also increased the threshold test applicable at the screening stage for those offenders still eligible to make a faint hope application. It imposed a requirement that they demonstrate that their application has a substantial likelihood of success. The retrospective increase in the threshold was, however, found unconstitutional by the Court of Appeal for Ontario in R. v. Liu, 2022 ONCA 460. Accordingly, the threshold test remains that of a reasonable prospect of success.

[5] In conducting the screening process – and in deciding whether the application has a reasonable prospect of success – the court is directed, by s. 745.63(1) to consider the following criteria:

(a) the character of the applicant; (b) the applicant’s conduct while serving the sentence; (c) the nature of the offence for which the applicant was convicted; (d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and (e) any other matters that the judge considers relevant in the circumstances.

[6] There are a number of obvious reasons for ensuring the application is one of genuine merit before a jury is empanelled to consider it. Those reasons include the following:

(a) First degree murder is one of the most serious crimes known to the Canadian criminal justice system. Parliament has emphasized the gravity of the offence in mandating that the court impose, upon conviction, a sentence of life imprisonment together with a 25-year period of parole ineligibility. Parliament has also acknowledged that there may be instances where a reduction in parole ineligibility is warranted – at least for convictions before December 2, 2011. Given the seriousness of the offence of first-degree murder, however, it must necessarily follow that the circumstances in which a faint hope application will succeed will be rare. Routine reductions in the parole ineligibility mandated by Parliament would, in my view, diminish public respect for the administration of justice; (b) Respect for the victims of a first-degree murder provides further support and justification for a vetting process that requires an applicant to demonstrate genuine merit. Victims’ experiences of the offence, its aftermath, the inevitable pre-trial delays and the trial process itself are undoubtedly traumatic and life-altering. A faint hope application risks re-opening old wounds and re-traumatizing victims; and, (c) The empanelment of a jury is a very significant undertaking. It is a heavy burden on the community, both in terms of financial cost and in terms of the civic duty it imposes on the many prospective jurors who must report for jury selection. Given the necessarily rare circumstances in which faint hope applications are likely to succeed, automatic empanelment of a jury, without a pre-screening process would unduly burden society.

The Evidentiary Record

[7] The screening process takes place on a written record.

[8] Having said that, Mr. Amos prosecuted his own application as a self-represented litigant. In the result, and in an effort to ensure the process was as fair as reasonably possible to Mr. Amos, I arranged a number of case conferences over the Zoom platform. The purpose of the conferences was to ensure that Mr. Amos understood the process and appreciated the criteria the court must consider, as well as to manage the filing of materials from both Mr. Amos and the Crown.

[9] Case conferences were held on June 9, 2022, July 13, 2022, November 30, 2022 and January 31, 2023.

[10] The evidentiary record, which developed and expanded over time, includes the following:

(a) Mr. Amos’ affidavit sworn May 5, 2022; (b) The Crown’s response to the application, which includes: (i) Mr. Amos’ criminal record; (ii) A Parole Eligibility Summary dated October 26, 2022, prepared by Parole Officer Shona Donovan; (iii) A Psychological Risk Assessment Report dated October 20, 2021, prepared by psychologist, Dr. Mini Mamak. Mr. Amos had been referred to Dr. Mamak by his parole officer at Warkworth Institution for an assessment in relation to his intended faint hope application; (iv) The Victim Impact Statements provided to the court at the time of Mr. Amos’ sentencing; and, (v) A transcript of the trial judge’s reasons for sentence; (c) Mr. Amos’s affidavit sworn November 23, 2022 in response to the Parole Eligibility Summary; (d) Mr. Amos’ response to the Crown’s submissions; and, (e) Some 4,900 pages of custodial records from Corrections Canada.

[11] Before I consider the relevant criteria in the context of the evidentiary record filed, I must first address a Charter application brought by Mr. Amos, mid-stream, to overturn the conviction against him.

The Charter Application

[12] During the case conferencing process, Mr. Amos signalled an intention to bring a Charter application. That application was scheduled to be heard, in person, on July 7, 2023. In support of his application, Mr. Amos filed an affidavit sworn December 12, 2022. He made oral submissions in support of the application at the hearing.

[13] The application seeks a judicial stay, or such other remedy deemed appropriate by the court. I explained to Mr. Amos at the hearing that a stay was not an available remedy given that there are no ongoing proceedings to stay. He asked that, should the court agree that his constitutional rights were infringed, the court devise an appropriate remedy. By subsequent correspondence to the court, dated July 19, 2023, Mr. Amos asked the court quash his conviction.

[14] The gist of Mr. Amos’s Charter application is that he did not get a fair trial. It is unnecessary to delve too deeply into the allegations because this is not the court in which to raise them. In brief, Mr. Amos complains that evidence came out during the trial that one of the jurors was known to a Crown witness, who was a police officer. Mr. Amos argues that the trial judge should have conducted a more thorough inquiry into this connection and discharged the juror. Moreover, he complains that the trial judge permitted a co-accused to advance a defence of duress, which painted Mr. Amos as the principal aggressor in the attack on Mr. Boxall. He submits that his right to a hearing before a fair and impartial trier of fact was undermined, as was the presumption of innocence.

[15] The Charter challenge can be quickly disposed of. What Mr. Amos is attempting to do, indirectly, is to run a second conviction appeal. He has already exhausted the appeal process.

[16] Mr. Amos’ appeal to the Court of Appeal for Ontario was heard on April 5, 2012 by a panel consisting of former Chief Justice Winkler and Justices Laskin and Watt. His argument on appeal was that the trial judge refused him an adjournment when he discharged his counsel some five or six weeks after the commencement of the trial, when only a handful of Crown witnesses remained to be called. He also complained that the trial judge then appointed as amicus curiae the same lawyer he had just discharged. He did not raise, on appeal, the issues that he raises in his application before this court. He asserts that his appeal counsel should have raised these issues but failed to do so because they were incompetent.

[17] In any event, Mr. Amos’ appeal was dismissed by a unanimous panel. He sought leave to appeal to the Supreme Court of Canada. His motion for leave was dismissed.

[18] This court does not have the jurisdiction to grant the relief sought by Mr. Amos in his Charter application. Given that he has exhausted his appeal rights, his only remaining recourse is an application for review by the Minister of Justice, pursuant to Part XXI.1 of the Criminal Code.

[19] The Charter application is dismissed.

[20] I will, accordingly, proceed to consider the criteria the court is directed to consider by s. 745.63(1) of the Criminal Code.

Review of the s. 745.63(1) Criteria

[21] In determining whether Mr. Amos has established a reasonable prospect of success, the Court is directed to consider those factors enumerated in s. 745.63(1) of the Code. I intend to review each factor but not exactly in the order enumerated in the Code. To put the application into context, I will begin with an examination of the circumstances of the offence.

The Circumstances of the Offence

[22] Piecing together exactly what happened during the commission of the offence is difficult on the record before me. Mr. Amos has given his own detailed account in his affidavit evidence filed in support of the application. I am suspicious, however, that it puts a self-serving spin on the events in question. It tends to portray his involvement as something other than what the jury obviously found it was.

[23] The following brief overview of the offence is taken from the Parole Eligibility Report.

[24] On February 23, 2007, Mr. Boxall attended at Mr. Amos’ residence seeking to purchase drugs. Mr. Amos confronted Mr. Boxall about the theft of $15 worth of Ecstasy tablets stolen from his residence earlier in the day. Mr. Boxall was confined and beaten over several hours with a variety of weapons that included a baseball bat, meat cleaver, scissors and a BBQ fork. While he was still alive, Mr. Boxall was wrapped in a carpet, put into the trunk of a car, driven outside of town and dumped into a snowbank during a blizzard. He was found later that morning by the driver of a snowplow. Though he was still alive, he died a short time later.

[25] Four co-accused were charged. One entered a guilty plea to manslaughter and received a seven-year sentence. One was convicted of manslaughter following the trial and he too received a seven-year sentence. One was acquitted. Mr. Amos was convicted of first-degree murder.

[26] During sentencing, the trial judge attributed the bludgeoning of Mr. Boxall with a baseball bat to Mr. Amos. He said Mr. Amos intentionally confined and beat Mr. Boxall with an intention to kill him. The attack persisted even after Mr. Boxall was severely injured. Mr. Amos eventually stomped on Mr. Boxall’s head when he was otherwise defenceless. Mr. Amos’ actions were described by the trial judge as “disgusting”, “vile” and “repulsive”. He was characterized as being bereft of any humanity.

[27] In closing, the trial judge said the following:

Mr. Amos, you bear watching. Actions speak. Your actions have branded you as a vicious, brutal, cowardly criminal. You are dangerous. I repeat, you bear watching. It is my intention and hope that the mandatory sentence I have imposed and the ancillary orders I have made will emphasize our society’s absolute repudiation of your vicious crime…

[28] I think it fair to say that, though I do not know all of the specifics of the case or of the jury’s findings, this was a particularly violent and despicable offence, with many seriously aggravating features. Mr. Amos’ moral blameworthiness appears to be very high.

Mr. Amos’s Character

[29] Mr. Amos is 44 years old. He was 30 years old at the time of offence. He was born and raised in Toronto. He has an older brother and sister. He remains close to his mother, grandmother, and siblings.

[30] Mr. Amos advised Dr. Mamak that he had an unremarkable childhood. He said he was raised in an intact and supportive family. At the same time, however, he said that his parents separated when he was 13 or 14 years old. And he said he experienced emotional, sexual and physical abuse as a child, though he did not provide details.

[31] Mr. Amos attended high school but withdrew in grade 10. He has completed his high school education while in custody.

[32] He told Dr. Mamak that he got in with a negative peer group at the age of 17. He became involved in a drug and criminal subculture. According to him, he left home at age 17 or 18. His mother reported, however, that he left home at 14 and has lived a nomadic lifestyle ever since.

[33] Mr. Amos has two daughters from an on-again-off-again relationship. His oldest daughter tragically passed away in early 2022 as a result of suicide. Mr. Amos believes that there may have been foul play involved.

[34] Mr. Amos denies engaging in intimate partner violence but his criminal record suggests otherwise, given that it includes convictions relating to offences of violence against his daughters’ mother. Psychological testing puts him in the high risk range for future intimate partner violence.

[35] Mr. Amos has a criminal record that spans a decade, and 21 convictions, prior to his arrest in February 2007. Those convictions include, amongst others, theft (x2), assault (x2), assault causing bodily harm (x2), aggravated assault, assaulting a police officer, possession of controlled substances for the purpose of trafficking (x2), and numerous breaches of court orders.

[36] Mr. Amos obviously does not accept the verdict of the jury and continues to protest that he was wrongfully convicted.

[37] Dr. Mamak noted that Mr. Amos was a difficult individual to interview. Apart from expressing concerns about inaccuracies in his Corrections Canada file, he was “verbose and difficult to re-direct” and “quite focused on refuting various aspects of his file and his criminal history.” I note that Mr. Amos, while always polite and courteous with the court, has left the very same impression with me.

[38] When Dr. Mamak confronted Mr. Amos about his criminal antecedents, Mr. Amos minimized his role in any of the offences he was convicted of. Similarly, when confronted about the numerous institutional charges he has been subject to while in custody, he minimized his responsibility, saying the charges are not a reflection of his actual behaviour, but of his history and due to racial profiling.

[39] Dr. Mamak’s conclusions are not particularly positive. He said Mr. Amos’ scores on the Psychopathy Checklist-Revised (2nd Ed.) align with a diagnosis of antisocial personality disorder. His score on the Level of Service Inventory-Revised suggests that he is a moderate risk to re-offend. Other offenders with a similar score demonstrate a 48.1% probability of re-offending within one year of release. Historical risk factors, including an extensive history of anti-social conduct, aggression and poor community adjustment, as well as the seriousness of the murder conviction, serve to enhance Mr. Amos’ risk of re-offending. Overall, Dr. Mamak situated Mr. Amos’ risk to re-offend, both generally and violently, as moderate. His risk to be investigated, charged and convicted of a sexual offence falls in the above average risk category.

[40] Dr. Mamak expressed the opinion that at the time of his report – November 18, 2021 – a move to a minimum-security facility (which was Mr. Amos’ hope) was premature.

[41] Mr. Amos’ plans for the future are a little murky. He has not participated in any vocational training while in custody. He advised Ms. Donovan, who prepared the Parole Eligibility Summary, that he is not interested in parole. Rather, he believes he was wrongfully convicted and has been unfairly incarcerated. What he wants is the opportunity to present his case to a judge. In the long-term, he apparently hopes to emigrate to Guyana.

Mr. Amos’s Conduct in Custody

[42] Ms. Donovan’s Parole Eligibility Summary provides a thorough overview of Mr. Amos’ custodial history. Mr. Amos responded to the Summary with a lengthy affidavit, sworn November 23, 2022.

[43] Mr. Amos has been in custody continuously since late February 2007, so just shy of 17 years. He has spent his time in custody in the following facilities:

(a) Central North Correctional Centre – February 25, 2007 to December 16, 2009.

[44] CNCC records reflect that Mr. Amos was engaged in five physical altercations with other inmates during this time. By way of punishment, he received reprimands, a loss of privileges and closed confinement.

(b) Millhaven Assessment Unit – December 16, 2009 to July 29, 2010.

[45] A Correctional Plan was formulated during Mr. Amos’ time in the assessment unit. He was assessed as a maximum-security risk, requiring a high degree of supervision and control.

[46] While in the Assessment Unit, Mr. Amos spent 25 days in segregation as a result of a suspicion that he was threatening other inmates. When that period ended, he refused to leave segregation and remained there on a voluntary basis for another 147 days, until he was transferred to Kingston Penitentiary on July 29, 2010. The Emergency Response Team was required to extricate Mr. Amos from his cell so that he could be transferred.

[47] Mr. Amos deposes that the suspicion he was threatening other inmates arose from the malicious and false allegations of a range cleaner. His stint in segregation led, he said, to depression. Nevertheless, he voluntarily remained in segregation due to safety concerns surrounding the hostility of the cleaner.

(c) Kingston Penitentiary – July 29, 2010 to February 22, 2012

[48] Mr. Amos spent roughly 17 months in maximum security at Kingston Penitentiary. As a result of being identified as the aggressor in an assault on another inmate, he spent 261 days in segregation, until he was transferred to Edmonton Institution on February 22, 2012.

[49] Mr. Amos characterized the assault as an incident of him acting in self-defence. He complains that corrections officers have regularly failed to manage risks against him.

(d) Edmonton Institution – February 22, 2012 to January 22, 2014

[50] Mr. Amos spent almost 2 years at Edmonton Institution, more than half of which was spent in segregation. He was involved in numerous disciplinary incidents.

[51] In his affidavit of November 23, 2022, Mr. Amos described a serious assault against him in the gym, which resulted in injuries that included a broken tooth. He was moved to another unit but was again involved in an assault in the gym. The assault led to criminal charges against him, which were dismissed after a trial.

(e) Donnacona Institution – January 22, 2014 to June 12, 2014

[52] Donnaconna is a maximum-security prison in Quebec. During the five months Mr. Amos spent there, he was involved in two disciplinary incidents, leading to 21 days in segregation.

(f) Regional Reception Centre (Quebec), Millhaven, Edmonton Institution – June 12, 2014 to September 25, 2014

[53] This period of Mr. Amos’ incarceration is largely unremarkable.

(g) Donnacona Institution – September 25, 2014 to November 1, 2016

[54] Mr. Amos spent a further period of almost two years at Donnacona Institution in Quebec. During this period, he faced eleven minor institutional charges and was found guilty of eight. These minor charges included being disrespectful towards staff, showering when not authorized and having unauthorized items in his cell. He spent a total of 175 days in segregation for his own safety. He says he had difficulty integrating into the general population as a result of an incompatibility with another inmate. Safety concerns led to his transfer, in November 2016, to Kent Institution in British Columbia.

(h) Kent Institution – November 17, 2016 to June 20, 2018

[55] Mr. Amos spent roughly 19 months at the Kent Institution. During that time, he was charged with seven minor institutional offences and convicted of five. He was eventually transferred to Millhaven as a result of ongoing disruptive behaviour. Notably, however, Mr. Amos completed his high school education while at Kent.

(i) Millhaven Institution – June 20, 2018 to August 27, 2020

[56] Mr. Amos’ time at Millhaven was largely unremarkable, though it is notable that Mr. Amos was elected by his fellow inmates to become the Inmate Committee Chairperson for two terms.

[57] While at Millhaven, Mr. Amos applied for a transfer to medium-security Warkworth Institution. That transfer was approved on July 21, 2020. By that time, Mr. Amos had spent more than 10 ½ years in maximum-security facilities.

(j) Warkworth Institution – August 27, 2020 to Present

[58] For the past 3 years, Mr. Amos has been incarcerated at Warkworth. He has been the subject of a number of minor institutional charges. Most were unremarkable. One, however, involved him speaking inappropriately about Mr. Boxall’s injuries. He also had a photograph of those injuries.

[59] It would appear that Mr. Amos has a somewhat checkered history while in custody. To his credit, he has been largely free of any significant institutional charges since 2016. He has also completed his secondary school education and held a number of jobs including barbering and cleaning.

[60] While in custody, Mr. Amos has taken up the study of law as a hobby. Based on the materials he assembled for this application, it is apparent he has learned a significant amount about the legal system and criminal law in particular.

The Interests of the Victims

[61] The Crown did not file updated Victim Impact Statements, but did provide the court with the Victim Impact Statements filed at the time of Mr. Amos’ sentencing. The following statements were provided:

(a) Two from Mr. Boxall’s parents; (b) One each from Mr. Boxall’s uncles, Kenneth and Larry Saunders; (c) One from Mr. Boxall’s grandmother, Margaret Saunders; and, (d) One from Mr. Boxall’s cousin, Patrick Saunders.

[62] The content of the statements filed is predictable, heart-wrenching and entirely understandable. Mr. Boxall was a loved son, grandson, nephew and cousin. He is sorely missed. He was well-educated, employed in the trades, hard-working and generous. His death was brutal, violent and senseless. The horror of it has left an indelible mark on his family.

[63] Mr. Amos’ offence left many lives in turmoil.

Application of the Statutory Criteria

The Legal Framework

[64] The basic function of the faint hope process is to re-examine the minimum period of parole ineligibility in the light of new information or factors which could not have been known at the time the sentence was imposed. See R. v. Swietlinski, [1994] 3 S.C.R. 481, at para. 14.

[65] In R. v. Morrisson, 2016 ONSC 5036, Durno J. summarized the approach the court should take at the screening stage as follows:

(a) All of the statutory criteria should be considered in a fact-specific and contextual way; (b) The court will engage in a limited weighing exercise with the aim of forecasting the likely outcome should a jury be empanelled. This necessarily requires the court to consider whether it is likely that a 12-member jury will unanimously agree that Mr. Amos’ circumstances justify a reduction in the normal period of parole ineligibility; and, (c) Because the applicant is no longer presumed to be innocent, he must provide all the available evidence that would support his application. He bears the onus to establish that there is a reasonable prospect a jury will unanimously support his application.

Discussion

[66] Mr. Amos’ application fails to meet the screening threshold. There is a simple reason why. He has fundamentally misunderstood the purpose of the application and he has failed to adduce an evidentiary record capable of persuading the court that his application has a reasonable prospect of success.

[67] Mr. Amos has clearly not accepted the jury’s verdict. He repeatedly interrupted the trial judge at the time that his sentence was being imposed to protest his innocence and the wrongfulness of the conviction. His Charter application before this court sought to relitigate perceived irregularities in the way the trial was conducted. And the affidavit material he filed in support of this faint hope application is largely a rehashing of the evidence and an argument about how the jury got it wrong.

[68] Despite my early indication to Mr. Amos that he had not addressed the statutory criteria, he continued to fail to do so, even though he was provided with every opportunity to do so.

[69] I cannot help but get the impression from Mr. Amos’ materials, that what he really wants to do is relitigate the merits of his conviction before a second jury. That is not the purpose of a proceeding under s. 745.6 of the Criminal Code.

[70] Mr. Amos committed a horrible act of senseless violence, resulting in the death of an innocent, young man who had a loving and supportive family and a positive future. He continues to downplay his involvement in the offence, notwithstanding the jury’s findings. He demonstrates no insight into his offending and to the extent that he demonstrates remorse, it is an indirect sort of remorse – he is sad that Mr. Boxall died as a result of the acts of others.

[71] The maintenance of one’s innocence is not a bar to a faint hope application, but Mr. Amos’ focus on re-interpreting history strongly tends to turn attention away from the factors that really matter on an application of this nature. The inquiry is about whether there have been changes in Mr. Amos’ circumstances that might justify a less harsh penalty. The jury will want to examine what positive changes have happened in Mr. Amos’ life that warrant a re-examination of the length of parole ineligibility connected to his sentence.

[72] Should a jury be empanelled and a hearing convened, Mr. Amos will inevitably be cross-examined. There is an immense amount of fodder available to the Crown for such cross-examination. For instance:

(a) Mr. Amos takes no meaningful responsibility for Mr. Boxall’s death or his part in it; (b) Mr. Amos has a history of violence and disruptive conduct while in custody. He has spent extensive periods of time in segregation. He has been moved from institution to institution as a result of concerns surrounding his disruptive behaviour and safety; (c) Mr. Amos has been assessed as recently as November 2021 and found to have traits consistent with an antisocial personality disorder. He was found to have an extensive history of anti-social conduct, aggression, and poor community adjustment. Just six months before he launched his s. 745.6 application, he was deemed not suitable for a move to a minimum-security institution; and, (d) While, to his credit, he has obtained his secondary school diploma, he has not otherwise participated in any vocational training, nor does he have any particular plan in mind to reintegrate himself into society should he be released.

[73] I am confident that by the end of the cross-examination, a generally poor image of Mr. Amos will be left with the jury. He has filed no material on this application that suggests to me that he is at all likely to come across to the jury as a person who has made the type of transformative changes in his life that are generally necessary to persuade a trier of fact that he is worthy of a reduction in the period of parole ineligibility that Parliament has demanded of those convicted of first-degree murder.

[74] In all of the circumstances, I am unable to say that there is a reasonable prospect that 12 jurors will unanimously agree that Mr. Amos’ period of parole ineligibility should be truncated. Indeed, I would be surprised if he was able to persuade a single one.

[75] In the result, the application is dismissed. Pursuant to s. 745.61, I direct that Mr. Amos may not bring another faint hope application for a period of five years from today’s date.

Boswell J. Date: October 3, 2023

Footnotes

[1] 2012 ONCA 334, leave to appeal to the Supreme Court of Canada dismissed, [2014] S.C.C.A. No. 160.

[2] To be clear, the screening process determines whether a jury will be empaneled to hear and determine Mr. Amos’s application to reduce the period of ineligibility for parole. Should he succeed here, and before a jury, he will have an opportunity to persuade the Parole Board that he should be released. In other words, the application is about eligibility, not release. See R. v. Al-Shammari, 2022 ONSC 4113, at para. 9.