Nathan Lane

There are no solutions, there are only rearrangements of problems.

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

Assessments and Solicitors' Negligence

Today's Superior Court decision in Ellyn-Barristers v. Stone, 2008 CanLII 12490 (ON S.C.) makes it clear that issues of solicitors negligence can be raised on an assessment. That said, the focus of an assessment is only indirectly related to negligence. If negligence is the main issue a claim for that ought to be brought.

The Court held:

[7] An assessment officer has the power and jurisdiction to investigate and take into account questions of negligence, carelessness and impropriety. Haber v. Dunnigan [1999] O.J. No. 2685 (S.C.J.) at para. 13; Simpson, wiggle & Painter [1993] O.J. No. 1469 (Gen. Div.) at para. 13.

[8] Feldman, J. as she then was, in Birenbaum, Koffman, Steinberg v. Clapton Construction Ltd. [1992] O.J. No. 282 (Gen. Div.) stated:

I do not believe it is appropriate for a court on an assessment of this sort to try the issue of negligence. If the client wishes to sue the lawyer for negligence, the issue can be tried in the normal manner. On an assessment it is the general skill level of the lawyer which is being evaluated not specific issues of negligence.

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

Beowolf

The gods will do nothing for us that we won't do for ourselves.

I am Beowolf. I have come to kill your monster.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Police don't have to pay when they seek third-party information: high court

The Supreme Court of Canada says police don't have to pay when they demand that third parties, such as phone companies, produce records needed in criminal investigations.

The court says there is nothing in the law to allow judges to order compensation.

The case arose after Telus Mobility was ordered to produce phone records for police in two Ontario investigations.

The company asked for an exemption from the order, saying it shouldn't have to foot the bill for compiling the information.

The case essentially boiled down to whether a judge can tell the police to pay reasonable compensation to the record holder in such cases.

The high court says the only recourse in situations where the costs would be unreasonable is for a judge to partially or fully exempt the company from the order.

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

Appeals of Fact -- They Won't Work!!!

There is no lack of appeal cases pointing out that appeals as to fact will succeed only in the rarest of circumstance.

This deference to trial courts is based partly on the advantages trial courts have in seeing and hearing the evidence first hand. The deference is also based on a recognition that appeal judges are not superior to trial judges (save for precedent) and so an appellant view of the facts of a case is not of any special value.

Appeal courts are intended to ensure the law remains suitable and not to decide who did what to whom: Housen v. Nikolaisen, 2002 SCC 33.

Yesterday's Newfoundland and Labrador Court of Appeal decision in Humby Enterprises Limited v. Newfoundland and Labrador, 2008 NLCA 21 is a good and recent application of the test for appeals of fact. The Court writes:

[2] The allegations made by the appellants required almost exclusively findings of fact or of credibility and, arguably, in one or two instances involved questions of mixed law and fact. The standard of review throughout was, accordingly, palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235.

Furthermore, as stated by the majority in Housen, at para. 36:

The general rule is that, where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

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

Disability Advertising

Am I the only person baffled by the AccessON posters on public transit across Ontario?

The ads, which show situations involving the disabled, are intended to assist in raising awareness of barriers and, it seems, attitudes, that discriminate against those with physical challenges.

A good idea but ... .

Many of the ads are simply incomprehensible.

An example -- a couple is at a theatre, the man is visually impaired, and the usher asks "would your friend prefer to sit up front?".

Is this a comment on the fact that sometimes the disabled are spoken about rather than spoken to? Or is it praise for taking special care of a visually impaired individual? Or have I no clue at all what the ad is about?

Confusing ads do not provoke thought -- they merely annoy.

(By the way, there is an irony placing such ads on transit that is not accessible to most disabled individuals)
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

James Baldwin

The price one pays for pursuing any profession or calling is an intimate knowledge of its ugly side.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Judge finds evidence inadequate in Hells Angels case for criminal organization

An effort by B.C. Crown prosecutors to have a full-patch member of the Hell's Angels convicted of working for a criminal organization failed Thursday when a judge ruled she didn't have enough evidence to come to that finding.

Justice Anne MacKenzie ruled the Crown's case against David Gilles was weak and she found him not guilty of a drug offence.

As a result, she said she couldn't find him guilty of the charge of committing an offence as part of a criminal organization.

The case had been seen as possibly a landmark since it might have resulted in the Hell's Angels being labelled a criminal organization.

But that didn't happen.

MacKenzie concluded Giles' case and that of two associates of the Hell's Angels were intertwined.

Giles, 58, was found not guilty of possession of cocaine and not guilty of the count involving the commission of an offence for a criminal organization.

She found Richard Rempel, 24, and David Revell, 43, guilty of cocaine possession and guilty of cocaine trafficking, but not guilty of the criminal organization charge.
"The Crown's case on Count Two (criminal organization) against all three depends upon a finding of Giles's guilt on Count One," she ruled.

"Count Two is the criminal organization offence and it depends upon the link of the (two) accused to Giles in the commission of the possession offence."

The verdicts followed a 10-month trial that ended last month and involved eight kilograms of cocaine that police seized from three locations in Kelowna.

The trio sat stone-faced, side-by-side in the prisoner's box, as the judge read her lengthy ruling.

During the trial, the Crown alleged the Vancouver-based East End Hells Angels had moved to Kelowna and called themselves the K-Town Crew.

The Crown alleged they were planning to establish a new chapter to take over the lucrative illegal drug trade in the Okanagan.

The judge outlined the extensive effort the Crown made during the trial, saying evidence included intercepted private communications, including telephone and audio recordings, physical surveillance, and expert evidence.

The Crown introduced evidence obtained through searches of the East End Hells Angels clubhouses in Vancouver and Kelowna, as well as Giles's residence, a storage locker, and a hidden compartment in a car.

The judge did not dispute that Giles was a Hells Angels member.

"Giles was the only accused who was a member of the East End Hells Angels at the times alleged on the indictment. Revell and Rempell were not members, and did not have any official status."

Outside court, Giles's lawyer, Richard Fowler, said the decision was correct.

"I think it's entirely appropriate based on the evidence that was presented."

"The Crown relied primarily on two intercepted communications. Transcripts of those communications had been prepared by the police and they were inaccurate in very critical points."

Fowler said the judge was critical of the Crown's case.

"The judge commented on the Crown over-stretching and over-reaching in the inferences - as they call them - to be drawn from the evidence. She said they were speculating."

"And perhaps when one is attempting to go after a particular organization or a particular individual there's a greater tendency to make that mistake."

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

Corporate Representation By Counsel

Today's Superior Court decision in Piscitello v. 652107 Ontario Limited (Rossi & Expert Concrete Masonry And Forming), 2008 CanLII 12118 deals with a few procedural issues including when an artificial person must be represented by counsel.

The decision is very sensible and sets out the issue clearly:

[10] Regarding the request for Ontario to appoint a solicitor of record, I note that Rule 15.01(2) requires a corporate litigant to be represented by a solicitor, except with leave of the court.

[11] Generally, a corporate litigant should be represented by a solicitor. See the case of 924147 Canada Ltd. v. Canadian Film Development Corp., 46 O.R. (2d) 769 at para. 1.

[12] In deciding whether to grant leave to a corporation to be represented by a non-solicitor the court should take into account the internal structure of the corporation, the authority of the proposed representative to act for the corporation, the nature of the action, the complexity of the action, and any prejudice that may be caused to the opposing parties. See the case of 419212 Ontario Ltd. v. Astrochrome Crankshaft Toronto Ltd., 3 O.R. (3d) 116 at para. 13.

[13] In the present case, the issues are modest in complexity. The case involves allegations that Ontario was negligent with respect to the concrete foundation that it constructed for the plaintiff. The non-solicitor representative of Ontario, Fred Rossi, has the authority to speak for Ontario and has the technical knowledge to address the relevant issues.

[14] The fact that Mr. Rossi does not have a legal background and does not have comprehensive knowledge of legal procedures will not be prejudicial to the plaintiff. On the contrary, any failure of Ontario to comply with the Rules of Civil Procedure will likely be prejudicial to Ontario, and will likely be to the benefit of the plaintiff. Therefore, I do not accept the argument that the plaintiff will be prejudiced if Mr. Rossi represents Ontario at trial.

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

Stephane Dion calls on Quebec Liberals to show a little discipline

Stephane Dion wants his Quebec Liberal critics to show a little discipline.

Dion was peppered with questions from reporters on Thursday about recent reports of dissension in his Quebec ranks.

Dion says his party can only win with more solidarity.

"I'm the leader, and I don't want any more indiscipline," Dion said following a meeting of his Quebec wing executive.

But Dion said he's not really interested in punishing dissenters.

"There is a procedure in the party, I'll get recommendations, but for my part, that is not the most important thing," Dion said.

"I want to send a message to all Liberals who are listening: We can win."

The Liberal leader says he wants to see fewer headlines in newspapers about his leadership and more about his party's criticism of Prime Minister Stephen Harper.

As Dion spoke, Deputy Leader Michael Ignatieff fired off a statement denying reports that he told supporters at a recent fundraiser that he is anxiously awaiting Dion's departure.

Ignatieff said the report published Thursday is "entirely false."

"I have worked tirelessly for our party and our leader," Ignatieff said.

"No one has the right to call my loyalty into question."

Dion said Ignatieff, a former rival for the party leadership, is furious over the accusation.

"He's worked very well with me, and I'm happy to have him as deputy leader," Dion said.

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

Tax Cuts Off The Agenda

PCs 'believe' in tax cuts, won't pursue them for now
'We're going to move on to other issues,' Runciman says after waving 'white flag'

Lee Greenberg
The Ottawa Citizen
Thursday, March 27, 2008

TORONTO - Acting Ontario opposition leader Bob Runciman struck a defeated tone outside the provincial legislature yesterday as he blamed special interest groups for his party's decision to suddenly fall silent on the issue of tax cuts following a spend-heavy Liberal budget.

"The reality of the situation is that most of the stakeholders seemed to have rolled over on this, even the ones who were complaining loudly prior to the budget -- whether the Canadian Manufacturers (and Exporters), the (Ontario) Chamber of Commerce," Mr. Runciman told reporters.

"Our position is well known, we believe in it. What's the point of continuing on this, especially when the people who are most impacted have sort of waved the white flag?"
Instead of tax cuts, which had featured prominently in earlier sessions, Mr. Runciman led off question period yesterday by questioning provincial policy on skilled labour hiring. Tories then touched on the issues of job retraining, long-term care, the provincial debt, federal transfers, native affairs and a regional development fund.

In recent weeks, federal Finance Minister Jim Flaherty made tax cuts top of the Conservative agenda through a series of unusually intense attacks on provincial Liberals.

His attacks garnered so much attention, in fact, that the former Harris-era cabinet minister appeared to usurp the role of opposition leader John Tory in the run-up to the budget. Most notably, Mr. Flaherty claimed Ontario was "the last place" for new business investment and likely headed for "have-not" status in the next several years.

Although his party was largely overshadowed throughout the squabble, Mr. Runciman yesterday said he was not frustrated by the tactic. He acknowledged, however, provincial Tories will refocus on issues other than tax cuts.

"In terms of pounding the issue day in and day out in the legislature, no, we're going to move on to other issues," he said.

Meanwhile, it appears provincial Liberals are ready to move on as well, as Finance Minister Dwight Duncan, fresh off his government's $96.2-billion budget, suggested he was ready to forgive and forget Mr. Flaherty yesterday.

"We need to tone down the rhetoric," Mr. Duncan said. "Both of us have an obligation on behalf of the people who sent us (here) ... to put aside whatever partisan differences exist and try to find areas where we can work together."

On Tuesday, federal Conservatives took the unusual step of sending their own representative to the Liberal budget release in Toronto. Federal MP for Nepean-Carleton, Pierre Poilievre took the occasion to accuse the McGuinty Liberals of "killing jobs and smothering the economy."
In the face of such open hostility, Mr. Duncan yesterday relented. He acknowledged, under pressure from Conservative MPP for Nepean-Carleton, Lisa MacLeod, that one quarter of job retraining money laid out in Tuesday's budget originated from the federal government.
Mr. Duncan said he hadn't contacted Mr. Flaherty but will "reach out more formally sometime soon."

A spokesman for the federal finance minister said he would "absolutely" return any call Mr. Duncan might make.

"Minister Flaherty meets regularly with his provincial finance ministers, whether in a group or individually, and he will continue to do that including (with) Ontario," said Dan Miles.
Many have questioned Mr. Flaherty's motives for the recent attacks, which have increased in intensity since the federal budget was tabled in February.

Outwardly, the goal of the unusual tact was to pressure Ontario Liberals into tax cuts to improve competitiveness and stave off impending economic storm clouds. The province's battered manufacturing sector, which accounts for one-fifth of its economy, is expected to continue to hemorrhage jobs in the coming months and years.

Many observers feel his real motives for the attack were more political. Some suggest Mr. Flaherty is shifting blame for broader economic woes to Ontario to alleviate pressure in case of a federal election. Others still believe he is exploiting weakness in the provincial party in order to set up his own return (current leader John Tory, who defeated Mr. Flaherty for that title in 2004, is seatless and recently led the party to a bitter election defeat).

Consideration Not A Requirement For Valid Contractual Amendment

Consideration Not A Requirement For Valid Contractual Amendment

On March 20, 2008 the New Brunswick Court of Appeal released the very important contract decision in NAV Canada v. Greater Fredericton Airport Authority Inc., 2008 NBCA 28 (on the web at http://www.gnb.ca/cour/03COA1/Decisions/march2008-e.asp) . The decision considers Canadian and United Kingdom decisions in considerable detail.

The Court’s decision is lengthy, careful and worth reading in full but can be summarized as follows, at para 31:

“a post-contractual modification, unsupported by consideration, may be enforceable so long as it is established that the variation was not procured under economic duress.”

By removing “fresh consideration” as a condition precedent from contract variation, and focussing on bargaining power the Court has changed the basic analysis that needs to be considered in reviewing a variation of an ongoing contract.

Whether the analysis will adopted across Canada is uncertain but the case requires close consideration – the Court expressly recognizes that it is changing longstanding law but suggests that the change is incremental and warranted.

At para 30 the Court holds:

“The doctrine of consideration and the concept of bargain and exchange should not be frozen in time so as to reflect only the commercial realities of another era. If the courts are willing to formulate and adopt new contractual doctrines, they are equally capable of modifying the old. To the extent that the old doctrines interfere with the policy objectives underscoring the new, change is warranted.”

Adverse Possession

In Land Registry, or qualified Land Titles, adverse possession for 10 years or more leads to a title superior to that of the paper title holder.

A key to adverse possession is that the paper title holder must be excluded from the use to which the paper title holder wishes.

Yesterday's Court of Appeal decision in Tasker v. Badgerow, 2008 ONCA 202 emphasizes the importance of the use of the paper title holder. Unless that use is excluded no adverse possession cannot create a title superior to that of the paper title holder.

The Court held:

[1]               The appellant submits that the application judge committed a palpable and overriding error in holding that he had not acquired title by adverse possession.  Specifically, he submits that the fence around the property is strong evidence of intent to exclude the original owners from its use and that, together with actual open possession for over ten years without objection by the original owners, he has title by adverse possession.

[2]               The appellant's argument ignores the special nature of the land in issue.  The land in question is a Mill Reserve and the trial judge found the claimant's use was not inconsistent with the owners' use.   The trial judge stated at para. 123 of his reasons, there is no evidence, "….that the owners of the Mill Reserve ever intended to do other than keep the land for purposes containing a millpond or head pond resulting from damming the Beaver River."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Bill Gates

Success is a lousy teacher. It seduces smart people into thinking they can't lose.

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

Why Obama's Speech Was Unconvincing

Why Obamas Speech Was Unconvincing

Ed Koch Tue Mar 25, 2:30 PM ET

Barack Obama's speech last week addressing his 20-year relationship with his radical pastor, Rev. Jeremiah Wright, was very well done, yet unconvincing.

Obama sought to explain that relationship and why he could not end this close association, despite the ministers hate-filled rhetoric. He said, "There will no doubt be those for whom my statements of condemnation are not enough. Why associate myself with Rev. Wright in the first place, they may ask? Why not join another church?"

Yes, those are the questions that people are asking.

Many of Rev. Wright's incendiary statements are on videos sold by his church. Minister Louis Farrakhan, a friend of Rev. Wright with whom he traveled to visit Muammar Khadaffi in Libya, also makes his sermons and those of others associated with the Nation of Islam available for sale. Their attacks on the U.S. and Israel often coincide with those of Rev. Wright.

Rev. Wrights sermons charge that the U.S. government gives African-Americans drugs, created AIDS and is deliberately infecting blacks with that disease. His sermons claim that the U.S. unjustifiably nuclear bombed Hiroshima and Nagasaki in World War II, and that 9/11 and the deaths of 3,000 Americans were caused by U.S. foreign policy. He alleges Israeli state terrorism against the Palestinians; calling Israel a "dirty word" and "racist country." He blames Israel for 9/11 and supports the divestment campaign against it, denouncing "Zionism." His venomous thoughts are summed up in his most discussed sermon in which he says the U.S. government "wants us to sing God Bless America. No, no, not God Bless America. God damn America. God damn America for killing innocent people."

Senator Obama in his speech acknowledged that the rantings of his minister are "inexcusable," but stated, "I can no more disown him than I can disown the black community. I can no more disown him than I can my white grandmother - a woman who helped raise me, a woman who sacrificed again and again for me, a woman who loves me as much as she loves anything in this world, but a woman who once confessed her fear of black men who passed by her on the street, and who on more than one occasion has uttered racial or ethnic stereotypes that made me cringe."

Before we discuss his grandmother, lets examine the impact of Rev. Wright's statements on the Senator's two daughters. Nothing says it better than a song from the musical "South Pacific," to wit, "You have to be taught to hate and fear...You've got to be carefully taught." Few dispute that Rev. Wright's sermons are filled with hate.

Why didnt Senator Obama stand up in the church and denounce his hateful statements or, at the very least, argue privately with his minister? It was horrifying to see on a video now viewed across America the congregation rise from the pews to applaud their ministers rants.

Now to Obamas grandmother. There was a time spanning the 70s to the mid-90s when many blacks and whites in large American cities expressed the same feelings on street crime held by Obamas grandmother. Indeed, Reverend Jesse Jackson made similar comments in 1993 at a meeting of his organization, Operation Push, devoted to street crime. According to a November 29, 1993, article in the Chicago Sun-Times, he said, "We must face the No. 1 critical issue of our day. It is youth crime in general and black-on-black crime in particular. Then Jackson told the audience, There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery. Then look around and see somebody white and feel relieved....After all we have been through, he said. Just to think we cant walk down our own streets, how humiliating."

Isnt that exactly what Obamas grandmother was referring to? To equate her fears, similar to Jesse Jackson's, with Wright's anti-American, anti-white, anti-Jew, and anti-Israel rantings is despicable coming from a grandson. In today's vernacular, he threw her under the wheels of the bus to keep his presidential campaign rolling. For shame.

What is it that I and others expected Obama to do? A great leader with conscience and courage would have stood up and faced down anyone who engages in such conduct. I expect a President of the United States to have the strength of character to denounce and disown enemies of America - foreign and domestic -- and yes, even his friends and confidants when they get seriously out of line.

What if a minister in a church attended primarily by white congregants or a rabbi in a synagogue attended primarily by Jews made comparable statements that were hostile to African-Americans? I have no doubt that the congregants would have immediately stood up and openly denounced the offending cleric. Others would have criticized that cleric in private. Some would surely have ended their relationships with their congregation. Obama didnt do any of these things. His recent condemnations of Wrights hate-filled speech are, in my opinion, a case of too little, too late.

It is also disturbing to me that Obamas wife, Michelle, during a speech in Wisconsin last month, said, "For the first time in my adult lifetime, I'm really proud of my country, because it feels like hope is finally making a comeback."

Strange. This is a woman who has had a good life, with opportunities few whites or blacks have been given. When she entered Princeton and Harvard and later became a partner in a prestigious law firm, did'nt she feel proud to be an American? When she and the Senator bought their new home, was there no feeling of accomplishment and pride in being a U.S. citizen? When her husband was elected to the state legislature and subsequently to the United States Senate, did'nt she feel proud of her country?

Senator Obama was asked if he thought his speech changed any minds. He replied he didnt think so, and certainly not of those who werent already for him. A more important question is, whether his 20-year relationship with Wright has done lasting damage to his candidacy. We will soon know.

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

Termination of Employees on Sick Leave

Enhanced damages for wrongful dismissal often follow where an employee has been terminated while ill.

In Wallace v. United Grain Growers Ltd. [1997] 3 S.C.R. 701, the Supreme Court of Canada held that an employee may be compensated, by an extension of the reasonable notice period, when the employer’s conduct in the manner of dismissal falls below an acceptable standard. At para. 98, the court explained the standard that employers must meet, when dismissing an employee, in the following terms:

[A]t a minimum, I believe that in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive.

Wallace is sometimes taken to stand for the proposition that an employee on sick leave cannot be terminated; such termination is seen as insensitive or bad faith

Today’s Court of Appeal decision in Mulvihill v. Ottawa (City), 2008 ONCA 201 makes it clear that termination during sick leave, standing alone, is not objectionable. There must be some added element for such termination to generate Wallace damages.

The Court writes:

[66] … . The mere fact that Ms. Mulvihill was on sick leave at the time of termination does not necessarily mean the dismissal was conducted in an unfair or bad faith manner. There must be other evidence of bad faith, unfair dealing or “playing hardball”, such as cancellation of accommodation for an employee’s illness as a reprisal for the employee having made a human rights claim: see Keays v. Honda Canada Inc. (2006), 82 O.R.(3d) 161 (C.A.).

Bertrand Russell

I would never die for my beliefs because I might be wrong.

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

Mounties strip details from taser reports

A common point made by law and order spokespeople suggesting wider police search powers is 'if you've nothing to hide why do you care if you're searched?'

Good point.

So why does the RCM Police want to strip details and conceal information?

Mounties strip details from taser reports

JIM BRONSKILL AND SUE BAILEY

The Canadian Press

March 24, 2008 at 7:11 PM EDT

OTTAWA -- The RCMP is stripping crucial details about taser firings from public reports as use of the controversial stun guns skyrockets across the country.

A joint investigation by The Canadian Press and CBC found the Mounties are refusing to divulge key information that must be recorded each time they draw their electronic weapons.

As a result, Canadians will know much less about who is being hit with the 50,000-volt guns: whether they were armed, why they were fired on and whether they were injured.

Taser report forms obtained under the Access to Information Act show the Mounties have used the powerful weapons more than 4,000 times since introducing them seven years ago.

Incidents have increased dramatically, topping 1,000 annually in each of the past two years compared with about 600 in 2005. The overwhelming majority of firings were in Western Canada, where the national force often leads front-line policing.

As taser use escalates, however, the RCMP has tightened secrecy.

Information stripped from the forms includes details of several taser cases the Mounties previously made public under the access law. In effect, the RCMP is reclassifying details of taser use - including some telling facts that raised pointed questions about how often the stun guns are fired and why.

A Canadian Press analysis last November of 563 incidents between 2002 and 2005 found three in four suspects tasered by the RCMP were unarmed. Several of those reports suggested a pattern of stun-gun use to keep suspects in line, rather than to defuse major threats.

But the Mounties are now censoring taser report forms to conceal related injuries, duration of shocks, whether the individual was armed, what police tried before resorting to the stun gun and precise dates of firings.

The RCMP cites the need to protect privacy and continuing investigations to justify removing basic details from other reports.

Liberal public safety critic Ujjal Dosanjh scoffed at the explanation.

"That's hogwash. That's absolute nonsense," the former attorney-general for British Columbia said in an interview. "Whether or not someone was armed ... how does that violate privacy?"

Public Safety Minister Stockwell Day was travelling yesterday and not immediately available for comment.

Inspector Troy Lightfoot, who helps oversee RCMP taser use, would not speculate on why the reporting changes were made. But he stressed there are still ways to monitor stun guns and other uses of force.

"I can tell you that there are many accountability systems in place with regards to police actions. You have the courts, you have coroners' inquests, you have a multitude of oversight bodies," he said. "There is a complaints process that can be followed."

The RCMP has more than 2,800 tasers and about 9,100 Mounties are trained to use them.

They can be fired from a distance, laying suspects low with high-voltage bursts that override the central nervous system. They can also be used up close in touch-stun mode, which has been likened to leaning on a hot stove.

Officers say they're a safer, more efficient option than pepper spray or batons.

RCMP reports previously released to The Canadian Press also detailed several head injuries when suspects struck the floor, along with burns caused by stuns and lacerations from sharp taser probes.

It took 15 months and an official complaint before the RCMP would release thousands of pages recording more than 4,000 taser incidents.

There are stark differences between the newly released forms and earlier versions filed about the same confrontations.

For example, the original report on a March 7, 2004, case in northern Manitoba revealed that an unarmed detainee in a Pukatawagan RCMP cell was tasered after only oral intervention. There was no attempt to subdue the inmate through physical force.

The new form says only that the confrontation occurred in 2004. The section entitled Weapons Carried or Immediately Available by Subject is blank.

And there is no longer any description of verbal commands or other police response before the taser was fired.

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

From the Huffington Post

Three Myths About the Democratic Race
MYTH: Barack Obama is running a positive campaign that will unite Americans.

FACT: Barack Obama and his advisers have conducted a divisive "full assault" on Hillary's character.

While talking a lot about the politics of hope, change and unity, Sen. Obama and his campaign have been conducting a relentless and singularly personal assault on Hillary's character. They have blanketed big states with false negative mailers and radio ads and have described Hillary and her campaign as "disingenuous," "divisive," "untruthful," "dishonest," "polarizing," "calculating," "saying whatever it takes to win," "attempting to deceive the American people," "one of the most secretive in America," "deliberately misleading," "literally willing to do anything to win," and "playing politics with war."

This "full assault" on Hillary's integrity and character has reached a new peak since Hillary's victories on March 4th. One of Sen. Obama's top surrogates equated President Clinton with Joe McCarthy; another called Hillary a "monster;" and his campaign manager held an angry conference call claiming that Hillary is "deeply flawed" and has "character issues." That's neither unifying nor hopeful. If Sen. Obama really is the prohibitive favorite some say he is, these negative attacks make absolutely no sense. Why would a frontrunner seek to attack and divide? If Sen. Obama can't unify Democrats in a primary, how can he unify Americans in a general election?

=====

MYTH: The delegate "math" works decisively against Hillary.

FACT: The delegate math reflects an extremely close race that either candidate can win.

"The Math" is actually very simple: with hundreds of delegates still uncommitted, NEITHER candidate has reached the number of delegates required to secure the nomination. And EITHER candidate can reach the required number in the coming weeks and months. That is indisputable. No amount of editorials, articles, blog posts, charts, graphs, calculations, formulas, or projections will change the basic fact that either candidate can win. Pundits who confidently proclaim that Hillary has no hope of winning because of "the math," have counted Hillary out of this race three times before. Each time they based their sober assessments on 'facts' and 'realities' -- and each time they were wrong.

In a campaign with dozens of unexpected twists and turns, bold prognostications should be viewed with a healthy dose of skepticism. Look no further than Sen. Obama's "full assault" on Hillary's character to judge whether he thinks this election is over. The fact is this: Hillary and Sen. Obama are locked in a very close, hard-fought campaign and Hillary is demonstrating precisely the strength of character required of a president. Her resilience in the face of adversity, her faith in the voters, her capacity to rise to every challenge, are part of the reason she is the best general election candidate for Democrats. And it is why she is increasingly strong against John McCain in the polls at the same time that Sen. Obama is dropping against Sen. McCain.

=====

MYTH: For Hillary to win, super delegates must "overturn the will of the people."

FACT: The race is virtually tied, the "will of the people" is split, and both candidates need super delegates to win.

The Obama campaign and Sen. Obama's surrogates have engaged in a sustained public relations effort to convince people that the election is over and that if super delegates perform their established role of choosing a candidate who they believe will make the best nominee and president, they are somehow "overturning the will of the people." They have the audacity to make this argument while quietly and systematically courting those very same super delegates. They are courting them because they know that Sen. Obama needs super delegates to win. The Obama spin is being parroted daily by pundits, but it is patently false. The race is virtually tied; the "will of the people" is split. By virtually every measure, Hillary and Sen. Obama are neck and neck -- separated by less than 130 of the more than 3,100 delegates committed thus far and less than 1% of the 27 million+ votes cast, including Florida and Michigan. Less than 1%.

An incremental advantage for one candidate or the other is hardly a reason for super delegates to change the rules mid-game. Despite the Obama campaign's aggressive spin and pressure, the RULES require super delegates to exercise their best independent judgment, and that is what they will do. Even Sen. Obama's top strategist agrees they should. If not, then why don't prominent Obama endorsers like Senators Kerry (MA) and Kennedy (MA), and Governors Patrick (MA), Napolitano (AZ) and Richardson (NM) follow the will of their constituents and switch their support to Hillary? After all, she won their states. And if this is truly about the "will of the people," then Sen. Obama's short-sighted tactic to run out the clock on a revote in Florida and Michigan accomplishes exactly two things: it disenfranchises Florida and Michigan's voters; and it hurts Democrats in a general election. Apparently, for the Obama campaign, the "will of the people" is just words.

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

Payments announced in class action suit over Carrier Corp. gas furnaces

A class-action lawsuit means payments to some Canadians over certain gas furnances.

The furnaces were 90-plus per cent high-efficiency, including a secondary heat exchanger and were made by Carrier Corp.

Former owners of the gas furnaces will receive payments only if the secondary heat exchanger failed. Carrier denies it did anything wrong, and the settlement is not an admission of wrongdoing.

The settlement includes an opt-out offer. It also includes payments and offers of an enhanced 20-year warranty on their high-efficiency gas furnaces.

June 9 is the deadline for opt outs and objections, while the deadline to submit claims is September 8. Hearings will be held on June 16 when the courts will consider whether to approve the settlement.

More information, forms and a list of qualifying furnace models can be obtained at a toll-free number, 1-877-632-0916
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Max Brand

Sometimes the truth is unbelievable.

Max Brand, a pen name for Frederick Faust, wrote 530 full length books in addition to countless short stories and magazine articles. The creator of Dr. Kildare, he died at 52 during the Second World War.

At the time of his death he left so many usable unpublished manuscripts that Max Brand still, nearly 65 years after he died, releases a new book every four months.

Yet, oddly, Max Brand did not plan to be, or expect to be, a writer. When he was quite young he applied for a job with a cowboy magazine in New York. As a test he was given a sketch of an idea to flesh out into a story line. He was given six hours for the task and came back with a fully written novel.

He never looked back.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Easter Sunday

Professor Hunter's piece, see below, gives a Catholic perspective on the day. Hope, optimism, belief in a better future all spring from the same desire. Of course, one is then drawn back to the question posed in "my God, my God, why have you forsaken me?" (elei elei lema sabachthanei): Matthew 27. The traditional answer is Matthew 28 but that answer does feel somehow bolted on as an afterthought. And even if not, certainly the despair expressed is very real, and the forsaking not just apparent.

Ian Hunter: Easter and the triumph of hope over despair

March 23, 2008, Ian Hunter

Easter Sunday is the holiest day in the Christian calendar, representing the triumph of hope over despair, of life over death.

As it happens, two recent and unrelated events have called public attention to hope, hope being one of the three theological virtues — faith and love the other two.

First, U. S. Senator Barack Obama has made hope a central theme (along with "change") of his campaign for the presidential nomination.
Second, Pope Benedict XVI made hope the subject of his most recent encyclical (Spe Salvi), released just before Christmas.

I think it is safe to predict that the Pope's encyclical will be pondered long after Barack Obama's campaign.

The Pope begins by reminding readers that the greatest Christian evangelist, St. Paul, told the Romans "you are saved by hope" (Romans 8:24). Hope is a gift from God, says the Pope, a trustworthy gift, a gift that enables men and women to survive in arduous, uncertain times.

Hope is a key word in Scripture — in fact, in scripture it is often used interchangeably with faith. So to have hope, or to have faith, is to have received a divine gift. St. Paul told the church at Ephesus that before their encounter with Christ they were "without hope," or, as Pope Benedict expresses it "in a dark world facing a dark future." But the light of Christ illuminates the darkness and assures that they have a future. Oh, true, much of that future remains hidden; "it is not that [Christians] know the details of what awaits them," the Pope writes, "but they know in general terms that their life will not end in emptiness."

To come to know God, says Pope Benedict, is to encounter hope. The earliest Christians — for the most part poor people, uneducated and oppressed — had nothing to hope for, apart from the resurrection of Jesus. What they had was the assurance, often received directly from the apostles who had been there and seen it, that the tomb that once contained the body of Jesus was empty. That was Christian hope, and armed with that hope this ragtag brigade turned the world upside down with a crazy allegiance to another King, an upside-down King, this Jesus, the carpenter's son from Nazareth.

So for the early Christians hope was not a "not yet" kind of hope, rather an "already happened" hope. The Pope explains how the Catholic understanding of hope provides "even now something of the reality that we are waiting for, and this present reality constitutes for us a 'proof' of things that are still not seen."

What is the "present reality" of Christian hope?

Well, God's Church — universal, apostolic, tracing its origin to Christ's own words and to its first Primate, Peter. And the Eucharist, by which we come to share in Christ's body and blood. And the peace of Christ, not that peace which the politician on the campaign trail purports to offer, but rather a peace that passes understanding.

In the section of the encyclical entitled "The True Shape of Christian Hope," Pope Benedict draws a distinction between the material and the ethical realms of life. In the material realm, he says, we observe "continuous progress towards an ever greater mastery of nature." But no comparable mastery can occur in the ethical realm because "man's freedom is always new and he must always make his decisions anew." Therefore, "the moral well-being of the world can never be guaranteed"; man's earthy hopes, and his freedoms, always remain fragile and conditional.

Senator Barack Obama holds out the prospect of hope to an American electorate that is cynical about politicians, dispirited by current prospects, and uncertain about the future. Pope Benedict, by contrast, offers a hope that Christians for two millennia have tested in their daily lives, however perilous or oppressive their personal circumstances might be.

The essence of Christian hope was best summed up in a few words when Jesus said: "In this world, you will have tribulation. Be of good cheer. I have overcome the world."

Catholic Christians have double cause for rejoicing: in hope, and in having in Pope Benedict someone who can express that hope with such conviction, eloquence, and humility.

— Ian Hunter is Professor Emeritus in the Faculty of Law at Western University.

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

Litigation Chill Proves Effective For Pearson?

Toronto Pearson airport erased from critical report after complaint from CEO

March 23, 2008 - 13:16

Dean Beeby, THE CANADIAN PRESS

OTTAWA - Toronto's Pearson airport is being dropped from a global review of airport efficiency after a complaint about its embarrassingly low ranking.

The president and CEO of the Greater Toronto Airports Authority demanded the removal of Pearson from the annual survey of more than 150 major airports in a toughly worded letter last August.

"Should you decline this request, I see no other recourse than to pursue all means at our disposal to receive fair treatment," Lloyd McCoomb warned the lead researcher at the University of British Columbia.

McCoomb cited a "total lack of academic rigor" and "unsupported findings" in the survey, saying the research was "threatening potential harm to our reputation."

The 2007 edition of the report found that Pearson was among the least efficient airports in the world, and that its cost competitiveness was low. The survey noted that aircraft landing fees at Pearson - Canada's largest airport - are the highest in the world.

The survey is published by an international research group of 13 academics, headed by Tae Oum, a business professor at UBC. Detailed results are available for a fee of US$500, to help underwrite research costs, though a free summary is posted on the Internet (www.atrsworld.org/publications.html).

Oum said McCoomb's "intimidating" letter rattled him and, fearing legal action, he consulted the university's lawyer and others. In the end, the research group agreed to cut Pearson from the efficiency analysis in the 2008 edition of the survey, due in late May.

"I have to protect myself," Oum said in an interview.

The 2008 survey, however, will continue to rank Pearson's landing fees and other factual information that is generally available from public sources.

Oum declined to comment on his latest internal findings about Pearson's efficiency, citing McCoomb's letter, but said the airport's ranking has been relatively low for several years.

A spokesman for McCoomb said the president was not threatening legal action but, as a former professor of civil engineering at the University of Toronto, was simply speaking "academic to academic."

"There's no attempt to shut down research," Scott Armstrong said in an interview. "Academic freedom is not an issue.

"What's at issue is we're simply asking that if someone is going to go around making accusations about our company, as any business would be, we're concerned about that, so we want to know where they're coming from."

McCoomb challenged Oum's methodology and asked for access to the raw data so that a third party, hired by the GTAA, could make an independent assessment, Armstrong said. "That request was not honoured."

Oum says the research group decided "to keep the (international) data in house for competitive reasons," but offered to provide McCoomb all the raw data about Pearson, most of which the GTAA itself supplied last summer.

He acknowledged that the group's methodology - well-known among economists - is not the only one applicable, but said even when other analyses of efficiency are used, Pearson's results are similar.

"Basically, your airport needs to improve operating efficiency by benchmarking with more efficient airports," Oum told McCoomb in a written exchange last summer.

The Canadian Press obtained copies of relevant correspondence in the dispute.

At least one subscriber to the three-volume survey said both sides need to resolve the impasse.

"This does concern us," said Fred Gaspar of the Air Transport Association of Canada, representing commercial airlines.

"Clearly, it is in the interest of every stakeholder in commercial aviation to have access to full and transparent information about the costs of the aviation system.

"Dr. Oum is a highly respected academic international aviation researcher, so it would be our hope and expectation that he and the GTAA would be able to sort out any questions related to methodology."

Between 100 and 200 copies of the full airport survey are sold each year, mostly to airlines, investment bankers, airports and industry groups. No other airport has ever demanded to be dropped from the study, Oum said.

The 2007 study's findings echo those of internal Transport Canada "scorecards" for 21 airport authorities across the country, obtained by The Canadian Press.

An analysis of the scorecards by the non-partisan lobby group Transport 2000 found that Pearson ranks poorly on efficiency when measured against comparable airports, such as Calgary and Vancouver.

Critics say an overly ambitious $4.4-billion construction program, along with high rents charged by Transport Canada, have made it difficult for the GTAA to operate efficiently.

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