Saturday, June 14, 2008

Mao Mao is laid to rest


Honors for Mao Mao the panda killed in quake

(Agencies)
Updated: 2008-06-11

WOLONG - Mao Mao the panda's remains were gently laid in a wooden crate and wheeled to a patch of ground in China's famed Wolong Nature Reserve where a freshly dug grave awaited.

The center's director stood cap in hand and shoveled in a few spades of dirt. Then Mao Mao's keeper stepped forward crying, and arranged two apples and a piece of bread by the grave. Three minutes of silence followed as workers gathered around the grave.

Nearly a month after she was crushed to death when the 8-magnitude earthquake collapsed the wall of her enclosure, 9-year-old Mao Mao was laid to rest Tuesday in a quiet corner of the Wolong panda breeding center.

The facility was badly damaged by the May 12 quake but officials initially thought all 64 pandas had survived. Then they discovered two were missing. Mao Mao's body was discovered Monday, buried under debris.

As He Changgui, Mao Mao's keeper, turned away red-eyed after Tuesday's burial, the director of US-based Pandas International, Suzanne Braden, put her arm around him.

"You must look after her babies, OK?" said Braden, who had arrived a day earlier to survey the quake damage and help in the recovery. "And their babies."

He nodded. "I will go back to see her everyday," he said.

The endangered panda is revered as a national treasure in China, where about 1,600 pandas live in the wild, mostly in Sichuan and the neighboring province of Shaanxi. Another 180 have been bred in captivity.

For the staff at Wolong, Mao Mao's loss was all the more acute because she was killed in her prime, something that rarely happens, said David Wildt, who heads the Center for Species Survival at the Smithsonian's National Zoo in Washington.

"I don't think it's surprising there's a great deal of concern over the loss of this animal," said Wildt, who has worked closely with the Chinese panda program for more than a decade.

"The people who work at Wolong are completely dedicated to those animals. Most of the animals have been born there. The way they are raised, they are handled a great deal. People get to know these animals. They're all named and have their own personalities."

Ron Swaisgood, who worked at Wolong for seven years, said he'd never seen a funeral service like the one Tuesday.

"I think that this is probably a result that everyone is feeling very sentimental about the earthquake and this tragic loss of life. She didn't die of old age," said Swaisgood, who co-heads the Giant Panda Conservation Unit at the San Diego Zoo.

Wedged in a narrow valley a few hours drive from Chengdu, the capital of Sichuan province, Wolong was pummeled by landslides on both sides. The quake was centered just 20 miles away from the panda country, and five Wolong staff members were killed.

Panda enclosures were smashed, and the entry gate for visitors was buried under stones, forcing tourists there at the time to escape by climbing a ladder through the center's clinic.

Wolong's 14 panda cubs played outdoors Tuesday, less than 30 yards from a huge pile of debris left by a landslide. They had been at the same spot when the earthquake hit.

"They were so nervous when it happened," said Huang Yan, the deputy director of research. "I found seven of them huddled together."

The center remains closed to visitors, and Huang said it might not open again until next year. Six pandas have been sent to another reserve in Sichuan, and eight have been sent to Beijing for an Olympics stay at the Beijing Zoo that was planned before the quake.

Now one of the biggest questions is this year's breeding program. The quake hit during what the Chinese delicately call the "falling in love period," -- a 24- to 72-hour window each spring when female pandas are fertile -- and 18 females had been artificially inseminated. No one knows what the effects of the quake will be.

"We still don't know how many are pregnant," Huang said. "We still don't know what will happen."

Also shaken in the quake were the collections of semen from more than 15 pandas, both dead and alive, meant to help the species' diversity. The samples are kept in freezers that are still run, like the rest of the center, on a generator -- which broke down briefly Tuesday.

"The first things they asked for after the quake were freezers," Braden said. "With only 1,600 pandas left in the wild, genetically every sperm is important."

With the funeral over, the center turned quiet Tuesday. Mao Mao's keeper, He, had cared for the panda since she was 3, speaking to her in the local Sichuan dialect as he worked.

"It's like you could say something and she would understand," he said. "If you were happy, she was happy too."

Mao Mao was brought to Wolong from the wild in 2000 and didn't have a name at first, said Swaisgood, so he called her "Wild Thing."

"She had a different personality than the other pandas ... When she was young she was a bit more independent and wilder, a little more sensitive to her environment. She very quickly endeared herself to all of us," he said.

Swaisgood said it was likely Mao Mao was pregnant when she was killed because she mated successfully in the spring.

"Mao Mao was a little unique genetically because she was brought in from the wild," Swaisgood said. That made her especially valuable, though her five cubs meant she had good genetic representation.

"With any breeding program you want to maintain a diverse gene pool to avoid inbreeding," he said.

Procedural Requirements to Disqualify a Paralegal

Yesterday's decision in Charron v. Ontario (Attorney General), 2008 CanLII 28043 (ON S.C.) set out the process for barring a paralegal from a Court where the paralegal has jurisdiction to act.

It is very important to note that barring a paralegal is different from a judicial officer declining to hear the paralegal because, say, of some personal interaction. Where a judicial officer believes there might be a perception of bias it is entirely appropriate for that officer not to hear a specific paralegal (or lawyer). Such recusal is not a barring at all.

The Court relied on the Ontario Court of Appeal decision in R. v. Romanowicz, [1999] O.J. No. 3191 saying:

[19] At para. 77, the court said the following:

The power to disqualify agents, like any other facet of the court's power to control its processes, must be exercised judicially on the basis of the circumstances present in a given case.

[20] The court then outlined, at para. 79, the following procedure for dealing with an issue of this nature:

When the issue is raised, the grounds for the potential disqualification of the agent should be clearly articulated. The trial judge should first decide whether those grounds provide any basis upon which to disqualify the agent. If satisfied that they do, the trial judge should then conduct an inquiry in which all interested parties are given a full opportunity to present their positions on the issue. Although the rules of evidence would not necessarily apply to this inquiry, the dictates of procedural fairness must.

[21] This requirement for procedural fairness applies equally where the court purports to ban an agent pursuant to s. 50(3) of the Act: R. v. Tassone, [2006] O.J. No. 1365 (S.C.J.) per Trafford J..

[22] It is clear that no procedural fairness was afforded to the Applicant when the Respondent made his order of June 23, 2003 banning her from his court. She was not even present when the issue was raised, and received no notice that the issue was about to be dealt with. She had no opportunity to make submissions or present evidence, and no inquiry was held.

[23] The failure to afford procedural fairness is an error that goes to the jurisdiction of the Respondent to make the banning order. An order in the nature of certiorari is warranted to quash that order, as well as each subsequent order in which the Applicant was banned from the courtroom, up to and including the order of December 21, 2007.

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

Friday, June 13, 2008

Mugabe says guerrilla war vets poised to fight if opposition wins presidency

The evil bigot Mugabe continues to shame Africa.


June 13, 2008

THE ASSOCIATED PRESS

HARARE, Zimbabwe - President Robert Mugabe said Friday that his supporters are ready to fight if the opposition wins an upcoming presidential run-off election, hardening the rhetoric of a campaign that already has seen widespread violence against government opponents.

"I'm even prepared to join the fight," the 84-year-old Mugabe told a conference of his party's youth wing.

Mugabe said the veterans of the war of independence in 1980 had approached him after the first round of voting in March and threatened to take up arms again if opposition leader Morgan Tsvangirai wins the June 27 run-off.

Tsvangirai finished first in a field of four in the first round but failed to win the majority needed to avoid a run-off.

"We can't allow the British to dominate us through their puppets," said Mugabe, returning to a campaign theme of portraying Tsvangirai as a pawn of western powers, a charge the opposition denies. "A vote for the (opposition) is a vote for the British to have once again not just a foothold but real power."

A High Court judge, meanwhile, ordered police to bring No. 2 opposition leader Tendai Biti to court Saturday and explain why he should not be immediately released, according to opposition lawyer Selby Hwacha.

Biti was arrested Thursday upon returning to Zimbabwe from neighbouring South Africa. The United States was among the governments that said the arrest of the top aide to Tsvangirai only deepened concerns the run-off would not be free and fair.

Since picking up Biti at the airport Thursday, police have refused to say where he was being held or when they might bring him to court. They have said he faces a charge of treason, which can carry the death penalty.

Tsvangirai, speaking on the campaign trail Friday, called the charge Biti faces "frivolous."

"Tendai has not committed any crime, he has not committed any offence to warrant the arrest," the candidate said.

The party said Tsvangirai himself was released overnight after being detained by police.

Tsvangirai was stopped twice by police as he tried to campaign Thursday, according to the party, which said he was held for about two hours the first time and late into the night the second time before being released. Such incidents have become common as Tsvangirai attempts to reach out to voters, and the opposition says 66 of its supporters have been killed.

In 2004, Tsvangirai was acquitted after a treason trial that lasted more than a year.

Botswana, a fellow member of the Southern African Development Community, was the first neighbour to condemn Biti's arrest. Its Ministry of Foreign Affairs said it had summoned the Zimbabwean ambassador to express its concern.

"Botswana is alarmed by these arrests and detentions as they disrupt electoral activities of key players and intimidate the electorate thus undermining the process of holding a free, fair and democratic election," said Clifford Maribe, ministry spokesman.

It was unusually strong language from a fellow African government. Zimbabwe's neighbours, particularly regional power South Africa, have for the most part refused to confront Mugabe.

The arrest of Biti and police harassment of Tsvangirai are the latest examples of efforts by Mugabe's government to defeat the opposition. The harassment has included using security forces to confiscate a large U.S. food donation and giving it to Mugabe supporters in a country where many people are poor.

The United States, long a sharp critic of Mugabe, said Thursday that whatever pressure the neighbours had so far brought to bear had been ineffective. It called for immediate action by the United Nations Security Council.

News emerged that a 20-tonne shipment of U.S.-donated grain, beans and oil being sent to a school in eastern Zimbabwe was hijacked by security forces and then passed out to Mugabe backers at a rally last week.

In Washington, officials said the United States, which now holds the rotating presidency of the Security Council, would try to raise the Zimbabwe issue next week.

U.S. Ambassador James McGee said Friday the clampdown on aid work has left some people surviving on less than one meal a day.

"The situation right now is bad and it's continuing to get worse," McGee told reporters in a conference call from Harare, Zimbabwe's capital. "If this continues much beyond the elections, it will be disastrous for Zimbabwe."

Aid group World Vision, which has projects across the country, appealed to the government Friday to allow delivery of basic humanitarian assistance by reversing the suspension.

"As a child-focused organization, we are particularly concerned for the close to 400,000 children we would have assisted this month through school-feeding and our ongoing development work," said Wilfred Mlay, vice-president for Africa for World Vision. "We hold grave concerns for the 1.6 million orphans and vulnerable children across the country who will now not receive critical assistance from humanitarian agencies operating in the country."

World Vision said the suspension was keeping more than 30 groups from delivering food and other aid. It said up to four million people are in need of aid.

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

Parasiris Acquitted

Man acquitted in Laval police officer's death
Updated Fri. Jun. 13 2008 4:22 PM ET
CTV.ca News Staff
A Quebec jury has found Basil Parasiris, 42, not guilty in the shooting death of Laval police officer Sgt. Daniel Tessier.
The jury emerged with its decision Friday afternoon after beginning deliberations on Tuesday.
The case sprang from a botched early-morning drug raid on Parasiris' home in which Tessier was shot and killed.
Parasiris testified that a group of men entered the home at 5 a.m. on March 2, 2007, and that his wife Penny Gounis was screaming hysterically. He said he thought they were experiencing a home invasion, so he grabbed one of his four firearms for protection.
When someone dressed in black with a white face burst into his bedroom, Parasiris said he fired.
The Crown attacked inconsistencies between Parasiris's testimony and what he said in a videotaped interview. Gounis, who was wounded in the incident, backed her husband's story.
Laval police officers who testified say they repeatedly yelled "police" as they ran up the stairs towards Parasiris's bedroom.
One officer, who rode in the ambulance that took the accused to hospital, testified that Parasiris said, "I thought someone was coming to kill me."
When the jurors headed behind closed doors on Tuesday to decide Parasiris' fate, they didn't know they were missing two details about what happened that night.
The sequestered jurors were not told that Parasiris' charter rights were violated by Laval police officers when they burst into his Brossard home -- the warrant they used had been declared illegal.
Superior Court Justice Guy Cournoyer had declared the warrant illegal in motions heard before the trial began in March.
He lashed out at the Laval police for failing to be thorough, saying they did not prove their suspicion that Parasiris was dealing cocaine and they failed to act within the confines of the warrant in entering the home before 6 a.m. Additionally, he said they had no grounds to forcefully enter the home and should have rung the doorbell.

Don't be bashful

A month or so ago I was featured in one of the legal newspapers talking about a fraud that nearly caught me.



Briefly described the fraudster directs to a lawyer a very high quality forged bank draft for a large sum of money. The money is for an apparently legitimate transaction. The fraudster then pushes the lawyer to deposit the forged draft in trust, take the fees due, and pay the rest of the money to the fraudster.



The fraud works because the lawyer's trust cheque clears before the forgery is discovered and the lawyer is left owing the bank hundreds of thousands of dollars.



Quite a few lawyers were caught. I was not as I discovered the fraud before paying out.



I went to the press and hence the article.



Now some said I opened myself up to ridicule and perhaps I did but since the story numerous lawyers have called to say they read the story and were thereby saved from the fraud.



That made everything worth it.

Don't Miss a Limitation Period!

Yesterday's decision in Joseph v. Paramount Canada 's Wonderland, 2008 ONCA 469 deals with whether the common law power to extend the time normally prescribed by a limitation period, if 'special circumstances' exist, continues under the new Limitations Act.

The answer is no

Through inadvertence, plaintiff's counsel failed to issue a statement of claim within the limitation period provided under the Limitations Act. On a motion to determine as a question of law whether the claim was statute-barred, the motion judge applied the common law doctrine of special circumstances, and to exercise his discretion to extend the limitation period.

The issue raised was whether that doctrine continues to apply under the new Act.

The Court held:


[12]          The question to be answered now is whether the legislature intended to preserve the court's common law discretion to extend limitation periods under the new Act by applying the doctrine of special circumstances. As a matter of statutory interpretation, I have concluded that the answer must be no.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

China, Taiwan sign formal agreement on charter flights, tourism

June 12, 2008

Debby Wu, THE ASSOCIATED PRESS

BEIJING - Taiwan and China signed a formal agreement Friday to expand charter flights and tourism, a step towards restoring transport links severed 59 years ago.

The expansion of charter flights was a key agenda for the talks that began Thursday between Taiwan's Straits Exchange Foundation and its mainland counterpart, the first formal negotiations between the sides since 1999.

The expansion of tourism will help build confidence between the rivals, which divided amid civil war in 1949 and whose relationship has veered from strained to outright hostile.

Charter flights are now limited to four annual Chinese holidays and are usually packed with Taiwanese residents on the mainland returning home to visit family.

Taiwan's 19-member negotiating team is being led by Chiang Pin-kung, chairman of the Straits Exchange Foundation, and includes two vice Cabinet ministers - the highest-ranking Taiwanese officials ever to participate in bilateral talks.

The 75-year-old economic planner said earlier this week he expected to sign an accord opening the way for 36 charter flights to cross the 160-kilometre-wide Taiwan Strait every weekend. Taiwan has banned direct scheduled flights since the 1949 division.

Newly elected Taiwanese President Ma Ying-jeou wants to gradually expand the charter schedule and supplement it with regularly scheduled flights by the summer of 2009. His target is to have one million Chinese tourists go to Taiwan every year, well above the current level of 80,000.

On Thursday the two sides agreed to set up permanent offices in each other's territory for the first time, one of the biggest steps the political rivals have taken to build mutual trust.

There were few details and no time frame given for establishing the offices, which could perform consular functions such as issuing travel documentation.

Foundation Deputy Secretary-General Pong Jian-kuo said a consensus on exchanging offices was reached during the talks, saying they would "facilitate people's exchanges and traveling across the Strait."

"It's a very positive and healthy development in relations across the Taiwan Strait," said political scientist George Tsai of Taiwan's Chinese Culture University.

Tsai cautioned, however, that the offices would be limited to dealing with administrative matters and would offer little direct help in dealing with core political differences such as China's threatening missile arsenal and Taiwan's desire for diplomatic recognition overseas.

Beijing's communist administration, which seized power on the mainland in 1949, considers Taiwan part of its territory and refuses to recognize the government in Taipei, which means that negotiations must be carried out by semiofficial bodies.

The talks are scheduled to run through Friday at a state guesthouse in western Beijing.


Thursday, June 12, 2008

The Grand Hotel, Mackinac Island, Michigan Bar Association Meeting Site


Quite a place to study leadership and law!

71 Offences, Out of Jail One Year As An Adult, Kills Four, Not A Dangerous Offender

SLAVE LAKE, Alta. - An Alberta judge has ruled that a serial criminal who admitted to killing four people while driving drunk is not a dangerous offender.

Instead, Raymond Yellowknee was declared a long-term offender in provincial court in Slave Lake on Thursday and will face a sentence of 20 years in jail - less four years credit for time served - with an additional 10 years of supervision after his release.

"You have harmed many people in the communities of Driftpile and Slave Lake," provincial court judge Ernie Walter told Yellowknee in front of a packed and sombre courtroom.

Yellowknee, 35, pleaded guilty in 2006 to four counts of impaired driving causing death as well as to criminal flight from police and driving while suspended.

He was drunk and driving a stolen pickup truck earlier that year when he slammed into a car carrying Misty Chalifoux, 28, her daughters Trista, 9, and Larissa, 6, and her stepdaughter Michelle Lisk, 13.

"The offences of which Mr. Yellowknee has been convicted ... are in my view as close to meeting the requirements for the imposition of the maximum sentences as they can possibly be," Walter said in his sentencing as the family of his victims softly sobbed.

Yellowknee has amassed a total of 71 offences and has been out of jail for only one year since he was 18.

However, Walter said Yellowknee's potential for rehabilitation, as well as his aboriginal and family background, made the long-term offender sentence more appropriate.

In 1999, a Supreme Court of Canada ruling set out sentencing guidelines instructing judges to consider the unique circumstances of aboriginal people.

Yellowknee stared blankly ahead during the sentencing.

He would have become Canada's first drunk driver to be declared a dangerous offender had the Crown been successful in its request. A dangerous offender sentence has no end date.

Long-term offenders are those who are considered likely to re-offend but who can be managed through a regular sentence.

During the hearing, Yellowknee's lawyer, Laurie Wood, argued her client didn't fit the criteria of a dangerous offender.

However, Crown prosecutor Jonathan Hak pointed out that Yellowknee led police on two previous high-speed chases - one in which he crashed into the pursuing police cruiser - and has had three previous impaired driving convictions.

In a victim impact statement, Chalifoux's grandmother, Muriel Carifelle, told court that Chalifoux was nearly finished her teacher training. She said Trista wanted to be a doctor, Larissa an actress and Michelle a lawyer.

The family also has two young sons and Carifelle said they're scared to sleep alone and scared to let loved ones out of their sight lest they never see them again.

"I am missing four pieces of my family, my heart, my bloodline," said grieving grandfather Eugene Chalifoux. "I'm tired, so exhausted from wanting them home again."

Chalifoux's husband Sheldon told court he found himself struggling to make it through the tragedy.

"How do you move forward when you're constantly yearning for the deepest meaning of life to smile at you and give you a hug or an 'I love you, Daddy'? How do you find peace in the constant aching for the loved ones you lost so horribly?"

Robert Solomon, spokesman for Mothers Against Drunk Driving, said his group was generally satisfied with Thursday's sentence. He said even dangerous offenders may apply for parole after 10 years and that most offenders are eventually parolled.

"Yellowknee may not be out of prison a whole lot earlier ... than if he'd been designated a dangerous offender."

Solomon said Walter was legally correct to apply a lesser sentence if it would meet public safety concerns.

From Today's U.S. Supreme Court Decision in Boumediene v. Bush 553 U. S. ____ (2008)

And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained "ultimate sovereignty" over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President thepower to acquire, dispose of, and govern territory, not thepower to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution." Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President,not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803).


John Oakley on Toronto's new genocide curriculum: Kids should learn about thought crimes in history, too

History serves up many important lessons for teaching, not the least of which is that failure to learn from the past dooms one to repeat it. That axiom is the inspiration for the Toronto District School Board's new curriculum for grade eleven students that will explore genocide in the twentieth century.



After some debate as to which dark chapters in particular deserve the treatment, it was decided to focus on the Holocaust, Rwanda and Armenia. There's certainly enough grist there to flesh out the genesis of racial prejudice and how it can lead to killing on a massive scale.



But not all genocides are created equal, and the three samples cited share the common denominator of racial hatred leading to slaughter. If the TDSB really wants to twig the students' thinking, perhaps they should introduce the purges of Stalinist Russia as well.



The instructive lesson here is how the Bolsheviks murdered tens of millions of their own countrymen, not over race so much as incorrect political thinking. For that matter, they may also want to reference Chairman Mao: He's the guy who coined the phrase "politically incorrect."



With thought crimes today being vigorously pursued through various human rights tribunals, the kids would do well to learn the lessons of the past.

Supreme Court of Canada -Family law - Divorce - Family assets - Division of contingent liability

Stein v. Stein. 2008 SCC 35 was released this morning. Though arising in BC its reasoning has relevance in Ontario.

The husband and wife separated in 2003 after 12 years of marriage during which the wife remained home to care for the parties' two children. In the ensuing divorce action, family assets worth $1.7 million were divided equally, and the wife was awarded support based on the husband's income of over $200,000 per annum. The trial judge also ordered that the husband's contingent tax liabilities associated with his tax shelters, the extent and timing of which are unknown, should be shared equally by the spouses on an if and when basis, since they both benefited from them. The Court of Appeal set aside this order on the ground that the British Columbia Family Relations Act (FRA) precluded the creation of a freestanding order apportioning debt between the spouses, and ordered that the husband would be solely responsible for the contingent liability.

Held (Abella J. dissenting): The appeal should be allowed.

Per McLachlin C.J. and Bastarache, LeBel, Deschamps, Fish and Rothstein JJ.: The fact that a reapportionment will occur at some stage in the future, after the liability has crystallized, does not necessarily involve the creation of a freestanding order, nor does it violate a plain reading of the FRA. Nothing in the FRA precludes an order dividing between spouses a contingent liability which can not be valued at the time of trial. Although it is clear that debt is not to be divided between spouses, the FRA places no temporal limits on a division of assets, and once subject to an initial division, s. 66 allows a court to make orders requiring a spouse to pay compensation to the other spouse for the purpose of adjusting the division of assets at any time. Further, while s. 65 permits a court to vary the presumptive fifty percent asset division where it would be unfair, having regard to the factors enumerated in s. 65(1), including the liabilities of a spouse, none of the other factors militate in this case in favour of requiring only one of these parties to bear responsibility for those liabilities. Moreover, fairness requires that both assets and debts, even those that cannot be precisely valued at the time of separation, be considered upon the breakdown of a marriage, in recognition that spouses jointly contribute to not only the accumulation of assets, but also to debts incurred for familyrelated costs. Since the trial judge found that both parties obtained significant assets and were financially stable after the division of assets, and that the wife would soon be selfsufficient, fairness requires both spouses to assume responsibility for contingent liabilities associated with tax shelters from which they have each derived benefit, notwithstanding that the husband may be better positioned to remain economically independent in the event that the taxes become payable. However, in the event that the impact of the future liability on one of the parties results in an unfairness, that individual may to apply to the court for adjustments.

Per Abella J. (dissenting): The trial judge's order is a freestanding obligation, if and when it becomes due, inappropriately made outside and subsequent to the division of assets. It is manifestly unfair to the wife within the meaning of s. 65 of the FRA, since it disregards the dramatic disparity in the financial circumstances, sophistication, and experience of the spouse. The trial judge failed to take account of the economic consequences of the division of labour in the parties' household, including the wife's absence from the paid workforce for 12 years, as required by the FRA. Further, he failed to recognize that despite having retrained as a film animator following separation, her prospects were far from certain. In contrast, the husband's ample earnings, financial capacity, and business experience placed him in a far better position than the wife to accommodate a potential tax liability. Courts should strive to avoid undermining the goal of attempting to preserve an economic equilibrium between the resulting household. Here, the equal application of a potentially substantial contingent tax burden creates a genuine risk that the wife's and the children's standard of living will be significantly lower than that of the husband and unfairly interferes with her ability to make personal and financial decisions for herself and the children with a sufficient degree of certainty and security.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Precedent Overruled -- Can Issue Estoppel Be Reconsidered? Maybe

What happens if an issue is decided between parties in ongoing litigation and the precedent upon which the decision is based is overturned?

This interesting issue was considered in Smith Estate v. National Money Mart Company, 2008 CanLII 27479 (ON S.C.)
where the Court concluded that revisiting the decided point might be possible; issue estoppel might not apply depending on fairness. In other words issue estoppel MAY not apply if the initial decision is based on an overruled precedent.

The Court writes:


[175] The longer answer involves assuming Money Mart is correct and that Dell Computer and Rogers Wireless changed the law. In Canada (A.G.) v. Hislop, 2007 SCC 10 (CanLII), [2007] 1 S.C.R. 429, the Supreme Court of Canada stated that its decisions operate retroactively and not just prospectively. On this assumption, by application of the changed law declared by the Supreme Court, Money Mart would be entitled to a stay and a referral of this action to arbitration. It is in these circumstances that the exception to issue estoppel recognized in Hockin v. Bank of British Columbia would apply.

[176] In Hockin v. Bank of British Columbia, in an action brought by employees against their employer, the Bank of British Columbia, it was alleged that the Bank had no claim to funds it had removed from its employees` pension plan. Justice Spencer held that the Bank had the right to remove the funds. Justice Spencer`s judgment was affirmed by the British Columbia Court of Appeal. The matter proceeded to trial before Justice Paris and relying on the Court of Appeal`s decision as raising an issue estoppel, he dismissed the employees` action. The employees appealed, and during the hearing of their appeal, the Supreme Court of Canada released its judgment in Schmidt v. Air Products of Canada Ltd., 1994 CanLII 104 (S.C.C.), [1994] 2 S.C.R. 611, which overturned Justice Spencer's judgment as a precedent. In these circumstances, the British Columbia Court of Appeal ruled that as a matter of fairness, there should be no issue estoppel based on the now overruled precedent. The court stated in paragraph 35 of its judgment:

35. The injustice to the appellants [the employees] is obvious. If they were denied a hearing on the merits, they would be told by the courts that, even though their case is before the Court of Appeal, and even though the Supreme Court of Canada has said the very issue in this case was wrongly decided by the court in 1990, and the law now is that on the wording of this plan the employees are entitled to any surplus in the fund, they will nevertheless be denied this result because of a principle of law that has as one of its cornerstones the interests of justice.

[177] For present purposes, the court's last comment is the most important. The doctrine of issue estoppel is meant to do justice and is not meant to be an instrument for injustice. The court has the discretion to employ or not employ the doctrine of issue estoppel in the interests of justice. The application of an issue estoppel and the application of the exceptions to an issue estoppel are matters of the court's discretion.

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

Final/Interlocutory -- The BC Approach

Today's British Columbia Court of Appeal decision in Yaremy v. Insurance Corporation of British Colombia, 2008 BCCA 235 asks whether leave is required to appeal an as yet unentered order dismissing an application to have an action dismissed on the ground that it is time-barred.

In considering the question the Court set out the British Columbia approach to the final/interlocutory dichotomy. The British Columbia approach is very different than the Ontario approach.

In British Columbia an order is final when it disposes of all rights of a party: Hayes Forest Services Limited v. Weyerhaeuser Company Limited, 2008 BCCA 120 (CanLII), 2008 BCCA 120.

Of course, in Ontario the rule is that an order is final if it disposes of a single substantive issue between the parties: see Capital Gains Income Streams Corporation v. Merrill Lynch Canada Inc., 2007 ONCA 497 for example.

The British Columbia Court of Appeal today writes:

... The question of whether an order (i.e., judgment) is final or interlocutory has been the subject of extensive judicial consideration. Recently, this subject was canvassed in detail in Hayes Forest Services Limited v. Weyerhaeuser Company Limited, 2008 BCCA 120 (CanLII), 2008 BCCA 120.

[8] In Hayes, Mr. Justice Smith reaffirmed this Court's commitment to what is known as the order approach. Under this approach, an order is final and, therefore, appealable as of right, only if it disposes of all of the rights of the parties to the litigation. If matters remain outstanding in the litigation after the making of the order sought to be appealed, then that order is interlocutory: paras. 15, 45, 50.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Wednesday, June 11, 2008

Couillard affair claims another Conservative casualty


"OK, This is getting silly already: jcm"

OTTAWA - The woman who brought down Stephen Harper's foreign affairs minister has cost his Conservative cabinet another senior employee.

Public Works Minister Michael Fortier confirmed Wednesday that he dismissed senior Quebec adviser Bernard Cote after learning that Cote briefly dated Julie Couillard last year while she was attempting to win a government contract.

Cote had to resign because of a perceived conflict of interest, since Public Works was handling the building contracts Couillard was bidding on, Fortier said.

Fortier told reporters that Cote, "should have actually recused himself from this matter, which he didn't do, hence his resignation."

Couillard sparked the resignation of foreign minister Maxime Bernier two weeks ago when she went public with the fact her former paramour had forgotten classified NATO briefing documents at her Montreal home for more than a month.

Harper said Bernier had to quit because he breached cabinet rules on handling sensitive documents, nothing else.

The prime minister has steadfastly maintained that Couillard's past associations with criminal bikers do not pose a security concern and that who ministers date is a strictly private matter.

But senior RCMP officials told a Commons committee on Tuesday that ministers associating with a person who had extensive links to biker gangs would be considered a relevant security concern.

The Mounties also said that Couillard was known to them before her past biker liaisons became public knowledge last month in the media.

According to newspaper accounts, Cote and Couillard dated briefly in the spring of 2007, shortly before she began her year-long relationship with Bernier.

Even Homer Nods

What ought counsel to do if it appears the judge cannot follow the evidence because of physical difficulty? – specifically, the judge appears to be dozing.

My own sense is that the appearance of dozing is not necessarily dispositive – sometimes a person closes their eyes when they are concentrating intently. But consider a situation where there really is a lack of attention through sleep.

Not surprisingly, there is little caselaw on point but today’s Court of Appeal decision in Leader Media Productions v. Sentinel Hill Alliance Atlantis Equicap Limited Partnership, 2008 ONCA 463 considers the issue.

The rule is that counsel suspecting a judge is not awake must bring the issue to the attention of the Court immediately (presumably by some method more subtle than loudly yelling “wake up!”) and not holding back until appeal. The key passage of the decision provides:

Counsel was obliged to bring the trial judge’s inattention home to him at the time. Not having done so, and having decided to wait and see what happened, they cannot now raise that inattention for the first time as a ground of appeal on either a substantive or contextual basis.

Part of the Court’s reasoning follows:

3. Trial Judge’s Inability to Follow the Evidence (Fresh Evidence Application)

[40] The appellants have moved in this court to admit fresh affidavit evidence showing that the trial judge was unable to follow the evidence because he fell asleep repeatedly during the trial. The fresh evidence consists of five affidavits authored by appellants’ trial counsel and others. These affidavits suggest the trial judge fell asleep frequently but for only very brief periods of time.

[41] During oral argument counsel for the appellants said that the subject matter of the fresh evidence application did not constitute a separate independent ground of appeal. Rather, he said it should be considered contextually in relation to the other two substantive grounds raised.

[42] The respondent says that the fresh evidence does not meet the R. v. Palmer test. It says this evidence was available at the time of trial and that the appellants decided, as a matter of tactics, not to raise it at trial and preferred instead to “wait and see how things played out”.

[43] Despite the respondent’s argument, I would admit the fresh evidence because it relates to the validity of the trial process. As the majority of this court said in R. v. Rajaeefard (1996), 27 O.R. (3d) 323 at 325: “Where the new evidence sought to be admitted is relevant to the validity of the trial process itself, rather than directed at a finding made at trial, it is admissible.”

[44] In R. v. Widdifield (1995), 25 O.R. (3d) 161 at 169, this court explained that the criteria ordinarily applied to determine the admissibility of fresh evidence do not apply when the evidence challenges the validity of the trial process:

The Palmer criteria, do not, however, apply to all situations where fresh evidence is offered on appeal. Those criteria reflect the balancing of competing considerations relevant to the interests of justice when fresh evidence is offered to attack a determination made at trial. The same criteria cannot necessarily be applied where, as here, the fresh evidence is offered for a different purpose. The material sought to be admitted here is not directed at a finding made at trial, but instead challenges the very validity of the trial process.

[45] However, even where the fresh evidence is admissible, on the particular facts of this case, in my view, it does not assist the appellants.

[46] At trial, the appellants deliberately did not raise with the trial judge their concern that he might have been sleeping. Instead they made a deliberate tactical decision to in effect – as respondent’s counsel put it – “hedge their bets”. Instead of confronting the trial judge, after discussions among appellants’ counsel (including a senior litigator at the firm who remained at the office and was not directly involved in the trial per se), they made a deliberate decision not to raise the issue. As Mr. Bradley Sherman put it in his affidavit, they decided to “wait and see how things played out”. Presumably, if the trial result was in their favour they would do nothing; if not, they would have this additional evidence to use as a basis for appeal arguing that they were denied the right to a fair trial.

[47] Even after the reasons for judgment were released, the appellants did not base their motion for a mistrial on the drowsiness of the trial judge nor did they even raise the issue. The mistrial motion was based solely on the fact that the appellants had been denied the opportunity to make oral argument in addition to written argument. Only in this court, for the first time, is the issue raised that the trial judge was inattentive to the evidence.

[48] There appears to be little case law on point. In fact, the parties have only drawn the court’s attention to two similar cases. The first is a case decided by the Australian Queensland Court of Appeal. The second is a recent decision from the Alberta Court of Appeal which was only released several weeks after this appeal was argued.

[49] In the Queensland Court of Appeal case, Stathooles v. Mount Isa Mines Limited, [1997] 2 Qd. R. 106 the allegations were that the trial judge had dozed off or slept during part of the evidence. In making its decision, the court stressed the fact that the alleged drowsiness was not raised with the trial judge at any time during the trial, and dismissed the appeal. Macrossan C.J. noted at p. 111:[2]

A broad discretion does exist for an appellate court to order a new trial in civil cases where a first trial has been unfair … In civil, as in criminal cases, the discretion can be exercised when the first trial has resulted in a miscarriage of justice.

The exercise of the discretion to order a new trial on the basis that a miscarriage of justice has occurred may require a wide view to be taken of the circumstances but it is necessary to remember that our adversarial system requires parties to proceedings to accept responsibility for their own actions deliberately and consciously taken. Decisions taken by parties with a full awareness of relevant matters can strongly influence the way in which the discretion in cases of an alleged miscarriage of justice will be exercised.

[50] Macrossan C.J. then went on to quote from a joint judgment of the High Court of Australia in the case of Vakauta v. Kelly (1989), 167 C.L.R. 568 at 572:

[A] party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

[51] The appellant’s argument in Stathooles was that the determination of the case turned on the credibility of witnesses and that the judge had been especially inattentive during the cross-examination of Stathooles, yet made a finding adverse to him. It was argued that the conclusion reached may have been different had there been no failure on the part of the trial judge to observe and listen to that witness throughout his testimony. In reaching a conclusion Macrossan C.J. noted at pp. 112-113:

The lack of reaction here by counsel fully aware of the situation is of importance from a different point of view. It cannot be accepted that there is an entitlement to do nothing at the time, hold the point in reserve until the decision is given and then, since it has proved to be adverse to the appellants, seek to set it aside.

In the present case, if what is alleged to have occurred is sufficient to constitute a significant defect in the proceedings, it should have been drawn to the attention of the trial judge at the time it occurred. To experienced counsel there should have been no difficulty other than perhaps some slight embarrassment in being required to draw the judge’s attention to the concern that was felt that he may be missing an important feature of the evidence. Experienced professional advocates may be called on to display conduct which will need to be more robust than that in their day to day practice in the courts. There should have been no fear that what needed to be done could not have been handled with the customary courtesy that should, and usually does, prevail between judge and counsel in the hearing of cases.

[52] The second case, R. v. Chan, [2007] A.J. No. 1522, was only released by the Alberta Court of Appeal after this appeal was heard. In this case, during the sentencing hearing, court staff noticed that the trial judge appeared to be sleeping during the appellant’s testimony. The judge was awakened and adjourned the proceedings. The appellant then applied for a mistrial.

[53] During argument on the mistrial, the trial judge advised that he had fallen asleep because of a medical condition. The appellant then filed an affidavit alleging that the trial judge’s posture while sleeping was the same as it had been during critical points of the trial. The trial judge refused to grant a mistrial, stating that lawyers are obligated to raise inattentiveness in a judge when they notice it. He directed another judge to deal with sentencing. The appellant appealed.

[54] Although the Court of Appeal ultimately allowed the appeal on other grounds, it rejected the appellant’s inattentiveness argument for the same reasons discussed above. Speaking for the court, Ritter J.A. stated:

[19] We conclude that Nicholas has failed to demonstrate that he suffered prejudice at the trial stage of these proceedings. The trial judge fell asleep during the testimony at the sentencing stage of the trial, several months after all evidence relating to Nicholas' guilt had been adduced. An accused person must, at a minimum, show a real danger of prejudice before judicial inattentiveness, that is sleeping, will call for the results of his trial to be set aside. [for authority, see Cesan v. Director of Public Prosecutions (CTH), [2007] NSWCCA 273 at paras. 190ff] In this case, Nicholas' affidavit accomplishes, at most, speculation that the trial judge's similar posture during the trial must mean he was asleep.

[20] Nicholas' affidavit does not identify exactly when he noticed this posture, so it is impossible to determine whether any crucial issues were being dealt with at the time. Moreover, it is incumbent upon counsel to immediately draw a trial judge's inattentiveness to his attention, so as to permit replacement testimony or other corrective procedures during the course of the trial. It is not enough, nor is it appropriate, to note the inattentive episode and then hold it on reserve in the event the result at trial was less than what is hoped for. We do not suggest that is what occurred here, but the effect is the same.

Flight attendant charged with setting plane on fire

Andy Simpson

 A 19 year old flight attendant working for Compass Airlines has been charged with setting at least one airplane's toilet on fire, while some believe that he may also have been responsible for another fire that broke out on a flight earlier this spring. According to an Associated Press (AP) report, Eder Rojas pleaded not guilty to starting the fires, which both occurred in the airplane's lavatory, and within only five weeks apart from each other. In each incident, Rojas was involved in putting out the fire that he is charged with having deliberately caused the second one.

U.S. Attorney Keith Reisenauer argued that it appeared as "quite the coincidence" that Rojas happened to be on two flights where fires broke out. Rojas, a resident of Woodbury, Minnesota, had his appearance in a Fargo court earlier this month for his alleged involvement in the fire on a Compass flight from Minneapolis to Saskatchewan (Canada). Although the 19 year old fight attendant was released on bail, he is required to remain under the guardianship of his father, who resides in Chicago. Originally, US prosecutors had asked the judge to keep Rojas in custody for the duration of the trial.

Prosecutors allege that Rojas used a lighter and paper towels in aircraft's lavatory to start the fire, apparently as a way to take his revenge on Compass Airlines, which forced him to fly on the Minnesota to Regina (Saskatchewan) route against his will. The carrier, which is a subsidiary of Northwest Airlines, fired Rojas immediately after the incident. If convicted during the trial-which is set to start on July 21st-Eder Rojas faces up to 20 years in prison.
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James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Firefighter Drives Without Licence


By Chris Hogg
BBC News, Tokyo

The man drove fire engines on almost 100 occasions

A Japanese firefighter has been sacked after driving fire engines and ambulances for more than 20 years without a licence.

The man, who worked in Takaoka City, was only discovered during a routine inspection of licences last week.

According to his bosses, he appeared reluctant to produce his licence, but when he did the inspector realised the man was using his father's licence.
He had tried to hide the photograph with his fingers.

The man told his superiors he had attended driving school but failed the written exam.

Nonetheless he had driven ambulances more than 300 times, and driven fire engines on almost 100 occasions.

He has now been dismissed and is being questioned by police, and his bosses have apologised to local people.

At least, they say, he didn't cause any accidents.

Tuesday, June 10, 2008

Security for Costs -- A Exception to the Impecuniosity Exception

Today's British Columbia Court of Appeal decision in Buchy v. Villars, 2008 BCCA 237 deals with a narrow issue of British Columbia appeal practice but the reasoning has broader application to cases involving impecunious parties.

Security for appeal costs is commonly ordered in British Columbia. A ground for not ordering such security is that the effect of such an order will be to stop a meritorious appeal.

Specifically, under s. 24 of the Court of Appeal Act, an order for security for costs of an appeal can be made. The appellant against which such an order is sought bears the onus of showing why security should not be required: Kedia v. Shandro Dixon Edgson, 2007 BCCA 57 (CanLII), 2007 BCCA 57 at para. 4 (C.A. Chambers), Smith J.A.

Generally, the considerations are the appellant's ability to post security and the likelihood of costs awarded being recovered from it, as well as the merits and the timeliness of the application: Southeast Toyota Distributors, Inc. v. Branch 1997 CanLII 2402 (BC C.A.), (1997), 45 B.C.L.R. (3d) 163 (C.A.); Milina v. Bartsch (1985), 5 C.P.C. (2d) 124 at 125 (B.C.C.A. Chambers), Seaton J.A.; and M.(M.) v. F.(R.) (1997), 43 B.C.L.R. (3d) 98 at 101 (C.A. Chambers), Esson J.A.

In Ontario an impecunious plaintiff can also argue against the posting of security if the effect will be to stop an otherwise legitimate case.

It is important to note that where an appeal is without merit the hesitation to order security will not exist. Put otherwise, an impecunious party with an obviously bad cause will not be allowed to proceed without posting security.

The Court writes:

[12] An appellant which is without the financial ability to post security will not for that reason alone be precluded from pursuing a meritorious appeal. But adverse financial circumstances will generally not defeat an application for security where an appeal is virtually without any merit. A successful plaintiff should not be required to respond to an unmeritorious appeal when there is no real prospect of recovery: Richland Construction Inc. v. Manningwa Developments Inc. (1996), 71 B.C.A.C. 311 at paras. 12-13 (C.A. Chambers), Finch J.A. (as he then was).



Tarek Fatah: Islamists who have a problem with free speech

When Mohamed Elmasry declared a few years ago that there was more press freedom in Egypt than in Canada, it took me some time and effort to lift my jaw up from the floor. However, since then I have become accustomed to the outlandish statements and claims of the good science professor from Egypt.

Now, he has managed to pass on his rare talents to his political apprentice Khurrum Awan.

An Islamist law student, known for his exaggerated and forced sense of victimhood, now threatens Canadian newspapers with legal "consequences," if they refuse to be bullied into printing what Islamist groups want to publish. Referring to the media, Khurrum Awan of the pro-shariah Canadian Islamic Congress, said, "You might be liable for a few million dollars."

Khurrum suggests the mainstream media is ignoring "Muslims" and their message. Ironically, he made this claim as he sat next to the Toronto Stars Haroon Siddiqui. Siddiqui writes a twice-a-week column, more of a diatribe, where he seems to me to be advocating the agenda of the Islamists. This includes supporting shariah law in Canada, admiring the Saudi royal family in a series. just months before the Saudis struck New York on 9/11, making the Iranian regime look like an innocent victim, all while lambasting liberal and secular Muslims, including Québec legislator Fatima Houda-Pepin.

It seems a twice-a-week column on the editorial pages of the countrys largest newspaper has failed to satiate this Islamists' voracious appetite for attention and a sense of entitlement. Perhaps a Toronto Star daily column for Khurrum Awan on its front page might let the newspaper off the hook when it comes to legal bullying and non-stop whining.

It is not just the Toronto Star that has left readers to believe right-wing orthodox and conservative Muslims are the only true face of Islam in Canada. The Globe and Mails only regular Muslim. columnist is Sheema Khan. Khan is a former president of CAIR, the U.S.-based Islamist organization that receives Middle East monies and has been declared an unindicted co-conspirator in a Texas terror trial. Of course, Sheema Khan is no longer with CAIR and has written some excellent op-eds and has a bit more courage to write the truth than the men in the movement have.

There is more. Khurrum's guru, Elmasry, had a regular column in the National Post until the good professor declared all Israeli civilians valid military targets on live TV.

The SUN group of newspapers has a Muslim columnist in Prof. Salim Mansur, but I guess the good professor is too good-looking to be considered an "authentic" Muslim. Similarly, the Hamilton Spectator has a bi-weekly column by Pakistan-Canadian poet and writer Tahir Aslam Gora. I suppose he too is not ugly enough to fit Khurrum's definition of a "brother."

Khurrum suggests there is no place for him to air his views. Really? There are over 12 weekly Arabic newspapers in Canada, including one that is the voice of Hezbollah in Canada. There are 24 newsweeklies in Urdu, seven in Bangla, a dozen in Persian and many more in Turkish and Somali that churn out hundreds of pages every week. In addition, there are at least a dozen TV shows dedicated to Islam, which churn out propaganda for Islamists under the cover of multiculturalism.

So what is the sock puppet complaining about? He has an insatiable appetite for attention and the need to impress the other members of his boy band. How can you cater to the tantrums of a spoiled brat, set up by a puppeteer who chooses to hide behind a burqa while manipulating a naive and guilt-ridden liberal elite that includes Barbara Hall and the three commissars in the B.C. Human Rights Commission?

Khurrum Awan says, free speech in Canada is "really a far-right Republican argument being imported " into this country! If free speech is such a problem for these Islamists, why don't they find soil that is fertile to their authoritarian spirit, which it seems they miss so much.

Why cant we tell the Bin Laden fan club in Canada: "You are free to migrate to Iran or Saudi Arabia... How can we help you?"

Canada is a country where Muslims are respected and accommodated like in no other land on Earth, including Saudi Arabia and Iran. It is immoral for the Islamists to slander my country with the slur of Islamophobia. As Statistics Canada has shown, incidents of racism in Canada are far more likely to affect Christian black Canadians and Jewish Canadians than Muslims. However, truth is the first casualty in this propaganda war being waged against Canada by its own Islamists.

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

Monday, June 9, 2008

Threatening note, severed head left outside Mexico newspaper office

June 9, 2008

THE ASSOCIATED PRESS

VILLAHERMOSA, Mexico - A note threatening a Mexican journalist was found outside the office of a newspaper in southern Mexico on Monday, two days after someone left a severed head there.

Tabasco state Attorney General Gustavo Rosario said the letter was directed at Juan Padilla, editor of El Correo de Tabasco, which recently carried reports about migrant smuggling and kidnapping in the area.

"You are next," the note read.

The head of a man police identified as a low-level drug trafficker was found outside the offices on Saturday. Soldiers later located his body in another part of the city alongside a separate note that said, "This is what will happen to those who go around pointing fingers."

International media rights group Reporters Without Borders issued a statement Monday condemning the threats.

Media groups say Mexico is one of the world's most dangerous places to report, and journalists, especially those covering powerful drug cartels or official corruption, have been threatened, harassed, kidnapped and killed.

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

Tories have little room to grow, Liberals preferred choice in polarized vote: poll

June 9, 2008

Bruce Cheadle, THE CANADIAN PRESS

OTTAWA - A polarized electorate may be tilting toward the federal Liberals at the expense of Stephen Harper's Conservative government, a new poll suggested Monday.

The Canadian Press Harris-Decima survey compared attitudes toward the Tories and Liberals in a head-to-head, two-party format. The telephone poll of just over 1,000 Canadians found that 44 per cent of respondents said they'd prefer a Liberal government after the next election, compared with 37 per cent who preferred the Conservatives.

The trend held true in every region except the three Prairie provinces, where more respondents favoured a Tory outcome.

Harris-Decima's weekly voting intention numbers had the Conservatives at 32 per cent nationally, the Liberals at 31, with New Democrats at 15, the Greens at 12 and the Bloc Quebecois at six per cent.

Since the 2006 election, the Conservatives "have not been able to enlarge their tent," said Harris-Decima president Bruce Anderson - notwithstanding a generally strong economy, fat government coffers and the incumbent's opportunity to control the agenda.

"If anything, the leaning and the second-choice support profile of Canadians is disproportionately headed in the direction of the Liberals right now," said Anderson.

He said the poll, conducted Thursday through Sunday, was premised on the idea of a sharply polarized election campaign in which the ballot question becomes a stark choice between the incumbent Tories and the only practical alternative.

"There's more opportunity underneath the surface for the Liberals than there has been perhaps at any time since the last election - and therefore more risk for the Conservatives if they can't find new and better ways to enlarge the tent of potential supporters."

NDP supporters told Harris-Decima they'd prefer a Liberal government by an almost four-to-one margin (69-18) compared with the Tory alternative, and Green supporters favoured the Liberals more than two to one (58-28).

Only Bloc Quebecois supporters were more favourable to a Conservative outcome, by a 41-32 margin.

The survey, which has a margin of error of plus or minus 3.1 percentage points, 19 times in 20, indicates Prime Minister Stephen Harper beats Liberal Stephane Dion on leadership attributes (35-26). The Tories trail the Grits on questions of front-bench strength (26-20), values (35-29), and ideas for the future (31-28).

Tory leadership is "the strongest card in their hand," said Anderson, but when it comes to tapping into the public mood on policy and values, they appear to be wanting.

"They probably need to do more than just say what's wrong with the Liberal plan."

The survey was released as the Tories released a new ad campaign attacking Dion's carbon-tax proposal, while simultaneously staring down the Liberals on a final major confidence vote in the Commons before Parliament's summer recess.

Liberals were expected to abstain in large enough numbers Monday evening to permit the Tory budget implementation bill - including controversial changes to the Immigration Act - to pass third and final reading.

The Liberals are not bucking the public mood in this respect.

The poll found that just eight per cent of respondents want an election this summer, 27 per cent would prefer a fall vote and 52 per cent prefer an election further down the road.

Neither the Liberals nor Tories have made a case why we need to go to the polls now, said Anderson.

"People are not seeing a crisis of governance right now so they don't see any imminent need or benefit that would be served by having an election."


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

Hate Crimes - Jew, Muslims and ... Catholics Rank High


"It is surprising that hate crimes motivated against religion are directed first at Jews (no surprise), second at Muslims (again no surprise) but third against Catholics (big surprise). Hate crimes are all, in a word, hateful, but I would not have expected anti-Catholic feeling to be so strong -- of course, it may be that the vastly greater number of Catholics than Jews and Muslims make up the bulk of the reason for anti-Catholic hate crime coming third but still it is an eye opener. jcm"

"Hate crime in Canada," published Monday by the Canadian Centre for Justice Statistics, states that hate crimes made up only a small proportion of total offences in 2006, accounting for less than 1 per cent of all criminal incidents reported by police.

The highest proportion of hate crimes -- a full half -- were property-related offences, most commonly mischief.

One-third were violent crimes such as assault.

Here is the breakdown of crimes reported to be motivated by religion:
Offences against Jews: 63 per cent
Offences against Muslims: 21 per cent
Offences against Catholics: 6 per cent

Gas Price Alert!!

Tonight at midnight, gas and diesel prices are down across major markets as follows,

In the GTA gas will be down by 3.1 cents to 131.8 and diesel is down 2 cents to 141.4. In the Ottawa area, gas will be down by 3 cents to 131.5 and diesel down by 2 cents to 143.3 and in the Montreal area gasoline is down 3.9 cents to 144.9 and diesel is down 1.8 cents to 157.6.

CBC invites sports lawyer to mediate dispute over classic hockey song

THE CANADIAN PRESS

TORONTO - CBC is making a last-ditch effort to rescue the beloved theme song to "Hockey Night in Canada."

The public broadcaster announced Monday it has asked Toronto sports lawyer Gord Kirke to mediate negotiations between CBC and Copyright Music and Visuals, the company that controls the theme.

"We feel this song is worth one last attempt to save," CBC sports executive director Scott Moore said in a release. "Canadians are passionate about its association with 'Hockey Night in Canada."'

CBC's licence to use the familiar theme, composed by Dolores Claman and a staple of "Hockey Night in Canada" since 1968, expired last week following the Stanley Cup final.

The parties were in negotiations late last week before CBC announced Friday it would begin the search for a new theme song.

Kirke will act as a mediator if Copyright Music and Visuals agrees, said CBC spokesman Jeff Keay.

"We hope that the counterparty is also willing to see him as a mediator," Keay said.

The broadcaster has always hoped to get a deal on the theme song and that hasn't changed, he added. "Gord is the best in the business and we're hoping that' ll help."

Moore described Kirke as a "tremendous deal-maker" who has represented numerous professional athletes. He's also part of a committee looking for a new general manager for the Toronto Maple Leafs.

"Canadian hockey fans clearly identify this music with their enjoyment of CBC's 'Hockey Night in Canada,"' Kirke said in a release.

"I welcome the opportunity of exploring means by which this can continue."

CBC has already announced a contest to replace the theme, with a $100,000 grand prize going to the Canadian songwriter who submits the most popular original composition.

Keay said the contest will go ahead and the winning music will be incorporated into the program even if an agreement to continue using the original theme can be reached.

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

Employees Generally Not Liable To Employers For Negligence

Some cases, Pinto v. BMO Nesbitt Burns Inc. (2005), 40 C.C.E.L. (3d) 293 (Ont. S.C.J.) and Dominion Manufacturers Ltd. v. O'Gorman (1989), 24 C.C.E.L. 218 (   Ont. Dist. Ct.), for example, have held that an employee can be liable to their employer for damages in negligence (in Pinto the damages claimed were hundreds of thousands of dollars and the award was in the hundreds of dollars – the principle was applied but the result was not so clear). 

Today’s Court of Appeal decision in Douglas v. Kinger, 2008 ONCA 452 makes it clear that such employee liability is extraordinary and will be found only where there is conduct that amounts to willful misconduct or, perhaps, the grossest of negligence.

The Court holds:

 

 [46]          Accordingly, in his view, employees generally should not be liable in tort to indemnify an employer for damages payable to a third party injured by their negligence, except where the employee is “grossly negligent”.  In arriving at this conclusion, LaForest J. referenced the approach established in Germany, which limits the circumstances in which an employee can be held liable for torts to circumstances involving either intentional or grossly negligent conduct.  He also referred to the policy reasons in support of this approach, which are set out by B.S. Markesinis in A Comparative Introduction to the German Law of Torts, 2nd ed. (Oxford: Clarendon Press, 1990) at pp. 574-75:

Thus, damage done by an employee without intention or gross negligence while engaged on a dangerous job is one of the employer’s business risks and must be borne by him alone.  To allot damage done by the employee to the risks of the business, in the absence of gross negligence, is justified by the fact that it is the division of labour within the business which exposes the employee to the risks specific to his work.  Division of labour and organizational structure are matters for the employer whose ownership and power of management enable him to determine how the work of the business is to be organized.  The employee, on the other hand, given his subordinate position, has little or no influence on these factors which are relevant to the damage caused.  Since the employer is better able to deploy technical and organizational measures to reduce the special risks of the business and to take out any necessary insurance, it is right to treat damage as a risk of the business to be borne by him alone unless it is due to the intentional or grossly negligent conduct of the employee.

[47]           Thus, La Forest J. would restrict the circumstances in which an employee is liable in tort to situations of intentional wrongdoing or gross negligence.

 …

[58]          A return to the Lister principle of employee liability without regard to the individual circumstances of each case would create the potential for significant disruption to employer/employee relations.  Obviously, certain types of employment are disproportionately fraught with risk.  For example, in these days of increasingly complex technology, employees are required to handle ever more sophisticated machinery.  Minor employee error can result in major equipment breakdown and, consequently significant damages.  In those circumstances, employment relations would be greatly challenged if an employee was to be held financially liable to the employer for the financial consequences of a momentary lapse of attention.  As LaForest J. observed at p. 340 of London Drugs, “an employee’s capacity to cause loss does not bear any relation to his salary.” 

[59]          Moreover, there is a power imbalance inherent in most employment relationships.  An employee is usually not in a position to bargain at the outset of the employment relationship regarding the terms of his or her potential liability for an act of negligence.  In contrast, an employer concerned about employee negligence is in a position to dictate terms of employment and can contract for the employee’s liability.  As LaForest J. points out at p. 34 of London Drugs, employers are at liberty to establish “contractual schemes of contribution from negligent employees” and such contractual terms would be relevant to a tort claim.    

[60]          In addition, while employees are implicitly, if not explicitly, expected to exercise reasonable care in their employment, there are other means to encourage that care without burdening the employee with an impossible financial judgment.  While the appellant argued that a finding of liability against the respondent will promote responsibility in all workers, I am not persuaded that is so.  Discipline and dismissal are often cited as more useful tools to promote deterrence without the need to impose financial responsibility.  Thus, a policy that supports good industrial relations weighs against the imposition of a duty of care.

[61]          Second, risk and resource allocation are important policy considerations.  These considerations, which are particularly relevant to employment situations, support the conclusion that the employer should be the party charged with protecting his or her own interests.  This is because the employer is generally in a better position than the employee to internalize the cost of ordinary employee negligence, whether as a cost of doing business or by acquiring appropriate insurance.  Generally speaking, employers do so.  This was the view taken in Morris v. Ford Motor Co. Ltd., [1973] 1 Q.B. 792 (C.A.), where Lord Denning emphasized that the employer should bear the liability for employee negligence because the employer enjoys the benefit of the work and should, in turn, bear the burden.  He supports this view by pointing to the fact that the employee’s wages are fixed on the basis that the employer will bear the expense of employee negligence, usually through insurance.  If the employer chooses not to obtain insurance, he or she should still absorb the cost of avoiding harm as a matter of sound resource allocation.  If it was otherwise, and the employee is expected to bear the risk, his or her wages should be increased to cover that risk. 

[62]          In concluding that liability must depend on the individual contractual circumstances of the employment, Seaton J.A. in Overmyer observed at pp. 723-24 that an employer accepts the risk of employee fallibility and takes that fallibility into account in the costs of doing business, supervising the employee, and insuring the enterprise.  Regarding any presumption of employee liability, he stated at pp. 724-25:

If an employee, by lack of care, causes loss to his employer, I do not think that it should be presumed that the employee will be liable, and I do not think that we should look at decisions on other employment contracts for the answer. We should look at the hiring to see what was said and at the circumstances to see what might properly be implied. It follows that this employment and this error must be looked at to see what terms were in the contract and whether they were breached. [Emphasis added.]

[63]          In addition, it would make no economic sense to require both the employer and the employee to obtain and maintain insurance coverage.  An approach that promotes double insurance – even assuming such insurance would be available to every employee – has no social utility: see London Drugs at p. 387. 

[64]          Finally, as I have already noted, a determination that, in the ordinary course, employees are not liable to indemnify employers for ordinary negligence, accords with practice or legislation in many other jurisdictions that have already abolished the right of insurers to subrogate against employees under general liability policies.  

[65]          Accordingly, in addition to my conclusion at the first stage of the Anns test that the parties’ relationship lacks the necessary proximity, I would also conclude that the residual policy considerations at the second stage of the Anns analysis weigh against the imposition of a duty of care.  In coming to this conclusion, I observe that the result could be different if the loss is occasioned by negligence outside the parties’ reasonable expectations, such as one caused by an intentional tort or wilful misconduct on the respondent’s part.  London Drugs also references “gross negligence”, a concept I would leave for discussion in another case where it is raised by the particular facts.  Finally, the result may be different in other situations, such as if the negligence involved a vehicular accident, where different considerations may apply between insurers and, as well, if the defendant had been from a profession where, as the Lister Committee said, “it is accepted prudence” to purchase insurance (Gardiner at 655).

 

Sunday, June 8, 2008

Space Aliens, Justin Trudeau and Rabbi Judah Loew the Maharal of Prague's Golem

Justin Trudeau got some serious ribbing for his tomfoolery about space aliens and the Charter of Rights (he suggested, in answer to a silly question, that any space alien who became a citizen would be entitled to Charter rights).



Trudeau's response showed wit, humour and was legally quite correct. Of course the question was preposterous but it does raise the interesting issue of civil rights for non humans.



Leave aside animals -- as KFC showed animals, if lucky, are entitled to a quick death -- and consider computers.



It seems plausible that machines will, in the foreseeable future, become intelligent in a Turing test sense. And if they do are they entitled to civil rights? Perhaps? The situation reminds one of whether Rabbi Judah Loew the Maharal of Prague's Golem גלמי, could pray -- the answer, of course, must depend on whether the Golem has independent thought.



The base definition of humanity, for the purpose of civil rights, is sentience. That does not mean incompetent humans lose their rights, but it does mean that an intelligent Golem has rights. The form of the being is not the issue -- rather it is the nature of the ghost in the machine.

Liberal Party Policy Meeting At Trent -- Saturday June 7, 2008


The Party is ready... .