Saturday, May 3, 2008

Catholic-Protestant in Ireland -- A Tyranny Of Trifling Differences

Despite peace, Belfast walls are growing in size and number

By SHAWN POGATCHNIK, Associated Press Writer Sat May 3

BELFAST, Northern Ireland - Lee Young, 8, and Cein Quinn, 7, live barely 200 yards apart, but they have never met, and maybe never will.

Lee is Protestant, Cein a Catholic -- and their communities in Belfast's west inner city are separated by a wall called a peace line. It's nearly 40 years old and 40 feet high.

Ten years after peace was declared in Northern Ireland, one might have expected that Belfast's barriers would be torn down by now. But reality, as usual, is far messier. Not one has been dismantled. Instead they've grown in both size and number.

The past decade of peacemaking has brought political elites of both sides together in a Catholic-Protestant government in hopes that their example would trickle down. Their experiment in cooperation, highlighted by the power-sharing government's first anniversary Thursday, has encouraged thriving employment, tourism and nightlife.

But it has not delivered meaningful reconciliation. Instead, for dozens of front-line communities of Belfast, fences still make the best neighbors.

"The Troubles" began at these sectarian flashpoints in the late 1960s, and survive today in a legacy of mutual fear and loathing. The rate of sectarian killings has fallen to virtually zero thanks to cease-fires underpinned by IRA disarmament, and the feeling on both sides is that the barriers help keep that peace.

"No. No way does that peace line come down," said Cein's mother, Allison Quinn, 32, sitting on her living room sofa on the Catholic side of the fence alongside her sister and a cousin.

Despite its height, every so often a particularly strong-armed Protestant manages to hurl a brick over the top -- enough to rattle any backyard barbecue.

"It's definitely not safe to take it down, and I don't think it ever will be. There's bitter loyalists over there," Quinn said, using a term for anti-Catholic militants. "They're out drinking in the street at night. If you take it down, they'd have easy access here and come over starting fights. You'd just be asking for trouble."

The wall 30 paces from her front door was born in 1969 as makeshift coils of barbed wire laid by British troops, shipped in following riots that forced hundreds of families, mostly Catholics, from their homes.

At the time, the senior British army commander, Lt. Gen. Ian Freeland, predicted: "The peace line will be a very, very temporary affair. We will not have a Berlin Wall or anything like that in this city."

But those barbed-wire coils became miles-long brick walls separating Catholic from Protestant in west Belfast. Even higher walls shield a Catholic enclave in Protestant east Belfast, while the north side is carved up by dozens of smaller barriers.

In this city of 650,000, roughly half Catholic and half Protestant, only the university district and upper-class streets, chiefly on the south side, bear no clear-cut tribal identity.

The newest peace line, erected earlier this year, runs past one of Belfast's few "integrated" elementary schools -- a place where Catholic and Protestant students are deliberately brought together. Fewer than 3 percent of Northern Ireland kids attend such schools.

Quinn, an unemployed single mother, loves her newly built town house, complete with oak floors and modern kitchen, its rent subsidized by the British government Housing Executive. That it's right by the barricade doesn't bother her at all.

"I would never move. It's so handy. And it's lovely," Quinn says emphatically.

Just then her boy Cein comes in, rubbing his head after bumping it on a curbstone while playing outside. He's soon immersed in his handheld video game.

Asked if he's ever gone next door to see the Protestants, Cein says no. Would he like to meet his neighbors and play in their playground?

"No way," he says with a smile. Why not? "'Cuz they're ugly."

His mother shrugs. "I'd like him to mix with Protestant kids, but it's just not safe," she says.

Outside Quinn's cul-de-sac, children's voices float over from beyond the wall. By day, when the peace line is opened for traffic, those kids are a few minutes' walk away. By dusk, when the doors are locked, it might take an hour.

On the Protestant side of the wall is a fenced-in, concrete soccer field. Here a stranger is greeted by two boys who let loose with suspicious questions and bigoted quips. Their fathers belong to the UDA, the Ulster Defense Association, a militant Protestant group that killed more than 300 Catholics from 1971 to its 1994 cease-fire.

"Are youse a taig?" says one burly boy, using an insulting word for an Irish Catholic.

"It's all taigs over there," says another, waving dismissively at the wall. "They're soap-dodgers, so they are."

Soap-dodgers?

"Sure, them ones never take a shower. You can smell 'em from here." The boys laugh and resume their game.

This is where Lee Young, Cein's neighbor, plays soccer. The boy wears the blue jersey of Glasgow Rangers, a Scottish soccer club with an exclusively Protestant following in Belfast. Were he to walk next door onto Catholic turf, he would be certain to suffer verbal bullying or worse -- perhaps from kids wearing the green of Glasgow Celtic, the Catholic favorite.

Wearing the "wrong" sports gear is just one of scores of sectarian measuring sticks that have proven deadly in the past. So are names. A "Cein" -- a Gaelic name pronounced Keane -- would be instantly identified as Irish Catholic, because the Protestant side shuns the Irish language.

On Lee's Protestant street, just past the modest playground, a few wind-tattered British flags flutter above doorsteps and a wall mural salutes the masked gunmen of the UDA. Youths have adorned walls with "KAT," short for "Kill all taigs," as well as insults to the pope.

On the Catholic side, the turf is marked with Irish flags, Gaelic street signs, IRA murals and insults to Queen Elizabeth II.

John Young, Lee's dad, is as moderate a soul as you could meet on either side of the peace line. He thinks the peace process, and gradually lessening tensions, mean that the wall probably could come down. But there's always a but.

"But there's no need to take it down. I wouldn't really think about it at all. I'm happy enough with it there," said Young, 34.

Young acknowledges that only a decade ago he was a hard-line hothead who joined the Orange Order, a Protestant club with an anti-Catholic ethos, and scuffled with police and Catholics in street clashes.

He says his varied work experiences since -- as security guard, construction worker and now grocery store deliveryman -- mellowed him through regular social contact with Catholics. He resigned from the Orange Order a few years ago.

"I drive through that peace line almost every day to the other side's homes and there's no bother," Young said. "The other side would actually treat you better -- tip you quicker."

But he acknowledges that some neighborhoods, those most notorious for Irish Republican Army sympathies, give him the creeps. "There's areas I have to drive into where the hair stands up on the back of your neck. But that's only natural."

Catholic colleagues on occasion have invited him across the wall for an after-hours pint at their pub. He won't go.

"You'd be afraid that they might recognize you're from the other side. Am I too tight in the eyes?" he said, referring to a stereotype of Protestant eyes supposedly being closer together.

His boy is asked whether he'd like to go over the wall to play with Catholics.

"The wall's so the taigs don't attack us. We don't go over there," Lee answers matter-of-factly.

His father is visibly discomforted. "My son wouldn't know a Catholic from a Hindu. It's just the friends he plays with. They're sons of UDA men and they teach him: 'That's taigs over there,'" he said.

If Lee and Cein ever met, it would be at one of Belfast's many "neutral" playgrounds, pools, parks or upscale suburbs.

Indeed, the nearest Cein and many other kids from west Belfast have been to Lee's home is a city-run swimming pool on the nearby Shankill Road. It has Belfast's only wave-maker. They travel there in school-supervised visits.

Cein's mother said she would like to shop on the Shankill, where stores are family-run and cheaper. The IRA blew one up in 1993, a fishmonger's, killing nine Protestants in a bungled targeting of UDA commanders.

But there's only one Shankill business she considers worth the risk -- the drive-through window of Kentucky Fried Chicken.

"We've got no Kentucky on our side. Mmm-mmm," she said, making a finger-licking gesture. "But you'd never walk. You'd nip over and make it quick."

There are striking similarities between the experiences of the Quinns and the Youngs. Both feel safe living beside a peace line. Both say their problems come from hell-raisers within their own community, not the other side. Both feel powerless to stop them.

Quinn said her previous neighborhood -- barely a half-mile away in a sprawling, low-rise housing project -- is increasingly overrun by glue-sniffing, car-stealing teens. Such behavior was once brutally suppressed by IRA "kneecapping" squads. But the group has been keeping its 2005 promise to renounce bloodshed, and that means no more vigilante violence either.

"The hoods have taken over. There's no telling them what to do. It's the Wild West," she said.

Quinn says she has never called the cops to prevent a crime, and doesn't think she ever will. Her attitude illustrates the other daunting task of peacemaking -- to build Catholic trust in what was once an overwhelmingly Protestant police force.

A sweeping reform program with affirmative-action recruitment over the past seven years has dramatically reshaped the police, with the goal of a 30 percent Catholic force. But many Catholics remain hostile to the police -- or fearful of being labeled collaborators.

So does she think the IRA should resume shooting teens in the legs? An uncomfortable silence follows.

"Well, I don't know. But the current situation is out of control," she says finally.

Like Quinn, Young moved his family much closer to a peace line about three years ago to get a better state-provided house, even though the street had a history of murderous UDA feuding. "Before, you'd be considered crazy to buy here. But people's attitudes are changing. There's not so much to be scared of anymore," Young said.

But police say UDA members orchestrate most crime in the area. Some are Young's neighbors.

"I call them the problem ones," he said, pointing to a row of houses outside his kitchen window, then lowering his finger because he didn't want anyone there to see. "I know who they are and what they do."

His backyard fence burned down recently when a car belonging to a UDA neighbor was torched, apparently in a criminal dispute.

"I've really no problems with Roman Catholics," Young said with a wry smile. "It's my own kind that cause me the headaches. Maybe I need another peace line!"

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

Horsey Come Home

NYPD horse makes his way home alone

May 3, 2008

THE ASSOCIATED PRESS

NEW YORK - New York City police say a patrol horse found his own way back through Manhattan streets to his stable after throwing his rider. The officer was treated for minor injuries.

Traffic noise spooked the horse, named Aldo, Friday on Prince Street in SoHo. The eight-year-old animal took off and beelined about eight blocks to the stable.

New York Police Department spokesman Paul Browne says the horse "knows his turf."

Officials say Aldo suffered a few small cuts, and the 21-year police veteran riding him had some injuries to his neck and shoulder.

Aldo has been a police horse for about a year.

A police horse died after getting startled in Coney Island in 2005. The animal ran away from its officer and crashed into the boardwalk.

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

Woody Allen

His lack of education is more than compensated for by his keenly developed moral bankruptcy.

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

Edmund Burke

'All that is necessary for the triumph of evil is for good men to do nothing'

Perhaps an over-cited quote but still a truth.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Childhood/Adult Sensory Integration

From Nature:

Adults readily integrate sight, sound, smell, taste and touch in their everyday lives without a second thought. But research is revealing that this is not the case with children.

Two new studies hint that children under the age of eight only use one sense at a time to judge the world around them. Previous research has demonstrated that adults can easily combine and rank the value of the information that they gather from their senses. For example, a man looking for a flute player in a crowded room can use sight and sound to do so, relying more on sight in a room full of background noise.

David Burr of the University of Florence, Italy, and Marko Nardini at Birkbeck College, University of London, UK, each led a team of researchers to explore whether children possess this ability.

Burr's group asked children between the ages of five and ten and adults to determine which of two blocks was taller than the other. While making their decisions, participants were allowed to either touch the blocks, look at the blocks, or do both. The team report in Current Biology that adults and children eight years of age and older were better at this task when they could both see and touch the blocks. Their ability fell when they were denied one of these two senses.

But children under the age of eight did not show this difference at all.

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

Bail Gone Very Wrong

By all accounts Rahim and Nazifa Shahghasy, who fled war-ravaged Afghanistan, and were murdered last week outside a Brampton shopping mall, were model Canadians.

Hard working, they built a life here after arriving with literally nothing. They raised two kids who went to Catholic schools and are (or were until last week) well on the way to a typical middle class Canadian adulthood.

But then Rahim and Nazifa were both stabbed to death by an apparently deranged Dwayne Palmer.

Mr Palmer's behaviour is so odd that it may bespeak madness rather than criminality. He may be not guilty by reason of insanity.

But criminal guilt or innocence is not really the issue -- the issue is why was Mr Palmer on the street?

He was, it seems, on bail from last December on weapons and drugs charges - the latest in a series of brushes with the law which include prior convictions for assault and drug offences.

It's easy to blame the Justice of the Peace, or Ontario Court of Justice Judge, who released Mr Palmer but the rules of bail are intended to allow release (and even the Constitution provides for easy release). The JP or OCJ Judge work within the statutes and the statutes say, except in extreme cases, "let 'em out".

What's more, bail hearings are fast and often important facts are just are not before the Court. It is common for bail lists to have dozens of cases to be heard in a single morning. King Solomon would have trouble deciding rightly in such a situation.

So what is to be done? The easy answer is to say "lock 'em all up" but that ignores the fact that the accused are not necessarily guilty and also overlooks societal costs (prisoners can't pay child support). That said, the legislation should provide that, where serious violence is alleged or where there is a history of convictions, bail is harder, much harder, to get.

Bail also should be treated more seriously by the system. Police should release everyone, albeit on terms, who will properly get bail -- there are lots of people in bail court who shouldn't be there -- but the remaining cases should be given the time and attention appropriate to one of the most serious parts of the criminal process.

Perhaps such changes would not have saved Rahim and Nazifa but that doesn't mean we shouldn't try to make the system work.

jcm

See Globe story below:
CRIME
Requiem for two immigrant dreams
In the 1980s, an Afghan couple and a Jamaican boy began new lives in Brampton. Now two are dead and one is a murder suspect

TIMOTHY APPLEBY AND KATE HAMMER

With a report from Susan Krashinsky

May 3, 2008

BRAMPTON, ONT. -- The two families came from opposite corners of the world: Afghanistan and Jamaica. Both reached Canada more than 20 years ago, leaving their homelands in pursuit of better futures. Both lived northwest of Toronto in Brampton, where immigrants comprise close to a third of the population.

As the families' twin trajectories intersected at a shopping plaza on Wednesday, their story culminated in a horrific and apparently meaningless homicide.

In Toronto yesterday, autopsies were being conducted on Rahim and Nazifa Shahghasy, 53 and 52, who fled war-ravaged Afghanistan in the late 1980s and staked out new lives that were cut brutally short in a stabbing frenzy with no apparent motive.

An hour's drive away, their alleged killer was under police guard in Brampton Civic Hospital's intensive-care unit. He, too, had sustained knife wounds, after stabbing himself in the neck with one of the two long-bladed knives he used to kill the Shahghasys, Peel police said.

Born in Jamaica in 1980, Dwayne Robert Palmer was a child when he came to Canada. His father, Max Robert Palmer, who turned 65 this week, purchased a family home on Brampton's Hinchley Wood Grove in 1989 for just $30,000.

When Dwayne Palmer was granted bail last December on weapons and drugs charges - the latest in a series of brushes with the law, according to a police source - he listed the house as his home address, shared with his father, his younger brother and a tenant, according to neighbours and property records.

Just why he was at the Red Maple Plaza early Wednesday afternoon is unclear. Also a mystery is why he might have attacked the Shahghasys.

Was it a robbery? A carjacking? Inspector Norm English of the Peel homicide squad has so far described the attack only as completely unprovoked.

Some light may be shed when police are able to interview Mr. Palmer, at which point it is expected that he will be charged with two counts of second-degree murder.

Police did not release Mr. Palmer's name, which was being withheld until he is formally charged. Nor did they describe his criminal record, beyond saying that he was well known to them and was free on bail at the time of Wednesday's killings.

Police sources and court records, however, confirm that Dwayne Palmer is the suspected killer, and that on Dec. 31 he was charged with drug possession, carrying a concealed weapon and dangerous use of a weapon. Before that, he was convicted of assault and of shoplifting.

The Shahghasys, by contrast, led exemplary lives. Without exception, friends and neighbours who knew them described the couple as hardworking, generous role models.

Sarah Futia, a close friend of the couple's 22-year-old son, Qaiss, recounted speaking to Mr. Shahghasy last week.

It turned into a lecture about how I should better myself and how he thinks that I have great potential, she said. He was always trying to encourage us. He was a very encouraging man, a very beautiful person.

Hosain Anishwar, president of the Afghan Association of Ontario, had known the Shahghasys ever since they fled Afghanistan's Soviet-backed regime more than 20 years ago.

They came here as refugees - there was not any friend, any family members or anybody to sponsor them - and then they [became] landed immigrants and later Canadian citizens, he said.

Mr. Shahghasy worked as a car detailer at Brampton's Planet Ford dealership. His wife ran a clothing store, also in Brampton. The couple purchased their brick-clad, two-storey, Siesta Court home in 2006 for $415,000.

When they were slain at the strip mall on Wednesday, they were making rounds that could hardly have been more routine: Ms. Shahghasy had a dental appointment; while waiting for her, her husband was picking up a few groceries.

As Mr. Shahghasy exited the store, he saw his wife being stabbed, tried to intervene and was himself fatally stabbed, police said Thursday. Police arrived a few minutes later, subdued the attacker with a taser and took him to hospital.

Mr. Anishwar called the couple's deaths a tragedy ... they were innocent people.

About six kilometres from the Shahghasys' tidy home is the more run-down Palmer residence. When a reporter visited yesterday the garden was overgrown, a back window was broken and a car parked directly in front was filled with debris.

As the visitor approached, a man shouted through the door, Go away, it's none of your business.

A neighbour, whose son attended Notre Dame Secondary School with Dwayne Palmer, said Mr. Palmer was expelled after a stabbing incident.

It's an unfortunate thing what happened, but I'm not surprised; he was a troubled kid, the man said.

Mr. Palmer's parents are separated and he divided his time between Brampton and Toronto, where his mother lives, said the neighbour, who described the father as a nice guy.

Another neighbour, Andrew Hall, 22, said that he would often see Mr. Palmer smoking cigarettes in the driveway of the family's home, and described him as quiet and withdrawn. He seemed like a nice guy; a little off though, Mr. Hall said. He just had a little bit of a weird look.

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

Livent's Last Show?

The Final Act?

Garth Drabinsky faces the music in Canada's first major prosecution of alleged corporate accounting fraud

Theresa Tedesco, Chief Business Correspondent, Financial Post  Published: Saturday, May 03, 2008


One of the longest-running legal productions in Canadian history is entering its final act as the criminal-fraud case against Garth Drabinsky and Myron Gottlieb, the co-founders of now-defunct Livent Inc., begins playing out in an Ontario courtroom next week.

Mr. Drabinsky, 58, and Mr. Gottlieb, 64, each face three counts of fraud in connection with the spectacular collapse nearly a decade ago of the Toronto-based company, at the time North America's largest producer of live theatre. The former business partners are accused of deliberately misrepresenting the company's financial health during a nine-year period that led to its bankruptcy in November, 1998.

Charged by the RCMP in 2002 with defrauding investors of $500-million after a four-year investigation, the former executives of Livent, which produced musicals such as The Phantom of the Opera, Ragtime, Showboat and Kiss of the Spider Woman, are themselves the lead actors in Canada's first major prosecution into alleged corporate accounting fraud.

Presiding over the trial, which starts on Monday and is expected to last four months, is Superior Court Justice Mary Lou Benotto, the judge in the controversial tainted-blood trial, one of the biggest public-health scandals in Canadian history. Acting for Mr. Drabinsky and Mr. Gottlieb, who chose to be tried by a judge instead of a jury, are prominent defence lawyers -- and brothers -- Edward and Brian Greenspan, respectively.

What's notable is that the high-profile demise of the Toronto-based theatre company predates a series of stunning multi-billion-dollar accounting frauds -- at Enron, Worldcom, Tyco and Adelphia-- that led to criminal convictions against prominent corporate executives in the United States who are already serving prison sentences.

In Canada, the track record of prosecuting suspected corporate malfeasance has been spotty. For example, it took seven years to sputter through a trial that resulted in an acquittal on insider-trading charges for John Felderhof, formerly of Bre-XMinerals Ltd., a decade after the gold-mining company's implosion. Andrew Rankin, the once-promising investment banker from RBC Dominion Securities, walked away from a conviction for tipping after he appealed the decision. And despite well-publicized RCMP investigations into the activities of a handful of executives at Nortel Networks Corp. and Royal Group Technologies Ltd. dating back to 2004, no official charges have been laid.

"If we're trying to create any sort of deterrence in white-collar crime in Canada, I don't think that what we've done and what the whole system has done in Livent has helped that," said a senior Canadian law-enforcement official who asked not to be named. "I don't think Canadians think it's a satisfactory situation that it took almost six years to move a case through the court system."

Mr. Drabinsky founded Livent in 1990 with business partner Myron Gottlieb, but lost control of the company in June, 1998. As part of an investment deal, Mr. Drabinsky and Mr. Gottlieb agreed to step down from their executive positions to assume purely creative roles, and signed over voting control of their shares in return for a US$20 -million infusion from Michael Ovitz, the former Hollywood talent agent and Walt Disney Co. executive

Almost immediately, the new managers faced the possibility the company was imploding and began bringing the curtain down on some of Livent's money-losing shows.

Robert Webster, Livent's executive vice-president, informed some of the company's investors that it was closing down some of the shows in which they had invested millions.

By the time Mr. Webster made the rounds to those who had purchased royalty rights -- they included Wood Gundy Inc. (now CIBC World Markets), the brokerage arm of Canadian Imperial Bank of Commerce; Dundee Realty Corp.; and the trustees of the estate of the late Andrew Sarlos, the Canadian financier who had been a director at Livent since its inception -- he knew the company had problems few could have scripted. Most of the deals appeared to have strings attached that included a hefty outlay of cash by Livent, which the company could not afford.

Livent's new managers initiated an internal investigation on Aug. 7, 1998. Five of the company's former financial employees led Mr. Webster and others through a maze of alleged accounting irregularities that would eventually reveal massive hidden losses.

Four days later, Livent's board of directors -- among them James Pattison, chairman of the Jim Pattison Group in Vancouver; Alfred Taubman, then-chairman of Sotheby's Holdings Inc.; Conrad Black, former chairman and chief executive of Hollinger Inc.;

Garfield Emerson, ex-president and chief executive of NM Rothschild & Sons Canada Ltd.; and Thomas Lee, a Boston-based leveraged-buyout specialist -- suspended Mr. Drabinsky and Mr. Gottlieb.

The company announced that KPMG had been hired to conduct a forensic audit of the company's books.

The reaction was swift: The Toronto Stock Exchange and NASDAQ, the two exchanges on which Livent's shares traded, suspended the stock, while the Ontario Securities Commission issued a cease-trade order.

The next day, Livent's new managers handed over the initial findings of their internal probe to the OSC and delivered the same package to the Securities and Exchange Commission in Washington. On Aug. 13, the U.S. Attorney's Office in the Southern District of New York opened a file. Soon, the Federal Bureau of Investigation became involved.

In late October, the RCMP began investigating Livent's accounting practices. A month later, the company filed for bankruptcy protection in Canada and the United States. At the same time, the new management team, led by Mr. Ovitz, was publicly slinging legal accusations at the co-founders.

Mr. Drabinsky and Mr. Gottlieb were sued by Livent's management for US$225-million, alleging they codirected a massive fraud that fleeced the company out of $97-million. They also alleged the two co-founders received more than $7.5-million in direct "kickbacks." The suit also alleged the duo cooked Livent's books to inflate earnings and bullied staff with a "tyrannical and abusive" management style to keep them from revealing company secrets.

Mr. Drabinsky countered with a $105-million lawsuit against Mr. Ovitz and members of his management team, claiming they were the authors of an elaborate "conspiracy scheme" to discredit and oust him from the company he founded.

In late December, the RCMP raided Livent's mid-town Toronto head office, seizing 1,000 boxes of financial documents.

The U.S. regulators were first out of the gate. In January, 1999, the SEC and the U.S. Attorney's office filed a bevy of criminal and civil charges against Livent's co-founders and six other former employees. The criminal indictment included one charge of conspiracy, 15 counts of securities charges, making false statements to the SEC and other violations of federal securities laws. If convicted,

Mr. Drabinsky and Mr. Gottlieb each faced 140 years in prison and up to US$16-million in fines.

"Tens of millions of dollars in business losses were concealed and revenues were falsely inflated, making Livent appear to the investor, the SEC and the public to be a more profitable company at a time when it's alleged Livent's actual financial condition was poor and deteriorating," the indictment declared.

In its civil suit, the SEC outlined 17 breaches of U.S. securities laws said to have been carried out by Livent's former managers dating back to 1991.

On cue, Mr. Drabinsky held his own audience in Toronto, to which he declared: "I am innocent and have committed no criminal wrongdoing."

Fearing they wouldn't get a fair trial, the Canadian businessmen refused to voluntarily surrender and appear in a New York federal court to be arraigned on the charges. The U.S. government issued international arrest warrants, making the former Livent executives fugitives.

Meanwhile, all eyes were on Canadian law enforcement and regulatory authorities. Not only had their U.S. counterparts moved quickly, they had characterized the alleged frauds at Livent as basic cookie-jar accounting.

"I don't think any case involving the interpretation of accounting records is simple," said a Canadian law-enforcement source who spoke on condition of anonymity. "How much actual investigation did the U.S. actually do prior to the indictments? We have to believe that we have reasonable and probable grounds that a crime has been committed and make sure we've covered most of the bases."

More frustrating for the RCMP were the internal machinations inside the police force as investigators on the file were constantly replaced. A series of preliminary hearings also ate up the clock after the RCMP laid the charges, reducing the number from 19 originally to three.

Meanwhile, both Greenspan brothers became tied up in other lengthy trials.

Jacob S. Frenkel, a Maryland-based securities lawyer and former SEC and U.S. assistant attorney, said delays are often part of a good defence strategy. "It highlights how defendants who can successfully avail themselves of procedural delays can make serious conduct appear ancient when the case finally gets to trial."

As they prepared their defence, Mr. Drabinsky continued producing reality shows, and Mr. Gottlieb attempted to sue a group of prominent lawyers and accountants for an alleged "conspiracy." Both dabbled in business ventures and both opened offices in Toronto's trendy Yorkville area.

Now, with the long-awaited trial set to begin, the Crown is expected to focus on a series of alleged aggressive accounting practices at Livent over a nine-year period that led to its bankruptcy. Veteran Crown prosecutor Robert Hubbard has likely built a case on documentary records, most legal observers agree, given that they do not suffer from the frailties of the passage of time the way testimony can.

"The Crown obviously feels it has a strong case worthy of prosecution and that the passage of time has not diminished it," said Richard Powers, assistant dean at the Joseph L. Rot-man School of Management at the University of Toronto. "Prosecutors are getting very good at these cases because they've learned from their past mistakes, most notably Bre-X. But they are still in tough because of the amount of time that has passed."

The charges against Messrs. Drabinsky and Gottlieb cover a long period of time and numerous activities in an attempt to show the Livent co-founders engaged in questionable conduct to overstate the company's earnings and conceal improper payments.

The strategy for the prosecution is to convince Judge Benotto that there was a systematic pattern of behaviour by which investors were defrauded or deceived, rather than show individual acts of fraud, which if not all proven, could derail the entire case.

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

Friday, May 2, 2008

Rejection of Joint Sentence Submissions

As today's decision in R. v. Burton, 2008 CanLII 19241 makes clear, joint sentence submissions should be rejected by the sentencing court only where (a) the proposed sentence is contrary to the public interest AND (b) the sentence would bring the administration into disrepute.

Where a sentencing court is inclined to reject a joint sentence that court should:

* explain why the joint submission is contrary to the public interest or how it could bring the administration of justice into disrepute;

* acknowledge the high threshold for rejecting a joint submission;

* inform counsel that the court is disinclined to accept a joint submission and afford them the opportunity to make submissions on the matter; and,

* if imposing a different sentence, fully consider the circumstances of these offences and this offender in determining a fit sentence.

Failure to follow these steps can lead to the sentence being set aside on appeal.

A passage of the decision follows:


[20] In R. v. E. (R.W.) 2007 ONCA 461 (CanLII), (2007), 86 O.R. (3d) 493, the Ontario Court of Appeal reviewed the law regarding joint submissions. In that case, the Court of Appeal considered whether the trial judge applied the wrong test in rejecting a joint submission.

[21] At paragraph 22, the Court states:

It is trite law that a sentencing judge is not bound to accept a joint submission. It is well settled, however, that a judge should not reject a joint submission unless it is contrary to the public interest and the sentence would bring the administration into disrepute: R. v. Cerasuolo, [2001] O.J. No. 359, 151 C.C.C. (3d) 485 (C.A.); R. v. Dorsey 1999 CanLII 3759 (ON C.A.), [1999] O.J. No. 2957, 123 O.A.C. 342 (C.A.) [page 500].

[22] In R. v. Douglas, reflex, [2002] J.Q. No. 418, 162 C.C.C. (3d) 37 (C.A.), Fish J.A., as he then was, compared the requisite test in Ontario to the standards in other provinces. He concluded that the standard in Ontario is not at variance with those that operate in other provinces. He explained at paragraph 51:

a reasonable joint submission cannot be said to bring the administration of justice into disrepute.[1]

[23] In R. v. E.(R.W.) at para 30, the Court of Appeal cites its own decision in R .v. Downey, [2006] O.J. No. 1289, 69 W.C.B. (2d) 155. The Court agreed with the sentencing judge's assessment that the joint submission in question was low but was not satisfied that the proposed sentence was so low that it would bring the administration of justice into disrepute. As the sentencing judge had not addressed how the joint submission would bring the administration of justice into disrepute, the court concluded that he erred in principle in rejecting the joint submission.

[24] The court went on to consider its decision in R. v. Tsicos, [2006] O.J. No. 4041, 216 O.A.C. 104 (C.A.) at paragraph 33. There, the Court of Appeal mentioned a number of factors that a sentencing judge should consider in rejecting a joint submission.

After explaining why the joint submission is contrary to the public interest or how it could bring the administration of justice into disrepute, it suggests that a court should acknowledge the high threshold for rejecting a joint submission; inform counsel that the court is disinclined to accept a joint submission and afford them the opportunity to make submissions on the matter; and, if imposing a different sentence, a court must fully consider the circumstances of these offences and this offender in determining a fit sentence.

...
[29] The sentencing judge did not address how the joint submission before him would bring the administration of justice into disrepute although he did address why the joint submission was contrary to the public interest. He ought to have acknowledged the high threshold for rejecting a joint submission, informed counsel that the court was disinclined to accept the submission and afforded counsel an opportunity to make submissions on the matter. He ought to have also fully considered the circumstances of the offence and the offender in determining a fit sentence. He did not do so in this case. He simply found that the recommendation of a conditional discharge was not appropriate and that it would not be in the public interest to award a discharge in the case of a domestic violence dispute in the face of an existing court order.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

So much for giving Josef Fritzl a fresh start

Note, the Ontario Court of Appeal upheld Ontario's sex offender registry last Friday

jcm

Marni Soupcoff

A sad, interesting development in the disturbing Josef Fritzl case: It looks like the Austrian father — who has reportedly admitted to keeping his daughter captive in his basement as a sort of sex-slave for over two decades and fathering seven children with her — had a previous record of sex crime convictions. He was allegedly convicted of attempted rape and sexual assault of young women in two separate incidents in 1967. So how would a convicted sex criminal get away with reporting his daughter missing (as he did before confining her to the basement dungeon 24 years ago) and legally adopting three of his daughters children?

The problem is Austrias "enlightened" law, which allows crimes that dont carry a life sentence to be wiped off a criminals record after between five and 30 years. There are surely good intentions behind the policy: Give criminals who have done their time a fresh start, a clean state. But given recidivism rates of sex offenders (pedophiles who molest boys have a recividism rate of 52%, and rapists of adult women reoffend at a rate of 39%) and the difficulty of effectively treating sex offenders, this doesnt seem like a wise move.

You have to think that in Fritzls case, his previous convictions would have raised suspicions (or at least given authorities pause) when his teenage daughter disappeared if only authorities had been aware of them. And, really, should a sex offender be permitted to adopt young children at any point in his life, even decades after his offenses? Probably not. Why take the chance when there are safe, loving families eager to adopt?

I have to admit, that Ive often found the idea that Canada has a National Sex Offender Registry somewhat troubling since it seems to impose added penalties to criminals after they have served their full sentences. My general position is that lengthy sentences are fine, but once someones free, they should be free, otherwise the government is taking more power over our lives than it can rightfully claim. But how can I not be comforted by the thought that under Canadas current laws, a Josef Fritzl would be put on the NSOR and have to report every year to the police — a restriction that would would likely have saved his daughter and grandchildren years of unspeakable abuse had it existed in Austria.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Schoenborn won't seek bail

A prudent decision. His chances of bail were virtually nil.

JCM

THE CANADIAN PRESS

May 2, 2008

KAMLOOPS, B.C. -- The lawyer representing a man accused of killing his three children in Merritt, B.C., says he won't be seeking bail for his client.

Peter Wilson recommended his client Allan Schoenborn appear by video link from jail for his court appearance on Friday.

Schoenborn sat silently and appeared gaunt on a TV screen in the courtroom as a decision was made to put his case over to May 16, when he will appear in person.

Wilson said he and his client discussed the question of bail and decided against it.

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

Amending Misnomers

The trend in modern law is to focus on substance and not on mere form. Errors of process are not intended to defeat otherwise valid claims.

The new Limitations Act forbids adding a party to an existing claim after the limitation period that would run against the party has expired.

But, as today's appeal decision in Lloyd v.  Clark, 2008 ONCA 343 makes clear, where the party against whom time has run is already in the claim, albeit misnamed, an amendment to correct the misnomer is to be allowed.

The Court holds:

[2]               Section 21 of the Limitations Act provides:

Adding party

21. (1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.  2002, c. 24, Sched. B, s. 21

...

(2) Subsection (1) does not prevent correction of a misnaming or misdescription of a party.  2002, c. 24, Sched. B, s. 21(2).

[3]               We agree with the submission that on a fair reading of the statement of claim, it was clear that the plaintiff intended to name the Municipality having jurisdiction over and responsibility for the maintenance of the road on which the accident occurred.  Moreover, there was clear evidence that Durham immediately knew that it was the intended defendant given the letter sent by Durham's insurance adjustor to the plaintiff's solicitor upon receipt of the statement of claim.

[4]               The case law amply supports the proposition that where there is a coincidence between the plaintiff's intention to name a party and the intended party's knowledge that it was the intended defendant, an amendment may be made despite the passage of the limitation period to correct the misdescription or misnomer.  See Ladouceur v. Howarth, [1973]S.C.J. 120 (S.C.C.); Kitcher v. Queensway General Hospital, [1997] O.J. No. 3305 (C.A.) and J.R. Sheet Metal & Manufacturing Ltd. V. Prairie Rose Wood Products, [1986] A.J. No. 7 (C.A.).
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Science not only factor in determining future of safe injection site: Tory MP

May 2, 2008

THE CANADIAN PRESS

OTTAWA - The junior health minister says scientific evidence alone will not determine the fate of Vancouver's safe injection site.

Winnipeg MP Steven Fletcher says his Conservative government will make a "rational and thoughtful decision based on science" when it comes to extending or ending a federal exemption for Insite, North America's only such program.

But Fletcher says the science is conflicting, so Health Minister Tony Clement will have to assess what Fletcher calls the "realities of the situation."

In an interview with The Canadian Press, Fletcher says other factors that will influence the government's decision include crime prevention and a United Nations treaty that frowns upon such safe injection sites.

Insite opened in 2003 and allows people to inject illegal drugs, including heroin and cocaine, under the supervision of a nurse.

Numerous scientific studies have indicated it minimizes harm to addicts while reducing health-care and enforcement budgets.

But it needs an exemption from Canada's drug laws to operate and the current federal exemption runs out at the end of June.

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

Take return-to-work offer or forfeit severance pay, Supreme Court rules

Take return-to-work offer or forfeit severance pay, Supreme Court rules

Employees fired from their jobs must be prepared to return to work during their severance period, the Supreme Court of Canada ruled yesterday.

In a 6-1 decision, the majority ruled that a Yukon business agent for a Teamsters union local - Donald Evans - was wrong to refuse an alternative job he was offered after his firing, as part of a 24-month notice period.

Mr. Justice Michel Bastarache noted that any reasonable person ought to accept such an offer, "where the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious."

However, Mr. Evans's lawyer, Eugene Meehan, described yesterday's ruling as "a tectonic turn" in employment law that tips the balance against employees in wrongful-dismissal scenarios.

Mr. Meehan said employers can henceforth fire a worker and "strategically" offer him or her another job a short while later - after the worker has suffered so much humiliation and alienation that returning would be a near impossibility.

"It gives employers a bait-and-switch tactic they didn't have before," Mr. Meehan said. "It is a shift away from previous, pro-plaintiff decisions."

He said an employee who refuses a return-to-work offer of this nature will forfeit his or her right to severance payments.

Mr. Meehan's criticism was backed up by a stinging dissent from Madam Justice Rosalie Abella. She said the majority ruling had the "bizarre" effect of turning a wrongful firing into a lawful dismissal: "The result is, in my view, as unpalatable as it is legally and factually unsustainable."

Judge Abella warned that the majority's approach "has the danger of making routine the requirement to accept re-employment with an employer who has acted wrongfully."

Yesterday's decision will cost Mr. Evans most or all of a 22-month award - representing about $100,000 - he won at trial.

After 23 years in his position, Mr. Evans was fired by a new union executive who ousted the one he had actively supported. Five months afterward, the union demanded that he "return to his employment ... to serve out the balance of his notice period of 24 months."

Mr. Evans was warned that if he did not return he would be terminated without notice.

Still, he refused, saying he had been "treated like a dog" by the new local president, and that the poisonous atmosphere he would inevitably encounter at work would make it impossible for him to function.

At trial, Yukon Supreme Court Judge Leigh Gower found that Mr. Evans had been wrongfully dismissed and was entitled to 22 months notice.

Judge Abella scolded her colleagues yesterday for abandoning a long-standing reality that, only on rare occasions, will an employee who is fired be expected to return to the workplace during his or her severance period.

"This, in my view, is particularly troubling because it disregards the uniqueness of an employment contract as one of personal service," Judge Abella argued. "An employee cannot be forced to work against his or her will."

Judge Abella also accused the majority of launching an unwarranted attack on the original trial judge's conclusions - in direct contradiction of a long line of its own decisions that counsel against overriding trial judges.

"With respect, this flies in the face not only of the law of wrongful dismissal, but of the trial judge's factual findings," she said.

Judge Abella said the trial judge supplied very solid reasons for believing that Mr. Evans was worried about re-entering a poisoned workplace where he would be greeted with hostility

 

James Morton

Steinberg Morton Hope & Israel

1100-5255 Yonge Street

Toronto, Ontario

M2N 6P4

 

416 225 2777

 

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

 

Anti Catholic Legislation Continues to Govern

Surely it's time to repeal the Act of Settlement 1701, at least as regards Roman Catholics. Does it really make sense to say no Roman Catholic can be Canada's Head of State?


LONDON (AFP) - The fiancee of Queen Elizabeth II's eldest grandson has switched from Catholicism to the Church of England, a spokeswoman for Britain's royal family said Thursday.

The move means that Peter Phillips, son of Princess Anne, will not have to give up his place in the line of succession to the throne when he marries Canadian Autumn Kelly on May 17.

The 1701 Act of Settlement bars monarchs or their heirs from becoming or marrying Catholics.

A Buckingham Palace spokeswoman told AFP: "She was welcomed into the Church of England" but could not give details of when and why.

Phillips, 30 -- Anne's oldest child from her first marriage to Mark Phillips -- was the queen's first grandchild and is 11th in line to the throne.

He will marry Kelly, a 31-year-old management consultant, at Saint George's Chapel at Windsor Castle, west of London, later this month. Prince William is to be best man.

Man arrested in Texas for trying to cash $360 billion check

FORT WORTH, Texas - Charles Ray Fuller must have been planning one big record company. The 21-year-old North Texas man was arrested last week for trying to cash a $360 billion check, saying he wanted to start a record business. Tellers at the Fort Worth bank were immediately suspicious -- perhaps the 10 zeros on a personal check tipped them off.

Fuller, of suburban Crowley, was arrested on a forgery charge. He was released after posting $3,750 bail.

Fuller said his girlfriend's mother gave him the check to start a record business. But bank employees who contacted the account's owner said the woman told them she did not give him permission to take or cash the check.

In addition to the forgery count, Fuller was charged with unlawfully carrying a weapon and possessing marijuana. Officers reported finding less than two ounces of marijuana and a .25-caliber handgun and magazine in his pockets.

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

Thursday, May 1, 2008

Meanwhile, Michel Houellebecq and Honouring Parents...

If anyone was wondering where French avant-garde novelist Michel Houellebecq got his talent for character assassination, the answer is clear: his mother.

In his seminal 1998 novel "Les particules elementaires," known in English as "Atomised," Houellebecq vented a lifetime of anger against his mother by portraying her as an egocentric, sexually promiscuous hippie who neglected her children.

Now it's pay-back time.

Lucie Ceccaldi, 83, has returned to France from her home in the Indian Ocean island of Reunion to publish a book of her own, "The Innocent One," in which she heaps insults on her son.

"My son can go and get screwed by whomever he wants, he can write another book, I don't give a toss," she says in one excerpt, widely published in French media on Wednesday.

"But if he has the misfortune of sticking my name on anything again he'll get my walking stick in his face and that'll knock his teeth out," she says in what newspapers described as a typical sample.

Houellebecq's tales of emotional alienation and of the dearth of values in modern society have made him a defining voice of his generation, according to many literary critics.

He has always been very open about his grievances against his mother, who he says lost interest in him shortly after he was born in 1958 and left him in the care of his grandmother when he was a small boy.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Child Support Obligations of Step Parent

How do the child support guidelines apply when there is a support paying parent and a support paying step-parent? Does the child get double support? Support from the richer parent/step-parent? Do the parent and step-parent divide up their obligations?

Oh my!

The British Columbia Court of Appeal ruled Monday in H.(U.V.) v. H.(M.W.), 2008 BCCA 177 that the parent pays in full first and if there is a shortfall in the amounts necessary to provide the child with an appropriate level of support the step-parent must make up the difference. The decision is lengthy, detailed and nuanced.

A brief excerpt follows:

[38] As should be clear from the foregoing, although the broad principles of law relating to the existence of child support obligations on the part of stepparents are clear, Canadian courts have differed as to how those obligations, as stated in the Guidelines, are to be determined in practice. I read s. 5 as requiring that the legal duties of support of the other parent(s) in this case, the natural parents be considered when support is sought from a stepparent. If such duties are to be considered, it seems obvious that they must be quantified if possible. For this purpose, the other parent(s) should be before the court, or other evidence satisfactory to the court relating to that parent's status should be adduced, as occurred in Dutrisac and Kobe (but not in Chartier.) Unless that other parent is a stepparent, s. 3 requires that his or her support be the applicable table amount unless custody is being shared, the child is over age 19, or one of the other 'discretionary' provisions applies. (In the case at bar, the daughter had reached 19 by the time of the hearing below, but was still dependant on parental support, and no argument was advanced invoking s. 3(2)(b) of the Regulation. None of the other discretionary provisions applied.) At this stage, the process is not one of balancing or even apportionment: it appears that the natural parent's obligation can be determined only in accordance with the non-discretionary presumptive rule of s. 3.

[39] Thus the chambers judge below did err, in my respectful view, in failing to determine whether the father was in fact contributing an amount at least equal to what he would have been required to pay under s. 3 had he been making regular monthly payments in accordance with the Guidelines. Whether or not the father was doing so, the chambers judge should then have ordered him to pay his table amount although if the mother was content to accept support in the form of the payment of tuition fees or other expenses, she could enter an agreement with him to that effect. She could not, however, choose to give the father a pass in favour of pursuing the stepfather for all the support the children required.

[40] Once the duty of the other parent had been determined, the chambers judge could proceed to determine the stepfather's obligation, having regard to that duty and these Guidelines. I agree with the Court in Kobe that the chambers judge's discretion under s. 5 was not unfettered, but certainly the phrase these Guidelines would include the objectives stated in s. 1, which I repeat here for convenience:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation;

(b) to reduce conflict and tension between parents by making the calculation of maintenance orders more objective;

(c) to improve the efficiency of the legal process by giving courts and parents guidance in setting the levels of maintenance orders and encouraging settlement; and

(d) to ensure consistent treatment of parents and children who are in similar circumstances.

Thus a fair standard of support, objectivity of calculation, and reduction of conflict between parents are relevant to the determination of appropriate support by the stepparent. On the other hand, s. 5 does not, in my view, confer a discretion that is so broad as to encompass all the circumstances of a case (as was suggested in Russenberger) or fairness to the father arising from a kind of promissory estoppel against the stepparent (as was suggested by the chambers judge in this case).

[41] Given the children-first perspective of the Guidelines (see D.B.S., supra, at para. 43), primacy should be given to the children's standard of living. Where for example the stepparent provided a standard to the children during the period of cohabitation that was materially higher than that which the natural parents can provide by means of their Guidelines amounts, a court might find it appropriate to make an order against the stepparent that is designed to provide the higher standard, or something approximating it, on top of the other parents' support. However, where the 'piling' of Guidelines amounts would result in a standard beyond one that is reasonable in the context of the standard the children have previously enjoyed, such a 'windfall' or wealth transfer (see Francis v. Baker, supra, at para. 41) is unlikely to be appropriate. At the other end of the spectrum, where the three (or more) parents' Guidelines contributions together are needed to provide the children with a reasonable standard of living, then both the stepparent and the non-custodial parent(s) may well be required to pay full Guidelines amounts. Or, where one of the natural or adoptive parents is not present or is unable to pay any support, the stepparent may well have to pay his or her full table amount. The Legislature has left it to the judgment of trial and chambers judges in the first instance to fashion orders that are appropriate under s. 5. At the same time, the Guidelines system is not thereby jettisoned in favour of a 'wide open' discretion. The inquiry must, like the Guidelines themselves, focus on the children and their needs.

[42] In this case, the income levels of the father and stepfather were not very different. When the stepfather was supporting the children, the father was sharing custody and was therefore not expected to contribute funds to the mother for the children's care. Now, the natural parents are able to provide a quite comfortable standard of support the father by paying his Guidelines amount and the mother by providing her presumed contribution as custodial parent. The chambers judge reasoned that the mother's expenses were slightly more than her Form 89 had indicated about $2,570 per month from May 1, 2006. In this, he has not been shown to be wrong. Where he erred was in approaching the natural father's obligation as a secondary one, losing sight of the non-discretionary obligation created by s. 3. If the chambers judge had factored in the Guidelines obligations of the natural parents, which come to a total of $2,210 per month, he would have been left with a shortfall of $360 per month. If the stepfather had been ordered to top up this amount, the children would have a more than a fair standard of support and the other requirements and objectives of the Guidelines would have been met.

[43] I would allow the appeal on the basis that the chambers judge erred in his approach to the determination of the stepfather's obligation under s. 5 of the Regulation and the father's obligation under s. 3, and in considering factors that do not come within the wording of s. 5.

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

Yesterday's Brampton Killings

Brampton - Peel Regional Police said it was a husband and wife who were stabbed in a Brampton strip mall on Wednesday afternoon.

Nazifa Shahghasy, a 52-year-old woman from Brampton and her husband, Rahimullah Shahghasy, 53, were fatally stabbed at the plaza on Red Maple Drive, which is in the McLaughlin Road and Williams Parkway area.

Investigators have said the incident was completely random and unprovoked -- the suspect attacked the female as she headed back to the car.  Her husband was at the grocery store.  The woman's husband tried to intervene once he saw his wife being attacked, he was then fatally stabbed.

Both victims succumbed to their injuries and leave behind a 21-year-old son and 19-year-old daughter.

Once police arrived on scene, the suspect started stabbing himself in the neck, according to witnesses.

The Special Investigations Unit said the 28-year-old suspect was hit with a Taser by an arresting officer.

One store owner in the plaza said his wife heard screaming and when she looked out she saw a woman collapsed in the parking lot and a man stabbing himself.

The woman's body laid covered with a yellow blanket in the parking lot of the plaza for several hours as police investigated.

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

Toronto reservists sentenced to 15 years total for beating of homeless man

Brian Deganis, 23, and Jeffery Hall, 24, pleaded guilty earlier this month to reduced charges of manslaughter. On Thursday, Hall was sentenced to 10 years and eight months, while Deganis got five years and six months.

Deganis's sentence takes into account the two-plus years he has been in jail since his September 2005 arrest. Hall had been out on bail.

A third reservist, Mountaz Ibrahim, 25, pleaded guilty to charges of being an accessory after the fact and was sentenced to 10 months.

Hall and Deganis are also prohibited from owning guns, firearms and ammunition for life, while Ibrahim will not be allowed to possess the items for 10 years.

All three also pleaded guilty to charges of assaulting Valerie Valen, who witnessed the beating.

The soldiers were originally charged with first-degree murder. But after a preliminary hearing, the charges were reduced to second-degree murder. Last month, the three men pleaded guilty to the manslaughter charges.

Paul Croutch, 59, a father and former community newspaper publisher, was kicked to death as he slept on a park bench in Moss Park near Sherbourne and Shuter streets in August 2005.

The attack happened at around 4 a.m.

According to Crown prosecutors, one of the accused was overheard saying he hated homeless people and wanted to take them on.

It was after that the reservists went to the park and committed the attack.

All three men had been drinking heavily at a function at the nearby Moss Park Armoury.

The jury was told that Croutch was punched and kicked so hard that his body landed almost a metre behind the bench where he was sleeping.

Man used as 'punching bag'

Superior Court Judge Eugene Ewaschuk said the attack on the homeless man was "sadistic" and carried out "with military precision."

"They used him as a combination punching bag and soccer ball," he said.

The brutality of the killing shocked people in Toronto.

It was not only the violence against a vulnerable man that caught people's attention, but also the fact that three Canadian Forces reservists were accused of the fatal assault. All of the men were trained combat soldiers. They served as reserve members of the Queen's Own Rifles of Canada, an airborne infantry unit based at the armoury.

An autopsy showed Croutch suffered head injuries likely caused by punching, kicking or stomping.

A Canadian Forces spokesman said Thursday the trio were suspended shortly after their arrests and will soon be discharged from service.

Onus Of Proof In Motor Vehicle Collision With Cyclist

Generally the plaintiff in a civil action has to establish liability. That means, in a negligence claim, that the plaintiff must prove negligence.

That general rule, however, may be set aside by statute and, specifically, does not apply to automobile collisions with pedestrians or bicyclists.

Section 193(1) of the Highway Traffic Act reads as follows:

When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.

Put briefly, where a motorist collides with a bicyclist or a pedestrian, on a highway or where the automobile causes injury, that motorist is presumed to be at fault and must show by a reasonable preponderance of evidence that the motorist was not at fault or negligent.

In today’s appeal decision in Senger v. Lachman, 2008 ONCA 323 the Court gave a confused direction in this regard and a new trial was ordered. The plaintiff’s fifteen year old son (Shawn) died when the bicycle he was riding collided with an automobile on a country highway near Consecon, Ontario. The respondents, Mr. Satrohan Lachman and Mrs. Parbatee Lachman are, respectively, the driver and owner of the automobile.

Part of the decision is set out below:

[10] The trial judge later read to the jury the first question that they would be called upon to answer. The question was phrased as follows:

Has the defendant, Satrohan Lachman, satisfied you that the accident was not caused by any negligence or improper conduct on his part? Answer “Yes” or “No”.

[11] After reading the question to the jury, the trial judge then repeated, in a different way, that the onus was on the respondents to satisfy the jury on the preponderance of evidence that the driver of the automobile was not negligent.

[12] Unfortunately, later in his charge, while he was explaining the standard of care that applies to a driver of a motor vehicle, the trial judge contradicted and confused his earlier explanation of the onus. In this portion of the charge, he started with the statement that the driver is “not asked to maintain a standard of perfection or to take extravagant precautions. The mere fact that an accident has happened and damage has been sustained, does not permit you to draw an inference that the accident was caused by somebody’s negligence.” Such direction represents a clear departure from the onus of proof established under s. 193(1).

[13] It is likely that the trial judge simply misspoke at this point in his charge. The instruction, however, is clearly wrong. The trial judge compounded the error when, later in his charge, he set out examples of what might constitute negligence. Specifically, he dealt with the duty on the driver of the motor vehicle under the Highway Traffic Act to sound the horn “whenever it is reasonably necessary to notify pedestrians or others, of his vehicle’s approach.” He went on to state, “[i]f you are satisfied that the failure of Mr. Lachman to sound the horn was an effective cause or a proximate cause of the accident, then you should find this omission an act of negligence.” This explanation to the jury may well have furthered the erroneous view that a specific act of negligence had to be proven by the appellant.

[14] Another portion of the charge may also have served to reinforce the incorrect impression that the onus was on the appellant to prove that Mr. Lachman was negligent. Prior to his instruction on onus of proof, the trial judge dealt with the damages claimed by Shawn’s mother and explained proximate cause to the jury. In doing so, he stated “the evidence must not only establish that the defendant, Satrohan Lachman, was negligent but also that his negligence was the proximate cause of her injuries or damages.” Again, this may well have confused the jury as to the presumption of negligence applicable in this case. How this distinction could be reconciled with his instruction concerning subsection 193(1) of the Highway Traffic Act was not explained by the trial judge when he subsequently provided the instruction on the onus of proof, thereby serving to exacerbate the jury’s confusion on this critical legal issue.

[15] Each of these problems, taken individually, may not have been sufficient to justify ordering a new trial given that, in the section dealing with the burden of proof, the trial judge had correctly instructed the jury on the Highway Traffic Act provision respecting onus, and had correctly described its impact. However, when these three portions of the charge are viewed together and the charge is read as a whole, I am not satisfied that the jury would have clearly understood that the burden of proof remained on the respondents throughout the trial, and that they (the jury) did not have to identify a specific breach of the duty of care (such as the failure to sound the horn) as the cause of the accident. It was up to the respondents to satisfy the jury that, upon the whole of the evidence, Mr. Lachman was not negligent: Bronson v. Evans and Evans, [1943] O.R. 248 at 257 ( C.A. ).

Young people earning less than their parents

Extra years in school aren't paying off financially for many of Canada's young people, who are better educated but worse paid than people their age a generation ago.

According to census data released Thursday by Statistics Canada, workers between the ages of 25 and 29 make less than their predecessors, especially men.

In 1980, median earnings for full-time male workers in that age group were equal to $43,767 in today's wages. In 2000, they had dropped to $38,110 and by 2005 they were at $37,680.

While women have statistically always earned less than men, their drop in wages was notably less drastic. In 1980, women aged 25 to 29 made $32,813 in inflation-adjusted dollars. In 2005 they earned just slightly less, $32,104, according to the report, titled "Earnings and Incomes of Canadians over the Past Quarter Century, 2006 Census."

The trend toward reducing wages for young men began in developed countries around the world in the early 1980s, according to StatsCan analyst Rene Morissette. At that time, economists believed new technology was replacing young workers, he told The Canadian Press.

Around the same time, some companies began to offer new workers lower wages than senior employees in order to reduce costs while maintaining morale among senior staff, he said.

More service jobs

These days, young people are staying in school longer and men are less likely to find full-time work once they finish, unless they work in the trades.

Another factor in lower incomes is the expanded service industry, which usually pays less than other sectors such as manufacturing. Morissette suggested increased employment in service is responsible for about 15 per cent of the decline in young people's wages.

Reduced wages for young people means that by the time they reach 30 or 35, most have significantly lower savings than their parents did at the same time.

While young people were the hardest hit group of respondents, they weren't the only ones suffering from a downturn in financial fortunes.

Middle class treading water

Thursday's report stated lower-income people are making less money than ever while the rich get richer. Middle-class people are treading water, still making close to the same amount of money they were 30 years ago.

Between 1980 and 2005, median earnings increased by 16.4 per cent for the top 20 per cent of full time workers increased only 0.1 per cent for those in the middle 20 per cent fell 20.6 per cent for those in the bottom fifth.

Workers today make a mere $53 more annually than in 1980, when adjusted for inflation, the census states.

"People are pedalling harder than ever," the Canadian Centre for Policy Alternatives' Armine Yalnizyan told CTV's Canada AM on Thursday. "Women are really the big news story in preventing the middle class from collapse."

As income rises for the upper class, housing prices tend to be draw upwards as well, making it ever more difficult for lower-income people to own homes, she said.

The combination of rising housing costs and lower income affects young families and new immigrants the most, she said.

"The gap between Canadian born (people) and immigrants is growing," she said. "They're doing worse off than similar types of immigrants in the 1980s."

If stagnation for the middle class and reduced fortunes for those in the bottom bracket is the norm despite the booming economy, we're looking at a rough future, said Yalnizyan.

"The economy hasn't performed like this in 50 years. This is as good as it gets."

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

Killing of Homeless Man -- We Are All To Blame

The sentencing of the killers of a homeless man in Moss Park proceeds today.

This murder is especially tragic. It seems to have been motivated by a rage against homeless people and fueled by alcohol. By all accounts the deceased victim was a good productive citizen whose fall was a result of mental illness.

The killers, who also attacked a passer by who intervened (a woman whose bravery cannot be overstated), deserve strong (but justly measured) punishment.
That said, we all some fault here. Why was a mentally ill man allowed to be on the street, sleeping in parks under garbage bags? This was a man, not trash to be discarded. This was a man who should have been in care; but because of deinstitutionalizing the mentally ill he was on the street.

Mental institutions in the 1950's and 1960's had their faults -- real ones -- and deinstitutionalizing was intended well.
But deinstitutionalizing did not work. A brief tour of any major Canadian city will show dozens of lost souls on the streets. They should be protected and treated, not cast aside as street trash.


The Canadian Press

TORONTO -- Two soldiers facing up to 15 years each in jail for manslaughter offered tearful apologies in court Wednesday for an alcohol-fuelled attack that left a homeless man twisted "like a puppet" in a Toronto park.

"I have replayed that night in my mind a million times," Cpl. Jeffrey Hall said during a tearful plea for leniency at his sentencing hearing in Ontario Superior Court.

"I will spend the rest of my life trying to make up for that."

In the early hours of Aug. 31, 2005, Hall and Pte. Brian Deganis punched, stomped and kicked Paul Croutch, leaving the 59-year-old with serious brain damage, a ruptured spleen and six broken ribs. He later died in hospital.

Deganis told the court that he acted with a "disturbing disregard for others," and that his actions have brought shame upon his family and fellow soldiers.

"I will regret my actions for the rest of my life," said Deganis, who has spent more than two years and eight months in jail since being arrested in September 2005.

The soldiers were originally charged with second-degree murder but pleaded guilty to the lesser charge of manslaughter earlier this month.

Crown prosecutor Hank Goody said the crime was "very near murder," and he asked for an unusually harsh sentence of between 12 and 15 years.

"Fuelled by alcohol, the attack was a joint venture from start to finish," Goody said, adding that after the "furious attack," Croutch "looked like a puppet."

Goody told the court that a paramedic found the bloodied, dying Croutch - a father and former community newspaper publisher - shaking and shivering in Moss Park.

Hall and Deganis, both 24 and members of the Queen's Own Rifles of Canada, have told police they were drinking heavily in the hours leading up to the beating.

The pair are expected to be sentenced later this week.

A third reservist, 25-year-old Cpl. Mountaz Ibrahim, has pleaded guilty to being an accessory after he helped the killers flee the scene.

All three defendants have also pleaded guilty to assault causing bodily harm for attacking Valerie Valen, a Good Samaritan who tried to stop the beating.

Goody is seeking a sentence of between nine and 12 months for Ibrahim.

"They left him lying and dying as they turned their attention to Ms. Valen," Goody said, noting that the three men tripped Valen, beat her and called her derogatory names.

Valen earlier told the court that as she was being assaulted, one soldier shoved his dog tags in her face and screamed that they "owned" the park.

Court also heard that Hall and Deganis have battled alcoholism since their teens.

Hall's father Martyn told Justice Eugene Ewaschuk that alcohol was the "swirling monster" that incited his son to take part in the fatal beating.

He said his son started battling alcohol addiction at age 14, but that he has been completely sober since Croutch's killing.

As his son wiped away tears, the elder Hall pleaded for leniency, telling the court that his son is not an aggressive person.

Deganis's father Larry, a former police officer, also told the court his son has battled alcoholism, and that he knew it would one day come to a head.

"I knew something bad was going to happen, (but) not to this magnitude," he said in court. "This is terrible."

While on the stand, Deganis also spoke directly to his son just metres away in the prisoner's box, telling him that unless he quits drinking, he will not be allowed back into the family home.

"I'm sorry to say, Brian, I can't take you back," he said.

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

Wednesday, April 30, 2008

Old Bailey Online

Surfing the web is often a pointless waste of time. But sometimes you come across some useful material.

The website www.oldbaileyonline.org contains the Proceedings of the Old Bailey, 1674-1913 in a fully searchable edition of 197,745 criminal trials held at London's central criminal court.

Typical in of the cases is a detailed account of the trial of John Hogan for murder on 11th January 1786 (Reference Number: t17860111-1).

The case against Hogan was strong but circumstantial. It appears he murdered his girlfriend after a fight – the opening, evidence, closing, jury instructions and sentencing are all set out.

Sadly the case could, with very little changes, be set in today’s Toronto.

The legal analysis is unhelpful but there was a phrase used by the prosecutor in opening worth a second look:

Gentlemen, in circumstantial cases very often, very small and trifling events, as they seem when they stand alone, become a vast body of evidence when connected with others

Hogan was hanged.

Father Raymond J. de Souza on Jeremiah Wright: Giving God the glory and America the blues

Father Raymond J. De Souza

I come from a religious tradition where we shout from the sanctuary and march on the picket line! Where we give God the glory and give the devil the blues! — Reverend Jeremiah Wright, Sunday night in Detroit.

The black church in America has long lived between the glory and the blues, between the ecstasy of worship and the exigencies of politics. It is a place concerned with both the sacred and the profane, both a religious and a political institution.

It is for that reason that an ambitious young Barack Obama first sought out Reverend Wright twenty years ago. Obama, the son of a white mother, raised in a white family, graduate of Harvard, was searching for a political base in Chicago's South Side. He went in search of the black community that he had not grown up in but now wished to identify with. The black church was the place to look for black community and black political power, and Reverend Wright's church was the biggest and blackest of them all. That was what Obama wanted.

In due course, Reverend Wright led Obama to Jesus Christ, and there is no reason to doubt the authenticity of that spiritual conversion. Many a soul has found Christ while looking for other things. And it is also true that churches sometimes find other things while seeking to serve Christ.

In situations where entire societies live under the political domination of another society, it is not unusual for the church to become not only a vessel of sacred tradition, but also a vessel of cultural transmission, of historical memory, of social service provision and even of political activism. In the Catholic world, such a phenomenon has characterized at various times the experience of the Irish, the Poles and the French-Canadians. The danger for the churches in such situations is that, preoccupied with keeping alive a subjugated nation, they can become tainted by chauvinism and prejudice. The glory of the God is coloured by the blues.

Reverend Wright belongs to such a current in the black American experience. His chauvinism — to say nothing of his theories about racial differences and political conspiracies — is not representative of the whole black experience, nor does it reflect the black church as a whole. To the contrary, it is part of the black church that needs to be purified. Too often the black church has rallied 'round its own rather than put aside the clowns and crackpots. Tolerance for the excesses of Jesse Jackson and Al Sharpton makes it possible for Jeremiah Wright to remain too central a figure.

Obama made a mistake in March when he sought to diffuse the impact of Reverend Wright by patronizing him, saying that he was an old man from another time, not to be taken seriously. Wright thundered back this week, presenting himself plainly as who he is, and who he has been all his adult life. It was Obama, he suggested, who was being dishonest, saying only what a politician must say to get elected. That cut at the heart of Obama's candidacy as the figure of a new politics of integrity and racial harmony. So this week Obama denounced Reverend Wright unambiguously.

Six weeks ago, Obama said that he could no more disown Reverend Wright than he "could disown the black community." That was to make another mistake, equating the shadow side of the black church with the entire black community. When Obama needed a political base he was willing to overlook the shadow side; as a national leader he was foolish to do so. The shadow side is there for all to see now. The Obama-Wright controversy has brought light to those shadows and to the need for the black church to purify itself of the temptation of the vulgar politics which has corrupted its witness.

Reverend Wright boasts that he speaks as a pastor, and not a politician. It is as a pastor that his words more severely condemn him, for he must know that he is not telling the truth, the first obligation of one who would step into the pulpit. And the truth is that, while giving glory to God, the black church has too often tolerated giving truth, justice and America itself the blues.

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

Tax Day

The avoidance of taxes is the only intellectual pursuit that carries any reward.

John Maynard Keynes

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

Administration Has Two Weeks to Make Polar Bear Decision


The polar bear may be put on the endangered list.
The polar bear may be put on the endangered list. (AP File Photo - U.S. Fish and Wildlife Service)


Washington Post Staff Writer
Wednesday, April 30, 2008; Page A02

A federal judge in California has ordered the Bush administration to decide by May 15 whether the polar bear deserves protection under the Endangered Species Act.

This Story

The decision, issued late Monday by U.S. District Judge Claudia Wilken, requires the Interior Department to reach a conclusion on whether climate change is pushing polar bears toward extinction. The agency proposed adding polar bears to its list in December 2006 because higher temperatures are shrinking the sea ice they depend on for survival, but officials have delayed a final decision on the matter for months.

After Interior missed its own Jan. 9 deadline, three environmental advocacy groups -- the Center for Biological Diversity, the Natural Resources Defense Council and Greenpeace -- sued Interior Secretary Dirk Kempthorne and the Fish and Wildlife Service in U.S. District Court for the Northern District of California.

In a recent filing in the case, Kempthorne proposed making a final decision by June 30. But the judge rejected that timetable, writing: "Defendants offer no specific facts that would justify the existing delay, much less further delay. To allow Defendants more time would violate the mandated listing deadlines under the [act] and congressional intent that time is of the essence in listing threatened species."

"Today's decision is a huge victory for the polar bear," said Kassie Siegel, director of the climate program at the Center for Biological Diversity, who was the lead author of the 2005 petition that prompted Interior to consider listing the species. "By May 15th the polar bear should receive the protections it deserves under the Endangered Species Act, which is the first step toward saving the polar bear and the entire Arctic ecosystem from global warming."

Interior Department spokesman Shane Wolfe said in a statement: "We have received the court's decision and are reviewing it. We will evaluate the legal options and will decide the appropriate course of action."

The final ruling on the polar bear's status could have far-reaching implications for the nation's climate policy. Several Republicans, including President Bush and Sen. James M. Inhofe (Okla.), the ranking GOP member of the Senate Environment and Public Works Committee, have argued that environmental groups are trying to list the polar bear as threatened or endangered in order to force a federal limit on greenhouse gas emissions.

"It's unfortunate that the debate has become more about timelines than actual science," said Inhofe spokesman Matthew Dempsey. "What has become clear . . . is that listing the polar bear as a threatened species is not about protecting the polar bear but rather advancing a particular political agenda."

Millions of Canadians scramble to file as income tax deadline looms

Some waited more than two hours at a downtown Toronto tax service company Tuesday to get their finances in order before 11:59 p.m. Wednesday - a last-minute trend that comes as no surprise to those in the business.

"From year to year, the majority of taxpayers send their tax returns during the last week of the filing season," Canada Revenue Agency spokeswoman Catherine Jolicoeur said.

"We expect approximately 25 million tax returns and have received, as of April 27, 2008, approximately 17 million."

Jolicoeur said the CRA has already dished out more than 11 million refunds each worth, on average, about $1,400.

In 2006, the government issued nearly 15.7 million refunds, each averaging about $200 less, she said.

Cleo Hamel, a senior tax analyst with H&R Block, suggested more people are likely to get refunds this year because of new tax breaks introduced by the federal government.

An increase in the personal exemption amount and a 15-per-cent cut to the minimum tax rate are saving people an average of $150 to $180, she said. Meanwhile, those with children under the age of 18 have benefited from tax credits worth $300 per child and the children's fitness credit has also proven a boon to families.

"Your average family could be looking at $600 to $800 in tax savings and that's a significant dollar amount," Hamel said, adding seniors have also benefited from new income splitting allowances.

"We've actually seen some situations where seniors are saving $500 to $1,000 just because they're able to pension income split."

Those who have yet to file are likely those who owe and are simply "trying to put off the inevitable," she said, adding they ought not procrastinate too long.

Late filers who owe taxes to the government face a five-per-cent penalty - an amount that doubles to 10 per cent for habitual late filers, she said.

On top of that, debt that isn't paid by April 30 faces interest charges of one to two per cent every month.

"Don't just think 'Oh, the five per cent or one per cent isn't a big deal,"' Hamel said. "It adds up and why give the government any more money than they need?"

In 2006, Jolicoeur said more than 3.6 million Canadians owed the government money after filing their income taxes.

Jessica Kroez, a 25-year-old designer for Teletoon, was one of them. Expecting the same again this year, Kroez said she doesn't mind having to wait more than two hours to meet with a tax specialist.

"I'm not very good with numbers and I would rather just have the piece of mind that it's done properly and I don't have to worry about it," Kroez said as she waited at a downtown Toronto H&R Block with about a dozen other last-minute filers Tuesday afternoon.

Anne Wood had also been waiting two hours as a favour to her husband who is away on business.

"I have two years here with me today because he didn't file last year," she said. "I'm just a nice person."

While the Canada Revenue Agency has already received more than 6.3 million paper returns and nearly 415,000 returns filed by telephone, electronic filing has become the most popular method.

So far, nearly 10.4 million Canadians have filed their income taxes electronically, half-a-million more than were filed electronically at the same time last year.

Of those, about 3.3 million were filed by individuals - those who opt to do their taxes on their own, Jolicoeur said.

It's a brave task according to John Williamson of the Canadian Taxpayers Federation, who argues personal income taxes have become unnecessarily complicated in recent years.

The CTF is calling on the government to reduce the number of tax brackets to two from four and scrap 80 to 90 per cent of the tax credits that currently exist, maintaining only the universal ones like basic personal allowances, spousal allowances, the RRSP deductions and charitable giving.