York back to work legislation in doubt ...

It's not clear to me that back to work legislation would be constitutional anyway but, regardless, this strike has to end somehow -- otherwise York's already weak reputation will simply collapse completely. It's unfortunate it will take even longer because of politics.

NDP's objection will delay bill to end York University strike

Back-to-work bill could pass by Wednesday, putting students in class as early as Thursday

Back-to-work legislation will be introduced tomorrow to end the York University strike.

Despite Ontario Premier Dalton McGuinty's 11th hour bid to end a strike in its 79th day, NDP Leader Howard Hampton said this afternoon his party would not grant the unanimous consent required for passage of the bill.

Ignatieff in Markham

TGIF

Part of today's speech by Michael Ignatieff regarding the budget

We Liberals understand about leadership in tough times. 

 

Canadians turn to us when times are tough.

 

Canadians remember.

 

Sound fiscal management, repeated surpluses, debt reduction, and tax cuts on profits, revenue and income. Strong financial performance and forward-looking social policies.

 

Canadians remember -- we cleaned up the $42-billion deficit left behind by the Mulroney years.

 

We slayed that deficit, but at a steep cost.

 

Today, Mr. Harper is taking us back to those tough Tory times. 

 

Just yesterday, he signalled that we should be prepared for a $64-billion deficit in the next two years alone. He wants to get the bad news out of the way before the budget.

 

I asked Mr. Harper not to play games like that.  I wanted him to put the facts and figures on the table, not let them slip out at his convenience.  I think he just can’t help himself.  He thinks it is all just some kind of game.

 

The release of this budget information is irresponsible and potentially costly to the economy.

 

And who knows how many years Harper is planning to be in deficit? He hasn’t shared that information.

 

What we do know is that it was a long, hard road to dig us out of a huge deficit after the last Tory government. 

 

As we face the budget choices next week, I’ve been clear.

 

Targeted help to those Canadians who need help most is absolutely essential.

 

Broad-based tax cuts that dig us deeper into deficit are not.

 

This is not about gimmicks or politically popular moves. 

 

It is about listening to the real needs of Canadians. 

 

It is about trust. 

 

It is about competence.

 

And this is an issue of political morality.

 

My generation should pay its own freight. We shouldn’t burden the next generation with debts we didn’t pay off.

 

If the government proposes a deficit, I want to see the plan that digs us out of it quickly.  And I don’t want that plan based upon some unrealistic projections made up inside the Prime Minister’s Office.  Trust Canadians with the truth. 

 

Then show them competence.

 

When a Liberal government returned the country to surplus we set aside a contingency reserve – savings for a rainy day. 

 

A $3-billion dollar cushion.

 

But this government had other ideas.  They scrapped that reserve. They spent rashly. They cut taxes rashly.  They brought Canada to the red line when times were good.

 

Now the cupboard is bare. We face hard times, headed towards a deficit which may top $100 billion before we see the other side of this.

 

Barely eight weeks ago, the government claimed there would be only a short recession and certainly no need to run a deficit.

 

How did Stephen Harper so completely misjudge the crisis before us?

 

In September, on the campaign trail, Mr. Harper said if we were going to have a recession, we probably would have had it by now.

 

In October, he told us there was still no recession, but there sure were “a lot of great buying opportunities emerging… as a consequence of all the panic.”

 

In all seriousness, that was Mr. Harper’s strategy.

 

Let the chips fall where they may, and if you can make a few bucks off the misfortune of others, good luck to you.

 

Then, on November 27^th, in front of Parliament and all Canadians, the Conservative government put forward its economic update.

 

According to Mr. Harper, there would be a surplus.

 

He said that the right way to address Canada’s difficulties was to take away civil servants’ right to strike, attack pay equity for women, and stop public funding for political parties.

 

That was not a program. It was a provocation.

 

And we said: No you don’t.  Back down. Think again.  This isn’t a game.  It is a recession with painful human consequences.

           

A train coming down track ... .

If these records get unsealed and there is a smoking gun we might see an election coming along sooner rather than later. Stay tuned ... .

Judge asked to unseal millions of Tory documents on '06 election
TIM NAUMETZ

The Canadian Press

January 22, 2009 at 7:20 PM EST

OTTAWA — Elections Canada is asking a judge to unseal up to a staggering five million pages of Conservative party documents tied to allegations the party broke federal election laws with a controversial advertising campaign in the 2006 election.

The demand is the first major development in the case since investigators raided Conservative party headquarters last year.

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

Cracks in the Conservative ranks?

Maybe -- this clip for today's Post:

"The ace the Prime Minister always had was that he was the master tactician. But our guy doesn't have the ace anymore," said one self-professed Harper supporter. "Ministers now whisper under their breath that they think we will lose the next election."

On the other hand, Harper has won twice and is no fool. If he chooses to run again I suspect he will put up a good fight -- don't underestimate Harper!

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

Vetrovec considered by Supreme Court of Canada

Today's decision in R. v. Khela 2009 SCC 4 deals with the elements of a Vetrovec warning. A summary follows:

The accused, K and S, were charged with first degree murder.  The Crown alleged that K paid two men to murder the victim, while S helped organize and coordinate the shooting.  The Crown's case rested primarily on the testimony of two unsavoury witnesses who had lengthy criminal records and who were members of a prison based gang.  The trial judge directed the jury to look at their testimony with the greatest care and caution and to look for confirmation of their testimony from somebody or something other than what the unsavoury witnesses themselves had to say.  The trial judge also directed the jury that it was for them to decide whether any evidence confirms or supports the unsavoury witnesses' testimony.  Both accused were convicted. 

On appeal, they argued that the trial judge's Vetrovec warning failed to instruct the jury that to be confirmatory, evidence supporting the testimony of unsavoury witnesses must be independent and material.  The Court of Appeal upheld the convictions.  It found that, in the context of the trial as a whole, the Vetrovec warning sufficiently conveyed the concepts of materiality and independence, and the appropriate degree of caution required by the circumstances.   Held:  The appeals should be dismissed.  

Although no single formula can be expected to produce an appropriate Vetrovec caution for every foreseeable situation, trial judges, who must craft the caution appropriate to the circumstances of their case, are entitled to guidance as to the general characteristics of a caution.  The four main elements of a caution are:  (1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused.  This summary need not be applied in a rigid and formulaic fashion.  Where a caution has these four elements, an appellate court, in the absence of some other flaw, will generally be expected to find the caution adequate.  However, a failure to include any of these elements may not prove fatal if the charge read as a whole otherwise serves the dual purposes of a Vetrovec warning:  first, to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony; and second, in appropriate cases, to give the jury the tools necessary to identify evidence capable of enhancing the trustworthiness of those witnesses.  In evaluating a caution, appellate courts should focus on the content of a caution and not on its form. 

With respect to the fourth component of the summary, since not all evidence is capable of confirming the testimony of an untrustworthy witness, a Vetrovec caution should draw the jury's attention to evidence capable of confirming or supporting material parts of the witnesses' evidence. To be confirmatory, evidence should give comfort that the witness can be trusted.  The attribute of independence defines the kind of evidence that can provide comfort that the witness is telling the truth.  Evidence that is tainted by connection to the witness cannot serve to confirm his or her testimony Materiality is a more difficult concept. Evidence does not have to implicate the accused, but in the context of the case as a whole, it should give comfort that the witness was truthful in relevant aspects of his or her account. 
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Tainted milk trial -- death sentences handed down!

A Chinese court handed two men the death penalty and gave life imprisonment to a former dairy boss for their involvement in China's contaminated milk scandal.

The addition of melamine to raw milk led to the deaths of six babies and made 300,000 ill.

It appears that the sentences are widely popular in China and I suppose one can see that makes some sense.

To add (for profit and knowingly) a poison to food intended for infants is pretty despicable. And it certainly sends a message about corporate responsibility.

Ignatieff speaks to lawyers

Michael Ignatieff seems to have given up sleep.

He seems to be everywhere.

But this is not the frantic wandering of a lost politician looking for support at everyone's Mutual Benefit Supporters Breakfast.

Every time Michael appears he speaks with such confidence and genuine knowledge that those he speaks to leave as supporters. I saw Michael today speaking to a group of lawyers (see the not so good picture with this post).

Apart from myself virtually everyone at the meeting was a high end large law firm business lawyer. This is a group that suffers fools badly and looks closely at political speeches. It is a group that one might think should lean towards Harper.

But no matter what they may have felt going in, after hearing Michael the group was as one supporting him and the Liberal Party. Sensible considered thoughts on the budget, care to point out the need to avoid a structural deficit and recognition that we need to build more bridges (figurative and literal) to the United States moved the group's support.

But Michael is not merely a businessperson's politician. He always emphasises the need to bring those outside, the homeless, the under employed, the disabled, the lost souls of Canada, into the heart of Canadian life. A Liberal is not a liberal unless they remember those in need.

I guess I sound like a fan. I am.

Consider $105 billion. That's 105 (plus nine zeros), the projected cumulated deficit!

This clip from the Vancouver Sun is worth a view:

"Besides, a silver lining of Liberal opportunity was on display in the dark and stormy clouds posted Wednesday by Kevin Page, Canada's parliamentary budget officer .

The more we hear from this guy, the more you understand why Harper has been trying to gag his analysis by cutting his budget and placing him under the supervision of Parliament's librarian.

Page posted the bleakest fiscal analysis yet, noting any trace of near-term optimism has been vanquished from the wisdom of financial soothsayers as he braces Canadians for deficits that were unthinkable six months ago.

Consider $105 billion. That's 105 (plus nine zeros), the projected cumulated deficit he thinks will be incurred over the next five years even before Finance Minister Jim Flaherty starts shovelling the mother of all deficits into the sputtered economy.

The mind reels at this prognosis -- a spreadsheet from Conservative hell with very little structural room for lasting tax cuts.

With that sort of future shock emerging as a long-term Conservative legacy -- and frankly there aren't many alternatives to deficit spending except to commiserate at the ineffective GST cuts from the first Conservative term -- the Liberals' best friend is time.

That giant sucking sound you'll hear on budget day Tuesday is just the start of Conservative economic credibility being drowned. "

James Morton

Back to work legislation for York University likely impossible because of a Supreme Court decision

In Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391, a precedent-setting 2007 Supreme Court ruling in a dispute between British Columbia and unionized health services support workers the Supreme Court put strong limits government's ability to impose back-to-work legislation.

Among other things the Court held:

"The imposition of compulsory arbitration in cases where the parties do not reach agreement is generally contrary to the principle of voluntary collective bargaining and is only admissible (in) cases of essential services, administration of the State, clear deadlock, and national crisis"

Writing of back to work legislation the Court notes:

"This may permit interference with the collective bargaining process on an exceptional and typically temporary basis, in situations, for example, involving essential services, vital state administration, clear deadlocks and national crisis."

The York University strike does not look likely to meet these stringent criteria. This is grossly unfair to students, and, realistically, will injure York's reputation for many years, but the Province's hands are tied.

And so Galileo was shown the instruments of persuasion ... and he was persuaded...

The story below is pathetic; it would be funny as a Monty Python sketch except it deals with such dreadful matters.

As mentioned on this blog, when I saw the testimony where Omar Khadr clearly identified Maher Arar as an al-Qaeda operative I paused and wondered (albeit momentarily) if there was something to the allegations against Arar. I was taken about and taken in (at least enough to wonder).

But now it seems that even with all the interrogations and coercion Khadr didn't finger Arar the way the agent testified. Khadr's (alleged -- I am not sure he actually said anything) story can't work on the time line and to say Arar "looked familiar" means nothing at all.

This story proves coerced evidence is of no value; it also suggests the case against Khadr is pretty thin. If there was a decent case against Khadr why bother making a supper out of deadend statements?

Under Stalin 'wreckers' confessed to crimes so bizarre that some useful idiots in the West believed them to be true -- no one would confess to something so foolish were it false. The Inquisition obtained confessions of secret Jewish rites among what otherwise seemed to be devote Catholic subjects of Spain. Witchcraft trials featured confessions where Satan danced with witches while a human flesh stew bubbled away over a merry fire.

Torture leads to information that is, generally, useless; that's why sophisticated interrogations seldom use torture even when available. Torture is good to ensure a story put to the witness is repeated back to the interrogator. But such evidence is worth nothing except for public relations.

U.S. NAVAL BASE GUANTANAMO BAY, Cuba

-- Omar Khadr's terrorism-linked "identification" of Maher Arar emerged Tuesday as less emphatic than testimony before a Guantanamo Bay military hearing suggested the day before.Notes taken at an FBI interview of the Canadian-born terror suspect following his 2002 capture in Afghanistan show Mr. Khadr stated only that Mr. Arar -- whose 2002 deportation and torture in Syria has come to symbolize excess in the war on terror -- "looked familiar."

The notes go on to say that "in time" Mr. Khadr "stated he felt he had seen" Mr. Arar, the hearing heard.FBI special agent Robert Fuller, who led the interview of the then-15-year-old, said that "in time" denoted "a couple of minutes."

"We gave him an opportunity to think about it," Mr. Fuller testified.The FBI agent was firm Monday in saying Mr. Khadr identified Mr. Arar by name when shown a photograph of the former computer engineer, who lives in Ottawa.

Mr. Fuller added that Mr. Khadr claimed to have seen Mr. Arar at an al-Qaeda-run "safe house" near Kabul "on several occasions" -- and also said he "might have seen him" at an al-Qaeda training camp.

But another portion of the notes speaks about the timeline in which Mr. Khadr eventually said he may have seen Mr. Arar in Afghanistan.It was sometime between late September and early October, 2001 -- a period a Canadian inquiry has since determined that Mr. Arar was in North America.

James Morton

Unity of the Crown and O'Connor applications

Friday's Supreme Court of Canada decision in R. v. McNeil, 2009 SCC 3 is a careful review of the law regarding O'Connor applications (see case summary below).

One interesting passage from the decision makes it clear that Crown disclosure obligations are limited to what the prosecuting attorney has in the prosecution's file - the unity of the Crown does not mean everything held by any aspect of the Crown must be searched and produced:

[22] The Stinchcombe regime of disclosure extends only to material in the possession or control of the Crown. The law cannot impose an obligation on the Crown to disclose material which it does not have or cannot obtain: R. v. Stinchcombe, [1995] 1 S.C.R. 754. A question then arises as to whether "the Crown", for disclosure purposes, encompasses other state authorities. The notion that all state authorities amount to a single "Crown" entity for the purposes of disclosure and production must be quickly rejected. It finds no support in law and, given our multi-tiered system of governance and the realities of Canada's geography, is unworkable in practice. As aptly explained in R. v. Gingras (1992), 120 A.R. 300 (C.A.), at para. 14:

If that line of reasoning were correct, then in order to meet the tests in Stinchcombe, some months before trial every Crown prosecutor would have to inquire of every department of the Provincial Government and every department of the Federal Government. He would have to ask each whether they had in their possession any records touching each prosecution upcoming. It would be impossible to carry out 1% of that task. It would take many years to bring every case to trial if that were required.

Accordingly, the Stinchcombe disclosure regime only extends to material relating to the accused's case in the possession or control of the prosecuting Crown entity. This material is commonly referred to as the "fruits of the investigation".

A brief case summary follows:

The Crown's obligation to disclose all relevant information in its possession to an accused is well established at common law under the Stinchcombe regime. Under Stinchcombe, the Crown's first party disclosure obligation extends only to material relating to the accused's case in the possession or control of the prosecuting Crown. A question then arises as to whether "the Crown" for disclosure purposes encompasses other state authorities. While the roles of the Crown and the police are separate and distinct, the police have a duty to participate in the disclosure process. The necessary corollary to the Crown's disclosure duty under Stinchombe is the obligation of police to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown. Records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the first party disclosure package due to the Crown from police, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused.

Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the O'Connor regime for third party production. The O'Connor procedure provides a general mechanism at common law for ordering production of any record beyond the possession or control of the prosecuting Crown, and is not limited to cases where third party records attract a reasonable expectation of privacy. To limit the applicability of the O'Connor regime to those cases where a third party has an expectation of privacy in the targeted documents would raise some uncertainty concerning the appropriate mechanism for accessing third party records when it is unknown whether a reasonable expectation of privacy attaches.

The first step in the O'Connor procedure for production of documents in the possession of a third party is for the person seeking production to satisfy the court that the documents are likely relevant to the proceedings. If likely relevance is demonstrated by the applicant, the third party record holder may be ordered to produce the documents for inspection by the court in order to determine whether production should be ordered. Ultimately, what is required at this second stage of the common law regime is a balancing of the competing interests at stake in the particular circumstances of the case.

In most cases, a useful starting point for courts in balancing the competing interests at the second stage of an O'Connor application will be to assess the true relevancy of the targeted record in the case against the accused. Once a court has ascertained upon inspection that third party records are indeed relevant to the accused's case, in the sense that they pertain to an issue in the trial, the second stage balancing exercise is easily performed. In effect, a finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. It may be useful to pose the question in this way: if the third party record in question had found its way into the Crown prosecutor's file, would there be any basis under the first party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that question is no, there can be no principled reason to arrive at a different outcome on the third party production application. The accused's interest in obtaining disclosure for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. This is particularly so in respect of criminal investigation files concerning third party accused.

That is not to say that residual privacy interests in the contents of criminal investigation files, police disciplinary records or any other third party records should be disregarded. The court should ensure that a production order is properly tailored to meet the exigencies of the case but do no more. To ensure that only relevant material is produced and that no unwarranted invasion of privacy interests occurs, the court may find it necessary to make a production order subject to redactions or other conditions. In addition, when just and appropriate to do so, the court may well impose restrictions on the dissemination of the information produced for purposes unrelated to the accused's full answer and defence or prosecution of an appeal.

Gao Gao's 19th birthday party

Not political but fun... .

Industry standard does not always set the standard of care

In displacing a claim of negligence it is common for a defendant to claim that they lived up to industry standard.  That usually is sufficient to displace a claim on the basis that the standard of care has been met.  But having said that, if the industry standard is obviously dangerous the standard of care may not have been met.

Today’s decision in Zsoldos v. Canadian Pacific Railway Company, 2009 ONCA 55 makes this last point clear saying:

[30]          The decision of the Supreme Court in ter Neuzen v. Korn (1995), 127 D.L.R. (4th) 577, deals with the question of standard of care in the face of an assertion that the defendant met the industry standard.  In that case, at para. 39, Sopinka J. adopted an excerpt from Professor Fleming’s treatise, The Law of Torts, 7th ed. ( Sydney: Law Book Co., 1987), at p. 109:

Conformity with general practice, on the other hand, usually dispels a charge of negligence.  It tends to show what others in the same “business” considered sufficient, that the defendant could not have learnt how to avoid the accident by the example of others, that most probably no other practical precautions could have been taken, and that the impact of an adverse judgment (especially in cases involving industry or a profession) will be industry-wide and thus assume the function of a “test case”.  Finally, it underlies the need for caution against passing too cavalierly upon the conduct and decision of experts.

All the same, even a common practice may itself be condemned as negligent if fraught with obvious risk. [Emphasis added.]

 

Smiling Flocke

New poll good for Grits!

This is good news but remember it's early early days... .

Ignatieff boosts support for Liberals
Poll shows Grit seen as best leader to work with Obama, majority have negative view of PM
DANIEL LEBLANC

January 21, 2009

OTTAWA -- Liberal Leader Michael Ignatieff has quickly boosted popular support for his party and a possible coalition with the NDP, and is seen as the best leader to work with U.S. President Barack Obama, a new poll has found.

The Ekos/Globe and Mail poll suggests the Liberal Party is gaining momentum as economic concerns grow, with a majority of Canadians now holding a negative view of Conservative Leader and Prime Minister Stephen Harper. Of the 1,000 respondents, 55 per cent disapproved of Mr. Harper's handling of his responsibilities, while 35 per cent offered their approval.

"That is a very bad number," Ekos president Frank Graves said of the disapproval rating. "That is getting up into [former U.S. president] George W. Bush numbers. Not quite, but 10 more points, and you're up to as bad as it gets for elected leaders."

Mr. Ignatieff, who has been leading the Liberal Party since Dec. 10, has the approval of 44 per cent of respondents and is seen negatively by only 21 per cent of them. However, the numbers show that many Canadians are still waiting to make up their minds about the new Liberal Leader, with 35 per cent of respondents refusing to offer an assessment.

York University strike continues

I suppose this surprised no one but I may well mean the year will be lost to the students. The University better start considering refunds and the like. How the part-time faculty are surviving is beyond me.
James Morton

Rumpole of the Bailey

John Mortimer has died.

He was the author of the Rumpole novels.

Many thought the Rumpole stories just another potboiler legal crime series.

Nothing special.

And in a sense that's true. The stories were not all that well written and the plots sometimes left a bit to be desired.

Ah, but the man Rumpole.

He always put his clients first, he never judged and he always allowed for the foibles of flawed humanity. He opposed oppression both the petty and the massive. And he never saw himself as better than any other.

Rumpole's most chancy encounters stem from arguing with judges, particularly those who seem to believe that being on trial implies guilt or that the police are infallible. Rumpole was not fearless but he showed no fear.

Sadly he is gone. His like will not be see again I fear.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Now is the time to set aside childish things

Right, the Inauguration at the University Club


Obama's inauguration was not a trivial thing. His speech was general but it spoke, through the words of Scripture, that we must work together. America is a beacon for the world.

And Obama is right -- America's ideal, freedom and republican self rule is a worthy ideal.

Across the world people stopped to listen to Obama's words. The President is right, now is the time to set aside childish things.

We as Canadians know this. Conservative or Liberal -- together let us work for freedom, liberty and democracy for all. It is time to stop mindless partisian attacks; let's try to work together.

Full text of speech:

WASHINGTON - My fellow citizens,
I stand here today humbled by the task before us, grateful for the trust you have bestowed, mindful of the sacrifices borne by our ancestors. I thank President Bush for his service to our nation, as well as the generosity and cooperation he has shown throughout this transition.
Forty-four Americans have now taken the presidential oath. The words have been spoken during rising tides of prosperity and the still waters of peace. Yet, every so often the oath is taken amidst gathering clouds and raging storms. At these moments, America has carried on not simply because of the skill or vision of those in high office, but because We the People have remained faithful to the ideals of our forbearers, and true to our founding documents.
So it has been. So it must be with this generation of Americans.
That we are in the midst of crisis is now well understood. Our nation is at war, against a far-reaching network of violence and hatred. Our economy is badly weakened, a consequence of greed and irresponsibility on the part of some, but also our collective failure to make hard choices and prepare the nation for a new age. Homes have been lost; jobs shed; businesses shuttered. Our health care is too costly; our schools fail too many; and each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet.
These are the indicators of crisis, subject to data and statistics. Less measurable but no less profound is a sapping of confidence across our land — a nagging fear that America's decline is inevitable, and that the next generation must lower its sights.
Today I say to you that the challenges we face are real. They are serious and they are many. They will not be met easily or in a short span of time. But know this, America — they will be met.
On this day, we gather because we have chosen hope over fear, unity of purpose over conflict and discord.
On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn out dogmas, that for far too long have strangled our politics.
We remain a young nation, but in the words of Scripture, the time has come to set aside childish things. The time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea, passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness.
In reaffirming the greatness of our nation, we understand that greatness is never a given. It must be earned. Our journey has never been one of short-cuts or settling for less. It has not been the path for the faint-hearted — for those who prefer leisure over work, or seek only the pleasures of riches and fame. Rather, it has been the risk-takers, the doers, the makers of things — some celebrated but more often men and women obscure in their labor, who have carried us up the long, rugged path towards prosperity and freedom.
For us, they packed up their few worldly possessions and traveled across oceans in search of a new life.
For us, they toiled in sweatshops and settled the West; endured the lash of the whip and plowed the hard earth.
For us, they fought and died, in places like Concord and Gettysburg; Normandy and Khe Sahn.
Time and again these men and women struggled and sacrificed and worked till their hands were raw so that we might live a better life. They saw America as bigger than the sum of our individual ambitions; greater than all the differences of birth or wealth or faction.
This is the journey we continue today. We remain the most prosperous, powerful nation on Earth. Our workers are no less productive than when this crisis began. Our minds are no less inventive, our goods and services no less needed than they were last week or last month or last year. Our capacity remains undiminished. But our time of standing pat, of protecting narrow interests and putting off unpleasant decisions — that time has surely passed. Starting today, we must pick ourselves up, dust ourselves off, and begin again the work of remaking America.
For everywhere we look, there is work to be done. The state of the economy calls for action, bold and swift, and we will act — not only to create new jobs, but to lay a new foundation for growth. We will build the roads and bridges, the electric grids and digital lines that feed our commerce and bind us together. We will restore science to its rightful place, and wield technology's wonders to raise health care's quality and lower its cost. We will harness the sun and the winds and the soil to fuel our cars and run our factories. And we will transform our schools and colleges and universities to meet the demands of a new age. All this we can do. All this we will do.
Now, there are some who question the scale of our ambitions — who suggest that our system cannot tolerate too many big plans. Their memories are short. For they have forgotten what this country has already done; what free men and women can achieve when imagination is joined to common purpose, and necessity to courage.
What the cynics fail to understand is that the ground has shifted beneath them— that the stale political arguments that have consumed us for so long no longer apply. The question we ask today is not whether our government is too big or too small, but whether it works — whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified. Where the answer is yes, we intend to move forward. Where the answer is no, programs will end. And those of us who manage the public's dollars will be held to account — to spend wisely, reform bad habits, and do our business in the light of day — because only then can we restore the vital trust between a people and their government.
Nor is the question before us whether the market is a force for good or ill. Its power to generate wealth and expand freedom is unmatched, but this crisis has reminded us that without a watchful eye, the market can spin out of control — and that a nation cannot prosper long when it favors only the prosperous. The success of our economy has always depended not just on the size of our Gross Domestic Product, but on the reach of our prosperity; on the ability to extend opportunity to every willing heart — not out of charity, but because it is the surest route to our common good.
As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake. And so to all other peoples and governments who are watching today, from the grandest capitals to the small village where my father was born: know that America is a friend of each nation and every man, woman, and child who seeks a future of peace and dignity, and we are ready to lead once more.
Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with sturdy alliances and enduring convictions. They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint.
We are the keepers of this legacy. Guided by these principles once more, we can meet those new threats that demand even greater effort — even greater cooperation and understanding between nations. We will begin to responsibly leave Iraq to its people, and forge a hard-earned peace in Afghanistan. With old friends and former foes, we will work tirelessly to lessen the nuclear threat, and roll back the specter of a warming planet. We will not apologize for our way of life, nor will we waver in its defense, and for those who seek to advance their aims by inducing terror and slaughtering innocents, we say to you now that our spirit is stronger and cannot be broken; you cannot outlast us, and we will defeat you.
For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus — and non-believers. We are shaped by every language and culture, drawn from every end of this Earth; and because we have tasted the bitter swill of civil war and segregation, and emerged from that dark chapter stronger and more united, we cannot help but believe that the old hatreds shall someday pass; that the lines of tribe shall soon dissolve; that as the world grows smaller, our common humanity shall reveal itself; and that America must play its role in ushering in a new era of peace.
To the Muslim world, we seek a new way forward, based on mutual interest and mutual respect. To those leaders around the globe who seek to sow conflict, or blame their society's ills on the West — know that your people will judge you on what you can build, not what you destroy. To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history; but that we will extend a hand if you are willing to unclench your fist.
To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds. And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to suffering outside our borders; nor can we consume the world's resources without regard to effect. For the world has changed, and we must change with it.
As we consider the road that unfolds before us, we remember with humble gratitude those brave Americans who, at this very hour, patrol far-off deserts and distant mountains. They have something to tell us, just as the fallen heroes who lie in Arlington whisper through the ages. We honor them not only because they are guardians of our liberty, but because they embody the spirit of service; a willingness to find meaning in something greater than themselves. And yet, at this moment — a moment that will define a generation — it is precisely this spirit that must inhabit us all.
For as much as government can do and must do, it is ultimately the faith and determination of the American people upon which this nation relies. It is the kindness to take in a stranger when the levees break, the selflessness of workers who would rather cut their hours than see a friend lose their job which sees us through our darkest hours. It is the firefighter's courage to storm a stairway filled with smoke, but also a parent's willingness to nurture a child, that finally decides our fate.
Our challenges may be new. The instruments with which we meet them may be new. But those values upon which our success depends — honesty and hard work, courage and fair play, tolerance and curiosity, loyalty and patriotism — these things are old. These things are true. They have been the quiet force of progress throughout our history. What is demanded then is a return to these truths. What is required of us now is a new era of responsibility — a recognition, on the part of every American, that we have duties to ourselves, our nation, and the world, duties that we do not grudgingly accept but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character, than giving our all to a difficult task.
This is the price and the promise of citizenship.
This is the source of our confidence— the knowledge that God calls on us to shape an uncertain destiny.
This is the meaning of our liberty and our creed — why men and women and children of every race and every faith can join in celebration across this magnificent mall, and why a man whose father less than sixty years ago might not have been served at a local restaurant can now stand before you to take a most sacred oath.
So let us mark this day with remembrance, of who we are and how far we have traveled. In the year of America's birth, in the coldest of months, a small band of patriots huddled by dying campfires on the shores of an icy river. The capital was abandoned. The enemy was advancing. The snow was stained with blood. At a moment when the outcome of our revolution was most in doubt, the father of our nation ordered these words be read to the people:
"Let it be told to the future world...that in the depth of winter, when nothing but hope and virtue could survive ... that the city and the country, alarmed at one common danger, came forth to meet [it]."
America. In the face of our common dangers, in this winter of our hardship, let us remember these timeless words. With hope and virtue, let us brave once more the icy currents, and endure what storms may come. Let it be said by our children's children that when we were tested we refused to let this journey end, that we did not turn back nor did we falter; and with eyes fixed on the horizon and God's grace upon us, we carried forth that great gift of freedom and delivered it safely to future generations.
Thank you. God bless you. And God bless the United States of America.

Civil law triggers search and seizure rights?

Today's Court of Appeal decision in Royal Bank of Canada  v. Ren, 2009 ONCA 48 makes the point that, generally, production in the civil context, even when compelled, does not trigger Charter search and seizure rights. That does not mean such rights can never be triggered. The Court writes:

That is not to say that s. 8 rights could never be triggered in relation to these provisions. Manifestly they could be if, for example, it could be shown that an organization, such as a bank, was acting not as a private entity but as a state agent: see R. v. Buhay, [2003] 1 S.C.R. 631, at para. 25.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Obama makes a difference, regardless of his politics, he makes a difference

Ken Melvin, a black American legislator, speaking on yesterday on Obama’s inauguration:

"Tomorrow, the promise of America will have a different meaning for me and for many others," he said. "I've always felt that I loved America more than America loved me, and it often caused resentment because there was never a full buy-in in the promise of America and all it entailed. Access, I felt, was limited."

"But tomorrow, what happens? The president-elect will become the commander in chief, arguably the most powerful man in the world. He can end wars. He can spend $1 trillion. He's got the keys to Air Force One. And a woman of color is about to become the first lady. And more important, apparently two-thirds of America is all right with that. They like the idea.”

"That changes the way we look at each other. I'm thrilled that I got to see this in my lifetime because at 56, I can finally say that there are no limitations on what can be accomplished in the United States. And believe me ladies and gentlemen, I am proud to say that is so huge."

False words: That swift as quicksilver it courses through The natural gates and alleys of the body,

Pentagon war crimes prosecutors have linked the case of Omar Khadr to torture victim Maher Arar in bombshell testimony that immediately raised questions and drew scorn in Canada.

I read this in today's newspaper and thought "what nonsense" -- how can you believe anything that Khadr said? But then I thought, "on the other hand...". And then I realized that's exactly the problem for Maher Arar.

Mr. Arar has been fully exonerated, but that doesn't mean he has been fully rehabilitated. And if I think twice before remembering the exoneration, how many won't think twice at all and will conclude Mr. Arar got what he deserved?

Thornhill Federal Liberal Riding Association

I was wrong - Khadr is proceeding

We'll see what Obama does -- this may be a test of his Presidency... .

Darwin and Intelligent Design

Michael Behe, a professor at Lehigh, writes convincingly that there are problems with the standard model of Darwinian evolution.

Since the battle to keep evolution out of Canadian schools seems to have heated up again recently (why?) the flaws with Darwinian evolution are given very close scrutiny.

The issue, according to Behe, is not whether life evolved over billions of year - it did - but rather whether the driver was natural selection of mutations that improved fitness. The claim Behe makes is that Darwinian evolution clearly occurs and occurred but the mutation rate is too low to explain the complexity of living structures. So Darwin explains some but not all of life's structures.

Behe is pretty convincing. Indeed, having read his most recent book, The Edge of Evolution, one is left with the sense that there is something missing; Darwinian theory takes us only so far. The responsa to Behe are, to be honest, quite weak. (Perhaps that's just because the best evolutionary scientists can't be bothered to get involved in this sort of public debate?).

But rather than pointing the flaw out and stopping Behe goes further and says the "something missing" is intelligent design, or, something akin to God. And that's where Behe runs into a problem because intelligent design sees the problem with Darwinian theory and says, in effect, Darwin's wrong so God has to step in.

Now in fairness, intelligent design does not say the designer must be the God of most Canadian Sunday schools. But the implication is very much the same as the natural theology of the 1850's -- life is complex, it was not an accident, hence there is a designer, hence God is seen in his works.

Contrast intelligent design with a more sensible approach: perhaps one would say 'there's an issue with Darwinian theory, it's the best we have now, let's see if it can be tweaked to address the issue and if not let's look for something else which can explain the data". Yes, bringing God into the piece 'explains' the data but only in a trivial sense.

One can explain gravity by saying God's law says apples fall down or trees or by looking to Newtonian or relativistic theory. Clearly the latter two explanations are more productive; which is not to say God isn't behind the laws of physics.

Intelligent design is not an alternative theory of life -- it is an abdication of analysis. Darwin may well be wrong but that doesn't mean no theory other than God made it so can work.

James Morton

Something to smile at

Limitation periods

Today's decision in Camarata v. Morgan, 2009 ONCA 38 deals with the interaction between the Trustee Act and the Limitations Act when there are seemingly conflicting limitation periods.

Under the Trustee Act the estate of a deceased has two years to proceed with certain claims. Under the Limitations Act the same deceased had two years to commence a specific action. Here the limitation had expired within the two years the deceased had to proceed but not within two years of death. Does the Trustee Act limitation period extend the Limitations Act period?

No.

The two periods are simultaneous and when the first expires the action is barred. The Court holds:


[8]               Section 38(3) of the Trustee Act does not have the effect of tolling a limitation period that excludes the limitation period made applicable to the action by ss. 4 and 5 of the Limitations Act.  Section 38(3) creates a second limitation period that operates in addition to any limitation period that would have applied had the deceased been able to carry on with the action.  In some circumstances, s. 38(3) will effectively shorten what would otherwise be the applicable limitation period:  see Swain Estate v. Lake of the Woods District Hospital, supra.  Section 38(3) cannot extend the limitation period that would have been applicable had the deceased not died and been able to carry on with his action. 
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Kadr trial to be adjourned

This is a very sure sign the trial will not go ahead -- I'll take odds Obama ends the farce in the next week!

Panda in a tree

A no to the coalition...

We will soon see the budget and based on what it says the Party will support it or not. If the budget is good then all's well but if not... . Try to form a coalition government or just go to an election?

The coalition is viable enough -- and the NDP isn't too far from most Liberal positions -- but it is the perception that the coalition include the Bloc that is the trouble.

And for that reason my view is that we cannot go ahead without an election if the budget is rejected.

A Liberal/NDP coalition is fine. We know the Bloc is not part of the government to be, but, the Canadian people have made it clear that they consider it to be a joining of forces with those who would tear the nation apart.

And so I say no to the coalition.

You can't fire me; I quit

So both sides have called unilateral ceasefires -- I suppose it doesn't matter so long as the violence stops.


Hamas agrees to ceasefire

The Hamas leadership announced a week-long ceasefire in Gaza Sunday, saying Israel should use that time to withdraw its forces and open all border crossings in the territory.

The news from Hamas' Syrian-based deputy leader, Moussa Abu Marzouk, came about 12 hours after Israel declared its own unilateral ceasefire to end its 22-day-old offensive in Gaza.

Islamic Jihad and other Palestinians factions have agreed to honour the truce declared by Hamas

Razzy and Flocke at play