Austrian man kills 5 family members to spare them shame of his financial ruin

“It’s been a bad few weeks for Austrian family values…”

 

Austrian police discovered the bodies of five people Wednesday after a man turned up at a Vienna police station saying he killed his family to spare them the shame of his financial ruin.

 

Police say they found the bodies of the man's wife and seven-year-old daughter in his home in an affluent part of the Austrian capital.

 

Both had been killed with an axe.

 

Authorities also discovered the bodies of his parents and father-in-law in Upper Austria province, in the cities of Ansfelden and Linz.

 

The man, identified only as a 39-year-old public relations consultant, told police he killed his 42-year-old wife and daughter early Tuesday morning.

 

He then drove to Ansfelden where he beat his parents - ages 72 and 69 - to death, and then to Linz, where he killed his 80-year-old father-in-law.

 

Criminal investigator Thomas Stecher said the man explained that he wanted to spare his family the shame of financial ruin he caused through speculative financial dealings.

 

"He is completely matter of fact ... without emotion," Stecher said.

 

Police said they were awaiting autopsy results to determine exactly how the victims died.

 

The man could face a life sentence if convicted, said Gerhard Jarosch, spokesman for the Vienna public prosecutor's office.

 

A Lawyer Who Represents Himself ... The Perils Of Self Representation

Self represented parties are more and more common in Court. This puts a strain on counsel, court staff and, of course, judges.

The last week’s decision in the Alberta Court of Appeal in Achtem v. Achtem, 2008 ABCA 155 is useful as a statement of the principle that self-represented parties have to follow the same rules as everyone else. Specifically, if a party does not present their case well because they are self-represented that is not a basis for a court to intervene.

[1] Mr. Achtem appeals a matrimonial property order. He submits he was prevented from adducing material evidence, and that he was taken by surprise by evidence produced at the trial, with the result he was denied the proper opportunity to prepare and meet the case against him. Moreover, Mr. Achtem says the judgment is unreasonable and should be set aside.

…

[4] We have read the material submitted and we find no basis for appellate intervention. Both parties had access to all of the pre-trial procedures available to litigants. Mr. Achtem could have subpoenaed any witnesses, such as the bank employee, who had relevant evidence to give. There was no order here prohibiting him from doing so. It is not the function of an appeal court to perfect a trial where the parties have not availed themselves of the measures available for pre-trial preparation. In addition, Mr. Achtem could not be said to be surprised by an e-mail he had sent himself. The Alberta Rules of Court, Alta. Reg. 390/1968 provide Mr. Achtem with procedures to allow him to learn about the case he has to meet. He was entitled to examinations-for-discovery and to the production of documents. Having not availed himself of the options open to him, he cannot now claim he was treated unfairly or taken by surprise.

That's one unhappy Harper

"Maybe this is why the Conservatives are stuck in the polls? jcm"

That's one unhappy Harper

Little sense Tories are enjoying their de facto majority

Don Martin, National Post Published: Wednesday, May 14, 2008

OTTAWA -An official high in a Cabinet minister's office has an interesting label for his employer: The Unhappy Government.

Put another way, confided a second Tory, if presidential hopeful Barack Obama stands for hope in U. S. politics, the Conservatives represent mope in government.

After 15 years of wilderness wandering in opposition, as the party changed names and rotated leaders before merging, there's little sense the Conservatives are enjoying their de facto majority government control over an election-dodging Parliament.

Watching Prime Minister Stephen Harper take his seat in the Commons is to see a glum leader who, while cool at the best of times, seems increasingly testy at his fate.As a policy wonk one month shy of becoming leader of the second-longest minority reign in Canadian history, a longevity record beaten only by the country's first minority in 1921, Mr. Harper should be having the time of his political life.

Yet he puts forward grim faces to front his empty-agenda government, fills a Commons time slot reserved for acknowledgments and tributes with a daily smear against the Liberal party and crafts his travel and speaking schedules to avoid Question Period.

The Commons centre aisle, once crossed easily by MPs wandering into rival party sections to exchange pleasantries, is now the sort of barren gap that accompanied the Berlin Wall.It's no better off Parliament Hill.A weekly gathering of all-party MPs at one local watering hole has been designated a do-not-imbibe zone by a PMO nervous about cross-fraternization. Even political staffers have splintered into separate bars, the better to avoid contact with their enemies.

But of special note are the MPs designated by the Prime Minister to juggle opposition questions.If Mr. Harper wanted to project the face of a dour partisan armed with a cheap shot for every occasion, MP Peter Van Loan would be a natural candidate.If he wanted an obedient pit bull to ignore questions with scripted non-answers on election financing irregularities, Mr. Harper would summon an energetic youngster named Pierre Poilievre to the task.That's why this pair of MPs, neither of whom is actually in charge of the areas under attack, have answered about 70 questions just this month, almost equal to all the questions asked of all real Cabinet ministers combined.

Ask, as Liberal MP Bob Rae did recently, if the government had any security concerns with the Foreign Affairs Minister's former girlfriend, who had been partnered with biker gang members a decade earlier, and Mr. Van Loan denounces the Liberals for supporting Omar Khadr's return to Canada for a fair trial.Want to know about Burma relief efforts? Don't quiz the Foreign Affairs Minister. Over to Mr. Van Loan. Ask about layoffs in the auto industry and the Finance Minister stays seated while Mr. Van Loan chides the Liberal leader for his attendance record. Have a concern about the Kamloops airport? Somehow, Ontario MP Van Loan claims jurisdiction to deliver an answer.

When questions were asked about the Conservatives in-and-out election financing scheme it was 29-year-old Mr. Poilievre who retorted with Liberal financing antics in a chant so annoying, the Speaker warned Mr. Poilievre he'd be out of the Commons if he persisted.

By deflecting legitimate questions about current government behaviour with references to past Liberal misdeeds, the subtext is clear -- the Conservatives performance is just as bad as the previous Liberal government.

Of course, the Liberals are no parliamentary angels and rarely play nice with government ministers.Their lust to regain lost power has usurped the role of Official Opposition and the joys of government needling it allows.

But this Parliament is now dominated by a Prime Minister so preoccupied with winning the next election, he's overlooked the possibilities of using the considerable power he now commands.

He's put his government on idle, sidelined his ministers, silenced his political staff and rewarded backbench MPs who take the lowest shots with a high profile and a rare prime ministerial smile.

As Parliament runs out of things to do and key committees remain paralyzed by procedural antics, the only people with a legitimate right to be unhappy are the voters.

The accused is entitled to know why the trial judge is left with no reasonable doubt

Judge’s reasons, or rather the lack thereof, can be the basis for a successful appeal but only where the reasons are so bereft of content as to leave the unsuccessful party in doubt as to why they lost.

The inquiry into the sufficiency of the trial judge’s reasons should be directed at whether the reasons respond to the case’s live issues. The failure to do so deprives the losing party of the right to a meaningful appeal.

Friday’s Supreme Court of Canada decision in R. v. Dinardo, 2008 SCC 24 (CanLII) makes this point clearly:

[24] In R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, 2002 SCC 26, this Court confirmed that courts have a duty to give reasons. Reasons serve many purposes; in particular, they explain the court’s disposition of the case and facilitate appellate review of findings made at trial. The content of the duty will, of course, depend upon the exigencies of the case. As this Court has noted, “the requirement of reasons is tied to their purpose and the purpose varies with the context” (Sheppard, at para. 24).

[25] Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons (para. 55). The inquiry should not be conducted in the abstract, but should be directed at whether the reasons respond to the case’s live issues, having regard to the evidence as a whole and the submissions of counsel (R. v. D. (J.J.R.) 2006 CanLII 40088 (ON C.A.), (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 32). An appeal based on insufficient reasons will only be allowed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25.

[26] At the trial level, reasons “justify and explain the result” (Sheppard, at para. 24). Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v. Braich, 2002 SCC 27 (CanLII), [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23). As this Court noted in R. v. Gagnon, 2006 SCC 17 (CanLII), [2006] 1 S.C.R. 621, 2006 SCC 17, the accused is entitled to know “why the trial judge is left with no reasonable doubt”:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt. [paras. 20-21]

[27] Reasons “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record” (Sheppard, at para. 55). Here, the complainant’s evidence was not only confused, but contradicted as well by the accused. As I will now explain, it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant’s testimony on the issue of whether she invented the allegations. I also conclude that the trial judge’s failure to provide such an explanation prejudiced the accused’s legal right to an appeal.

[28] It is evident from a review of the record that the complainant’s testimony concerned the trial judge. After she was cross-examined on whether she knew what it meant to “make up” a story, Rancourt J.C.Q. asked several follow-up questions of his own (A.R., at pp. 182-83). In his reasons for judgment, however, he did not explain why the complainant’s conflicting testimony did not cause him to doubt her credibility. Instead, he concluded as follows:

[translation] When cross-examined by counsel for the accused, she never contradicted herself on important facts, only on certain details that the Court does not consider important enough for the contradictions to affect her credibility. [para. 70]

[29] It cannot be said that the complainant’s testimony wavered only on the trivial details of the allegations. Her testimony wavered on the central issue at trial: that is, whether Mr. Dinardo committed the acts for which he was charged, or whether the story was invented. I disagree with the majority of the Court of Appeal that [translation] “the defence evidence related to peripheral aspects of the case” (para. 32). The defence rested on the overall lack of credibility and reliability of the complainant’s testimony and, of course, on Mr. Dinardo’s own testimony denying her allegations. In this context, it was incumbent upon the trial judge to explain, even in succinct terms, how he resolved these difficulties to reach a verdict beyond a reasonable doubt.

[30] I would like to emphasize that although the trial judge’s reasons fell short of the standard required to allow for meaningful appellate review in this case, there is no general requirement that reasons be so detailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel (Braich, at para. 38). As Binnie J. stated in Sheppard:

[I]n the vast majority of criminal cases both the issues and the pathway taken by the trial judge to the result will likely be clear to all concerned. Accountability seeks basic fairness, not perfection, and does not justify an undue shift in focus from the correctness of the result to an esoteric dissection of the words used to express the reasoning process behind it. [para. 60]

[31] As I explained at the outset of the analysis, the inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues. In this case, the complainant’s truthfulness was very much a live issue — the trial judge recognized it as so during the voir dire to determine whether the complainant was competent to testify. At trial, two of the witnesses testified that the complainant could be untruthful and manipulative. While it was open to the trial judge to conclude that he was convinced beyond a reasonable doubt of the guilt of the accused, it was not open to him to do so without explaining how he reconciled the complainant’s inconsistent testimony, particularly in light of the accused’s own evidence denying her allegations.

[32] This Court emphasized in Sheppard that no error will be found where the basis for the trial judge’s conclusion is “apparent from the record, even without being articulated” (para. 55). If the trial judge’s reasons are deficient, the reviewing court must examine the evidence and determine whether the reasons for conviction are, in fact, patent on the record. This exercise is not an invitation to appellate courts to engage in a reassessment of aspects of the case not resolved by the trial judge. Where the trial judge’s reasoning is not apparent from the reasons or the record, as in the instant case, the appeal court ought not to substitute its own analysis for that of the trial judge (Sheppard, at paras. 52 and 55).

…

[The] accused is entitled to know why the trial judge is left with no reasonable doubt.

(Gagnon, at para. 21)

The only indication of the trial judge’s reasoning process is his reliance on the corroborative value of the complainant’s prior consistent statements. This, as the majority of the Court of Appeal correctly found, constituted an error of law. ...

A Hamilton Tragedy

A very ill eleven year old boy with leukemia is taken into care because his father has decided further treatment is not appropriate.

There is a right to treatment mandated by provincial legislation and when a parent blocks that right, the Children's Aid Society intervenes.

Here the boy, who has fetal alcohol syndrome (detectable in his broad face and slightly slurred speech), is unable to understand the consequences of denying treatment.

So what is the issue? If the treatment was clearly effective and the refusal to continue motivated by some moral or religious scruple there would be little doubt as to the rightness of the CAS decision.

But here the boy may well be dying and the treatment ineffective but painful.

Should the Courts intervene here? Candidly I am torn but am inclined to err on the side of life.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

A Remarkable Letter -- One China May Not Be Just A Dream

Kuomintang conveys condolence to SW China quake victims

"This letter, directed from the Kuomintang, to the Central Committee is a bright note in a great tragedy. Perhaps more than anything else it shows that Taiwan and mainland China are finally shedding the past. Thrity years ago, in the last great Chinese earthquake, direct contacts like this would have been inconceivable.

jcm"

BEIJING, May 13 (Xinhua) -- The Central Committee of Kuomintang, or Nationalist Party of China, sent a letter to the Central Committee of the Communist Party of China to express condolence for the quake-hit areas in southwest China.

The letters reads: "We heard about the devastating earthquake in Wenchuan, Sichuan Province and the loss of lives and properties. We would like to convey our concern and condolence to the disaster-hit areas. If it is needed, we would urge Taiwan to send disaster-relief staffs to those areas. We pray that people in those areas could be strong and conquer all the difficulties."

The death toll from the earthquake has climbed to 9,219, the Ministry of Civil Affairs said here Tuesday morning.

Counsel Time In Bill of Costs Not To Be Reduced Unless Clearly Unreasonable

Today's Superior Court decision in Song v. Hong, 2008 CanLII 21420 (ON S.C.) is useful for the proposition that, in reviewing a bill of costs, the Court ought to allow some margin and not reduce time spent unless it was clear unreasonable.

The Court notes:

"The Court must decide if the hours spent are reasonable. In Carpenter v. Malcolm, Mr. Justice Catzman, as he then was, held that counsel was entitled to be paid for the full amount of docketed time. He said in his reasons that counsel are entitled to discharge their obligations without expecting an arbitrary reduction.

If counsel are to discharge the functions which the Courts expect them to discharge, and on occasion fault them for not discharging, they ought to be able, in my view, to expect that their clients' party-and-party costs will be assessed in a manner that reasonably and without arbitrary diminution acknowledges the effects legitimately expended in that connection. (Carpenter v. Malcolm, [1985]O.J.No.1889(H.C.J.))

See also: Roberts. v. Morana, supra, at para 7, which cites Carpenter v. Malcom with approval.

...

[T]he function of the Court is not to assess the amount of time with hindsight, but rather to determine if any of the time claimed is so grossly excessive as to be obvious overkill. In Tri-S Investments v. Vong, Madam Justice Feldman said the following:

I do not view it to be the courts function when fixing costs to second guess successful counsel on the amount of time that should or could have been spent to achieve the same result, unless the time spent is so grossly excessive as to be overkill. (Tri-S Investments v. Vong, [1991] O.J. No. 2292 (Gen. Div)). "

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

China and Burma -- Two Very Different Responses to Disaster

The difference between China and Burma is specially striking today.

The devastation in Burma has been met with virtually no response by the governing military (actually that's not fair -- 'no response' would have been a vast improvement over what the government has done to block relief). The Burmese government seems uninterested in their people except perhaps as labor units (and even there they seem fairly careless).

China, by contrast, has dealt with today's earthquake with transparency, competence and efficiency. China's emergency response puts that of other first world nations to shame (remember New Orleans).

It wasn't so long ago that China dealt with natural disasters much as Burma is doing now. China's deadliest earthquake in modern history struck the northeastern city of Tangshan on July 28, 1976, officially killing 240,000 people (unofficial reports put that number closer to 600,000). In 1976 China denied problems, hide information and took foreign help only with great hesitation. Much as Burma is doing now (although in truth the Burmese government seems to be creatively incompetent in its management of the disaster -- China was merely being old style Soviet).

China has come a long way in thirty years. There isn't a hint of denial or hiding the scale of the disaster -- Xinhua is running live feeds of the disaster.

Canada has a large and influential Chinese community. Engagement with China is not like "engagement" with Burma or North Korea. Perhaps China will be a nation of free people under the rule of law? Certainly the government's behaviour gives rise to hope. The Liberal policy of engagement seems to be about right.

Regardless all Canadians mourn with China and Burma over their great loss.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Nesrine Malik, The Guardian, May 12, 2008

Shrill complaints may go down well in the western media but they don't help Muslim women. We need credible, reasoned argument

A recent article in the New York Times refers to the "Muslim rebel sisters", Ayaan Hirsi Ali and Irshad Manji and aims to compare and contrast their respective campaigns against their "Muslim upbringing".

The tendency to lump together Muslim females in exile who have rather unsavoury views about Islam makes the voices of moderate females difficult to hear. From a position of relative ignorance when it comes to Islam in general, the west post-9/11 has had to familiarise itself with a religion, culture and ideology which so alarmingly appear to despise all that is western.

The post-9/11 crisis also created an audience which was eager to hear about the depravity and barbarity of the Muslim world but also not keen on subtlety. A quick, convenient, stereotypical picture was needed, and the "sisters" certainly paint that. There seems to be more of a platform for the angry disenchanted Muslim female. Male exiles from the faith do not seem to attract the same sympathetic open-armed treatment as the damsel in distress who has liberated herself from the shackles.

The most prominent of the "refuseniks", Ayaan Hirsi Ali, Irshad Manji and Wafa Sultan have caused a stir for allegedly being "brave enough" to criticise Islam and nail their colours to the west's mast of values. Each, in her own way, has either deliberately or inadvertently (but inevitably), placed herself in an antithetic position to the religion and the religion's followers; realistically, focusing on a lesbian, an atheist and a secularist "who does not believe in the supernatural" - all of them earnestly seeking to bring about reform in Islam - is a self-defeating exercise.

For me, as a Muslim female, the three women all represent false dawns. Wafa Sultan's debut on al-Jazeera , where she bleated hysterically about the irredeemable retardation of the Islamic faith, made her conservative Muslim opponent seem positively temperate. What is to be gained from this comprehensive assault other than an alienation of those whom you are allegedly trying to reform?

Hirsi Ali has made a spiritual decision to reject all religion but preoccupies herself solely with the "defeat of Islam" to the exclusion of other monotheistic religions.

Irshad Manji mocks and calls the chador a "condom", while claiming to have taken the harder path of changing Islam from within.

Even the titles of their seminal works sound confrontational and antagonistic: Infidel (Ali), The Trouble with Islam Today (Manji), and Sultan's upcoming The Escaped Prisoner, When God is a Monster. If one has a genuine desire to expose Islam's ills and reform the religion, that is not only legitimate but commendable, but in marketing oneself as a Crusader speaking on behalf of the mute Muslim millions (but to a predominantly Western audience and rarely engaging positively with the Muslim community) there is more than a hint of self-promoting opportunism.
I have nothing but admiration for those who shoulder the risks involved in taking on one's family, culture and heritage irrespective of faith, but media-courting one-woman-roadshows pitting themselves against the Muslim world do little more than create western media darlings. Furthermore, the (sometimes faux) extremity of their views spoils the appetite for more nuanced, considered, opinion. So, you are a young disfranchised Muslim female but have had no epiphanic realisation that Islam is misguided and evil? You have no bite-size catalogue of atrocities, no stereotypical anecdotes of abusive overbearing men, no death threats, no fatwas?

Move on, there's nothing to see.

The "sisters" have set the mould and any address that is not predicated on a complete acceptance of western values and a rejection - nay, abhorrence - of Muslim ones is too dilute, too bland for the numbed palate.

I should have a natural synergy with these women but I am appalled at how cavalierly they have appropriated the very limited opportunity to capture attention and raise awareness; how they merely ride the zeitgeist and milk it for all it's worth. Their personal histories exhibit a disturbing ruthless tendency to twist half-truths into a media-friendly tale of woe.

Ayaan Hirsi Ali's account (the particulars of which have fallen under serious doubt) chronicles many stereotypical buzz-stories, including genital mutilation and an unhappy arranged marriage, and culminating in a fatwa on her head.

Wafa Sultan recounts a tale of witnessing an assassination with a convenient "God is Great" soundtrack (denied by others who were there at the time).

This chameleonism offends me. Their abuse of the religion and its mores is unconstructive and gratuitous, reminiscent of usage of the "n" word by black people, still offensive, unnecessary and - above all - counterproductive. Manji and Hirsi claim to be insiders but have no understanding of Arab culture and how it complements and colours Islam. They all view (or at least present) Islam and the Muslim world as one obsidian monolith of submission and ignorance.

There is a paucity of credible, reasoned argument when it comes to the discourse between Islam and the west. Therefore when voices are heard, it is a tragic waste that they are pitched at a hysterical shriek supporting an irreconcilable "clash of civilisations" paradigm. What do these enlightened, brave souls hope to achieve? What end is justifying these means? If the ultimate goal is to capture the attention of strategic partners in the Muslim world in order to bring about reform, they are estranging the very people who have standing and influence in the community. Rather a fundamental miscalculation by such intelligentsia.

What is most exasperating is that due to the intense media coverage and exposure of Hirsi et al, Arabs/Muslims have been so antagonised that other Muslim women, passionate about their cause but more moderate in their discourse, struggle to be heard without either falling under suspicion or being expected pathetically to appeal to western advocacy.

The essence of the refuseniks' campaigns is a feminist one, women's rights in Islam being the most inflammatory and least defensible of the repertoire of grievances. An ironic side-effect is that they have robbed the Muslim woman of her independence and free will, pigeonholing and victimising her as a "Caged Virgin". It is undeniable that much needs to be said about the state of women in Arab/Muslim society and this needs to be done delicately, responsibly and with sensitivity to diversity in culture, heritage and religious practice.

The vanguard of reform in Islam is a pious middle class, slightly suspicious of the west but capable of free and subtle thought. Engaging with those who can best bring about change in the Arab and Muslim world is difficult enough without western audiences desensitised to all except the most extreme of anti-Islam views, and Muslim audiences disillusioned by telegenic articulate women cynically exploiting the naivety and polarisation of a terrorised post-9/11 world.

The photo of a Mosque

Judging by the number of comments my (rather well taken) picture of a Mosque off the QEW seemed to have hit a bit of a raw nerve. My only reason for posting it was because it symbolised for me the changes in Canada over the last twenty years or so. When I was growing up in Hamilton I did know some Muslims -- but there was no material Islamic presence. That is probably because the Muslim community was fairly new, fairly scattered and generally poor. Now that community is organised and wealthy enough to have major institutions that proudly stand where all can see.

Anyway, because it was asked for I will append a picture of a Church and a Synagogue -- neither of which would be seen as remarkable in Canada in 1970.

Why did the chicken cross the road?

DR. PHIL :
The problem we have here is that this chicken won't realize that he must
first deal with the problem on 'THIS' side of the road before it goes after the
problem on the 'OTHER SIDE' of the road. What we need to do is help him
realize how stupid he's acting by not taking on his 'CURRENT' problems
before adding 'NEW' problems.

OPRAH :
Well, I understand that the chicken is having problems, which is why he
wants to cross this road so bad. So instead of having the chicken learn from his
mistakes and take falls, which is a part of life, I'm going to give this
chicken a car so that he can just drive across the road and not live his
life like the rest of the chickens.

GEORGE W. BUSH :
We don't really care why the chicken crossed the road. We just want to
know if the chicken is on our side of the road, or not. The chicken is either
against us, or for us. There is no middle ground here.

COLIN POWELL :
Now to the left of the screen, you can clearly see the satellite image of
the chicken crossing the road...

ANDERSON COOPER - CNN:
We have reason to believe there is a chicken, but we have not yet
been allowed to have access to the other side of the road.

JOHN KERRY :
Although I voted to let the chicken cross the road, I am now against it!
It was the wrong road to cross, and I was misled about the chicken's
intentions. I am not for it now, and will remain against it.

NANCY GRACE :
That chicken crossed the road because he's GUILTY! You can see it in his
eyes and the way he walks.

PAT BUCHANAN :
To steal the job of a decent, hardworking American.

MARTHA STEWART :
No one called me to warn me which way that chicken was going. I had a
standing order at the Farmer's Market to sell my eggs when the price dropped to a
certain level. No little bird gave me any insider information.

DR SEUSS :
Did the chicken cross the road? Did he cross it with a toad? Yes, the
chicken crossed the road, but why it crossed I've not been told.

ERNEST HEMINGWAY :
To die in the rain. Alone.

JERRY FALWELL :
Because the chicken was gay! Can't you people see the plain truth?' That's
why they call it the 'other side.' Yes, my friends, that chicken is gay. And
if you eat that chicken, you will become gay too. I say we boycott all
chickens until we sort out this abomination that the liberal media white washes
with seemingly harmless phrases like 'the other side'. That chicken should not
be crossing the road. It's as plain and as simple as that.

GRANDPA :
In my day we didn't ask why the chicken crossed the road. Somebody told us
the chicken crossed the road, and that was good enough.

BARBARA WALTERS :
Isn't that interesting? In a few moments, we will be listening to the
chicken tell, for the first time, the heart warming story of how it experienced a
serious case of molting, and went on to accomplish its life long dream of
crossing the road.

JOHN LENNON :
Imagine all the chickens in the world crossing roads together, in peace.

ARISTOTLE :
It is the nature of chickens to cross the road.

BILL GATES :
I have just released eChicken2007, which will not only cross roads, but
will lay eggs, file your important documents, and balance your check book.
Internet Explorer is an integral part of eChicken. This new platform is much more
stable and will never cra...#@&&^(C% <mailto:cra...#@&&^(C%25>
........ reboot.

ALBERT EINSTEIN :
Did the chicken really cross the road, or did the road move beneath the
chicken?

BILL CLINTON :
I did not cross the road with THAT chicken. What is your definition
of chicken?

AL GORE :
I invented the chicken!

COLONEL SANDERS :
Did I miss one?

DICK CHENEY :
Where's my gun?

AL SHARPTON :
Why are all the chickens white?

Paul McCartney, Heather Mills granted preliminary divorce decree

May 12, 2008

Robert Barr, THE ASSOCIATED PRESS

LONDON - Sometimes love isn't all you need.

A judge in London granted a preliminary divorce Monday to former Beatle Paul McCartney and Heather Mills. If no one objects, the divorce will be final in six weeks.

Mills, 40, will emerge from the rancorous divorce with a settlement of 24.3 million pounds (almost $48 million) and a reputation damaged by her televised outbursts against McCartney.

Neither McCartney nor Mills were in court Monday, which might have been a good thing. At the end of a hearing in March, Mills stole the show by emptying a pitcher of water on the head of McCartney's lawyer, Fiona Shackleton.

"Mrs. Shackleton said something under her breath so I cleansed and baptized her," Mills said afterward. "I thought she looked fantastic - I thought it did her the world of good."

Mills will retain custody of the couple's four-year-old daughter, Beatrice. McCartney will retain the bulk of his fortune, estimated by the court at 450 million pounds (around $887 million).

The split makes McCartney, at age 65, the last of The Beatles to get a divorce.

John Lennon left his first wife, Cynthia, for Yoko Ono. Ringo Starr and his first wife, Maureen, divorced after 10. And George Harrison's marriage to Patti Boyd ended after 11 years.

McCartney's marriage to the former Linda Eastman endured 19 years, until her death in 1998.

He married Mills, whose left leg was amputated below the knee after a 1993 motorcycle accident, in an Irish castle in 2002. They separated four years later.

Last year, Mills claimed in interviews that McCartney had failed to protect her and their daughter from slander, death threats and other abuse, and she accused the media of persecuting her.

In November, she said she had been "treated worse than a murderer or a pedophile," despite years of work for land mine victims and animal welfare charities.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

No Proof of Damages, No Judgment

No Proof of Damages, No Judgment

Absent damages, there is no judgment in negligence even if liability is found.

This point, which is pretty basic, was made in today’s decision in Davidson v. Lee, Roche and Kelly, 2008 ONCA 373.

From the very beginning of a negligence file counsel ought to focus on what harm was done by the wrongful act and how can that harm be proven.

Davidson provides:

[5]               The solicitor’s negligence resulted in the appellant and his wife completing a transaction, the sale of their taxi business, that they would have avoided had the solicitor told them that they would not receive more than $4600 in interest payments under the agreement and note. The respondent was responsible for compensating the appellant and his wife for the loss they suffered as a result of completing the sale transaction. But the appellant did not prove that he had suffered a loss. Without the solicitor’s negligence there would not have been a sale.

[6]               The appellant did not call any evidence to establish that the business, at the time of its sale, was worth more than the amount the appellant received from the purchaser. In the result, the record is barren of any evidence that the solicitor’s negligence caused any loss to the appellant. Proof of damages is an essential element in any claim for negligence. Nespolon v. Alford  (1998), 40 O.R. (3d) 355 ( C.A. ) leave to appeal refused [1999] 1 S.C.R. xi.

 

 

James Morton

Steinberg Morton Hope & Israel

1100-5255 Yonge Street

Toronto, Ontario

M2N 6P4

 

416 225 2777

 

Blog:  http://jmortonmusings.blogspot.com/

 

Details of Dziekanski airport Tasering stripped from RCMP report

"What's troubling here isn't so much the death from Tasering -- and clearly that Tasering is what killed Dziekanski -- as the obvious, and fairly inept cover up.

If it wasn't for the amateur video the initial RCMP story would have remained unchallenged.

Police need and deserve our support. RCMP on the job are cops like any others. But this situation (Dziekanski) is just plain embarrassing"

May 11, 2008 - 18:17

Jim Bronskill And Sue Bailey, THE CANADIAN PRESS

OTTAWA - The RCMP call it Occurrence No. 2007-34748.

Millions of people around the world know it as the infamous Taser zapping at the Vancouver International Airport last October that sparked so many questions about Robert Dziekanski's death.

The Mounties have stripped any new answers from a heavily censored report on the high-profile stun gun incident, obtained by The Canadian Press and CBC under the Access to Information Act.

Dziekanski died in the early hours of Oct. 14 after the RCMP hit the 40-year-old Polish immigrant with a Taser and pinned him to the airport floor. Police fired the electronic stun gun's metal probes less than 30 seconds after arriving on the scene of a sweaty, agitated Dziekanski, who had earlier tossed a small table and computer monitor in frustration.

Opposition MPs and human rights groups have criticized the RCMP for suppressing details of Taser cases, including injuries suffered by people stunned and whether they were experiencing a mental health crisis at the time.

The national police force has gone even further with the Dziekanski report, deleting information it routinely releases in other cases.

Though Dziekanski's name is struck from the four-page form, it is readily identifiable as his case, listing basic details well known to those who watched an amateur video of the RCMP arriving on the scene and shooting a Taser X26 at Dziekanski, who quickly crumpled in a heap.

Absent from the report is the name and rank of the officer who fired the Taser, the name of his supervisor, details about the duration of the firing, and the number of times the weapon was used in stun mode - a contact Tasering that's akin to leaning on a hot stove.

A written summary of the incident has been blanked out along with assessments as to whether use of the Taser helped the RCMP either "avoid use of lethal force" or "avoid injuries to subject or Police."

A passage about whether Dziekanski was armed or not has also been excised. One witness says he was waving a stapler at police.

New information is scant. The form says the RCMP officer issued the standard verbal command, "Police stop or you will be hit with 50,000 volts of electricity." The lighting conditions are described as "Good artificial light." And the serial number of the Taser was X00-2226496.

In a letter accompanying the form, the RCMP says it invoked exemptions under the Access to Information Act to protect the privacy of the person stunned and to guard confidences about the force's investigations and weapons.

The RCMP did not return a phone call Sunday seeking comment on why it censored more information than usual. The deletions may, however, be due to the fact the Crown is still deciding whether to lay charges in the case following completion of a homicide probe.

Liberal public safety critic Ujjal Dosanjh said regardless of the investigation the RCMP should tell the public whether Dziekanski was armed and how many times he was hit with the Taser.

"I don't see any reason why there should be an impediment to releasing information about how many times Mr. Dziekanski was stunned," he said in an interview Sunday. "Why would that be a problem, unless that was a fact in dispute?"

RCMP Commissioner William Elliott said last month the Mounties have been forced to make tough choices on how much to publicly disclose about Taser incidents.

" Our motivation is not to avoid criticism or controversy by exercising our discretion one way or the other, but to strike an appropriate balance between sometimes competing interests like privacy and the public's right to know," he said during a speech in Gatineau, Que.

"I believe we need to do a better job in assessing and factoring in the public interest. We need to recognize that given the sensitive nature of much of our work, the RCMP can tend to lean towards less disclosure rather than more."

Elliott said some information about stun gun use cannot be made public. And he noted the Commission for Public Complaints Against the RCMP has access to full versions of all of the force's Taser reports.

Insp. Troy Lightfoot, an RCMP spokesman, said in March that internal analysis of the forms concluded the painful weapons were being used correctly.

Blistering newspaper editorials and opposition critics said Canadians were being asked to blindly trust the Mounties.

The force agreed to take a second look and last month released some additional details about Taser firings.

Last November a Canadian Press analysis of 563 cases between 2002 and 2005 found three in four suspects Tasered by the RCMP were unarmed.

Several of those reports suggested a pattern of stun gun use as a convenient means of keeping drunk or rowdy people in line, rather than to defuse life-threatening clashes.

Twenty people in Canada have died soon after being Tasered.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Contempt of the Intent of a Court Order

The interesting, albeit sad, case of Gurtins v. Goyert, 2008 BCCA 196 (CanLII) deals with contempt and the question of whether it is possible to be in contempt for breaching the spirit of a court order.

The British Columbia Court of Appeal find the answer is ‘no’.

The facts in Gurtins involve a difficult teenager, her mother and friends the teenager moved in with. Suffice it to say various orders were made barring the friends from harboring the teenager. But, the orders did not expressly require the friends to do the act they were found to be in contempt of court for failing to perform.

It was clear the court intended the friends to act in a certain way, but that is not the way the orders made were drafted. When the friends followed the letter, but not the spirit, of the orders they were found in contempt.

And this finding of contempt was an error – only breaches of express orders are contemptuous (in the context of contempt for breach of court orders – other contempts, say contempt in the face of the court, are not so limited)

Of course, the Court’s finding is unassailable and the concept of following the spirit and not the letter is simply not practical in issues of breach of mandatory orders. (Romans 7:6 doesn’t apply to Superior Courts – of course, as responsible Canadians was should try “to serve in newness of spirit, and not in the oldness of the letter” but if we don’t our punishment will not be a term of imprisonment in a Canadian jail).

The Court held:

[13] Mr. and Mrs. Goyert advance a number of grounds of appeal. However, it is necessary to deal with only one of them, namely, that the chambers judge erred in finding them in breach of the intent of the orders made by de Walle P.C.J. and Goepel J., as opposed to the actual terms of those orders. More particularly, Mr. and Mrs. Goyert say they were found guilty of contempt for not returning the child to Kitimat after August 31, 2007, even though there is no direction in either order requiring them to do this.

[14] As the chambers judge correctly noted in paragraph 13 of her reasons, in a contempt matter, an order alleged to have been breached must be precise and unambiguous in its direction, and the alleged contemnor is entitled to the most favourable interpretation of it: Hama v. Werbes, 2000 BCCA 367 (CanLII), 2000 BCCA 367, 76 B.C.L.R. (3d) 271 at para. 8. However, in my view, she erred when she looked beyond the four corners of the two orders in deciding what legal obligations they placed on Mr. and Mrs. Goyert. It is apparent from the chambers judge’s reasons that, in interpreting the orders, she had regard to the transcripts of various court appearances, and to the reasons given by de Walle P.C.J. and Goepel J. for making their respective orders.

[15] The rule of law requires that court orders be obeyed. Accordingly, it is of paramount importance that persons who are subject to court orders be able to readily determine their obligations and responsibilities. They do this by having regard to what is on the face of the formal order setting out what they are required to do, or refrain from doing. As stated in Arlidge, Eady & Smith on Contempt (London: Sweet & Maxwell, 2005) (at para. 12-55), “[a]n order should be clear in its terms and should not require the person to whom it is addressed to cross-refer to other material in order to ascertain his precise obligation”. See also: Northwest Territories Public Service Association v. Commissioner of the Northwest Territories (1979), 107 D.L.R. (3d) 458 (N.W.T.C.A.) at 478, 479; In re A Bankrupt; Rudkin-Jones v. The Trustee of the Property of the Bankrupt (1965), 109 Sol. Jo. 334 (C.A.).

[16] A concise and most helpful summary of the principles applicable to the interpretation of an order in contempt proceedings is found in R. (Mark Dean Harris) v. The Official Solicitor to the Supreme Court, [2001] EWHC Admin 798 (Q.B.D.), wherein Mr. Justice Munby stated (at para. 68):

(i) No order will be enforced by committal unless it is expressed in clear, certain and unambiguous language. So far as this is possible, the person affected should know with complete precision what it is that he is required to do or to abstain from doing.

(ii) It is impossible to read implied terms into an injunction.

(iii) An order should not require the person to whom it is addressed to cross-refer to other material in order to ascertain his precise obligation. Looking only at the order the party enjoined must be able to find out from the four walls of it exactly what it is that he must not do.

(iv) It follows from this that, as Jenkins J said in Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 at p 390,

a Defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken that undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question.

[Emphasis added]

A Mosque off the QEW

A Mosque off the QEW. A view from today’s Canada.