Employees at the "Emma's Back Porch" restaurant in Ancaster didn't think much of it when two servicemen packed up a broken ATM earlier this week.
The machine was broken and slated to be repaired so they figured the two guys were just doing their job.
But two days later ... the real repairmen showed up.
It's not clear if they got any money, the policy of all the banks is not to publicize amounts.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Crown Elects, Mistakenly, to Proceed Summarily Outside the Six Month Time Limit in Criminal Code -- Can Crown Reelect?
A hybrid offence can proceed either by indictment or on summary conviction at the election of the Crown. A summary conviction matter, however, is subject to a time limit. Section 786(2) of the Criminal Code provides:
No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree.
So what happens if a hybrid offence information is laid more than six months after the subject-matter of the proceeding arose and the Crown elects to proceed summarily?
The Ontario Court of Appeal has held, in R. v. P. W. K., 1998 CanLII 7145, that the information remains valid:
It is likewise common ground that the information itself is not void. If it was otherwise a valid information charging an indictable offence, it remains so. R. v. Karpinski (1957), 117 C.C.C. 241 (S.C.C.).
As a result, if the first charge, for which a summary election is made, is withdrawn the Crown may lay a new information and proceed by indictment.
This week’s Alberta Court of Appeal decision in R. v. Dudley, 2008 ABCA 73 considered whether the Crown could reelect after making a mistaken election to proceed summarily and proceed by indictment. The short answer is “yes” as set out in the first paragraph of the decision:
[1] An information charging a Criminal Code hybrid offence which is laid more than six months after the alleged offence occurred is not invalidated by the Crown mistakenly making an election to proceed summarily. Nor is the Crown precluded from re-electing to proceed by indictment once that error is discovered unless the evidence discloses an abuse of process arising from improper Crown motive, or resulting prejudice to the accused sufficient to violate the community’s sense of fair play and decency.
March 7 (Bloomberg) -- BCE Inc., Canadas largest telephone company, moved a step closer to completing its C$52 billion ($52.4 billion) buyout after a Quebec judge dismissed a lawsuit by a group of bondholders opposed to the deal.
The acquisition terms are ``fair and reasonable, Quebec Superior Court Judge Joel Silcoff wrote in his decision. The buyout, the largest in Canadas history, is due to close next quarter.
Bondholders, including Aegon Capital Management Inc. and CIBC Global Asset Management Inc., wanted compensation for a decline in the value of their BCE investments, which total about C$1.7 billion. The group argued that the buyout violates the conditions of the bondholder agreement.
``Were obviously quite happy, BCE Chief Legal Officer Martine Turcotte said in an interview. ``The judgments are very clear and very categorical. Were moving forward.
BCE, based in Montreal, accepted a C$42.75-a-share offer from an investor group led by the Ontario Teachers Pension Plan in June. The bondholders said the transaction adds debt and increases the risk that BCE will default, pushing down the value of their holdings.
BCEs C$150 million of 10 percent bonds due in 2054 have tumbled about 36 cents to 131 cents on the dollar since the end of March 2007, when reports of a buyout emerged. The yield has risen to 7.6 percent from 5.8 percent, Bloomberg data show.
The bondholders may appeal the judgment, said Mark Meland, a lawyer from Fishman Flanz Meland Paquin in Montreal, who represents the group. He expects to make a decision about their next step by the end of next week.
``We remain convinced that the case has merit, he said. ``Were considering all of our options.
Teachers intends to raise about C$32 billion in debt to fund the deal, according to filings. Moodys Investors Service said in October it may cut its credit rating on BCE to below investment grade because the proposed purchase would more than quadruple BCEs debt.
U.S. investors Providence Equity Partners Inc. and Madison Dearborn Partners LLC are also part of the buyout group.
In a leveraged buyout, the acquirer borrows most of the purchase price in the targets name, typically resulting in high- yield, high-risk credit ratings. Such ratings are commonly known as junk because they are below investment grade.
Bondholders own about C$1.7 billion of Bell Canadas 1976, 1996 and 1997 debentures, according to court documents. Bell Canada, BCEs phone unit, has about C$6.4 billion outstanding under those debentures.
Trading at Discount
BCE shares have traded as much as 20 percent less than the offer price on speculation that the banks helping to fund the purchase may back out. The buyout group has commitments from banks including Toronto-Dominion Bank, Canadas second-largest lender by assets, and Citigroup Inc.
BCE fell 27 cents to C$35.80 at 4 p.m. in Toronto Stock Exchange trading. The shares have dropped 9.7 percent this year.
The company said its primary responsibility was to shareholders, according to court documents. The bondholders ``willingly and knowingly incurred the risk of a leveraged buyout by purchasing bonds that dont contain ``covenants to guard against such events.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
For purposes of this note, however, only the striking of the jury will be considered.
Put briefly, trial by jury is a substantive right that will not be set aside by the Court unless barred by statute or in the interests of justice. If, however, the trial Court concludes that the complexity of the matter, or the nature of the evidence, is such that a jury will not apprehend it properly then striking the jury is proper. Such striking will not be second guessed by the appeal Court. If the decision to strike is reasonable it will be upheld on appeal.
The Court writes:
"(1) Striking the jury
[19] The appellant contends that the trial judge erred, near the end of the first of the two blended trials and after 12 days of testimony, by striking the jury. The starting point for the appellant's submission is the proposition that a trial by jury in a civil case is a substantive right that should not be taken away without just cause or cogent reasons: see King v. Colonial Homes Ltd., [1956] S.C.R. 528.
...
[20] The leading case in Ontario dealing with striking a jury in a civil trial is Cowles v. Balac (2006), 83 O.R. (3d) 660 ( C.A. ). In that case, O'Connor A.C.J.O. discussed the circumstances in which an appellate court may overturn a trial judge's ruling to strike a jury. In my view, an accurate summary of O'Connor A.C.J.O.'s discussion is found at paras. 40 and 52:
Appellate review of a trial court's exercise of its discretion to dispense with a jury is limited.
In Kostopoulos v. Jesshope, Robins J.A. set out the well accepted standard for appellate review as follows:
I think it manifest from the authorities that before an appellate court may properly intervene it must be shown that the discretion was exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law.…The test is whether there were cogent reasons for the exercise of the discretion, King, supra, or, as I would word it, was there a reasonable basis for the trial judge's exercise of discretion? If the circumstances are such that there was no reasonable basis for the conclusion reached, then the trial judge will have made a reversible error. ...
[21] In my view, the trial judge's exercise of her discretion to strike the jury was far removed from being arbitrary, capricious or unreasonable. The trial judge explicitly recognized that the right to a jury trial was an important substantive right. She identified and gave weight to the arguments in favour of keeping the jury, including her own favourable impression of the jury's performance during the trial.
[22] However, in the end, the trial judge struck the jury for two reasons: first, the complexity of dealing with a person (Moore) who had suffered many injuries from five motor vehicle accidents (four as a driver and one as a passenger), a fall down stairs, a fall off a ladder, a slip and fall accident, and back strain from gardening, all over approximately a 20-year period; and, second, the fact that Moore had suffered a serious brain injury in a motorcycle accident several years before the 1998 and 2002 motor vehicle accidents, which would make it very difficult for a jury to assess his credibility, "particularly in the context of his reporting of symptoms to his various physicians, but against the backdrop of the sequelae of his brain injury as that affects his ability to properly report or follow through."
[23] On the complexity point, the trial judge summarized her reasoning in this fashion: "Trying to come to terms with all these pre-, post-and inter-accident events would overwhelm the jury." On the implications of Moore's serious brain injury before the 1998 and 2002 accidents, the trial judge relied on the testimony of Dr. Doxey, the vocational psychologist who had examined Moore in 1997, before both accidents, and again in 2004, after both accidents. The trial judge said: "Dr. Doxey himself stated that the plaintiff presented one of the most complex cases he has ever had to deal with in nearly 30 years of clinical practice."
[24] In her ruling, the trial judge said that "[e]ssentially, each case requires an analysis of the particular facts and issues that its particular jury must decide in that particular case." In my view, the trial judge conducted a careful and proper analysis. Her decision to strike the jury was not the only possibility; it was, however, a reasonable decision."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Date: March 6, 2008
For Release: Immediate
Statement by Hon. Stéphane Dion, Leader of the Opposition, on the Attack in
On behalf of the Liberal Party of Canada and our Parliamentary caucus, I would like to express my sadness and concern over today's attack on a yeshiva in
The Liberal Opposition joins the international community in condemning such deplorable acts of violence.
I know all Canadians join me in extending our deepest sympathies to the family and friends of those who lost their lives in the shooting, the students and staff at the Mercaz Harav yeshiva, and all those who were touched by this senseless tragedy.
BRAMPTON, Ont. - A judge has ruled Ontario's helmet law does not discriminate against a turban wearing Sikh motorcyclist.
Baljinder Badesha's fight against a $110 fine for not wearing a helmet took on the character of a constitutional challenge, with the Ontario Human Rights Commission intervening on his behalf.
The commission argued the provincial helmet law discriminates against Badesha because it violates his constitutional rights.
Ontario Court Justice James Blacklock ruled against that argument Thursday.
Blacklock says allowing Badesha and other Sikh motorcyclists to ride without helmets would put "undue hardship" on the province because of safety concerns.
Similar challenges have seen exemptions made for Sikh motorcyclists in British Columbia and Manitoba. The United Kingdom, Hong Kong and India also allow devout Sikhs to forego the helmet.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Environment Canada has issued a special weather statement for the area, with snow starting Friday and continuing into the weekend.
680News' meteorologist, Brian Hill, said the GTA is not going to get off lightly.
"This could be one of the biggest, if not the biggest storm of the season, with snow starting on Friday early evening, continuing Saturday...with large accumulations, I think we could in the 15-20 [centimetres] range, but north and west of [Toronto], 30 centimetres of snowfall is possible," he said.
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James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
"I'm confident that the nations in the coalition are going to stick together to ensure that we can all make the maximum contribution in Afghanistan in an effective way," British Foreign Secretary David Miliband told reporters as he arrived for talks with his NATO counterparts.
US Secretary of State Condoleezza said that she was "hopeful" allies will contribute the 1,000 additional troops Canada has demanded to help it in southern Afghanistan.
In Chorny the plaintiff was not in existence at the time that it commenced the action; a failure to file annual returns (a matter unrelated to the cause of action) led to an administrative dissolution of the plaintiff. The plaintiff was revived after the limitation period for the claim advanced had expired, although the claim was issued within the limitation period.
The action was for monies loaned on notes and there is no suggestion the monies were not advanced.
The Court held:
"[28] The case is governed by 602533 Ontario Inc. v. Shell Canada Ltd., 37 O.R. (3d) 504 (C.A.) (and see also Swale Investments Ltd. v. National Bank of Greece (Canada), [1997] O.J. No. 4997 and Ontario sprinkler Sales Ltd. v. Emco Ltd., 28 O.R. (3d) 155 (Gen. Div.). As the Court of Appeal observed in 602533 v. Shell, supra, where a claim is issued outside a limitation period, a defendant need not show actual or any prejudice to take advantage of the limitation defence. In that case, as here, the plaintiff was a dissolved corporation when the original claim was issued. The claim was therefore a nullity. Between the commencement of the action and the revival of the corporation, the limitation period lapsed and the defendant Shell was entitled to rely on it. There is, in my view, no reasonable basis for distinguishing the case at bar from 602533 v. Shell."
As a result, the claim was dismissed. Certainly the case law supports the decision and the decision is careful and worth reviewing. Some might ask if denying judgment for monies advanced on a loan, where the loan is not disputed, because of a failure to fulfill a government filing having nothing to do with the loan is sensible. That, of course, is a question beyond the scope of a mere case summary.
By DAVID ESPO, AP Special Correspondent 20 minutes ago
WASHINGTON - Hillary Rodham Clinton declared Wednesday that her primary victories in Ohio, Texas and Rhode Island had reordered the Democratic presidential race in her favor. A resilient Barack Obama countered with fresh pledges of support from super delegates and said his lead remained intact.
One day after his worst showing in a month, Obama blamed negative attacks by the former first lady for his defeats and quickly made good on a promise to sharpen his criticism of her.
But there was no disputing he had missed a chance to drive her from the race. Or that in contrast to the Republicans, who have settled on Arizona Sen. John McCain as their nominee, the Democrats face the prospect of a potentially divisive campaign lasting deep into spring.
"I'm concerned about unity. That's the major reason I've stayed out of this," said Sen. Bob Casey of Pennsylvania, who is neutral. "The longer this campaign goes on, the more difficult it will be to unify and heal."
Returns from Texas caucuses showed Obama reclaiming some of the ground in the delegate competition that he lost Tuesday night as Clinton's victories piled up. Overall, she showed a gain of 12 delegates for the contests on the ballot, according to The Associated Press count, with another dozen to be awarded. In all 370 were at stake. Texas Democrats were still counting ballots from the Tuesday night caucuses.
In addition, Obama gained endorsements from super delegates in Georgia, Vermont, Ohio, the District of Columbia and Puerto Rico.
Clinton picked up two super delegates during the day but lost one, for a gain of one.
Obama's overall delegate lead stood at 1,567 to 1,462 as the rivals looked ahead to the final dozen contests on the calendar. It takes 2,025 to win the nomination.
That left weeks for public campaigning, millions more to be spent on television ads, probably one more debate and plenty of private cajoling of party leaders, the super delegates who attend the convention but are not chosen in primaries or caucuses.
About 350 of them remain uncommitted, enough to swing the nomination in the unlikely event they decide to line up behind one candidate or the other.
"We are vigorously talking to the uncommitted automatic delegates. The Obama campaign is doing the same thing," Harold Ickes, a Clinton adviser, told reporters.
There also was talk of arranging for makeup primaries or caucuses in Michigan and Florida, two states that were stripped of delegates by the Democratic National Committee for holding elections early in defiance of party rules.
The two states' governors, Republican Charlie Crist in Florida and Democrat Jennifer Granholm in Michigan, issued a joint statement calling on party officials "to resolve this matter and to ensure that the voters ... are full participants in the formal selection of their parties' nominees."
While the Democratic Party stripped the two states of their delegates, Republicans cut the two delegations in half.
Of more immediate concern for Clinton and Obama are the Wyoming caucuses, scheduled for Saturday, with 12 delegates at stake, and the Mississippi primary next Tuesday, with 33 more.
Obama has plans to campaign in both states, but it appeared Clinton would focus her energy on the Pennsylvania primary on April 22. It boasts 158 delegates, the largest prize remaining on the calendar.
Both Clinton and Obama made a round of morning interview programs as their campaign entered a new phase.
The former first lady said McCain's ascension meant Democratic primary voters were looking at the race through a new lens. "It is now about who is strongest against the Republican nominee, John McCain," she said on CNN. "You know, people who voted a month ago didn't know who the Republican nominee was going to be.
"They didn't perhaps factor in that it will be about national security," she said of the fall campaign.
McCain is a former Vietnam War prisoner, a veteran of more than two decades in the Senate, with long experience on the Armed Services Committee. One of the hallmarks of his campaign has been his support for the Iraq War, and he frequently tells audiences he supported an increase in troop strength before President Bush announced one a little over a year ago.
Clinton forcefully injected national security issues into the Democratic campaign in Texas with a television ad that did not mention Obama, yet questioned whether he was prepared to handle a crisis if the phone rang in the White House at 3 a.m.
Obama, on a long flight home to Chicago from Texas, told reporters he believed criticism like that helped send him to defeat.
"What exactly is this foreign policy experience," he asked mockingly. "Was she negotiating treaties? Was she handling crises? The answer is no."
Obama also attributed his defeats in part to more skeptical news coverage. "Many of you in the press corps had been persuaded that you had been too hard on her and too soft on me," he said.
His aides signaled a more aggressive tone ahead when they distributed a memo saying Clinton was trying to avoid answering potentially embarrassing questions by keeping her and her husband's tax returns for the past several years private.
Clinton's communications director, Howard Wolfson, rebutted quickly, saying returns for the years since the Clintons left the White House would be released around April 15.
"Instead of making false attacks, we urge Senator Obama to release all relevant financial and other information related to indicted political fixer Tony Rezko," Wolfson added, referring to a former fundraiser for the Illinois senator who is on trial for corruption.
Res judicata, issue estoppel and abuse of process are often confused. Certainly the concepts are related in that they are designed to protect the Court and litigants from endless, and frivolous, litigation.
Last week’s
33 For issue estoppel to apply, three requirements must be satisfied:
(1) the same question has been decided in both actions;
(2) the judicial decision which is said to create the estoppel was final; and
(3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
…
38 For cause of action estoppel to apply, four requirements must be satisfied.
(1) there must be a final decision of a court of competent jurisdiction in the prior action;
(2) the parties to the subsequent litigation must have been parties to or privies of the parties to the prior action (mutuality);
(3) the cause of action in the prior action must not be separate and distinct; and
(4) the basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence.
…
55 [ There are] six factors or policies that are to be considered in a plea of abuse of process: (1) that there should be an end to litigation; (2) that a party should not be “twice vexed by the same cause”; (3) that judicial resources are scarce; (4) that litigants’ resources are scarce; (5) that consistency of results is vital to the legal system; and (6) that finality of results is vital to the legal system. Importantly, the lack of mutuality does not preclude an argument of abuse of process.
Necessity is seldom a significant problem in analyzing a principled exception case -- the question 'is the evidence of the maker of the out of court statement available?' is fairly straightforward.
Trustworthiness is more problematic and, to this author's view, the test has gone from an affirmative obligation on the proponent of the evidence to show that there is some special reason to believe the out of court statement reliable to an obligation on the opponent to show there is good reason to doubt the reliability of the statement. A huge difference in process and admissibility is hidden because the formal words have not changed even though the test has.
Yesterday's decision in R. v. S.S., 2008 ONCA 140 continues this trend. The key issue was the admissibility of certain out of court statements. Necessity was a given -- the out of court speakers had been intimidated into refusing to testify -- but trustworthiness was a live issue.
The Court ruled the statements admissible largely because there was no reason to doubt they were reliable.
In the instant case, the decision was clearly sensible. It may well be argued that hearsay should be admitted (with allowances as to weight) if necessary and not unreliable; in fact, this author says that is the functional test. Regardless, read the following passage and decide if the test is reliability or absence of reason to doubt reliability.
[26] In holding that Mr. Cerdas' statement was sufficiently reliable to justify its admissibility, the trial judge referred to several factors, including the following:
· The statement was made very soon after the events described in the statement;
· Mr. Cerdas had no motive to lie to the police about being robbed or the particulars of the robbery, or to falsely implicate the appellants;
· Mr. Cerdas, because of his personal experience (two prior convictions for obstructing justice), was aware of the consequences of lying to the police even though he was not cautioned about those consequences on this occasion;
· The police officer who took the statement knew nothing about the events referred to in the statement. That officer, and the police in general, had no suspects and no reason or ability to taint the statement by prompting Mr. Cerdas to provide certain information that would incriminate individuals suspected by the police;
· The statement was internally consistent and coherent;
· According to the police officer who took the statement and whose evidence was accepted by the trial judge, Mr. Cerdas was calm and in full possession of his faculties when he made the statement; and
· The injuries, albeit relatively minor ones, observed on Mr. Cerdas' face and head were consistent with his description of the attack.
[27] The trial judge also specifically alluded to other evidence, independent of the statement, which in her view supported its reliability. She observed:In addition, there is also other corroborative real evidence which supports the reliability of Cerdas' robbery complaint. P.C. Letsche and P.C. Conley testified that a cell phone bearing Cerdas' number and guns were found on a person fitting the general description of one of Cerdas' assailants approximately three hours later on T.T.C. property. In addition, there is evidence that a ring, similar to Cerdas' ring, was found in a crevice near a second male, who fled the same T.T.C. location at the same time.
March 3, 2008 - 21:17
Jonathan Montpetit And Nelson Wyatt, THE CANADIAN PRESS
MONTREAL - Friends of a Canadian jailed in Saudi Arabia on murder charges lashed out at Saudi justice and demanded help from the Canadian government Monday upon learning that he was convicted and sentenced to a public beheading.
Mahmoud Al-Ken, a reporter for a Montreal Arabic radio station, says the family of Mohamed Kohail told him Monday that Kohail was found guilty of murder. He says Kohail is to be beheaded in public but has 80 days to appeal the ruling.
Kohail "got nine court sessions, each court session lasted 10 minutes," Al-Ken said.
A spokesman for the Foreign Affairs Department in Ottawa confirmed Monday night that Kohail had been convicted and faces the death penalty.
"We are deeply disappointed at the verdict handed down by Saudi authorities," said Bernard Nguyen, a Foreign Affairs spokesman.
Nguyen said Foreign Affairs Minister Maxime Bernier and Secretary of State Helena Guergis had been briefed on the situation and are following it closely.
"We are in close contact with the family and continue to provide consular services," Nguyen said. "The family continues to explore other legal avenues including an appeal of this verdict." He would not elaborate further, citing the family's privacy.
A close friend of the family called on the Canadian government to take further steps to help Kohail.
"I want the government here to ask on what basis the Saudi government decided this was first-degree murder," Mayada Jabri told Info690, a Montreal radio station.
"It was the influence of the other family which got a verdict that was not fair. I only want justice."
A family friend who spoke with Kohail's parents shortly after the verdict was handed down says they are livid at the Saudi justice system.
"They don't believe by any means they got a fair trial," he told The Canadian Press.
The friend, who lives in Montreal and asked that his name not be used, claimed the court ignored evidence that would have cleared Kohail.
He also said Kohail's lawyers were repeatedly denied access to the courtroom.
Kohail was allegedly involved in a schoolyard brawl that left one person dead.
He was arrested along with his brother, Sultan, last spring and imprisoned in Jeddah, Saudi Arabia. The younger brother's fate remains unclear.
Dan McTeague, the Liberal critic for consular services, said he hopes the federal government acts swiftly to secure Kohail's release.
Ottawa must also investigate allegations that confessions were obtained under duress, McTeague said.
But he said the government is in an awkward position after a recent decision not to seek clemency in a death penalty case in the United States.
"It has already precluded the standard request for clemency to only request clemency in those cases where it disagrees with the judicial or legal system of another country," he said.
"They are starting off from a position that is potentially difficult, not to mention potentially insulting."
Those who knew Kohail are shocked that diplomatic efforts to lessen the charges failed.
"We originally felt he would not face the death penalty," said Barry Gaiptman, a guidance counsellor at Kohail's former school in Montreal who has been circulating a petition calling for his release.
Gaiptman believes Kohail received a rough shake from the Saudi justice system.
"He's a young boy who is certainly not involved in anything more than schoolyard brawl," he said.
The family spent several years in Montreal before recently returning to Saudi Arabia.
The two boys were involved in a fight that broke out after a girl's male cousin accused Sultan of insulting her.
The brother demanded an apology, but Sultan refused.
Sultan, then 16, said he called for help from Mohamed when he was confronted by several boys over the insult.
According to the account of the Kohail brothers, Mohamed Kohail arrived at the school with a male friend to face about a dozen of the girl's male relatives and friends. Some were armed with clubs and knives.
One of the attackers was punched, fell to the ground and died.
He has been identified as Munzer Haraki, a cousin of the girl who was supposedly insulted.
Ali Kohail, the brothers' father, has said the family had only temporarily relocated to Saudi Arabia to attend a relative's wedding - an Arab tradition says three ceremonies must be held.
They always intended to return to Canada, where they still own a home in Montreal.
A Foreign Affairs official has said the department was offering assistance to the Canadians who spent several months in jail before Monday's verdict.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Federalism is somewhat passe now and, in truth, it isn't argued very often in Court. But an argument that provincial legislation trenches on the federal criminal power can still be made. Indeed, in some cases (especially where the punitive aspect of the provincial regulation is strong) such argument might have legs.
That said, today's Court of Appeal decision in Club Pro Adult Entertainment Inc. v. Ontario (Attorney General), 2008 ONCA 158 suggests that the Court will not lightly strike down, or even consider striking down, provincial legislation as being ultra vires.
Club Pro involved an argument that provincial anti-smoking legislation was, in fact, a criminal law measure. Candidly such an argument seems a stretch (and this author is no stranger to "Gumby and Pokey" pleadings). That said, the Court made very short work of the argument finding that the pith and substance of the legislation could be seen as being health related and no evidentiary basis was required for such finding -- the argument was dismissed on pleadings alone. The Court noted that a criminal aspect to a provincial statute, provided it was merely a part of an otherwise valid statute under a provincial power, did not vitiate the legislation.
Some of the reasons follow:
[10] To determine whether a provincial law is validly enacted, the court must (i) determine the "pith and substance" or essential character of the law, and (ii) classify the essential character with reference to the heads of power under ss. 91 and 92 the Constitution Act, 1867. When considering the law's "pith and substance", the court examines the purpose and effects of the legislation. See Reference re: Firearms Act ( Can. ), [2000] 1 S.C.R. 783 at para. 15.
[11] In our view, looking at the Act, it is plain and obvious that the pith and substance of the legislation is to promote the health of Ontarians. No extrinsic evidence is required to arrive at this conclusion. As a result, the Act is valid pursuant to the provincial government's jurisdiction over health.
[12] Furthermore, the fact that the Act could be interpreted as an attempt by Ontario to suppress the "socially undesirable conduct of smoking" does not detract from the constitutional validity of the Act. As this court recently stated, "it is not enough for the appellants to show that the provisions they attack have a criminal law aspect. In order to succeed, they must establish that the provisions do not fall within provincial competence or are repugnant to federal legislation." See R. v. Banks (2007), 84 O.R. (3d) 1 at para. 31
Formatia trans sicere educatorum
(enter all who seek knowledge)
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
CTV.ca News Staff
Conrad Black travelled from his lavish Palm Beach mansion Monday to a Florida prison, where he will serve out his six-and-a-half year fraud sentence with white-collar criminals and drug dealers.
Black made the four-hour trip with his wife Barbara Amiel, sitting in the back of a grey SUV with tinted windows while an unidentified driver took the wheel.
The disgraced media tycoon will now be known as inmate 18330-424 at Coleman prison, a low-security detention centre near Orlando. On Monday, he was expected to be strip-searched before being introduced to his cell, which he will share with a roommate.
Black will be assigned basic jobs and will be paid between 12 and 40 cents an hour. At the peak of his career as head of newspaper empire Hollinger International, it is estimated Black made anywhere between $12,000 and $40,000 an hour.
Events in the Conrad Black fraud case
"In the beginning it's really going to be yard work, kitchen duty, cleaning duty -- not exactly what he had anticipated," CTV's Lisa LaFlamme told Canada AM.
In an email to The Globe and Mail, Black said he expected to spend time behind bars writing, praying and even teaching other inmates. But prison officials told LaFlamme that Black will start out with the same jobs as everyone else.
A relative of one of the prison's inmates said the same thing.
"Money doesn't matter in there," the relative said. "It doesn't matter if you're rich or poor; they treat you the same."
The strict regime for Black and the other 2,500 prisoners will include:
Getting out of bed at 6 a.m. daily
7:30 a.m. to 3 p.m. work hours
A head count up to seven times a day.
CTV's legal analyst Steven Skurka, author of the new Black book "Tilted," said Black is likely to face the challenge head-on, as he has with other difficulties in his life.
"Number one, he has a loving family and the support of friends. Number two, he doesn't want to vindicate his enemies, and I think that's going to drive him," Skurka told Canada AM.
There was no lavish party on Sunday at the Black mansion in West Palm Beach, Florida - a property he acquired while still the head of Hollinger, once the world's third-largest newspaper empire. Instead, it was a quiet time for Black and Amiel.
Amiel played with a dog that friends say she bought recently to keep her company during Black's incarceration.
The 63-year-old was found guilty last summer on four of 13 charges stemming from his activities at Hollinger International, the arm of his empire that actually operated his vast stable of newspapers. The convictions were for fraud and obstruction of justice.
The trial showed Black and three others had siphoned money from Hollinger by unlawfully using "non-compete" agreements -- monies paid to avoid having someone start a competing publication after having sold a newspaper in a given market -- to line their own pockets.
Although he tried to stay out of prison pending his appeal, Black was unsuccessful.
Two other men, Peter Atkinson and Jack Boultbee, were allowed to remain free on bail before their appeals are heard.
The two former Hollinger International executives were convicted on fraud-related charges but not obstruction of justice. Boultbee was sentenced to 27 months and Atkinson to 24 months.
Black's appeal process is ongoing. The trial judge's comments on the remaining fraud counts, he has said, show that the government case is a "grotesque charade."
The appeal process could take anywhere from four months to a year to play out, Morton said.
David Radler, Black's former business partner, preceded Black to prison, having surrendered himself last Monday.
Because Black gave up his Canadian citizenship to serve in the British House of Lords, the British subject cannot apply to transfer to a Canadian prison.
Boultbee and Atkinson are both Canadian citizens.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
The plaintiff had elected to have certain mortgage proceedings go ahead as bilingual. Although not very clear from the decision it seems as if the plaintiff, who was self representing, was difficult and had caused bilingual judges to recuse themselves because of complaints made by the plaintiff against them.
The defendants brought a motion for summary judgment. No bilingual judge was available to hear the matter but the motions judge held that the plaintiff's conduct was motivated by an intention to delay and judgment was granted.
The Court of Appeal reversed, refusing to consider the merits of the decision below. In short, the Court said a Court cannot dispense with a bilingual hearing even if a party behaved badly because the right being protected did not belong to the party but rather to the linguistic community.
The more critical parts of the decision follow:
(ii) Did the judge have the jurisdiction to deny the right to a bilingual proceeding?
[16] The right to a bilingual proceeding is conferred by s. 126 of the Courts of Justice Act which reads, in part, as follows:
126. (1) A party to a proceeding who speaks French has the right to require that it be conducted as a bilingual proceeding.
(2) The following rules apply to a proceeding that is conducted as a bilingual proceeding:
1. The hearings that the party specifies shall be presided over by a judge or officer who speaks English and French.
[17] Despite this provision, the respondents maintain that no right is absolute and that where there has been an abuse of process, the court may deny the right to bilingual proceedings.
[18] However, the right in s. 126 is not qualified by any grant of judicial discretion. Although it is true that the court has the inherent jurisdiction to control the conduct of the proceedings, it is also clear that the court's jurisdiction cannot be exercised in a manner that would conflict with the express provisions of a statute.
[19] What's more, a court has other means at its disposal to address a litigant's abuse of process. For example, the court may deny the litigant's application for an adjournment, stay the proceedings, or find the abuse to constitute a contempt of court. Moreover, the court may also prohibit a vexatious litigant from continuing the proceedings or initiating others. These provisions (and others) enable the court to control its process and to prevent abuse without violating the litigant's statutory right to a bilingual proceeding.
[20] In light of the foregoing, in my view, the motion judge should have adjourned the motions to a date when a bilingual judge was available.
b) If an error was made, should the Court of Appeal make the decision that the motion judge should have made?
[21] The respondents submit that even if the appellant's right to a bilingual hearing was violated, this court should nevertheless dismiss the appeal since it is clear that the underlying claim is without merit. I disagree and would not consider the merits of the underlying claim.
[22] The right to a bilingual hearing is a particular kind of right. It is not a procedural right put into place to ensure respect for the principles of fundamental justice or the right to a fair trial. As indicated by the Supreme Court of Canada in R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 41:Language rights have a totally distinct origin and role [when compared with the right to a fair trial]. They are meant to protect official language minorities in this country and to insure the equality of status of French and English.
[23] In Ndem v. Greenspoon [2004] O.J. No. 3269 ( C.A. ), at para. 15, this court stated:
Where, as in this case, the appellant has met the procedural requirements to trigger a right to a bilingual hearing, this right is more than purely procedural, it is substantive and the appropriate remedy is to set aside the order.
[24] Therefore, in my view, the appropriate disposition is to set aside the order and to refer the matter back to the court below. English and French are the official languages of the courts in Ontario, and the court has a responsibility to ensure compliance with language rights under s. 126 of the Courts of Justice Act. A proper interpretation of this provision is one that is consistent with the preservation and development of official language communities in Canada and with the respect and preservation of their cultures: see Beaulac, at paras. 25, 34 and 45. Violation of these rights, which are quasi-constitutional in nature, constitutes material prejudice to the linguistic minority. A court would be undermining the importance of these rights if, in circumstances where the decision rendered on the merits was correct, the breach of the right to a bilingual proceeding was tolerated and the breach was not remedied.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
