A fairly common theme in media is the idea that precrime is something that ought not to be suppressed.
Precrime, the reader will recall, is the state of a criminal before they commit a crime: specifically murder. In Philip Dick's The Minority Report of 1956 the Precrime Analytical Wing used precognitives and special machinery to hear and analyze predictions of future crimes.
Criminals are arrested at the precrime stage and a murder is avoided.
This precrime detention is often seen as wicked. And in Dick's work there is some basis for this view -- the precogs are (a) not always correct and (b) used as tools rather than as beings (hence violating Kant's first categorical imperative). That said, the problems are technical rather than inherent -- if the precogs were replaced by perfect machines the only problem with precrime is that it "punishes" the "innocent".
Of course, some would say the whole point is that "punishment" is meaningless and free will does not exist.
If this is granted -- and crime is seen as a problem to be solved (or at least controlled) and not as a moral theatre -- then what is wrong with acting against precrime? Perhaps nothing.
The moral view of the world -- a view that suggests events are morally to be praised or damned -- is far from the real criminal system. Criminals are seldom 'morally depraved'. Far more commonly they are (marginally) insane or (grossly) dense. The view that they can be corrected by a system of just rewards and fair punishments is simply wrong headed. The average criminal is not able to think far enough ahead to be deterred by punishment, especially punishment as uncertain as that in the criminal system.
Rehabilitation is possible. Kindness and respect, if not justice, is called for in dealing with some criminals. For some criminals, separating them from society is the best for everyone. But in all cases the decision on what to do should be based on keeping society safe and stable.
Free will and justice have little to do with it.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Saturday, March 22, 2008
Inmate serving life sentence escapes from Montreal-area facility
A prisoner who was serving a life sentence for the first-degree murder of his father has escaped from a Montreal-area correctional institution.
Jean-Yves Roy, a spokesman for Correctional Service Canada, said Friday that Neil Stewart, 34, got away by climbing over a fence at a minimum-security federal training centre.
"We noticed he had disappeared yesterday (Thursday) at 5 p.m.," Mr. Roy said in an interview. "There were some steps in the snow and we presume he climbed the fence."
Mr. Stewart had been serving the life sentence since 2000 after a jury convicted him of shooting his father Lindsay to death at their farm northwest of Ottawa in March 1999.
Mr. Roy said Mr. Stewart was in the minimum-security facility in Laval, north of Montreal, after being evaluated as representing a low risk to the public.
"I cannot presume of his actions today, of course, but he represented a low risk."
Mr. Stewart's brother, Brent, was acquitted in the trial, which tore their family apart as the brothers' closest relatives testified against them.
There were no witnesses to the killing.
The conviction relied on forensic evidence that pinpointed when Lindsay Stewart was killed, as well as the testimony of the brothers' mother, cousin and younger brother, who described how Neil and Brent behaved before and after their father was killed.
The Crown's theory was that Lindsay Stewart was killed because he was going to sell his farm to help settle his divorce, pushing the three sons who lived with him out to make it on their own.
After Mr. Stewart was killed in the bedroom of the house, his body was buried in a pile of snow on the farm.
His sister later reported him missing, while Neil and Brent told police he had told them he was going on a vacation, quitting his job to hitchhike across Canada.
Mr. Stewart's frozen body was found soon after and the brothers were charged in May 1999.
James Morton
Sent from my BlackBerry device on the Rogers Wireless Network
Jean-Yves Roy, a spokesman for Correctional Service Canada, said Friday that Neil Stewart, 34, got away by climbing over a fence at a minimum-security federal training centre.
"We noticed he had disappeared yesterday (Thursday) at 5 p.m.," Mr. Roy said in an interview. "There were some steps in the snow and we presume he climbed the fence."
Mr. Stewart had been serving the life sentence since 2000 after a jury convicted him of shooting his father Lindsay to death at their farm northwest of Ottawa in March 1999.
Mr. Roy said Mr. Stewart was in the minimum-security facility in Laval, north of Montreal, after being evaluated as representing a low risk to the public.
"I cannot presume of his actions today, of course, but he represented a low risk."
Mr. Stewart's brother, Brent, was acquitted in the trial, which tore their family apart as the brothers' closest relatives testified against them.
There were no witnesses to the killing.
The conviction relied on forensic evidence that pinpointed when Lindsay Stewart was killed, as well as the testimony of the brothers' mother, cousin and younger brother, who described how Neil and Brent behaved before and after their father was killed.
The Crown's theory was that Lindsay Stewart was killed because he was going to sell his farm to help settle his divorce, pushing the three sons who lived with him out to make it on their own.
After Mr. Stewart was killed in the bedroom of the house, his body was buried in a pile of snow on the farm.
His sister later reported him missing, while Neil and Brent told police he had told them he was going on a vacation, quitting his job to hitchhike across Canada.
Mr. Stewart's frozen body was found soon after and the brothers were charged in May 1999.
James Morton
Sent from my BlackBerry device on the Rogers Wireless Network
Former press baron Conrad Black says he's 'doing fine' in Florida prison
Former press baron Conrad Black says he's 'doing fine' in Florida prison
March 22, 2008 - 3:27
Romina Maurino, THE CANADIAN PRESS
TORONTO - Conrad Black says he's adapting well to life behind bars and doesn't expect to run into any problems while serving his six-and-a-half-year prison term in the United States.
"I am doing fine. This is a safe and civilized place and I don't anticipate any difficulty," Black said in an e-mail to The Canadian Press from his Florida prison.
The Montreal-born press baron, who was convicted of fraud and obstruction of justice last year over payments he took while he was at the head of the Hollinger International newspaper empire, began serving his time at the Coleman minimum-security prison in central Florida on March. 3
Black, whose ongoing commentary to the media throughout the trial angered prosecutors, had said little in the weeks leading up to his surrender. He had also declined to comment as he headed to jail, although his lawyers said at the time that "when historians review this case they will conclude it was a terrible injustice."
Black has vehemently defended his innocence - both throughout his trial in Chicago and in his comments afterwards.
Over the last few weeks, he helped his lawyers draft their appeal motion, which was filed with the Seventh Circuit Court of Appeals in Chicago on March 14.
They're asking the court to throw out his guilty convictions, saying prosecutors failed to prove Black had "guilty knowledge" of any fraud and describing his obstruction of justice conviction as "preposterous."
Black has long said he considered the prosecution's case to be weak, and has repeatedly pointed out that he was acquitted on several of the charges brought against him. The other charges, he has maintained, will be thrown out on appeal.
"You are well aware of my views of the remaining counts, and of my expectation that they will be overturned on appeal," Black said in the e-mail.
He declined any further comment, saying: "I have uniformly declined to be interviewed at this time."
Black's appeal is expected to go before the court in June, and prosecutors are due to file their reply next month.
Black, 63, was head of the world's third-largest media empire until he was ousted in 2003 following shareholder complaints. He was convicted in July of three counts of fraud and one count of obstruction of justice in connection with millions of dollars prosecutors said were illegally pocketed from Hollinger. A Chicago jury acquitted him on nine other charges.
Before reporting to jail, he had been staying at his ocean-front mansion in Palm Beach, where his wife, Barbara Amiel Black, has remained so she can visit him often.
Black's lead appeal lawyer, Andrew Frey, said last week that Amiel and Black's daughter Alana had been visiting him "with some frequency."
Black's 30-year-old son, Jonathan, was recently charged with careless driving and failing to stop after a hit-and-run in downtown Toronto.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Friday, March 21, 2008
Jailing of aboriginal leaders may set back resolution to mining dispute: Fontaine
The incarceration of six Northern Ontario aboriginal leaders as part of a dispute with an exploration company poses a serious impediment to any fair resolution, Assembly of First Nations Chief Phil Fontaine said Friday following a jailhouse visit.
Still, Fontaine said he was "encouraged" by a recent meeting with Ontario Aboriginal Affairs Minister Michael Bryant who seemed committed to moving forward on a number of issues.
"There's three important matters that the province has committed itself to," Fontaine said, noting they include resource revenue sharing with First Nations, adhering to their duty to consult and accommodate on matters that relate to aboriginal land and moving forward with an interim plan.
"I understand the province is prepared and willing to begin immediate discussions on these issues."
Fontaine affirmed the leaders from the Kitchenuhmaykoosib Inninuwug (KI) First Nation near Thunder Bay are not opposed to development.
What the group does oppose is the way in which the deal was managed by both the Ontario government and the mining company, Platinex Inc., he said.
"Platinex because they ignored the rights and interests of this community's traditional lands and the provincial government's decision to issue the permit to allow exploration to take place without regard to their legal duty to consultation and accommodation," he said.
"They're very determined to stand firm on this very principled position they've taken to say no to development at this stage."
The six leaders, which include Chief Donny Morris and Deputy Chief Jack MacKay, were each handed a six month jail sentence earlier this month for breaching an order that allowed Platinex to begin drilling on their traditional lands unobstructed.
While two others received suspended sentences after agreeing to obey future court orders, Fontaine said even grandmother of seven Cecilia Begg seemed quite prepared to serve her sentence rather than back down.
"They believe their position is right and of course we agree with them," he said, noting they are exploring the possibility of an appeal," he said.
"We've had this very, very unfortunate action on the part of the courts for a judge to hand down this very harsh, unfair sentence and what this sentence is telling us is that economic interest will trump the rights of indigenous peoples every time."
"That's just the wrong, wrong message that needs to be conveyed," he added.
In television interview on Thursday, Bryant said he agrees with Fontaine that the group should never have been sent to jail.
Most progressive mining companies, he said, have entered into agreements with First Nations that have resulted in jobs, revenue and an increased standard of living.
"I have been up to KI three times in the last few months... to try and broker something," he said.
"The company got off to a terrible start... This is not the way it's supposed to happen."
Admitting some First Nations communities have stopped working with the government in protest, Bryant said it's important to "keep working towards finding a resolution."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
WASH Court
Although not widely known (at least to the public) the bails courts run everyday year round. WASH Court, Weekend and Statutory Holiday Court, is a depressing place. Generally people arrested just before the weekend/holiday appear and are told to wait until the next business day. But sometimes, against the odds, some people are released.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Dare I Ask What The Legal Fees Are???
Starbucks ordered to pay back tips
A Superior Court judge on Thursday ordered Starbucks Corp. to pay its California baristas more than $100 million in back tips and interest that the coffee chain paid to shift supervisors.
San Diego Superior Court Judge Patricia Cowett also issued an injunction that prevents Starbucks' shift supervisors from sharing in future tips, saying state law prohibits managers and supervisors from sharing in employee gratuities.
Starbucks spokeswoman Valerie O'Neil said the company planned an immediate appeal of the ruling, calling it "fundamentally unfair and beyond all common sense and reason."
The lawsuit was filed in October 2004 by Jou Chou, a former Starbucks barista in La Jolla, who complained shift supervisors were sharing in employee tips.
The lawsuit gained ground in 2006 when it was granted class-action status, allowing the suit to go forward for as many as 100,000 former and current baristas in the coffee chain's California stores.
It was not immediately clear how many current and former employees are affected by the ruling.
"I feel vindicated," Chou said in a written statement released by attorneys. "Tips really help those receiving the lowest wages. I think Starbucks should pay shift supervisors higher wages instead of taking money from the tip pool."
California is Starbucks' largest U.S. market, with 2,460 stores as of Jan. 8, the latest count available. The Seattle-based company has more than 11,000 stores nationwide.
Starbucks employs more than 135,000 baristas in the U.S. The company did not immediately respond to a request for a head count in California.
The judgment comes as Starbucks is struggling to revive its U.S. business, where store traffic has slipped amid a sagging economy, rising energy and dairy costs, and growing competition from cheaper rivals.
The company's stock has slid more than 50 percent since late 2006, when it was trading close to $40 a share. Starbucks shares rose 3 cents to $17.53 Thursday.
Starbucks earned more than $672 million on revenue of $9.4 billion during its 2007 fiscal year, which ended Sept. 30.
The judge ordered Starbucks to pay $87 million in back tips, plus interest of $19 million, bringing the total judgment to about $106 million.
The company said it planned to ask the court to stay the ruling while the appeal is pending.
"The decision today, in our view, represents an extreme example of an abuse of the class-action procedures in California's courts," O'Neil said.
The coffee company also took issue with the brevity of the judge's ruling, which was only four paragraphs, saying she failed to address the unfairness to shift supervisors.
"This case was filed by a single former barista and, despite Starbucks request, the interests of the shift supervisors were not represented in litigation," O'Neil said.
But attorney Laura Ho, who tried the baristas case, said the court's verdict follows state law.
"Starbucks illegally took a huge amount of money from the tip pool to pay shift supervisors, rather than paying them out of its own pocket. The court's verdict rightfully restores that money to the baristas," Ho said.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Youths and Inference of Subjective Intent
In order to obtain a murder conviction the Crown is obliged to prove the accused had a subjective foresight of death. In R. v. Martineau, 1990 CanLII 80 (S.C.C.), [1990] 2 S.C.R. 633, Lamer C.J.C., writing for the court, concluded (at 646) that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death.
Of course, proof of subjective foresight is always inferential. No trier of fact can ever truly know what the subject foresight of an accused was -- this is true even in the face of a free and voluntary confession and more so where no such statement is available.
That said, in general a presumption (or inference) may be made that people intend to reasonable results of their actions. Thus, shooting someone in the head at point blank range is suggestive of an intention to kill. In R. v. Seymour, 1996 CanLII 201 (S.C.C.), [1996] 2 S.C.R. 252 Mr. Justice Cory, writing for the court, explained the role of the inference in determining intention:
"[21] [.] The common sense inference as to intention, which may be drawn from actions of the accused, is simply a method used to determine the accused's actual intent. "
Yesterday's British Columbia Court of Appeal decision in R. v. F.M., 2008 BCCA 111 considered the use of the inference in the context of young offenders.
The decision is subtle but, in short, finds that the youth of an offender, and the offender's apparent maturity or immaturity, is a factor (but only a factor) to consider is deciding whether the inference may be taken to apply.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Of course, proof of subjective foresight is always inferential. No trier of fact can ever truly know what the subject foresight of an accused was -- this is true even in the face of a free and voluntary confession and more so where no such statement is available.
That said, in general a presumption (or inference) may be made that people intend to reasonable results of their actions. Thus, shooting someone in the head at point blank range is suggestive of an intention to kill. In R. v. Seymour, 1996 CanLII 201 (S.C.C.), [1996] 2 S.C.R. 252 Mr. Justice Cory, writing for the court, explained the role of the inference in determining intention:
"[21] [.] The common sense inference as to intention, which may be drawn from actions of the accused, is simply a method used to determine the accused's actual intent. "
Yesterday's British Columbia Court of Appeal decision in R. v. F.M., 2008 BCCA 111 considered the use of the inference in the context of young offenders.
The decision is subtle but, in short, finds that the youth of an offender, and the offender's apparent maturity or immaturity, is a factor (but only a factor) to consider is deciding whether the inference may be taken to apply.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Mae West (1892 - 1980)
He who hesitates is a damned fool.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Quebec and Language Laws
From Good Friday's Globe and Mail
March 21, 2008 at 5:52 AM EDT
QUEBEC -- The Quebec government yesterday rejected calls to toughen its language laws and proposed instead to use persuasion and voluntary compliance to promote French in the province.
Culture and Communications Minister Christine St-Pierre announced a $12-million, two-year plan aimed at merchants, especially companies with fewer than 50 employees, to encourage the use of French. Under the French Language Charter known as Bill 101, only companies with 50 employees or more are required to use French in the workplace.
The province will hire 20 more language inspectors, launch a promotional campaign, organize a summit with business leaders, offer financial assistance to companies and unions to improve French in the workplace and promote the use of French-language computer keyboards and software.
Rather than using coercion, the government plans to rely on the goodwill of merchants and small employers to protect, promote and enhance the French language, especially in Montreal, where Quebeckers of French stock now make up less than half the population.
We will not change Bill 101, Ms. St-Pierre said. I'm not in favour of coercive measures. We want to work in partnership using measures that will convince and help businesses to improve French.
The opposition parties called the government's package disconnected and ridiculous, noting that even Liberal Party members had called for tougher fines and penalties for non-compliance with Bill 101.
Half of immigrants still work in English, said Opposition Leader Mario Dumont. You need to set targets ... so that if they aren't met you can use other measures.
Parti Qubcois Leader Pauline Marois referred to recent studies showing a decline in the French language in Montreal. The action plan can only be qualified as ridiculous, she said.
The opposition parties also said it was unacceptable that four of Quebec's nine English-language school boards decided to use public funds to fight Bill 101 before the Supreme Court of Canada.
The boards joined a group of parents challenging a 2002 move to close a loophole in the bill that allowed children of immigrants and French-language parents who attended a non-subsidized private English-language school for one year to enroll in a publicly funded English-language school. The law allows only children whose mother or father attended an English-language school in Canada to attend an English-language school in Quebec.
James Morton
Sent from my BlackBerry device on the Rogers Wireless Network
Thursday, March 20, 2008
Coroner's service says inquest into Robert Dziekanski's death to be delayed
A coroner's inquest into the death of a Polish immigrant last October at Vancouver International Airport has been delayed.
The coroner's service said Thursday the inquest would have to be rescheduled pending the completion of a police investigation into Robert Dziekanski's death after Mounties blasted him with a Taser.
The RCMP was called when 40-year-old Dziekanski became agitated after spending hours in the airport arrivals area trying to find his mother, who'd driven from Kamloops to pick him up.
Cpl. Dale Carr, of the RCMP's Integrated Homicide Investigation Team, said the Mounties' investigation has been proceeding well enough to meet the deadline for the inquest that was set to begin May 5.
"It's going fine," he said. "We're on target. We feel that we're ready to go and have things ready for May 5."
The coroner's service also said Crown lawyers need time to review the police investigation report.
As well, the first phase of a public inquiry into Dziekanski's death is set to be concluded June 30.
Terry Foster, a spokeswoman for the coroner's service, said information from phase one of the public inquiry will be beneficial to the inquest.
She said the government announced the inquiry in February after the inquest had been called in November.
A coroner's inquest is a formal court proceeding that presents evidence related to a death, although it does not find fault.
Such inquests also offer recommendations to prevent similar deaths in the future, but the recommendations don't have to be followed.
James Morton
Sent from my BlackBerry device on the Rogers Wireless Network
The coroner's service said Thursday the inquest would have to be rescheduled pending the completion of a police investigation into Robert Dziekanski's death after Mounties blasted him with a Taser.
The RCMP was called when 40-year-old Dziekanski became agitated after spending hours in the airport arrivals area trying to find his mother, who'd driven from Kamloops to pick him up.
Cpl. Dale Carr, of the RCMP's Integrated Homicide Investigation Team, said the Mounties' investigation has been proceeding well enough to meet the deadline for the inquest that was set to begin May 5.
"It's going fine," he said. "We're on target. We feel that we're ready to go and have things ready for May 5."
The coroner's service also said Crown lawyers need time to review the police investigation report.
As well, the first phase of a public inquiry into Dziekanski's death is set to be concluded June 30.
Terry Foster, a spokeswoman for the coroner's service, said information from phase one of the public inquiry will be beneficial to the inquest.
She said the government announced the inquiry in February after the inquest had been called in November.
A coroner's inquest is a formal court proceeding that presents evidence related to a death, although it does not find fault.
Such inquests also offer recommendations to prevent similar deaths in the future, but the recommendations don't have to be followed.
James Morton
Sent from my BlackBerry device on the Rogers Wireless Network
Judicial Review
The recent Supreme Court of Canada decision in Dunsmuir v. New Brunswick 2008 SCC 9 is of great importance in judicial review matters.
Put simply, the Court held that there are only two standards of review: correctness and reasonableness.
When applying the correctness standard in respect of jurisdictional and some other questions of law, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question and decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer.
A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. It is a deferential standard which requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.
The determination of what standard to apply depends on the nature of the question decided and whether privative clauses exist. If the question decided is one within the scope of the administrative body's expertise then the reasonableness standard will apply.
James Morton
Sent from my BlackBerry device on the Rogers Wireless Network
Put simply, the Court held that there are only two standards of review: correctness and reasonableness.
When applying the correctness standard in respect of jurisdictional and some other questions of law, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question and decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer.
A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. It is a deferential standard which requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.
The determination of what standard to apply depends on the nature of the question decided and whether privative clauses exist. If the question decided is one within the scope of the administrative body's expertise then the reasonableness standard will apply.
James Morton
Sent from my BlackBerry device on the Rogers Wireless Network
Canadian woman gets 3 1/2 years in prison for killing American boyfriend
A court in northern Thailand has sentenced a Canadian woman to 3 1/2 years in prison in the fatal shooting of her American common-law husband two years ago.
Fifty-year-old Margaret Crane of Victoria, B.C., was sentenced to two years for fatally shooting George Dubie, 56, in the city of Chiang Mai in July 2006.
She also received 1 1/2 years for possessing and carrying a pistol in public.
Judge Thanakorn Pasayapaiboon said during sentencing Thursday that Crane committed the crime as charged.
But he explained the relatively light sentence by saying she did so "in a rage after being provoked and pressured."
The judge added that a confession by Crane meant that the four years she might have served for manslaughter was halved to two.
Crane told the police following her arrest that the dead man - who claimed to be a part-time CNN correspondent-had been physically and verbally abusive and hit her and their six children repeatedly, said her lawyer Pongsatorn Pijadi.
Crane said she went to see Dubie at a restaurant to get money he promised her but was verbally abused, Pongsatorn said.
Witnesses earlier told police that the couple were arguing at a restaurant when Crane pulled out a pistol and fired three shots before fleeing in a car.
"She was under intense pressure," Pongsatorn said.
He denied to comment on Thai media reports that the couple's relationship worsened when Dubie became involved with a Thai woman.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Fifty-year-old Margaret Crane of Victoria, B.C., was sentenced to two years for fatally shooting George Dubie, 56, in the city of Chiang Mai in July 2006.
She also received 1 1/2 years for possessing and carrying a pistol in public.
Judge Thanakorn Pasayapaiboon said during sentencing Thursday that Crane committed the crime as charged.
But he explained the relatively light sentence by saying she did so "in a rage after being provoked and pressured."
The judge added that a confession by Crane meant that the four years she might have served for manslaughter was halved to two.
Crane told the police following her arrest that the dead man - who claimed to be a part-time CNN correspondent-had been physically and verbally abusive and hit her and their six children repeatedly, said her lawyer Pongsatorn Pijadi.
Crane said she went to see Dubie at a restaurant to get money he promised her but was verbally abused, Pongsatorn said.
Witnesses earlier told police that the couple were arguing at a restaurant when Crane pulled out a pistol and fired three shots before fleeing in a car.
"She was under intense pressure," Pongsatorn said.
He denied to comment on Thai media reports that the couple's relationship worsened when Dubie became involved with a Thai woman.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Wednesday, March 19, 2008
Dwight D. Eisenhower
When you appeal to force, there's one thing you must never do - lose.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Top court refuses to dismiss nurses' lawsuit over billing
The B.C. Supreme Court has given a big boost to a landmark lawsuit demanding that provincial authorities enforce medicare's ban on doctors extra-billing patients for necessary medical services.
In a decision released yesterday, Mr. Justice Stephen Kelleher rejected arguments by the provincial government to dismiss the unusual legal action brought by the 25,000-member B.C. Nurses Union.
Government lawyers contended that the union had no right to bring the matter forward and that the case itself was unreasonable.
But Judge Kelleher found that the nurses' petition is well within what a democratic trade union normally does in our society, and the union has a real and continuing interest in the issue of the public medical system.
He further concluded that the union had raised significant issues about the enforcement of the Medicare Protection Act.
In recent years, B.C. has been fined more than any other province for violations of the Canada Health Act, which outlaws extra billing by physicians and medical clinics.
The union's lawsuit charges that the province's Medical Services Commission has failed to take sufficient action against private clinics that illegally charge patients so-called facility fees and doctors who bill patients for services provided free under medicare, a practice sometimes called double-dipping.
Judge Kelleher agreed with the union that the commission must enforce the law. Compliance ... is not a matter of administrative discretion.
However, the judge did decide against the union on one matter. He ruled that it could not press the case on behalf of individual victims of extra billing. They must be directly involved in the litigation.
Union lawyer Marjorie Brown said that should not be difficult. It's far from fatal. We have put forward evidence of various patients denied care or charged for care unlawfully, so it should not be a problem.The nurses' union is seeking a declaration from the court that the Medical Services Commission has, in certain cases, violated medicare legislation by failing to take action against physicians and private clinics for illegally billing their patients.
I conclude that the union has the capacity to bring this petition, Judge Kelleher found.
Union president Debra McPherson welcomed the judge's ruling.
He has substantially broadened the rights of unions to bring matters before the courts on matters of broad public interest ... and recognized that our union has brought serious legal issues before the court, Ms. McPherson said in a statement.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Correction of Teenagers by Force
Last Thursday's Superior Court decision in R. v. Swan, 2008 CanLII 10389 considered the application of s. 43 of the Criminal Code, to teenagers.
SECTION 43: Correction of child by force:
Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
The accused, relied upon s. 43 in defence of a charge of assault claiming parental use of reasonable force to correct his child. There was little doubt that the accused's child, then 15, was 'out of control'. She was using drugs and was involved with a boyfriend who was violent, used drugs and urged her to kill her family.
The facts leading to the charge were that the daughter was physically forced to not attend a party with the boyfriend. No corporal punishment was involved.
The Court held correction by force defence applied and was not limited to young children. Teenagers, in the appropriate circumstances, can be corrected by force.
The Court held:
[28] The trial judge was correct that the summary of Canadian Foundations in Martin's Criminal Code includes the comment by the Supreme Court of Canada that s. 43 does not apply to teenagers, but a review of the case shows those comments were made in the context of a review of corporal punishment. The majority of the court concluded that corporal punishment of teenagers, particularly with the use of objects or blows or slaps to the head, is prohibited because it does not have corrective value. It did not hold, as the trial judge seems to have concluded, that any non-consensual application of force by a parent against a teenager is precluded in all circumstances. To exclude all force against teenagers takes the comments of the court out of context. The statute does not include an age restriction. Canadian Foundations did not prohibit the application of s. 43 in circumstances of restraint or control of an unruly teen. I find that the trial judge erred in concluding that s. 43 of the Criminal Code was not an available defence for consideration in the circumstances. He placed too narrow an interpretation on the meaning of correction and the child's ability to benefit from it. The purpose of the correction was to return her to a safe environment. In these extreme circumstances, the Appellant's use of force as corrective restraint was reasonable. I find the father was justified in his use of force to correct his teenage daughter, M.
Tuesday, March 18, 2008
Oscar Wilde (1854 - 1900)
One should always play fairly when one has the winning cards.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Voter Turnout in Byelections
Just over one in four eligible voters cast a ballot as selected Canadians in Ontario, Saskatchewan and B.C., were given a chance to send a signal to their gridlocked House of Commons. Two of the four races - in Toronto Centre and northern Saskatchewan's Desnethe-Missinippi-Churchill River - had voter turnout of just 25 per cent.
A third race in Vancouver Quadra managed 27.9 per cent, and the Toronto riding of Willowdale was the participation leader at 33.9 per cent turnout.
Combined, the four byelections turned out just 27.9 per cent of the eligible vote, the lowest of any grouping of federal byelections in the last decade.
"I think it's really a decline in interest in general," said Barry Kay, a political scientist at Wilfrid Laurier University in Waterloo, Ont.
"I'm not sure there's truly a definitive answer, certainly not that's unique to (Monday's) results."
Participation in the 2006 general election was 64.7 per cent, up from 61 per cent in 2004 but a far cry from the historical norm in the mid-70s.
Byelections always draw fewer voters, but Monday night's turnout is at least 10 percentage points below the norm.
The two 25-per-cent ridings rank among the five worst byelection turnouts since 1998, a span that covers 32 separate races.
The biggest byelection turnout in the last 10 years was in the May 2005 tilt in Labrador, when 53.4 per cent of eligible voters cast ballots. Liberal Todd Russell won and bolstered Paul Martin's shaky hold on a minority Liberal government.
The lowest turnouts of the last decade both came in 2002, under very different circumstances.
Liberal Massimo Pacetti won his north Montreal riding after just 22.9 per cent of the voters bothered to cast a ballot. Pacetti was running to replace Alfonso Gagliano, the former Liberal public works minister who resigned under a cloud to accept a post as ambassador to Denmark.
That same day, a fellow named Stephen Harper won his seat for the Canadian Alliance in Calgary Southwest, where just 23 per cent of eligible voters turned out. Neither the Liberals nor the Progressive Conservatives ran a candidate against the new Alliance leader, driving down voter participation.
In 2003, a Quebec byelection in Levis managed the third worst turnout of the past decade at just 23.5 per cent.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Oops!
Singer Anne Murray questions handling of flubbed Juno nominees
TORONTO - Canadian singing legend Anne Murray is questioning the integrity of the Juno Awards after initially being left off the list of best album nominees.
An error in the way sales figures were calculated at first omitted Murray, and after being corrected resulted in six candidates vying for a trophy instead of the usual five.
Speaking by phone from a tour stop in Bethesda, Md., Murray said Tuesday that means "the person who is not supposed to be in there could conceivably win."
"It was strange because I knew what my (sales) numbers were and I saw some of the other numbers and I thought, 'Well, how did they figure that?"' Murray says of the initial list of nominees announced Feb. 5 in Toronto.
"Because it is strictly numbers with the album of the year, and so I was surprised."
"You wonder how seriously they take it, the counting and all of that."
The Juno Awards will be handed out April 6 in Calgary.
Ten days after revealing the nominees, officials said they had incorrectly factored in digital sales and should have included Murray's disc, "Duets: Friends and Legends" in the best album category and Jill Barber in the best new artist category.
That put "Duets" up against Avril Lavigne's "The Best Damn Thing," Celine Dion's comeback disc, "Taking Chances," Dion's French disc "D'Elles," Feist's breakout "The Reminder" and Michael Buble's chart-topping "Call Me Irresponsible."
Nominees for the best album category are determined by calculating the average of net sales, in part drawn from figures provided by Nielsen SoundScan. The winner is then voted on by members of the Canadian Academy of Recording Arts and Sciences (CARAS).
CARAS, which runs the Junos, would not say which of the other five albums or best artist nominees would have been excluded if the error had not occurred, but said the differences between the fifth and sixth rankings were very small.
Spokesman Stephen Stohn said the error only came to light when Murray's label, EMI, and others contacted CARAS with concerns a mistake had been made.
In order to make sure the incident is never repeated, Stohn said CARAS has formed a committee of music label representatives that will review all future nominee lists one day before they are officially announced.
"Next year this type of discussion, rather than happening after the nominations are announced, will happen with a very closed and very confidential group of people who are in the know, to just look and say, 'Listen, does this all make sense? Does this jive with what we know?' " said Stohn, who admitted he's had to field questions from several people trying to figure out who are the unintended nominees in the two categories.
Music watcher Larry LeBlanc said the bungle has sent waves through the industry, noting he, too, has been drawn into speculation with other insiders over who is the "weak link" in the best disc category.
"The Anne Murray gaffe was flabbergasting," says LeBlanc, a veteran music journalist who wrote the liner notes for the "Duets" disc.
"It casts a doubt on all but one album" in that category, Murray's disk.
Barber said she has mixed feelings about the incident, in which she was belatedly added to the roster of best new artist nominees.
"I felt a little bit of disappointment that I wasn't included in the initial big unveiling but I mostly just felt really excited to now be included," she said by phone from Vancouver.
Barber faces off against Belly, Jeremy Fisher, Justin Nozuka, Serena Ryder and Suzie McNeil. She's also up for best roots and traditional album.
Despite her comments, Murray said the flap doesn't bother her that much.
"It matters not, it's splitting hairs at that stage," said Murray, who is also up for best pop album and is slated to perform on the show.
"They're all really good-selling albums and all good, upstanding artists, so whoever wins, may the best man win."
Juno organizers also made a mistake in the rap recording of the year category.
After they realized that rapper Classified had been nominated for the same release last year, they dropped him from the category and added rapper JDiggz.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Eyewitness Identification and Appeals
Last week's Superior Court decision in R. v. Edwards, 2008 CanLII 10049 sets out, in a textbook fashion, the law regarding eyewitness identification and appeals from trial decisions based thereon.
While some might question the specific application in the case to the facts, the law is a useful summary:
"[16] It is well understood by this court that eyewitness identification is inherently unreliable.
R. v. Miaponoose 1996 CanLII 1268 (ON C.A.), (1996), 110 C.C.C. (3d) 445 (Ont.C.A.)
[17] It is also clear that some confirmatory circumstantial evidence is preferable to minimize the inherent dangers of eyewitness identification.
R. v. Quercia (1990), 60 C.C.C. (3d) 390 (Ont.C.A.)
[18] The appeal court is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial.
R. v. Burns 1994 CanLII 127 (S.C.C.), (1994), 89 C.C.C. (3d) 193 (S.C.C.)
[19] The test on appeal is very clear and it is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.
R. v. Yebes 1987 CanLII 17 (S.C.C.), (1987), 36 C.C.C. (3d) 417 (S.C.C.) "
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
While some might question the specific application in the case to the facts, the law is a useful summary:
"[16] It is well understood by this court that eyewitness identification is inherently unreliable.
R. v. Miaponoose 1996 CanLII 1268 (ON C.A.), (1996), 110 C.C.C. (3d) 445 (Ont.C.A.)
[17] It is also clear that some confirmatory circumstantial evidence is preferable to minimize the inherent dangers of eyewitness identification.
R. v. Quercia (1990), 60 C.C.C. (3d) 390 (Ont.C.A.)
[18] The appeal court is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial.
R. v. Burns 1994 CanLII 127 (S.C.C.), (1994), 89 C.C.C. (3d) 193 (S.C.C.)
[19] The test on appeal is very clear and it is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.
R. v. Yebes 1987 CanLII 17 (S.C.C.), (1987), 36 C.C.C. (3d) 417 (S.C.C.) "
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
More Bear Stearns
Among the many uncertainties swirling around the proposed bailout of Bear Stearns Cos. Inc. by fellow New York investment bank JPMorgan Chase & Co. is the fate of $2.65-billion in Maple bonds issued in Canada by Bear Stearns in the past four years or so.
For now, investors appear apprehensive as to whether a pledge by JPMorgan to guarantee Bear Stearns's counterparty risk, if it completes its takeover of the company, will extend to the 11 issues of fixed- and floating-rate Canadian-dollar-denominated debt that it has sold with the help of Scotia Capital Inc. and RBC Dominion Securities Inc.
The price of one $250-million issue of 4.35-per-cent Canadian-dollar bonds Bear Stearns issued in January, 2007, hit $67 on Friday, down from $91 in January, according to limited pricing information available from Bloomberg.
"A great chunk of the value of those bonds has been lost, even though a seemingly solvent entity has come in to take [Bear Stearns] over," one Toronto bond specialist said yesterday of the rescue package announced Sunday.
"The reason is that the deal is not yet actually done, and there can always be surprise impediments," he said.
"Plus there is still a certain amount of ambiguity as to just what the [specific] obligations will be for those bonds."
A spokesman for JPMorgan could not immediately be reached, while a spokeswoman for RBC would not comment on the Bear Stearns Maple bonds, citing client confidentiality.
Scotia Capital spokesman Frank Switzer said the firm is "monitoring the situation to see what happens with Bear Stearns, and we're still making a market in those Maple bonds."
Bear Stearns is not the only U.S. investment bank to have issued Maple bonds. Another is Lehman Bros., whose shares plunged 20 per cent yesterday morning amid investor concerns it may be next in line for a cash crunch.
Other apparently stronger firms also have raised Canadian-dollar debt, including JPMorgan Chase, Goldman Sachs Group and Morgan Stanley.
Indeed, RBC and Scotia led a $2.5-billion issue for Morgan Stanley in February of last year that they billed as not only the largest Maple issue to date but also the largest corporate bond deal of any sort in Canadian markets.
Maple bonds took flight in 2005 after Ottawa ditched rules that limited to 30 per cent the amount of foreign assets in retirement and pension plans.
Figures provided by the Investment Industry Association of Canada show that a total of $26.9-billion was raised in 71 Maple bond issues last year.
This compared with $22.2-billion in 68 issues in 2006, $8.9-billion in 28 issues in 2005 and just $1.5-billion in six issues the year before that.
For now, investors appear apprehensive as to whether a pledge by JPMorgan to guarantee Bear Stearns's counterparty risk, if it completes its takeover of the company, will extend to the 11 issues of fixed- and floating-rate Canadian-dollar-denominated debt that it has sold with the help of Scotia Capital Inc. and RBC Dominion Securities Inc.
The price of one $250-million issue of 4.35-per-cent Canadian-dollar bonds Bear Stearns issued in January, 2007, hit $67 on Friday, down from $91 in January, according to limited pricing information available from Bloomberg.
"A great chunk of the value of those bonds has been lost, even though a seemingly solvent entity has come in to take [Bear Stearns] over," one Toronto bond specialist said yesterday of the rescue package announced Sunday.
"The reason is that the deal is not yet actually done, and there can always be surprise impediments," he said.
"Plus there is still a certain amount of ambiguity as to just what the [specific] obligations will be for those bonds."
A spokesman for JPMorgan could not immediately be reached, while a spokeswoman for RBC would not comment on the Bear Stearns Maple bonds, citing client confidentiality.
Scotia Capital spokesman Frank Switzer said the firm is "monitoring the situation to see what happens with Bear Stearns, and we're still making a market in those Maple bonds."
Bear Stearns is not the only U.S. investment bank to have issued Maple bonds. Another is Lehman Bros., whose shares plunged 20 per cent yesterday morning amid investor concerns it may be next in line for a cash crunch.
Other apparently stronger firms also have raised Canadian-dollar debt, including JPMorgan Chase, Goldman Sachs Group and Morgan Stanley.
Indeed, RBC and Scotia led a $2.5-billion issue for Morgan Stanley in February of last year that they billed as not only the largest Maple issue to date but also the largest corporate bond deal of any sort in Canadian markets.
Maple bonds took flight in 2005 after Ottawa ditched rules that limited to 30 per cent the amount of foreign assets in retirement and pension plans.
Figures provided by the Investment Industry Association of Canada show that a total of $26.9-billion was raised in 71 Maple bond issues last year.
This compared with $22.2-billion in 68 issues in 2006, $8.9-billion in 28 issues in 2005 and just $1.5-billion in six issues the year before that.
By-Election Results
Liberal leader Stephane Dion declared Monday "a great day for Liberals" as his party's candidates claimed victory in three of four federal byelections, two in
Within minutes of the victory declarations, Liberal party president Marie Poulin e-mailed a fundraising letter to party faithful, saying "we can all be assured that tonight's successes show Canadians that the Liberal Party is primed and ready for whenever a federal election is called."
Liberals held onto three longtime urban strongholds with voters electing lawyers Bob Rae in Toronto Centre and Martha Hall Findlay in the
Voters denied the Liberals a clean sweep, however, choosing Conservative Rob Clarke, an RCMP officer, over Joan Beatty, a candidate Mr. Dion hand-picked from the ranks of Saskatchewan's provincial New Democratic Party caucus, to run in Desnethe-Missinippi-Churchill River, a sprawling northern riding.
Liberals were counting on at least three byelection wins to provide a morale boost for Mr. Dion and his entourage, still bruised by three byelection defeats in
Early in the campaign, Mr. Dion provoked a backlash in the northern
But Mr. Clarke, the winning Conservative, didn't think the controversial appointment of Ms. Ms. Beatty had much to do with his win.
"I don't think it had much impact with voters. I was concentrating on my own campaign," he said, adding he was "pleasantly surprised" to defeat the well-known northern politician, when he was a virtual unknown.
Farmer and political activist David Orchard, who says he had campaigned for a Liberal nomination contest for three months before hearing of Ms. Beatty's appointment on TV, told Canwest News Service Monday night that Liberals simply "wanted a democratic process." Appointing a candidate was "counterproductive."
But even after her sizable loss, Liberal candidate Joan Ms. Beatty was already looking ahead to the next federal election.
"It just makes me more determined for the next time around," she said. "I will do it again."
NDP candidate Brian Morin expressed concern that new rules put in place a few weeks ago requiring voter identification caused many problems, especially at polls in aboriginal communities in the riding. He charged that hundreds in the northwestern community of La Loche left the polling station without voting because they did not have proper ID.
At a community hall in the Vancouver Quadra riding Monday night, Liberal officials and volunteers watched nervously as the lead see-sawed between Ms. Murray and
Party officials dismissed suggestions that the close results would be a cause of concern for the party, saying that byelections often produce dramatically different results from those in a general election.
"Byelections are funny things," said Craig Munroe, president of the B.C. wing of the federal Liberal party. "The fact is, we're looking at getting a big victory here and I'm quite happy with it."
"Beating the Tories by more than 5% in
Mr. Rae and Hall Findlay had both won almost 60% of the votes in their
Mr. Dion will bolster his team with Mr. Rae and Ms. Hall Findlay, adding them to the ranks of former leadership rivals who sit near him in the House of Commons.
While officials say no decisions have been made on what caucus appointments the newcomers would be given, Mr. Rae, who takes over Toronto Centre, and Ms. Hall Findlay, Willowdale, are automatic members of what Mr. Dion has touted since he won the leadership in December 2006, as his "dream team" of former leadership rivals surrounding him in the Commons.
Mr. Dion named his closest rival, Toronto MP Michael Ignatieff, deputy leader. Mr. Rae has been sharing the post of official Opposition foreign affairs critic with Toronto MP Bryon Wilfert. With Mr. Rae and Ms. Hall Findlay voted in, the only one of eight final leadership contestants who would not have a seat in the Commons would be former
The results boosted Liberals in the 308-seat House of Commons to 97, slightly closing the gap with the now 127-member Conservative government. The Bloc Quebecois holds 48 seats, the New Democratic Party 30. There are four Independent MPs.
The byelections would leave two vacancies in
Mr. Rae, a high-profile public figure, is a lawyer, a seasoned orator, a former New Democratic Party MP and premier of
Ms. Hall Findlay, also a lawyer, is a former businesswoman and competitive skier whose enthusiasm for politics showed when she drove a red bus across
An Undertaking Decision From The Court of Appeal!
Although a fairly technical matter, the fulfillment of undertakings is often fraught with difficulty. An answer may, quite properly, be “I have looked and cannot find any substantive materials”. On the other hand, such an answer may well amount to a failure to fulfill the undertaking – much turns on what the “I have looked” consists of.
The determination of what actually is a proper effort to fulfill an undertaking is seldom considered at the Court of Appeal level. Yesterday’s decision in Willi v. Chapple, 2008 ONCA 188 is a rare exception. The decision made it clear real efforts to fulfill undertakings are to be required. The Court held:
Although the material filed provides an answer to each of the undertakings given, many of these answers are simply unhelpful or unresponsive. By way of example, several of the answers given were that the information or documents sought had already been provided, the appellant did not remember the information being requested or the appellant simply did not know what was being asked of him. In our view, taken as a whole, it is fair to say that the answers provided were not truly responsive to the undertakings given and did not demonstrate an honest attempt to obtain and provide the information and documents sought.
Monday, March 17, 2008
Latimer and Jury Nullification
The story below about Robert Latimer raises an interesting question about jury nullification -- is it something that can be the basis for a re trial?
The Supreme Court has said jury nullification is proper in Canada but that does not mean that a judge is obliged, or even entitled, to suggest that a jury can ignore the law. And in Latimer's case it is clear he is guilty of murder -- to find otherwise would require a jury to judge without reference to the law.
While a pardon seems possible (at least legally) and new trial seems unattainable.
OTTAWA - Robert Latimer shows no sign of wavering in his long quest for vindication in the mercy killing of his daughter, but the legal avenues open to the Saskatchewan farmer at this late date seem few and far between.
As he arrived in Ottawa on Monday, Latimer reiterated his long-standing demand for a new trial - one he believes would finally clear him of criminal wrongdoing.
He had to admit, however, that family, friends and legal advisers aren't optimistic about his chances.
"I don't think anybody has any confidence that I'll get anywhere," he said on arrival at the airport. "But if you don't ask, you definitely won't get anywhere."
Latimer's problem, say legal experts, is that it takes more than a sincere belief that a judge or jury were wrong to overturn their verdicts.
It usually takes new evidence to establish mistaken identity, police misconduct, tainted forensic evidence, or something equally compelling.
Latimer just doesn't appear to fit the legal framework, said Paul Copeland, a Toronto lawyer and co-president of the Association in Defence of the Wrongly Convicted.
"His is not a case that we ever would have gotten involved in," said Copeland. "I don't think Mr. Latimer is in any way, shape or form innocent of the death of his daughter."
Copeland agreed it's a tragic case in which Latimer thought he was doing the right thing when he ended the life of his daughter to free her from the pain of incurable cerebral palsy.
But the fact remains he confessed to police that he put the girl in the cab of a truck and piped in the carbon monoxide that took her life.
"He got convicted mostly because he was very candid, very honest about what he had done," said Copeland. "It's unlawful to do that, and I don't see the law getting changed at any point in the near future."
Former Saskatchewan premier Allan Blakeney, who once lobbied on Latimer's behalf as president of the Canadian Civil Liberties Association, believes a new trial wouldn't do any good.
A better approach, said Blakeney, could be a campaign against the mandatory minimum sentencing provisions that left no leeway for leniency in Latimer's case.
"There are instances where the taking of a life - while not to be encouraged - shouldn't bear the same stamp of moral turpitude that ordinarily attaches to the title of murder," said Blakeney.
There was no immediate comment from Justice Minister Rob Nicholson, but the current Conservative government has shown little enthusiasm for leniency in sentencing under the Criminal Code.
On the contrary, the Tories have brought in legislation broadening the number of offences that carry mandatory minimums.
Given that reality, said Blakeney, Latimer may want to consider applying for a pardon - something the federal cabinet has wide discretion to grant.
The Supreme Court of Canada raised that possibility in a 2001 ruling that otherwise rejected all the arguments mounted by Latimer's lawyers.
"I've read very few Supreme Court judgments that contain so obvious an invitation," said Blakeney.
Until now, however, Latimer has adamantly insisted he doesn't want a pardon for doing something he doesn't think was criminal.
He made the point again Monday as he renewed his demand for a new trial.
"That's the only thing that can set me free," he declared. "A jury should be allowed to consider whether (what) I did was right or wrong."
But two juries have already convicted him of second-degree murder. The first verdict in 1994 was set aside on appeal because the jury selection process was deemed faulty, but the second decision in 1997 was upheld.
That second jury recommended - and the trial judge imposed - a sentence of a year in jail and another year of house arrest. But that was overturned because the mandatory sentence for second-degree murder is life with no parole for 10 years.
The Supreme Court, in its review of the affair, rejected the idea of a so-called constitutional exemption that would have lessened the sentence because of the special circumstances of Latimer's case.
The federal Justice Department, for its part, says Latimer has never filed a formal application for a new trial, despite his repeated public statements that he wants one.
"We have an application brochure that we send out to anybody who makes a request, outlining exactly what we need," said Kerry Scullion, head of the conviction review group at Justice.
He wouldn't comment on the specific facts of the Latimer case. But he noted, as did others, that significant new evidence is usually needed to justify a new trial.
"We can't look at the same facts as a (judge or jury) looked at, or as the court of appeal looked at ... You need something more."
Latimer also remains free to seek a pardon if he changes his mind and chooses to do so, said Scullion.
There are two types available - unconditional pardons that essentially erase a criminal record, and conditional pardons that reduce a sentence.
Applications can be filed through the National Parole Board or the Justice Department, with the final decision resting with cabinet.
Hamilton Spectator Contempt Case
There has been considerable discussion of the rights of the media in protecting confidential sources. The recent National Post case was seen as limiting the rights of media to protect confidential sources.
Today's decision by the Court of Appeal in the Hamilton Spectator contempt case (St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182) suggests the Court will be sympathetic to claims by the media for confidentiality for media sources. Such sources will not be disclosed on a mandatory basis unless there is no other way to obtain the information necessary.
The full decision is available at
Today's decision by the Court of Appeal in the Hamilton Spectator contempt case (St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182) suggests the Court will be sympathetic to claims by the media for confidentiality for media sources. Such sources will not be disclosed on a mandatory basis unless there is no other way to obtain the information necessary.
The full decision is available at
http://www.ontariocourts.on.ca/decisions/2008/march/2008ONCA0182.htm
Sunday, March 16, 2008
Bear close to announcing sale to JPMorgan
NEW YORK/WASHINGTON (Reuters) - Bear Stearns Cos Inc (BSC.N) is close to announcing a deal to sell itself to JPMorgan Chase & Co, (JPM.N) a person familiar with the matter said on Sunday, as the fifth-largest U.S. investment bank strives to save itself.
The Wall Street Journal said on Sunday that Bear Stearns could sell itself for around 2.2 billion, or less than 20 a share.
The low sale price, equal to about two-thirds the companys 30.85 closing share price on Friday, signals how dire the situation is for the 85-year-old investment bank.
Bear Stearns said on Friday it had secured emergency funding from the Federal Reserve after experiencing a run on the bank.
The deal with JPMorgan Chase has not yet been signed, the person said, speaking on condition of anonymity.
The Fed is widely seen as having provided the financing to prevent Bear Stearns from toppling and potentially bringing other banks down with it.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
The Wall Street Journal said on Sunday that Bear Stearns could sell itself for around 2.2 billion, or less than 20 a share.
The low sale price, equal to about two-thirds the companys 30.85 closing share price on Friday, signals how dire the situation is for the 85-year-old investment bank.
Bear Stearns said on Friday it had secured emergency funding from the Federal Reserve after experiencing a run on the bank.
The deal with JPMorgan Chase has not yet been signed, the person said, speaking on condition of anonymity.
The Fed is widely seen as having provided the financing to prevent Bear Stearns from toppling and potentially bringing other banks down with it.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Judgment Must Be On Pleadings
The decision in Magnussen Furniture Inc. v. Mylex Limited, 2008 ONCA 186 deals with, among other things, an interesting pleadings issue.
What if, in response to a claim a defendant pleads something new which, come the trial, the plaintiff wishes to rely on? Assume the plaintiff's Reply did not adopt the position taken by the defendant. Thus, the position is taken only by the defendant and not the plaintiff.
Can the plaintiff seek judgment based on the defendant's plea?
The Court says not.
In Magnussen the plaintiff sued for breach of specific contracts and the defendant denied claiming no breach of a broad, mainly unwritten, framework agreement of which the specific contracts were merely a part. Judgment went on the basis of the framework agreement being breached -- something not pleaded by the plaintiff. The Court of Appeal held this an error:
[30] I do not agree that Mylex's pleading overcomes the identified deficiencies in MFI's pleading. Mylex's pleading does not clearly assert an "overall" contract in the sense articulated by the trial judge. For example, Mylex did not plead any terms of an alleged overall or "original" contract beyond those contained in the purchase orders. In any event, the case that MFI was entitled to pursue – and obliged to prove – at trial was the case framed by its own pleading, not that of the defendant. See generally Kalkinis (Litigation guardian of) v. Allstate Insurance Co. of Canada (1998), 41 O.R. (3d) 528 (C.A.) at 533-34, leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 253; and Authorson (Litigation Administrator of) v. Canada (Attorney General) (2007), 86 O.R. (3d) 321 (C.A.).
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
What if, in response to a claim a defendant pleads something new which, come the trial, the plaintiff wishes to rely on? Assume the plaintiff's Reply did not adopt the position taken by the defendant. Thus, the position is taken only by the defendant and not the plaintiff.
Can the plaintiff seek judgment based on the defendant's plea?
The Court says not.
In Magnussen the plaintiff sued for breach of specific contracts and the defendant denied claiming no breach of a broad, mainly unwritten, framework agreement of which the specific contracts were merely a part. Judgment went on the basis of the framework agreement being breached -- something not pleaded by the plaintiff. The Court of Appeal held this an error:
[30] I do not agree that Mylex's pleading overcomes the identified deficiencies in MFI's pleading. Mylex's pleading does not clearly assert an "overall" contract in the sense articulated by the trial judge. For example, Mylex did not plead any terms of an alleged overall or "original" contract beyond those contained in the purchase orders. In any event, the case that MFI was entitled to pursue – and obliged to prove – at trial was the case framed by its own pleading, not that of the defendant. See generally Kalkinis (Litigation guardian of) v. Allstate Insurance Co. of Canada (1998), 41 O.R. (3d) 528 (C.A.) at 533-34, leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 253; and Authorson (Litigation Administrator of) v. Canada (Attorney General) (2007), 86 O.R. (3d) 321 (C.A.).
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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