THE PHOENIX AND THE TURTLE

So they loved, as love in twain
Had the essence but in one;
Two distincts, division none.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Give War A Chance

"Here's a really good idea -- Myanmar/Burma has suffered a devastating environmental blow killing perhaps hundreds of thousands. The country's truly crazed leaders are making matters worse by paranoid behavior.

How can the world help?

Invade!!!

After all, how much of a fight can a few starving third world peasants make???

(If not obvious I am trying the make light of a really really dumb idea). jcm"

Is It Time to Invade Burma?

By ROMESH RATNESAR Sat May 10

The disaster in Burma presents the world with perhaps its most serious humanitarian crisis since the 2004 Asian tsunami. By most reliable estimates, close to 100,000 people are dead. Delays in delivering relief to the victims, the inaccessibility of the stricken areas and the poor state of Burma's infrastructure and health systems mean that number is sure to rise. With as many as 1 million people still at risk, it is conceivable that the death toll will, within days, approach that of the entire number of civilians killed in the genocide in Darfur.

So what is the world doing about it? Not much. The military regime that runs Burma initially signaled it would accept outside relief, but has imposed so many conditions on those who would actually deliver it that barely a trickle has made it through. Aid workers have been held at airports. U.N. food shipments have been seized. U.S. naval ships packed with food and medicine idle in the Gulf of Thailand, waiting for an all-clear that may never come.

Burma's rulers have relented slightly, agreeing Friday to let in supplies and perhaps even some foreign relief workers. The government says it will allow a US C-130 transport plane to land inside Burma Monday. But it's hard to imagine a regime this insular and paranoid accepting robust aid from the U.S. military, let alone agreeing to the presence of U.S. Marines on Burmese soil - as Thailand and Indonesia did after the tsunami. The trouble is that the Burmese haven't shown the ability or willingness to deploy the kind of assets needed to deal with a calamity of this scale - and the longer Burma resists offers of help, the more likely it is that the disaster will devolve beyond anyone's control. "We're in 2008, not 1908," says Jan Egeland, the former U.N. emergency relief coordinator. "A lot is at stake here. If we let them get away with murder we may set a very dangerous precedent."

That's why it's time to consider a more serious option: invading Burma. Some observers, including former USAID director Andrew Natsios, have called on the U.S. to unilaterally begin air drops to the Burmese people regardless of what the junta says. The Bush Administration has so far rejected the idea - "I can't imagine us going in without the permission of the Myanmar government," Defense Secretary Robert Gates said Thursday - but it's not without precedent: as Natsios pointed out to the Wall Street Journal, the U.S. has facilitated the delivery of humanitarian aid without the host government's consent in places like Bosnia and Sudan.

A coercive humanitarian intervention would be complicated and costly. During the 2004 tsunami, some 24 U.S. ships and 16,000 troops were deployed in countries across the region; the mission cost the U.S. $5 million a day. Ultimately, the U.S. pledged nearly $900 million to tsunami relief. (By contrast, it has offered just $3.25 million to Burma.) But the risks would be greater this time: the Burmese government's xenophobia and insecurity make them prone to view U.S. troops - or worse, foreign relief workers - as hostile forces. (Remember Black Hawk Down?) Even if the U.S. and its allies made clear that their actions were strictly for humanitarian purposes, it's unlikely the junta would believe them. "You have to think it through - do you want to secure an area of the country by military force? What kinds of potential security risks would that create?" says Egelend. "I can't imagine any humanitarian organization wanting to shoot their way in with food."

So what other options exist? Retired General William Nash of the Council on Foreign Relations says the U.S. should first pressure China to use its influence over the junta to get them to open up and then supply support to the Thai and Indonesian militaries to carry out relief missions. "We can pay for it - we can provide repair parts to the Indonesians so they can get their Air Force up. We can lend the them two C-130s and let them paint the Indonesian flag on them," Nash says. "We have to get the stuff to people who can deliver it and who the Burmese government will accept, even if takes an extra day or two and even if it's not as efficient as the good old U.S. military." Egeland advocates that the U.N. Security Council take punitive steps short of war, such as freezing the regime's assets and issuing warrants for the arrest of individual junta members if they were to leave the country. Similar measures succeeded in getting the government of Ivory Coast to let in foreign relief teams in 2002, Egelend says.

And if that fails? "It's important for the rulers to know the world has other options," Egeland says. "If there were, say, the threat of a cholera epidemic that could claim hundreds of thousands of lives and the government was incapable of preventing it, then maybe yes - you would intervene unilaterally." But by then, it could be too late. The cold truth is that states rarely undertake military action unless their national interests are at stake; and the world has yet to reach a consensus about when, and under what circumstances, coercive interventions in the name of averting humanitarian disasters are permissible. As the response to the 2004 tsunami proved, the world's capacity for mercy is limitless. But we still haven't figured out when to give war a chance.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Children Raised In Captivity ... In Indianapolis

"Stalin was famous for, among other things, the number children being raised in prison during his reign. Does the idea of children raised in captivity not concern society more broadly? If the women are not violent or a danger to society, why are they in prison as opposed to some other placement -- prison does little to rehabilitate and is not cheap -- it should not be a place to warehouse non violent mothers. And do we really want children raised in prison?"

Nursery programs allow imprisoned moms, newborns to bond in Indianapolis

May 10, 2008

Ken Kusmer, THE ASSOCIATED PRESS

INDIANAPOLIS - Three-week-old Kevin fussed in mother Melissa Lankey's arms until she started singing softly to him, "Jesus loves me, this I know, for the Bible tells me so."

The newborn began dozing within seconds.

"That's kind of our little song. It usually calms him right down," Lankey said.

Lankey didn't sing the tune in the baby's bedroom. She was behind bars at the Indiana Women's Prison, where a new program allows some inmates to keep their newborns in their cells for up to 18 months.

The program debuted last month, becoming the sixth in the nation in a growing trend among state prison systems.

New York has had prison nurseries for more than a century; Washington, Ohio, California and Nebraska started ones in recent years, and West Virginia is preparing to launch one, too.

The programs come at a time when the nation's female inmate population is rising.

The Bureau of Justice Statistics shows the number of women in prisons and jails jumped from more than 163,000 in 2000 to nearly 210,000 in mid-2006, fuelled largely by an increase in drug convictions that carry mandatory sentences.

Many of those inmates are mothers who experts say benefit from staying with their children, even if it's behind bars.

The Ohio Reformatory for Women in Marysville, whose nursery program Indiana modeled, has seen 14 of its 128 participants re-offend, an 11 per cent recidivism rate.

That compared with the institution's rate among all inmates of about 30 per cent, spokeswoman Elizabeth Wright said. New York also has seen a dropoff, said Linda Foglia, spokeswoman for that state's Department of Correctional Services.

Indiana hopes for similar results with its program, funded through a $122,000 grant from the U.S. Department of Health and Human Services.

The Wee Ones Nursery at the 136-year-old Women's Prison is open to up to 10 imprisoned mothers who are the legal guardians of their children, have never been convicted of violent crimes, and have less than 18 months left on their sentences.

The nursery staff includes a pediatrician and a nurse.

Inmates who serve as nannies must have non-violent offences and reading levels of eighth grade or higher; they also must complete a parenting class.

The mothers receive courses on postpartum care, child development, shaken baby syndrome and other topics.

"We hope that we'll continue to make the family the unit that it should be and strengthen those that are going back out into the community," prison Superintendent Zettie Cotton said.

Some critics contend keeping a baby in prison punishes the child for the mother's offence. When West Virginia's House of Delegates debated creating a nursery program last year, opponents warned it might harm the children involved.

Studies show the children benefit from the contact, said Mary Byrne, a Columbia University nursing professor who is conducting a study of 100 children born at the adjacent Bedford Hills and Taconic Correctional Facilities in Westchester County, N.Y.

Byrne said children separated from their inmate parents run higher risks for emotional and behavioural disorders, school failure and trouble with the law.

The babies born to mothers in prisons generally are better off staying there with them, she said.

"The outcomes are promising, if the prison nursery programs have the appropriate resources," Byrne said.

Serena Garduza said the Indiana nursery, an extension of the medium-security facility's Family Preservation Program, gives her infant son a better shot at success in life than she had.

Garduza, 31, grew up in foster care after being taken away from her mother, with whom she has lost touch.

She stayed in school only until the ninth grade.

On probation for theft and receiving stolen property, she was sent to the prison last December after testing positive for cocaine and gave birth to Ramerio, her fifth child, four weeks ago.

Garduza and Ramerio now share a cell with a lone window barred by rounds of razor wire - a stark contrast to the crib, bright white curtains and stencilled moon and stars on the powder blue cinderblock walls.

"I know I'm in prison and all that, but I kind of put my mind out of it," said Garduza, who's due to leave prison this summer. "When he's with me, I really don't feel like I'm incarcerated."

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

New York Times

EDITORIAL Racial Inequity and Drug Arrests
Published: May 10, 2008

The United States prison system keeps marking shameful milestones. In late February, the Pew Center on the States released a report showing that more than 1 in 100 American adults are presently behind bars - an astonishingly high rate of incarceration notably skewed along racial lines. One in nine black men aged 20 to 34 are serving time, as are 1 in 36 adult Hispanic men.

Now, two new reports, by The Sentencing Project and Human Rights Watch, have turned a critical spotlight on law enforcement's overwhelming focus on drug use in low-income urban areas. These reports show large disparities in the rate at which blacks and whites are arrested and imprisoned for drug offenses, despite roughly equal rates of illegal drug use. Black men are nearly 12 times as likely to be imprisoned for drug convictions as adult white men, according to one haunting statistic cited by Human Rights Watch. Those who are not imprisoned are often arrested for possession of small quantities of drugs and later released - in some cases with a permanent stain on their records that can make it difficult to get a job or start a young person on a path to future arrests.

Similar concerns are voiced by the New York Civil Liberties Union, which issued a separate study of the outsized number of misdemeanor marijuana arrests among people of color in New York City. Between 1980 and 2003, drug arrests for African-Americans in the nation's largest cities rose at three times the rate for whites, a disparity "not explained by corresponding changes in rates of drug use," The Sentencing Project finds. In sum, a dubious anti-drug strategy spawned amid the deadly crack-related urban violence of the 1980s lives on, despite changed circumstances, the existence of cost-saving alternatives to prison for low-risk offenders or the distrust of the justice system sowed in minority communities.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Elite Montreal school rocked by another sex scandal

An elite Montreal private school has been hit by another sex scandal after the school said one of its teachers has been arrested in the U.S. on child pornography charges and for the online solicitation of a 13-year-old boy.

Parents of students at Selwyn House were informed Friday afternoon in an email sent by headmaster William Mitchell.
Mitchell wrote that he was informed by police that Richard Doucet, an elementary teacher at the school since 1999, had been arrested in Virginia.

Mitchell told CTV News Friday that Doucet had been at a teachers' conference in Virginia when he came to the attention of police.

The email said that Doucet did not have a previous criminal record. Police said that the teacher indicated that he did not engage in any illicit activities with Selwyn House students, it said.

"All of us at Selwyn House are struggling with this challenging situation," Mitchell wrote. "We remain committed to providing students with a safe and secure environment."

The school has already been rocked by allegations in recent years that three of its former teachers repeatedly molested students during the 1960s, 1970s and 1980s.

In February, Selwyn House agreed to a $5-million settlement in a class-action lawsuit launched by former students who alleged they were victims of sexual abuse.

Faculty and parents expressed surprise at the arrest.

"I got to know him very well as my son's teacher and he was a wonderful teacher and very nice to my son and the boys," a mother told CTV News. "I really liked him a lot."

"He was an extraordinarily good teacher and very effective. So it comes as a huge surprise," Mitchell told CTV News.

Detective John Chapman of the Northern Virginia Internet Crimes Against Children Task Force was the officer that informed the school of the arrest. He told the school that he acted as undercover agent, posing as a minor on the Internet.

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

Police say armed robbery suspect escaped from custody while having cigarette

May 10, 2008

THE CANADIAN PRESS

MISSION, B.C. - Mission RCMP are searching for a man who escaped from custody Friday.

Constable Paul Vermeulen says an officer had taken David Glen Moody outside for a cigarette when he fled on foot. Vermeulen says Moody then stole a car which was later recovered.

Moody is 27 years old, approximately five foot six, weighs about 130 to 140 pounds and has short brown hair and blue eyes.

Moody was being held on charges of armed robbery and possession of stolen property among charges.

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

Provinces trying out physician assistants

Updated Sat. May. 10 2008
The Canadian Press

EDMONTON -- After they spend about 10 minutes with him in the emergency room, Jack Buchanan's patients often end up calling him doctor.

He wears a big name tag with his title _ physician assistant _ and always explains that he's there to help the doctor, not take over. But some people don't immediately understand the difference.

"After about five hours of waiting, they just want to be seen.''

Physician assistants are one way that governments across Canada could stretch the dwindling number of family doctors and specialists to tend to a growing population.

Provinces have tried a variety of other solutions. Nurse practitioners have been licensed in every province since 2006. Pharmacists have some prescribing powers in Alberta, and telephone health advice lines, generally staffed by nurses, are open around the clock in most parts of Canada.

Alberta's health minister recently went so far as to say that he won't be convinced a "so-called doctor shortage'' even exists until other health-care workers are a full part of the medical system.

"So much of this is about changing the mindset of what used to be. In the '60s, when you felt sick, you went to see the doc,'' Ron Liepert said last month as he outlined the province's blueprint for health care. "We've got so much more to offer today in health care.''

The concept of shifting some primary care focus off doctors and onto other health-care workers isn't new, says John Church, associate professor at the University of Alberta's Centre for Health Promotion Studies.

But a number of factors _ including a drop in the number of doctors being trained in the 1990s, new physicians who aren't willing to sacrifice a life outside work and a shortage of doctors choosing family medicine _ have made it a necessity.

"I think that the doctor shortage has forced the issue in a way it's never been forced before,'' Church says.

The idea of using physician assistants seems to be catching on, especially with doctors themselves. Often called physician extenders or multipliers, they've been helping doctors in the United States for decades. More than 70,000 work south of the border, but until now the only ones in this country have been trained by the military.

Ontario has been running pilots projects _ Jack Buchanan is working at one in Brockville. And Manitoba has used ex-military or American-trained assistants since 2002.

This fall, the University of Manitoba and Hamilton's McMaster University will accept students into Canada's first non-military physician assistant programs. Edmonton's Northern Alberta Institute of Technology hopes to follow within a few years if the Alberta government regulates the assistants.

Physician assistants can handle a wide variety of tasks in general medicine and some specialties, says Buchanan, who is also vice-president of the Canadian Association of Physician Assistants.

They take histories, fill out charts, run tests, suture and put on casts. They're trained roughly to the level of a senior resident, in many cases. While full-fledged doctors generally might have only passing contact with some patients, they must sign off on all decisions the assistant makes.

At his hospital, Buchanan plays a role in every level of patient care.

"The doctor can be seeing a chest pain, and so can I,'' he says. "That way, the sicker people actually get seen faster and it reduces overall wait times.''

In his hospital, he says, wait times have been cut by one-third since physician assistants began working.

Ontario's health minister, George Smitherman, has said it's too early to say exactly what role physician assistants will play, but they seem to help improve timely and effective access to care.

Liepert foresees the day when physician assistants will be part of revamped health care in Alberta, although the exact details have yet to be released.

"I think the other provinces are all waiting to see how Ontario is going,'' says Buchanan.

The Canadian Medical Association is firmly in favour of physician assistants. President Dr. Brian Day points out, though, that they're often recruited from among the ranks of nurses, which then exacerbates the nursing shortage.

The drastic shortfall in both family physicians and specialists can't be ignored, and no amount of spin from politicians such as Liepert can change that reality, Day says.

"When a patient is sick, they generally want to see a doctor.''

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

Zimbabwe opposition to contest runoff, leader to return soon

"Zimbabwe should be a wealthy prosperous nation. It is rich in resources and has a culture of hard work and honesty. Should the nation get the government it deserves it will amaze the world.
jcm"
May 10, 2008

THE ASSOCIATED PRESS

PRETORIA, South Africa - Zimbabwe's top opposition leader said Saturday he will contest a presidential runoff and will soon return to his homeland.

Morgan Tsvangirai, addressing reporters in South Africa, said his supporters would feel "betrayed" if he did not face Zimbabwean President Robert Mugabe in the runoff.

"I am ready, the people are ready," he said. "I intend to return as shortly as possible and intend to begin a victory tour."

Tsvangirai had said previously he won the first round outright and that official figures showing a second round was necessary were fraudulent.

Opposition officials and independent human rights activist have accused Mugabe of orchestrating violence against the opposition since the first round on March 29. The violence, and the need to try to rally support, have kept Tsvangirai and other top opposition figures out of Zimbabwe since the first round.

Observers inside and outside Zimbabwe have questioned whether a second round could be free and fair with the opposition unable to campaign freely because of attacks and threats.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Montreal Gazette

Prosecutions 'slap in face' to Canada: Ontario Bar

Raise questions about our national sovereignty

JORDANA HUBER, Canwest News

The prosecution of two aboriginal men in the United States on similar criminal charges to ones they have already served jail time for in Ontario is a "slap in the face" to Canada, the former head of the Ontario Bar Association said.

Trevor Miller, 32, and Albert Douglas, 32, of Six Nations in Ontario, face allegations they assaulted three U.S. law enforcement agents and stole their government-owned SUV during a confrontation in Caledonia, Ont., in the summer of 2006.

While the U.S. may have the authority to prosecute the pair, there are sovereignty issues at stake for Canada, said James Morton, a law professor who is past president of the OBA.

"We are talking about a violent offence that took place entirely within Canada that they have already been tried and convicted for," Morton argued. "For the Americans to now go ahead and prosecute on the same fact pattern sort of suggests the Canadian system doesn't count.

"It may be legal, but I think it is inappropriate," he added.

Miller pleaded guilty in Ontario last year to theft and assault charges in connection with the incident.

He spent more than six months in jail before being sentenced to time served, but was arrested by U.S. authorities last month while crossing the border into Minnesota.

Douglas pleaded guilty in March to robbery, assault, and dangerous driving. A charge of attempted murder was withdrawn, a spokesperson for Ontario's attorney-general said.

He was granted a conditional sentence and one-year probation after serving six months in pre-trial custody.

If convicted in the United States, the men could face a maximum penalty of 25 years in prison for each assault count, 10 years for theft and a fine of $250,000, according to the United States Department of Justice.

Miller's public defender, Timothy Hoover, said he will move that the case be dismissed because of jurisdictional issues and questions surrounding the official duties of the agents while in Canada.

"We aren't saying the U.S. courts never have jurisdiction over events in another country, just that the requirements aren't met here," Hoover explained. "There are serious legal and sovereignty concerns about why this is happening. They were prosecuted and convicted already and they shouldn't be prosecuted again for the same thing."

James Harrington, a criminal lawyer and past president of the New York State Association of Criminal Defense lawyers said there is legal precedent to try the accused though he said the prosecution must prove the officers were acting in an official capacity at the time of the incident.

Still, he said the case raise questions about "fundamental fairness."

"I think the motivation here may be that they are upset the Canadians didn't punish this guy the way they wanted him punished and they are going to now seek to impose U.S. law," Harrington mused. "If I were a Canadian I would be upset about it."

According to a criminal complaint sworn by U.S. Border Patrol Agent Philip Knapp, the U.S. law enforcement officers were on official duty in Canada and were being escorted on a "tour" by an Ontario Provincial Police detective for the "purposes of observing" the Six Nations reserve.

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

Dazzling demons: Klimt

 It was all over.

The Reich was finished, Hitler dead, his charred jaw bone all Russian pathologists could find of him in the smouldering ruins of Berlin.

Hundreds of miles to the south, in Austria, an SS unit prepared to stage its own private apocalypse.

On May 7 1945, they arrived at Immendorf Castle in southern Austria. The German soldiers already billeted there were ordered to leave. That morning, German forces in Austria had signed their surrender, to take effect the next day; for these SS men, it was the last night of the war.

Schloss Immendorf was a beautiful setting for their final night of power and freedom. The castle's massive fortifications were softened with sloping tiled roofs, so that it resembled a Loire chateau, set in spacious parkland, with ivy growing up the walls. A curving staircase led to a grand interior full of art treasures, stored here by the Reich to save them from air raids on Vienna.

Among this store were 13 paintings by Gustav Klimt. It seems that these were on view in the castle apartments: the Nazis, the castle's owner later reported, looked at the paintings with appreciation, and one was heard to say that it would be a "sin" for the Russians to get their hands on them. Klimt's sensual art turned out to be a fitting backdrop for the events of that night: according to a 1946 police report, the SS officers "held orgies all night in the castle apartments".
Who knows what this means, but it is a strange and macabre image - the SS holding their orgies as Klimt's maenads and muses looked on.

The next day, the SS unit laid explosives in the castle's four towers and walked out. One man went back and lit a fuse, and a tower burst into flames. As the fire spread, explosives in the other towers detonated. Schloss Immendorf burned for days. Nothing survived of its interior, and the gutted shell was later demolished. According to the eyewitness reports that reached Vienna months later, amid the chaos of defeat, not a single work of art survived.

Klimt's fame has survived this loss, and yet he divides people. For every person who finds his work gorgeous, seductive, sexy, there is a sophisticate who will point out that his art is surely a bit vulgar, with all that gold; a bit slavish in its ostentatious celebration of rich women; and a bit, well, soft-centred. It's a negative view that is an accident of history, of what has survived of his work and what hasn't. Behind the Klimt everyone knows, the opulent artist of desire, stands another Klimt - a painter who was years ahead of Picasso and Matisse, a great destroyer of traditions and a creator of terrifying beauty.

Klimt was born in Vienna in 1862. He was a craftsman's son and trained as a painter, becoming a high-class decorator who painted the walls and ceilings of some of the most opulent public buildings in Vienna. He rapidly became the definitive visual artist of the last years of the Habsburg empire, a star in a culture of great daring: the composer Gustav Mahler, the writers Arthur Schnitzler and Robert Musil, and the architect Adolf Loos were Klimt's contemporaries.

But the contemporary he most resembled was Sigmund Freud, the inventor of psychoanalysis. With their unabashed eroticism, Klimt's paintings share a basic belief about human nature with Freud, who shocked the world with his insistence that sexuality is at the centre of everyone's emotional life. You could even compare Freud's sessions, listening to his women patients as they lay on his couch, with Klimt's portrait practice.

Klimt was a very private man who never married, but it was said that he slept with most of the women he portrayed: certainly his bold drawings point to an intimacy that goes beyond the polished eroticism of his paintings.

More than 60 years after the end of the second world war, many questions remain about the paintings burned at Schloss Immendorf. How did so much of Klimt's work come to be lost that day? Why was it there? And has this loss deprived us of a proper understanding of Klimt's genius?

What is left is eye-catching - and expensive. Two years ago, Ronald S Lauder, a former US ambassador to Austria and owner of the Neue Galerie in New York (his own museum of German and Austrian art), bought Klimt's Portrait of Adèle Bloch-Bauer I for $135m (£68.4m), a record (since broken) for art sold at auction. This story was all glitter and gold. The fabulous opulence of Klimt's 1907 portrait, which encloses its subject in a shining carapace of yellow metal and glassy mosaics, as if the painting were a reliquary for her pale flesh, was mirrored by the mania of the art market.

In the Schloss Belvedere gallery in Vienna, where there is a tangible sense of this painting's loss. The portrait of Adèle Bloch-Bauer I did not come out of a vacuum, or somebody's private vault: it came from this public collection, and the museum shop still sells a postcard of it.

The Belvedere still has the richest collection of Klimts anywhere - including his famous The Kiss - but for anyone who was lucky enough to have seen Adèle Bloch-Bauer I here, the loss is surprisingly enormous. In 2001, when this magnificent painting was still on view, and returning to find it absent is far weirder than I would have thought. Why is this? Does it belong in Vienna after all?

Portrait of Adèle Bloch-Bauer I was sold as pure beauty, pure art - pure value. People were unaware of its history. No newspaper article in 2006 - dwelt on the reason it was removed from Austria and sold. In 1998, the Austrian parliament brought in a law paving the way for restitution of works of art seized by the Third Reich to heirs of their rightful, Jewish owners. Heirs of Ferdinand Bloch-Bauer, whose portrait of his wife by Klimt had stayed in Austria's public collections since its confiscation as Jewish property in 1938, brought a case and in 2006 won it. They sold the portrait immediately to Lauder.

Klimt's art is deeply entwined with the story of Jewish Vienna, and the fate of a community that - until Hitler forcibly unified Germany and Austria in 1938 - was central to the city's modernising culture. This community was doomed: by 1945, the Nazis had murdered 50,000 Austrians solely because they were Jewish. Klimt's art is full of traces of these lost people, and at the Belvedere, I found a crucial clue to their shared past.

Klimt's Judith and Holofernes hangs beside a window looking out over Vienna so that its darkness and light is set off against the bright sky. Painted in 1901, it is for me one of his truly great paintings. Unlike The Kiss or Portrait of Adèle Bloch-Bauer I, it cannot for one second be dismissed as merely beautiful. This menacing Judith brings us closer to those works destroyed in 1945.

At the British Library in London, I later consulted a portfolio of Klimt's paintings, published in Vienna in 1914. A lavish volume with gold lettering and big, clear reproductions, it is an invaluable record of the lost works - but I also noticed something odd, a strange slip. The painting of Judith and Holofernes is reproduced here, but it has been given the wrong title: in Vienna in 1914, it was known as "Salome". This was, in fact, quite a hard fantasy to maintain, as the painting, encased in metal, has the words "Judith und Holofernes" moulded into it.In the Book of Judith, Judith saves the Israelites by visiting the enemy Holofernes in his tent and beheading him. She has been represented in many ways in European art, but rarely as sexually as in Klimt's painting. His Judith doesn't just expose her breasts through her blue gauze and gold gown as she holds Holofernes' severed head, she swoons in ecstasy, as if the killing were not a virtuous act but a sensual pleasure. You can see why Klimt's patrons wanted to explain away its disturbing quality by misidentifying her as Salome, the evil princess who demanded the head of John the Baptist. But the renaming went deeper than this. The patrons who made Klimt's art possible, who loved and understood it, were overwhelmingly Jewish - and Judith happens to be a Jewish heroine.

Klimt was a kind of neoclassicist; as well as painting this biblical story, he had a passion for Greek art and mythology. But instead of celebrating the rationalism of the Greeks, he evoked their dark side. A profound influence on his work was Friedrich Nietzsche's 1872 book The Birth of Tragedy, which argues that Greek tragedy grew out of music, the purest of the arts because it taps into the deepest, most primitive parts of the psyche (the book is addressed to his friend Wagner, whose music famously does just that). Klimt dramatised this radical theory of art in two paintings, Schubert at the Piano and Music II, painted as a pair in the late 1890s: in the former, Schubert gives a drawing-room performance; in the latter, the more primal image of a Greek lyre-player is flanked by mythological monsters. Both paintings were burned in 1945.

Klimt got his chance to develop his revolutionary ideas about art and the irrational when he was commissioned to create ceiling paintings for the ceremonial hall of Vienna University. This, his most ambitious commission, resulted from 1900 to 1907 in three huge paintings - Philosophy, Jurisprudence and Medicine - designed to be fixed to the ceiling and seen from below, painted one by one in increasingly embattled circumstances.

Philosophy, the first to be finished, was an explicit Nietzschean manifesto. In The Birth of Tragedy, Nietzsche argues that western culture is driven by a superficial confidence in facts and a coarse drive to manipulate the world: this "optimistic" rationalism, he writes, must now give way to a tragic sensibility that accepts the uncertainties of our perceptions. In other words, while science as it was understood seemed to offer certainties, Nietzsche championed a more subjective understanding of the world. Klimt's Philosophy makes this idea movingly visible with its great, agonised column of human bodies - loving, longing, being born and dying. The universe through which they cascade is a vertiginous empty space dotted with stars.

Of course, I know this painting only from looking at a black and white photograph of it. Philosophy is gone forever - burned in 1945 along with Medicine and Jurisprudence, paintings that express the same pessimistic view of the world. But even looking at these paintings in monochrome reproduction, you can see their power. Look at them long enough, and you start to grasp how devastating their deep, unresolved spaces, their fierce erotic energy, must have been for the professors of Vienna University. They didn't like Philosophy - in fact, they hated it; they understood that Klimt was attacking everything they stood for.In 1904, Klimt decided to terminate his contract with the university and pay back his fee. The man who came to his rescue, buying Philosophy and eventually owning all three of the huge canvases, was his greatest patron: a Jewish factory owner named August Lederer. This businessman and his wife, Serena, became Klimt's most dedicated collectors, owning the university paintings, Music II and Schubert at the Piano, several landscapes, a portrait of Serena and, later, his Frieze. Their Vienna home had a room for Renaissance masterpieces, and another devoted to Klimt. But in 1938, the Nazis moved quickly to seize Jewish property in Austria, and the Lederer collection was confiscated.

Strangely enough, in 1943 the Third Reich sponsored an exhibition of Klimt's work in Vienna. Famously, the Nazis hated all modern or "degenerate" art, but the exhibition revealed there was nuance to their position, at least in Austria - they evidently decided to celebrate Klimt as a national icon. So it wasn't out of contempt but in order to preserve them that, after being shown in Vienna, most of the Klimts in the Lederer collection were transported to Schloss Immendorf - where they were eventually incinerated.

Lederer died before the war, and Serena Lederer in 1943; their son Erich survived and later reclaimed the one great work from the Lederer collection that had escaped the fire by being stored elsewhere - Klimt's Beethoven Frieze, an ambitious cycle of wall paintings the artist created for a Beethoven-themed exhibition at Vienna's temple of modern art, the Sezession. Here, Klimt had tried to turn art into music: the empty spaces between his golden figures resemble the immense stillnesses and voids in the music of Wagner or Mahler. The most spectacular scene, in which the demons threatening human happiness include a giant ape and a group of emaciated Furies, plummets you into the dark, irrational depths of myth.

A replica of the Beethoven Frieze (the original is on permanent view at the Vienna Sezession) will be shown in Tate Liverpool later this month, and people will argue over an artist who can look, according to your mood, either subversive or a bit flashy. But it is only the vicissitudes of history that have created this doubt. Seen whole, with all his works redeemed from destruction, Klimt could never be dismissed as an artist of mere dazzle or surface beauty: the lost paintings he created for Vienna's university were the first great revolutionary works of the 20th century
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Interpreting an Insurance Contract

Caneast Foods Limited v. Lombard General Insurance Company of Canada, 2008 ONCA 368 (released today) sets out the proper principles of interpreting an insurance contract.  The Court summarized these principles as follows:

 

 

The insurance policy is a contract.  The ordinary rules applicable to the interpretation of contracts apply.  The wording of the insurance contract must be given its plain and ordinary meaning.  The insurer has received consideration for the coverage of stipulated risks.  The promised coverage creates reasonable expectations on the part of the insured.  If a loss falls within the ambit of the risks covered, the insurer must indemnify the insured for its loss, subject to the application of any exclusion clause.  Coverage clauses should be construed broadly and exclusion clauses, narrowly.  Since insurance policies are essentially adhesionary, the standard practice is to construe ambiguities against the insurer.

 

James Morton

Steinberg Morton Hope & Israel

1100-5255 Yonge Street

Toronto, Ontario

M2N 6P4

 

416 225 2777

 

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

 

power of ideas. -- in today's Orillia Packet

When Liberal leader Stephane Dion visited Orillia in April, he made comments that should partially restore the confidence of anyone who is frustrated with Canada's first-past-the-post electoral system.

In speaking about the environment, Dion sounded like a Green Party candidate. He talked of carbon taxes on polluters and reforms of the tax system. He also told Orillians of the need to have both economic growth and environmental sustainability.

The Globe and Mail reported this week that Dion is poised to unveil a carbon-tax scheme that would correspond with personal income tax cuts. The idea is to make this policy the centrepiece of the Liberal election campaign when an election is finally called. It's complex and risky, but it's also the sort of bold, creative action the Green Party has been advocating for years.

And for those who sometimes feel they are wasting their vote by supporting fringe parties, that news should have the ring of music. The reality is that, even in our flawed electoral system, political parties don't necessarily need to gain power to significantly influence public policy. It was the CCF, grandfather to the NDP, which championed universal health care. On the opposite end of the spectrum, the Reform movement out of the Canadian west was enormously influential in driving the political agenda when it came to fiscal public policy in the 1990s. Now the Green Party, having never been elected, can be seen to be having the same impact when it comes to environmental policy.

The Greens have long advocated a sea change in the way taxes are levied, arguing that enormous strides can be made in environmental sustainability just by making pollution expensive using taxes, while rewarding companies and individuals who adopt environmentally friendly measures. Increasingly, the party's policies and its growing support in the polls have been grabbing the attention of the Liberals and Conservatives. Though it's still early, it sounds as if Dion has embraced those general principles wholeheartedly.

This week Canadian Press reported a new poll suggests most Canadians support the idea of a carbon tax, but an overwhelming majority like the idea of using the tax system to punish or reward environmental behavior.

Even in Alberta.

Now, with another federal election in the offing, one of Canada's two major parties appears to be ready to make the leap. Executed properly, it could become the most progressive and creative policy shift Canada has seen in a generation or more.

In an era of political and electoral cynicism, such news underlines the power and wisdom of voting for ideas.

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

GAS PRICE ALERT!!

Gasoline and diesel will be up tonight after midnight as follows.

Gasoline in the GTA is up 2.5 cents to 124.7 and diesel will be up 3.8 cents to 132.2. In the Ottawa area, gas will be up by 2.5 cents to 124.4 and diesel will be up 3.8 cents to 134.2. In the Montreal area, gas will be up by 2.3 cents to 136.5 and diesel will be up by 2.5 cents to 147.2.

A fill up before midnight will save the average motorist $1.25.

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

Michael Coren on Israel's survival: The triumph of an indigenous people over oppression

Michael Coren, Israel

This week marks the 60th birthday of Israel's modern foundation. The term "modern" is significant here, in that the Jewish state never quite disappeared, even after it was defeated by the imperial Roman military following the great Jewish revolt of 70AD and the legendary resistance of Masada.

There was still a massive Jewish presence in the country, until a second uprising in 135AD, after which the Romans forcibly exiled most of the population, obliging the Jews who remained to live in what was effectively northern Israel. Here, in Galilee, the region remained overwhelmingly Jewish.

Jewish dominance was retained until Islamic cavalry swept across the Middle East. The Christian heartlands of North Africa and Egypt became predominantly Muslim, and the Jewish presence in Galilee was reduced to a shadow of its former shape and size. But the Jews stayed, as is testified by the ruins of numerous synagogues in the area. After Islam came the Crusades of the 12th century. More slaughter, more exile.

From this point, Jewish Israel was minimal, although it never died. The conduit to the original Jewish homeland was preserved by memory, aspiration and by communities in Jerusalem, Hebron and the Upper Galilee.

We should not think of this as "mere history" any more than we should refer to "mere politics." A dispersed and persecuted nation returning to its place of origin is not expansion or imperialism but the precise opposite. Indeed, this is arguably the most successful example of the triumph of an indigenous, native people over oppression and ejection. That the Jews were forced out of their homes for centuries makes the return not less but more laudable.

This, of course, is not how the bulk of the Islamic world views the situation, and they are now joined in a perverse alliance by the political and religious left, who mingle vicarious anti-Americanism with a residual anti-Semitism. Why condemn genocide in Sudan and mass murder and torture in Zimbabwe or Syria when you can bash the Jews and their friends in Washington?

It reaches a point, however, when most of this is so facile and bland as to be irrelevant. No degree or depth of argument will convince the more vehement followers of Mohammad and Marx that Israel is a flawed but overwhelmingly generous state with an absolute right to exist. Debate is invariably pointless, and cogent explanation makes Israelophobes angry rather than conciliatory.

So let us cause apoplexy.

Most Palestinians are fairly recent immigrants from other parts of the Arabic world, encouraged to relocate by the economic opportunities produced by European Christian settlers in the 19th century. They are products of a nomadic culture, and latecomers to the ancient Jewish homeland. Those who have lived in the country for longer tend to be in the north, where they still live and enjoy full rights as Israeli Arabs — rights, by the way, that few if any minorities enjoy in the Islamic world, such as the more than a million Jews who have been forcibly expelled from Arab nations since the Second World War.

Many of the stories of Palestinians still having the keys to their homes, now lived in by Jewish Israelis, are mythological. The war of 1948 did indeed cause upheaval, but much of it concerned Jews forced to leave Jerusalem. Entire Arab towns and almost 1.5 million Arab citizens still exist in Israel; hardly an example of ethnic cleansing.

The security wall along parts of the West Bank has saved countless Israeli lives. The Israeli right opposed it as a limit on greater Israel and the international left oppose it because it is so successful. Settlements are communities. Most of them are on previously empty and neglected land, and to object to Jews living in a specific place is surely a race-based housing policy and thus repugnant to progressive sensibilities. But then, "progressive" has lost its meaning just as much as has "anti-imperialism" and social justice.

Israel celebrates its birthday with the grandest gift it could give itself. It ignores fatuous criticism and continues to evolve. Authentic peace may never be achieved: Absence of war is sometimes the best that can be hoped for. It is better than the absence of a home.

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

Police release identity of teen suspected of shooting on subway

Thursday, May 08, 2008
By: 680News staff

Police are looking for 17-year-old Ibrahim Sadat, wanted for attempted murder, aggravated assault and two counts of assault.

Police are also looking for Emmanuel Boakye, wanted for attempted murder, aggravated assault and two counts of assault

Toronto - Toronto police have released (with judicial authorization) the identity of a teen wanted in connection with a shooting on a subway car back in March.

Police are looking for 17-year-old Ibrahim Sadat. His last known address was in Brampton.

Police are also looking for 20-year-old Emmanuel Boakye of no fixed address. Both these people are wanted for attempted murder, aggravated assault and two counts of assault as a result of this investigation.

An 18-year-old was arrested Wednesday, but was 17 at the time of the incident so he is not able to be identified.

A young woman on the subway was hit by a bullet in her leg just as the subway car doors were opening.

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

Summary Judgment -- Still Difficult to Obtain

There have been some hints that the test to obtain summary judgment under R 20 is softening. These hints, mainly Superior Court decisions where, candidly, the chances for ultimate success by the losing party are vanishing small have not given appeal review.



Some suggest R 20 should be softened to allow for easier summary judgment. No doubt the Rules Committee is considering the issue.



That said, today's decision in Bank of Nova Scotia v. BCP Bank Canada , 2008 ONCA 367 makes it clear that the Court of Appeal has not moved and the test for obtaining summary judgment remains high.



The Court writes:



[4] We are satisfied that there is a genuine issue for trial in respect of the alleged agreement between BCP and Mr. D'Abruzzo. We are also satisfied that there is a genuine issue for trial as to whether, if there was an agreement, it was supported by mutual consideration. We therefore allow the appeal. An order will go setting aside the summary judgment including the costs award.

Tim Horton's employee fired for giving timbit away -- What Not To Do

Oh dear.

Talk about bad press. A single mom fired from a Tim's for giving a baby of a regular customer a 15 cent Timbit.

The only thing that could make it worse would be if the single mom was disabled.

Now, one assumes there is a back story and some other version of reality here (nobody gets fired over 15 cents) but gosh, doesn't anyone tell Tim's managers about "cause for termination"?

Or maybe a very basic course in public relations?

Anyway, a great public relations story (I can already imagine the calls to "Boycott Tim's") and it'll be interesting to see how Tim's reacts to this media kurfuffle. Maybe a reinstatement of the mom (they may need staff in Afghanistan)? And then fire the manager? (But what if there was cause???)

When Can A New Issue Be Raised On Appeal?

An appeal is, generally, an opportunity for an unsuccessful party to have a panel of judges review the trial (or motion) judge's decision as to matters of law.

Issues that were not raised before the court of first instance are not normally considered on appeal because the record seldom deals squarely, or at all, with such new issues.

This week's Court of Appeal decision in Ontario Energy Savings L.P. v. 767269 Ontario Ltd., 2008 ONCA 350 restates the general prohibition on new issues at appeal and sets out the test as to when such new matters may be considered by the appellate court:

"[3]               In Ross v. Ross (1999), 181 N.S.R. (2d) 22, the Nova Scotia Court of Appeal set out the test concerning receiving arguments for the first time on appeal.  The court said that such an argument, "should only be entertained if the court of appeal is persuaded that all of the facts necessary to address the point are before the court as fully as if the issue had been raised at trial".  The rationale for the principle is that it is unfair to permit a new argument on appeal in relation to which evidence might have been led at trial had it been known the issue would be raised."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Bifurcation of Liability and Damages Available in Jury Trials

In Kovach v. Kovach, 2008 CanLII 20331 (ON S.C.), released online today, the Court held that, in rare cases, even a jury trial could be bifurcated into liability and damages.

This is a significant point as many counsel were of the view that a jury trial cannot be so bifurcated.

The Court held:

[21] The Master, in this case, dismissed the defendants' bifurcation motion based on the authorities, including Duffy, holding that the power to split a trial may not be executed, when a jury notice is filed. She did not consider the merits of the defendants' motion. In my view, the learned Master erred in her interpretation of judicial authority and in not considering the merits of the motion. A case management Master has jurisdiction to order bifurcation as part of the case management process which is designed to facilitate early and fair settlements and bring proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding: Rule 77.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. See, Unwin v. Brothers 2005 CanLII 23337 (ON S.C.), (2005), 76 O.R. (3d) 453 (S.C.J.).
...

[29] In recent years, the courts have placed greater emphasis on their duty to control the court process to achieve the most just and expeditious determination of dispute, rather than the right of a party to have all issues tried at one time. See, for example: General Refractories, super, at para. 12; Royal Bank of Canada v. Kilmer van Nostrand Co., [1994] O.J. No. 1476 (Gen. Div.) at para. 19; McGraw v. Stoddart, [1995] O.J. No. 1065 (Gen. Div.) at paras 31-32; McKinlay Transport Ltd. v. Motor Transport Industrial Relations Bureau of Ontario (Inc.), [1995] O.J. No. 123 (Gen. Div.); TDL Group Ltd. v. 1060284 Ontario Ltd., [2001] O.J. No. 1035 (S.C.J.) at para. 4; and Morniga v. State Farm Mutual Automobile Insurance Co., [2002] O.J. No. 2094 (S.C.J.) at paras. 18-21.

[30] At the same time, severance orders remain rare and are to be ordered only in exceptional circumstances, because as a general rule, a multiplicity of proceedings is to be avoided. There are, however, those special cases where bifurcation is appropriate in order to bring the proceeding expeditiously to a just determination. See Rule 77.02.

[31] In this case, the liability issue to be tried is not overly complex and turns on a finding as to whether Mackenzie Linn exercised reasonable care in the operation of the Linn motor vehicle. In my view, this issue is completely distinct from the damages issues which are considerably more complex. Despite the plaintiffs' contentions of overlap, in general, a fairly clear demarcation exists between the liability issues and the damages issues in this case. That does not mean, of course, that damages cannot be raised in the liability trial to put matters in context.

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

Activist Judges? False and Dangerous

Accusing the judges of becoming politicians is dangerous, not only because it is wrong, but because it elides the important role law plays as a source of predictability and restraint in the conduct of state affairs, and therefore as a source of strength and legitimacy to the wider constitution. As Bracton noted, the King may have no man above him, but is truly a King only where he reigns through law.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Tory cabinet minister Oda hid thousands of dollars in limo rides

May 7, 2008

Bruce Cheadle, THE CANADIAN PRESS

OTTAWA - Government documents show that Conservative cabinet minister Bev Oda racked up thousands of dollars in hidden expenses for limousine rides.

An access-to-information request by the NDP, covering the Conservative government's first 15 months in office, reveals invoices for Oda that were not "proactively" disclosed online under Treasury Board rules.

Oda, who was minister of Canadian heritage at the time, spent almost $17,000 on limos during the period - more than half of which never found its way on to her publicly disclosed expenses.

The limo receipts also point to a series of undisclosed flights and hotel stays of unknown cost to taxpayers, New Democrat MP Charlie Angus charged in the Commons.

"Average Canadians play by the rules," Angus said. "Why does she think she can break those rules with impunity?"

The minority Conservatives pride themselves on their ministerial frugality. But they've been stung by previous revelations that showed various ministers' expense disclosures were artificially lowered by hiding true travel costs.

Many Tory ministers also continue to file zero hospitality claims, despite being seen regularly at working lunches and dinners.

On Wednesday, Tory House leader Peter Van Loan responded that Oda's expenses were "done in accordance with Treasury Board rules," but conceded that one past problem has been corrected.

Last year, Oda repaid taxpayers more than $2,200 after the Liberals discovered that she'd spent almost $5,500 on limousines at the 2006 Juno awards in Halifax without disclosing the expense.

The balance of that Halifax limousine bill still doesn't show up on Oda's expense disclosure, yet Van Loan is now citing those artificially suppressed totals as a sign of Tory virtue.

"The minister's expenses are considerably lower than those of her Liberal predecessor," Van Loan told the Commons.

He also recited comparative numbers from several previous Liberal ministers to show that the Tories are disclosing less spending.

Van Loan's defence utterly misses the point, Angus said outside the Commons.

"I think we have to get a better standard of accountability and transparency from the government than simply to say, 'Well, geez, we haven't been spending all that much money because we've been keeping the numbers hidden.' ... So much for accountability, so much for transparency."

Liberal MP Mark Holland called Van Loan's reasoning "ridiculous."

"The fact of the matter is they're hiding expenses, they got caught and this is something they seem to be doing regularly."

The system of quarterly "proactive disclosure" of ministerial travel and hospitality expenses began under the previous Liberal government after a series of spending scandals.

In an attempt to clear the air, former Liberal ministers made a point of cataloguing every possible expense - from departmental Christmas parties to working lunches and chartered aircraft flights.

Some of those Liberal disclosures, in turn, allowed the Conservative opposition to attack ministers for using taxpayer-funded services for partisan events.

That's precisely what the NDP found that Oda was doing in Toronto last March 17, when she billed $1,291.88 for a limo that took her from her home to a Conservative party candidate training session. She also made a government announcement later in the day.

In that particular case, the expense was proactively disclosed by Oda - but not the party function.

"There's no justification for a $1,300 limousine ride that goes to a Conservative meeting," said Angus. "Take that to the average Canadian and ask if this is a perfectly acceptable expense."

It's not the first time that access-to-information requests have revealed spending details that Tory ministers had kept under wraps.

Both Transport Minister Laurence Cannon and Labour Minister Jean-Pierre Blackburn were found to have regularly flown on expensive charter and government aircraft last year without reporting it.

Both ministers claimed the costs were detailed elsewhere, and thus had been technically disclosed.

But it required access requests, followed by the painstaking work of cross-referencing flight manifests and dates against reported expenses, to reveal their hidden travels.

Angus believes it's a cabinet-wide tactic.

"My sense from the government's answer today is the government's not ashamed of this behaviour, they think this is perfectly OK," said the New Democrat.

"So are other ministers doing the same thing, which is racking up phenomenal bills for travel and then just keeping it hidden?"

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

Gas Price Alert!!

Gas prices for May 8th have been posted to www.mcteague.ca. In the GTA, gasoline is down by 1.3 cents to 121.7 and diesel is up by 1.7 cents to 128.4. In the Ottawa area gasoline is down by 1.3 cents to 121.9 and diesel is up by 1.7 cents to 130.4. In the Montreal area gasoline will be up by .2 cents to 134.2 and diesel will be up 1.9 cents to 144.7.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Six Nations man granted bail but remains in Buffalo jail

Posted By Susan Gamble

A Six Nations man remains in jail in Buffalo after being granted bail last week.

Trevor Miller, 32, has been in custody for a month after his sudden arrest at a Canada-U.S. border, where he was charged in connection with a Caledonia incident that he's already been convicted of in Ontario.

Miller's lawyer arranged for bail on a $10,000 bond, which has not yet been posted, and made an oral motion for the charges to be dropped.

Instead, the case will move forward and a judge will hear written motions.

"This is an extremely interesting case," said Tim Hoover, assistant federal public defender in New York.

"Given the incident happened in Canada, the filing of charges here raises issues both of the sovereignty of Canada and of the Six Nations."

Hoover said those issues are beyond the scope of what can be dealt with in court but hopes Canada and the U.S. will discuss the case at some point.

"The number of occurrences (outside U.S. borders) that can be prosecuted by the U.S. are very limited."

Miller pleaded guilty last May in an incident where law officers in Caledonia were stopped by protesters and forced out of their vehicle. He spent six months in jail and was later sentenced to time served.

But Miller was arrested by American police after he tried to cross the Canada-U.S. border in Minnesota a month ago.

Experts say its rare for someone to be charged by two countries based on the same incidents, and the former head of the Canadian Bar Association said it was inappropriate of the U.S. to pursue charges. Meanwhile, Albert Douglas, 32, also of Six Nations, is named in the same warrant and is fearful of being arrested.

He has not tried to cross the border since Miller's arrest, despite having numerous family members in the U.S.

His father, Arnold Douglas, went to Miller's first court appearance in Buffalo last week

"But Albert didn't go. We're not going to risk that. If Trevor hadn't been picked up on these charges we wouldn't have known (there were charges against Albert)," Douglas said.

His son and Miller were forced to commit perjury in order to gain their release from jail, according to Douglas.

"There's no way they felt they were guilty," said Douglas, "but they had to plead guilty in order to get out."

Once Miller posts his bail, he will not be required to remain in the country until the next hearing date.

"Trevor has made a new life for himself since resolving the charges in Canada," said his lawyer, "and he's focused on being a productive person."

The case will resume during a conference for all parties in June.
A
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Ont.-funded Christian group to appeal part of ruling by human rights tribunal

THE CANADIAN PRESS

TORONTO - A provincially funded Christian group is appealing part of a tribunal ruling that found it violated the rights of a worker who had to quit after revealing she was gay.

Ontario's Human Rights Tribunal ordered Kitchener-based Christian Horizons to compensate Connie Heintz and to end a code-of-conduct agreement for its 2,500 employees.

The contract, which all staff must sign, forbids workers from cheating on their spouses, having pre-marital sex or homosexual relationships, using pornography, and "endorsing" alcohol or tobacco.

The group says it will no longer require employees to sign the agreement, but it will be appealing the remainder of the tribunal's order.

The evangelical organization is funded almost entirely by the province and operates more than 180 residential homes in Ontario for people with developmental disabilities.

The tribunal ordered Christian Horizons to compensate the former worker, launch basic human rights training for all employees, and adopt anti-discrimination and anti-harassment policies.

It was the second time the tribunal has had to deal with a complaint against the organization. In 1992, it was ordered to compensate two women who were fired for being in common-law relationships.

Opposition parties have called on the province to consider pulling funding from the group if it continues to impose its religious beliefs on its employees.

Premier Dalton McGuinty said Tuesday he couldn't discuss the case because the matter is currently under appeal.

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

Early release to halfway house, father's home denied for sisters who killed mom

Jered Stuffco, THE CANADIAN PRESS

BRAMPTON, Ont. - Two sisters serving decade-long murder sentences for drowning their mother in a bathtub after plying her with alcohol and powerful painkillers were denied an early release from prison Tuesday.

While the judge said he was "impressed" by the sisters' rehabilitation progress, a conditional release only two-years into their jail terms is simply "too much."

"I urge you to keep up the good work," said Ontario Superior Court Justice Bruce Duncan, adding the sisters are free to make further applications after they've served more time.

"The bottom line is, it's too soon."

The elder sister, now 21, had sought release to a youth-oriented halfway house. Her 20-year-old sibling wanted to live with their father at the same home where the murder took place on Jan. 18, 2003.

The sisters were 15 and 16 years old when they drowned their abusive, alcoholic mother in a tub after feeding her vodka and Tylenol-3 pills containing codeine.

Wearing matching green jackets, the sisters smiled as they were brought into the court and sat quietly as Duncan read out his decision.

Duncan said he was worried the pair weren't getting enough support and rehabilitation since being moved from a youth facility to the Grand Valley Institution near Kitchener, Ont.

"You're supposed to be treated as youth," he said. "I'm very concerned that those principles are not being met."

Robert Jagielski, lawyer for the younger sister, said the transfer last year occurred "without rhyme or reason" and that his client wants to join a support group and get proper counselling so she can integrate back into society.

Last month, court heard the elder sister wants to study engineering at the University of Waterloo and that her younger sister had been approved to take a correspondence class from the University of Athabasca - paid for by the federal government.

The murder was originally ruled an accidental death, despite the fact the girls had bragged to classmates about the killing. The sisters also met with friends at a Jack Astors restaurant after the death to establish an alibi and celebrate the successful killing.

Much of the prosecution's case focused on a series of Internet chats where the sisters laid out their plans to kill their 43-year-old mom.

Still, during hearings last month, the court was told the younger sister has difficulty recalling certain aspects of the murder and that she often deals with her emotions by sitting alone in her prison cell.

Their father told the court then that his younger daughter belonged at the family home, and that corrections staff made a big mistake when she was moved from the youth-centred Syl Apps facility to a federal penitentiary for women.

Though the sisters were given the maximum sentence for young offenders, Canadian law prohibits them from spending any more than six-years in prison.

The remainder of their sentences will be served in the community.

"If the camel once gets his nose in the tent, his body will soon follow."

Motions under Rule 21.01(a) proceed on the pleadings only and without evidence “except with leave of a judge or on consent of the parties” (R21.01(2)).

Based on this one might expect that an examination of a witness on a pending motion under Rule 39.03(1) would be unavailable absent prior leave of a judge or consent of the parties.

That view would be wrong according to a Divisional Court decision granted last week but just now available -- Manulife Securities International Ltd. v. Société Générale (Canada), 2008 CanLII 19790.

In a nutshell the Divisional Court, in declining to grant leave to appeal from a motion judge’s decision to allow the examination, said it was possible evidence that could be used would result from the examination and so it ought to proceed.

The Court held the motions judge was correct in saying the examination should go ahead:

[8] The Motions Court judge declined to set aside the summons to witness because he found "a reasonable possibility that some of the evidence may have some relevance". That was because of the particular facts surrounding the circumstances giving rise to the respondent's claims. The Motions Court judge stated "I am not prepared to say at this stage in the circumstances of the nature of the claims made by the investors through Manulife that there can be no relevance on the rule 21 motion". In short, the Motions Court judge found that the evidence to be elicited by the examination of the witness pursuant to the summons was potentially relevant to the rule 21.01(1) (a) motion.

Some might say that the decision in Manulife Securities International Ltd. v. Société Générale (Canada) raises the risk that witnesses may be examined more commonly on Rule 21 motions thus raising cost and delay. Moreover, the existence of a transcript will encourage the Court to allow evidence – if something relevant is available the Court will naturally want to see it to have the fullest picture possible. And if a transcript is there perhaps an affidavit or two might also be in order???

The Court disagreed this was an issue saying:

[10] The applicants submit that rule 21.01(1) (a) motions are intended to be decided in a preliminary fashion, when determining a question of law which is raised by a pleading may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs. The applicants argue that the Motions Court judge's decision is contrary to these principles because it opens the floodgates by permitting early examinations for discovery in respect of such questions, thereby threatening both the purpose of the rule and its benefits.

[11] I do not accept the latter submission. It is not the Motion Court judge's decision, it is rule 21.01(2)(a) which creates the limited evidentiary opportunity which the respondent seeks to utilize. There is no basis for the suggestion that rule 21.01(2)(a) has opened the floodgates to abuse of this limited evidentiary opportunity. Further, if it becomes more common for rule 21.01(1) (a) motions to be met by a summons to witness, litigants and the court have ample means to ensure that this procedure has been implemented for proper reasons. For example, on a motion to set aside the summons, the court will consider whether the evidence likely to be obtained is potentially relevant. If not, the summons will be set aside with costs consequences. If the summons stands and the witness is examined, the examination may be confined to proper grounds by implementing the procedure mentioned in rule 34.14(1), including the significant costs sanctions available pursuant to rule 34.14(2). Once the evidence has been elicited, unless the parties consent to its admission at the hearing of the rule 21.01(1)(a) motion, it is inadmissible pursuant to rule 21.01(2)(a) except with leave of a judge.

Livent Sideshow???

Reporters packed into a Toronto courtroom yesterday for the first day of the criminal fraud trial of Garth Darbinsky and Myron Gottlieb. At the same time, civil lawyers representing the two former senior executives of Livent Inc. were in a much emptier courtroom just down the street trying to quash a court ruling that could force the pair to pay more than US$36 million to investors who were allegedly defrauded by Livent.

The case, being heard by Ontario Court of Appeal Justice Susan Lang, Justice David Watt and Justice Gloria Epstein, stems from a 2005 judgment by a New York judge who ordered Drabinsky and Gottlieb to pay US$23 million plus interest (now totaling US$36.5 million) to holders of Livent's investment notes who lost money when the company collapsed in 1998. Drabinsky and Gottlieb unsuccessfully appealed the ruling in the U.S. and are now appealing the findings of Ontario Justice Herman Siegel who ruled last year that the judgment could be enforced in Canada.

Drabinsky and Gottlieb's lawyers argue the judgment should be thrown out since the criminal charges filed against the men made it impossible for them to adequately defend themselves in the U.S. The criminal charges filed in the wake of the collapse of Livent put the men in an impossible catch-22 situation. If the pair traveled to New York to defend themselves, they would have been arrested, and any evidence they presented would violate their right to remain silent in the face of the looming criminal charges.

However, lawyers for the note holders argue that this so-called catch-22 situation was not something that happened to Drabinsky and Gottlieb, but rather was a situation of their own making. Had the pair chosen to defend themselves against the U.S. fraud charges, they could have applied to put the civil lawsuits on hold until the end of the criminal trial. However, that option was not available to them once they opted to remain in Canada, the note holders' lawyers argue. Garth Drabinsky and Myron Gottlieb are self-professed 'fugitives from American justice, notes their brief. It would be unfair to the plaintiff class not to be able to proceed with their claim because Drabinsky and Gottlieb made the decision to avoid American justice.

The judges hearing the appeal have reserved their decision, but this could very well be the last stop on what has already been a long, twisted and often bizarre case. Neither Drabinsky nor Gottlieb testified during the original U.S. trial, citing their right to remain silent in the face of the pending criminal charges in Canada and the U.S. Instead, the pair relied upon depositions, documentary evidence and an affidavit from Robert Topol, Livent's former chief operating officer, in an effort to convince the judge they had performed adequate due diligence on Livent's allegedly fraudulent financial statements. At the time, Topol was also facing fraud charges alongside Drabinsky and Gottlieb. An Ontario judge dismissed those charges last year citing excessive court delays in bringing the case to trial.

At the original trial, U.S. District Judge Victor Marrero was unimpressed with the lack of evidence Drabinsky and Gottlieb's lawyers presented and ruled in favour of the plaintiffs in February 2004. A U.S. appeal court judge upheld that judgment in December 2005. The case took a bizarre turn exactly one year later when Drabinsky and Gottlieb brought a motion to vary the judgment, citing evidence gathered during the preliminary hearing into the Canadian criminal fraud charges. That evidence, the men claimed, showed they were the victims, not the perpetrators, of the fraud. The alleged misrepresentations in the financial statements were the product of decisions and misconduct by others (not Drabinsky and Gottlieb), and that decisions and misconduct were concealed from Drabinsky and Gottlieb, the men's lawyers contend in their appeal.

Judge Marrero dismissed the motion to vary his original judgment as did a second appeal court judge who said that while the new evidence may or may not have supported Drabinsky and Gottlieb's claims, it did little to show that the men had actually performed the due diligence that was required of them.

Whether or not Drabinsky and Gottlieb lawyers have better luck convincing a Canadian criminal court judge they had nothing to do with the alleged fraud that brought down their company has yet to be seen. The criminal trial resumes on Monday. There is no word on how long the Ontario Court of Appeal will take in deciding the appeal.

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

Statement by the Honourable Stéphane Dion, Leader of the Opposition, on the Death of Corporal Michael Starker in Afghanistan

Today I join all Canadians in grieving the loss of another Canadian soldier in Afghanistan, Corporal Michael Starker. Corporal Starker was killed while on patrol near Kandahar. Another Canadian soldier was injured in the incident.

This tragic loss serves to remind us of the sacrifice our brave men and women in uniform make every day while working to protect Afghan civilians and trying to bring stability to the region. Canadians are tremendously proud of what they do and recognize the debt of gratitude we owe to them.

On behalf of the Liberal Party of Canada and our parliamentary caucus, I offer my deepest sympathies to the friends and family of Corporal Starker. I also wish the other soldier injured in the incident a successful and speedy recovery.

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

Foster care failing native children

The Canadian Press

May 6, 2008

Ottawa -- Children on native reserves across Canada are eight times more likely to wind up in under-funded, poorly tracked foster care that appears to be failing them, says the auditor-general.

In a report tabled Tuesday in Parliament, Sheila Fraser urgently calls on Ottawa and the provinces to work with First Nations on badly needed improvements.

Little is even known about how well services are working or how often they fail to meet provincial standards.

"Children are among the most vulnerable people in society," Ms. Fraser said. "Some of the most vulnerable children in Canada are First Nations children."

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

An Entrapment

My love, I have tried with all my being
to grasp a form comparable to thine own,
but nothing seems worthy;

I know now why Shakespeare could not
compare his love to a summer's day.
It would be a crime to denounce the beauty
of such a creature as thee,
to simply cast away the precision
God had placed in forging you.

Each facet of your being
whether it physical or spiritual
is an ensnarement
from which there is no release.
But I do not wish release.
I wish to stay entrapped forever.
With you for all eternity.
Our hearts, always as one.

- Anthony Kolos -


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

Don't Fight A Battle Unless You Can't Lose

Yesterday's decision in R. v. Wolf, 2008 ONCA 352 is a useful re statement of the law regarding improper purpose for criminal proceedings. The Court of Appeal makes it clear that it is an abuse of process to commence and prosecute criminal process solely for the purpose of collecting a civil debt. Merely because a civil debt is collected as part of the criminal resolution does not render the resolution efforts or the prosecution abusive ("A coincident effort to realize recovery of the debt owed to the complainants through the mechanism of restitution does not render the criminal proceedings an abuse of process"). The standard to show such abuse, however, is very high and will seldom be met.

Perhaps a more important lesson from the case is the sentence.

The fraud itself was not large (this author has obtained conditional sentences for frauds twenty times larger than this fraud) and yet the sentence is quite significant (eighteen months imprisonment, followed by eighteen months probation, and restitution in the amount of $22,500 was ordered).

Although not totally clear it would seem that payment of restitution of a little more than half that finally ordered would have led to no jail at all.

The sentence was upheld.

The lesson??? "Don't fight battles you won't win".

The endorsement follows

ENDORSEMENT

[1]               The appellant was convicted of one count of fraud over $5,000.  A second count of fraud over $5,000 was stayed based on R. v. Kienapple, [1975] 1 S.C.R. 729.  The appellant was sentenced to eighteen months imprisonment, followed by eighteen months probation, and restitution in the amount of $22,500 was ordered.  The appellant appeals his conviction and sentence.

A.        The Conviction Appeal

[2]               In support of his conviction appeal, the appellant argues that the purpose of the criminal proceedings against him was the collection of a civil debt owed to the victims of his fraudulent conduct, with the result that the proceedings were an abuse of process. 

[3]               In particular, the appellant submits that, in the course of discussions concerning restitution, it was made clear to him that the real goal of the prosecution was recovery or collection of the debt owed to the complainants and that payment would bring an end to the prosecution.  He says that the involved Crown counsel surrendered their obligations and breached their duties as Crown Attorneys by acting, in effect, as counsel for the complainants in attempting to obtain the highest monetary recovery possible from the appellant on account of the value of the services fraudulently obtained by him. 

[4]               At its core, therefore, the appellant's contention is that Crown counsel improperly used the power of their office and the spectre of criminal prosecution to enforce the complainants' demands for restitution.  We reject this argument. 

[5]               There is no dispute that it is an abuse of process to use criminal proceedings for the sole purpose of collecting a civil debt.  In this context, Crown counsel on this appeal responsibly acknowledged that the language of certain of the e-mail communications between the Crown counsel involved in the appellant's case was ill-advised.  We agree.

[6]               Crown counsel also argues, however, that this is not one of those exceptional cases in which the jurisdiction of this court to prevent an abuse of process should be exercised by allowing the appeal and staying the charges against the appellant.  Again, we agree.

[7]               In our view, on this record, the appellant has failed to meet the high threshold required for a stay of criminal proceedings based on alleged abuse of process.  We are far from satisfied that the sole purpose for the conduct of the criminal proceedings against the appellant was to effect collection of the civil debt owed by him to the complainants, thereby invoking the criminal justice process to realize a civil remedy.

[8]               The fresh evidence tendered on appeal by both parties indicates that Crown counsel assigned to the appellant's case concluded that the charges were appropriate and that a reasonable prospect of conviction existed. 

[9]               In addition, and importantly, the Crown counsel involved in the challenged resolution discussions testified that while he sought the complainants' views regarding restitution, he did so in the course of assessing the public interest in determining whether to end or continue the prosecution and in the knowledge that the complainants' views would not determine the course of the proceedings. He stated that it was his opinion, having regard to the public interest, that resolving the case on the basis of restitution in the proposed amount of $14,000 was not inappropriate, even though that quantum was less than what he viewed as the full value of the appellant's fraud and the preferred restitutionary amount of $17,000.

[10]          Finally, there is no evidentiary support on this record for the appellant's very serious claim that Crown counsel threatened the appellant – implicitly or otherwise – with continued prosecution and jail if the appellant failed to increase the amount of restitution that he was prepared to pay.

[11]          In all these circumstances, we conclude that the record does not demonstrate any improper purpose behind the criminal proceedings or in the conduct of Crown counsel involved in those proceedings.  To the contrary, there was clear evidence in support of the allegations of the commission of a criminal offence by the appellant, the sufficiency of which he acknowledges.  A coincident effort to realize recovery of the debt owed to the complainants through the mechanism of restitution does not render the criminal proceedings an abuse of process.

[12]          The appeal against conviction is therefore dismissed.

B.        The Sentence Appeal

[13]          With respect to his sentence appeal, the appellant argues that while he has a record for similar offences, it is dated.  He submits that the sentencing judge erred by failing to give proper consideration to relevant mitigating circumstances, including evidence of his good character, his involvement in the community and the dependency and ill-health of his wife.  He further submits that the sentence imposed is harsh and excessive.

[14]          In his reasons for sentence, delivered shortly after final submissions by counsel, the sentencing judge referred to the submissions made as to sentence and applied the appropriate sentencing principles.  He specifically recognized the importance of addressing specific and general deterrence in the circumstances of this case.  He then reviewed the aggravating and mitigating factors that emerged from the circumstances of this offence and this offender including, expressly, several of the mitigating factors identified by the appellant on appeal. 

[15]          We see no basis on which to interfere with this sentence.  It is within the range for similar offences and reveals no error in principle.

[16]          Accordingly, we grant leave to appeal sentence and dismiss the sentence appeal.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Judge Dies After Drafting But Before Releasing A Decision

What happens if a judge dies before releasing a reserve decision? What if the reasons for judgment are complete but not given final approval by the judge? Can they be released anyway?

The British Columbia Court of Appeal says no. (Ontario caselaw seems to be consistent although the point is not disposed of with certainty – see CJA s. 123 and Johnson v. Stewart (1994), 28 C.P.C. (3d) 20)

In a careful decision in Blattgerste v. Heringa, 2008 BCCA 186 (concurred in my two of three judges -- all agreed on the result) the Court finds "unsigned reasons cannot be regarded as final and complete. They are of no force and effect, and any formal order entered to give effect to them cannot stand. As the reasons in this case should not have been released, I express no view as to their correctness. "

Diocese, parishes to share churches

UNNATI GANDHI



From Tuesday's Globe and Mail



May 6, 2008 at 4:49 AM EDT



The Anglican Diocese of Niagara and three breakaway parishes must share custody of three Southwestern Ontario churches until the courts ultimately decide who holds the keys to the properties, an Ontario Superior Court judge ruled yesterday.



I accept that although there are fundamental religious disputes between these parties ... there is clearly a dispute over property rights, Madam Justice Jane Milanetti wrote in her 21-page decision.



She ruled that the three parishes and the diocese share possession of St. George's Anglican Church in Lowville, St. Hilda's Anglican Church in Oakville, and the Church of Good Shepherd in St. Catharines. She further ordered that the diocese, which is named in the titles of two of the three properties, have full access to and use of the three properties between 7 a.m. and 10 a.m. every Sunday, as well as other feast days such as Christmas.



The order is meant to be in place until the courts decide who owns the properties. Some lawyers have suggested that could take up to a decade.



Archdeacon Michael Patterson, a spokesman for the Niagara diocese of the Anglican Church of Canada, said he was very pleased and hoped the resolution would be acceptable to all.



But Reverend Charlie Masters, who voted with his parishioners at St. George's to break away from the church, said parishioners were saddened and deeply disappointed by the judge's decision.



The Anglican Network said it would be considering its options on how to proceed.



The three congregations are among a number of parishes that have voted to break ranks with the Anglican Church of Canada in a dispute over issues including the blessing of same-sex unions, which they oppose.

Napoleon Bonaparte

Never interrupt your enemy when he is making a mistake.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4