Canadian Brenda Martin will find out Tuesday if she's to stay in a Mexican jail, or be cleared of money-laundering charges, the judge in her case told CBC News on Friday.
Martin appeared in court this week to plead her case after 26 months in jail, and was hoping for a decision Friday.
The 51-year-old Trenton, Ont., woman is accused of being part of a $60 million pyramid scheme run by Canadian Alyn Waage, who was convicted of fraud in 2006. He is serving a 10-year jail term in a U.S. prison.
Martin says she is innocent and worked for Waage only as a chef, which he has corroborated in court testimony.
Martin's friend Debra Tieleman spoke to the CBC outside the prison in Guadalajara on Friday just before giving Martin the news of yet another delay.
"I think she's going to be devastated," Tieleman said. "I think anybody out there would understand that if you are innocent, every single minute you spend in jail needlessly, it's just not acceptable."
Martin and her supporters have been highly critical of the Canadian government for not acting quickly or forcefully on her behalf until recently.
Prime Minister Stephen Harper and President Felipe Calderon are scheduled to meet with U.S. President George W. Bush on Tuesday in New Orleans for a trilateral summit.
Tieleman said she had heard on Thursday night that Harper was planning a press conference for next week, which drew her suspicion that Martin's release could be timed to coincide with an announcement by the prime minister.
"Is that a coincidence?" Tieleman said. "Are we keeping her in jail for four more days needlessly?"
She added she was still certain her friend would be acquitted and would be coming home with her soon.
"I've read the documents," she said. "I have to believe the judge is a reasonable man, and no reasonable person could read those 350 pages and not come to the conclusion that she had absolutely no involvement."
Visibly weakened by her time in prison, Martin told CBC's Latin America correspondent Connie Watson before the announcement that she is getting extremely anxious and needs to know what will happen to her next.
"Right now, I just want to get out of here. I just want out. I want my life," she said.
Burden of proof on accused
Martin's lawyers appeared upbeat and smiling before meeting with the judge in her case, the CBC's Paul Hunter reported Friday from Guadalajara.
"They had a brief chat with the judge and all of a sudden, their demeanour changed completely," Hunter said.
The lawyers said they would return to the judge's office later Friday after speaking with their client to try to pressure him to render a decision earlier, perhaps by Monday.
"In the end, it's the judge's call," Hunter said.
The nature of Mexico's justice system - which does not include oral trials and puts the onus on the accused to prove his or her innocence rather than on the prosecution to prove guilt - means Martin must wait out the legal process in prison alongside both convicted criminals and others, like her, who have yet to be found guilty of any crime.
Martin's family and friends say imprisonment has taken its toll on Martin, leaving her depressed, heavily sedated and on 24-hour suicide watch in Puente Grande women's prison near Guadalajara.
If the judge rules her not guilty, Martin will be released from prison immediately, her Toronto lawyer Guillermo Cruz Rico told CBC News. If she is found guilty, she could be sentenced to between five and 15 years for the offences, he said.
Either way, Martin will likely return to Canada, since her friends have said she will file paperwork requesting a transfer to a Canadian jail rather than appeal a guilty verdict.
Saturday, April 19, 2008
Passover Greetings
Tonight is the first night of Passover, when the first of the customary two seders is celebrated.
The traditional story of Passover, the liberation of slaves from cruel task masters, has been interpreted by some to represent the struggle everyone faces to liberate their spirit from cruelty and self-imposed constraints.
I would take this opportunity to wish everyone a happy and healthy Passover.
The wonderful spring weather is doubtless a sign of growth and happiness in the summer ahead.
Best wishes!!!
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
The Pope In New York
After an historic visit to a New York synagogue, Pope Benedict XVI issued a ringing call to other Christian leaders to uphold scripture and the ancient creeds as the foundation of Christian doctrine.
"Only by holding fast to sound teaching will we be able to respond to the challenges that confront us in an evolving world. Only in this way will we give unambiguous testimony to the truth of the gospel and its moral teaching," he told 250 national and local Eastern Orthodox and Protestant leaders at St. Joseph Church on Manhattan's Upper East Side.
Among 15 to greet him personally was Pittsburgh's former Lutheran bishop, the Rev. Donald McCoid, now the chief ecumenical and interreligious officer of the Evangelical Lutheran Church in America. Other Pittsburghers present included Greek Orthodox Metropolitan Maximos and Byzantine Catholic Metropolitan Basil Schott.
A short time earlier, Pope Benedict brought Passover greetings to Jews. Although this pope and his predecessor, Pope John Paul II, visited synagogues in the past, this was the first visit to one in the United States. The Park East Synagogue, a modern Orthodox congregation, has special significance for this pope because its leader, Rabbi Marc Schneier, is a survivor of the Holocaust and a fellow German.
The pope spoke briefly, emphasizing the Jewishness of Jesus. "I find it moving to recall that Jesus, as a young boy, heard the words of scripture and prayed in a place such as this," he said.
Shortly afterward, he greeted the Christian leaders as "dear brothers and sisters in Christ." But he quickly delved into difficult theological territory, with words that paralleled the concerns of theological conservatives in the mainline Protestant churches. Several of those churches, especially the Episcopal Church, are torn by conflicts over biblical authority, the divinity and mission of Jesus and over sexual ethics, particularly whether same-sex unions are acceptable to God.
Saying that the "splintering" of Christian communities is confusing to non-Christians, he called all Christians to work for unity built on the saving death and resurrection of Jesus Christ. He did not focus on divisions between Catholics and other Christians, but on theological tensions that divide many churches internally.
"Fundamental Christian beliefs and practices are sometimes changed within communities by so-called 'prophetic actions' " that go against the words of scripture and tradition, he said.
He warned that a creeping relativism is undermining the gospel message with the idea that the only truth is scientific truth, and that faith is based only on feeling and personal experience. This leads to the idea that all religious beliefs can be equally true, he said.
"For Christians to accept this faulty line of reasoning would lead to the notion that there is little need to emphasize objective truth in the presentation of the Christian faith, for one need but follow his or her own conscience and choose a community that best suits his or her individual tastes. The result is seen in the continual proliferation of communities which often eschew institutional structures and minimize the importance of doctrinal content for Christian living," he said.
In addition to the Rev. McCoid, those greeting the pope ranged from Greek Orthodox Archbishop Demetrios to Leith Anderson, president of the National Association of Evangelicals and Baptist Elder Bernice King, daughter of slain civil rights leader Martin Luther King Jr.
The Rev. McCoid said he was deeply moved by the entire gathering, and considered it an example of the unity the pope called them to. The Rev. McCoid is a theological conservative who shares the pope's views on the authority of scripture and the ancient creeds. But he was not certain that the pope was trying to take sides in the internal divisions of Protestant churches.
"He is not afraid to touch on issues that are internal, but he looks for a sense of uniting us across those lines," he said.
The Rev. James Kowalski, dean of the Episcopal Cathedral of St. John the Divine, whose vibrant liturgies are noted for a liberal interpretation of Christianity, said he didn't believe the pope was trying to criticize liberal Episcopalians.
"I think he was trying to say we share a common faith and our divisions draw other people away from that faith," he said. "I don't think he was necessarily aiming at the Episcopal Church, but he was saying that we are translating some things he would not agree with. We would say we are experiencing God's revelation to us in our own time, when it comes to women's ordination or human sexuality."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Friday, April 18, 2008
WARNING - DANGEROUS FRAUD ON COUNSEL
There is a dangerous and very sophisticated fraud being perpetrated against counsel. It has succeeded in defrauding several counsel of very sizable amounts. It appears that the fraud is not covered by customary insurance. My firm was a target but, fortunately, we caught the fraud and were not actual victims.
A client emails or telephones counsel from out of
The client agrees to proceed and sends a modest retainer which clears the bank.
A demand letter is sent by counsel to the debtor and, surprisingly, the debtor negotiates in good faith and, after a little back and forth, sends a cheque for a sizeable amount – several hundred thousand dollars – payable to the law firm in trust. The client is delighted and suggests counsel take a success based fee and remit the remaining funds by wire transfer to an offshore bank. The lawyer takes the fees, remits the rest of the money as requested and goes home having done good work.
Guess what? The “certified cheque” is a forgery and counsel has just wired several hundred thousand dollars off shore.
What makes the fraud so solid is that the client negotiates the fees (something a normal client would do), the debtor seems to exist (they respond to letters and leave a voice mail and have an operating voicemail system) and haggles a bit and, in most cases, a real, if small fee, is actually paid. The lawyer isn’t offered a deal that’s too good to be true (although it is unusal that a client is so happy as to suggest a bonus based on success) and it seems like a legitimate business process.
THE MORAL OF THE STORY IS TO MAKE VERY SURE THAT EVEN “CERTIFIED FUNDS” HAVE CLEARED BEFORE SENDING OUT MONEY.
James Morton
Steinberg Morton Hope &
M2N 6P4
416 225 2777
Blog: http://jmortonmusings.blogspot.com/
Interpretation of an Insurance Contract
Yesterday's decision in Boliden Limited v. Liberty Mutual Insurance Company, 2008 ONCA 288 described the "relevant principles of interpretation of an insurance contract" as follows:
"... exclusion clauses should be strictly and narrowly interpreted against the insurer and where there are ambiguities, the reasonable expectations of the parties are to be given effect".
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
"... exclusion clauses should be strictly and narrowly interpreted against the insurer and where there are ambiguities, the reasonable expectations of the parties are to be given effect".
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Thursday, April 17, 2008
Expert Evidence and Over 80 Trials
Today's decision in R . v. Gibson 2008 SCC 16 is essential for counsel dealing with impaired driving cases. The case summary follows.
The accused, G and M, were charged with driving "over 80" after failing a breathalyzer test. The first breath sample taken from G provided a reading of 120 mg and the second a reading of 100 mg. The two breath samples taken from M each produced a reading of 146 mg. At their respective trials, G and M testified as to their pattern of drinking at the material time and adduced expert evidence to rebut the presumption in s. 258(1)(d.1) of the Criminal Code that the breathalyzer readings provided proof that their blood alcohol concentrations exceeded the legal limit at the time of driving.
The expert opinion evidence concerning the accused’s blood alcohol concentration at the time of driving was expressed in terms of a range of possible blood alcohol concentrations, given the amount of alcohol consumed, the pattern of drinking, and the accused’s age, height, weight and gender. In each case, the range of hypothetical blood alcohol concentrations "straddled" the legal limit of 80 mg. G’s expert testified that, if the pattern of consumption described by G was accurate, his blood alcohol concentration would have been between 40 and 105 mg at the time of driving. M’s expert provided a range of between 64 and 109 mg. In addition, the expert called on behalf of M tested his elimination rate more than six months after the alleged offence. On the basis of this test, the expert determined that M’s elimination rate was 18.5 mg per hour and that M’s blood alcohol concentration would have been 71 mg when he was stopped by the police.
The trial judge accepted both the evidence of G’s consumption and the expert evidence. He was left with a reasonable doubt that G’s blood alcohol content had exceeded the legal limit, and acquitted him. The Supreme Court upheld the acquittal. The Court of Appeal held that evidence of a hypothetical person’s elimination rates was not capable of rebutting the presumption in s. 258(1)(d.1), set aside the acquittal and ordered a new trial.
The trial judge convicted M on the basis that the expert evidence did not tend to show that his blood alcohol content had not exceeded 80 mg. Both the Court of Queen’s Bench and the Court of Appeal upheld the conviction.
Held (Binnie and Deschamps JJ. dissenting): The appeals should be dismissed. Per Bastarache, Abella, Charron and Rothstein JJ.: Straddle evidence constitutes an attempt to defeat the statutory presumption in s. 258(1)(d.1) and, as such, does not tend to show that the accused’s blood alcohol concentration did not exceed the legal limit at the time of the alleged offence. Straddle evidence merely confirms that the accused falls into the category of drivers targeted by Parliament — namely, those who drive having consumed enough alcohol to reach a blood alcohol concentration exceeding 80 mg. Parliament, in creating this offence, clearly regarded driving with this level of consumption as posing sufficient risk to warrant criminalization. It is therefore not enough to show, based on evidence about the accused’s pattern of consumption of alcohol during the relevant time period, that the accused consumed enough alcohol to exceed the legal limit, albeit in a quantity that would place him within a range that may be somewhat different from that which could be extrapolated from the breathalyzer reading. It is clear from the wording of s. 258(1)(d.1) that the presumption can only be rebutted by evidence that tends to show that the accused’s blood alcohol concentration did not exceed the legal limit and, hence, that the accused was not in the targeted category of drivers. In order to displace the presumption, the evidence must show, therefore, that based on the amount of alcohol consumed, the accused’s blood alcohol concentration would not have been above the legal limit at the time of driving, regardless of how fast or slowly the accused may have been metabolizing alcohol on the day in question. The court need not be convinced of that fact; it is sufficient if the evidence raises a reasonable doubt. Furthermore, because it is scientifically undisputed that absorption and elimination rates can vary from time to time, nothing is really gained by post-offence testing of an accused’s elimination rate. It is because of these inherent variations in absorption and elimination rates that the presumption of identity is needed in the first place. In order to facilitate proof of the offence, the presumption treats all persons as one person with a fixed rate of elimination and absorption. Short of reproducing the exact same conditions that existed at the time of the offence, assuming this is even possible, any expert opinion evidence based on actual tests would have to be given with the qualification that absorption and elimination rates vary from time to time, and therefore the accused’s blood alcohol level at the material time cannot be measured with precision. Ultimately, the best evidence an expert can provide is likely to be a range reflecting average elimination rates. The Court should not interpret this legislative scheme, which is intended to combat the social evils resulting from drinking and driving, as requiring accused persons, some of whom may well be battling with alcohol addiction, to submit to drinking tests in order to make out a defence. In the present appeals, the expert opinion evidence, in placing the accused’s blood alcohol concentration both above and below the legal limit at the time of driving depending on the accused’s actual rate of absorption and elimination on the day in question, did no more than confirm that the accused fell within the category of drivers targeted by Parliament and did not rebut the statutory presumption under s. 258(1)(d.1). Consequently, M’s conviction is upheld and, in G’s case, the order for a new trial is confirmed.
Per McLachlin C.J. and LeBel and Fish JJ.: Both expert evidence of alcohol elimination rates in the general population and straddle evidence can be relevant and are therefore not inherently inadmissible for the purpose of rebutting the presumption in s. 258(1)(d.1). However, the probative value of evidence based on rates in the general population will often be so low that it fails to raise a reasonable doubt that the accused had a blood alcohol content exceeding 80 mg. Not only do elimination rates vary between individuals, but each individual’s rate will vary depending on such factors as the amount of food consumed, the type of alcohol consumed and the pattern of consumption. Thus, evidence that the blood alcohol content of an average person of the sex, age, height and weight of the accused would have been at a certain level or within a certain range will rarely be sufficiently probative to raise a reasonable doubt about the presumed fact that the actual blood alcohol content of the accused at the time of the offence exceeded the legal limit. Expert evidence of the elimination rate of the accused as established by a test is potentially more probative of the blood alcohol content he or she had while driving than evidence based on elimination rates in the general population. However, because an individual’s elimination rate varies over time based on a number of factors, the probative value of evidence based on the elimination rate of the accused will logically depend on the number of variables controlled for in the elimination rate test. Evidence of the elimination rate of the accused at the time of the offence would be more likely to rebut the presumption in s. 258(1)(d.1) than mere evidence of the elimination rate of the accused under testing conditions. Straddle evidence will rarely suffice on its own to raise a reasonable doubt as to the accuracy of a breathalyzer result. Once straddle evidence is admitted, it will be left to the trier of fact to determine whether that evidence, considered in light of the evidence as a whole, raises a reasonable doubt as to the accuracy of the breathalyzer result. Straddle evidence and the other evidence relied on by the defence will warrant an acquittal only if it tends to prove that the blood alcohol level of the accused at the relevant time did not exceed 80 mg. A wide straddle range cannot be considered evidence to the contrary of the breathalyzer result, since it does not tend to prove that the accused was at or under the legal limit. Similarly, a range that is overwhelmingly above the legal limit may be of limited probative value. The more that is known about probabilities within the range, the more probative the evidence may be. To foreclose the possibility of straddle evidence raising a reasonable doubt and rebutting the presumption in s. 258(1)(d.1) would inappropriately restrict the ability of an accused to defend him- or herself. The wording of the provision gives no indication of a legislative intent to render the fictional presumption absolute or irrebutable in practice. It also leaves open the possibility of discrepancies between test results obtained at the time of testing and the blood alcohol content of the accused at the time of the offence. A mandatory presumption that requires the accused to raise a reasonable doubt about a fact that has not been proved by the Crown may prima facie be a limit on the presumption of innocence protected by s. 11(d) of the Canadian Charter of Rights and Freedoms that needs to be justified under s. 1. In these cases, the expert’s straddle evidence adduced by G is sufficiently relevant to be admissible and is not without foundation. However, given that it is based on elimination rates in the general population, consists of a wide range of values and includes values significantly above the legal limit, it does not, as is required to rebut the presumption in s. 258(1)(d.1), raise a reasonable doubt that G’s blood alcohol content actually exceeded 80 mg. Although the expert evidence adduced by M was also admissible, it would have been unreasonable for the trial judge to find that the straddle evidence indicating a range of 64 to 109 mg was capable of raising a reasonable doubt. The evidence of M’s own elimination rate, which supported a blood alcohol content of 71 mg, was also rejected by the trial judge because the test used to determine the elimination rate had not sufficiently approximated the conditions at the time of the alleged offence, which limited its relevance to the fact M was seeking to prove. There is no reason to interfere with that finding. In the result, M’s conviction is upheld and, in G’s case, the order for a new trial is confirmed.
Per Binnie and Deschamps JJ. (dissenting): Evidence that tends to show that the blood alcohol concentration of the accused at the time of interception did not exceed the legal limit based on an elimination rate of 15 mg per hour, or on the actual elimination rate of the accused according to test results, will suffice to raise a reasonable doubt. There is a body of scientific evidence that shows that members of the general population tend to eliminate alcohol at a rate faster than 15 mg per hour. It would therefore be speculative to assume, without any evidence, that a given accused is different from the majority of the general population and is a slow eliminator. Unless the scientific information that supports using 15 mg as a marker is contradicted by persuasive expert evidence, a judge should acquit if the prevailing direction of the straddle range favours a level that does not exceed the legal limit. The prevailing direction approach affords the accused a defence that is sufficiently complete without requiring post-offence testing. As a matter of judicial policy, requiring accused persons to submit to drinking tests should not be encouraged by the courts. Nevertheless, post-offence testing is not, per se, irrelevant or lacking in probative value. Just as evidence of average elimination rates in the general population is not discredited simply because such rates do not replicate the situation of an accused, evidence of post-offence testing designed to determine the elimination rate of an individual accused should not be rejected for that reason alone. An elimination rate based on test results may constitute evidence that tends to show that an accused eliminates alcohol at a rate faster than 15 mg per hour. Although the weight given to post-offence testing may depend on a number of variables, this should not be interpreted as requiring replication of the conditions of absorption. In G’s case, the expert for the defence testified that G’s blood alcohol content while he was driving would, based on average elimination rates, have been between 40 and 105 mg. There is agreement with the trial judge’s finding that the prevailing direction of the range favoured a level that did not exceed the legal limit, and that this was sufficient evidence for an acquittal. Therefore, G’s acquittal should be restored. In the case of M, the Crown failed to undermine the weight of evidence of post-offence testing by either cross examining the expert or adducing contradictory expert evidence at trial. Although M’s elimination rate according to the expert’s test may not be the same as his rate on the day of the offence, nothing in the record suggests that any variation between the actual and tested elimination rates would be material or would cast doubt on the usefulness of the expert evidence. Nevertheless, the expert’s post-offence tests can constitute evidence to the contrary only if M’s consumption scenario is found to be credible. Here, the trial judge made no express findings on this issue. He rejected the expert’s evidence on the basis that the midpoint of the straddle range was above the legal limit and that the food and the type of alcohol consumed had not been taken into account in the post-offence tests. As he had dismissed the expert testimony, the trial judge found M guilty without making any findings concerning his credibility. Since this Court cannot enter an acquittal, as a finding on M’s credibility would have had to be made first, a new trial should be ordered on the charge of driving with a blood alcohol level exceeding the legal limit.
The accused, G and M, were charged with driving "over 80" after failing a breathalyzer test. The first breath sample taken from G provided a reading of 120 mg and the second a reading of 100 mg. The two breath samples taken from M each produced a reading of 146 mg. At their respective trials, G and M testified as to their pattern of drinking at the material time and adduced expert evidence to rebut the presumption in s. 258(1)(d.1) of the Criminal Code that the breathalyzer readings provided proof that their blood alcohol concentrations exceeded the legal limit at the time of driving.
The expert opinion evidence concerning the accused’s blood alcohol concentration at the time of driving was expressed in terms of a range of possible blood alcohol concentrations, given the amount of alcohol consumed, the pattern of drinking, and the accused’s age, height, weight and gender. In each case, the range of hypothetical blood alcohol concentrations "straddled" the legal limit of 80 mg. G’s expert testified that, if the pattern of consumption described by G was accurate, his blood alcohol concentration would have been between 40 and 105 mg at the time of driving. M’s expert provided a range of between 64 and 109 mg. In addition, the expert called on behalf of M tested his elimination rate more than six months after the alleged offence. On the basis of this test, the expert determined that M’s elimination rate was 18.5 mg per hour and that M’s blood alcohol concentration would have been 71 mg when he was stopped by the police.
The trial judge accepted both the evidence of G’s consumption and the expert evidence. He was left with a reasonable doubt that G’s blood alcohol content had exceeded the legal limit, and acquitted him. The Supreme Court upheld the acquittal. The Court of Appeal held that evidence of a hypothetical person’s elimination rates was not capable of rebutting the presumption in s. 258(1)(d.1), set aside the acquittal and ordered a new trial.
The trial judge convicted M on the basis that the expert evidence did not tend to show that his blood alcohol content had not exceeded 80 mg. Both the Court of Queen’s Bench and the Court of Appeal upheld the conviction.
Held (Binnie and Deschamps JJ. dissenting): The appeals should be dismissed. Per Bastarache, Abella, Charron and Rothstein JJ.: Straddle evidence constitutes an attempt to defeat the statutory presumption in s. 258(1)(d.1) and, as such, does not tend to show that the accused’s blood alcohol concentration did not exceed the legal limit at the time of the alleged offence. Straddle evidence merely confirms that the accused falls into the category of drivers targeted by Parliament — namely, those who drive having consumed enough alcohol to reach a blood alcohol concentration exceeding 80 mg. Parliament, in creating this offence, clearly regarded driving with this level of consumption as posing sufficient risk to warrant criminalization. It is therefore not enough to show, based on evidence about the accused’s pattern of consumption of alcohol during the relevant time period, that the accused consumed enough alcohol to exceed the legal limit, albeit in a quantity that would place him within a range that may be somewhat different from that which could be extrapolated from the breathalyzer reading. It is clear from the wording of s. 258(1)(d.1) that the presumption can only be rebutted by evidence that tends to show that the accused’s blood alcohol concentration did not exceed the legal limit and, hence, that the accused was not in the targeted category of drivers. In order to displace the presumption, the evidence must show, therefore, that based on the amount of alcohol consumed, the accused’s blood alcohol concentration would not have been above the legal limit at the time of driving, regardless of how fast or slowly the accused may have been metabolizing alcohol on the day in question. The court need not be convinced of that fact; it is sufficient if the evidence raises a reasonable doubt. Furthermore, because it is scientifically undisputed that absorption and elimination rates can vary from time to time, nothing is really gained by post-offence testing of an accused’s elimination rate. It is because of these inherent variations in absorption and elimination rates that the presumption of identity is needed in the first place. In order to facilitate proof of the offence, the presumption treats all persons as one person with a fixed rate of elimination and absorption. Short of reproducing the exact same conditions that existed at the time of the offence, assuming this is even possible, any expert opinion evidence based on actual tests would have to be given with the qualification that absorption and elimination rates vary from time to time, and therefore the accused’s blood alcohol level at the material time cannot be measured with precision. Ultimately, the best evidence an expert can provide is likely to be a range reflecting average elimination rates. The Court should not interpret this legislative scheme, which is intended to combat the social evils resulting from drinking and driving, as requiring accused persons, some of whom may well be battling with alcohol addiction, to submit to drinking tests in order to make out a defence. In the present appeals, the expert opinion evidence, in placing the accused’s blood alcohol concentration both above and below the legal limit at the time of driving depending on the accused’s actual rate of absorption and elimination on the day in question, did no more than confirm that the accused fell within the category of drivers targeted by Parliament and did not rebut the statutory presumption under s. 258(1)(d.1). Consequently, M’s conviction is upheld and, in G’s case, the order for a new trial is confirmed.
Per McLachlin C.J. and LeBel and Fish JJ.: Both expert evidence of alcohol elimination rates in the general population and straddle evidence can be relevant and are therefore not inherently inadmissible for the purpose of rebutting the presumption in s. 258(1)(d.1). However, the probative value of evidence based on rates in the general population will often be so low that it fails to raise a reasonable doubt that the accused had a blood alcohol content exceeding 80 mg. Not only do elimination rates vary between individuals, but each individual’s rate will vary depending on such factors as the amount of food consumed, the type of alcohol consumed and the pattern of consumption. Thus, evidence that the blood alcohol content of an average person of the sex, age, height and weight of the accused would have been at a certain level or within a certain range will rarely be sufficiently probative to raise a reasonable doubt about the presumed fact that the actual blood alcohol content of the accused at the time of the offence exceeded the legal limit. Expert evidence of the elimination rate of the accused as established by a test is potentially more probative of the blood alcohol content he or she had while driving than evidence based on elimination rates in the general population. However, because an individual’s elimination rate varies over time based on a number of factors, the probative value of evidence based on the elimination rate of the accused will logically depend on the number of variables controlled for in the elimination rate test. Evidence of the elimination rate of the accused at the time of the offence would be more likely to rebut the presumption in s. 258(1)(d.1) than mere evidence of the elimination rate of the accused under testing conditions. Straddle evidence will rarely suffice on its own to raise a reasonable doubt as to the accuracy of a breathalyzer result. Once straddle evidence is admitted, it will be left to the trier of fact to determine whether that evidence, considered in light of the evidence as a whole, raises a reasonable doubt as to the accuracy of the breathalyzer result. Straddle evidence and the other evidence relied on by the defence will warrant an acquittal only if it tends to prove that the blood alcohol level of the accused at the relevant time did not exceed 80 mg. A wide straddle range cannot be considered evidence to the contrary of the breathalyzer result, since it does not tend to prove that the accused was at or under the legal limit. Similarly, a range that is overwhelmingly above the legal limit may be of limited probative value. The more that is known about probabilities within the range, the more probative the evidence may be. To foreclose the possibility of straddle evidence raising a reasonable doubt and rebutting the presumption in s. 258(1)(d.1) would inappropriately restrict the ability of an accused to defend him- or herself. The wording of the provision gives no indication of a legislative intent to render the fictional presumption absolute or irrebutable in practice. It also leaves open the possibility of discrepancies between test results obtained at the time of testing and the blood alcohol content of the accused at the time of the offence. A mandatory presumption that requires the accused to raise a reasonable doubt about a fact that has not been proved by the Crown may prima facie be a limit on the presumption of innocence protected by s. 11(d) of the Canadian Charter of Rights and Freedoms that needs to be justified under s. 1. In these cases, the expert’s straddle evidence adduced by G is sufficiently relevant to be admissible and is not without foundation. However, given that it is based on elimination rates in the general population, consists of a wide range of values and includes values significantly above the legal limit, it does not, as is required to rebut the presumption in s. 258(1)(d.1), raise a reasonable doubt that G’s blood alcohol content actually exceeded 80 mg. Although the expert evidence adduced by M was also admissible, it would have been unreasonable for the trial judge to find that the straddle evidence indicating a range of 64 to 109 mg was capable of raising a reasonable doubt. The evidence of M’s own elimination rate, which supported a blood alcohol content of 71 mg, was also rejected by the trial judge because the test used to determine the elimination rate had not sufficiently approximated the conditions at the time of the alleged offence, which limited its relevance to the fact M was seeking to prove. There is no reason to interfere with that finding. In the result, M’s conviction is upheld and, in G’s case, the order for a new trial is confirmed.
Per Binnie and Deschamps JJ. (dissenting): Evidence that tends to show that the blood alcohol concentration of the accused at the time of interception did not exceed the legal limit based on an elimination rate of 15 mg per hour, or on the actual elimination rate of the accused according to test results, will suffice to raise a reasonable doubt. There is a body of scientific evidence that shows that members of the general population tend to eliminate alcohol at a rate faster than 15 mg per hour. It would therefore be speculative to assume, without any evidence, that a given accused is different from the majority of the general population and is a slow eliminator. Unless the scientific information that supports using 15 mg as a marker is contradicted by persuasive expert evidence, a judge should acquit if the prevailing direction of the straddle range favours a level that does not exceed the legal limit. The prevailing direction approach affords the accused a defence that is sufficiently complete without requiring post-offence testing. As a matter of judicial policy, requiring accused persons to submit to drinking tests should not be encouraged by the courts. Nevertheless, post-offence testing is not, per se, irrelevant or lacking in probative value. Just as evidence of average elimination rates in the general population is not discredited simply because such rates do not replicate the situation of an accused, evidence of post-offence testing designed to determine the elimination rate of an individual accused should not be rejected for that reason alone. An elimination rate based on test results may constitute evidence that tends to show that an accused eliminates alcohol at a rate faster than 15 mg per hour. Although the weight given to post-offence testing may depend on a number of variables, this should not be interpreted as requiring replication of the conditions of absorption. In G’s case, the expert for the defence testified that G’s blood alcohol content while he was driving would, based on average elimination rates, have been between 40 and 105 mg. There is agreement with the trial judge’s finding that the prevailing direction of the range favoured a level that did not exceed the legal limit, and that this was sufficient evidence for an acquittal. Therefore, G’s acquittal should be restored. In the case of M, the Crown failed to undermine the weight of evidence of post-offence testing by either cross examining the expert or adducing contradictory expert evidence at trial. Although M’s elimination rate according to the expert’s test may not be the same as his rate on the day of the offence, nothing in the record suggests that any variation between the actual and tested elimination rates would be material or would cast doubt on the usefulness of the expert evidence. Nevertheless, the expert’s post-offence tests can constitute evidence to the contrary only if M’s consumption scenario is found to be credible. Here, the trial judge made no express findings on this issue. He rejected the expert’s evidence on the basis that the midpoint of the straddle range was above the legal limit and that the food and the type of alcohol consumed had not been taken into account in the post-offence tests. As he had dismissed the expert testimony, the trial judge found M guilty without making any findings concerning his credibility. Since this Court cannot enter an acquittal, as a finding on M’s credibility would have had to be made first, a new trial should be ordered on the charge of driving with a blood alcohol level exceeding the legal limit.
GAS PRICE ALERT!
Gas prices will go up again tonight at midnight by almost 3 cents to 120.0 in the GTA, 120.3 in the Ottawa area and 131.9 in the Montreal area.
Diesel prices will stay relatively flat at 126.1 in the GTA, 128.1 in the Ottawa area and 138.4 in the Montreal area.
For tomorrow's gas and diesel prices today visit http://www.mcteague.ca/WebPages/gas_price_today.htm
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James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Judge's Duty To Intervene
As a general rule, the duty of a trial judge is to adjudicate on matters in dispute and otherwise to leave matters to counsel.
Where counsel choose not to raise issues a judge is not to raise the issue -- indeed, counsel may well have very good reasons to let something pass, reasons the judge cannot have any inkling of.
Thus, otherwise inadmissible evidence, if not objected to, will usually be admitted without discussion and will (seldom) be grounds for appeal.
The strictness of the limit on the judge intervening is greater in civil matters and less in criminal, where the judge has to ensure justice is properly served; the liberty and honour of the subject being far more important than mere financial disputes the judge in a criminal case has a broader duty than in other matters. Further, in any matter, where a party is self represented the judge properly should ensure that the party at least knows of the potential legal issues.
A nice question is the duty of a judge where counsel is manifestly inept -- probably the best view is that is such a case the judge might gently raise significant issues as in 'might the Rule in Browne v Dunn be relevant counsel?'
Regardless, the failure to raise an issue at trial makes an appeal on the point almost certain to fail. Yesterday's decision in R. v. Flader, 2008 ONCA 275 is a case in point.
The failure to object to certain physical evidence made the appeal based on the evidence's admission hopeless.
The Court ruled:
[1] In the circumstances, the two pairs of underwear found in the possession of the appellant when he was arrested, one a woman’s size underwear and the other a children’s size underwear, were relevant to the charge of possession of child pornography. No objection was made to the relevance of this evidence at trial.
[2] We have considered the submission, also made for the first time on appeal, that the prejudicial effect of this evidence outweighed its probative value and that the evidence should have been excluded on that basis. We are not satisfied that the prejudicial effect would necessarily have outweighed the probative value of the evidence in the circumstances of this case. It cannot be said that the trial judge erred in failing to take the initiative and exclude the evidence absent any request that she do so. Nor has the appellant demonstrated any miscarriage of justice.
Where counsel choose not to raise issues a judge is not to raise the issue -- indeed, counsel may well have very good reasons to let something pass, reasons the judge cannot have any inkling of.
Thus, otherwise inadmissible evidence, if not objected to, will usually be admitted without discussion and will (seldom) be grounds for appeal.
The strictness of the limit on the judge intervening is greater in civil matters and less in criminal, where the judge has to ensure justice is properly served; the liberty and honour of the subject being far more important than mere financial disputes the judge in a criminal case has a broader duty than in other matters. Further, in any matter, where a party is self represented the judge properly should ensure that the party at least knows of the potential legal issues.
A nice question is the duty of a judge where counsel is manifestly inept -- probably the best view is that is such a case the judge might gently raise significant issues as in 'might the Rule in Browne v Dunn be relevant counsel?'
Regardless, the failure to raise an issue at trial makes an appeal on the point almost certain to fail. Yesterday's decision in R. v. Flader, 2008 ONCA 275 is a case in point.
The failure to object to certain physical evidence made the appeal based on the evidence's admission hopeless.
The Court ruled:
[1] In the circumstances, the two pairs of underwear found in the possession of the appellant when he was arrested, one a woman’s size underwear and the other a children’s size underwear, were relevant to the charge of possession of child pornography. No objection was made to the relevance of this evidence at trial.
[2] We have considered the submission, also made for the first time on appeal, that the prejudicial effect of this evidence outweighed its probative value and that the evidence should have been excluded on that basis. We are not satisfied that the prejudicial effect would necessarily have outweighed the probative value of the evidence in the circumstances of this case. It cannot be said that the trial judge erred in failing to take the initiative and exclude the evidence absent any request that she do so. Nor has the appellant demonstrated any miscarriage of justice.
TTC union eyes Monday a.m. strike -- Head of local says work stoppage is likely if a deal is not reached by Sunday
JEFF GRAY
Globe and Mail Update
April 17, 2008
In a move to heat up contract negotiations, the head of the TTC's largest union says "more likely than not" he will warn today that commuters should expect a Monday morning strike to halt all buses, subways and streetcars unless a deal is reached by Sunday.
Bob Kinnear, head of local 113 of the Amalgamated Transit Union, has scheduled a press conference for 11:30 a.m., during which he could give slightly more than his promised 48 hours notice of a walkout that would paralyze the city's public transit system.
Wednesday afternoon, he said no decision had been made, but warned that such a move may be needed to put additional pressure on the Toronto Transit Commission.
"They [TTC management] know where they've got to be in order to get an agreement and what they're probably doing is posturing until the clock is ticking," Mr. Kinnear told The Globe and Mail on Wednesday. "We'll probably see some movement over the weekend if in fact we go to the press and indicate our 48 hours."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Globe and Mail Update
April 17, 2008
In a move to heat up contract negotiations, the head of the TTC's largest union says "more likely than not" he will warn today that commuters should expect a Monday morning strike to halt all buses, subways and streetcars unless a deal is reached by Sunday.
Bob Kinnear, head of local 113 of the Amalgamated Transit Union, has scheduled a press conference for 11:30 a.m., during which he could give slightly more than his promised 48 hours notice of a walkout that would paralyze the city's public transit system.
Wednesday afternoon, he said no decision had been made, but warned that such a move may be needed to put additional pressure on the Toronto Transit Commission.
"They [TTC management] know where they've got to be in order to get an agreement and what they're probably doing is posturing until the clock is ticking," Mr. Kinnear told The Globe and Mail on Wednesday. "We'll probably see some movement over the weekend if in fact we go to the press and indicate our 48 hours."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
U. S. Supreme Court Finds Lethal Injection Constitutional
The U. S. Supreme Court ruled yesterday that the most common method of lethal injection used to execute condemned prisoners is constitutional, a decision sure to restart the nation's dormant death chambers.
But the court's splintered reasoning seems likely to result in more challenges to the way capital punishment is administered in the United States.
In a 7 to 2 vote, the justices said the three-drug combination used by Kentucky, similar to that used by the federal government and 34 other states, does not carry a risk of substantial pain so great as to violate the Constitution's ban on cruel and unusual punishment.
"Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual," wrote Chief Justice John G. Roberts Jr. The decision's most likely immediate effect is to dissolve the de facto moratorium on executions that has taken root since the court announced in September that it would decide the case, Baze v. Rees.
Just hours after yesterday's decision was announced, Virginia Gov. Timothy M. Kaine lifted the hold he had placed on capital punishment. But commentators as diverse as Amnesty International and Justice Clarence Thomas predicted that the divided court's decision is, in Thomas's words, "sure to engender more litigation."
"I assumed that our decision would bring the debate about lethal injection as a method of execution to a close," wrote Justice John Paul Stevens, who used the occasion to announce that his 33-year tenure on the court has led him to believe that capital punishment is unconstitutional. "It now seems clear that it will not." That is because even though seven justices -- including Stevens, who said the court's precedents required his consent -- found Kentucky's procedures constitutional, a majority could not agree on the proper standard with which to judge execution practices.
Roberts said they should be examined to determine whether they pose a "substantial risk of serious harm," rather than the "unnecessary risk" proposed by lawyers for two men on Kentucky's death row. But only Justices Anthony M. Kennedy and Samuel A. Alito Jr. agreed with him.
Thomas, joined by Justice Antonin Scalia, rejected that test and said a method of execution violates the Eighth Amendment's prohibition on cruel and unusual punishment "only if it is deliberately designed to inflict pain."
Justice Stephen G. Breyer agreed with Stevens in saying Kentucky's process meets the court's standards, but he said he disagrees with Roberts's test as well.
Justice Ruth Bader Ginsburg, joined by Justice David H. Souter, dissented, saying execution methods must not create an "untoward, readily avoidable risk of inflicting severe and unnecessary pain." She said she could not be sure Kentucky had taken all necessary safeguards.
It was a somewhat fitting exercise for a court that spends much of its time on capital punishment, even as the number of death sentences imposed nationally continues to fall.
After issuing the decision yesterday in Baze, the justices heard arguments in Louisiana's attempt to execute a man for raping his 8-year-old stepdaughter. The court held in 1977 that it is a violation of the Eighth Amendment to execute someone who raped an adult woman. But Louisiana and four other states have passed laws saying capital punishment for rape of a child is different.
Louisiana's death row contains two men convicted of the offense; they are the only people among more than 3,300 awaiting execution nationwide whose crimes did not include homicide. The justices by their questioning again seemed split, with Roberts and Scalia appearing sympathetic to Louisiana.
Kennedy wondered whether it might be necessary that the convicted be a repeat offender, something that Louisiana does not require but other states do. In the Baze case, the justices considered conflicting lower-court opinions on lethal injection. At least 30 states, including Kentucky, use the same combination of three drugs: sodium thiopental, which induces unconsciousness; pancuronium bromide, which paralyzes the muscles; and potassium chloride, which causes cardiac arrest. An attorney for the petitioners, who were backed by other death row inmates around the country, argued that if the first drug does not work, the second induces a "terrifying, conscious paralysis" and the third causes an "excruciating burning pain as it courses through the veins." The petitioners were two Kentucky inmates sentenced to death for murders committed in the 1990s. One of them, Ralph Baze, was convicted of shooting a sheriff and a deputy sheriff when they tried to serve felony warrants on him in 1992. The other, Thomas C. Bowling, fatally shot a couple and wounded their 2-year-old son as they sat in their car in a parking lot after Bowling ran into their vehicle with his. The Kentucky inmates were not asking to be spared execution or injection. Rather, they wanted the court to order the state to switch to a single, massive dose of barbiturates -- the same method used to euthanize animals.
Roberts said that "a condemned prisoner cannot successfully challenge a state's method of execution merely by showing a slightly or marginally safer alternative." Instead, he must show an alternative procedure that would be "feasible, readily implemented and in fact significantly reduces a substantial risk of severe pain," Roberts wrote. That is the test that Stevens and Thomas said could open the door to more challenges.
Elisabeth Semel, director of the Death Penalty Clinic at the University of California at Berkeley law school, said that in Tennessee, where executions were halted by a federal judge, evidence of alternative methods already exists.
Roberts sought to head off such interpretations. "A state with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk" that would be unconstitutional, he wrote.
In Virginia, the court's decision clears the way for several executions unless Kaine intervenes based on clemency requests. Kevin Green, who killed a south-central Virginia convenience store owner in 1998, is scheduled to be executed May 27, according to the state attorney general's office. Maryland's highest court ruled in December 2006 that the state's lethal injection procedures had not been properly adopted. Republican leaders yesterday called on Gov. Martin O'Malley (D) to issue regulations needed to allow executions to resume.
But O'Malley, a death penalty opponent, noted that the General Assembly has approved a commission to study the effectiveness of the death penalty as a deterrent and the costs associated with it.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Sun-Tzu
If fighting will not result in a victory then you must not fight.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Wednesday, April 16, 2008
Michael Ignatieff M.P. Etobicoke-Lakeshore & Deputy Leader of the Liberal Party of Canada
'Canada and Israel: A Personal Perspective on the Ties That Bind'
Sunday night, at the Holy Blossom Temple, Michael addressed his relationship with Jewish Canadians in a speech meant to "rebuild trust and set the record straight" on his 2006 comments that Israel had committed a war crime.
"I've been to Israel half a dozen times and lived there on two separate occasions, once in 1988, when I was covering Intifada 1 for the BBC and again in 1999 when I was a guest of the Hebrew University in Jerusalem and the Ben Gurion University of the Negev in Beersheba. Thanks to these good times, I count Israelis among my dearest and truest friends."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Mounties raid Conservative headquarters in election probe
I remember the RCMP acting in a political way against the Liberals not so long ago.
Let's see if there is any fire to this smoke... .
April 16, 2008
Joan Bryden , THE CANADIAN PRESS
OTTAWA - The Conservatives' claim to clean and transparent governance suffered an embarrassing blow Tuesday when the RCMP raided the governing party's national headquarters at the request of Canada's elections commissioner.
Prime Minister Stephen Harper confirmed the raid was connected to a protracted legal battle between the Conservative party and Canada's elections watchdog over alleged spending irregularities during the 2006 election campaign, but he insisted his party had done nothing wrong.
Elections commissioner William Corbett asked the Mounties to execute a search warrant, but officials wouldn't say why.
"I can confirm that the commissioner of Elections Canada has requested the assistance of the RCMP in the execution of a search warrant," said spokesman John Enright.
"The commissioner has no further comment."
The raid could pose a significant political threat to the Conservatives. Harper owes his mandate to voter disgust with the Liberal sponsorship scandal and the announcement of an RCMP investigation into a leak at the Finance Department before changes were made to income trusts by the Liberals.
Voters who turned to the Conservatives two years ago after Harper promised to sweep away Liberal corruption were bombarded Tuesday with images of police officers searching for evidence of wrongdoing at Conservative party offices.
The prime minister was adamant that his party has done nothing wrong. He described the affair as a difference of interpretation over election spending laws and expressed confidence that the party's legal position is "rock solid."
He also suggested that the raid occurred just before Conservative party lawyers were scheduled to question Elections Canada officials for a separate civil suit the Tories have launched. He did not explain why the timing was significant.
"While today's actions may or may not delay that somewhat, we remain extremely confident in our legal position," Harper said.
The party itself issued an understated news release saying that "Elections Canada visited" Conservative headquarters, with no mention of the RCMP.
At least two Mounties sifted through party offices on the 12th floor of a downtown office building as camera crews captured the images outside. A short time later, two officers rolled a cart full of boxes and bags into a 17th-floor mailroom. Elections Canada official Andre Thouin was seen leaving the building with a carton of documents.
The Liberal party had their own camera trained on the raid - no doubt to gather footage that will be used in campaign advertising. Liberals - who were hounded out of office by the sponsorship scandal and the income trust investigation - were revelling in the chance to turn the tables on Harper.
"This (police raid) is what we get when we play fast and loose with election law," deputy Liberal leader Michael Ignatieff told the Commons.
"This is what we get when we cheat and we get caught."
Corbett launched an investigation in April 2007 into $1.2-million worth of Conservative television and radio advertising that was billed to individual Tory candidates even though the ads were virtually identical to national party advertising.
In a separate but related civil action, the Conservative party took Elections Canada to court to challenge Mayrand's refusal to reimburse Conservative candidates for part of the advertising money when they claimed it as local expenses. The ads were produced for the party's national campaign, which has a separate limit for election spending.
Peter Van Loan, the government's House leader, questioned why the elections commissioner felt compelled to call in the RCMP. He said the Tory party has "always been forthcoming" with any document the watchdog has requested.
A Conservative party official, speaking on condition of anonymity, later called the raid "a PR stunt" and "an intimidation tactic" aimed at deflecting attention from Elections Canada's weak case against the party.
However, Liberal MP Dominic LeBlanc said Harper is confusing the civil case with Corbett's separate "quasi-criminal" investigation into possible wrongdoing. He doubted Corbett would have called in the RCMP unless the Conservative party was refusing to co-operate or he had reason to fear the party was about to begin shredding evidence.
LeBlanc further charged that Harper must be directly implicated in the spending irregularities during the last campaign.
"It's inconceivable that a scheme like this was dreamed up and the prime minister wasn't intimately aware," LeBlanc said, noting that Harper is an expert in election spending laws, having led court challenges against restrictions on third party advertising in the past.
Liberal Leader Stephane Dion brushed aside suggestions that the raid might give his election-wary party the ammunition it's been waiting for to finally topple Harper's minority government.
"I'm not in the mood to speculate about elections today. The prime minister needs to answer very, very serious allegations," he intoned sombrely.
New Democrats and the Bloc Quebecois piled on, mocking Harper's promise to run a squeaky-clean government.
"Conservatives campaigned that they were going to be as pure as the driven snow," said NDP Leader Jack Layton.
"Well, it turns out that it is not much different over here (on the Tory side of the Commons) than it was over there (on the Liberal side) and the RCMP has had to be called in again."
According to documents filed in court by Elections Canada, some Tory campaign officials told the elections watchdog that the scheme was referred to as the "in-and-out" plan.
Under the plan, party headquarters would send as much as $50,000 in cash to candidates across the country. The candidates would then give the money back to headquarters, claiming they were paying for advertising.
In some cases, the advertising was virtually identical to national ads, the only difference being a barely discernable tag line that listed the names of local candidates.
The RCMP, which has faced accusations of interfering in the last campaign by announcing that the force was launching an investigation into the income trust matter, took pains Tuesday to point out that it was simply acting at the behest of the elections commissioner.
"It is not an RCMP investigation. We're there to assist, but that's it," said RCMP Cpl. Jean Hainey.
He would not provide any other details.
Harper has knocked heads repeatedly with Elections Canada. As head of the National Citizens' Coalition he spearheaded a court challenge to election spending restrictions on lobby groups.
Two years ago, the former chief electoral officer, Jean-Pierre Kingsley publicly contradicted the prime minister on the matter of whether political convention fees must be reported as donations. The Conservative party was later forced to admit it had not accounted for the fees properly.
And last summer, Harper took Mayrand personally to task for refusing to require veiled women to show their faces to vote in federal byelections. In fact, the law does not specifically require visual identification of voters, something the Tories are now proposing to rectify.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Tuesday, April 15, 2008
Toronto cabbies ticketed for refusing certain passengers
Tuesday, April 15, 2008 - 09:15 AM
By: Jaime Pulfer and 680News staff
Toronto - Toronto police have cracked down on cabbies in the entertainment district, who have been refusing to take fares that are too small or not paid up-front.
Thirty-five charges have been laid in the project, "take me home," in which some drivers have come under fire for not playing fair when it comes to weekend fares.
Some cabbies looked for larger fares and passed by passengers who wanted to go shorter distances.
City Councillor Howard Moscoe, who heads up the city's licensing and standards committee, told 680News refusing a fare is illegal and that licenses have often been suspended because of this.
"[If] cab drivers refuse to take you because they're not happy it's a long enough run, every citizen has the right to take down the number on the door and report it," Moscoe told 680News.
The city bylaw stipulates that drivers can only refuse a fare if the passenger won't give a final destination, or if they're being abusive.
The Ontario Safety League worried club-goers will justify getting behind the wheel after having too much to drink, because cabs won't pick them up, leading to more cases of drunk driving.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
By: Jaime Pulfer and 680News staff
Toronto - Toronto police have cracked down on cabbies in the entertainment district, who have been refusing to take fares that are too small or not paid up-front.
Thirty-five charges have been laid in the project, "take me home," in which some drivers have come under fire for not playing fair when it comes to weekend fares.
Some cabbies looked for larger fares and passed by passengers who wanted to go shorter distances.
City Councillor Howard Moscoe, who heads up the city's licensing and standards committee, told 680News refusing a fare is illegal and that licenses have often been suspended because of this.
"[If] cab drivers refuse to take you because they're not happy it's a long enough run, every citizen has the right to take down the number on the door and report it," Moscoe told 680News.
The city bylaw stipulates that drivers can only refuse a fare if the passenger won't give a final destination, or if they're being abusive.
The Ontario Safety League worried club-goers will justify getting behind the wheel after having too much to drink, because cabs won't pick them up, leading to more cases of drunk driving.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
*_Speech by the Honourable Stéphane Dion on Restoring the Court Challenges Program_*
House of Commons
Mr. Speaker, I rise today to call on the government to fully restore the
court challenges program to ensure all Canadians are able to access the
protections of their Charter of Rights and Freedoms.
Without any prior warning or consultation, the government decided in
September 2006 to cancel the court challenges program because it was
allegedly inefficient and too costly.
Was the court challenges program really inefficient and costly? False.
An independent study conducted in 2002-03 confirmed the value and
importance of this program for Canadians. Its value and importance were
also confirmed by countless testimonies and the program's strong record
on protecting the rights of disadvantaged Canadians and linguistic
minorities.
Just think about the Montfort Hospital, the only francophone hospital in
Ontario which, in the 1990s, survived efforts made by the Harris
government to close it down. Ms. Gisèle Lalonde, former chair of SOS
Montfort, said, "Without the court challenges program, [...] we wouldn't
be where we are now."
The Minister of the Environment, the Minister of Health and the Minister
of Finance were all part of the Harris government. Thanks to the court
challenges program, they lost the battle to close down the Montfort
Hospital. A few months after forming the federal government, they joined
forces with the current Prime Minister who had also lost a court case
against a beneficiary of the program. They managed to get the court
challenges program out of their way. It is the Minister of the Environment himself who announced the cancellation of the program. That was a vendetta.
Here is what Ms. Lalonde said after the announcement, "What the Harper
government is asking us to accept, however, exceeds in its deceit what
any other government may have done in the past. This is not just a
matter of cutting expenses. The [...] government is depriving the most
vulnerable in our society of access to justice system."
The government may have cancelled the court challenges program but it
could not erase its remarkable achievements. The program helped confirm that Canadians accused of a crime can have a trial in their own language and it helped reaffirm the right of official language minority groups to
manage their own school boards and to higher education in their mother
tongue.
The court challenges program helped homosexual couples achieve equality
protection, allowing them to secure spousal benefits and paving the way
on same sex marriage.
The program helped seniors secure employment insurance benefits, helped
women win pay equity cases and helped disabled groups fight VIA Rail for
the right to accessible trains.
Because of the court challenges program, the religious freedom of Sikh
Canadians has been confirmed, deaf persons have the right to receive
sign language service in hospitals and aboriginal Canadians living off
reserve have the right to vote in band elections.
These certainly sound like results to me, as I am sure they do to most
Canadians. They fly in the face of the government's suggestion that
lawyers were the primary beneficiaries of the court challenges program.
In an attempt to defend the government's decision to cancel the program, the Hon. member for Ottawa West---Nepean suggested that it made no sense
for the government to support a program designed to help groups
challenge its laws. Any government afraid to have its laws challenged in
court ought to take a second look at the soundness of those laws.
Regardless, the court challenges program was not about who wins and who loses. It was about ensuring that the justice system was accessible.
In 1982, Pierre Elliott Trudeau and Jean Chrétien, who were then the
prime minister and the justice minister, ratified the Canadian Charter
of Rights and Freedoms. In so doing, they were enshrining in the laws of
our country the values of diversity, tolerance, freedom and justice.
They made equality under the law the keystone of our democracy.
The court challenges program that had been created to help define
linguistic rights was broadened further to the enactment of the Charter
in order to help those who were trying to defend their right to equality. The court challenges program strengthened the Charter. This program ensured that the cost of a lawsuit would no longer deter those who wanted to fight for their rights. It gave practical expression to the principle of equality promised by the Charter.
But today, because of decisions made by this government, the Charter has
been weakened and is now out of reach for too many Canadians. The
termination of this program, that was after all not so expensive at only
$5.6 million a year, has meant that even middle class Canadians cannot
turn to the courts anymore.
Yet, there are still a good number of battles to fight, and rights to
win. The court challenges program is still needed. Between April and
September of 2006, 61 funding applications were submitted. The majority of these applications dealt with the rights of aboriginal Canadians, of
ethnocultural minorities, of disabled persons and of women. This
suggests that inequalities still exist in our society for these groups
and that solutions have to be found.
Therefore, we find ourselves at a crossroads. If we want to keep the
power of the charter in the hands of individual Canadians, if we want to
continue, as the charter instructs us to, to strive as a country for the
highest possible achievement, building a country in which the rights of
every Canadian are equally respected, then we must restore the court
challenges program. If we do not, accessing the charter will become the
exclusive privilege of the wealthy in our country, and its promise of
equal treatment will be broken.
Leading Canadian non-governmental organizations and individuals across
the country have spoken against the government's actions.
Bonnie Morton of the charter committee on poverty issues has called the
cancellation of the court challenges program "an attack on the Charter
itself and the human rights of everyone in Canada".
She has said: "If [Canadians] cannot ensure respect of their rights
because of financial barriers, Canada's constitutional democracy is
hollow. We turn the Charter into a paper guarantee, with no real meaning."
Yvonne Peters of the Council of Canadians with Disabilities has
explained: "Without the Court Challenges Program, Canada's
constitutional rights are real only for the wealthy. This offends basic
fairness. And it does not comply with the rule of law, which is a
fundamental principle of our Constitution."
Author and journalist Michel Gratton said: "It is illegal and
unconstitutional for a government to encourage assimilation."
Franco-Ontarian Michel Gratton was also the press secretary to former
Prime Minister Brian Mulroney.
The Fédération des communautés francophones et acadienne du Canada is
taking the government to court in an attempt to restore the court
challenges program.
Jean-Guy Rioux of the association stated: "Cancellation of the program
shows a serious lack of respect for francophone Canadians living outside
Quebec, for anglophone Canadians living in Quebec and for all Canadians
who may need the protection of their government to assert their rights."
Even the Commissioner of Official Languages, Graham Fraser, has joined
the throng calling for the court challenges program to be
re-established. These voices can no longer be silenced. The government
must respond by restoring the court challenges program so that all
Canadians may continue to have access to the protection guaranteed by
the Charter of Rights and Freedoms.
Last year Canada celebrated the 25th anniversary of the Charter of
Rights and Freedoms. Events that took place across the country
recognized that the charter was more than just a legal document. It has
helped us become one of the most successful multicultural, bilingual
federations on the face of the planet. It articulates our shared identity by reminding us and by tell the world where we want to go as a
nation. It is a vision of for what our country can and must strive.
I am immensely proud to lead the party that secured the charter for
Canadians. I think every Canadian prime minister ought to make a point
of publicly celebrating the charter, but last year the government made
the decision not to. It decided not to celebrate this integral part of
our Canadian identity.
We need the court challenges program today for the same reasons we
needed to enshrine the charter in law almost 26 years ago. Legislatures
are not perfect. Despite their best efforts to uphold our fundamental
Canadian values, parliamentarians sometimes make mistakes. When they do,
they need the charter to be accessible to all Canadians so it can guide
us back to the vision we all share of building a better Canada.
In 1992 the Mulroney government cancelled the court challenges program.
When we Liberals came back in government, we restored the court
challenges program. Now we have watched the Conservatives cancel it
again. It seems they have failed to learn from their mistakes. If they
do not reinstate the program, then the next Liberal government will
again, and this time we will double its funding.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Monday, April 14, 2008
Safe-injection site a provincial responsibility, court to be told
GREG JOYCE
The Canadian Press
April 14, 2008
VANCOUVER -- As the deadline approaches for a federal government blessing for Vancouver's supervised injection site, supporters are preparing to head to court to argue that the controversial place is a health-care facility and, therefore, the sole preserve of the province.
And British Columbia Health Minister George Abbott leaves no doubt that the province wants the site to continue to operate.
Regardless of the outcome of the coming court cases, Mr. Abbott has strongly indicated that the facility might operate even if the federal government withholds its blessing.
Should they not renew that exemption I would hope we would be advised with a little notice. We will then be turning the discussion intensively in another direction. I do not want to see Insite closed.
Mr. Abbott declined to state whether the B.C. government would operate it in defiance of federal drug laws.
This is an opportunity for us as a society to reach out to them [addicts], to provide that measure of security and stability, to remind them that mental and physical health supports are available to them.
He said he recently spoke with federal Health Minister Tony Clement.
I suggested to the Health Minister that we would like them to renew the exemption and we have formally asked for that. He said he'd give full and serious consideration to my case.
Insite opened in 2003 as a pilot project in the Downtown Eastside for intravenous drug users to inject their own heroin and cocaine with clean needles and under the supervision of a nurse.
Addicts who get their fixes at the site, instead of in alleys and decrepit hotels, can also get referrals to detoxification and rehabilitation services, including one that recently opened atop the Insite facility.
Ottawa has twice exempted the site from federal legislation that would otherwise see operators charged under federal drug laws.
The current exemption expires June 30, when Mr. Clement must decide whether to grant another exemption to the Controlled Drugs and Substances Act or amend legislation that prohibits the safe-injection site.
But two lawsuits scheduled to be heard by the B.C. Supreme Court beginning April 28 will argue that the federal government is overstepping its jurisdictional bounds.
Lawyer Monique Pongracic-Speier, who will represent a group of addicts and the Portland Hotel Society in one of the legal challenges, said they will argue that the services provided at Insite are essentially health care and, therefore, the exclusive jurisdiction of the province.
It is our contention the feds don't have a role to play in regulating Insite through section 56 of the [Controlled Drugs and Substances] act or otherwise, Ms. Pongracic-Speier said.
The second part of the challenge is a Charter argument that asks: If the services were removed, would it violate the security of the person of those using the site?
In addition to the lawsuit by the Portland society, which operates Insite along with the Vancouver Coastal Health Authority, another by the Vancouver Area Network of Drug Users will also challenge the federal jurisdiction.
Thomas Kerr, a research scientist at the B.C. Centre for Excellence in HIV/AIDS and an assistant professor of medicine at the University of British Columbia, has conducted or overseen many studies of the injection site and said there are few, if any, other novel public-health interventions in Canadian history that have so many published studies supporting their effectiveness.
Dr. Kerr said a letter in Open Medicine - a peer-reviewed, international journal - was endorsed by more than 130 prominent researchers and practitioners, including the medical health officer of B.C. and the medical health officer of Montreal.
Studies have appeared in, among other publications, the New England Journal of Medicine, The Lancet, the Canadian Medical Association Journal, the British Medical Journal and the American Journal of Public Health.
These are the best medical journals in the world, Dr. Kerr said. You can't publish junk science in these journals.
But support is not unanimous, and the RCMP and the Canadian Association of Chiefs of Police remain steadfastly against injection sites.
Chief Superintendent Derek Ogden, the RCMP's director-general of drugs and organized crime, said he would like further research.
I absolutely cringe when I hear people talk of a safe-injection site, he said in an interview from Ottawa.
He said the RCMP position focuses more on enforcement, prevention and treatment, which can result in harm reduction without injection sites.
Colin Mangham, the director of research for the Drug Prevention Network of Canada, wrote in his 2007 critique that other studies' findings of a reduction in public disorder were questionable and so limited in scope as to be misleading.
The Insite evaluations as reported in various research journals include considerable overstating of findings as well as under-reporting or omission of negative findings, and in some cases the discussion can mislead readers, Mr. Mangham wrote.
A Health Canada spokesman said by e-mail that after the last exemption was granted in December, Mr. Clement determined that additional research was needed to identify the extent to which supervised injection sites affect crime, prevention and treatment.
A report released Friday by an expert panel appointed by Mr. Clement found mixed results in its review of the many studies of Insite.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Sunday, April 13, 2008
Toronto's Police Chief wants all people charged with a crime to give blood sample
Note the reference to it taking three years to secure a conviction. I gather the Chief takes the view that everyone is presumed guilty until ... What?
Sunday, April 13, 2008 - 09:23 AM
By: Irene Preklet
Toronto - Toronto Police Chief Bill Blair wants Canadian police officers to have the power to demand a DNA sample from anyone charged with a serious crime, not just those convicted of one.
It's something that is now being done in the U.K. and several U.S. states.
Blair says after someone is charged, it can take three years to secure a conviction and during that time, that person can be on the street committing more crimes.
Right now there more more than 40,000 samples in the Canadian DNA database, many from unsolved cases. But taking samples when people are charged would mean the DNA of innocent people will also be catalogued.
The U.K. recently began collecting DNA from suspects when they're charged, not just convicted of a crime.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Sunday, April 13, 2008 - 09:23 AM
By: Irene Preklet
Toronto - Toronto Police Chief Bill Blair wants Canadian police officers to have the power to demand a DNA sample from anyone charged with a serious crime, not just those convicted of one.
It's something that is now being done in the U.K. and several U.S. states.
Blair says after someone is charged, it can take three years to secure a conviction and during that time, that person can be on the street committing more crimes.
Right now there more more than 40,000 samples in the Canadian DNA database, many from unsolved cases. But taking samples when people are charged would mean the DNA of innocent people will also be catalogued.
The U.K. recently began collecting DNA from suspects when they're charged, not just convicted of a crime.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Darfur
I stopped by Nathan Phillips Square this afternoon to support the Global Day for Darfur.
The best slogan I saw at the rally was "Smoke the Janjaweed."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
The best slogan I saw at the rally was "Smoke the Janjaweed."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
A 26-year-old secret could free inmate
A 26-year-old secret could free inmate
By SHARON COHEN, AP National Writer
Sat Apr 12
CHICAGO - For nearly 26 years, the affidavit was sealed in an envelope and stored in a locked box, tucked away with the lawyer's passport and will. Sometimes he stashed the box in his bedroom closet, other times under his bed.
It stayed there — year after year, decade after decade.
Then, about two years ago, Dale Coventry, the box's owner, got a call from his former colleague, W. Jamie Kunz. Both were once public defenders. They hadn't talked in a decade.
"We're both getting on in years," Kunz said. "We ought to do something with that affidavit to make sure it's not wasted in case we both leave this good Earth."
Coventry assured him it was in a safe place. He found it in the fireproof metal box, but didn't read it. He didn't need to. He was reminded of the case every time he heard that a wronged prisoner had been freed.
In January, Kunz called again. This time, he had news: A man both lawyers had represented long ago in the murder of two police officers, Andrew Wilson, had died in prison.
Kunz asked Coventry to get the affidavit.
"It's in a sealed envelope," Coventry said.
"Open it," Kunz said, impatiently.
And so, Coventry began reading aloud the five-line declaration the lawyers had written more than a quarter-century before:
An innocent man was behind bars. His name was Alton Logan. He did not kill a security guard in a McDonald's restaurant in January 1982.
"In fact," the document said, "another person was responsible."
___
They knew, because Andrew Wilson told them: He did it.
But that was the catch.
Lawyer-client privilege is not complete; most states allow attorneys to reveal confidences to prevent a death, serious bodily harm or criminal fraud. But this case didn't offer that kind of exception.
So when Andrew Wilson told his lawyers that he, and not Alton Logan, had killed the guard, they felt powerless — aware of information that could free a man they believed to be innocent, but unable to do anything with that knowledge. And for decades, they said nothing.
As they recall, Wilson — who was facing charges in the February 1982 murders of police officers William Fahey and Richard O'Brien — was even a bit gleeful about the McDonald's shooting. To Kunz, he seemed like a child who had been caught doing something naughty.
"I was surprised at how unabashed he was in telling us," he says. "There was no sense of unease or embarrassment. ... He smiled and kind of giggled. He hugged himself, and said, 'Yeah, it was me.'"
Alton Logan already had been charged with the McDonald's shooting that left one guard dead and another injured. Another man, Edgar Hope, also was arrested, and assigned a public defender, Marc Miller.
Miller says he was stunned when his client announced he didn't know Alton Logan and had never seen him before their arrests. According to Miller, Hope was persistent: "You need to tell his attorney he represents an innocent man."
Hope went a step further, Miller says: He told him Andrew Wilson was his right-hand man — "the guy who guards my back" — and urged the lawyer to confirm that with his street friends. He did.
Miller says he eventually did tell Logan's lawyer his client was innocent, but offered no details.
First, though, he approached Kunz, his fellow public defender and former partner.
"You think your life's difficult now?" Miller recalls telling Kunz. "My understanding is that your client Andrew Wilson is the shooter in the McDonald's murder."
Coventry and Kunz brought Wilson to the jail law library and this, they say, was when they confronted him and he made his unapologetic confession. They didn't press for details. "None of us had any doubt," Coventry says.
And, he adds, it wasn't just Wilson's word. Firearms tests, according to court records, linked a shotgun shell found at McDonald's with a weapon that police found at the beauty parlor where Andrew Wilson lived. The slain police officers' guns also were discovered there.
Now the lawyers had two big worries: Another killing might be tied to their client, and "an innocent man had been charged with his murder and was very likely ... to get the death penalty," Kunz says.
But bound by legal ethics, they kept quiet.
Instead, they wrote down what they'd been told. If the situation ever arose where they could help Logan, there would be a record — no one could say they had just made it up. They say they didn't name Wilson, fearing someone would hear about the document and subpoena it. They didn't even make a copy.
But on March 17, 1982, Kunz, Coventry and Miller signed the notarized affidavit: "I have obtained information through privileged sources that a man named Alton Logan ... who was charged with the fatal shooting of Lloyd Wickliffe ... is in fact not responsible for that shooting ... "
Knowing the affidavit had to be secret, Wilson's lawyers looked for ways to help Logan without hurting their client. They consulted with legal scholars, ethics commissions, the bar association.
Kunz says he mentioned the case dozens of times over the years to lawyers, never divulging names but explaining that he knew a guy serving a life sentence for a crime committed by one of his clients.
There's nothing you can do, he was told.
Coventry had another idea. He figured Wilson probably would be executed for the police killings, so he visited him in prison and posed a question: Can I reveal what you told me, the lawyer asked, after your death?
"I managed to say it without being obnoxious," Coventry says. "He wasn't stupid. He understood exactly what I was asking. He knew he was going to get the death penalty and he agreed."
Coventry says he asked Wilson the same question years later — and got the same answer.
But ultimately, Wilson was sentenced to life in prison without parole.
His death penalty was reversed after he claimed Chicago police had electrically shocked, beaten and burned him with a radiator to secure his confession. (Decades later, a special prosecutor's report concluded police had tortured dozens of suspects over two decades.)
Logan's case was working its way through the courts, too. During the first of two trials in which he was convicted, Coventry walked in to hear part of the death penalty phase. "It's pretty creepy watching people deciding if they're going to kill an innocent man," he says.
The lawyers had a plan if it came to that: They would appeal to the governor to stop the execution. But with a life sentence, they remained silent.
Still, there were whispers. When Logan changed lawyers before his second trial, Miller says the new lawyer approached him. He had heard that Miller knew something more.
Please, he asked, can you help?
Miller says he told him he could do nothing for him. But he says he repeated the words he had uttered to Logan's first lawyer, more than a decade earlier:
"You represent an innocent man."
___
In prison, Alton Logan heard the news: First, Andrew Wilson had died. Second, there was an affidavit in his case.
"I said finally, somebody has come (forward) and told the truth," Logan says. "I've been saying this for the past 26 years: It WASN'T me."
In January, the two lawyers, with a judge's permission, revealed their secret in court.
Two months later, Marc Miller testified about his client's declaration of Logan's innocence.
But an affidavit and sworn testimony do not guarantee freedom — or prove innocence.
And Alton Logan knows that. After spending almost half his 54 years as an inmate, this slight man with a fringe of gray beard, stooped shoulders and weary eyes seems resigned to the reality that his fate is beyond his control.
"I have to accept whatever comes down," he says, sitting in a visitor's room at the Stateville Correctional Center in Joliet.
He insists he's not angry with Edgar Hope — the man who first said he was innocent — or even Andrew Wilson. He says he once approached Wilson in prison and asked him to "come clean. Tell the truth." Wilson just smiled and kept walking.
Nor is Logan angry with the lawyers who kept the secret. But he wonders if there wasn't some way they could have done more.
"What I can't understand is you know the truth, you held the truth and you know the consequences of that not coming forward?" he says of the lawyers. "Is (a) job more important than an individual's life?"
The lawyers say it was about their client — Wilson — not about their jobs, and they maintain that the prosecutors and police are at fault.
Kunz says he knows some people might find his actions outrageous. His obligation, though, was to Andrew Wilson.
"If I had ratted him out ... then I could feel guilty, then I could not live with myself," he says. "I'm anguished and always have been over the sad injustice of Alton Logan's conviction. Should I do the right thing by Alton Logan and put my client's neck in the noose or not? It's clear where my responsibility lies and my responsibility lies with my client."
On April 18, Logan will be in court as his lawyer, Harold Winston, pushes for a new trial. Along with the affidavit, Winston has accumulated new evidence, including an eyewitness who says Logan wasn't at McDonald's and a letter from an inmate who claims Wilson signed a statement while in prison implicating himself in the murder — and clearing Logan.
But obstacles remain.
Logan can't depend on Edgar Hope. According to his attorney, Hope probably will exercise his Fifth Amendment rights against self-incrimination.
And he'll have to deal with eyewitnesses. His lawyer says one person changed her story in the two trials, but a second, the security guard injured in the shooting, did not. (A third, who has since died, had acknowledged that Wilson and Logan looked alike.)
Logan prefers not to look too far ahead or think too far back. He refuses to dwell on missed opportunities — marriage, children, job. "You cannot live with the situation I'm in and say, 'What if?'"
He says if he is released, he'll move to Oregon to be with his brother. "After spending 26 years in this hellhole, I want to get as far away from here as I possibly can," he says.
Last month, the Chicago Sun-Times, in an editorial, urged the attorney general or governor to release Logan, noting his claims of innocence "ring achingly true." (The state has declined comment on the case.)
Logan keeps a copy of the 26-year-old affidavit in his cell. Every now and then, he reads the single paragraph, trying to divine what the lawyers were thinking and if this piece of paper will help unlock the prison doors.
He's not banking on it.
"I'm not sold on it," he says. "The only time I'll be sold is when they tell me I can go."
For now, though, Alton Logan waits. The heavy prison doors clank behind him as he walks down the corridor to his cell. He does not look back.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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