Batman: The Dark Knight

Movies exist on multiple levels. They are always a reflection of the society they come from as well as being entertainment. Look at a nation's movies and you see a reflection of its soul.

Thus the Wizard of Oz is a pleasant romp with songs but it also reflects an American world view of the 1930s.

If you doubt that point consider this; Dorothy, a simple American (a child no less), is by accident drawn into the complex world of Oz. By her very arrival she changes the political landscape -- her house crushed a local tyranny -- and despite being innocent and wholesome (and literally a babe in the woods) she exposed the sham regime of the Wizard, crushed the brutal oppression of the Wicked Witch and empowered the otherwise oppressed nations she encountered. And the newly freed nations took their liberation gratefully and exercised their freedom responsibly.

With a movie world like that, is it surprising the difficulties America faced since the 1930's? Iraqis are not munchkins.

Batman: The Dark Knight isn't quite as good a film as the Wizard of Oz but it is pretty well done. It's long -- 2 1/2 hours -- but no audience fidgeting is apparent and one scene follows another in a seamless progression. Technically the film works very well. The acting is solid and the tension quite real. Heath Ledger is especially good as the Joker.

The plot is filled with twists. Suffice it to say the Joker acts as a brutal, insane but astonishing efficient terrorist. The critical point is how this amazingly evil monster is stopped.

Not by the police, who are rotting from the inside. Not by the DA, who has, shall we say, issues. Not by the people, who are in fact noble and worthy but who are quite hopeless at self protection. Rather the monster is stopped by a secretive, hidden force, which works outside the law and, although in fact being incoruptible, is seen as being flawed and corrupt. And this perception is assumed by the hidden force (Batman) as part of its mission.

So, in this fantasy tale terrorists are insane and stopped by a misunderstood secret force working outside the law.

Hmmn, maybe there's something deeper going on here than just summer movie fun.

Batman is a metaphor for CSIS, NSA, MI5; secret powerful organs that are doing work too important to be constrained by law. I don't believe the metaphor is intended (the film was made for money and not indoctrination) but it reflects the inner views of its society.

Know a nation's films and you will know its soul.

End of the Columnist?

This blog had received a fair amount of criticism for being "just reposts" and I suppose there is some justice in that complaint. I tend to select stories that seem worth passing on. My concept is the story choice is, at least in part, a comment on the news.



Whatever.



Actually news commentary used to be reserved to a very few. The big city paper and a few syndicated columnists (maybe 40 voices in all of Canada) were the alpha and omega of comment.



But today there are as many voices as there are blogs. What's more, even columnists like Warren Kinsella and Jonathan Kay blog more pieces than they ever publish in the papers. Many people have argued, often, ironically, in newspapers that this means the future of the columnist is not long term.



Certainly, as the Huffington Post shows, the most interesting and well reasoned columns are often not columns at all but rather blog posts.



The future is the blog.



So does that mean the columnist is doomed? I suspect not -- but the columnist will bear a new name -- blogger!

Best for Tories to show respect for election law

The StarPhoenix (Saskatoon)
Sat 19 Jul 2008

The political dragnet appears to be closing in on the federal Conservatives.

Contrary to their repeated claims, they are the only party to have engaged in questionable expense transfers that led the chief electoral officer to launch an investigation into the party's accounts.

Despite their best efforts to divert attention from this central fact at this week's parliamentary hearings into election spending, it is becomingly increasingly clear that the Tories' spending habits are far from conventional.

What set alarm bells ringing with federal elections officials in 2006, was the indication that the federal party was sending money to individual candidates' campaigns who then sent it right back again as "payment" for advertising.

In this way, the federal Conservative campaign was able to spend about $1 million more than it was legally allowed, because the money wound up on the books of local candidates rather than of the national party.

The second half of the scheme saw the local candidates claiming a 60 per cent rebate for the cost of the ads from the federal government under national election laws. In essence, the candidates were being compensated for money they didn't actually spend.

When this operation first hit the news in April, Conservative House Leader Peter Van Loan confirmed that this was exactly what the Tories were doing, but said it was perfectly legal. What's more, he said, the Liberals were doing much the same thing.

Not so, according to chief electoral officer Marc Mayrand, who appeared before the House of Commons ethics committee this week. After reviewing all of the campaign expense reports for the 2006 federal election and the 2004 election, Mr. Mayrand found that no other party transferred money to candidates and then back to itself.

This is a key part of the puzzle, since national campaigns must report their expenses separately from candidates under federal election law. The Conservatives wound up spending $18 million in the '06 election, just $206,081 less than its spending limit. The cash-back scheme puts it about $1.1 million over the limit, which could put the party in a very tricky position.

At a minimum, the party could be forced to reimburse taxpayers for the money. Furthermore, if the expenses were charged to the party, then it could also be forced to pay fines and party officials could conceivably serve jail time for the offence.

As unlikely as such a scenario seems, there is no doubt that the Conservatives' credibility is taking a direct hit as a result of these findings.

That the Tories would take it upon themselves to bypass federal election law in such a cavalier manner is worrisome enough. That they would then proceed to try to gloss over it as a practice common to all parties suggests that it holds the truth in low esteem.

This impression is only strengthened by the Conservative MPs who used Mr. Mayrand's appearance at the ethics committee hearing as a forum from which to launch further personal attacks on the man. They spent most of two days ignoring the facts of the issue while busying themselves with asking how the information was leaked to the press in the first place.

Not content with that smokescreen, Conservative MP Pierre Poilievre went on to say that Mr. Mayrand's appearance has only further convinced him that the chief electoral officer is out to get the Conservatives. This is particularly odd, given that it was Prime Minister Stephen Harper who appointed Mr. Mayrand to the job.

In fact, what is happening now is only a continuation of a confrontation that began with Mr. Mayrand's predecessor, Jean-Pierre Kingsley. Less than a month before he resigned from his job, Mr. Kingsley wrote to various Conservative candidates asking them to justify their claims for the advertising expenses that have now blossomed into a parliamentary debate.

Those letters went out beginning on Nov. 29, 2006. On Dec. 22 that year, he wrote his letter of resignation to the Speaker of the House of Commons. At the time, there was plenty of speculation about why Mr. Kingsley would resign from a job he appeared to like, particularly when he still had two years remaining in his contract.

In any event, Mr. Harper replaced Mr. Kingsley with Mr. Mayrand, who, too, has concerns now with the Conservatives' spending practices. Obviously, this is not so much a problem with personalities as it is with respect for the law as it is written.

Rather than pursue a vendetta with the country's chief electoral officer, the Conservatives would be far better served to simply respect the process set out under federal election law and make good on whatever they owe.

The longer this charade plays out, the worse it's going to become for Mr. Harper.

Beautiful Rose

Wedding of Ebyan Farah and Ahmed Hussen

The wedding of Ebyan Farah and Ahmed Hussen on July 18, 2008 was a wonderful affair uniting two real leaders in the Somali community. Many Provincial Liberals, Professor Ed Morgan, Mark Persaud and Imam Patel, among many other leaders in the community attended. Best wishes to a fine couple.

Ontario police almost moved in on 2007 Mohawk blockades

Newly released court documents show the OPP was moments away from moving.

The documents include wiretap transcripts that feature OPP Commissioner Julian Fantino telling Mohawk protest leader Shawn Brant in a telephone conversation that, "your whole world’s going to come crashing down" and threatening to "do everything I can within your community and everywhere to destroy your reputation" during the tense standoff between police and aboriginal protesters at blockade sites in eastern Ontario.

The at times heated comments by the province's top police officer fly in the face of the police force's own conduct guidelines in discussions with aboriginal groups that were recommended in the wake of the police killing of Dudley George at Ipperwash Provincial Park in 1995, Brant's lawyer said.

The court documents, released Friday after being freed from a publication ban, are transcripts from Fantino's testimony in August 2007 at Brant's preliminary hearing in a Napanee, Ont., court. Preliminary hearings are held to determine if there is enough evidence to warrant a trial.
Brant is charged with nine counts, including mischief, stemming from the First Nations blockades on Highway 401, Highway 2 and a CN Rail line near the eastern Ontario town of Desoronto on June 29, 2007, which prompted provincial police to close Canada's busiest highway and CN to suspend all rail service on the Montreal-Toronto corridor.

Lawyer calls for provincial review of Fantino's conduct

Brant's defence lawyer, Peter Rosenthal has called on the province to launch a review of the statements and actions of Fantino, who personally came to Napanee at the time of the standoff despite regular contact between protesters and other OPP officers.

Fantino testified at the preliminary hearing that he gave Brant a deadline, and was prepared to move in if the protesters didn't lift the blockades. He said he believed the public interest demanded that the highway be reopened.

"There were in fact plans underway at that time for a forced removal of the blockade, were there?" Rosenthal asked him during his testimony.

"Yes, there was," Fantino replied. "There comes a time when the balance of the greater public good shifts, and the feeling was that under the circumstances, this situation could no longer continue, and we were, in fact, preparing to move on the blockades."

The raid ultimately did not happen, and protesters removed the blockades peacefully later in the day. But the closures snarled traffic and brought commercial rail traffic to a standstill for several hours on a day that featured peaceful protests across the country.

'I think we’re running out of time, Shawn,' Fantino said.

The documents include court transcripts of Rosenthal reading out statements from the police wiretaps of at least three conversations between Fantino and Brant in the early hours of June 29 about removing the barriers.

Rosenthal quoted Fantino as saying: "I think we’re running out of time, Shawn. You know, we’ve been back and forth all night on this, and we’ve got a lot of very angry people who are absolutely beyond themselves with what’s going on, and, you know, we just have to close shop here, and we can’t go on any longer to be honest with you."

Brant is quoted as replying that he needed to speak with several members of the group in order to reach "consensus" on ending the blockade.

"Sometimes the wheels turn slowly, but, you know, it’s important that, you know, we came in here on a consensus and we need to resolve this on a consensus," he is quoted as saying.
Fantino then told Rosenthal he believed that was a "stalling tactic" and that Brant had full control over the protesters.

Rosenthal also brought up the provincial police document titled A Framework for Police Preparedness for Aboriginal Critical Incidents, which was created after the Ipperwash affair.
The document calls for building a "trusting relationship" with "mutual respect" between the culture of aboriginals and police, as well as a need for "special concerns" with respect to aboriginal protests and blockades, given their historical rights.

"And doesn’t, though, that document and many other documents speak to the way you should do that in situations involving aboriginal protesters?" Rosenthal asked.

"Mr. Rosenthal, these are guidelines and they’re principles," Fantino replied. "They’re not a firm and fixed mandated way of doing business."

Police wiretapped calls without judicial approval

The legality of the wiretaps was called into question by Brant's lawyer during his pre-trial hearing, as police did not receive judicial approval for the recordings. Police have said the recordings were legal, citing a little-known emergency provision in the Criminal Code of "interception in exceptional circumstances."

But Brant's lawyer said the police's use of wiretapping in the case was "outrageous."
"How often are the OPP using wiretaps without a judge's permission in the province?" Rosenthal told CBC News in an interview outside the courtroom.

Fantino testified that he was aware the conversations with Brant were being recorded, but said he had no role in the decision to wiretap the calls.

Det.-Const. Douglas Weiss, the lead investigator in the case against Brant, also couldn't say who in the OPP authorized the wiretaps. He also testified at Brant's pre-trial hearing that he has to this date never heard them and never asked for them to be included as evidence.

The OPP only decided that they would disclose the existence of the wiretaps a week before the pre-trial hearing began, Weiss told the court.

In Canada, proceedings from preliminary hearings are usually protected by publication bans in order to protect the accused person's right to a fair trial, especially when the case might later go before a jury.

However, Brant, whose trial is scheduled to begin in January, waived his right to a publication ban in this case, saying he wanted the testimony from the preliminary hearing to be made public.

The judge imposed a ban anyway, after the Crown requested one, but lifted it Friday in Napanee after a CBC News legal team argued for the right to publish the material.

Flocke and Crow

Careful, that sleepy bear might pounce!

Mandatory Retirement Proper In Some Circumstances -- Supreme Court of Canada

New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45, released today, continues the Supreme Court's surprising re-evaluation of employment law.

Melrose Scott, a former miner with the Potash Corporation of Saskatchewan, wanted to stay with the company beyond its mandatory retirement age so he could top up his pension. The company said no, and on Friday, the Supreme Court agreed with that decision. Mandatory retirement laws were struck from New Brunswick's books in 1973, but some exceptions continue to apply, including those related to pension plan contracts or collective agreements. The SCC determined the Potash Corporation made the pension agreement in good faith and not from a position of age discrimination. As a result the mandatory retirement was proper.

Under the provincial Human Rights Code, the age discrimination provisions are expressly declared not to be applicable under s. 3(6)(a) if the employee is terminated pursuant to a “bona fide pension plan”. A Board of Inquiry was asked what constitutes a bona fide pension plan within the meaning of s. 3(6)(a) of the Code. The Board concluded that, once a prima facie case of age discrimination has been made out, the employer had to satisfy the three‑part “bona fide occupational requirement” test from British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”).

On judicial review, the Court of Queen’s Bench set aside the Board’s decision and applied a different test, indicating that the pension plan must be both bona fide and reasonable. The Court of Appeal dismissed the employee’s appeal and allowed the employer’s cross‑appeal. It concluded that, under s. 3(6)(a), the applicable test was whether the plan was subjectively and objectively bona fide. The Supreme Court agreed.

The three‑part Meiorin test is applicable to s. 3(5) of the New Brunswick Human Rights Code, which deals with bona fide occupational qualifications, but does not apply to s. 3(6)(a) of the Code, which addresses “bona fide” retirement or pension plans.

The words “bona fide” in s. 3(6)(a) are used to qualify a different provision in a different context. When used with “occupational qualification” or similar expressions, “bona fide” is a well‑understood and accepted term of art in human rights law, but pensions have been treated differently in most human rights codes because they arose from different protective concerns. In enacting s. 3(6)(a), the legislature was seeking to confirm the financial protection available to employees under a genuine pension plan while ensuring that they were not arbitrarily deprived of their employment rights pursuant to a sham. If both ss. 3(5) and 3(6)(a) anticipated the same analysis, s. 3(6)(a) would be redundant.

To meet the bona fide requirement in s. 3(6)(a), a pension plan must be subjectively and objectively bona fide: it must be a legitimate plan, adopted in good faith and not for the purpose of defeating protected rights. The inquiry is into the overall bona fides of the plan, not the actuarial details or mechanics of the terms and conditions of the plan.

Registration under the New Brunswick Pension Benefits Act is at least one helpful indication of the bona fides of a pension plan. Accordingly, unless there is evidence that the pension plan as a whole is not legitimate, it will be protected by s. 3(6)(a) from the conclusion that a particular provision compelling retirement at a certain age constitutes age discrimination.

The Court held:

[41] In my view, for a pension plan to be found to be “bona fide” within the meaning of s. 3(6)(a), it must be a legitimate plan, adopted in good faith and not for the purpose of defeating protected rights.

Solicitor-Client Privilege -- Dicta from the Supreme Court of Canada

Yesterday’s Supreme Court of Canada decision in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 contains a useful restatement of the importance of Solicitor-Client privilege:

[9] Solicitor-client privilege is fundamental to the proper functioning of our legal system. The complex of rules and procedures is such that, realistically speaking, it cannot be navigated without a lawyer’s expert advice. It is said that anyone who represents himself or herself has a fool for a client, yet a lawyer’s advice is only as good as the factual information the client provides. Experience shows that people who have a legal problem will often not make a clean breast of the facts to a lawyer without an assurance of confidentiality “as close to absolute as possible”:

[S]olicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis.

(R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, at para. 35, quoted with approval in Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61, at para. 36)

It is in the public interest that this free flow of legal advice be encouraged. Without it, access to justice and the quality of justice in this country would be severely compromised. The privilege belongs to the client not the lawyer. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 173, McIntyre J. affirmed yet again that the Court will not permit a solicitor to disclose a client’s confidence.

[10] At the time the employer in this case consulted its lawyer, litigation may or may not have been in contemplation. It does not matter. While the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity: Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 837; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at pp. 885-87; R. v. Gruenke, [1991] 3 S.C.R. 263; Smith v. Jones, [1999] 1 S.C.R. 455; Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., [2004] 1 S.C.R. 456, 2004 SCC 18, at paras. 40-47; McClure, at paras. 23-27; Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, 2006 SCC 39, at para. 26; Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31, at paras. 5 and 31; Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, 2006 SCC 36; Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8. A rare exception, which has no application here, is that no privilege attaches to communications criminal in themselves or intended to further criminal purposes: Descôteaux, at p. 881; R. v. Campbell, [1999] 1 S.C.R. 565. The extremely limited nature of the exception emphasizes, rather than dilutes, the paramountcy of the general rule whereby solicitor-client privilege is created and maintained “[a]s close to absolute as possible to ensure public confidence and retain relevance” (McClure, at para. 35).

[11] To give effect to this fundamental policy of the law, our Court has held that legislative language that may (if broadly construed) allow incursions on solicitor-client privilege must be interpreted restrictively. The privilege cannot be abrogated by inference. Open-textured language governing production of documents will be read not to include solicitor-client documents: Lavallee, at para. 18; Pritchard, at para. 33. This case falls squarely within that principle.

Anonymous

I'm not crazy; I'm just highly energized.

Tories' scurrilous attacks on election boss are ludicrous The Gazette (Montreal) Fri 18 Jul 2008

The Conservative Party of Canada, starting with its leader the prime minister, should find the decency to knock off their scurrilous assault on the integrity of Elections Canada and its commissioner, Marc Mayrand.

The agency, whose mandate is to oversee the conduct of federal elections, holds that it has discovered persuasive evidence that the Conservatives - the party, not the government - fiddled the accounting of their spending in the 2006 election campaign that brought them to power.

This involved what was essentially an internal kickback scheme, it is alleged. The way it apparently worked was that party headquarters would give money to some Conservative candidates, ostensibly for local advertising, but the candidates would immediately send the amount back to headquarters, which then used it for national or regional ads. According to Elections Canada's accounting, the Conservatives overspent their legal campaign-expenditure limit by $1.3 million in this way.

Conservative spinners have maintained, successfully so far, that the party did nothing wrong, and indeed that other parties have done the same sort of thing. But when Elections Canada stood by its conclusion, and when no evidence of similar hanky-panky by others was forthcoming, the Conservative attack dogs turned on Mayrand and his agency, claiming that they were out to smear the party. As one of them put it this week, the agency is "totally preoccupied" with generating bad press for the Conservatives.

This is patently ludicrous. We've said before and still believe that the whole field of campaign spending laws is a mess - such laws are arbitrary, almost impossible to enforce, stifle free speech and lead not to a "level playing field" but to endless accounting trickery.

But the law is the law. The Conservatives ran in 2006 as the squeaky-clean party, fulsomely decrying Liberal malfeasance.

If the Conservatives did, indeed, play by the rules, they should make their case by sticking to the facts of the matter. Instead they are resorting to the classic scoundrel's defence: Impute motives to others, deny everything and make wild accusations.

Summer Flowers

Duty to Accomodate and the Supreme Court of Canada; Today's Decision in Hydro-Québec

There can be little doubt but that the Supreme Court of Canada is making major changes to employment law in Canada.

The Keays decision a few weeks ago clarified Wallace damages -- whether cutting them back or making them effectively unlimited is not clear -- and today's decision in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 addressed the duty to accommodate an ill employee and the interaction between an employer's duty to accommodate sick employee and an employee's duty to do work.

In large part the decision turned on the peculiar facts presented; the employee missed 960 days of work between January 3, 1994 and July 19, 2001. That said the Court clearly limited the duty to accommodate and has made it easier to terminate employment for frustration.

While arising in a Quebec union context the Supreme Court's holding would seem directly applicable to other provinces and employment law generally. (Whether the reasoning is broad enough to apply to a Human Rights context is not immediately obvious -- this author thinks likely not as employment is a very different context that the quasi-constitutional Human Rights context but the issue is open.)

Turning to the details of the case the employee had a number of physical and mental problems, and her record of absences indicated that she had missed 960 days of work between January 3, 1994 and July 19, 2001. Over the years, the employer had adjusted her working conditions in light of her limitations.

At the time of her dismissal on July 19, 2001, the complainant had been absent from work since February 8. Her attending physician had recommended that she stop working for an indefinite period, and the employer's psychiatric assessment mentioned that the complainant would no longer be able to [translation] "work on a regular and continuous basis without continuing to have an absenteeism problem as in the past".

The employee filed a grievance, alleging that her dismissal was not justified. The arbitrator dismissed the grievance on the basis that the employer had proven that, at the time it dismissed the employee, she was unable, for the reasonably foreseeable future, to work steadily and regularly as provided for in the contract. Furthermore, the conditions for her return to work suggested by the union's expert would constitute undue hardship.

The Quebec Superior Court dismissed the motion for judicial review of the arbitrator's decision. The Quebec Court of Appeal set aside the Superior Court's judgment, holding that the employer had not proven that it was impossible to accommodate the employee's difficulties. It added that the arbitrator should not have taken only the absences into account, since the duty to accommodate must be assessed as of the time the decision to terminate the employment was made.

The Supreme Court of Canada disagreed holding the test for undue hardship stated by the Court of Appeal was erroneous. The test is not whether it was impossible for the employer to accommodate the employee's difficulties. Although the employer does not have a duty to change working conditions in a fundamental way, it does have a duty, if it can do so without undue hardship, to arrange the employee's workplace or duties to enable the employee to do his or her work. The test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test.

The employer's duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

The Supreme Court also held that Court of Appeal erred in holding that the duty to accommodate was to be assessed as of the time the decision to dismiss the complainant was made. It is instead necessary to assess the duty to accommodate globally in a way that takes into account the entire time the employee was absent.

Crime and Voters

"The fact that crime is down is quite real; of course, one might argue that's because of the increasingly tough sanctions imposed first by the Liberal and now by the Conservative government.

Regardless, there is a perception that crime is increasing. And perception of crime is critical; disorderly conduct, begging and public intoxication overshadow, at least at the emotional level, a drop in, say, car theft.

A sensible crime policy is based on facts and not emotions. Such a policy must take into account not only Canadians fears of crime but also the actual decrease in crime.

Moreover, most crime is, at root, a mental health issue -- being 'tough' on such crime is meaningless because the criminals are not rational actors and will never be deterred from bad conduct. Holding criminals accountable makes sense only when they have the capacity to make choices.

But saying some 'criminals' are beyond the justice system does not mean they should be allowed to rampage through Canada; rather it means they must be dealt with in another way.

Real reform must require diverting crime caused by drugs and mental health issues from the justice system to the health system, albeit on a mandatory treatment basis. Those who respond can be re integrated in society while those who do not must be separated, perhaps forever, from society. Such reform is far from soft on crime and might actually make a difference.

Crime ought not be used as a tool to scare voters; the issue is far too important for that. jcm"

Less crime could hurt law-and-order Tories at the polls, experts say

July 17, 2008

Steve Rennie, THE CANADIAN PRESS

OTTAWA - Canada's national crime rate fell in 2007 for the third straight year, with declines in everything from homicides and gun crimes to minor property offences, says a new report.

And some say numbers released Thursday by Statistics Canada could strip some political ammunition away from the Conservative government, which has styled itself as the party that's toughest on crime.

"If crime rates continue to come down, then eventually the level of fear will not rise, but it might actually taper off or stabilize, in which case the usefulness of it as a ballot question for the Conservatives will weaken over time," said Bruce Anderson, president of polling firm Harris-Decima.

Statistics Canada says the seven per cent drop in the national crime rate was led by falling counterfeiting offences and theft under $5,000, including fewer break-ins and stolen cars.

Robbery committed with a firearm declined 12 per cent from the previous year, hitting its lowest point in three decades.

The numbers fly in the face of popular media and political messaging, which portrays crime across Canada as rising in both volume and ferocity.

Statistics Canada reports there were fewer serious violent offences such as homicides, attempted murders, sexual assaults and robberies last year. Police reported 594 murders, down slightly from 606 in 2006, following a long-term downward trend that began in the mid-1970s.

Serious assaults, including those with a weapon, basically stayed unchanged in 2007 after rising in each of the previous seven years.

The overall crime rate among youth aged 12 to 17 tapered off slightly in 2007 after rising the year before, as non-violent offences fell and violent crime remained stable.

Prime Minister Stephen Harper has dismissed empirical evidence that crime rates are actually falling, suggesting that emotion is a more telling barometer. Harper has cast those who point to statistics to oppose elements of the Tory law-and-order agenda as apologists for criminals.

"(They) try to pacify Canadians with statistics," he told party supporters in January.

"Your personal experiences and impressions are wrong, they say; crime is really not a problem. These apologists remind me of the scene from the Wizard of Oz when the wizard says, 'Pay no attention to that man behind the curtain."'

That assertion was echoed Thursday by Justice Minister Rob Nicholson.

"We are not governing by statistics. We are governing by what we promised Canadians in the last election and what Canadians have told us," he said in an interview.

A keystone of the Tories' fall agenda is expected to be tackling violent youth crime, one trouble spot in the Canadian record. It has been increasing steadily over the last two decades, said Statistics Canada, and the rate in 2007 was "more than double that reported in the mid-1980s."

Last week, Harper reiterated his party's pledge to deal with the "escalating problem of violent youth crime" when Parliament resumes in the fall.

"We must send a message - and we will - that we hold young lawbreakers responsible for their behaviour. That is what we intend to do this coming session," he told party faithful at the Calgary Stampede.

Cross Examination on Affidavit

Last week's Superior Court decision in Silver v. Imax Corporation, 2008 CanLII 34361 (ON S.C.) sets out the test for when a question is proper on cross-examination on an affidavit.



The Court holds:



[12] Typically, the test for whether a question should be answered in an examination for discovery is whether the information to be elicited has a semblance of relevance to the issues in the action. The same test is applicable to cross-examinations of deponents in motions. In such cross-examinations, a deponent may be asked questions not only about the facts deposed in his or her affidavit, but also questions within his or her knowledge which are relevant to any issue on the motion. Master Macleod in Caputo v. Imperial Tobacco Limited., (2002) 25 C.P.C. (5th) 78 (affd. On appeal at 33 C.P.C. (5th) 214 put the rules succinctly as follows:



* If you put it in, you admit its relevance and can be cross-examined on it at least within the four corners of the affidavit;



* You can't avoid cross-examination on a relevant issue by leaving it out;



* You can't get the right to cross-examine on an irrelevant issue by putting it in your affidavit; and



* You can be cross-examined on the truth of facts deposed or answers given but not on irrelevant issues directed solely at credibility.

Gas Price Alert

Gas and diesel are down sharply again this evening across major markets in Central Canada.

In the GTA, gas is down 3.1 cents to 125.7 and diesel is down 2.3 cents to 136.4. In the Ottawa area, it's down to 123.2 and 137.7, that's a decrease of 3.6 and 2.3 cents respectively. In Montreal, gas is down to 137.5, a drop of 3.1 cents and diesel is down 2.6 cents to 151.1.

Bradford Court

Sitting in the Bradford criminal court I am struck by the lack of "majesty". Truth be told, the place has the feel of a rather shabby welfare office. The holding cells, for instance, are in an unmarked converted house next door to the court.

The judge, Crowns and lawyers struggle mightily to impress upon the accused -- a mixed crowd, to say the least -- that breaching the rules of society is a "bad thing". But the beat-up building and water dripping from the ceiling caught in garbage baskets defeat the purpose.

The accused's dress is almost all the proof of failure needed. Ripped tees (one woman, clearly a drug addict) in a bikini top speak volumes.
The accused here are a sad mix of the mentally unstable, chronically addicted and socially excluded. These are not people for who punishment and repentance will work. Some spend more time in prison than at liberty.

Our system is designed to deal with rational actors in a dignified setting. That's just not reality.

Landlord's Consent to Assign Commercial Lease

It is common for commercial leases to permit assignment with consent of the landlord provided the consent is not unreasonably withheld.



Today's Superior Court decision in Cvokic v. Belisario, 2008 CanLII 35269 (ON S.C.) discusses when withholding consent will be unreasonable.



In summary, the withholding will be unreasonable where it is motivated by a purpose collateral to ensuring the existing lease is fulfilled -- for instance to obtain a settlement of a lawsuit or to improve the terms of the existing lease.



The Court writes:



[25] The burden is on the tenant to satisfy the court that the refusal to consent was unreasonable. The question is whether a reasonable person would have withheld the consent.



[26] The landlord is not entitled to require amendments to the terms of the lease that will provide it with more advantageous terms. I find the landlord tried to do that in the facts before me. The refusal will be unreasonable if it was designed to achieve a collateral purpose or benefit to the landlord that was wholly unconnected with the bargain between the landlord and tenant reflected in the terms of the lease.



[27] I find as a fact that the landlord tried to achieve a collateral purpose by insisting on this lawsuit being dismissed before the consent would be given. This, I find, is unreasonable withholding of consent.



[28] I find that the landlord acted unreasonably because it is not conceivable to me that they would not consent to getting rid the tenant whom they thought was a thorn in their side. I find that the landlords did not want the space in question to be a perpetual pizzeria. See Exhibit #2, Tab 93, page two of two.



[29] I find that they were being unreasonable when they wanted to be able to evict on any default any option to be theirs and theirs alone. I find that John wanted to change the terms of the existing lease and wanted to limit it to a year.

Canada's Crime Rate Keeps Falling

OTTAWA -- The national crime rate in Canada dropped in 2007 for the third year in a row, continuing an overall downward trend since peaking in 1991, Statistics Canada said in a report released Thursday.



The agency said there was a 7% drop in the crime rate in 2007 from the previous year, driven mainly by decreases in counterfeiting and property offences such as thefts and break-ins.



Following two years of increases in most serious violent offences, police also reported fewer homicides, attempted murders, sexual assaults and robberies last year.



The data, which come from police reports, revealed that crime rates were down in all provinces and territories except Newfoundland and Labrador, the Northwest Territories, and the Yukon.



Western Canada and the northern territories had the highest crime rates in the country, continuing a pattern observed over the past 30 years.



Homicides in Manitoba, for instance, were at their highest rate ever since recording began in 1961. There were 62 homicides reported in the province last year, 23 more than in 2006. The province also reported a dramatic 53% increase in attempted murder last year. Most of the increase occurred in small urban and rural areas, Statistics Canada said.



And, although Saskatchewan's crime rate declined by more than 3%, it still had the highest overall crime rate, as well as the highest rate of violent crime. For the fourth year in a row, the lowest provincial crime rates occurred in Ontario and Quebec.



While British Columbia had the highest property crime rate, the homicide rate last year was at its lowest in more than four decades.



Authorities reported declines in homicides in every province except Manitoba, Ontario, and New Brunswick.

Taxe sur le carbone : une grande respiration

Guilbeault, Steven

Le chef du Parti libéral du Canada, Stéphane Dion, a annoncé à la mi-juin, un élément central de la plateforme libérale lors des prochaines élections fédérales, soit la taxe sur le carbone. La réaction de Stephen Harper ne s'est pas fait attendre. Le premier ministre du Canada a déclaré que "les Canadiens allaient se faire four..."(sic). Au-delà des commentaires complètement grossiers de la part du premier ministre, il est intéressant de se pencher sur cette mesure.

Qu'est-ce qu'une taxe sur le carbone? Essentiellement, c'est une taxe sur les émissions de gaz à effet de serre. Sa mise en application comporte un avantage majeur : elle implique tous les utilisateurs, selon le principe du pollueur-payeur, du conducteur de VUS à la pétrolière de l'Alberta, en passant par la centrale au charbon de l'Ontario.

Je vous entends me dire que nous sommes déjà très taxés, que les prix de l'énergie, du pétrole et de la nourriture ne cessent de grimper et que, de toute façon, ce genre de mesure ne donne aucun résultat...

Précisons tout d'abord que la taxe proposée par M. Dion est à "revenu-neutre", ce qui veut dire que l'application de cette taxe n'augmentera pas notre fardeau fiscal. Cette taxe sera donc accompagnée d'une réduction du taux d'imposition, d'une nouvelle prestation fiscale universelle pour enfants (un montant de 350 $ par an par enfant s'ajoutera aux prestations déjà en vigueur), de crédits d'impôt additionnels et d'incitatifs pour les entreprises afin d'encourager l'innovation et l'investissement verts.

La taxe sur le carbone est déjà appliquée par exemple en Norvège, en Suède et bientôt en Colombie-Britannique. Au Québec, cette taxe est en vigueur depuis la fin 2007 et va permettre d'amasser des fonds de 200 M$, pour financer le transport en commun, des programmes d'efficacité énergétique pour les individus et les entreprises, ainsi que d'autres programmes pour réduire la pollution.

L'idée d'une taxe sur le carbone gagne d'ailleurs en popularité, et pas toujours là où on pourrait le penser... La prestigieuse revue américaine The Economist, une revue très près des milieux d'affaires, s'est prononcée en faveur d'une telle taxe et même le président de l'Association canadienne des producteurs pétroliers ne s'y oppose plus. C'est tout dire!

Graeme Hamilton: Shredded ballots mean we may never know the truth about Quebec referendum

MONTREAL — Sometimes, it is revealing what isn't covered by the media.



Quebecs chief electoral officer began shredding the 1995 sovereignty referendum ballots Tuesday, ensuring that we will never know the truth behind allegations of separatist vote-rigging.



In the aftermath of the 1995 vote, which ended 50.6% to 49.4% for the No side, it emerged that some heavily federalist ridings had experienced unusually high rates of spoiled ballots. In Chomedey, for example, 12% of ballots were rejected, more than six times the provincial rate.



Scrutineers appointed by the governing Parti Québécois had apparently been instructed to reject as many No votes as possible. One No representative told The Gazette at the time that No votes were being rejected "for the most ridiculous little reasons.... You make a check mark and it looks more like a V and it was rejected. You made an X and one line trailed off so it wasnt as long as the other and it was rejected. With the race so tight, it is conceivable that enough rejected ballots could have tipped the balance.



Prosecutions of two scrutineers ended in acquittals and charges were dropped against 29 others. Michael Bergman, a Montreal lawyer, went to court to preserve the ballots so a recount could be conducted, but his bid failed in April, and Quebec Superior Court cleared the way for the destruction of the ballots.



The Gazette has a front-page photo today of ballots headed for the shredder, and Radio-Canada had an item deep into its newscast Tuesday evening. But the major French-language newspapers are silent.



The highly debatable notion that the No side bought its victory with a giant rally in Montreal has entered popular folklore in Quebec — but nobody, it seems, wants to be reminded of Yes-side skullduggery. Norman Webster, a former editor-in-chief of The Gazette, has called the incident "a fraud that could have cost us our country." Now, it is not only the ballots that are being shredded, but any hope of getting to the bottom of the fraud.

Montreal law firm Braman Barbacki Moreau joins the national law firm of Miller Thomson Pouliot

Canada News-Wire
Thu 17 Jul 2008
Dateline: MONTREAL, July 17
Time: 07:00 (Eastern Time)

MONTREAL, July 17 /CNW/ - The law firm of Braman Barbacki Moreau is joining the Montreal office of Miller Thomson Pouliot.

Established in 1973, Braman Barbacki Moreau is one of the best known "boutique" law firms in Montreal, specializing in the structuring of complex international real estate investments as well as in tax and estate planning and in commercial litigation.

"The arrival of this group of six respected and highly dynamic lawyers deepens our practice in our core businesses" said Louis-Michel Tremblay, Managing Partner of Miller Thomson Pouliot in Montreal. The Chair, Gerald Courage, added "Our national firm sees this as a highly complementary and a natural addition for the Montreal office and we are confident that it is a great move for everyone". "For us, this is the right time and the right place" remarked Fred Braman, Managing Partner of Braman Barbacki Moreau. "Our lawyers are all of a national calibre and this platform allows us all to now carry our practice to that level".

The office move will occur at the beginning of September 2008. With this transaction, Miller Thomson will total over 500 professionals in 9 offices Canada-wide, including 60 in the Montreal office.

© 2008 CNW Group Ltd.

Canadian premiers call on Harper to build on residential school apology

QUEBEC — Canada's provincial and territorial leaders are calling for a meeting with Prime Minister Stephen Harper to deal with native issues.

Quebec Premier Jean Charest said he and his counterparts hope to build on the momentum from Ottawa's residential school apology and address concerns over the future of aboriginal children.

"The apology presented by the prime minister of Canada is extremely powerful," Charest said Wednesday after the Council of the Federation met with native leaders in Quebec City.

"I think a very important number of Canadians have stood up and taken notice. All of a sudden we're conscious that the relationship we have with our native people, with the Inuit and Metis is important, and it needs to be addressed."

Charest, host of the three-day premiers summit, said the 13 provincial and territorial leaders want the meeting with the prime minister to focus on youth issues, such as education.

But he pointed out that everything would be on the table.

"We want a private meeting where we can sit down with Mr. Harper and have a discussion about the way forward," said the Quebec premier, who was flanked by aboriginal leaders for the announcement.

Assembly of First Nations national chief Phil Fontaine said he hopes Harper will accept the invitation.

"We're now entering the post-apology era and we see the Council of the Federation as an important participant," he said.

"It's important that the federal government be at the table. Their absence, of course, would cause any future work that we do together to fail."

Fontaine said targets on the $5-billion Kelowna Accord are still valid, and he hopes it's part of any discussions with the prime minister.

The Kelowna Accord, which calls for spending on programs to improve aboriginal quality of life, received support from all provinces and territories.

The plan focuses on issues such as health care, education, housing and social services.

A private member's bill put forward by then-prime minister Paul Martin received royal assent last year, but the Conservative government has yet to spend money on the program.

Fontaine said aboriginal groups are still committed to the Kelowna Accord.

"That represents a lot of hard work," he said of the plan. "Eighteen months of planning, it engaged about 1,000 people, and it was focused on closing the gap on the quality of life."

Asked if he would be putting Ottawa in a difficult position by bringing up the Kelowna Accord, Charest said the federal government does not have anything to be embarrassed about.

"The Kelowna Accord is there, it happened. . . it reflects the sum total of efforts of native leaders and ourselves in addressing the issues that are relevant to the communities," he said.

"We're not setting down any ultimatum, we're saying let's sit down and figure out the way forward together."

Mary Simon, president of Inuit Tapiriit Kanatami, said children must be a key priority.

"It's not the only issue that's facing us, but if we can address the conditions that our children are facing within our communities and our schools, then that will start to help heal our people and bring back our people and our languages," Simon said.

"We are calling on the prime minister and the government of Canada to be our partners in building this new relationship on an urgent basis."

Meanwhile, a spokesman for the Prime Minister's Office said he doesn't expect the government to move the Kelowna Accord forward anytime soon.

Woof

Conrad Black and the U.S. Supreme Court

"Call it a long shot or a Hail Mary, you gotta admit Black don't quit"

Conrad Black's lawyers are preparing the legal groundwork to present his case to the U.S. Supreme Court, but first filed another appeal with the three Seventh Circuit judges who unanimously upheld his criminal conviction last month.

"We're not going to leave any stones unturned," Alan Dershowitz, the high-profile Harvard law professor and author who is reviewing Lord Black's brief, told the National Post. "There is a high likelihood the case will at least be presented to the Supreme Court for possible review."

The first salvo is a 14-page rehearing petition filed on Wednesday in which Lord Black's lawyers asked the same three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in Chicago to reconsider its decision in order to correct where the panel has "overlooked or misapprehended" important points of laws. According to the filing, "because the court based its legal conclusions on a demonstrably mistaken view of the record, we urge the panel to reconsider its ruling."

At the same time, the rehearing petition also asked that all 11 active judges comprising the Seventh Circuit appeals court review the June 25 decision rendered by circuit Judges Richard Poster, Michael Stephen Kanne and Diane S. Sykes.

"We'll be considering our Supreme Court options afterward if we are unsuccessful with the rehearing petition," confirmed Andrew Frey, the New York-based lawyer spearheading Lord Black's appeal.

Legal analysts call Lord Black's latest legal gambit a long shot, saying the appeals court is under no obligation to review the case. And although the former chairman and chief excutive of Hollinger International Inc. has the right to ask, his chances of securing another appearance before the same appellate panel that dismissed some of his conduct as "ridiculous" in a decisive 16-page ruling are slim. Even Prof. Dershowitz concedes the three-judge panel is "not likely to admit they made errors and were wrong."

"We're now in that zone of marginal likelihood of success," says Jacob S. Frenkel, a U.S. based criminal lawyer. "The likelihood of Conrad Black having an audience before another panel of any appellate court judges is remote at best."

Lord Black and three former Hollinger executives were convicted last year of three counts of fraud involving US$6.1-million from the Chicago-based publishing company. Lord Black was also found guilty of obstruction of justice and began serving a six-and-a-half year prison term at Coleman Correctional Facility in Florida on March 3.

David Radler, Lord Black's former lieutenant, is currently serving a 29-month prison sentence at Moshannon Valley prison in Pennsylvania as part of his plea bargain agreement with the U.S. government.

Sources say Lord Black's legal team is also actively pursuing a possible transfer to a British penitentiary where the threshold for early parole is lower than in the United States.

The former media baron is required to serve up to 85% of his sentence before becoming eligible for parole, which is about five years and four months. Under British law, only 50% of a sentence must be served before an offender with a prison term of four years or more can apply to the parole board for a Discretionary Conditional Release.

In Canada, offenders are required to serve one-third of the sentence before qualifying for full parole. Lord Black does not qualify for a transfer to Canada because the Montreal-born businessman is no longer a Canadian citizen. He can seek a transfer to a British jail, which are much older and less comfortable but considered by many to be more civilized and humane than their U.S. counterparts.

Sources say Lord Black is still "hopeful that justice will be done," and that "what's kept him going is the belief that it will all be corrected."

Prof. Dershowitz said "we're deeply involved in trying to think of whether we can undo this injustice."

The Harvard professor, who has represented former football star O.J. Simpson, Wall Street financier Michael Milken, boxer Mike Tyson and the late hotelier Leona Helmsley, said "there are grounds for possible appeal [at the Supreme Court] and we're carefully evaluating each of them."

According to Prof. Dershowitz, there are six criteria for granting a review at the U.S. Supreme Court, among them interpretation of federal statutes and conflicts between circuit courts, as well as constitutional issues.

Each year, the highest court in the U.S. hears between 75 to 100 cases but receives tens of thousands of applications.

For his part, Mr. Frenkel is not optimistic of Lord Black's chances with the Seventh Circuit or the U.S. Supreme Court.

"I'm not expecting there to be some great revelation. It is reasonable to believe that the next major event in the trial and legacy of Conrad Black will be his release from prison after he completes his full sentence," he said.

Paul de Maleco

Don't follow the trail others have created; create your own trail for others to follow.

Lord & Taylor Comes To Canada

"Well, the Bay was already American so there isn't any real change; and the Bay did have some earlier American roots -- see the illustration"

Module body

By David Friend, The Canadian Press

TORONTO - The Hudson's Bay Co. has been bought by the owner of American department store chain Lord & Taylor, which plans to expand its brand into Canada and give a fresh approach to both The Bay and Zellers.

HBC, which has a 338-year history that contributed to the exploration and development of large parts of Canada, has been under American ownership since 2006, when it was bought for $1.1 billion by entrepreneur Jerry Zucker.

Since Zucker's death in April, there had been speculation that HBC would be sold.

The buyer is New York-based NRDC Equity Partners, which also owns the Lord & Taylor group, Fortunoff jewellery stores and Creative Design Studios home-decor chain.

The combined company, to be known as the Hudson's Bay Trading Co., has 75,000 employees and annual sales totalling more than US$8 billion.

Richard Baker, a principal with the new owner, becomes CEO of Hudson's Bay Trading Co. and 38th governor of the Hudson's Bay Co.

"Enormous potential exists by upgrading the offerings at both the Bay and Zellers and by bringing Lord & Taylor, Fortunoff & CDS into the mix," Baker said in a statement.

He said Lord & Taylor is set to launch 10 to 15 stores in Canada, filling a gap in the Canadian retail landscape between the mid-market Bay department stores and the upscale Holt Renfrew chain.

NRDC, which bought Lord & Taylor for $1.2 billion in cash in 2006, said it will make a new investment of $500 million in the combined company.

"Over the past two years we have made a big effort to move Lord & Taylor up market and bring in better vendors, better marketing and better advertising," Baker said in an interview.

"We are not closing any Bay stores to open up Lord & Taylor, and the primary focus is to improve The Bay business."

At Zellers, he said there's an opportunity to provide more branded product, better merchandising and a more exciting offering at competitive pricing. He said the revised approach is aimed at creating "a more interesting and exciting place to shop."

NRDC formerly was a minority owner along with Zucker's InterTech Group in Hudson's Bay Co., which was founded in 1670 and is the oldest continually operating company in North America.

Interpretation of Statutes

Today’s Court of Appeal decision in  Blue Star Trailer Rentals Inc. v. 407 ETR Concession Company Limited, 2008 ONCA 561 provides a handy summary of the modern view on interpreting statutes.  The Court held, referring to Sullivan and Driedger on the Construction of Statutes (4th ed.) without explicit citation:

[22]          The Supreme Court of Canada has repeatedly endorsed Driedger’s approach to statutory interpretation.  Driedger’s modern principle is as follows:

Today there is only principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and intention of Parliament.  Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559 at para. 26.

[23]          This approach to statutory interpretation – sometimes referred to as the textual, contextual or purposive approach – requires an examination of three factors:  the language of the provision, the context in which the language is used and the purpose of the legislation or statutory scheme in which the language is found.

[24]          When applying this approach, it makes sense to start by examining the ordinary meaning or meanings of the words being interpreted.  The ordinary meaning is “the natural meaning which appears when the provision is simply read through”:  Canadian Pacific Airlines v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724 at 735, cited in Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.:  Butterworths Canada Ltd., 2002) at 21.

[25]          After considering the ordinary meaning of the language involved, the court should consider the context in which the language is found as well as the purpose of the legislation or the statutory scheme.  If this analytical approach yields a plausible interpretation then the court need go no further and should adopt that interpretation.  It is only when there remains genuine ambiguity between reasonable interpretations that the court should resort to other principles of statutory interpretation:  see Bell ExpressVu at para. 29.

 

Gas and Diesel Price Alert!!

Gasoline and diesel prices will be down significantly tonight at midnight across major markets in Central Canada.

In the GTA, gas is down 2.4 cents to 128.8 and diesel is down 1.8 cents to 138.7. In the Ottawa area gas will be down 3 cents to 126.8 and diesel will be down by 1.8 cents to 140.0. In the Montreal area the gas is down 3.2 cents to 140.6 and diesel will be down to 153.7, that is a drop of 1.6 cents.

Ancient bones could help combat TB, say scientists

"When people work together ... ."



JERUSALEM - A team of German, Israeli and Palestinian researchers is studying ancient bones found in the biblical city of Jericho for clues that could help scientists combat tuberculosis.



"We see a re-emerging wave of tuberculosis all over the world and ... perhaps learning from the past will help us understand the present," Andreas Nerlich, professor of pathology at Munich's Ludwig-Maximilians University said on Monday.



Nerlich and other researchers in the team have begun studying 6,000-year-old bones unearthed in Jericho more than a half-century ago by British anthropologist Kathleen Kenyon, in what is now the occupied West Bank.



Many of the bones show signs of tuberculosis, suggesting the disease afflicted a significant proportion of the population of the ancient world.



Experts believe the infectious bacterial disease, which usually attacks the lungs, could have originated about 10,000 years ago in the first villages and small towns in an area stretching from the Gulf through the Nile delta.



Researchers said preliminary work suggests there is sufficient DNA in the bone samples to provide clues to how tuberculosis evolves and help experts find new ways to fight it.



Ziad Abdeen, a Palestinian who heads the nutrition and health research institute at al-Quds University near Jerusalem, said the project shows how Israeli and Palestinian academics had learned to cooperate, while politicians still had not.

Mark Spigelman, professor of paleopathology at Jerusalem's Hebrew University and head of the Israeli team, said the project was one of the school's 11 joint projects with al-Quds.

Another High Ranking Liberal in Moose Jaw

Former Finance Minister and current Wascana MP Ralph Goodale held a pair of round table discussions in Moose Jaw Tuesday evening about the issues facing Saskatchewan as the country moves towards the next election.



Visiting our radio studios, Goodale said his party is working to develop the Liberal Party's platform. He says one set of issues will centre on how you build a strong economy and how you build a clean environment at the same time.



"Our policy proposal will say very clearly to Canadians, 'yes you can have both.' It will require some changes in how we all function but we can have a very successful, prosperous economy especially in here in a resource rich province like Saskatchewan... and we can do so in a way that is environmentally sound."



He said other issues will centre on how to build fairness into society, how we fill in the gaps between aboriginal and non-aboriginal Canadians, the proper management of the economy and the integrity of the current government.

Summary Judgment Explained -- New Brunswick

Rule 22 of the New Brunswick Rules of Court is similar to Rule 20 in Ontario. It allows for summary judgment where:

22.04 Disposition of Motion

Where No Defence or Merit to Action

(1) Where, on a motion for judgment, the applicant satisfies the court that

(a) there is no defence or merit to a claim or part thereof, and

(b) the applicant is entitled to judgment, the court may grant judgment.

The recent Court of Appeal decision in Kennedy v. HSBC Bank Canada, 2008 NBCA 48 reviews the law on summary judgment and gives a useful overview especially where the main issue is whether the moving party has met their burden of going forward.

The Court holds:

[11] This Court’s decision in Cannon v. Lange et al. (1998), 203 N.B.R. (2d) 121, [1998] N.B.J. No. 313 (QL), not only articulates the purpose of Rule 22, to “secure the just, least expensive and most expeditious determination of [the] proceeding on its merits” (para. 8), but also the ways by which the application of the Rule accomplishes that purpose. While admonishing “motion judges not to be unduly timid where the circumstances demonstrate a clear absence of merit” (para. 9), Drapeau, J.A., now C.J.N.B., recognized that notwithstanding the rule “confers a wide [judicial] discretionary power”, the exercise of such discretion requires the application of a “stringent test before the drastic remedy of summary judgment can be granted” (para. 16). He emphasized such test in para. 17: The wording of Rule 22.04 sets the standard at a high level. It provides that the court may grant judgment only where there is no merit to the defence or no merit to the claim, or part thereof. The wording leaves no room for anything but a very stringent test. Practical experience with the civil process inspired the trial lawyers and judges who drafted Rule 22.04 to choose its wording. The wording reflects their conviction that, except in clear cases, the best truth-finding device is a trial.

[12] Relating the Cannon v. Lange stringent test to the circumstances of this case, the motion judge was required, before granting summary judgment, to find there was no merit to Mr. Kennedy’s defence, that is, no question about what a trial judgment would be, and that HSBC’s case had to be unanswerable.

[13] In that context, the motion judge had an obligation “to consider not only the pleadings, but also any admissible evidence”: see paras. 21 and 22 in Cannon v. Lange. Ultimately, “the Court’s ability to [determine the motion] will necessarily depend on the nature and quality of the evidentiary record which the parties can place before it”.

[14] Concerning either party’s preparation when seeking or opposing an application for summary judgment, Cannon v. Lange bluntly alerts each to the threshold that must be hurdled for success. Paragraphs 23 and 24 prescribe:

Common sense should move the parties to put their best foot forward on a motion under Rule 22. Such a course of conduct is particularly wise for a respondent, since he or she has the most to lose. As stated by the Ontario Court of Appeal in 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 at 557 in a vernacular expression, the respondent "must lead trump or risk losing." It will rarely be sufficient for the respondent to promise that evidence, which is admissible pursuant to Rule 39.01(4), will be produced at trial: absent a compelling explanation, the respondent is required to produce admissible evidence which will prevent a conclusion that the action or defence is bereft of merit. I have no doubt that, where the ends of justice require, the court will allow all appropriate accommodations including leave to file further affidavit evidence.

It is up to the moving party to satisfy the court that an apparent factual controversy or credibility conflict is a sham. If material facts remain genuinely in dispute after the court has taken a hard look at the evidence and the pleadings, it is not appropriate to grant summary judgment (see RCL Operators Ltd.). Likewise, where there is an unresolved genuine credibility conflict relating to a material question, it is not appropriate to grant summary judgment.

Legault runs for Liberals

Brigitte Legault is the federal Liberal Party's candidate for the Vaudreuil-Soulanges riding.

Raffy Boudjikanian

raffy.boudjikanian@transcontinental.ca

The federal Liberal Party's Vaudreuil-Soulanges riding association president Brigitte Legault will have bigger shoes to fill soon, as she has just been announced as the area's candidate for upcoming elections.

"I looked at the support, I looked at my team," said the long-time Liberal party activist, "we accepted the offer (by party chief Stéphane Dion), and I decided to run."

The riding includes off-island municipalities such as Vaudreuil-Dorion, Hudson, Pincourt, Rigaud, Notre-Dame-de-L'Île, L'Île-Perrot and St. Lazare. A 2006 Statistics Canada census shows populations are on the increase in many of these cities. St. Lazare shot up 32 per cent, and Vaudreuil-Dorion's rose by 29 per cent.

"It's growing," admitted Legault, saying she expects the maintenance of road infrastructure to become key in the area as more and more people off-island and use roads everyday to commute to Montreal for work.

However, she said she sees two key issues for Vaudreuil-Soulanges electors. The first is the restoration of the Soulanges Canal, a project which has been lingering for a long time. The Canal, which runs along several of the off-island municipalities, is viewed by several of them as a key future tourism development project, but its walls, locks, bridges and remaining infrastructure are in need of renovation. "We need to give the final push for that project," said Legault.

Legault's other priority is to get rid of the roughly 2 million containers that dot a yard alongside Highway 20 West that used to belong to CP.

Legault said she hopes to start a round of talks with electors in the area soon, in order to clarify some of the lingering questions on their minds about the Liberals' recently announced Green Shift plan. "I think the plan needs more explanation," she told The Chronicle.

"Yes, we're going to be taxing on carbon," she admitted, but she said rival party spin is trying to make voters forget that, under Green Shift, they would also receive tax breaks in other areas, such as payroll.

Legault said she expects the Conservative Party to put the same kind of spin it has been applying nation-wide on Vaudreuil-Soulanges voters, but she is not afraid. "I have no problem with that," she said.

Vaudreuil-Soulanges is currently held by Bloc Québecois MP Meili Faille, though it has had an overwhelmingly Liberal history prior to her 2006 win. That year, Canadian astronaut Marc Garneau ran for the Liberals and finished in second place with 28.44 per cent of the vote.

Conservative Party Senator and Minister of International Trade Michael Fortier has announced he intends to run in that riding for his party.

Electoral officer tells MPs of $1.3 million in suspect Tory campaign expenses

Electoral officer tells MPs of $1.3 million in suspect Tory campaign expenses

By: Tim Naumetz, THE CANADIAN PRESS

OTTAWA - The Conservatives were the only party in the last two federal election campaigns to conduct the kind of expense transfers with candidates that led to an investigation by the federal elections commissioner and a search-warrant raid on Tory headquarters, says Canada's chief electoral officer.

In his first public comment about thousands of dollars in cash transfers to 67 candidates, Marc Mayrand indicated the transactions may eventually put the Conservatives in violation of election spending limits by more than $1 million.

Mayrand's appearance at the House of Commons ethics committee Tuesday was also the first opportunity for Conservative MPs to question Mayrand directly about the advertising controversy after questioning his motives in Parliament and claiming someone from Elections Canada tipped news media to the raid last April.

Conservative MPs Pierre Poilievre and Scott Reid testily pressed Mayrand about an internal review he conducted in response to allegations that plans for the raid were leaked in advance.
Mayrand said only he, two of his top officials, the office of the elections commissioner and the office of the director of public prosecutions were aware beforehand. He said he was assured no one in his office talked to anyone outside Elections Canada before investigators from the commissioner's office, accompanied by RCMP computer specialists, arrived at the party headquarters.

Poilievre said Mayrand should have called in outsiders to determine where there was a leak, a possibility the Conservatives raised because media cameras and journalists arrived outside the party quarters in time to film the Elections Canada investigators.

"You've been very vigorous investigating our party," Poilievre told Mayrand. "Why would you consider it appropriate to investigate yourself?"

Reid demanded Mayrand provide the committee with what he described as "barely a sheet" of paper that consisted of the results of his internal review of the leak allegations.

Mayrand disclosed to the committee his office reviewed all campaign expense reports not just for the 2006 election, but also for the 2004 election, to compare spending and expense claims by all parties.

In neither of those campaigns did any other party transfer money to candidates, then back to their parties, or lack the necessary documents, contracts and records to prove the expenses were legitimately part of their national campaigns, which must report expenses separately from candidates under federal election law.

"Elections Canada has not identified any other transaction or group of transactions in which all of the factors were at play," he told the committee.

Liberal MP Dominic LeBlanc asked Mayrand whether he agreed that the $1.3 million in expenses the Conservatives attempted to assign to their candidates would have to be attributed to either the party or the candidates once the investigation and a separate Federal Court action are complete.

"There are decisions left to be made," said Mayrand. "One of them would be the attribution of expense."

If the advertising expenses are attributed to the party, it would be in violation of its $18.3-million election spending limit by more than $1 million and face possible fines and even jail terms for some party officials.

The party could also settle the violation through a compliance agreement, if there is a decision not to prosecute.

Sleepy Bear

Jonathan Kay: Free Omar Khadr

"A remarkably well argued brief, even for someone as like Jonathan Kay who always writes an intelligent and reasoned piece."

This is a bad day for Canada. As I write this at 1pm Tuesday, piteous video images from Omar Khadr's interrogation at Guantanamo Bay are not only the #1 news item on the National Post web site, but also the lead item on BBC News and USA Today. Millions of Web surfers are now wondering why Canadas government has acquiesced — and as the video shows, even participated — in the unconscionable treatment of a blubbering boy-soldier.

As someone who otherwise considers himself one of the War on Terrors noisiest Canadian cheerleaders, I submit that the bleeding hearts are right on this one: Omar Khadr needs to come home.

Here's why:

Omar Khadr was a child soldier. During the carnage that gripped Sierra Leone in the 1990s, the most terrifying crimes were often committed by gangs of children who'd been abducted by the Revolutionary United Front. Isolated from their family, and stripped of any sort of moral compass, these child brigades were renowned for such monstrous acts as hacking off the legs and arms of defenseless villagers. When the RUFs war with the government ended, many of these children were assimilated back into civilized society. No one — in the West, at least — blamed them for what they had done. As in Sri Lanka, Congo, and other parts of the world where children are abducted and forced into combat, it is universally recognized that child soldiers are not morally culpable for their actions in the same way as adults. Thats why the Sierra Leone war crimes tribunal didn't prosecute child soldiers — it prosecuted the monsters who exploited them. Can someone please tell me why this principle has not been applied to Omar Khadr, who was all of 15 when he allegedly threw the grenade that killed Sgt Christopher Speer of Delta Force in 2002?

What makes the case for Khadr especially strong is that he was essentially recruited into combat from birth — by his own flesh-and-blood no less. The true monster in the Khadr narrative is not Omar, but his father, Ahmed Said Khadr, an al-Qaeda lieutenant who moved his whole family from Canada to central Asia so they could share in the glory of jihad.

As a nine-year-old, Omar drank in his father's Islamist propaganda — spending months by his father's bed as the jihadi patriarch lay hunger-striking against Pakistani authorities, who'd arrested him on terrorism charges in 1995. Following 9/11, Ahmed (who, thankfully, was dispatched to his celestial virgins in 2003) enlisted his son as a sort of sidekick and maidservant to a jihadi cell hiding out in the Afghan outback. It was in this capacity that Omar tagged along with the pack of terrorists who would eventually be killed in the June 27, 2002 firefight that claimed the life of Sgt Speer.

I have spent today reading a lot of tough talk on the blogs about how Khadr should be "waterboarded until he stops crying" and such. I wonder if those same hawks could tell me how they would have turned out if they'd been told — literally, since the day they were born — about the necessity of jihad and the beauty of martyrdom; if, since early days, they'd been propagandized into believing that the West was waging a genocidal war against Muslims; and that military resistance was the only path of survival. Are we to expect some sort of inborn moral sense to activate — to tell us that everything being told to us by our own parents is wrong — even before one is old enough to shave?

I know about 20,000 former child soldiers in Sierra Leone who could tell you the answer to that question. And unlike Khadr, not one of them stands accused of "Violation of the Law of War."

Omar Khadr probably didn't kill anyone. The U.S. governments line on the events of June 27, 2002 — reported uncritically, for the most part, by the Canadian media — is that a cowardly Khadr popped up from the rubble in the aftermath of a firefight in the Afghan hinterland, killing a U.S. medic who was looking to treat wounded survivors. In fact, the grenade that killed Speer (who was fighting as a soldier, whatever his training as a medic) was thrown when the four-hour long battle was still hot — and it is far from clear who threw it: Contrary to initial accounts, there was a second jihadi still alive when the fatal grenade was thrown — and since Khadr was badly wounded at the time, the second militant (who later died) seems the more likely candidate.

(We might also dispense with the idea that Speer was on a mission of mercy: Post-battle testimony from his battlefield companions suggests they were — quite understandably — more interested in shooting the wounded than healing them.)

My own view is that Speer may well have been killed by a grenade thrown by one of his comrades. (Reports from the battle suggest that grenades were flying thick and fast from both sides.) As the Pat Tillman scandal shows, the U.S. military sometimes goes to extraordinary lengths to cover up friendly-fire deaths. And in the Khadr case, his U.S. Department of Defense attorney claims, there is at least one instance in which a U.S. lieutenant-colonel retroactively amended and backdated a battlefield report to buttress the case against Khadr.

Even if Khadr did kill Sgt. Speer, he did so as a soldier, not a terrorist. Theres little doubt that Omar Khadr was training his sons to be terrorists — the sort of people who blow up buses and restaurants, or who wear civilian clothing as they lie in wait to detonate explosives under vehicle convoys. But what Omar Khadr did on June 27, 2002 wasn't terrorism. It was participation in a military engagement — a fact that cant be changed merely by slapping a label like "unlawful combatant" on him.

Moreover, it was a military engagement fought on American terms: After U.S. soldiers sealed off the village encampment housing Khadrs cell, they prosecuted the siege with about 100 troops, some of them Special Forces, as well as Apache helicopters, F-18 Hornets and A-10 Warthogs. You can say that Khadr was fighting in an evil cause when he was captured, but you cant say that he was preying on the defenseless.

Even if you don't buy anything I've written above, Khadr's treatment still ranks as abominable. Let us assume that Omar Khadr actually threw the grenade that killed Sgt Christopher Speer; that he did so as a cold-blooded killer, not as a soldier; and that his status as a child combatant is irrelevant — in short, that Omar Khadr is a murderer. Well then, how do we treat murderers in Western countries? Answer: We put them in jail. We don't beat them; or move them from cell to cell every three hours; or terrify them with threats of pedophilic rape; or deny them appropriate medical care — all punishments that Khadr has endured — a litany of abuse so traumatic that, according to one piteous detail among many, he took to falling asleep at Guantanamo desperately hugging a Mickey Mouse book brought to him as a gift. In the space of six years incarceration, Khadr has endured more brutality than any ordinary jailbird would endure in 60.

Thats punishment enough. Please bring Omar Khadr home.