Ward v. Swan, 2009 CanLII 22551 (ON S.C.)
The court gave directions on children's hearsay offered to prove: the truth of thier contents; the chidlren's state of mind; the former via the evidence of the children's lawyer; the latter via the evidence of the childfen's lawyer.
The court contrasts the idea of hearsay exception and the "principled approach" to hearsay, the latter after the court accepts satisfaction of necessity and reliability (R v. Khan, [1990] 2 S.C.R. 531.
State of mind is an exception to hearsay because the statments are no offered as truth of their contents but as evidence of the utterer's state of mind, which is tosay, circumstantial evidence from which the state of mind may be inferred. The exception is not to be a back door for proving truth of contents. This applies to to the child's statements offered by a fact witness and an expert witness including as assessor or a social worker.
On the principled approach, the first hurdle is necessity: that the child cannot testify. Then the statements nust be shown to be reliable. The underlying premise is that the rules of evidene must be applied to family law cases.
The best vehicle for determining these standards is a voir dire.
Necessity can be met when the court is loathe to have the child testify and being traumatized by doing so.
For reliability the onus during the voir dire is on the adducer. The onus requires showing that enough trust can be put in the statements given how they came about or that the fact finder can assess their worth. These are not mutually exclusive. Factors the court takes into account in its approach to these issues include: the surroubding circumstances, timing between the statement and what it describes, method and timing of any recording of the statement, absence of manipulation or suggestion, is the statment responsive to a leading question, is the witness impartial, the witnesses's demeanour, any motive on anyone;s part to fabricate, the child's age, its cognitive abilities, and the content and context of the statement.
Friday, August 7, 2009
Wednesday, August 5, 2009
Polygamy
Polygamy
293. (1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy,
or
(ii) any kind of conjugal union with more than one person at the same time,whether or not it is by law recognized as a binding form of marriage,
or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Evidence in case of polygamy
(2) Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.R.S., c. C-34, s. 257.
293. (1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy,
or
(ii) any kind of conjugal union with more than one person at the same time,whether or not it is by law recognized as a binding form of marriage,
or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Evidence in case of polygamy
(2) Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.R.S., c. C-34, s. 257.
Monday, August 3, 2009
What the Human Rights code of Ontario Empowers
Text of an email to a lawyer I was speaking to concerning Ontario Disability Support Program v. Tranchemontagne, 2009 CanLII 18295 (ON S.C.D.C.)
Live and learn.
You're right.
It seems that under the Human Rights Code tribunals are empowered to effectively override legislation that contravenes the guarantees of the Human Rights Code.
And there does not seem to be the kind of a saving provision that S. 1 of the Charter provides. ___________________________________________________________
Human Rights Code
PART V
GENERAL
Act binds Crown
47. (1) This Act binds the Crown and every agency of the Crown. R.S.O. 1990, c. H.19, s. 47 (1).
Act has primacy over other Acts
(2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act. R.S.O. 1990, c. H.19, s. 47 (2).
____________________________________________________
impugned Disability legislation
Eligibility for income support
5. (2) A person is not eligible for income support if,
(a) the person is dependent on or addicted to alcohol, a drug or some other chemically active substance;
(b) the alcohol, drug or other substance has not been authorized by prescription as provided for in the regulations;
__________________________________________________________
Portions of the case
[2] At issue is whether the Social Benefits Tribunal (“the Tribunal”) erred when it concluded that an alcoholic who is disabled exclusively by his or her substance dependence, is entitled to income support under the Ontario Disability Support Program (“ODSP”) instead of under the Ontario Works program (“OW”). The crux of this appeal is whether the Tribunal undertook the correct legal analysis, and arrived at the correct conclusion, in finding that the respondents’ exclusion from eligibility for benefits under the ODSPA was discriminatory contrary to s. 1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”).
History of the Proceedings
[16] At the first Tribunal hearings in 2001, both respondents alleged that s. 5(2) of the ODSPA discriminated against them on the basis of their disability, and was therefore contrary to s. 1 of the Code which reads as follows:
1. Every person has the right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
As a result of the Code’s paramountcy over all other provincial legislation, argued the respondents, the Tribunal was bound to consider whether a particular provision of the ODSPA was in violation of the Code. If found to be discriminatory, s. 5(2) could not be applied to the respondents.
[17] The Tribunal dismissed both appeals. It concluded that it had no jurisdiction to apply the Code to other legislation because to do so would contravene s. 67(2) of the OWA which prohibits the Tribunal from inquiring into or making a decision concerning the constitutional validity or legislative authority of a provision of any provincial Act or regulation. The Tribunal found that although it was within its powers to apply the ODSPA, any alleged legislative violation of the Code was to be adjudicated elsewhere.
19] After seeking and obtaining leave, the respondents appealed the Divisional Court’s decision to the Court of Appeal for Ontario. That court concluded that although it was within the Tribunal’s jurisdiction to determine whether s. 5(2) violated the Code, it should have declined to exercise that jurisdiction, instead deferring to the Ontario Human Rights Commission which, in the circumstances, was a more appropriate forum: Tranchemontagne v. Ontario (Director, Disability Support Program) 2004 CanLII 41165 (ON C.A.), (2004), 72 O.R. (3d) 457.
[20] The respondents appealed to the Supreme Court of Canada. The Supreme Court found that it was presumed to be within the Tribunal’s authority to consider statutes beyond its enabling statute. Accordingly, as a statutory tribunal empowered to decide questions of law, it could apply all law, including the Code, to determine whether or not the respondents were eligible for income support. Although this presumption could be rebutted by a legislative provision authorizing the Tribunal to decline jurisdiction where the Code was in issue, the legislature had not done so. There was, therefore, no basis in law for the Tribunal’s refusal to consider the ODSPA’s validity under the Code. The Supreme Court remitted the respondents’ case to the Tribunal for it to determine whether or not s. 5(2) violates s. 1 of the Code: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII), [2006] 1 S.C.R. 513.
[23] The second issue before the Tribunal was whether the respondents’ rights under s. 1 of the Code had been infringed by the Director’s decision that they were ineligible for ODSP support pursuant to s. 5(2) of the ODSPA simply because they were members of the sole impairment group. It is the Tribunal’s decision regarding this second issue that is appealed to this court and will be discussed in more detail below.
[24] The Tribunal concluded that the respondents were persons with a disability and were entitled to income support under the ODSPA irrespective of s. 5(2). It decided that this section of the ODSPA was discriminatory and inconsistent with the Code.
[105] Adapted for the present human rights context, in a case such as this involving the provision of services pursuant to a government benefit program, the test might read as follows:
1. Has the complainant established a prima facie case demonstrating that the service creates a distinction based on a prohibited ground under the Human Rights Code?
2. Has the respondent established, on a balance of probabilities, that the distinction does not create a disadvantage by perpetuating prejudice or stereotyping? Alternatively, has the respondent established a statutory defence under the Code?
CONCLUSION
[125] In sum, the Tribunal correctly determined that the respondents had established a prima facie case demonstrating that the service under s. 5(2) of the ODSPA creates a distinction based on disability, a prohibited ground under the Code. The respondent did not establish to the Tribunal’s satisfaction, on a balance of probabilities, that this distinction does not create a disadvantage by perpetuating prejudice or stereotyping, nor did it establish a statutory defence under the Code.
Live and learn.
You're right.
It seems that under the Human Rights Code tribunals are empowered to effectively override legislation that contravenes the guarantees of the Human Rights Code.
And there does not seem to be the kind of a saving provision that S. 1 of the Charter provides. ___________________________________________________________
Human Rights Code
PART V
GENERAL
Act binds Crown
47. (1) This Act binds the Crown and every agency of the Crown. R.S.O. 1990, c. H.19, s. 47 (1).
Act has primacy over other Acts
(2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act. R.S.O. 1990, c. H.19, s. 47 (2).
____________________________________________________
impugned Disability legislation
Eligibility for income support
5. (2) A person is not eligible for income support if,
(a) the person is dependent on or addicted to alcohol, a drug or some other chemically active substance;
(b) the alcohol, drug or other substance has not been authorized by prescription as provided for in the regulations;
__________________________________________________________
Portions of the case
[2] At issue is whether the Social Benefits Tribunal (“the Tribunal”) erred when it concluded that an alcoholic who is disabled exclusively by his or her substance dependence, is entitled to income support under the Ontario Disability Support Program (“ODSP”) instead of under the Ontario Works program (“OW”). The crux of this appeal is whether the Tribunal undertook the correct legal analysis, and arrived at the correct conclusion, in finding that the respondents’ exclusion from eligibility for benefits under the ODSPA was discriminatory contrary to s. 1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”).
History of the Proceedings
[16] At the first Tribunal hearings in 2001, both respondents alleged that s. 5(2) of the ODSPA discriminated against them on the basis of their disability, and was therefore contrary to s. 1 of the Code which reads as follows:
1. Every person has the right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
As a result of the Code’s paramountcy over all other provincial legislation, argued the respondents, the Tribunal was bound to consider whether a particular provision of the ODSPA was in violation of the Code. If found to be discriminatory, s. 5(2) could not be applied to the respondents.
[17] The Tribunal dismissed both appeals. It concluded that it had no jurisdiction to apply the Code to other legislation because to do so would contravene s. 67(2) of the OWA which prohibits the Tribunal from inquiring into or making a decision concerning the constitutional validity or legislative authority of a provision of any provincial Act or regulation. The Tribunal found that although it was within its powers to apply the ODSPA, any alleged legislative violation of the Code was to be adjudicated elsewhere.
19] After seeking and obtaining leave, the respondents appealed the Divisional Court’s decision to the Court of Appeal for Ontario. That court concluded that although it was within the Tribunal’s jurisdiction to determine whether s. 5(2) violated the Code, it should have declined to exercise that jurisdiction, instead deferring to the Ontario Human Rights Commission which, in the circumstances, was a more appropriate forum: Tranchemontagne v. Ontario (Director, Disability Support Program) 2004 CanLII 41165 (ON C.A.), (2004), 72 O.R. (3d) 457.
[20] The respondents appealed to the Supreme Court of Canada. The Supreme Court found that it was presumed to be within the Tribunal’s authority to consider statutes beyond its enabling statute. Accordingly, as a statutory tribunal empowered to decide questions of law, it could apply all law, including the Code, to determine whether or not the respondents were eligible for income support. Although this presumption could be rebutted by a legislative provision authorizing the Tribunal to decline jurisdiction where the Code was in issue, the legislature had not done so. There was, therefore, no basis in law for the Tribunal’s refusal to consider the ODSPA’s validity under the Code. The Supreme Court remitted the respondents’ case to the Tribunal for it to determine whether or not s. 5(2) violates s. 1 of the Code: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII), [2006] 1 S.C.R. 513.
[23] The second issue before the Tribunal was whether the respondents’ rights under s. 1 of the Code had been infringed by the Director’s decision that they were ineligible for ODSP support pursuant to s. 5(2) of the ODSPA simply because they were members of the sole impairment group. It is the Tribunal’s decision regarding this second issue that is appealed to this court and will be discussed in more detail below.
[24] The Tribunal concluded that the respondents were persons with a disability and were entitled to income support under the ODSPA irrespective of s. 5(2). It decided that this section of the ODSPA was discriminatory and inconsistent with the Code.
[105] Adapted for the present human rights context, in a case such as this involving the provision of services pursuant to a government benefit program, the test might read as follows:
1. Has the complainant established a prima facie case demonstrating that the service creates a distinction based on a prohibited ground under the Human Rights Code?
2. Has the respondent established, on a balance of probabilities, that the distinction does not create a disadvantage by perpetuating prejudice or stereotyping? Alternatively, has the respondent established a statutory defence under the Code?
CONCLUSION
[125] In sum, the Tribunal correctly determined that the respondents had established a prima facie case demonstrating that the service under s. 5(2) of the ODSPA creates a distinction based on disability, a prohibited ground under the Code. The respondent did not establish to the Tribunal’s satisfaction, on a balance of probabilities, that this distinction does not create a disadvantage by perpetuating prejudice or stereotyping, nor did it establish a statutory defence under the Code.
My Blistering Correspondence with Jeffrey Toobin
Toobin:
----------
From: Jeffrey Toobin Jeffrey_Toobin@newyorker.com
Subject: no subject To: lawmani2000@yahoo.com
Date: Monday, August 3, 2009, 7:22 AM
Thanks so much for your note. I did write a book about Bush v. Gore, Too Close to Call. You may find it of interest.
Best,
Jeff Toobin
-----------------
Basman
----------
Great to hear.
I'll definitely check it out.
Sorry for the miss.
I'm feeling sheepish.
Itzik Basman
----------
From: Jeffrey Toobin Jeffrey_Toobin@newyorker.com
Subject: no subject To: lawmani2000@yahoo.com
Date: Monday, August 3, 2009, 7:22 AM
Thanks so much for your note. I did write a book about Bush v. Gore, Too Close to Call. You may find it of interest.
Best,
Jeff Toobin
-----------------
Basman
----------
Great to hear.
I'll definitely check it out.
Sorry for the miss.
I'm feeling sheepish.
Itzik Basman
Wise Words From a Friend in Answer to Someone, Not Me
“…Oh, for heaven's sake, you can no more have a democratic dictatorship than you can have a square circle. These phrases are logically incoherent. That is why so many Marxists have performed zillions of tricky semantic sleight-of-hand now-you-see-it-now-you-don't tricks in a vain effort to try to make the word "dictatorship" not mean, well, dictatorship. The whole thing should be discarded.
Nor is it the case that democracy is incompatible with capitalism (leave 'real' out of it - it's just a dishonest dodge of the logical issues at stake). It is just an historical fact that capitalists invented modern democracy. Democracy everywhere is imperfect in varying degrees, not because capitalists want it that way, but for a reason given by Kant: "Nothing straight has ever been made from the crooked timber of humanity". To think otherwise is sheer, and idiotic, utopianism.
Democracy in your utopian worker's state would be as deeply flawed in its own way as contemporary democracy is in its. As for politics, all politics in a democracy is coalition politics conducted through negotiations, compromises, and deal-making that results in nobody getting everything and nobody losing everything.
I'm a whole-hearted supporter of workers, trade unionists, co-ops, and sundry reformist/leftist NGOs entering the fray in their own interest. Society andpolitics are constantly in motion, and every reform from the left or the right affects both the rate of social change and the direction of change.
It is a tough slog, with no short-cuts, but over the long haul persistent struggle byall the components of the left will transform the world into a much better one for everybody except the tiny minority of the hideously, obscenely, rich. They will eventually vanish as a class, but of course not as persons. The gap between the most and the least well off will be hugely narrowed.
The thing is not to permit fatigue from the struggle to tempt one into utopian illusions…”.
Nor is it the case that democracy is incompatible with capitalism (leave 'real' out of it - it's just a dishonest dodge of the logical issues at stake). It is just an historical fact that capitalists invented modern democracy. Democracy everywhere is imperfect in varying degrees, not because capitalists want it that way, but for a reason given by Kant: "Nothing straight has ever been made from the crooked timber of humanity". To think otherwise is sheer, and idiotic, utopianism.
Democracy in your utopian worker's state would be as deeply flawed in its own way as contemporary democracy is in its. As for politics, all politics in a democracy is coalition politics conducted through negotiations, compromises, and deal-making that results in nobody getting everything and nobody losing everything.
I'm a whole-hearted supporter of workers, trade unionists, co-ops, and sundry reformist/leftist NGOs entering the fray in their own interest. Society andpolitics are constantly in motion, and every reform from the left or the right affects both the rate of social change and the direction of change.
It is a tough slog, with no short-cuts, but over the long haul persistent struggle byall the components of the left will transform the world into a much better one for everybody except the tiny minority of the hideously, obscenely, rich. They will eventually vanish as a class, but of course not as persons. The gap between the most and the least well off will be hugely narrowed.
The thing is not to permit fatigue from the struggle to tempt one into utopian illusions…”.
Sunday, August 2, 2009
My Letter to Jeffrey Toobin
Dear Mr. Toobin:
I just finished reading your book The Nine, which I enjoyed quite well. I missed a more in depth analysis of some of the major cases you touched on, but I understand that it was not that kind of a book.
If it's of any interest to you, here is an email I just wrote to a friend of mine--we're both lawyers in Toronto:
...Ben: We had talked about this book (The Nine by Jeffrey Toobin) and I just finished reading it. I agree with Toobin's conclusion and if you don't I guess I don't agree with you as far as SCOTUS is concerned. He says concluding:
"When it comes to the core of the court's work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases. As Richard A. Posner, the great conservative judge and law professor has written, 'It is raraely possible to say with a straight face of a Supreme Court constitutional decision that it was decided incorrectly.' Constituitonal cases, Posner wrote, "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms."
Then, perhaps, bringing some nuance and qualification to Posner's position, Toobin a little lower on the same page--394 in my copy--says, "It is, of course, possible to overstate the flexibility in the meaning of the Constitution. Honorable judges always tether their views to the words of the document, its history, and the precedents, so the justices' freedom to interpret is vast but not absolute."
I'd substitute the word "large" for "vast" and I'd restrict these comments to hard cases, typical of what SCOTUS takes and decides. But I agree with Toobin and with Posner as qualified by Toobin for hard cases.
There seems to be a marked difference in the amount of ideology that gets fed into the decisions of the Canadian Supreme Court, whose results seem much more to be compelled by the applicable law and by law more than by ideology...
One last comment: your section dealing with Bush v Gore was for me the most compelling and the most frustrating. It needs a book of its own to do it "justice", a book that can take in the sweep of the drama of events, the large and small personalities and all the legal twists and turns, maybe something like what Norman Mailer did in the second half of Executioner's Song, "Eastern Voices", the greatest "legal thriller" I have ever read.
That is a book waiting to happen and something I'd love to read.
Sincerely,
Itzik Basman
I just finished reading your book The Nine, which I enjoyed quite well. I missed a more in depth analysis of some of the major cases you touched on, but I understand that it was not that kind of a book.
If it's of any interest to you, here is an email I just wrote to a friend of mine--we're both lawyers in Toronto:
...Ben: We had talked about this book (The Nine by Jeffrey Toobin) and I just finished reading it. I agree with Toobin's conclusion and if you don't I guess I don't agree with you as far as SCOTUS is concerned. He says concluding:
"When it comes to the core of the court's work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases. As Richard A. Posner, the great conservative judge and law professor has written, 'It is raraely possible to say with a straight face of a Supreme Court constitutional decision that it was decided incorrectly.' Constituitonal cases, Posner wrote, "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms."
Then, perhaps, bringing some nuance and qualification to Posner's position, Toobin a little lower on the same page--394 in my copy--says, "It is, of course, possible to overstate the flexibility in the meaning of the Constitution. Honorable judges always tether their views to the words of the document, its history, and the precedents, so the justices' freedom to interpret is vast but not absolute."
I'd substitute the word "large" for "vast" and I'd restrict these comments to hard cases, typical of what SCOTUS takes and decides. But I agree with Toobin and with Posner as qualified by Toobin for hard cases.
There seems to be a marked difference in the amount of ideology that gets fed into the decisions of the Canadian Supreme Court, whose results seem much more to be compelled by the applicable law and by law more than by ideology...
One last comment: your section dealing with Bush v Gore was for me the most compelling and the most frustrating. It needs a book of its own to do it "justice", a book that can take in the sweep of the drama of events, the large and small personalities and all the legal twists and turns, maybe something like what Norman Mailer did in the second half of Executioner's Song, "Eastern Voices", the greatest "legal thriller" I have ever read.
That is a book waiting to happen and something I'd love to read.
Sincerely,
Itzik Basman
U.S. v. Canadian Supreme Courts
A note to a friend:
...Ben: We had talked about this book (The Nine by Jeffrey Toobin) and I just finished reading it. I agree with Toobin's conclusion and if you don't I guess I don't agree with you as far as SCOTUS is concerned. He says concluding:
" When it comes to the core of the court's work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases. As Richard A. Posner, the great conservative judge and law professor has written, 'It is raraely possible to say with a straight face of a Supreme Court constitutional decision that it was decided incorrectly.' Constituitonal cases, Posner wrote, "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms."
Then, perhaps, bringing some nuance and qualification to Posner's position, Toobin a little lower on the same page--394 in my copy--says, "It is, of course, possible to overstate the flexibility in the meaning of the Constitution. Honorable judges always tether their views to the words of the document, its history, and the precedents, so the justices' freedom to interpret is vast but not absolute."
I'd substitute the word "large" for "vast" and I'd restrict these comments to hard cases, typical of what SCOTUS takes and decides. But I agree with Toobin and with Posner as qualified by Toobin for hard cases.
There seems to be a marked difference in the amount of ideology that gets fed into the decisions of the Canadian Supreme Court, whose results seem to much more to be compelled by the applicable law and by law more than by ideology....
...Ben: We had talked about this book (The Nine by Jeffrey Toobin) and I just finished reading it. I agree with Toobin's conclusion and if you don't I guess I don't agree with you as far as SCOTUS is concerned. He says concluding:
" When it comes to the core of the court's work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases. As Richard A. Posner, the great conservative judge and law professor has written, 'It is raraely possible to say with a straight face of a Supreme Court constitutional decision that it was decided incorrectly.' Constituitonal cases, Posner wrote, "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms."
Then, perhaps, bringing some nuance and qualification to Posner's position, Toobin a little lower on the same page--394 in my copy--says, "It is, of course, possible to overstate the flexibility in the meaning of the Constitution. Honorable judges always tether their views to the words of the document, its history, and the precedents, so the justices' freedom to interpret is vast but not absolute."
I'd substitute the word "large" for "vast" and I'd restrict these comments to hard cases, typical of what SCOTUS takes and decides. But I agree with Toobin and with Posner as qualified by Toobin for hard cases.
There seems to be a marked difference in the amount of ideology that gets fed into the decisions of the Canadian Supreme Court, whose results seem to much more to be compelled by the applicable law and by law more than by ideology....
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