TTC -- slumping to disaster

Well, a poorly designed deal has failed. Will there be the courage to negotiate a fair deal for all sides? Or just more of the status quo?

Where are the picket lines?

Saturday, April 26, 2008
By: 680News staff

Toronto - The Amalgamated Transit Union may be on strike, but aside from deserted subway, streetcar and bus stations there's little to indicate that fact to unsuspecting transit users.

No signs have been posted at stations across the city and most importantly no picket lines have been set up. 

This lack of strike action has left many riders confused.

"If they're going to go on strike, they should be out there picketing.  And they're not out there right now.  So, very disappointing," said one angry commuter.

Meanwhile management staff showed up to work, Saturday, to keep a watchful eye on TTC stations and equipment.
L
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

A Comment and Colby Cosh on Blane MacDougal: Dangerous offenders don't belong in minimum-security prisons

"As a side bar, Ontario, which generally houses the least dangerous offenders, does not have minimum security institutions. Indeed, Ontario only has maximum security institutions except for a few older institutions which are medium security simply because they are not up to current maximum standards.

A maximum security institution need not be uncomfortable or lack rehabilitation resources -- it merely needs to provide security to staff and be very very hard to escape from. But there is a financial cost -- prisons are not cheap. There are many non dangerous offenders incarcerated who would be better kept elsewhere, especially as it seems the truly dangerous are left, to a degree, to guard themselves. "
JCM

Posted: April 25, 2008, 12:18 PM by Marni Soupcoff
Colby Cosh

On Wednesday, The Vancouver Sun disclosed that the Ferndale Institution, a lightly guarded minimum-security federal penitentiary in Mission, B.C., houses a remarkable 10 inmates who have been designated dangerous offenders and are thus subject to indefinite detention under Canadian law. Technically, of course, the number is nine right now. Blane MacDougal, a 60-year-old rapist, murderer and unreformed deviant, walked away from Ferndale on Saturday. It was not difficult for him to do it; Corrections Canada explicitly depends on the Ferndale inmates to police themselves, for fear of collectively losing the famous privileges that won the prison the monicker of "Club Fed" (back in the days when it featured a nine-hole pitch-and-putt golf course, as well as the tennis court it still boasts).

The escape of a vicious criminal represents an extraordinary breach of faith by a corrections agency that has repeatedly had to reassure the community surrounding Ferndale of its commitment to public safety. MacDougal won his stripes as an outlaw 40 years ago after he and an accomplice escaped from a juvenile pen and went on a U.S. robbery spree in which one victim was dumped in a field and left to perish. Convicted of murder and sentenced to life, he earned day parole in 1979,making use of the privilege to kidnap and rape two women. Full parole followed in 1989: so did another rape.

Minimum-security federal prisons are supposed to contain only those prisoners who are deemed to present both a small risk of escaping and a small chance of inflicting harm if they do escape. MacDougalls parole board reports, however, cite his "uncanny ability to hide difficulties from intimate partners, parole officers, sex-offender therapists and clinicians who did prior assessments." It appears that one reason he was trusted to live at Ferndale this time around was that he had stopped seeking parole outright, supposedly because he was "afraid of all the changes out in the world after decades of incarceration."

Turns out MacDougal is willing to take his chances, and now the women of British Columbia will have to take theirs. Perhaps some corrections shrink bought his story after seeing The Shawshank Redemption one too many times.

It is baffling and discouraging that there would be any dangerous offenders at Ferndale at all. At last count, there were fewer than 400 Canadian convicts who had cleared the high procedural and constitutional hurdles to earn the title. They are the hardest of the hardcore, violent men (all but a handful are male) who have repeatedly demonstrated their contempt for human life and the law. After the 1994 escape from Ferndale of Timothy Dennis Cronin and Michael Kelly Roberts, who committed a murder in Washington State while at liberty, Corrections Canada promised to clean up its act. The department held an inquiry and agreed that in deciding whom to house under minimum security, it was placing too much emphasis on psychiatrists assessments of risk and not enough on the actual criminal histories of the inmates.

Apparently old habits die hard — as does the perennial tendency of Corrections Canada to regard its convicts, rather than the public, as its true clientele.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Conditional Sentences in Major Frauds

Obtaining a conditional sentence for a major fraud remains difficult. In this author's experience such sentences are normally obtained only as part of a joint sentence.

This week's decision in R. v. Siddiqui, 2008 ONCA 312 emphasizes ths point:

[2]               The trial judge recognized that the paramount consideration in cases of large scale frauds such as this are denunciation and general deterrence.  He turned his mind to whether a conditional sentence should be imposed in the particular circumstances including, as we read his reasons, the mitigating factors present in this case.  The trial judge also took the mitigating factors into account by reducing the sentence that he otherwise thought fit.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Repeated charges extraordinary. Americans Arrest Man For Offence Committed, Tried and Already Punished in Canada

Susan Gamble

Six Nations' Trevor Miller is being held in a U.S. jail on a little-used and "inappropriate" principle, says a spokesman for the Canadian Bar Association.

James Morton, past-president of the group, said Thursday that the charges against Miller appear legal but may represent a serious swipe at Canadian sovereignty. "It's extraordinary," Morton said of Miller being arrested earlier this month and charged over the same Caledonian incident he's already been convicted of in Ontario. "I personally think this is a very serious issue. It's inappropriate for the U. S. to pursue these charges."

Miller pleaded guilty last May and was sentenced to time served for charges of robbery and assault relating to the day several Six Nations protesters swarmed an unmarked U. S. border patrol vehicle and assaulted two TV news cameramen.

Philip Knapp, one of the border patrol officers filed an affidavit lodging a complaint against Miller. "While this attack and theft happened in the country of Canada," Knapp said, "I seek this complaint based upon the extra-territorial applicability of the above federal criminal violations."

Miller first spent about six months in jail before being granted bail and, later, was sentenced to that time served. But he was arrested again when he tried to cross the Canada-U.S. border in Minnesota at the beginning of the month. He was moved to Buffalo, where he's being held awaiting arraignment, said Department of Justice spokesperson Peggy McFarland on Thursday.

McFarland couldn't say why the U.S. was repeating the charges, but she did indicate the Justice Department will be seeking Albert Douglas, who is also named in the affidavit. McFarland seemed unaware that Douglas is not in custody in the U.S. "They will probably work to arrest him with the OPP," she said. "That's usually the case in these circumstances."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Top court collars use of drug-sniffing dogs in random police searches

Module body

By Sue Bailey, The Canadian Press

OTTAWA - Two random police dog searches that led to drug charges failed to pass the legal sniff test, says the country's top court in a split judgment that reaffirms privacy rights.

The Supreme Court of Canada ruled Friday that police who use dogs to find drugs in high schools or public places must be able to justify prior suspicion of a crime in order to use evidence seized.

"This is a good day for civil liberties," says Frank Addario, president of the Criminal Lawyers' Association.

"The judgment is a reasonable compromise between law enforcement aspirations to search indiscriminately, and the right to privacy. Now they need reasonable suspicion - not a trumped-up profile or a pretext search based on speculation."

Randomly using canine teams amounts to unreasonable search and a breach of privacy rights, said the high court. The judgment does not affect airports where a specific set of federal laws applies.

The majority ruling stresses that "reasonable suspicion" of a probable drug crime must exist prior to such dog-sniff searches in schools, malls, sports stadiums and other public spaces.

In two 6-3 decisions, the high court set aside the conviction of a man charged with possession of cocaine for the purpose of trafficking - he was also found with heroin - and upheld the acquittal of a student who was 17 when charged with possession of pot for trafficking purposes.

Friday's rulings conclude that both a spot high-school search in Sarnia, Ont. and one at a Calgary bus terminal were "unreasonably undertaken because there was no proper justification."

The first case stems from the arrival in 2002 of police and a canine team at St. Patrick's high school in Sarnia.

Students were confined to classrooms for about two hours while a drug-sniffing dog led officers to a pile of backpacks in an empty gym - one containing bags of marijuana and some magic mushrooms.

"The subject matter of the sniff is not public air space," said the ruling in the high-school case by Justice Louis LeBel. "It is the concealed contents of the backpack.

"As with briefcases, purses and suitcases, backpacks are the repository of much that is personal. . . . While teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, I think it obvious that they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police. This expectation is a reasonable one that society should support."

A student identified only as A.M. was charged with possession of pot for the purpose of trafficking in the school case, while Gurmakh Kang-Brown was charged in the second case.

Police had no search warrant or prior tip that there were drugs in the school. The officers had instead visited on the basis of a long-standing invitation from school officials.

At trial, the drugs were excluded as evidence and the charges dropped.

The Ontario Court of Appeal unanimously upheld the acquittal, describing the incident as "a warrantless, random search with the entire student body held in detention."

Paul Wubben, director of education for the St. Clair Catholic District School Board near Sarnia, says he accepts the high court's support of that ruling and its effort to balance privacy rights with student safety.

"But I'd be wrong to suggest that we haven't had a significant tool taken out of our capacity to limit drugs coming into schools. It's the randomness of the searches that is its strength.

"We always made it known to the students at the beginning of the year that we do bring in dogs on occasion."

Some high schools, although not in Wubben's district, have been known to contract private canine teams to enforce zero-tolerance drug policies by suspending or expelling students.

The director of Montreal-area Ecole polyvalente Saint-Jerome last week defended her decision to call in a sniffer dog from a private security firm. Students were warned in advance but three were still found in possession of small amounts of pot, hash and ecstasy, said France Trudeau.

Rick Johnson, vice-president of the Canadian School Boards Association, says random canine searches are rare in high schools although principals retain the right to open lockers or call police for specific incidents.

Wubben says his board has not invited police for random dog-sniff searches since the legal challenge began. Still, he won't advise principals to back off when drug concerns arise.

"And if we're criticized for being overly zealous, then we'll deal with that. If it happens to go to court in a similar situation, that's okay too."

In the other case, Kang-Brown had just arrived from Vancouver at a Calgary bus terminal when a suspicious Mountie waved over another officer with a drug-sniffing black Lab named Chevy. The dog immediately detected drugs and sat down to alert her master.

The Alberta Court of Appeal majority said that Kang-Brown was neither unlawfully detained nor illegally searched. The top court disagreed and set aside his conviction.

But the judges were themselves badly divided on key legal points. While all nine agreed that random dog sniffing amounts to a search that triggers constitutional protections, five justices said the courts can appropriately set limits on how police use such powers.

The four other judges, however, said related legal restrictions are best set by Parliament. They said any court-based lowering of the standard of scrutiny into state intrusion into privacy would be an inappropriate "exercise of judicial power."

James Stribopoulos, who specializes in criminal law at Osgoode Hall Law School, says the extraordinarily split court is proof enough that such matters are better handled by MPs.

"The court is very divided on the mechanics of all this."

Christopher's Law

Today's decision in  R. v. Dyck, 2008 ONCA 309 uphold's Christopher's Law. Some of the analysis appears below:

Sections 11 and 12

[73]           The appellant argues that Christopher's Law violates his rights under ss. 11(g), 11(h), 11(i), and 12 of the Charter.  Those sections provide as follows:

11.       Any person charged with an offence has the right…

(g)       not to be found guilty on account of any act or omission unless, at the time of the act or omission,  it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;(h)       if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i)        if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

12.       Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[74]          The appellant submits that the requirement to register and to report under Christopher's Law "brands" a person a sex offender and constitutes punishment.  He argues that the registration requirement generates stigma, and that the stigma arises not from the conviction but from the subsequent labelling.  He analogizes the situation to the old puritanical concept of branding an adulterer with a giant "A" on his or her forehead and the overwhelming social stigma that such a mark carried with it. 

[75]          This punishment and stigmatization violates his Charter rights, the appellant submits.  The mandatory registration and reporting requirements are not only punishment, on this argument; they constitute cruel and unusual punishment in violation of s. 12 of the Charter.  In addition – since Christopher's Law was not in force when the appellant committed the underlying sexual offence – its operation is retrospective and a violation his ss. 11(g), 11(h), and 11(i) rights. 

[76]          There are several responses to these submissions.

[77]          First, s. 11(g) has no application here.  The fact that Christopher's Law was not in effect at the time Mr. Dyck was convicted of the underlying offence is of no moment.  The underlying crime – sexual interference – was an offence under Canadian law when the appellant committed it.  Further, when the appellant was charged with a breach of Christopher's Law, that infraction was an offence under Canadian law at the time.  Thus, Mr. Dyck has not been found guilty of an act or omission that was not an offence in Canada at the time the act or omission was committed.

[78]          Secondly, ss. 11(h) and 11(i) of the Charter also have no application to these facts because neither the requirement to register and report nor the stigma, if any, arising from the registration are punishment within the meaning of ss. 11(h) and 11(i) of the Charter.  To characterize registration under the Act as punitive, the appellant would have to show that its purpose, being criminal in nature, is "to mete out criminal punishment" or that it has a "true penal consequence": see R. v. Shubley (1990), 52 C.C.C. (3d) 481 at 494 (S.C.C.); and R. v. Wigglesworth, [1987] 2 S.C.R. 541 at 559. A true penal consequence, according to the Supreme Court of Canada in Wigglesworth at 561 is "imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large". 

[79]           Additionally, as Charron J. noted in R. v. Rodgers (2006), 207 C.C.C. (3d) 225 at para. 63, "punishment" as contemplated in ss. 11(h) and 11(i) of the Charter does not necessarily encompass "every potential consequence of being convicted of a criminal offence, whether that consequence occurs at the time of sentencing or not."  She went on to say:As a general rule, it seems to me that the consequence will constitute a punishment when it forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence and the sanction is imposed in furtherance of the purpose and principles of sentencing. [Emphasis added.]

[80]          Here, the trial judge found that Christopher's Law is not in pith and substance punitive legislation.  The summary conviction appeal court judge agreed, as do I.  The requirement to report and register with police is not a sanction imposed in furtherance of the purpose and principles of sentencing for the index offence.  Nor is it a "true penal consequence": see Wigglesworth at 559.  Rather, it is a protective measure designed to safeguard the public from recidivist sex offenders and to equip the police with an important investigative tool.

[81]          Moreover, to the extent there is any "stigma" associated with registration, in my view any such stigma flows more from the conviction for the underlying sex offence than from registration and the requirement to report: see Rodgers at para. 64; and R.  v. Cross (2006), 205 C.C.C. (3d) 289 at para. 55 (N.S.C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 161.  This is particularly so in the context of Christopher's Law – and in contrast to similar regimes in foreign jurisdictions – because the fact of registration remains confidential to police officials only and thus is not widely known in the community.  In any event, even if there is some stigma attached to registration, it does not render the pith and substance of the law punitive.  As Laskin J.A. observed in R. v. Budreo (2000), 142 C.C.C. (3d) 225 (Ont. C.A. ), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 542 at para. 28:

Some aspects of s. 810.1 are punitive or coercive: the availability of an arrest warrant; detention pending a hearing unless the defendant is released on bail; and jail on the defendant's refusal to enter into a recognizance.  These coercive aspects, however, are necessary to preserve the integrity of the s. 810.1 proceedings.  By themselves, they do not turn s. 810.1 into a punitive provision.  Nor does the stigma that undoubtedly accompanies a s. 810.1 proceeding make the proceeding punitive.  That stigma will attach whether the section is preventive or punitive. [Emphasis added.]

[82]          The Nova Scotia Court of Appeal applied the same reasoning in Cross, where Bateman J.A. concluded that the provisions of SOIRA calling for registration and reporting of designated sex offenders did not constitute punishment.  The requisites of SOIRA and of Christopher's Law are similar in most respects, except for the potential for a sex offender to obtain an exemption.  I see no difference in principle between the two regimes in terms of whether the legislation is punitive or not.  Christopher's Law is, as I say, preventive not punitive in pith and substance, and the registration requirement does not constitute punishment. 

[83]          This conclusion is consistent with the law as it has developed in similar areas.  For example, a DNA databank order is not punishment: see Rodgers at para. 64 and R v. Briggs (2000), 157 C.C.C. (3d) 38 at para. 71 (Ont. C.A. ), leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 31. Neither is an order requiring that a person enter into a recognizance pursuant to s. 810.01 of the Criminal Code: see Budreo at paras. 29-31.

[84]          Therefore, ss 11(h) and 11(i) of the Charter are not engaged.  The appellant is not being "punished" for the same offence twice and there is no disparity in "punishments" in play.

[85]          This conclusion, by itself, does not preclude the operation of s. 12, however.  Although the application of the Registry to persons in the position of the appellant is not punishment, it may well constitute "treatment" within the meaning of that provision.  Justice Charron was of the view in Rodgers at para. 63, for example, that DNA sampling ordered as a result of conviction would constitute "treatment".  I am prepared to assume for these purposes, without deciding, that the application of Christopher's Law may amount to "treatment".  However, even if it does, s. 12 is of no assistance to the appellant here because the requirements of registration and reporting do not constitute "cruel and unusual" treatment.

[86]          The registration and reporting requirements of Christopher's Law are relatively minimal in terms of their intrusion and effect on the privacy and liberty of the appellant.  To qualify as "cruel and unusual" treatment or punishment, a disposition must be "grossly disproportionate" to what is appropriate in the circumstances.  I shall return to the issue of the effect and impact of the requirements of the Act, and to the notion of "gross disproportionality" in the next portion of these reasons.  Suffice it to say that the requirements of Christopher's Law fall far from the high standard called for by such a test.  Section 12 of the Charter is therefore not engaged in these circumstances either.Section 7

[87]          Mr. Dyck argues that Christopher's Law violates his liberty interests contrary to s. 7 of the Charter.  Section 7 provides:Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[88]          His s. 7 attack is two-pronged.  First, he submits that Christopher's Law runs afoul of the principles of fundamental justice because it is overbroad and therefore constitutionally flawed.  Secondly, he contends that the Act violates the principles of fundamental justice on procedural fairness grounds in at least two ways:
(i) it is impermissibly retrospective; and (ii) it deprives the appellant and others in his position of the right to a hearing or resort to some mechanism whereby they may seek an exemption from registration, or a review of the requirement for registration, or a termination of the requirement at some point short of its statutory expiration date.

[89]          The Crown acknowledges that the provisions of the Act requiring attendance at a police station at designated times, on pain of penalty, restrict the offender's liberty.  Counsel submit, however, that the restriction is limited and that s. 7 is not infringed because Christopher's Law is carefully tailored to achieve its objectives in a proportionate and restrained fashion, consistent with the principles of fundamental justice.

[90]          In order to succeed in a challenge under s. 7 of the Charter, an applicant must demonstrate (a) that there has been a deprivation of life, liberty or security of the person, and (b) that the deprivation was not in accordance with the principles of fundamental justice.  Here, since the Crown concedes that there has been a deprivation of the appellant's liberty interest – however minor it may be – the appeal turns on whether that deprivation is in accordance with the principles of fundamental justice.  I do not accept the appellant's arguments that it is.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Dave Barry, "The Taming of the Screw"

The only really good place to buy lumber is at a store where the lumber has already been cut and attached together in the form of furniture, finished, and put inside boxes.

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

Divorce's atomic bomb: false abuse allegations

Falsely accusing a spouse of abuse leaves many black eyes in its wake: for the accused, the justice system and especially the kids

SARAH HAMPSON

From Thursday's Globe and Mail

April 24, 2008 at 9:48 AM EDT

The charges were eventually dropped, and his criminal record expunged, but the action had the desired effect. He was traumatized. She had exacted her revenge.

They had been married for 20 years when she discovered, through an e-mail account, that he was having an affair.

So she hit him with the atomic bomb for warring spouses - false allegations of abuse - the proliferation of which alarms professionals in the divorce industry. It is, in essence, an abuse itself, not only of the charged spouse but also of the criminal justice system.

The father doesn't want his name used for fear his children would be identified. He is a well-known Canadian actor and he is still trying to repair the damage. His ex had involved their son, then 8, in the allegations of physical violence, saying that he not only witnessed the encounter between them, but that he had been beaten on several occasions, too. The Crown attorney eventually dropped all of the charges, but not until the divorce proceedings had been finalized.

His experience is just one of several that readers of this column have brought to me, complete with legal documentation, and they suggest why many lawyers saw the judgment by the Ontario Court's Mr. Justice Bruce Pugsley a few weeks ago as a welcome acknowledgment that some discrimination is needed about when charges of alleged assault are made and pursued.

In Judge Pugsley's courtroom in Orangeville, Ont., the case involved Stephen Edward Shaw, who had laid assault charges against his wife, Alison. He had waited a month to make the accusation after she allegedly punched him in a tavern. She was arrested, and bail conditions immediately barred her from the family home and stripped her of custodial rights of their two children. He then tried to establish the new arrangement as the status quo upon which permanent custody should be determined.

In his judgment, Judge Pugsley restored the mother's access to her children, noting how rote treatment of all matters of domestic assault can lead ... to concocted or exaggerated claims of criminal behaviour.

A separation involving allegations of abuse is complex. In many ways, it's dealing with Rashomon, there are so many different sides to the story, says family lawyer Marvin Kurz, invoking the famous work of fiction about differing perceptions of an event. Abuse is the hot chili pepper on a meal that is pretty indigestible anyway.

Still, because no one wants to minimize the gravity of possible domestic abuse, there's a zero tolerance approach from law enforcement officials.

It's charge first, think later, says Linda Meldrum, a family lawyer in Toronto who has handled several cases involving false allegations of abuse. We have erred too far on the side of caution, she warns, adding that in an acrimonious divorce proceeding, the ease with which one partner can accuse the other allows him or her to hijack the whole family law proceeding.

Abuse charges are an effective way to evict the other spouse from the matrimonial home and get sole custody of the children. They can also be a handy way to express the roiling mix of emotions that come with domestic discord.

Earlier this month in Toronto, Noellee Mowatt was jailed to ensure she would testify against her boyfriend after laying charges of abuse against him. She later testified that she tried to withdraw charges because she had made up the allegations to teach him a lesson.

And while fathers' rights activists like to make the point that more men than women are charged, anecdotal reports from lawyers - there are no official statistics on false charges of domestic abuse - suggest that men are as likely to lay false charges as women.

It's a complete perversion of the whole criminal justice system, says Robert Rotenberg, a lawyer who has handled several abuse charges laid against wives and husbands. To make matters worse, he says, the criminal justice system is underfunded, which means it can take months, even years, before the charges are dropped. It's absolutely scandalous to bring in zero tolerance - arrest everyone, charge everyone, hold them in the bail system - and then not properly fund it. If you're going to force people to go through the sledgehammer process of the criminal justice system, at least give them the dignity of being able to go through it rapidly, Mr. Rotenberg points out.

Even when the accused party is eventually exonerated, the damage is significant.

The Canadian actor mentioned earlier describes the process as completely humiliating. When he was brought to the police station to be charged, he was fingerprinted, and for his mug shot, I was slotted between a drug dealer and a hooker. My ex couldn't have done anything lower. It was all about control.

He had to live with the charges for two years. In therapy with his children, it emerged that his son felt he had to support his mother in her allegations. He got many well-known Canadian entertainment personalities to write character references. It was agreed that all charges would be dropped, once their divorce was granted, a further indication of how criminal and family law are often inappropriately intertwined.

He now sees his children regularly (his son is almost 14 and his daughter 16) although they don't talk about the accusations. The best I can do is keep putting out unconditional love to the kids, he says, his voice breaking. It was the most horrible, horrible thing to have happened.

Hugo Aguirre of Ottawa says he was the victim of false allegations of abuse, including sexual abuse, of his daughter. He was later exonerated in court and eventually won unsupervised access to his daughter Saturday until Wednesday every week, plus holidays, birthdays and activities. I did not have a bad experience with the judges, he says. Some radical activists, here in Ottawa, do not like [it] when ... I talk about the judges in good terms because I am not a good example' of the biased judicial system.

Still, the consequences of what he calls an abuse of power cause many men, including himself, to suffer depression, loss of income, friends and social status. His experience pushed him to start up a fathers' support group. His advice? Fight to clear your name.

It's like the rug has been swept out from under them, says Riki Kwinta, a social worker in Toronto who often deals with spouses in the divorce process who have been falsely accused of assault. It's the stuff of TV and movies, but they are unable to turn it off. They are living it. As adults, we feel that we have control over our lives. In essence, that control has been stripped away when someone is falsely accused. Their life is upside down. The devastation is huge, she says.

Of course, the worst part is that the people who are most affected by such allegations are the children. That's the greatest crime. No warring parent ever thinks about those they purport to be protecting.

shampson@globeandmail.com

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

Vexatious Litigant Order

A vexatious litigant order ought not to be granted except when clearly appropriate. Such an order restricts the right of the subject to access to justice and must be granted only sparingly.

In today’s decision in Premi v. Khodeir, 2008 ONCA 313 the Court of Appeal noted all conditions precedent to making such an order have to be scrupulously fulfilled if an order is to go:

The threshold is important because depriving a litigant of the ordinary right to go to court is a serious restriction of a basic right. Such an order should not be made without careful consideration of the mandated threshold. As the motion judge failed to address the threshold in her reasons, the order must be set aside.

Canadian economy stalling as exports hit hard: Bank of Canada

The Canadian economy has largely stalled as a result of the worsening credit crunch and the slumping U.S. economy that has robbed manufacturers of their traditional market, the Bank of Canada says.

The assessment in the central bank's quarterly monetary report gives a clearer understanding of what the bank's governing council was weighing Tuesday when it slashed its key interest rate by half a percentage point to three per cent.

After predicting in January that an upturn would begin this quarter, the bank now says Canada has entered an economic flat spot with growth in the current quarter barely above recessionary levels at a 0.3 per cent annualized rate, and won't recover fully until 2010.

The bleaker outlook for the economy comes amid other potential bad news for Canadian consumers:

-CIBC World Markets predicted Thursday that national average gasoline prices, now about $1.23 a litre, will top $1.40 this summer and $2.25 by 2012 as crude oil prices continue to soar and reach US$225 a barrel in four years.

-The country's largest bread maker, Canada Bread Co. (TSX:CBY), warned that consumers can expect to pay more for bread, bagels and other flour-based products after a 32 per cent drop in first-quarter profit amid "significant margin compression due to rising wheat prices."

But Bank of Canada governor Mark Carney said Canada won't fall into recession thanks to the relatively strong internal economy buttressed by oil and mineral exports and the record number of Canadians who have jobs.

"The decline in exports ... is counterbalanced and in our view more than counterbalanced by the strong domestic demand," he said.

Still, Carney noted that the bank will likely have to put more stimulus into the economy over and above the 1.5 percentage points it has cut from the overnight rate since December.

Part of the reason is that tight credit conditions have increased the cost that the chartered banks pay for capital, causing them to pass on only a portion of the central bank's stimulus to businesses and individuals in the form of lower borrowing costs.

The Bank of Canada estimates that commercial interest rates are up to three-quarters of a point a higher than might otherwise be the case given the bank's monetary actions. As well, obtaining credit has become more difficult, particularly for businesses.

"There has been a tightening of credit, but certainly it's much better in Canada in this situation than it is in the other major economies," Carney said.

He said Canada's banks have not seen the same elevated funding costs as in the U.S. and are better capitalized, which has allowed them to lend more broadly.

While it was reluctant to use the word recession, the bank said the American economy will contract slightly during the first half of this year, before growth resumes thanks to the tax-rebate package passed by the U.S. government, lower interest rates and higher exports encouraged by the weak greenback.

Still, the advance will be weaker and take longer than first thought, and that will prevent Canada, which sends about 75 per cent of its imports to America, from mounting a quick recovery.

The U.S. slump is also dragging on global growth, projected at 3.7 per cent this year and 3.5 per cent next, well below last year's 4.9 per cent advance.

"These global developments will have consequences for the Canadian economy," the bank says.

"First, exports are projected to decline this year. Second, turbulence in financial markets will continue to make financing in capital markets more costly and difficult for Canadian businesses and banks. Third, business and consumer sentiment in Canada is expected to soften somewhat."

The bank says credit conditions and the Canadian economy won't return to normal until late 2009 or possibly 2010.

As it reported Tuesday, the bank has scaled back its growth projection for the Canadian economy to 1.4 per cent this year and 2.4 per cent next, then 3.3 per cent in 2010.

The bank also expects Canada's inflation to remain below two per cent for the next two years and looks for commodity prices to slip about 15 per cent and oil prices to drop to just $100 US a barrel in the next two years as global demand cools.

One strength in the Canadian economy continues to be housing - a key difference from the United States.

"Demand should ease, since affordability has deteriorated and economic growth is expected to slow," the bank says.

"However, a general reversal in house prices is unlikely as there are few signs of excess housing supply."

Accused priest gets bail

By KEVIN MARTIN, SUN MEDIA


The elderly Catholic priest implicated in an alleged Calgary fraud scheme has been granted bail.

Provincial court Judge Bob Wilkins yesterday said Father Gilles Dube could return to his Quebec home pending trial.

Wilkins made the order after Crown prosecutor Photini Papadatou said she was not opposed to Dube's release if he posted $5,000 cash bail.

A condition of his release is that he stay with a priest in Calgary until travel arrangements can be made for his return to eastern Canada.

"He's going to stay with (the priest) until he goes back, which we expect will be within a week," Papadatou said.

Defence counsel Joan Blumer said she will file a designation of counsel so her client won't have to return to Calgary until an as yet to be scheduled trial is held.

Dube, 81, is charged along with two others with fraud in connection with a scheme which allegedly duped Alberta Dr. Frederick Van Rooyen out of $500,000.

Also charged are Jean Pierre Bellefeuille and Jamie Jie Tong Yu in connection with events between April 1, and July 31, 2006.

The pair were arrested April 8, in B.C. The case against all three accused returns to court May 13.

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

Mexico: Martin 'clearly guilty'

Toronto Sun

Thu, April 24, 2008
Mexico: Martin 'clearly guilty'

By ROMINA MAURINO, THE CANADIAN PRESS

GUADALAJARA, Mexico -- The evidence against Brenda Martin clearly shows she is guilty and, despite her supporters' complaints, she was given a fair trial, a Mexican official said yesterday.

"The facts and the evidence that the decision was based on show clearly that she is guilty," said Heriberto Estrada, a government lawyer with Judge Luis Nunez's office.

Her lawyer, Guillermo Cruz, said he wouldn't appeal the verdict because Martin has chosen to be transferred to Canada.

Until she can be transferred, the judge has asked prison staff "to make sure she doesn't hurt or kill herself," Estrada said.

Estrada, who on Tuesday read the decision sentencing Martin, 51, to five years in prison, defended the ruling after severe criticism from the Trenton woman's family and supporters.

'SAVE FACE'

Martin's mother accused Mexican officials of finding her guilty to "save face" and because she "never paid any bribes."

Conservative sources said MP Jason Kenney, secretary of state for multiculturalism, will travel to Mexico later this week to discuss a prisoner transfer with Mexican officials.

Kenney said on Tuesday that Martin's transfer could take between six and nine months, although the government would try to speed up the process.

James Morton of Toronto law firm Steinberg Morton Hope and Israel, said it might only be a matter of weeks before Martin returns and she could be released on parole shortly afterward.

Martin has been in jail for two years in connection with the scheme run by her former boss.

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

Premier McGuinty says bullet trains are the wave of the future

Wednesday, April 23, 2008
By: Shauna Hunt

The Premier wants Ontario's transit to go high speed and he said it's only a matter of time before bullet trains connect the provinces.

Steps are already in progress as Premier Dalton McGuinty told 680News "[...]we're now funding a study to see how we can make this a reality."

According to McGuinty, Ontario needs to catch up to the high speed transit systems already in Japan and Europe that are able to travel as fast as 200 km/h.

He said bullet trains are the future and he has even talked to Quebec's Premier about them.

"Jean Charest and I have sat down and we've enlisted the support of the federal government.  We think we should have a high speed train.  We wanna move people and families quickly and efficiently," he explained.

McGuinty stressed the last thing Ontario needs is another highway 401.

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

Positive Covenants Cannot Bind Land

A covenant that requires a positive act cannot be a binding covenant that runs with the land.  Today’s Court of Appeal decision in Lohse v. Fleming, 2008 ONCA 307 provides:

The trial judge then considered the covenant relating to water supply in Schedule “A” with a view to determining its nature and whether it did or did not “run with the land either at law or in equity.” He concluded that the covenant in issue constituted a positive covenant, and as such, it did not run with the land. His reasons in this regard are found at paras. 36-38 as follows:

Amberwood Investments Ltd. v. Durham Condominium Corp. No. 123 (2002) Carswell Ont. 850 ( C.A. ) and Parkinson v. Reid, [1966] S.C.R. 162 (S.C.C.) refer to covenants that require spending money or the doing of some act concluding that such covenants do not run with the land either at law or in equity. Simply put the supplying of water from a drilled well serviced by motor and pressure system into a trunk piping supply conduit system and maintenance thereof requires the doing of many acts and the expenditure of money. These are positive acts. There is the further issue of liability for unsafe water. The insurance costs which may be attracted, have been touched upon in the evidence but without particulars. In addition, the cost of necessary steps to supply water safe in the context of acceptable, community safety standards are referenced in the evidence but without particulars.

Rights flowing from any of the oral water rate supply agreements have ended by the passage of time.

…

… the trial judge was on solid ground in concluding that the positive nature of this obligation prevented the appellants from obtaining an easement, and that absent privity of contract, this positive covenant could not run with the land: see Nordin v. Faridi, [1996] 5 W.W.R. 242 at para. 45 (B.C.C.A.); Parkinson v. Reid, [1966] S.C.R. 162 at 167; and Amberwood Investments Ltd. v. Durham Condominium Corp. No. 123 (2002), 58 O.R. (3d) 481 ( C.A. ).

 

 

James Morton

Steinberg Morton Hope & Israel

1100-5255 Yonge Street

Toronto, Ontario

M2N 6P4

 

416 225 2777

 

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

 

Clinton threatens to 'obliterate' Iran if Israel attacked

CONSHOHOCKEN, Pennsylvania (AFP) - Democratic presidential hopeful Hillary Clinton threatened to "totally obliterate" Iran if the Islamic Republic was ever "reckless" enough to launch a nuclear attack on Israel.

Clinton said her remark was an attempt to lay out a rationale for a Cold War-style system of deterrence with Iran, but her rival Barack Obama accused her of saber-rattling, as Pennsylvania held its crucial presidential primary.

Clinton took her hawkish line in an interview with ABC television, when she was asked what she would do as president if the Islamic Republic were to launch a nuclear strike on Israel.

"I want the Iranians to know that if I'm the president, we will attack Iran," Clinton said.

"In the next 10 years, during which they might foolishly consider launching an attack on Israel, we would be able to totally obliterate them."

Later, Clinton told reporters at a polling station in Conshohocken, outside Philadelphia, that Iran must be made aware of the "high price" it would have to pay for any nuclear strike.

If Iran were so "reckless to use them against the United States or an ally in a way that would destablize the world, they would have to take the consequences," she said.

The New York senator said as president, she would first do whatever she could to prevent Iran manufacturing nuclear weapons in the first place.

Clinton's tough talk came as she was trying to portray Obama, a first-term senator, as too inexperienced to shoulder the heavy responsibilities of the US president and commander in chief of the armed forces.

But he said Tehran needed to know he would also respond forcefully to any such attack, but took issue with Clinton's approach.

"I think that one of the things that we've seen over the last several years is a bunch of, you know, talk. Using words like obliterate doesn't actually produce good results. And so I'm not interested in saber rattling."

Implying that Clinton was now using national security arguments for political advantage, the Obama campaign pointed out that she declined in a debate last October to speculate on such military action.

But the former first lady denied her remarks were politically motivated.

"Iran is feeling quite powerful, they have been empowered by the actions of the last seven years and they must know there are lines that the world will not let them cross," Clinton said.

The State Department would not comment on Clinton's remarks, in line with its policy of keeping out of partisan politics, but deputy spokesman Tom Casey pledged Washington would pursue a peaceful path out of the nuclear showdown with Iran.

"Our approach on this is to prevent Iran from ever getting a nuclear weapon so that no one will ever be faced with the scenario of Iran being able to threaten its use or use it against any neighboring state."

Obama's camp Monday accused Clinton of trying to scare voters, as she rocked their White House race with a dark campaign ad featuring images of Al-Qaeda mastermind Osama bin Laden.

The ad uses pictures of Pearl Harbor, bin Laden and the devastating 2005 hurricane that swamped New Orleans, mirroring the "3:00 am phone call" spot credited with helping Clinton to win in Texas and Ohio last month.

"You need to be ready for anything -- especially now, with two wars, oil prices skyrocketing and an economy in crisis," the male narrator intones. "Who do you think has what it takes?"

Both Democrats have vowed to defend Israel against any Iranian attack, but they differ on how to engage the Islamic republic over its nuclear ambitions.

Both call for diplomacy, but Obama has gone further, renewing a promise of "direct talks" at a leaders' level with Tehran and others the United States regards as foes, at a candidate debate here last week.

Iran should be presented with "carrots and sticks," the Illinois senator said, while stressing "they should also know that I will take no options off the table when it comes to preventing them from using nuclear weapons or obtaining nuclear weapons."

 

 

Mexico judge jails Canadian woman for 5 years

GUADALAJARA, Mexico (Reuters) - A Canadian woman who became a cause celebre at home after being kept in a Mexican jail for two years without trial, received a five-year prison sentence on Tuesday after being convicted of links to an investment scam.

A judge in Guadalajara found Brenda Martin, 51, guilty of accepting illicit funds from an Internet investment scam run by a former boss and sentenced her to prison and a fine equivalent to about $3,500.

Martin, who is from the province of Ontario, worked as a cook for fellow Canadian Alyn Waage in the Mexican beach resort of Puerto Vallarta, but denies being involved in his multimillion-dollar fraud scheme.

Waage, who is serving a U.S. prison sentence, has sworn that Martin knew nothing about it.

Martin's case has been followed closely in Canada, where the Canadian government has protested to Mexico about the case, and individuals and officials have campaigned for her release.

Martin's lawyer, Guillermo Cruz, called the verdict "irregular" and said there was no evidence to convict her. He told reporters that Martin screamed and collapsed when she heard the verdict and needed medical assistance.

Cruz said Martin could stay in Mexico and appeal, or accept the verdict and try to get transferred to a prison in Canada. "Her mental and physical state is pretty bad," he said.

She is one of a string of foreigners in recent years to get embroiled in Mexico's complex and often corrupt criminal justice system that routinely puts suspects behind bars for long periods before their cases are heard.

Mexico's Congress passed a justice reform last month that will introduce the presumption of innocence and bring in oral trials, seen fairer than the written ones Mexico now uses.

Martin's arrest was linked to a severance payment she accepted from Waage after he dismissed her.

Debra Tieleman, a friend working for Martin's release, urged the Canadian government to help.

"She's an innocent woman who's been in jail for a very long time," she said outside the court. "The Canadian government needs to step in. ... Enough injustice has happened to her."

Neither the Canadian Embassy in Mexico nor the Canadian Department of Foreign Affairs was available for comment.

Bad Character Evidence

Evidence of bad character may not be used to demonstrate guilt in a criminal proceeding. If an accused is to be found guilty it must be on the specific evidence put forth and not on the basis that the accused is wicked and therefore guilty.

The failure to give a limiting instruction to a jury where evidence of bad character is adduced is an error that can lead to a new trial.

Today's decision in R. v. Bryan, 2008 ONCA 301 makes the point saying:

"The law is clear that where evidence of bad character is put before the jury, limiting instructions are required to avoid jury misuse."

Pregnant woman says allegations of abuse were to teach boyfriend a lesson

A pregnant young woman who accused her boyfriend of abuse told a court Tuesday that she later tried to get the charges withdrawn because she made up the allegations to "teach him a lesson."

Noellee Mowatt was jailed in Toronto earlier this month to ensure her testimony against her boyfriend Christopher Harbin.

Mowatt, 20, said she called police after an argument with Harbin on Dec. 28, 2007, because she was mad at him - not because he had been abusing her.

Mowatt told Judge Beverly Brown she called police and the Crown's office "numerous times" to have the charges against Harbin withdrawn in the weeks after the alleged assault, but that she received no response.

The young woman also said Toronto police forced her to make a videotaped statement that Harbin assaulted her.

Mowatt said Det.-Const. Mandy Morris threatened to "lock her up" if she didn't corroborate statements made during a 911 call earlier that day.

Court heard Tuesday that Mowatt was angry at Harbin because he had kicked her out of their apartment and because he was unemployed and spent hours each day viewing online porn.

Mowatt, who came to Canada from Jamaica in 2006, also denied that Harbin and his mother pressured her to retract her statements to police about the alleged abuse.

When Harbin's defence lawyer Maurice Mirosolin asked Mowatt to explain a photo showing red marks on the right side of her face near her jaw line, she said, "It's not a bruise, it's a hickey."

Mowatt also told the court that bruises on her cheek were self-inflicted, and that she had punched herself in the bathroom of a Starbucks located across the street from the west Toronto apartment the couple shared.

Other injuries, such as a cut on her toe and red marks on her elbows, were caused by chasing Harbin, she said.

"When I was chasing after Chris, I fell and rubbed some skin off," Mowatt said.

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

Statement by Liberal Leader Stéphane Dion on the Resignation of Liberal Party President Senator Marie Poulin

PRESS RELEASE
Date: April 22, 2008
For release: Immediate

It is with great regret that I have accepted Senator Marie Poulin's resignation as National President of the Liberal Party of Canada due to health concerns.
 
Since being elected President of the Party in December 2006, she has presided over one of the most profound renewals in Party history. Thanks to her professionalism and passion for Liberal values, she was able to foster a fundamental grassroots shift in the Liberal Party's culture.  Only the second woman President in Liberal Party's history, Senator Poulin's legacy also includes an open and personable approach to communications with Party members, officials and Canadians.

On behalf of the entire Liberal family, I wish to extend my heartfelt thanks to my friend and colleague for her dedication and service to the Liberal Party. I wish her a full and speedy recovery.
-30-
For more information, please contact:
Liberal Party of Canada Press Office
Daniel Lauzon
(613) 783-8403

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

Crown won't proceed with case against Baltovich -- Jury Acquits

Crown prosecutors have told the jury in the trial of Robert Baltovich that they won't be calling any witnesses or bringing evidence.  The jury acquitted him after the judge said there was no alternative but to acquit.

The Crown, after asking the court to delay the proceedings several times this month, said Tuesday morning it will not proceed with its case against Baltovich.

It was the second time Robert Baltovich was to stand trial in the murder of his university sweetheart Elizabeth Bain.

Last Wednesday, crown prosecutor Phil Kotanen asked the court to delay proceedings.

"I am simply not in a position to commence the trial at this point," he said.

Bain disappeared on June 19, 1990 after telling her mother she was heading to the University of Toronto campus in Scarborough.

Shortly after the 22 year old went missing, her car was found mere kilometres from her home. Forensic tests identified her blood in the back seat.

Baltovich was charged in November 1990.

 

 

Legal Fees Recoverable By Self-Represented Counsel?

For a time there was a doubt as to whether counsel could recover costs where they represented themselves in collection matters.

 

Caselaw suggesting costs were inappropriate noted that other parties who self represented could not get costs and asked why should counsel have a special privilege: see Carrier v. Turner (June 8, 1994, Ont. Ct. Gen. Div.).  Other caselaw, which now governs,  pointed out the lost opportunities counsel suffered when they were in court for themselves: Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.).

 

The law is now clear that counsel are entitled to costs but not to a witness fee.

 

Last week’s Superior Court decision in Teplitsky v. McCrea, 2008 CanLII 15910 (ON S.C.) sets out the law clearly:

 

 

The plaintiff was represented by members of its own firm throughout the litigation and at trial. Counsel for the defendant concedes that this does not preclude the recovery of costs. The court will award costs where appropriate, taking into account the firm’s lost opportunity for other work while conducting the proceeding: Fong v. Chan 1999 CanLII 2052 (ON C.A.), (1999), 181 D.L.R. (4th) 614 (C.A.); Lawyers Professional Indemnity Co. v. Geto Investments Limited, [2001] O.J. No. 2058 (S.C.J.). This is only fair – the alternative would be to force the law firm to hire external counsel, probably at greater expense. While the cost of collection of accounts is a part of a law firm’s overhead, that should not extend to collection requiring protracted litigation. That being said, I accept Mr. Johnston’s submission, supported by the foregoing authorities, that time that would have been spent by any litigant as part of preparation and attendance at court proceedings should not be recoverable. I note in this regard that some $10,000.00 of Mr. Colson’s time has been deducted from the plaintiff’s docket of over $40,000.00 in time on a substantial indemnity basis, to arrive at the net of $10,713.00, plus GST, claimed by the plaintiff for fees on a partial indemnity basis. The plaintiff also claims disbursements of $1,716.16 for a total of $12,964.81.

 

 

 

James Morton

Steinberg Morton Hope & Israel

1100-5255 Yonge Street

Toronto, Ontario

M2N 6P4

 

416 225 2777

 

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

 

Dalton McGuinty Government Creates $500,000 Fund for Families of Patients Awaiting Organ Donation

Ontario families who must temporarily move to another city while a loved one awaits a life-saving organ donation will get some financial help from the province with their living expenses, Health Minister George Smitherman said Monday.

Smitherman announced the creation of a $500,000 annual fund for the Trillium Gift of Life Network - the organization that administers Ontario's organ donor program - to provide direct aid to families who have to spend months living near a hospital waiting for the transplant operation.

"We'll ask Trillium Gift of Life to develop some criteria that will allow us to reach out to provide some direct financial support to ease the burden associated with the disruption that comes from having to move to a transplant centre, in the hope that that page or call will come very quickly," he said.

"We must remain, every single day, focused on those who are on a wait lists, for whom that call cannot come too soon, in the hopes that we can prevent the loss of life for those people who wait for tissue and organ donations."

Trillium president and CEO Frank Markel said 1,600 people in Ontario are waiting for an organ or tissue donation, a reduction of about 100 from last year.

There were 200 deceased organ and tissue donors in Ontario last year - up from 172 in 2006 - that helped save more than 600 lives, Markel said.

"(Trillium) will continue to make crucial strides in increasing the number of lives saved through organ donation," he said.

"We all have the power to save lives."

Manuel Castillo of Mississauga, Ont., whose 15-year-old son Manny died last year after a rugby accident, joined Smitherman and Markel at a news conference to talk about the need for more organ donors, and said he's certain his son would be proud to have helped save five other lives.

"We're so glad about the decision we made to donate Manny's organs," Castillo said.

"For us, it's really healing to know that Manny gave many others a new life, but also it's good to know that after he died, some of his friends already signed a card or talked with their parents about organ donations."

The government also announced details of its program to cover out-of-pocket-expenses for people who agree to become living organ donors. There were 264 living Ontario residents who donated organs or tissue for transplant last year, down from 274 in 2006.

Effectively immediately, people in Ontario who agree to donate an organ or part of an organ can apply to be compensated for travel costs, hotels, meals and even lost income. The program will be retroactive to last August, when Premier Dalton McGuinty first promised up to $5,500 in compensation for living organ donors.

Manitoba and British Columbia already offer similar compensation programs to help living donors cover some of their expenses.

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

What if the judge hasn't read my factum and I lose? Can I have another go?

Today's decision in Ottawa v.  Spirak, 2008 ONCA 299 considers whether the failure of a Court to review written materials before a hearing is an error that automatically leads to a miscarriage of justice.

At first blush it seems the question hardly needs to be asked. The written material is there to help the Court but if the Court has not read it that does not mean the hearing is unjust.

Nevertheless, the Court of Appeal did say Courts ought to review written materials before a hearing. However, a failure to review such material is not, in itself, a basis for an appeal.

The Court held:

[4]               We do not accept the broad contention of appellants' counsel that there is a miscarriage of justice in every case where the judge has not read the material prior to the hearing.  Certainly, judges should review the material filed before hearing a case.  However, in a busy court system it is inevitable that court lists, which often include both trials and appeals, may have to be split and cases transferred from one court to another, as happened here.  Even then, a judge should take the necessary time to review the material. Where that is not possible, the question becomes whether the judge, in effect, reviewed the material on the bench with the assistance of counsel.  On our reading of the transcript, that is what occurred in this case.  The judge ensured he understood the decision below, the salient evidence, the issues and the position of the parties. 
James Morton

Sent from my BlackBerry device on the Rogers Wireless Network

Bail in Israel

Preserving the right to freedom

A young Palestinian, Imad Ganimath, from the village of Surif in the Hebron District, was accused of automobile theft. A magistrate's court and a district court ordered him remanded until the completion of the legal proceedings against him. The Supreme Court, however, ordered him released on bail under restrictive conditions.

The legal ruling, which the Supreme Court handed down following an appeal and a hearing in 1995, asserted that it is not enough for an offense, such as car theft, to be considered a "national epidemic" in order to detain a defendant if there is no proof he or she is "dangerous." The ruling became a cornerstone of the constitutional right to personal freedom.

The judgment gave concrete meaning to the three-year-old Basic Law on Human Dignity and Freedom, which accords personal freedom the status of a constitutional right. That right is further reinforced in a general provision that states the Basic Laws' point of departure is that each individual is a "free person."

The right to freedom prompted the High Court of Justice to annul a provision of the Military Jurisdiction Law, under which a soldier could be held for four days before being brought before a judge. The ruling notes that infringing on this right creates a ripple effect in terms of its implications for other rights, such as freedom of expression and human dignity.

Against this background, the basic concept of the Criminal Procedure Law - under which a person who is presumed dangerous can be arrested before his case is decided by the court - is accepted only when prima facie evidence exists that he physically assaulted another person. This approach is consistent with the importance of personal freedom.

Running contrary to this position is a new legislative memorandum formulated by the Justice Ministry, which is seeking to change the Criminal Procedure Law. The proposal is to add breaking and entering a home and vehicle theft to the list of offenses whose perpetrators are "presumed dangerous." Both of these are property offenses. The ministry explains that these are very frequent offenses that may lead to violence against home occupants or endanger public security, in the event of an escaping car thief.

The proposal does not mention that it would bring about the annulment of the Ganimath ruling, which was handed down by the Supreme Court after many hearings. All seven justices on the panel agreed that just because a certain offense is a "national epidemic," this is not sufficient grounds to place a defendant in custody, and that the prosecution must prove that he constitutes a risk to public security in order to justify pre-conviction arrest.

The justices noted the importance of the prosecution persuading the court that evidence shows prima facie that the defendant poses a public danger, should he be released before his sentence is passed. Placing the burden of proof of "non-dangerousness" on the defendant, as the Justice Ministry is proposing, could turn out to be an unreasonable burden and further increase the already large number of arrests.

Presuming someone accused of property offenses to be dangerous is contrary to the "watershed" handed down by the expanded Supreme Court panel, whose approach is that arrest is merited in special circumstances, and only in the case of offenses relating to bodily protection, not to property alone. The justices believed that the Basic Law on Human Dignity and Freedom forbids arresting a person if there is no proof that he is dangerous, and that arrest may not be used merely to deter people from committing a widespread offense.

The Knesset is, of course, empowered to change the law and annul a ruling, but using arrest as a deterrent, which is liable to become commonplace, is contrary to a basic approach of criminal law. If the proposal is accepted, judges may call for arrests too lightly. The proposal appears to be a fight against "small-time thieves," at a time when preserving public security obliges a battle against violent offenses - such as seizing a knife from a youth at a club, or any other instrument that concretely heralds violence.

The current proposal is disproportionate, owing to its severe infringement on the right to freedom. It is unexampled in countries that follow the Anglo-Saxon legal tradition. In France, too, whose legal system is based on investigating judges, presuming someone dangerous in order to use his arrest as a deterrent is unknown, as attorney Ron Sofer found.

Under Israel's legal system, suspects can be remanded until the completion of legal proceedings against them if prima facie evidence exists for a serious property offense, such as in the case of the Trade Bank, but this is within a specific framework: The prosecution must show that releasing a defendant before the end of proceedings would prove a public danger. Changing the "rules of the game," as is now being proposed, constitutes a disproportionate and unworthy infringement of the right to freedom.

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

Brenda Martin may return to Canada within weeks

A lawyer for Brenda Martin says his client will likely return home in the next few weeks -- even if she is found guilty -- because of a special extradition agreement between Canada and Mexico.

The two countries have reached a deal that would bypass the standard extradition document, which would require six to nine months before transferring a prisoner.

Instead, Martin would leave for Canada within weeks.

If found guilty, "she would be placed in Canadian custody, but she would get credit for all the time served," CTV's Lisa LaFlamme reported from Guadalajara, where Martin is in custody.

"So I'm told that if she's sentenced to five to seven years, she would not spend any time in a Canadian prison after the parole board hears her case."

But Martin, 51, is apparently unaware of the revised deal and has so far refused to sign the prisoner transfer document, because she believes she will be found innocent at a hearing set for Tuesday.

Martin, originally from Trenton, Ont., has already spent two years behind bars in Guadalajara on charges of money laundering. She says her health and psychological well-being have greatly deteriorated.

She is accused of knowingly accepting illicit funds from an Internet fraud scheme operated by Alyn Waage. Martin had been Waage's chef until she was fired.

Waage, in prison in the U.S., has issued an affidavit in support of Martin, saying she knew nothing about the scam and is innocent.

Useful Court of Appeal Endorsement on Unsupported Claims of Wrongdoing by Counsel

There is often useful material in Court of Appeal endorsements. Unfortunately that material is often overlooked.

Friday’s decision in Marks & Marks LLP v. The Galetta Renewable Energy & Environmental Network Co-operative Corporation (Green), 2008 ONCA 291 contains a helpful nugget for counsel facing unsupported allegations of wrongdoing – something sadly common. The Court awarded what appears to be significantly enhanced costs as a punishment for making such unsupported allegations:

With respect to costs, we are concerned that the respondent “Green” made serious allegations of impropriety against the appellant law firm that, on the record before this court, have no evidentiary support. Accordingly, we would order costs of the appeal to the appellant in the amount of $10,000, plus disbursements and GST, payable by the respondent “Green”.

Bill Watterson

People who get nostalgic about childhood were obviously never children.

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