DJIBOUTI (Reuters) - Moderate Islamist leader Sheikh Sharif Ahmed was sworn in as Somalia's president on Saturday, promising to forge peace with east African neighbors, tackle rampant piracy offshore and rein in hardline insurgents.
Analysts say Ahmed has a real possibility of reuniting Somalis, given his Islamist roots, the backing of parliament and a feeling in once hostile Western nations that he should now be given a chance to try to stabilize the Horn of Africa nation.
"As for the international concerns of piracy and the misinterpretation of Islam we will take concrete action," Ahmed said after being sworn in the same hotel conference hall where a peace deal was signed to bring the opposition into government.
There is widespread recognition both within and outside Somalia that reconciling 10 million people who have been tormented by clan-fueled violence and anarchy for the past 18 years is a daunting task.
"What lies ahead in a best case scenario is a painfully slow political process aimed at building a coalition of the center, one local entity or leader at a time," said Somalia expert John Prendergast, co-chairman of the U.S.-based advocacy group the Enough Project.
There were some signs of hope in Somalia's capital Mogadishu after Ahmed was elected in an all-night parliament session held in neighboring Djibouti due to security concerns at home.
Residents fired anti-aircraft missiles into the sky in celebration after a long vigil in front of the television or next to radios. In the morning, people in Mogadishu waved green branches to show their support and marched in the streets.
"Welcome Sharif, we are tired of war. Let Somalis join hands," chanted mother of three Farhia Hassan.
A 42-year-old former high school geography teacher, Ahmed headed the sharia courts movement that defeated Mogadishu's powerful warlords and brought some stability to the capital and most of south Somalia in 2006.
While initially welcomed for bringing order, the West accused the Islamic Courts Union of links to extreme terrorist groups and Washington's chief regional ally, Ethiopia, sent troops to drive the Islamists from power.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Saturday, January 31, 2009
Somalia, a new beginning?
Just in case you felt like complaining it's too cold...
Once-in-century Australian heatwave claims lives, homes
MELBOURNE (AFP) - Australia's second-largest city Melbourne was struggling to cope Saturday with a once-in-a-century heatwave that has claimed dozens of lives and sparked wildfires that have razed up to 20 homes.
More than 500,000 houses and businesses in the city of five million were left without power on Friday night after an electrical substation exploded in the heat.
Emergency services were stretched to breaking point as dozens of people succumbed to heat-induced exhaustion.
Temperatures in Victoria state topped 43 degrees Celsius (109 Fahrenheit) for a record-breaking third consecutive day on Friday, when up to 20 homes and a timber plantation were destroyed in a 6,500-hectare (16,000-acre) blaze.
Harper's base?
As for Stephen Harper's thesis I suspect it's less a problem for him because he has supported the same view fairly consistently since going into politics.
And that's where he has trouble with his base. The budget is, on the whole, a good one (yes, I know people disagree but that's my thinking). The trouble is it's not a conservative budget. It flies in the face of the views of the conservative Conservative base. While not exactly a liberal Liberal budget the budget does support big government intervention to build the economy.
Don Martin: Reality hits Harper in the face
CALGARY -- The 159 pages flip along to the rising throb of an oncoming migraine, academic blurs of heavy analysis exploring the link between Canadian economic distress and federal government intervention. It would qualify now, 18 years after it was given a passing grade at the University of Calgary, as a torturous insomnia cure except for the name of the student on the title page: Stephen Joseph Harper.
Yes, the same Stephen Harper now all grown up as Canada's Prime Minister, who concluded in his 1991 master's degree thesis that aggressive government intrusions into the free market economy should be avoided because they are usually just political ploys for re-election.
This week's deficit budget ensures this economics student has learned the hard lesson that classroom theory doesn't always mesh with political reality.
Having enacted the most aggressive fiscal response in decades to cushion the hard landing of a Canadian recession through a series of monster spending deficits, Mr. Harper has arguably become the federal echo of a politician he often vilified — Ontario premier (now Liberal MP) Bob Rae. The gobsmacking speed of the early 1990s recession's onslaught was Mr. Rae's explanation for his government's dive into deficit. Mr. Harper has seen an economy he considered safe from a global downturn and enjoying non-stop budget surpluses just four months ago crash into recession and requiring an $85-billion deficit forecast. Now that's fast. Nowhere is Mr. Harper's overnight conversion to essential red ink greeted with greater incredulity than in Calgary, where there's rarely been a discouraging word uttered against the hometown hero for six years.
But in the coffee break hallway of a conference I attended there yesterday, the backlash buzz was how this Conservative leader is posting spending numbers Calgarians only associate with Pierre Trudeau and Brian Mulroney.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Contempt fines payable to the Province
[to] make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,
(a) be imprisoned for such period and on such terms as are just;
(b) be imprisoned if the person fails to comply with a term of the order;
(c) pay a fine;
(d) do or refrain from doing an act;
(e) pay such costs as are just; and
(f) comply with any other order that the judge considers necessary,
and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.
The payment of a fine is a common punishment for contempt. The fine, however, goes to the Province and not the moving party as made clear by yesterday’s decision in SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97. The Court writes:
[14] Contempt of court for breach of a court order is an offence against the authority of the court and the administration of justice. As Cumming J. said in Sussex Group Ltd. v. 3933938 Canada Inc. (c.o.b. Global Export Consulting), 2003 CanLII 49334 ( Ont. S.C.), at para. 13: “It does not have, and must not appear to have, the function of a civil action in tort or for breach of contract.” See also Royal Bank of Canada v. Yates Holding Inc., 2007 CanLII 23601 ( Ont. S.C.), per Cumming J., at para. 19. A fine for contempt of court, therefore, should not go to the plaintiff in the lawsuit.
Friday, January 30, 2009
We are Canadians
They were demonstrating about a situation in a far off foreign state.
They were right insofar as there is an ethnic group in that foreign state with a legitimate grievance; that group is an oppressed minority.
But the protesters here have their freedom -- they are, broadly put, Canadians. And so they should chant "freedom for the oppressed people of XYZ".
Is this a trifle?
I think not. I am a Canadian; though not born here I am Canadian and my roots don't change that. I may feel kinship with people who share my heritage in other nations, and I may support them and their hopes, and I may urge our government to support them, but it is OUR government and I am urging support as a Canadian.
We are Canadians first and, say, Italians, second.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Murder most foul
BRIDGEWATER, N.S. - "Mommy, don't," were the last words Karissa Boudreau spoke as her mother strangled her to death in the woods outside of Hebbville, N.S.
Her last words were read in court Friday morning from an agreed upon statement of facts as Penny Boudreau, 34, pleaded guilty to the second-degree murder of her 12-year-old daughter.The woman wiped away tears as she was led away from Nova Scotia Supreme Court in Bridgewater, N.S. Crown attorney Denise Smith said Boudreau addressed the packed courtroom prior to her sentencing.She was, she told the judge, sorrier than anyone would ever know.
Smith said the agreed statement of facts was difficult for some in the courtroom to hear."There were sobs and tears as the facts were read," Smith said.
"The vast majority, except for police investigators and family members, were hearing these things for the first time. The facts are shocking and very difficult piece to hear. There were some visceral reactions to that by way of tears."
"All dreams are gone," said Paul Boudreau, Karissa's father and Penny's ex-husband, in a victim-impact statement, "the centre of my happiness is gone."
Under the Criminal Code of Canada, Penny Boudreau is facing a mandatory life sentence with no chance of parole for 20 years due to her conviction.
Boudreau reported her daughter Karissa missing Jan. 27, 2008, sparking massive searches across the Bridgewater area, about 105 kilometres southeast of Halifax.
Boudreau told police she had an argument with her daughter in a mall parking lot. She then claimed she left her daughter in the car as she did some quick shopping. When she returned, Karissa was gone, she said.Karissa had been living with her mother and her mother's boyfriend, Vernon MacCumber, in a two-bedroom apartment in the town of about 8,000. Tensions between the mother and daughter had ran high ever since Karissa had moved from her father's house inShelburne County in November, 2007.
MacCumber, according to the statement of facts, had told Boudreau that living in their apartment felt cramped with her daughter around.
Boudreau then decided to kill her daughter, court heard.
She drove her daughter to a Sobey's parking lot, where she phoned her boyfriend to say Karissa had gone missing.
Boudreau then drove to nearby Hebbville, where she chased her daughter of the red Dodge Neon, forced her to the ground, and choked her with a piece of twine.
Court heard she could feel her daughter struggling beneath her.With her daughter's body slumped over in the front seat of her car, Boudreau drove to a Tim Horton's and threw out the twine in a coffee cup. She then drove to the LeHave River and disposed of Karissa's body, court heard.
The search for Karissa sprawled around the region, as RCMP dive teams scoured nearby rivers while a helicopter from the Department of Natural Resources patrolled the air, looking for any sign of the missing sixth-grader.Two weeks later, Karissa's body was found on the banks of the LaHave River. Soon after, police revealed that the girl's death was a homicide.Following a massive investigation into Karissa's death, police arrested Boudreau in Halifax on June 14 and charged her with the first-degree murder. ...
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Refusal to defend bar to setting aside default judgment
Among other things there must be a viable defence presented but that is not enough. An explanation of why a defence was not delivered is required and if there is an intentional refusal to file a defence the explanation will not be accepted.
Yesterday's Court of Appeal decision in De Morales v. Lafontaine-Rish Medical Group Ltd., 2009 ONCA 87 makes this clear.
The Court held:
He was fully justified in concluding that Mr. Froom made the deliberate choice not to file a statement of defence. As this court stated in Schill & Beninger Plumbing & Heat Ltd. v. Gallagher Estate [2001] O.J. No. 260 at para. 11:
"Even if a viable defence was presented the intentional refusal to defend…stands as a permanent bar to intervention."
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Changes in America
But it's interesting to see how cautious Obama is -- and rightly so, he has a mess to clean up and now may not be the time to start massive new spending programs.
So, for example, see yesterday's passage of a modest bill expanding medical insurance to low income children across America. The legislation will extend benefits to about 11,000,000 children and those benefits will be modest. But this is health care coverage for children who had none before.
In Canada health care coverage is assumed (maybe we need to change the mix of public/private but no one says end coverage). America is, perhaps, moving in that direction.
James Morton
Ottawa transit strike finally over!
Ignatieff welcomes end to Ottawa transit strike
OTTAWA- Liberal Leader Michael Ignatieff today welcomed the resolution of the Ottawa transit strike.
"I am pleased to see that both parties have come to an agreement to end the OC Transpo strike," said Mr. Ignatieff. "The resolution of this dispute is welcome news both to drivers who can get back to work and to the people of Ottawa who rely on public transit."
"The transit strike has been difficult for all Ottawa-area residents, but the most vulnerable citizens have paid the biggest price over the past two months," added Liberal Labour Critic Maria Minna.
The City of Ottawa and the Amalgamated Transit Union reached a tentative deal late today, putting an end to the 51-day bus strike which has paralysed the National Capital Region since last December.
Mr. Ignatieff commended Ottawa MPs Mauril Bélanger and David McGuinty, and Hull-Aylmer MP Marcel Proulx, for their leadership in being the first to raise this matter in the House of Commons. The MPs also called for an emergency debate, which was to have taken place in the House this evening, and which may have acted as a catalyst to resolve the ongoing labour dispute.
James Morton
Thursday, January 29, 2009
How the pandas became black and white
According to legend, giant pandas were once pure white. Perhaps this is why the story’s heroine – a young Chinese shepherd girl – occasionally encountered friendly pandas among her white sheep. Disaster struck one day: a marauding leopard attacked one of the girl’s panda friends.
When the panda told the others of the girl’s death, they were devastated. As a symbol of their mourning, the pandas coated their front legs with ashes. As they dried their tears, the ashes stained their eyes black. As they held each other close, the ashes colored their shoulders. As their keening wails of grief grew too loud to bear, the pandas raised their paws to their ears, turning them black, too. Ever since, giant pandas have borne the black stains.
Politics is boring again ...
I suppose the budget was a black swan moment -- Stephen Harper introducing five years of deficit spending with a total deficit of nearly $100,000,000,000.00? Imagine how likely that seemed this time last year?
Still, I look through the newslinks and realise nothing much is happening. It seems so odd for everything to be so normal!
James Morton
Excerpts from the La Presse article "Ignatieff revives the Liberal Party of Canada in Quebec."
“The Conservatives have literally plummeted in popular opinion to the advantage of the Liberal Party of Canada, according to a CROP-La Presse poll. What’s worse, the level of satisfaction with the Harper government among Quebecers is also on a downward slope.
The political landscape has changed in
If a federal election were held today, the Conservative Party would receive a meagre 16 per cent of the vote, a drop of six percentage points since the last poll and its worst score since coming to power. The Liberal Party would come out as the main beneficiary of
The Bloc Québécois, which received 38 per cent of the vote in the last election, would see its support fall to 34 per cent. Finally, the NDP would get 15 per cent voter support, almost as much as the Conservatives. On Election Day, Jack Layton’s NDP team received 12 per cent of the votes in
These are the results of a CROP poll of 1000 respondents surveyed January 15-25th, before Finance Minister Jim Flaherty tabled his budget in the House of Commons on Tuesday. This is the first federal opinion poll conducted in
...
“Among francophone voters, the Bloc Québécois continues to lead in voter intentions with 40 per cent. But the Liberal Party has replaced the Conservative Party in second place as the choice of 26 per cent of francophones –more than twice the support they received in the last poll conducted September 18-28, during the election campaign.
The Conservative Party lost almost half of its support among francophones. It received no more than 15 per cent voter support compared to 29 per cent in the last poll.”
...
“And the bad news doesn’t stop there for the Conservatives. No more than 34 per cent of Quebecers indicated that they are satisfied with the Harper government’s handling of federal affairs, while 61 per cent reported they were dissatisfied. This is the worst showing for the Conservative government since coming to power three years ago.
Worst of all, only 16 per cent of the people interviewed chose Stephen Harper among the current leaders as the best prime minister. In this respect, Mr. Harper lags behind both Michael Ignatieff and Jack Layton. The Liberal Leader is the best choice for prime minister according to 37 per cent of respondents, while 23 per cent of Quebecers chose Mr. Layton.”
Limitation of actions and the Charter
Today's Supreme Court of Canada decision in Ravndahl v. Saskatchewan, 2009 SCC 7 deals with the distinction between personal claims arising under the Charter and the effect a declaration of invalidity under the Charter may have. The distinction is important because personal claims are subject to ordinary limitation of actions legislation.
Personal claims for constitutional relief are claims brought as an individual qua individual for a personal remedy and must be distinguished from claims enuring to affected members generally under an action for a declaration that a law is unconstitutional.
The Court writes:
A. Does Section 3 of The Limitation of Actions Act Apply to the Appellant's Claims for Personal Relief?
[16] It was argued below that statutory limitation periods do not apply to personal claims for constitutional relief. Personal claims for constitutional relief are claims brought as an individual qua individual for a personal remedy. As will be discussed below, personal claims in this sense must be distinguished from claims which may enure to affected persons generally under an action for a declaration that a law is unconstitutional.
[17] The argument that The Limitation of Actions Act does not apply to personal claims was abandoned before us, counsel for the appellant conceding that The Limitations of Actions Act applies to such claims. This is consistent with this Court's decision in Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3, which held that limitation periods apply to claims for personal remedies that flow from the striking down of an unconstitutional statute.
B. Are the Appellant's Personal Claims Statute-Barred?
[18] In order to determine whether the appellant's personal claims are statute-barred, it is necessary to pinpoint when her cause of action arose. In my view, her cause of action arose on April 17, 1985 when s. 15 of the Charter came into effect. The appellant was denied benefits pursuant to the operation of s. 68(1) of the 1978 Act. However, she had no cognizable legal right upon which to base her claim until s. 15 of the Charter came into force. On April 17, 1985 a claim that the non-receipt of benefits pursuant to s. 68(1) of the 1978 Act discriminated against her on the basis of marital status became actionable. Although the appellant does not directly challenge the constitutionality of the 1978 Act, it is the operation of the 1978 Act that ultimately forms the basis of her discrimination claim. (These reasons assume, without deciding, that a challenge to a pre-Charter denial of benefits would be a permissible application of the Charter).
[19] Before this Court, the appellant argued that a new cause of action arose when the government adopted remedial legislation reinstating the pensions of persons who had remarried on or after April 17, 1985, and passed The Special Payment (Dependent Spouses) Act. This cause of action is said to rest on the under-inclusivity of this remedial legislation. The appellant did not benefit from the remedial regulations since she had remarried prior to April 17, 1985. She chose not to apply for the $80,000 lump-sum payment under The Special Payment (Dependent Spouses) Act, but instead brought this action on March 31, 2000.
[20] This argument cannot succeed. The appellant's cause of action must be based, as explained above, on the unconstitutionality of the 1978 Act. Subsequent attempts by the Legislature to lessen the discriminatory effects of legislation do not create a new cause of action in her favour. The remedial provisions did not affect her position in any way.
[21] In her written materials, the appellant, relying on Kingstreet, asserted that her personal claims are not statute-barred because the limitation period is rolling in nature, applying anew to each pension payment that she did not receive. However, it is clear that such a result is dependent on a new cause of action arising with each event.
[22] In Kingstreet, a new cause of action was said to arise each time a payment of tax was made under unconstitutional legislation. This case is distinguishable from the present case. As stated by this Court in
Where the government has collected taxes in violation of the Constitution, there can only be one possible remedy: restitution to the taxpayer. In contrast, where a scheme for benefits falls foul of the s. 15 guarantee of equal benefit of the law, we normally do not know that the legislature would have done.... [para. 108]
The renewing cause of action argument cannot succeed as it assumes that the benefits which were terminated would have otherwise been paid.
[23] In this case, there is but one cause of action which arose on April 17, 1985, when s. 15 of the Charter came into force.
[24] Since the appellant's cause of action arose on April 17, 1985 and the six-year limitation period set out s. 3 of The Limitation of Actions Act is applicable, the appellant's personal claims, which were commenced almost a decade out of time, are statute-barred.
C. The Claim for a Declaration of Constitutional Invalidity
[25] The Court of Appeal unanimously upheld the appellant's right to maintain her claims for a declaration under s. 52 of the Constitution Act, 1982 that the impugned legislative provisions were unconstitutional insofar as they operated on discriminatory grounds.
[26] It will be for the trial judge to determine whether a declaration of invalidity should be granted, and if so, what remedies if any should be granted. Because the appellant's personal claims are statute-barred, any remedies flowing from s. 52 would not be personal remedies, but would be remedies from which the appellant, as an affected person, might benefit.
[27] It is important to distinguish the appellant's personal, or in personam, remedies, brought by her as an individual, from an in rem remedy flowing from s. 52 that may extend a benefit to the appellant and all similarly affected persons. As stated in the factum of the intervener the Attorney General of Ontario:
Where legislation is found to be constitutionally underinclusive, the prospective remedial option chosen by the court might extend the benefit at issue through severance or reading in, or it might suspend the operation of the declaration of invalidity to allow the government to determine whether to cancel, modify, or extend the benefits at issue. If the unconstitutional underinclusive benefit is extended to include the [appellant's] Charter claiman[t] group, whether through the court's s. 52(1) declaration or through government's response to the court's s. 52(1) declaration, the [appellant], like any other eligible person [in the claimant group], reaps the benefit of the s. 52(1) declaration, even if the claimant does not obtain a personalized remedy from the court. [para. 45]
New video of Flocke
http://blog.br-online.de/eisbaer/
How time changes all
INITIATIVES TO MARK THE YEAR OF ASTRONOMY
VATICAN CITY, 29 JAN 2009 (VIS) - In the Holy See Press Office this morning,
a press conference was held to present various initiatives marking the year
of astronomy, in which the organisations and institutions of the Holy See
are participating.
Attending the press conference were Archbishop Gianfranco Ravasi,
president of the Pontifical Council for Culture; Fr. Jose Gabriel Funes
S.J., director of the Vatican Observatory; Nicola Cabibbo, president of the
Pontifical Academy of Sciences, and Paolo Rossi, professor emeritus of the
history of science at the University of Florence, Italy, and at Rome's
"Accademia dei Lincei".
Archbishop Ravasi explained that the United Nations decided to make 2009
the "year of astronomy" in order "to commemorate 400 years since the first
astronomic discoveries". The event gives pride of place to Galileo, he said.
After stating that "the Church wishes to honour the figure of Galileo, innovative genius and son of the Church", the archbishop explained that "the time is now ripe for a fresh consideration of the figure of Galileo and of the entire Galileo case".
Referring then to the events planned for this year, Archbishop Ravasi
announced that an international academic congress will be held in Florence
from 26 to 30 May on the theme: "Galileo Galilei: A new historical, philosophical and theological reading". Organised by the Jesuit-run Stensen Institute of Florence, the congress is being promoted by the Pontifical Council for Culture, the Pontifical Academy of Sciences and the Vatican Observatory. It will be attended by world experts on the subject (theologians, historians and philosophers) such as George Coyne, Evandro Agazzi, Nicola Cabibbo and Annibale Fantoli.
From 15 October 2009 to 15 January 2010 the Vatican Museums will host an
exhibition entitled: "Astrum 2009: the historical legacy of Italian astronomy from Galileo to today", dedicated to the historical material held by astronomical observatories in Italy and the Vatican. The exhibition is being organised by the Italian National Institute of Astrophysics (INAF) in collaboration with the Vatican Museums and the Vatican Observatory.
Archbishop Ravsi also mentioned an international congress to be held in
November on the theme: "1609-2009. From the birth of astrophysics to
evolutionary cosmology. Science, philosophy and theology", organised by
Rome's Pontifical Lateran University.
The Vatican Secret Archives are also planning to produce a new edition of
all the documents from the trial of Galileo Galilei, due to be published
before the end of this year.
The president of the Pontifical Council for Culture concluded his remarks
by announcing a new project being promoted by the Italian Church through the internet site www.disf.org (Interdisciplinary Documentation of Science and Faith). "It will", he said, "dedicate particular attention to the year of astronomy, publishing documents, text and ideas every month, so as to give a Christian orientation to the debate between science and faith".
James Morton
Wednesday, January 28, 2009
Wilful blindness is not a mitigating factor in sentencing
Indeed, once there is a conclusion that a convict has been wilfully blind, the degree of moral blameworthiness is the same as if there was full knowledge. Although arising in a drug mule case there is no reason not to apply the reasoning to any circumstance of wilful blindness.
The Court holds:
[16] In that regard, some clarification is needed to address the significance, if any, of couriers, like the respondent, who purposefully shut their eyes to the nature and quantity of the illicit substance they are importing.
[17] The trial judge considered the respondent's wilful blindness to be a mitigating circumstance. With respect, we disagree. As a matter of principle and policy, we ought not to be sending a message to would-be-couriers that if they wear blinders, they will receive a lower sentence than if they actually learn the nature and quantity of the substance they are importing. In assessing degrees of moral blameworthiness, we see no meaningful distinction between the two.
[18] In so concluding, we are not to be taken as departing from the principle enunciated by this court in R. v. H. (C.N.) (2002), 170 C.C.C. (3d) 253 - that where an offender takes reasonable steps to determine the nature of the drug and is duped by his co-conspirators, this will serve as a mitigating factor.
[19] That, however, is not this case. The respondent was wilfully blind to the nature and quantity of the substance he was importing. Having kept himself in the dark, he cannot rely on his lack of knowledge as a mitigating factor.
Liberals put Harper Conservatives on probation
OTTAWA - Liberal Leader Michael Ignatieff today announced he will require the Conservative government to accept mandatory reporting requirements in order for the budget to be adopted. The first comprehensive report on progress on the economy will be required by March 26, 2009.
"The budget introduced yesterday is far from perfect. It does not fix the employment insurance system for thousands of workers who have lost their jobs in the past several weeks. It still threatens pay equity for women. It breaks their promise to every province from only two years ago on equalization," said Mr. Ignatieff.
"To say that action is long overdue is an understatement. Canadians deserve action. I believe it is in the best interests of Canadians that parliamentarians get to work on the economy, so I will move to amend the budget and include a requirement that the Government report back to the House of Commons repeatedly, with the first report being required within 60 days on their progress. Mr. Harper must accept these accountability measures or his Government will fall."
"We're in this position because of choices made by a government that has systematically mismanaged our public finances for the last three years," said Mr. Ignatieff. "For Canadians, this crisis isn't about structural deficits or loan guarantees or the business cycle. It's about the nest egg they've saved up over their entire working lives, only to see it cut in half overnight. It's about worrying about how they'll pay for their kids' education, or how they'll put food on the table for their families. The country needs stability in this time of economic difficulty and that is why I am taking this action."
"This government's mismanagement of the economic crisis and failure to act has rightfully given Parliament - and Canadians - a reason to question the credibility of this government on economic matters," added Mr. Ignatieff. "We are ready to act in the national interest, as the gravity of this economic crisis demands. I hope Mr. Harper is prepared to do the same."
James Morton
No jail for child molester? In this case, I agree... .
Man, 93, spared jail for sexually abusing daughters
A Quebec court judge spared a 93-year-old man a prison sentence for sexually abusing his two daughters over a seven-year period.
Philippe Hamelin was sentenced to two years less a day to be served in the community due to his advanced age and numerous health problems, though he was called an unrepentant abuser by the judge.
Hamelin was found guilty last year on a number of charges, including incest, sexual molestation and assault causing bodily harm, for incidents that took place between 1956 and 1963.
Hamelin, who had been strict and violent with his daughters when they were young, is now deaf and nearly blind, has skin cancer and suffers from a disease that is similar to Alzheimer's.
Tuesday, January 27, 2009
Budget thoughts
He said Liberals clearly welcome major expenditures on infrastructure, but want time to go over the details, such as whether or not federal funds are guaranteed.
"Some of the things were in the direction we would have gone, others are different," Mr. McCallum said. "I think we will look at this through the lens of the government's past behaviour on deficits. For example, just a couple of months ago they told us they were in surplus. Today we see a $15-billion deficit already before taking a penny of action. So that's a concern."
James Morton
The Budget -- thumbs up
Things like the home renovation incentives make sense and while there is an impression of all things to all people, well, we need a spark across the country.
I am not happy about the pay equity restriction -- equal work should get equal pay (I'm not sure why the Budget deals with that issue).
There are improvements to be made -- ensuring money really flows to cities for example -- but this is a budget we can work with.
James Morton
This is silly - the budget might as well be posted online
Flaherty's budget to focus on spending, tax cuts
Finance Minister Jim Flaherty will table the federal budget Tuesday, outlining exactly how the government plans to stimulate the economy through major spending and tax-cut initiatives.
Ahead of Tuesday's release, the Conservatives have gradually leaked details about the budget, including $64 billion in deficit spending over the next two fiscal years. It marks the first time in a dozen years that Ottawa's books have run into the red.
A large chunk of the money will be devoted to an economic stimulus package, including $7 billion for infrastructure and $2 billion for public housing projects.
Could a claim against York University work? Yes, it could ... .
That's not likely the case -- Ciano's case failed solely because he did not prove damages. (Now if the case went to trial other defences might apply -- there is a waiver of liability for strikes in the York calendar). Any new claim brought for this strike would, presumably, have specific proof of damages -- not hard to show - would imagine. In effect Ciano's case failed on a technicality -- an important one yes but not one that need block future cases.
York's strongest argument was that the relationship between students and York is not contractual but something else. Ciano's case made it clear that's not right. The court wrote:
"The defendant submits that the primary nature of the relationship between student and university is educational in nature, rather than contractual. I disagree. The relationship between student and university is contractual."
James Morton
U.S. Supreme Court says car passengers can be frisked by police
Below see a newstory summarizing the decision and then details of the case itself with a link to the case.
January 26, 2009
THE ASSOCIATED PRESS
WASHINGTON - The Supreme Court ruled Monday that police officers have leeway to frisk a passenger in a car stopped for a traffic violation even if nothing indicates the passenger has committed a crime or is about to do so.
The court today unanimously overruled an Arizona appeals court that threw out evidence found during such an encounter. The case involved a 2002 pat-down search of an Arizona man by an Oro Valley police officer, who found a gun and marijuana.
The justices accepted Arizona's argument that traffic stops are inherently dangerous for police and that pat-downs are permissible when an officer has a reasonable suspicion that the passenger may be armed and dangerous.
The case is Arizona v. Johnson, 07-1122.
[Details: see http://www.scotuswiki.com/index.php?title=Arizona_v._Johnson]
The case involves the actions in April 2002 of a police officer from Oro Valley, Ariz., Maria Trevizo, who was on a gang activity patrol in Tucson in an area near the Sugar Hill neighborhood, known locally for gang-related activity. Gang members in that area were known to wear blue. Seeing a car in the area, an officer accompanying Trevizo did a license plate check and found that the insurance on the vehicle had been suspended. The officers had no suspicious of a specific crime, but they pulled over the vehicle.
Lemon Montrea Johnson was in the back seat. Trevizo noticed that he was wearing clothing that she thought hinted at a gang affiliation – he was dressed all in blue, with a blue bandanna. Trevizo grew concerned when she saw a scanner in Johnson's pocket – something that might be used to track police calls and thus avoid detection of crime. Johnson, questioned by Trevizo, was cooperative; he told her he had done time for burglary, and testified he was from the town of Eloy, which Trevizo remembered was an area frequented by the Trekke Park Crips gang. Seeking to gather intelligence about that gang, she continued to question Johnson.
Johnson got out of the car, and at that point, Trevizo did a pat-down search. She felt the butt of a gun near his waist; he was arrested, and a further search found marijuana. He was charged with possessing a gun without legal authorization, possession of marijuana, and resisting arrest (because he had struggled with her after she discovered the gun). He tried to get the evidence excluded from the trial, claiming Trevizo had no authority to conduct the pat-down search. The challenge was denied, and he was convicted of the gun and marijuana possession counts, but not the resisting arrest charge.
Monday, January 26, 2009
The Conservative Party isn't conservative (or really much of anything at all ...)
Perhaps that's because they see that the dream of a conservative Conservative Party is failing.
And in fact, the voice for responsible (conservative) Federal finances is the Liberal Party. I say this not just because I am a Liberal but mainly because I am afraid of long term deficits -- a tax system structured to be in a deficit because it cannot pay off, in good times, what it borrowed in bad times. The Conservatives have succumbed to the lure of voodoo economics.
But leave aside the economy, what has the Conservative Party achieved with regard to the social conservative agenda? Gay marriage? Abortion? Tough on crime? Bringing religion back into the public square? Well what have they done? (ok, they raised the age of consent from 14 to 16; that will keep the barbarians on the other side of the Alps).
Truth is, at best there have been trifles achieved on the social conservative agenda; foreign policy seems to be the strongest conservative success but even this is weak. The (modest) support of George Bush's war on terror looks to have failed (welcome home Omar Khadr). And Middle East policy is virtually the same in the Conservative and Liberal platforms.
And so we are left with a party that has not fulfilled a social conservative agenda and which is spending money with more abandon than the Reform Party said PET ever did.
No wonder the conservative press is unimpressed.
I'll finish with a quotation from a piece in tomorrow's Post:
"In the life of every ministry, there comes a moment when convictions have been worn down by the constant pressures of power, leaving the government on all sides of every issue, standing for everything and nothing. Stephen Harper's government may well have reached that point with this budget."
http://www.nationalpost.com/m/blog.html?e=fullcomment/archive/2009/01/26/blogpost5.aspx
James Morton
Restrictive covenants and employment law
Restrictive covenants generally are restraints of trade and contrary to public policy. Freedom to contract, however, requires an exception for reasonable restrictive covenants. Normally, the reasonableness of a covenant will be determined by its geographic and temporal scope as well as the extent of the activity sought to be prohibited. Reasonableness cannot be determined if a covenant is ambiguous in the sense that what is prohibited is not clear as to activity, time, or geography. An ambiguous restrictive covenant is by definition, prima facie unreasonable and unenforceable. The onus is on the party seeking to enforce the restrictive covenant to show that it is reasonable and a party seeking to enforce an ambiguous covenant will be unable to demonstrate reasonableness.
Restrictive covenants in employment contracts are scrutinised more rigorously than restrictive covenants in a sale of a business because there is often an imbalance in power between employees and employers and because a sale of a business often involves a payment for goodwill whereas no similar payment is made to an employee leaving his or her employment. Where the restrictive covenant arises in an employment contract it attracts the higher standard of scrutiny.
Notional severance, reading down a contractual provision so as to make it legal and enforceable, is not an appropriate mechanism to cure a defective restrictive covenant. Notional severance may be available where an objective bright line test exists to distinguish what is legal from what is not. There is no objective bright‑line test for reasonableness and applying notional severance simply amounts to a court rewriting a covenant in a manner that it subjectively considers reasonable. Employers should not be invited to draft overly broad restrictive covenants with the prospect that the court will sever the unreasonable parts or read down the covenant to what the courts consider reasonable. This would change the risks assumed by the parties and inappropriately increase the risk that an employee will be forced to abide by an unreasonable covenant.
Blue‑pencil severance, removing part of a contractual provision, may be resorted to sparingly and only in cases where the part being removed is clearly severable, trivial and not part of the main purport of the restrictive covenant.
Rectification cannot be invoked to resolve ambiguity in the absence of clarity in the parties minds as to what was agreed. Rectification is used to restore what the parties' agreement actually was, were it not for the error in the written agreement. Where there is no indication that the parties agreed on something and then mistakenly included something else in the written contract rectification does not apply.
Part of the Court's reasons read:
[15] A restrictive covenant in a contract is what the common law refers to as a restraint of trade. Restrictive covenants are frequently found in agreements for the purchase and sale of a business and in employment contracts. A restrictive covenant precludes the vendor in the sale of a business from competing with the purchaser and, in an employment contract, the restrictive covenant precludes the employee, upon leaving employment, from competing with the former employer.
[16] Restrictive covenants give rise to a tension in the common law between the concept of freedom to contract and public policy considerations against restraint of trade. In the seminal decision of the House of Lords in Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co., [1894] A.C. 535, this tension was explained. At common law, restraints of trade are contrary to public policy because they interfere with individual liberty of action and because the exercise of trade should be encouraged and should be free. Lord Macnaghten stated, at p. 565: The public have an interest in every person's carrying on his trade freely: so has the individual. All interference with individual liberty of action in trading, and all restraints of trade of themselves, if there is nothing more, are contrary to public policy, and therefore void. That is the general rule.
[17] However, recognition of the freedom of the parties to contract requires that there be exceptions to the general rule against restraints of trade. The exception is where the restraint of trade is found to be reasonable. At p. 565, Lord Macnaghten continued:
But there are exceptions: restraints of trade and interference with individual liberty of action may be justified by the special circumstances of a particular case. It is a sufficient justification, and indeed it is the only justification, if the restriction is reasonable – reasonable, that is, in reference to the interests of the parties concerned and reasonable in reference to the interests of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public. That, I think, is the fair result of all the authorities. [Emphasis added.]
Therefore, despite the presumption that restrictive covenants are prima facie unenforceable, a reasonable restrictive covenant will be upheld.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Budget Factoid
James Morton
Throne speech -- text
The details of the stimulus plan will be revealed in Tuesday's budget, but Monday's speech sets the tone and rationale for what will be a massive effort to boost the economy through deficit spending.
The text follows:
Honourable senators, members of the House of Commons, ladies and gentlemen:
In these uncertain times, when the world is threatened by a struggling economy, it is imperative that we work together, that we stand beside one another and that we strive for greater solidarity.
Today, in our democratic tradition, Canadians expect that their elected representatives will dedicate their efforts to ensure that Canada emerges stronger from this serious economic crisis.
Once again, the people’s representatives have gathered to consider the priorities of another parliamentary session.
Each throne speech is a milestone on the remarkable 142-year Canadian journey. Your predecessors, too, were summoned to this chamber at times of great crisis: as Canada struggled to claim her independence, in the shadow of war, during the depth of the Great Depression and at moments when great policy division tugged the very bonds of this union.
Today we meet at a time of unprecedented economic uncertainty. The global credit crunch has dragged the world economy into a crisis whose pull we cannot escape. The nations of the world are grappling with challenges that Canada can address but not avoid.
The government’s agenda and the priorities of Parliament must adapt in response to the deepening crisis. Old assumptions must be tested and old decisions must be rethought. The global economy has weakened since Canadians voted in the last general election. In fact, it has weakened further since Parliament met last month.
Our government has listened to Canadians who are concerned about how the worldwide recession is affecting their jobs, their savings and their communities. Our government has reached out to Canadians in all regions, in all communities and from all walks of life.
Our government has consulted widely: with those who work, those who invest, those who create jobs, those who build infrastructure and those who provide non-profit services; with municipal, provincial and territorial governments, Aboriginal leaders and representatives of communities; in fact, with everyone whose input might help chart a course through the present storm.
Our government approached the dialogue in a spirit of open and non-partisan co-operation. There is no monopoly on good ideas because we face this crisis together. There can be no pride of authorship—only the satisfaction of identifying solutions that will work for all Canadians.
Acting on the constructive thoughts and suggestions that have been received, our government will tomorrow present Canada’s economic stimulus plan. The plan will protect our economy from immediate threat, while making investments to promote long term growth.
The economic stimulus plan will be a plan of action. Our government is stimulating the economy, both through direct government action and by encouraging private expenditure.
Our government is taking immediate action to build Canada through new investment in infrastructure.
Our government is acting to protect the stability of our financial system.
Our government is acting to ensure access to credit for businesses and consumers.
Our government is acting to support Canadian industries in difficulty — including forestry, manufacturing, automotive, tourism, agriculture — and to protect the families and communities who depend on those jobs.
Our government is acting to protect the vulnerable: the unemployed, lower-income Canadians, seniors, aboriginal Canadians and others hit hardest by the global economic recession.
These actions will be targeted, they will inject immediate stimulus while promoting long-term growth and they will avoid a return to permanent deficits.
These actions will protect the jobs of today while readying our economy to create the jobs of tomorrow.
Canadians face a difficult year — perhaps several difficult years. In the face of such uncertainty, our government has developed a clear and focused plan. Our government will spend what is necessary to stimulate the economy, and invest what is necessary to protect our future prosperity.
As Canadians expect, the economy will be the focus of our government’s actions and of the measures placed before Parliament during the coming year. In pursuing measures to support the economy, our government will also attend to the other important priorities that it set out in the speech from the throne to open the 40th Parliament.
The present crisis is new, but the imperative of concerted action is a challenge to which Parliament has risen many times in our history. What will sustain us today will be the same strengths of character that have pulled Canada through critical times before: unity, determination and constancy of purpose.
Honourable members of the Senate, members of the House of Commons: As you unite in common effort and in common cause, may Divine Providence be your guide and inspiration.
Bail hearings and publication bans
Today’s Court of Appeal decision in Toronto Star Newspapers Ltd. v. Canada, 2009 ONCA 59 has stuck down, in part, mandatory publication bans in bail hearings. The decision is lengthy and complex but the result is set out below:
[251] I propose the following revision to s. 517 in order to read down the mandatory ban:
517. (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused where and for so long as the charge(s) may be tried by a jury, …
[252] The effect of the added phrase is to limit the mandatory publication ban at the request of the accused to bail proceedings in respect of charges that can possibly be tried by a court composed of a judge and jury. Consistent with the goal of effectively addressing the overbreadth problem while ensuring that an accused’s fair trial rights are preserved, the duration of the ban is limited, so that if through an election by the Crown or the defence the trial becomes a judge alone trial, either in the Ontario Court or the Superior Court, the ban no longer applies.
Parliament comes back
We don't need an election now and if the budget is acceptable it should be passed.
Now is the time to stop and consider the budget in an impartial and neutral way.
James Morton
Sunday, January 25, 2009
Tuesday's budget
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
What a difference 90 days makes ...
- Stephen Harper, October 14, 2008.
"The deficit will be $64 billion over two years…"
- Stephen Harper spokesperson, January 22, 2009.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4