History of Justices of the Peace

Last week's decision in Association of Justices of the Peace of Ontario v. Ontario (Attorney General), 2008 CanLII 26258 (ON S.C.) allows Justices of the Peace to sit until 75 years old. The result is unsurprising particularly in light of the important judicial office they hold.

Justices of the Peace have jurisdiction throughout the province. They hear virtually all provincial offences trials under a myriad of statutes. A provincial offences trial court presided over by a Justice of the Peace is a court of competent jurisdiction under the Charter and a Justice of the Peace has jurisdiction to grant the full range of Charter remedies.

The jurisdiction and work of Justices of the Peace includes:

(a) conducting judicial interim release (bail) hearings under the Criminal Code;

(b) determining whether to issue search warrants and warrants to enter a dwelling place under the Criminal Code, and other federal and provincial legislation;

(c) receiving criminal informations (from police and private individuals) and considering whether process will issue (i.e., the laying of criminal charges and issuing a summons or warrant for the arrest of the accused), including conducting formal pre-enqutes pursuant to s. 507.1 of the Criminal Code;

(d) hearing and considering applications for publication bans;

(e) issuing warrants for the arrest of an offender for the purpose of complying with Christopher's Law (Sex Offender Registry), 2000;

(f) issuing warrants to apprehend a child under the Child and Family Services Act;

(g) making orders under the Mental Health Act for examination of a person by a physician;

(h) presiding over criminal matters involving adjournments and remands; and dealing with ex parte matters under the Provincial Offences Act, including pleas of guilty with an explanation, failures to respond to offence notices and extensions of time to pay fines;

(i) presiding over trials prosecuted under the Provincial Offences Act, with respect to offences under dozens of provincial statutes such as the Occupational Health and Safety Act, the Environmental Protection Act and the Highway Traffic Act. This may include adjudicating pre-trial motions, determining the admissibility of evidence, hearing and determining constitutional issues and granting remedies pursuant to section 24 of the Charter, determining guilt or innocence and imposing fines or incarceration;

(j) presiding over trials prosecuted under federal legislation pursuant to the Contraventions Act, such as offences under the Fisheries Act, the Canada Shipping Act, the Immigration and Refugee Protection Act, the Motor Vehicle Transport Act, the Indian Act and the Migratory Birds Convention Act;

(k) putting accused to their elections of mode of trial under the Criminal Code; and

(l) hearing and determining trials of municipal by-law infractions.

Clearly the role of the Justice of the Peace, which is only partly described above, is challenging and of considerable judicial importance.

The decision described the history of the office as follows:

[16] The office of Justice of the Peace in England is almost 700 years old and its history in Ontario dates to before Confederation; but the past forty years have seen striking changes in the functions, authority and significance of the office in this province. To put these changes in context, I will review the evolution of the position, focusing on the more recent developments in Ontario.

[17] In 1327, Edward III ordained that good men and lawful should be appointed for maintaining and keeping of the peace in each county. In 1344 these keepers of the peace were given statutory authority to act jointly with others wise and learned in the law to hear and determine felonies and trespasses against the peace and to inflict punishment. The keepers of the peace thus became justices of the peace, although the latter term was not officially used until 1360 when a statute was passed entitled What sort of persons shall be Justices of Peace; and what authority they shall have.

[18] The office of Justice of the Peace was imported into Canada with the introduction of English criminal law into the Province of Quebec by Royal Proclamation in 1763 and was extended into what is now the Province of Ontario by the Quebec Act of 1774.

[19] The role was further formalized when the province of Upper Canada was created in 1791 and confirmed in 1800 when the Legislature adopted the English criminal law of 1792 as the criminal law of the province. The justices of the peace acquired the same extensive powers and authority enjoyed by their English counterparts. However, subsequent to Confederation and over time, the powers of justices of the peace were taken over by magistrates and judges.

[20] The origins of the present statute pre-date Confederation: An Act Respecting Qualifications of Justices of the Peace, C.S.C. c. 100, which was revised, amended and re-enacted numerous times and later consolidated by 1952, c. 47. The 1952 statute, although periodically amended and revised, formed the basis of the justice of the peace system that existed in Ontario up to the mid-1980s.

[21] The 1952 statute, like all its successors, provided that every judge of the Supreme Court of Canada and every Superior Court judge in Ontario is ex officio a justice of the peace. It provided for the appointment by the Lieutenant Governor in Council of a person, other than a barrister or solicitor, as justice of the peace following examination with regard to his or her qualifications by a judge of the county or district court. A justice of the peace was authorized to take informations or issue search warrants or summonses or warrants returnable before a magistrate and could hear and determine prosecutions under municipal by-laws. The statute also contemplated that a justice of the peace might hear charges where authorized to do so under the Criminal Code or the Summary Convictions Act.

[22] In 1973, the Act was amended by the Justices of the Peace Amendment Act, S.O. 1973, c. 149, to provide for a Justices of the Peace Review Council to review the conduct of justices of the peace, to receive and investigate complaints concerning misbehaviour or neglect of duty and to make appropriate recommendations to the Attorney General. A Chief Judge of the provincial court was empowered to suspend a justice of the peace from the performance of his or her duties during an investigation and pending further direction of the Attorney General.

[23] The Justices of the Peace Act, R.S.O. 1980, c. 227 looked much like the 1952 re-enactment. Justices of the peace were now appointed by the Lieutenant Governor in Council after examination by a provincial court judge. They exercised the powers conferred upon them by provincial, federal or municipal law under the direction of the Chief Judge of the criminal or family division of the provincial court and they were under the general supervision of the Chief Judges of that court. There was no retirement age specified in the statute or in its predecessors the commission of the justice of the peace was for life, subject to revocation by Order-in-Council.
...
[25] In 1984, the Ontario Legislature enacted the Justices of the Peace Amendment Act, 1984, S.O. 1984, c. 8, to give effect to some of the recommendations of the Mewett Report. ... Part-time justices of the peace continued to serve at pleasure. The amendment also authorized regulations to be made to provide for benefits for full-time justices of the peace, including leaves of absence, vacations and sick pay. It also established a process for the removal of a justice of the peace due to incapacity by reason of infirmity, conduct incompatible with the office, or failure to perform the duties of the office, after an investigation of a complaint by the Justices of the Peace Review Council.

[26] The legislation underwent further revision in 1989 by the Justices of the Peace Act, 1989, S.O. 1989, c. 46. ...

[28] The Justices of the Peace Act, 1989 provided that a justice of the peace was not to engage in other remunerative work without the approval of the Review Council. It contemplated that a justice of the peace could be either full-time or part-time and could be either a presiding justice of the peace or a non-presiding justice, with the latter having less expansive responsibilities and jurisdiction. Those already authorized to preside at the trial of provincial offences were deemed to be presiding justices of the peace. The powers and composition of the Review Council were expanded and it was authorized to consider proposed appointments and designations of justices of the peace and to make reports concerning them to the Attorney General. The powers and procedures of the Review Council in investigating complaints were expanded. There was also provision for the appointment of a provincial judge as Co-ordinator of Justices of the Peace with responsibility for the supervision and direction of justices of the peace.

[29] In 2000, the Ontario government undertook a further process of review and reform of the justices of the peace system.
...
[30] The Access to Justice Act, 2006, S.O. 2006, c. 21 was enacted in October of that year as part of a comprehensive reform of aspects of the justice system in Ontario, including the justice of the peace system. The Act preserved the concept of per diem justices of the peace, to provide flexibility in the hearing of criminal and provincial offences, but put an end to the concept of presiding and non-presiding justices; henceforth, all justices of the peace were to be presiding justices. In an apparent effort to improve the quality of the bench, there were enhanced minimum qualifications for justices of the peace, which, with some exceptions, required that an applicant have a university degree, comparable college diploma or equivalent. The statute established a Justice of the Peace Appointments Advisory Committee to ensure the independent review of applications for appointment. The composition and responsibilities of the Review Council were expanded. The Act upgraded the complaints process and also made specific provision for the establishment of standards of conduct for justices of the peace, which would include the goals of

(a) recognizing the independence of justices of the peace;

(b) maintaining the high quality of the justice system and ensuring the efficient administration of justice;

(c) enhancing equality and a sense of inclusiveness in the justice system;

(d) ensuring that conduct of justices of the peace is consistent with the respect accorded to them; and

(e) emphasizing the need to ensure the on-going development of justices of the peace and the growth of their social awareness through continuing education. The process for removal from office was confirmed: it could only take place after a complaint to the Review Council, a hearing, and a recommendation to the Attorney General that the justice of the peace be removed.
...
[32] It can be seen from this review that the office of justice of the peace has undergone significant evolution in Ontario in the past forty years. In 1984, in a case which I will examine shortly, Reference Re. Justices of the Peace Act reflex, (1984), 48 O.R. (2d) 609 (C.A.), the Court of Appeal endorsed a statement of the motions judge, at (1984), 46 O.R. (2d) 484 at 490, that the role of the justice of the peace has been substantially enhanced in the last decade or more. Since that time, with the changes made as a result of the Mewett Report in 1989 and by the Access to Justice Act, 2006, the qualifications of the bench have been enhanced, the tenure of the justices has been made more secure and the processes and procedures surrounding the office have been made more professional, more formal and, in a word, more judicial. This evolution reflects the important role played by justices of the peace in the administration of justice in the province and the significance attached to that role by the Legislature. It shows a desire to attract highly qualified applicants to the position and to provide a structure, compatible with their judicial independence, to support the performance of their responsibilities.

Woman granted bail in Angelica-Leslie case

"I would have thought the tertiary ground would have applied to require detention. Still, the Justice saw the case and obviously is better positioned to make the decision. jcm"

Saturday, June 07, 2008
By: 680News staff

Toronto - A woman, accused of abandonning baby Angelica-Leslie back in January, was granted bail Saturday.

Her attorney calls it "a miracle." Her husband, however, must remain in custody.

The couple is facing a slew of charges after an eight-month-old baby girl was found in a cold stairwell of a mall parking lot on Finch Avenue and Leslie Street.

According to the Toronto Star, there are a number of conditions on her $10,000 bail release, including where she could live and that she must surrender her passport.

Both of the suspects will be in court on June 20.

The Post editorial board: The NDP's reversal on Durban II is a disgrace

Those who thought Jack Laytons NDP was going mainstream -- opposing a carbon tax, recognizing the importance of free trade, gaining ground in Quebec -- should think again. This week, the National Post reported that the NDP is now challenging Canadas boycott of next years UN World Conference against Racism. The move sabotages the NDPs effort to convince voters that it is a serious political party -- as opposed to a pastiche of hard-left interest groups and union interests. Whats worse, it casts the NDP as an apologist for the rogue states and militant Islamists that disgraced the UNs name at the last such anti-racism confab, and are sure to do so again in 2009.

No one can say that Canada didnt give the UNs first anti-racism conference a fair shot seven years ago. In the lead-up to the 2001 "World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance" in Durban, South Africa, we took at face value the stated goals voiced by UN organizers. But when our delegates arrived, they found a carnival-like atmosphere in which militant anti-Israeli -- and even anti-Semitic -- propaganda was in free circulation. Paul Heinbecker, then Canadas ambassador to the United Nations, condemned efforts by attendees to "de-legitimize the state. of Israel and dishonour the history and suffering of the Jewish people."

With Durban II in the offing, the same rogue players that turned Durban I into a fiasco are again pulling the strings. Libya chairs the committee responsible for making the preparations for the conference -- ably aided by vice-chairs Iran, Pakistan and Cuba. Naturally, the committees meetings were held on high Jewish holidays -- Yom Kippur and Passover. Faced with such developments, the Liberals joined with the Conservatives in embracing a boycott of this toxic event. So did the NDP.

But thats changed. Following on pro forma UN assurances that anti-Israel hate will be kept in check, Wayne Marston, the NDPs critic for human rights for international affairs, recently sent a letter to the Harper government. "In the light of these significant new developments," he declared, "we believe the government of Canada could now play a helpful role [at the conference]."

Why did Mr. Layton authorize this stomach-turning volte-face? There are two possibilities, we suppose. Either he had a sincere change of heart, in which case the decision betrays a shocking level of naivete. Or, it was simply a cynical bid to ingratiate the NDP with militant Canadian ethnic constituencies that share Irans and Libyas hatred of Israel and its Jewish inhabitants.

Either way, it is just more proof that Mr. Laytons party should never be trusted with any real power.

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

Are Translations Prepared For Litigation Covered By Privilege -- Surprising No

The surprising decision in Arie v. Schreiber, 2008 CanLII 26677 (ON S.C.)
holds that translations of producible foreign language documents prepared by counsel for the litigation are not covered by litigation privilege.

The decision might seem contrary to the principle that work product is not producible. The unspoken underlying thesis for the decision seems to be that the untranslated documents are producible and so the translations are also producible.

Some might suggest such thesis misunderstands the concept of translation -- that said, the case is relevant for counsel working with foreign language materials.

The case provides:

Are the translations protected by privilege?

[6] Rule 30.02 states: Every document relating to any matter is issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document. Schedule A of the plaintiffs' Affidavit of Documents included many Hebrew documents. Clearly, the plaintiffs realized the relevance of the documents in their Hebrew form, realized their duty to produce all information within their knowledge and belief, and produced it. The plaintiffs are, however, now in breach of the Rules for their failure to enumerate the Hebrew translations into Schedule B of their Affidavit of Documents. Does the fact that a student translated a relevant document turn that document into a document that is privileged?

[7] Rule 1.04 states that These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. The circumstances before me are indicative of a situation that requires the invocation of Rule 1.04. Clearly, it makes no sense that a solicitor can simply arrange for someone in their own office to translate a document so that that document can take on the status of a privileged document. Imagine what would happen in an international commercial transaction case where thousands of documents are generated from countries all over the world in different languages and each party then claimed privilege over the translation. It would cause a complete breakdown in the proceeding.

[8] Once the plaintiffs have already arranged for the translation and the document has already been produced in its original form (Hebrew) and the document has not been edited by the solicitor, then the translated document shall be produced in order to secure the just and most expeditious and least expensive determination of this proceeding.

[9] Further I find that the only evidence before the court regarding the translated documents being privileged is the general statement by counsel at the examination for discovery to the effect that the documents were translated for the purpose of providing legal advice. The documents have already been produced in Hebrew. Simply because the have been translated, does not , in my view, alter the nature or status of the documents. It appears that the plaintiffs want the defendants to incur the costs of their own translation and this is definitely contrary to Rule 1.04.

Conrad Black on Charles de Gaulle, the man who saved France from anarchy

In recent days, there has been an outpouring of sentimental celebration in Paris and other European intellectual hubs over the 40th anniversary of France's 1968 general strike and student uprising. This is a nostalgic re-enactment of the leftist ritual of self-indulgent historical myth-making.

Forty years ago, Charles de Gaulle was observing the 10th anniversary of his government, and of his (Fifth) Republic. He had proposed a referendum in the reorganization of local government and university administration. Though complicated, as only French referendum questions can be, it was a movement toward participatory democracy and was ahead of parallel movements in most other advanced democracies.

De Gaulle departed on a state visit to Romania, to destabilize the Soviet empire. (Destabilization of something, as in Canada the year before, was by now the chief purpose of his elaborate state visits.) His able prime minister, Georges Pompidou, departed on his own state visit to Afghanistan.

A ripple of student agitation and discontent started. There were boycotts of lectures in some of the main Paris university campuses, and some occupations of public buildings, including, most famously, the Odeon theatre. This was in emulation of the widespread contemporary American practice of university protest against the Vietnam War and its encroaching draft calls. Their French analogues had no such pressing grievance. De Gaulle, who was never reluctant to blame problems on the Anglo-Saxons, dismissed the antics of the students as another noxious importation from America.

Sporadic public- and private-sector labour walkouts began while de Gaulle was still in Romania. (When the students marched en masse to "meet the workers," however, they were rebuffed: As is usually the case, the workers regarded the students as degenerate slackers and poseurs.) De Gaulle was then by far the most accomplished and admired active Western statesman. In the whole world, only Mao Tse-tung (as his name was then spelled) was a leader of comparable stature. They were the last of the gigantic national leaders of the mid-20th century, having outlasted the democratic Churchill and Roosevelt and the totalitarian Stalin and Hitler.

De Gaulle was all that had salvaged the integrity of France in its darkest hour of 1940. As the last government of the Third Republic capitulated to Nazi Germany, de Gaulle (only a two-star general and associate war minister) "assumed France," as he put it, and came to England to continue the war. He was, Mr. Churchill wrote, "carrying with him, in his little airplane, the honour of France" (so little of it remained). Yet by 1968, he was too knowledgeable and cynical to expect much gratitude from his countrymen, and had famously said that he loved France but didn't especially care for the French.

During his presidency, he cleverly aligned France's interests with those of the principal allies, while representing France with an obstreperous rigour that made no concession to the military defeat of the country and the contemptible collaboration with Nazi Germany of its ostensible government and much of its population.

On the day of the liberation of Paris, August 26, 1944, de Gaulle launched the myth that France, except for a few traitors, had fought bravely through the war on the front lines and had largely liberated itself. This was naturally embraced by conventional French opinion as a face-saving legend, even as General Eisenhower's armies cleared France and swept into Germany.

De Gaulle had warned France that the post-war Third Republic would lead to absurdly unstable government and that its colonial policy, particularly in Indochina, would fail. He predicted, even when he had almost no public support, that he would shortly be called upon to resurrect France as a politically serious country, and as the last stop before the Communists. This is exactly what happened in 1958.

He established the Fifth Republic, which effectively combined the two contesting traditions of French public life: a monarchical chief of state with extensive powers and a renewable seven-year term, in what was styled a republic. He extracted France from the Algerian War, developed nuclear weapons, ended centuries of animosity with Germany and quickly made France one of the most geopolitically important countries in the world by skilfully playing an aggregation of confidence tricks with the superpowers.

France was a foul-weather friend of the United States and its allies, but was otherwise destructive of the Western Alliance, particularly the English-speaking countries; and enticed the Russians as fellow European resisters to U.S. hegemony. (He never accepted the durability of communism in Russia or China.) In addition to being the greatest French leader since Napoleon, by his soaringly elegant prose, as a writer and orator, he was also an important cultural figure.

De Gaulle was aware of the propensity of the French to erect barricades from time to time and hurl paving stones at the police, as if from boredom or even guilt at living so well in such a rich, civilized and cultured country. As disorder spread in the spring of 1968, he was also aware that eventually French bourgeois avarice would reassert itself.

Ten million people were soon on strike. The Communist red flag or anarchist black flag flew over almost every factory. The police director of Paris (who had held the same position intermittently for 30 years, including during the German occupation) told de Gaulle the police were no longer reliable.

The president made his move. He visited the main French army commander on the Rhine, legendary paratroop general Jacques Massu, and assured himself of the loyalty of the most battle-hardened and notoriously heavy-handed divisions of the French army. Then, finally, he spoke to the nation, for less than five minutes, on May 30.

France's public broadcasting network was on strike, so there was only a still photograph of the president on the screen while he spoke. He began: "As the sole legitimate repository of republican power, I have in the last 24 hours considered every means, I repeat every means, for the conservation of that power." He would fulfill his mandate, had already dissolved the National Assembly and would not dismiss the prime minister "who has earned the homage of all." Elections would take place on the constitutional timetable "unless there is an attempt to gag the French people and prevent the voters from voting, by the same means that the workers have been prevented from working, the teachers from teaching and the students from studying: by intimidation, intoxication and tyranny."

De Gaulle effectively declared martial law and implicitly threatened the direct intervention of the army. He imputed the disorders to "totalitarian communism," with the complicity of "discredited politicians who would not ultimately have more influence than the little they deserve … France is threatened by dictatorship. The nation will not abdicate. Freedom will triumph. Vive la France!"

That morning, 500,000 people had marched down the Champs Elysées demanding that de Gaulle resign. In the late afternoon, 750,000 marched back up the same avenue, many doubtless veterans of the earlier promenade, demanding that he remain. All the workers, students, teachers and professors went quietly back to their occupations, without violence or extensive vandalism. Two months later, the Gaullists won the greatest electoral victory in 175 years of sporadic Republican French history.

De Gaulle's personal campaign consisted of one televised interview, with a very well-rehearsed questioner, in which he said that he was the true revolutionary. He asked where these others had been when he founded and led the resistance against the Nazis; when he had saved the country from civil war and chaos; and (unfortunately) when he had "obtained the beginning of the liberation of the French of Canada." (This spurious cause, in which the French had not the slightest interest, and inexplicably for such a gifted geo-strategist, was one of the chief infatuations of the general's last years.)

The year 1968 was a tempestuous time of upheavals, invasion (Czechoslovakia), and assassinations (Martin Luther King, Robert Kennedy). The collapse of constitutional government in France would have been a disaster for the West. The salvation of France as a functioning democracy and the phoenix-like survival of the West's then-greatest statesman is what should be celebrated now; not the mindless posturings of the superannuated left's misplaced youth.

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

Adequate Reasons -- Supreme Court of Canada

The issue of adequate reasons for judgment has been considered repeatedly by the Courts. It can raise issues in civil, criminal, family and administrative law.

Yesterday's Supreme Court of Canada decision in R. v. Walker 2008 SCC 34 attempts to clarify the law. The decision, though arising in criminal law, is of broad application.

In summary, the parties are entitled to know why the judge decided as the judge decided. Reasons have to be sufficient to allow for appellant review -- moreover society generally has a right to proper reasons.

If justice is to be seen to be done the public has to be able to know why the judge decided one way or another.

That said, an appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself.

Reasons are sufficient if they are responsive to the case's live issues and the parties' key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue.

Courts have to consider the nature of the case at trial -- often decisions are given orally immediately at the end of a hearing. In such cases the failure of the trial court to express the decision with elegance is not a basis for review so long as the live issues for trial are dealt with and the basis for the ruling is clear.

The Court held:

[19] Sheppard recognized a duty to give adequate reasons on a number of broad policy grounds. At the trial level, the reasons justify and explain the result. Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render (para. 15). The losing party is entitled to know why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be (para. 24). Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts (para. 15). See also R. v. Burns, 1994 CanLII 127 (S.C.C.), [1994] 1 S.C.R. 656; R. v. R. (D.), 1996 CanLII 207 (S.C.C.), [1996] 2 S.C.R. 291, and R. v. Gagnon, 2006 SCC 17 (CanLII), [2006] 1 S.C.R. 621, 2006 SCC 17, at paras. 13, 14, 19 and 62. It is apparent that these considerations apply as much to acquittals as to convictions. Prosecutions call for a great expenditure of public resources, both human and material, and the Crown and the police, no less than the accused and the public generally, have a legitimate interest in knowing the reasons for the unsuccessful outcome.

[20] Equally, however, Sheppard holds that [t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself (para. 26). Reasons are sufficient if they are responsive to the case's live issues and the parties' key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue. The trial judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge's decision (para. 55(8)). Moreover, [w]here it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene (para. 46). The duty to give reasons should be given a functional and purposeful interpretation and the failure to live up to the duty does not provide a free-standing right of appeal or in itself confe[r] entitlement to appellate intervention (para. 53).
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Cadman Redux -- A Litigation Saga

"The odd thing is that it appears the injunction was brought with a return date in September. Injunctions are granted rarely and the failure to act promptly on an alleged right can be fatal to the relief sought -- damages may follow but not an injunction. This is especially so where the claim seeks to restain otherwise free speech -- here political free speech. One might ask how serious the claim for injunctive relief is -- perhaps a tactic is being employed? jcm"


Who is accused of what?
The Globe and Mail
Fri 06 Jun 2008
Page: A22
Section: Editorial

It is difficult to imagine that the Conservatives would choose on a whim to revive the Cadman affair after it had finally receded from the spotlight. The party's claim that a tape had been tampered with, involving the infamous audio clip in which Stephen Harper appears to acknowledge some form of offer to the dying Independent MP Chuck Cadman in return for a vote by him that would help bring down the Liberal government of Paul Martin, must therefore be taken seriously. But it would be much easier to do so, if the Tories had not raised their concerns in such a bizarre manner.

The Conservatives, who will go to court in September seeking an injunction to bar the Liberals from using the tape, claim that it was doctored. But they have not said outright who they think doctored it. Tom Zytaruk, the author of a book on Mr. Cadman who conducted the interview with Mr. Harper, has denied any tampering.

Nor, in a press conference on Wednesday, would the Conservative MP James Moore say how - if at all - the meaning of Mr. Harper's comments had been distorted. In a subsequent e-mail, Mr. Harper's spokesman said that an edit to the tape "creates a question that was never asked" to place one of the Prime Minister's responses out of context. But in the affidavits presented by Mr. Moore, neither of two audio experts contracted by the Tories confirmed that.

In an insinuating press release, the Conservatives called yesterday on the Liberals to explain their "total involvement with author Tom Zytaruk and publisher Harbour Publishing," with Mr. Moore proclaiming that "Stéphane Dion must assure Canadians that the Liberal Party and his office acted appropriately. "

But it is the Tories who must first provide further explanation. The onus is on them to explain what exactly it is that they are alleging, why they believe they are correct to allege it, and how it proves that no inappropriate offer was made to Mr. Cadman.

This is a highly troubling matter. Either there has been a shameful attempt to besmirch the Prime Minister, or else to besmirch Mr. Zytaruk and the opposition Liberals. Either way, the questions raised by the Tories should not be permitted to hang in the air for more than three months until the court hearing. If the Conservatives felt strongly enough to go public with their allegations, they should now support them with evidence of where the malfeasance was committed.

Supreme Court of Canada Excludes Evidence In Child Molesting Case

Today's Supreme Court of Canada decision in R v Wittwer 2008 SCC 33 deals with the curious situation where an otherwise properly obtained and admissible statement by an accused is prompted by confronting the accused with an earlier statement obtained in violation of the accused's right to counsel. In such a case does the earlier statement taint the later?



Yes.



Writing for the Court, Justice Fish said that the police "knowingly and deliberately" used information that had been illegally obtained in order to obtain an incriminating admission.



"This alone is sufficient to taint the subsequent statement and to cry out for its exclusion ...," Justice Fish said. "To hold otherwise is to invite the perception that the police are legally entitled to reap the benefit of their own infringements of a suspect's constitutional rights. And this, in my view, would bring the administration of justice into disrepute."



The key question was whether the two statements were sufficiently independent of one another that the accused's final admission could be admissible against him.



"The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct," Justice Fish explained. Here, as the second statement was a result of the use of the first statement, the second statement was tainted.

CP - Conrad Black's lawyers face tough questioning at appeal court hearing

"I listened to the appeal. Based on the judges' reactions I would give the appellants almost no chance for success. The judges were simply not receptive. jcm"

CHICAGO Lawyers for Conrad Black faced tough questioning Thursday from a three-judge appellate court panel reviewing his criminal convictions.

Black and three other former executives of Hollinger International were convicted last summer of defrauding the newspaper company of millions of dollars through so-called "non-compete" payments.

Judge Richard Posner described the arrangement as a "sham."

Judge Posner also described Black's removal of 13 boxes from his Toronto offices contrary to a Canadian court order as "bizarre," the Chicago Sun-Time reports.

Black was convicted of obstruction of justice for removing the boxes He and the others were also each convicted on three counts of fraud but found not guilty on a majority of the charges against them.

Black is currently serving a 6 1/2 sentence in a Florida jail. He didn't attend Thursday's hearing in Chicago.

James Morton

Sent from my BlackBerry device on the Rogers Wireless Network

Listen to the Appeal Argument in Black

http://www.ca7.uscourts.gov/tmp/DX0WK1HP.mp3

Car plows into Mexican bike race, one dead

Drunk Driver Falls Asleep And Kills

Module body

MONTERREY, Mexico - A car plowed into a bike race along a highway near the U.S.-Mexico border, killing one and injuring 10 people.

The 28-year-old driver was apparently drunk and fell asleep when he crashed into the race, police investigator Jose Alfredo Rodriguez said Monday.

A photograph taken by a city official showed bicyclists and equipment being hurled high into the air by the collision.

Rodriguez said Juan Campos was charged with killing 37-year-old Alejandro Alvarez of Monterrey.

Authorities said the wreck happened 15 minutes into the 34-kilometre race Sunday along a highway between Playa Bagdad and Matamoros, across from Brownsville, Texas.

Campos said he is an American citizen living in Brownsville. The U.S. Consulate could not immediately confirm that.

"We are looking into the incident in terms of whether American citizens were involved," consulate spokesman Todd Huizinga said.

Discharging a Civil Jury -- Trial Judge Has Broad Discretion

The Court of Appeal decision in Faraghi v. Bayview Summit Development Ltd., 2008 ONCA 439 (released yesterday) deals with the review of a trial judge's decision to keep or dismiss a jury following prejudicial comments of counsel.



At trial the Court decided that the improper comments could be dealt with by an instruction. The Court of Appeal ruled that such decision was peculiarly within the trial judge's discretion and no review was appropriate:



"[5] In our view, the trial judge made no error in his decision to retain the jury. In Hamstra v. British Columbia Rugby Union [1997] 1 S.C.R. 1092, the Supreme Court stated: "The decision whether to discharge the jury should be a matter within the discretion of the trial judge…The jury should only be discharged if the trial judge considers that the prejudice cannot be cured…It has long been established that, absent an error of law, an appellate court should not interfere with the exercise by a trial judge of his or her discretion in the conduct of a trial. This applies with equal force to a decision to retain or discharge the jury. It cannot be overstated that the trial judge is in the best position to determine how to exercise this discretion.""

Britain toughens knife laws in bid to curb rise in violent crime by teenagers

"This new law will cover many ordinary pocket knives. jcm"

THE ASSOCIATED PRESS

LONDON - Britain is toughening laws on carrying knives in an attempt to halt a rise in violent slayings by teenagers.

At least 16 teenagers have been killed in London alone this year, most from stabbings.

Prime Minister Gordon Brown says it's unacceptable for British teenagers to carry knives.

He has said he'll scrap the system of issuing cautions in some cases.

Now all offenders over age 16 will be prosecuted for carrying a blade more than 7.6 centimetres long.

They face up to four years in prison if convicted.

James Morton

Sent from my BlackBerry device on the Rogers Wireless Network

John Turley-Ewart: Islamic Polygamy continues to get a free pass from Ontario's Liberal government

Polygamy is illegal in Canada and for good reason.



It can lead to a fundamentally unfair and unjust situation for women and children in polygamous marriages.



Islam allows polygamy only in very limited circumstances. Indeed, the Prophet Muhammad discouraged the practice and noted that a husband cannot be truly just to more than one wife (Noble Verse 4:129). Islamic polygamy is so rare in Canada as to be an irrelevant distraction in interfaith discussions.



That said, the suggestion that polygamy is tolerated by the Provincial government because there is not an immediate prosecution of Imam Hindy, is just plain wrong.



The Attorney General does not direct charges to be laid. Our Canadian system does not involve crusading District Attorneys. The police investigate crime and the Crown Attorney prosecutes it. The two roles are equal but quite separate. Any direction by the Attorney General about who to investigate for what crime would be wholly inappropriate in Canada.



Prosecutions in Canada follow, usually, from complaints to police -- absent a complaint there is seldom an investigation. It appears no one complained to the police about polygamy in east Toronto until recently but one may rest assured that Imam Hindy is a person of interest to the police. The police read newspapers carefully.



The law against polygamy is not a dead letter. It is prosecuted, albeit rarely, and I have seen successful prosecutions in the Toronto area within the last decade. If, in fact, polygamous marriages are being solemnized there will be prosecutions. Claims that radical Islam is colonizing Ontario one marriage at a time are more suited for (the defunct) "Allô Police!" than the National Post.

GAS PRICE ALERT!!

Gasoline and diesel prices are down sharply tonight at midnight.

In the GTA gas will be down 3 cents to 125.5 and diesel will be down 1.7 cents to 132.

In the Ottawa area gas is down 2.4 cents to 125.2 and diesel will be down 1.1 to 133.9.

In the Montreal area gas is down 3.7 cents to 137.5 and diesel is down 1.9 to 147.1.

It will be worth the wait to fill up after midnight or in the morning.

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

Place of Hearing

The ongoing injunction proceedings in Brantford (COURT FILE NO.: CV-08-334 The Corporation of the City of Brantford v. Ruby Montour, et al unreported) related to aboriginal land rights and municipal development are at a very preliminary stage.

That said, in the ruling granting an adjournment on terms of the motion for an injunction, the Court made an interesting comment with respect to the place of hearing.

The Court declined to move the place of hearing to convenience counsel because the matters were of considerable local significance.

The Court noted:

Although not necessary to do so based on the decision I have made, I wish to comment on the request, as part of the request of to appoint a Rule 37.15 judge, that motions in this proceeding be heard in the City of Toronto. The basis for that request is that all counsel who have currently been retained practice in the City of Toronto. In my view, the issues to be decided in this proceeding are sufficiently important to the citizens of the City of Brantford and members of the Haudenosaunee community and the Six Nations community that motions and other steps in this action should be held in or near the City of Brantford.

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

An Agreement To Lease Can Be Enforced In Equity And Possession Ordered

The new and very complex decision in Midas Realty Corporation of Canada Inc. v. Galvic Investments Limited, 2008 CanLII 25063 (ON S.C.) decided a narrow but important issue of land leasing law – can an agreement to lease be enforced in equity to require possession of land? The short answer is yes.

Some of the analysis follows:

[21] The third ground on which Galvic relies is set out more fully in paragraph 41 of its counsel's factum as follows:

41. Midas Realty's right under the OLA is purely contractual. Its right is known as an interesse termini. An interest in the term. It is settled law that the holder of an interesse termini has no claim against the property, and cannot bring an application for possession or specific performance. Upon breach by the landlord, the holder of an interesse termini has only a claim for damages against the landlord, which is quite limited and narrow.

[22] I believe that, as a statement of the governing law, the above paragraph is open to serious objections. Most fundamentally, it misstates the law governing the concept of an interesse termini and ignores and confuses the distinction between legal and equitable rights.

[23] Although, in the initial response to the purported exercise of the option by Midas Realty, counsel for Galvic had relied on the requirement of a deed for the creation of a lease in section 1 (2) of the Statute of Frauds, at the hearing they did not dispute that the rights conferred by the OLA were entirely contractual. However, it does not follow from the fact that the option of Midas Realty was conferred by contract that, once it was exercised, there would be an agreement for a lease and not a lease. The choice between these alternatives depends on the intention of the parties as revealed by the documentary or other evidence. It has been addressed in a number of cases in this jurisdiction of which McLean v. Young, [1850] O. J. No. 191 (U.C.C.P.) was one of the earliest. Subsequent cases include Pain v. Dixon (1923), 52 O.L.R. 347 (H.C.) and Tann v. Seiberling Rubber Co of Canada Ltd, [1965] 1 O.R. 157 (H.C.).

[24] As Megarry and Wade in the Law of Real Property (3rd edition, 1966), at page 630 stated:

A lease is clearly distinct from a contract to grant a lease: the difference is between "I hereby grant a lease" and "I hereby agree that I will grant a lease".

[25] Neither the fact that the lease is to commence at a future date - a reversionary lease - nor that it is conditional on the performance of a condition - such as the exercise of an option by the lessee - is inconsistent with the immediate creation of a future leasehold interest in the land. In the latter case, the precondition attached to the interest does not prevent it from being an existing future leasehold interest in the land to which, for example, the rule against perpetuities would apply. Thus, in Harris v. Minister of National Revenue, [1966] S.C.R. 489, it was held that an option to purchase the reversion on a lease for 200 years at the expiration of the term was void as perpetuitous. In delivering the judgment of the court, Cartwright J. stated that it was settled that:

An option to purchase land gives rise to a contingent equitable interest in the land, the contingency being the election to exercise the option and payment of the price...

[26] Similarly, the fact that an option to acquire a lease is conferred under a contract and is enforceable contractually does not entail that there is only a contract to grant a lease in the event that the option is exercised, and not a contingent leasehold interest in the land that arises when the option is granted. The exercise of the option causes the pre-existing contingent interest to vest. Where this is the evident intention of the parties, the provision for the execution of a lease by the lessor was traditionally treated as a covenant for a further assurance: McLean, at para 16.

[27] I am of the opinion that, in this case, - as in Pain and Tann - the intention of the parties was that, on the exercise of the option, there would be a lease and not merely an agreement to create a lease. A contingent interest in a lease was created on February 4, 2002 when the option was created and the interest vested "automatically" when the option was exercised. On that interpretation the lease - not being granted under seal – did, indeed, offend section 1 (2) of the Statute of Frauds which provides that "all leases and terms of years of any ... lands are void unless made by deed." As under the provisions of exhibit B, the lease was to be for a minimum term of 10 years commencing upon the exercise of the option, the exception in section 3 of the statute does not apply.

[28] In a line of cases commencing with Parker v. Taswell (1858), 2 DeG. & J. 559 (L.C.) it has been consistently held that a lease which is void at law can be treated in a court of equity as an agreement to grant a lease and specifically enforced on that basis. In Parker, the provisions of the Real Property Act 1845 (U.K.) had provided that a lease exceeding three years made otherwise than by a deed was void “at law”. The Lord Chancellor stated:

The legislature appears to have been very cautious and guarded in language, for it uses the expression "shall be void at law". If the legislature had intended to deprive such a document of all efficacy, it would have said that the instrument should "be void to all intents and purposes". There are no such words in the Act. I think it would be too strong to say that because it is void at law as a lease, it cannot be used as an agreement enforceable in Equity, the intention of the parties having been that there should be a lease, and the aid of Equity being only invoked to carry that intention in to effect.

[29] Parker was followed in Pain, and in Tann, and in each of these cases it was recognised that the implied agreement could be enforced by an order for specific performance. At the relevant time in each of those cases, section 1 (2) of the Statute of Frauds contained essentially the same language as the English statute. The words, "at law", however, no longer appear in section 1 (2). With the assistance of counsel and the research facilities of the Great Library, I am satisfied that the deletion of the words was effected by the commissioners appointed in 1959 to consolidate and revise the public general statutes of Ontario. The words were possibly regarded by them as anachronistic, or surplusage, after the fusion of courts of common law and equity at the end of the 19th century. Whether or not that is correct, I believe it is clear that the commissioners had no power to change the pre-existing law. By section 3 of the Statutes Revision Act, 1959, S.O. 1959, c. 94, the commissioners were authorised only to

make such amendments as are necessary to bring out more clearly what is deemed to be the intention of the legislature or to reconcile seemingly inconsistent enactments or to correct clerical, grammatical or typographical errors.

[30] In consequence, I am of the opinion that the reasoning of the Lord Chancellor in Parker - as subsequently accepted and applied in this jurisdiction - continues to be authoritative.

[31] In the ultimate analysis then the position is the same as that accepted by counsel at the hearing - namely, the OLA is to be understood to have created an agreement to grant a lease. It follows, also, that the submission of Galvic's counsel on the rights of a person with an interesse termini are beside the point. They are rights that exist at common law after a lease has been granted and before the lessee has entered into possession. The concept has been abolished for residential tenancies in this jurisdiction and, for all purposes, in England in 1925. Its nature and the rights attaching to it were conveniently summarized by Megarry and Wade, at page 638:

Before 1926 there was a common law rule that a lessee acquired no actual estate in the land until he had taken possession in accordance with the lease. Until he had exercised his right to take possession he had a legal proprietary right in the land which carried with it a right of entry and was called an interesse termini, an interest of a term. This was no mere equitable interest, nor a mere licence or right of action, but was an interest in land which could be freely assigned, and enabled the lessee to sue any person interfering with his entry on the land.

[32] I note, in particular, that the rights attaching to an interesse termini were rights recognized in courts of common law before the Judicature Act. These included a right to enter into possession. The utility of such a right to a lessee facing a recalcitrant lessor was constrained by the provisions of the criminal law that prohibited forcible entry. The rights were common law proprietary rights, and not merely personal contractual rights against a lessor. As Megarry and Wade observed, they constituted an interest in land although not a legal estate. Thus, prior to the Judicature Act, the tenant had the right to obtain possession by an action of ejectment against a third party; Cleveland v. Boice, [1862] O.J. No. 89 (U.C.Q.B.) is an example. In Gillard v. Cheshire Lines Committee (1884), 32 W.R. 943 (C.A.), the rights of the tenant were described as rights in rem.

[33] Despite the ability of a tenant with an interesse termini to maintain ejectment against a third party, there was an unresolved question at common law whether the action was available to such a tenant against a landlord in possession as the tenant had no estate on which to base the action. The question was discussed by Professor Bora Laskin in an extract from Cases and Materials in Land Law (Revised edition 1964, pages 189ff) that was included as Appendix F to the Interim Report of the Law Reform Commission of Ontario on Landlord and Tenant Law Applicable to Residential Tenancies (Department of the Attorney General, 1968). After referring to the inconclusive case law on the question, the learned author stated:

It seems wrong today that even in the absence of legislation sweeping away interesse termini (as was done in England by the Law of Property Act, 1925...) there should be a refusal to enforce a claim to possession against a lessor where no outstanding rights of third persons would be affected.

[34] If it were necessary to consider the unresolved question, I would incline to the view that, under the present law, an order for the delivery of possession – enforceable by a writ of possession pursuant to rule 60.03 - could be obtained against a lessor by a lessee with an interesse termini: Cleveland, at para 12; Saunders v. Roe, [1867] O.J. No. 104 (U.C.C.P.). Whether or not that is a correct statement of the modern law, it would appear to me to be quite wrong to allow the doubt that existed at common law before the Judicature Act to affect the availability of equitable remedies when law and equity are now administered in the same court. At the very least, a person with a right to enter peaceably and take possession should now be entitled to an injunction restraining the lessor from interfering with that right.

[35] Similarly, I find it difficult to understand why, at this stage of the law’s evolution, an agreement for a lease - whether express or implied under the principle in Parker v. Taswell – which caries with it an implied agreement to let the tenant into possession cannot be enforced by an order for specific performance.

[36] Counsel for Galvic cited a passage in the Ontario Real Estate Law Guide (CCH Canadian Ltd, looseleaf), section 53655 which reads:

A tenant under a lease or agreement for lease who has not gone into possession is not entitled to sue for specific performance of the lease. He is not entitled to possession and no estate vests in him. His only remedy is in damages.

[37] Neither the authors of the work, nor counsel, cited authority for that proposition and, if it is intended to deny that possession may be obtained through an order for specific performance of an agreement for a lease, it appears to me to be wrong in principle. The fact that a tenant with an interesse termini has no estate should have no bearing on that question where the agreement contains – expressly or impliedly – an agreement to deliver possession as is clearly the case on the present facts: see Reaume v. Lalonde, [1939] O.W.N. 167 (C.A.), at page 168.

[38] In Parker, the tenant had entered into possession but nothing in the reasoning of the Lord Chancellor suggests that was a relevant - let alone a crucial - factor. Similar cases in which Parker was followed include Zimbler v. Abrahams,[1903] 1 K.B. 577 (C.A.); Martin v. Smith (1874), L.R. 9 Ex. 50 (Ex.); and Benecke v. Chadwicke (1865), 4 W.R. 687.

[39] In Benecke, for example, negotiations for a mining lease had concluded, and draft documents were being exchanged, when the intended lessor died. His executors were uncertain whether they could properly execute the lease and ought the protection of a court order. It was held that there was an agreement for a lease and specific performance was granted to the intended lessee. The court emphasised that this was an equitable result in view of the preparatory work done by the lessee on adjoining land and did not refer to the fact that, after the death of the lessor, the lessee had entered into possession.

[40] I have found no cases in which the remedy of specific performance was granted to - or withheld from - an intended tenant under an agreement for a lease who had not entered into possession. Nor have I found any cases in which the fact that an intended tenant had entered into possession was treated, explicitly or impliedly, as having any bearing on the availability of specific performance.

[41] Although, on the facts of each of Pain and Tann, the remedy was withheld, it was clearly accepted that, if the conditions for its availability were otherwise satisfied, it might be granted against an intended tenant who had not entered into possession.

[42] The reasoning behind the suggestion that an order for possession cannot be obtained by specific performance of an agreement for a lease may be that enforcement of the agreement according to its terms would merely give the tenant a lease and an interesse termini. Thus, in the extract from his work cited by the Law Reform Commission - after referring to the doubt that attached at common law to the availability of ejectment against a lessor when a tenant under a lease had not entered into possession - Professor Laskin commented:

Specific performance is inapplicable save to an agreement for a lease, but in such a case the relief would be execution of a lease and hence the position is not advanced.

[43] This traditional approach which distinguishes rigidly between a lease as a conveyance and an agreement for a lease was subsequently repudiated by Laskin J. in Highway Properties Ltd v. Kelly, Douglas and Co. [1971] S.C.R. 562 where the learned judge stated:

It is no longer sensible to pretend that a commercial lease, such as the one before this court, is simply a conveyance and not also a contract. It is equally untenable to persist in denying resort to the full armoury of remedies ordinarily available to redress repudiation of covenants, merely because the covenants may be associated with an estate in land.

[44] Although the absence of an estate may prevent covenants in a lease from being enforceable by a tenant with an interesse termini, an agreement for a lease ordinarily implies an agreement - a contractual obligation - to deliver possession at the commencement date. A breach of the implied agreement can give rise to an action for damages as in Reaume, above, and I see no reason why the principles that govern the availability of the equitable remedies of specific performance and injunctions to enforce other contractual obligations should not also be applicable. Section 96 (2) of the Courts of Justice Act provides that in cases of conflict between rules of common law and equity, the latter are to prevail. Even if one were to ignore the notorious fictions accepted for the purposes of the common law action for ejectment prior to the Judicature Acts, it cannot be correct that supposed, or actual, restrictions on its scope also preclude an application of equitable remedies that would entitle the intended lessee to an order for delivery of possession - an order that would be enforceable by a writ issued pursuant to rule 60.03.

Street racer gets house arrest

A Toronto man who pleaded guilty to street racing causing the death of an Innisfil truck driver has been sentenced to two years house arrest.

He has also been handed a lifetime driving ban.

Nauman Nusrat, 20, of Etobicoke, pleaded guilty in April to street racing causing the death of David Virgoe, 48, of Innisfil, during a 44-kilometre race against two friends on Highway 400, June 17, 2007.

Nusrat was to be sentenced last month, but the judge was not available, so his sentencing was adjourned to June 3.

Crown attorney Karen McCleave is asking for a lifetime driving ban and a prison sentence of 44 months, less the 302 days Nusrat has already spent in custody -- note, this amounts to a prison term of almost two years. She asked the judge to equate the crime of street racing causing death to drunk driving causing death.

BBC -- Europe synagogue to be dedicated

"Perhaps it says something that in 2008 the European Union feels it appropriate to state formally that Jews are full and free citizens. Remember, in “Philosophical Dialogues” (1755) Moses Mendelssohn wrote of "the amalgamation of Judaism and the German spirit" -- and that seems to been an unachievable goal -- perhaps that's why 250 years later Europe is still feels the need to say Jews can be European... . jcm"

Great Synagogues were established across Europe in the 19th Century



The main synagogue in Brussels is set to be re-dedicated as the Great Synagogue of Europe.



The president of the European Commission, Jose Manuel Barroso, is due to join chief rabbis from across Europe for the ceremony in Belgium's capital.



Correspondents say it is a symbolic move, but the organisers hope the synagogue will become the focus for pan-European Jewish events.



The synagogue is a Romanesque building dating from 1878 on Rue de la Regence.



It survived the Holocaust, during which nearly 25,000 Belgian Jews perished.



'Prayer for Europe'



The BBC's Dominic Hughes in Brussels says the dedication ceremony to mark the creation of a Great Synagogue of Europe will be a traditional one, but the event is more political than theological.



In the 19th Century, Great Synagogues were established in many European capitals, in response to the European Enlightenment - demonstrating that Jews were full and free citizens.



Now Jewish leaders want to make that statement at a European level, he says.



The ceremony of dedication, led by the synagogue's Chief Rabbi, Albert Guigui, will involve the reading of a specially-drafted "Prayer for Europe".



Among the guests will be the chief rabbi of Great Britain and the Commonwealth, Sir Jonathan Sacks, who will give a key-note address.



He will be joined by fellow members of the Conference of European Rabbis and several other leading figures from major European institutions, including Mr Barroso and at least 17 ambassadors.

Scores of Conservative candidates missed campaign debt deadline

Joan Bryden , THE CANADIAN PRESS

OTTAWA - Conservative election candidates have regularly missed deadlines for repaying campaign debts, indulging in the same supposedly illegal conduct for which the Tories are now denouncing Liberal Leader Stephane Dion.

Oblivious to their own record, Tories escalated their attacks on Dion and eight of his former leadership rivals who failed to pay off their leadership campaign debts by Tuesday's midnight deadline.

Sources say Dion still owes $560,000. He and the other eight have applied to Elections Canada for more time to clear their debts.

Tory MP Pierre Poilievre repeated his party's claim that Dion's failure to fully pay off loans and unpaid bills is against the law. And he again suggested that the independent elections watchdog, by granting extensions to the leadership contenders, is turning a blind eye to Liberal illegality.

"What penalty has Elections Canada applied to this breach?" Poilievre asked in the Commons.

But Poilievre might want to consider his party's own record before pressing too hard for penalties.

The law governing political loans to election candidates is almost identical to that which applies to leadership contenders. The only difference is that election candidates have only four months in which to pay off their debts while leadership candidates have 18 months.

In both cases, candidates are legally entitled to seek extensions.

According to a chart compiled by Elections Canada, 426 candidates - including 121 Conservatives - sought extensions to pay off loans after the 2004 election.

As well, 401 candidates - including 125 Conservatives - sought extensions to clear unpaid bills.

Elections Canada was not immediately able to say how many of those requests were granted but typically most candidates would have been given more time.

In a guide to understanding the rules for leadership debts, the agency notes that "under similar rules that exist for candidates during an election, the Chief Electoral Officer has normally authorized late payments as long as the sources of all contributions and details of all loan repayment schedules are disclosed."

Furthermore, Elections Canada's web site lists 19 candidates - five of them Conservatives - with loans that remained unpaid 18 months after the 2006 election.

It further lists 10 candidates - four of them Conservatives - whose unpaid loans were deemed to count as donations after 18 months. In five of those cases - three involving Conservative candidates - the donations exceed the legal maximum of $5,400 per donor.

Elections Canada spokeswoman Diane Benson could not immediately say what penalty may have been applied in those cases. Such breaches are most often settled out of court through what's called a compliance agreement but they can be prosecuted, resulting in a fine or even a jail term.

Regardless of his own party's record, Poilievre demanded Tuesday that Dion immediately disclose the "special arrangement" he's struck with the agency to extend his leadership repayment deadline. And he demanded to know what the "wealthy elites" who loaned Dion money have "asked in return."

"The public has the right to know which vested interests are pulling the strings of the Liberal leader. It is time he came clean with Canadians," Poilievre asserted.

Ralph Goodale, the Liberals' House leader, said the Tories are employing "a double standard," trashing extensions for Liberal leadership loans while gladly accepting extensions for their own election candidates.

"They're just making up arguments of convenience," Goodale said in an interview.

He said the attacks are a "diversionary tactic" to deflect attention from the Tories own legal troubles with Elections Canada. The agency has accused the Tory party of election spending fraud during the last campaign.

For his part, Dion said he and other Liberal leadership contenders have nothing to apologize for.

"We respect the letter of the law. We respect the spirit of the law and they (Tories) cannot read the law. And they are in breach with the law according to Elections Canada."

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

Svekla guilty of second-degree murder of one prostitute, not guilty in another killing

CALGARY (CBC) - An Edmonton judge on Tuesday found Thomas Svekla guilty of second-degree murder in the death of sex worker Theresa Innes, 36, whose body was found in a hockey bag in a home northeast of the city in May 2006.

However, Judge Sterling Sanderman found Svekla not guilty on charges of second-degree murder in the death of another sex worker, 19-year-old Rachel Quinney. Her body was found in a wooded area east of Edmonton in June 2004. Svekla told police he stumbled over the body while smoking crack-cocaine with another prostitute.

The 40-year-old had been on trial for the past 31/2 months.

Sanderman told the packed courtroom that although it's human nature to want to hold someone accountable for the "cruel, callous behaviour directed towards two vulnerable human beings," Svekla can't be held responsible "for everything" just because he had a woman's body in a hockey bag.

The judge said he was convinced beyond a reasonable doubt that Svekla killed Innes, but that there was not enough evidence to prove the auto mechanic played any role in the younger woman's death.

Before Tuesday's court hearing, friends and family of Rachel Quinney expressed fears that Svekla might be acquitted in the young woman's death.

"He'll be held accountable for something, but not what he should be held accountable for," said Danielle Boudreau, a friend of Quinney who sat through the entire trial.

Svekla is the first person charged by Project Kare, a joint task force between Edmonton city police and RCMP that is investigating the deaths and disappearances of more than 20 women since 1983, all of them prostitutes or others in what police call "high-risk lifestyles."

Gas Prices!

Flocke's Day

Standard Of Review -- Dunsmuir Applied

In Dunsmuir v.New Brunswick, 2008 SCC 9, at para. 34, the Supreme Court of Canada determined that there should now only be two standards of review of an administrative tribunal – correctness and reasonableness. The two variants of reasonableness review, reasonableness simpliciter and patent unreasonableness, are now collapsed into a single form of “reasonableness” review: Dunsmuir at para 45.

Today’s Court of Appeal decision in Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 436 considers whether there is a sliding scale of reasonableness within the reasonableness standard. The short answer is no – while reasonableness has to be considered within the context of the decision made, there are only two standards of review, correctness and reasonableness.

The Court holds:

[19] In my view, by collapsing the patently unreasonable standard and the reasonable standard, the majority has not set aside the court’s earlier decision in Law Society of New Brunswick v. Ryan, nor has it signaled that courts must now puzzle over the degree of deference to give to a tribunal within the reasonableness standard. The existence of varying degrees of deference within the single reasonableness standard suggests that a decision made by a tribunal will be found to be unreasonable if the court accords the tribunal a low degree of deference but that same decision will be found to be reasonable if the court decides to accord the tribunal a high degree of deference. I do not read the decision of the majority in Dunsmuir as encompassing any such approach.

[20] As the majority explained that para. 42:

[E]ven if one could conceive of a situation in which a clearly or highly irrational decision were distinguishable from a merely irrational decision, it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough. It is also inconsistent with the rule of law to retain an irrational decision. As LeBel J. explained in his concurring reasons in Toronto (City) v. C.U.P.E., at para. 108:

In the end, the essential question remains the same under both standards: was the decision of the adjudicator taken in accordance with reason? Where the answer is no, for instance because the legislation in question cannot rationally support the adjudicator’s interpretation, the error will invalidate the decision, regardless of whether the standard applied is reasonableness simpliciter or patent unreasonableness. …

[21] The “revised system” established in Dunsmuir was designed in part to make the approach to judicial review of administrative decisions “simpler and more workable” (para. 45). An analysis of the varying degrees of deference to be accorded to the tribunal within the reasonableness standard, as submitted by the appellant, fails to comply with this objective.

[22] My conclusion does not signal that factors such as the nature and mandate of the decision-maker and the nature of the question being decided are to be ignored. Applying the reasonableness standard will now require a contextual approach to deference where factors such as the decision-making process, the type and expertise of the decision-maker, as well as the nature and complexity of the decision will be taken into account. Where, for example, the decision-maker is a minister of the Crown and the decision is one of public policy, the range of decisions that will fall within the ambit of reasonableness is very broad. In contrast, where there is no real dispute on the facts and the tribunal need only determine whether an individual breached a provision of its constituent statute, the range of reasonable outcomes is, perforce, much narrower