The Invisible War Perhaps we’ve heard so little about them because the crimes are so unspeakable, the evil so profound.

Bob Herbert



For years now, in the Democratic Republic of Congo, marauding bands of soldiers and militias have been waging a war of rape and destruction against women. This sustained campaign of mind-bending atrocities, mostly in the eastern part of the country, has been one of the strategic tools in a wider war that has continued, with varying degrees of intensity, since the 1990s. Millions have been killed.



Women and girls of all ages, from old women to very young children, have been gang-raped, and in many cases their sexual organs have been mutilated. The victims number in the hundreds of thousands. But the world, for the most part, has remained indifferent to their suffering.



"These women are raped in front of their husbands, in front of their children, in front of their parents, in front of their neighbors," said Dr. Denis Mukwege, a gynecologist who runs a hospital in Bukavu that treats only the women who have sustained the most severe injuries.



In some cases, the rapists have violated their victims with loaded guns and pulled the triggers. Other women have had their organs deliberately destroyed by knives or other weapons. Sons have been forced at gunpoint to rape their mothers. Many women and girls have been abducted and sexually enslaved.



It is as if, in these particular instances, some window to what we think of as our common humanity had been closed. As The Times's Jeffrey Gettleman, on assignment in Congo, wrote last fall:



"Many of these rapes have been marked by a level of brutality that is shocking even by the twisted standards of a place riven by civil war and haunted by warlords and drug-crazed child soldiers."

James Morton

Water ballet?

Why I pulled a Post -- I was insensitive and say mea culpa!

I made a posting yesterday afternoon that I pulled (albeit for a day or two). Now, of course, once something is posted it cannot be pulled for real because it continues to float around the Web.

But here's why I pulled the post -- and it will go up again early next week.

The post relates to what was breaking news about the internal Liberal Party elections. A good Liberal decided to withdraw from the running -- I posted a note about it but then realized he might well want to tell his supporters himself and not let them learn from the web. (The story was quite true).

I should have thought of that first -- it was insensitive of me not to -- and so I pulled the post. Fear not, Monday at 5:00 p.m. it goes back up.

Mea culpa, mea maxima culpa

Royal Botanical Gardens

On this snowy Saturday I thought of the sprng to come and the wonderful RBG, in Burlington near Hamilton.

Charges withdrawn

Today's National Post has an article focussing on Ontario's criminal system and pointing out about 40% of charges are withdrawn or stayed.

The sounds terrible.

But it really isn't.

It's a result, usually, of two charges being laid for roughly the same conduct. So some is charged with impaired driving and driving 'over 80'. Both charges are proper and the police are right to lay them. But only one conviction is proper.

So, if the accused chooses to plead guilty (which is what normally happens), only one charge is pleaded to and the other one is ... withdrawn. Hence, for this one accused 50% of charges were withdrawn.

All that said, sometimes there is 'over charging' where multiple charges are laid for no sensible reason. That's bad practice but not really relevant in the big picture.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Richard Gwyn – “Ignatieff has what it takes to be a first-tier leader,” Toronto Star, February 20, 2009

"Unless all my instincts are dulled and my antennae have rusted (most certainly possible), I'm pretty sure Ignatieff is going to become our next prime minister. ..[Prime Minister Harper] simply hasn't got what it takes to be a first-tier leader. Few commentators would ever sum up their impressions of him as did [New York Times columnist Bob] Herbert about Obama: 'He is intelligent, mature, thoughtful, calm in the face of criticism, and, if the nation is lucky, maybe even wise.'... Potentially, Ignatieff could attract some of the same kind of praise ..."

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

Rant of the Day

Every day I go into my building and, riding the elevator, see a terminal that usually has news and the "Word of the Day".

The "Word of the Day" is an unusual word and comes with an unexceptional definition.

But then the Word is used in a sentence, presumably to illustrate the proper usage.

And the trouble is that the Word is placed in a sentence that clearly shows the writer has never used the word before and does not know its proper use.

It drives me NUTZ!!!!!!!

Synchronized swimming

Roadside demand can be justified based on smell of alcohol

As roadside demand can be justified by the smell of alcohol on the driver’s breath. 

 

See today’s brief decision in R v.  Carson, 2009 ONCA 157:

 

With respect, the Summary Conviction Appeal Judge erred in concluding that the investigating officer could not conclude, for purposes of making a roadside demand under s. 254(2) of the Code, that a driver has alcohol in his body by the smell of alcohol on his breath. This court in R. v. Lindsay (1999), 134 C.C.C. 463 held otherwise. We affirm the correctness of that decision.

Alf Apps for LPC President?

If the rumor mills are true, my old college mate Alf Apps is going to run for President of the Liberal Party of Canada.

Now, I am not impartial because Alf and I go way back, but I clearly remember, at UWO, as Student Council President, Alf organizing the largest rally of the 1980 federal election - five-thousand students came out to support Pierre Trudeau in his now famous 'comeback' campaign. I was there holding a sign!

Alf is the sort of guy who sets goals and achieves them -- should he run for President I expect he'll (a) be elected and (b) take the Liberal Party back to it's glory days of being the natural governing party of Canada.

The science that isn't

From Friday's Globe and Mail

For a shocking quote you will never hear on CSI or any other exciting, forensic-based television show, try this: “With the exception of nuclear DNA analysis, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” The source is not a smooth-talking defence lawyer. It's the National Academy of Sciences in the United States.

The forensic sciences have proved to be frail. DNA evidence has shown up the weaknesses in every other form of forensics: firearms, tool marks (the purportedly unique marks left by an individual screwdriver, for instance), bite marks, shoe impressions, blood spatter, handwriting and hair. Even fingerprints.

This shouldn't be a surprise to anyone who followed the judicial inquiry into Charles Smith, the Ontario child-death investigator whose ineptitude and crusading philosophy helped lead to wrongful accusations and convictions against 20 people. Nor should it be a surprise in the U.S., where a lawyer, Brandon Mayfield, was wrongly jailed for two weeks as a suspect in Madrid's train bombing in 2004, on the basis of the FBI's flawed fingerprint readings.

But for anyone who thought, or hoped, that those were isolated instances, either in Canada or the U.S., the National Academy's two-year study should set them straight. The vaunted science of modern-day forensics has been exposed to little scientific scrutiny. Sometimes what is presented as science is just opinion from someone with questionable training. The scientific investigators may be entangled with the police. And there's little oversight.

Our supposedly skeptical era is infatuated with forensic investigators. TV shows such as CSI: Crime Scene Investigation draw huge audiences. The infatuation manifests itself in courtrooms, too – in the deference shown scientific experts by judges and lawyers, and the weight given their testimony by juries. In a U.S. study of 137 convictions overturned by DNA evidence, 60 per cent included false or misleading analysis of forensic evidence such as blood, hair or bite marks.

The state has an enormous advantage in court when scientific or medical experts testify in support of the prosecution. Most judges lack the scientific expertise to evaluate forensic evidence, the academy notes. Accused people may lack the money to hire experts to challenge the prosecutor's case. They may plead guilty in exchange for a light sentence, as happened in some cases involving Charles Smith. Tammy Marquardt of Toronto said no to a plea bargain, and has been in jail 14 years on a charge of suffocating her two-year-old son. The Supreme Court of Canada has just given permission to reopen her case.

Be skeptical of scientific experts in the courtroom, says the scientific academy. Be very skeptical.

 

Vengeance is mine; I will repay, saith the Lord

Today's news brings a story from Iran.

A suitor threw acid in the face of his desired wife blinding her. The Iranian court, as part of his punishment, ordered that the suitor be blinded by acid himself.

My immediate reaction was horror.

But why? What's wrong with a literal 'eye for an eye' punishment?

It does show a serious intention to punish 'honour' crimes, such as acid in the face. One could only hope for such seriousness in some other nations where 'honour' crimes are common.

So is my reaction mere squeamishness?

I thought about it and decided not -- my real reaction is based on the view that this punishment is venegence rather than some way of deterring future crime. And venegence is not, at least to me, the basis for a human *and humane* justice system.

Remember Romans 12:19 (the more familiar KJV is quoted in the caption):

Do not take revenge, my friends, but leave room for God's wrath, for it is written: "It is mine to avenge; I will repay," says the Lord.

Snow day

Supreme Court on separation agreements

Separation agreements are notoriously uncertain.  Unlike commercial agreements where the Courts will generally presume the parties took proper care of their own interests, in separation agreements the Courts look anxiously to see if there is any unfairness or lack of proper disclosure. 

 

Today’s Supreme Court of Canada decision in Rick v. Brandsema, 2009 SCC 10 makes the need for full disclosure and a lack of any undue influence very clear.  The Court’s legal reasoning may be summarized as follows:

 

The singularly emotional environment that follows the disintegration of a spousal relationship means that the negotiation of separation agreements takes place in a uniquely difficult and vulnerable context.  Special care must therefore be taken to ensure that the assets of the former relationship are distributed through a process that is, to the extent possible, free from informational and psychological exploitation.  Where exploitation results in an agreement that deviates substantially from the objectives of the governing legislation, the resulting agreement may be found to be unconscionable and, as a result, unenforceable. 

 

While parties are generally free to decide for themselves what bargain they are prepared to make, decisions about what constitutes an acceptable settlement can only authoritatively be made if both parties come to the negotiating table with the information they need to consider what concessions to accept or offer.  This requires that there be a duty on separating spouses to provide full and honest disclosure of all relevant financial information in order to help protect the integrity of the negotiating process.  This duty not only anchors the ability of separating spouses to genuinely decide for themselves what constitutes an acceptable bargain, it helps ensure the finality of agreements.  An agreement negotiated with full and honest disclosure and without exploitative tactics will likely survive judicial scrutiny.

 

 

Whether defective disclosure will justify judicial intervention, however, will depend on the circumstances of each case, including the extent of the misinformation and the degree to which it may have been deliberately generated.

 

The Court writes:

 

 

 

 

[1]                              This Court has frequently recognized that negotiations following the disintegration of a spousal relationship take place in a uniquely difficult context.  The reality of this singularly emotional negotiating environment means that special care must be taken to ensure that, to the extent possible, the assets of the former relationship are distributed through negotiations that are free from informational and psychological exploitation.

 

…

 

 

[44]                          Where, therefore, “there were any circumstances of oppression, pressure, or other vulnerabilities”, and if one party’s exploitation of such vulnerabilities during the negotiation  process resulted in a separation agreement that deviated substantially from the legislation, the Court in Miglin concluded that the agreement need not be enforced (paras. 81-83).

 

 

 

[45]                           Notably, the Court also stressed the importance of respecting “the parties’ right to decide for themselves what constitutes for them, in the circumstances of their marriage, mutually acceptable equitable sharing” (para. 73).  Parties should generally be free to decide for themselves what bargain they are prepared to make.  And it is true that most separating spouses appear to determine their agreements without judicial participation (Craig Martin, “Unequal Shadows: Negotiation Theory and Spousal Support Under Canadian Divorce Law” (1998), 56 U. T. Fac. L. Rev. 135, at p. 137).

 

 

 

[46]                          This contractual autonomy, however, depends on the integrity of the bargaining process.  Decisions about what constitutes an acceptable bargain can only authoritatively be made if both parties come to the negotiating table with the  information  needed to consider what concessions to accept or offer.  Informational asymmetry compromises a spouse’s ability to do so (Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34; Marcia Neave, “Resolving the Dilemma of Difference: A Critique of ‘The Role of Private Ordering in Family Law’” (1994), 44 U.T.L.J. 97, at p. 117; Penelope E. Bryan, “Women’s Freedom to Contract at Divorce: A Mask for Contextual Coercion” (1999), 47 Buff. L. Rev. 1153, at p. 1177).

 

 

 

 

 

[47]                          In my view, it flows from the observations and principles set out in Miglin that a duty to make full and honest disclosure of all relevant financial information is required to protect the integrity of the result of negotiations undertaken in these uniquely vulnerable circumstances.  The deliberate failure to make such disclosure may render the agreement vulnerable to judicial intervention where the result is a negotiated settlement that is substantially at variance from the objectives of the governing legislation.

 

Old fashioned computing

Speaking of Dreyfus

I had forgotten the link between the Dreyfus Affair and the founding of Israel. But it was a motivating factor in early Zionism -- a realization, a few decades later dramatically proven true, that Jews were not accepted as an integral part of Europe.

Theodor Herzl had been assigned to report on the trial and its aftermath. Soon afterward, Herzl wrote Der Judenstaat (The Jewish State, 1896) and founded the World Zionist Organization, which called for the creation of a Jewish State in Palestine.

The conviction of Alfred Dreyfus had a radicalizing effect on Herzl, correctly demonstrating to him that Jews, despite the Enlightenment and Jewish assimilation, could never hope for fair treatment in European society.

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

Union hearing an arbitration?

Is a hearing held pursuant to a union constitution an arbitration?  Is the decision of a hearing officer, in such a proceeding, capable of being enforced through the courts as an arbitration award? 

Apparently not. See today's decision in Universal Workers Union (Labourers' International Union of North America, Local 183) v. Ferreira, 2009 ONCA 155:

[55]          In the final analysis, based on the language used, the process contemplated in the Local Constitution, and the nature of the relationship between the parties, although the appellants agreed to be bound by the process contained in article XII, they did not agree to submit disputes to arbitration.  Article XII is nothing more or less than what it appears – an internal mechanism by which disciplinary matters that arise under the terms of the Local Constitution may be resolved without recourse to outside bodies.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Replies to traditional policing needed in Vancouver

I did a post yesterday suggesting stronger police measures were appropriate in Vancouver to deal with street gangs. Two replies were very interesting and worthy of promoting to the main page:

WesternGrit said...
Oh yeah... those "mandatory minimums" are really helping. Most of these youth have no idea how the courts operate, much less what they can be sentenced. Tougher sentences aren't a deterrent - one only needs to look South of the border. They just end up costing us billions more in jail costs. If anything, tougher sentences make "smart" criminals want to stay out of prison more - meaning killing innocents, if they have to, in order to stay out of the clink. The petty criminals are another story. I have two close friends who are corrections workers and youth counselors at Saskatchewan prisons. They are pretty clear with me that most of the youth criminals actually COMMIT crimes to go to prison before the cold winter months. There, these young criminals learn to be better criminals from their gang buddies, uncles, and cousins. To fix the problems with youth crime, gangs, etc., we need to solve the problems that result in this behavior, and not rely on punishment for the "end product"...
February 18, 2009 2:12 PM
Koby said...
There is no evidence that the prospect of death or prison deters the gang members in anyway. Indeed, as many gang members live in the same location and are from similar ethnic backgrounds, getting "tough on crime" only serves to make things worse by helping foster gang culture in these communities. Legalize marijuana. Money from the illegal drug trade is life blood of gang cultural.

The Possibilities Of Partnership

National Post
Thursday, February 19, 2009
Page: A20
Section: Issues & Ideas
Byline: Michael Ignatieff
Source: National Post

U.S. President Barack Obama's visit to Canada offers us an opportunity for partnership that we should seize with both hands.

We won't get out of our economic crisis unless we work with our neighbour to make the North American economy more efficient and competitive. The crisis creates an opportunity for political leadership on both sides of the border, and a chance to break down the barriers that prevent our two economies from reaching their full potential.

A North American agenda begins with a strong defence of continental free trade. President Obama has shown leadership in condemning "Buy American" measures in Congress, and leaders in Canada need to stand up against protectionism in our own country, as well. Protectionist moves in Congress, like the Country of Origin labelling in livestock, continue to hold back our exporters. No country stands to lose more from a protectionist turn in the U. S. than Canada, and we need to say loud and clear that protectionism will lead both of our countries backwards.

Besides a renewed commitment to free trade, we need to work together to ensure that people and goods can move more freely across our borders. Over $1.5-billion in trade crosses the Canada-U. S. border every day, and

there are more than 100 million individual crossings each year.

While our competitors in Europe are tearing down the borders between their economies, our border with the United States is becoming a choke-chain on both of our economies. We've never succeeded in creating the "smart border" we thought we would after 9/11, and in many ways our border practices are less intelligent than ever. We need to invest jointly in border infrastructure, work together to improve security at our key maritime ports and increase pre-clearance for goods away from the border. We should try to persuade the Americans to stop the introduction of the passport requirement

due in June of this year.

A secure but efficient border is crucial for the growth of many industries in Canada, none more so than our automotive sector. We need to work with the U.S. government, but also with industry leaders and autoworkers, to ensure that the rescue package being put together by the Obama administration also safeguards Canadian jobs and product mandates. At the same time, Canada and the United States should develop common emissions standards so that we come out of the current crisis with a green, energy-efficient automobile industry.

President Obama's administration offers Canada the first opportunity in eight years to develop a complementary approach for the sustainable development of natural gas, petroleum and hydroelectric energy. We should immediately begin working toward a common cap-and-trade system, with a hard cap on emissions and defined reduction targets for industrial emissions.

Our environmental partnership should extend into the far north. Canada and the United States should work together, with other northern nations, to protect this region for the whole

globe. We should applaud the President's campaign commitment not to undertake drilling in the Arctic National Wildlife Refuge. We should maintain Canada's long-held legal position that the North West Passage is an inland waterway and not an international strait, but we should not allow our disagreement with the Americans on the issue to preclude bilateral efforts to ensure good stewardship and orderly management by Canadians of passage through the waterway. We need to reinvigorate the Arctic Council so that all northern nations develop common strategies to mitigate the impact of global warming, avoid conflict over resource development and improve the lives of the region's indigenous peoples.

Beyond North America, our two countries can work together to strengthen global institutions. This goes beyond the United Nations and the international climate change protocols. Canada has a good record in regulating our banking and financial services sector. We should work with the Americans and other G20 countries to develop new rules for international global finance to spare the world another financial crisis in the future.

The Americans respect the hard work we have done in Afghanistan. Our military engagement there is drawing to a close, but while we still have troops on the ground, we should work with Richard Holbrooke, President Obama's Special Envoy for Afghanistan and Pakistan, to bring greater strategic coherence to the NATO mission and greater focus to our reconstruction and development efforts.

When President Obama visits us today, we have a choice. We can either complain about unsolved problems or seize the opportunity to excite him with the possibilities of partnership. Together we can make our economies stronger and the world a safer place. Let's seize the chance his visit offers us.

- Michael Ignatieff is the MP for Etobicoke-Lakeshore and leader of the Liberal Party of Canada.

James Morton

Dreyfus is guilty!

As recently as the 1960's the above had a shocking political impact (see Z, the great political thriller).

But today Dreyfus is as forgotten as the French General Staff wished him on Devil's Island.

Last night TCM ran the Paul Muni film about Dreyfus and Zola. It was an amazing film -- the elephant in the bedroom was never mentioned and if you did not know why Dreyfus was different the film would not even hint at it.

And perhaps today that is still an issue. Bias is, to use the phrase, 'at the edge of a sentence'. Unspoken but understood -- yet undefined and impossible to pin down.

James Morton

The Court of Appeal does not retry cases

When the Court of Appeal reviews a trial decision it does so from a very limited perspective. Factual decisions are not reviewed except in extreme situations.

For example see today's decision R. v. Mihalkov, 2009 ONCA 154:

[33]          This court does not retry criminal cases.  The court can test findings of fact made at trial against only the reasonableness standard set out in found in s. 686(1)(a)(i).  The trial judge's findings of fact clear that hurdle.  The circumstances identified by him were all relevant to whether the appellant had an element of control over the counterfeit money and the equipment and material being used to manufacture that money. 

[34]          I do not suggest that the inference drawn by the trial judge was the only available inference, or that the evidence was particularly strong.  Certainly, another trial judge, acting reasonably, could have concluded that the appellant's failure to speak to the authorities and her flight at the time of arrest was consistent with concerns about her own welfare and did not support the inference that she had any control over the contraband material and equipment.  That is not, however, the inference that this trial judge chose to draw.  Assuming the inference he drew is one that a reasonable trier of fact could draw, and I think it was, it is his job and not the function of this court to determine what inference should be drawn. 
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Time for traditional police measures in Vancouver

In this situation the governments, federal and provincial, are right to focus on increased sentences and more police. Gang members, while perhaps specially focussed on respect and anti-social socialization, are quite rational and will respond to traditional criminal law methods. And gosh, those methods are needed -- too many innocent bystanders are being killed! (well, one is too many)

Another brazen shooting in Canada's gang capital
WENDY STUECK AND KATIE HYSLOP

From Wednesday's Globe and Mail


VANCOUVER — Another shooting rocked Vancouver on Tuesday, leaving one man dead and adding to a grim tally that includes a young mother gunned down Monday as she drove with her four-year-old son in the back seat.

The violence comes in the wake of a provincial announcement that steered more money and resources to gang-fighting efforts, and as the federal Minister of Public Safety dubbed Metro Vancouver the national capital of gang activity.

“That's based on the fact that Vancouver has not just the highest number of gangs of any area in the country, but the largest concentration of very sophisticated organized criminals,” said Peter Van Loan, who flew to Vancouver on Tuesday to meet with mayors, police and crime victims, including family members of bystanders killed in gang shootouts.

The recent rash of violence highlights the need for revamped laws that could help stem gang violence, such as a provision that gang-related murders would automatically result in first-degree murder charges, Mr. Van Loan said.

Ottawa has already introduced some changes, such as mandatory minimum sentences for gun offences, but wants to carry through on other commitments including mandatory sentences for drug crimes, Mr. Van Loan said.

Pluto's birthday?

A long time ago, in a different lifetime, I was an astronomer.

I worked at an observatory in Arizona and one of its greatest claims to fame was that it was there that, on this day in 1930, Clyde Tombaugh discovered Pluto, the last planet.

Since then Pluto has bee downgraded to a planetoid -- but, to me, it will always be a planet.

Permitted interventions by a trial judge

Trial judges have a difficult task, especially in criminal or quasi-criminal matters. Where counsel do not do an effective job, or where parties are self represented, the trial judge's task is even more difficult.

A trial judge may intervene and ask questions but only in limited circumstances and only insofar as questions can be asked without the judge losing the appearance (and reality) of impartiality.

Today's decision in R. v. Stucky, 2009 ONCA 151 sets out where such questioning is permitted:

Permitted interventions by a trial judge

[63]          In Brouillard, at p. 44, Lamer J. acknowledged that a trial judge may intervene to ask questions, and, where necessary, he or she has a duty to ask questions where justice requires it.  However, at the same time, he expressly warned that there are definite limits on this right: Brouillard at p. 46.  A trial judge "should confine himself as much as possible to his own responsibilities and leave to counsel…[his or her] function": R. v. Torbiak and Campbell (1974), 18 C.C.C. (2d) 229 (Ont. C.A. ), at pp. 230-231.

[64]          In R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 230, leave to appeal refused, [1986] 1 S.C.R. xiii, Martin J.A. set out three situations in which questions put by a trial judge to a witness may be justified, namely: to clear up ambiguities and call a witness to order; to explore some matter which the witnesses' answers have left vague; or, to put questions which should have been asked by counsel in order to bring out some relevant matter, but which were nonetheless omitted.  He noted, however, that questions put by a trial judge to a witness should generally be put after counsel has completed his or her examination of the witness and, further, that the witness should not be cross-examined by the trial judge during examination-in-chief: Valley at p. 230.  These comments provide guidance as to the timing and nature of interventions that a trial judge may make.

[65]          The first two situations of permitted interventions by the trial judge set out in Valley are self-explanatory.  The third situation in which a trial judge is permitted to intervene, namely, to ask questions that should have been asked by counsel, is not an open-ended invitation to the trial judge to usurp the role of Crown counsel.  The judge cannot leave his or her position of neutrality as a fact-finder and become the cross-examiner: R. v. W.(A.) (1994), 94 C.C.C. (3d) 441 (Ont. C.A. ) Brooke J.A. in dissent, reversed for the reasons given by Brooke J.A., [1995] 4 S.C.R. 51. [66]          Where the appearance of fairness is not maintained at trial, the verdict reached cannot stand and a new trial must be ordered.  In deciding whether or not the appearance of fairness has been compromised, one factor that warrants consideration is whether the trial judge gave counsel an opportunity to ask questions that arise out of the trial judge's questioning of a witness, in particular, the accused.  An additional factor is whether counsel objected to the trial judge's questioning of a witness.  The absence of an objection, however, is not in itself determinative.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Obama signs massive economic stimulus bill into law

U.S. President Barack Obama has signed into law the most sweeping U.S. economic package in decades, a rescue plan designed to create millions of jobs and boost consumer spending.

 

 

 

Of course the focus on this story comes from the apparent irony of the alleged killer and his victim -- that said, every year there are brutal spousal murders committed by people of all sorts of backgrounds, albeit seldom leading to beheadings... .

Islamic TV founder charged with beheading wife: reports

NEW YORK (AFP) - The founder of a US television station aimed at countering violent stereotypes of Muslims has been arrested and charged with beheading his wife, local media

Muzzammil Hassan was charged with second-degree murder of his wife, Aasiya Hassan, whose decapitated body was found Thursday by police at the Bridges TV station in a Buffalo suburb in New York state, The Buffalo News reported Monday.

Sentencing circle ...

This story speaks for itself:

Elders say jail no place for Sask. man whose girls froze to death


Native elders suggested Friday that a father whose two daughters froze to death on a Saskatchewan reserve need not go to prison for his negligence.

The elders, who were part of a sentencing circle for Christopher Pauchay, said he should instead commit to a life of spiritual guidance.

Larry Cachane, chief of the Yellow Quill First Nation, said the reserve is a better place for Pauchay to heal than a jail cell.

A barely audible Pauchay, 25, told the sentencing circle that he has been deeply affected by the deaths of his girls.

Pauchay tried several times to address the circle being held in a town hall close to his home, but managed to speak only briefly between his sobs.

"After what happened, I was in a deep, emotional state," Pauchay told two dozen participants, many of whom were also crying and distraught.

Legal Aid Rates vs. private practice rates

The most legal aid will pay for indigent accused charged with the most serious of crimes in less than $100/hr. Presumably this suggests that, say, sexual assault, is worth no more than an eighth of a civil fraud?

That said, in a free market a lawyer should be allowed to charge whatever the market will allow; but that comes with the reality that normal people would never even dream of paying $850/hr for legal services. Outside the big Toronto firms a very senior lawyer might charge $425/hr for commercial clients and ordinarily such lawyers would have reduced rate for clients who cannot afford such a rate.

Law firm bills Ontario up to $850/hour
TheStar.com - Ontario - Law firm bills Ontario up to $850/hour

Fees on motion offer small peek into government's controversial costs for legal help in nine-year case

February 17, 2009
Tony Van Alphen
BUSINESS REPORTER

Outside lawyers billed the Ontario government and taxpayers up to $850 an hour for work in the province's long-running civil case concerning corruption allegations at its real estate arm, court filings reveal.

Top lawyers at WeirFoulds, which represented the government in litigation involving Ontario Realty Corp., charged between $250 and $850 an hour in ringing up a bill of more than $52,000 on a single motion during 2007, according to the firm's own submissions.

The submissions disclosed four lawyers and three other staff members worked almost 115 hours in preparation and attendance on what one judge called a "straightforward" motion.
A schedule of fees from WeirFoulds showed lawyer Bryan Finlay charged an "actual hourly rate" of $850 for 10 hours of work or $8,500 while colleague Ken Prehogan submitted a rate of $575 for 18.2 hours of duties or $10,465. Both lawyers are senior partners at the prominent Bay Street law firm.

Lawyers with other top Toronto firms say $850 an hour may be somewhat high, but not out of the ordinary if particular case work requires more expertise. But they did question whether it was justified to use senior staff and so much time on such a motion.

Geronimo's death

99 years ago today Geronimo died.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Das Fußballspiels

Fifty years of Castro

Fifty years ago today Castro took power in Cuba.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

U.S. to dump exclusionary rule?

Is the Supreme Court About to Kill Off the Exclusionary Rule?
By ADAM COHEN

In 1957, the Cleveland police showed up at Dollree Mapp’s home looking for a bombing suspect. Ms. Mapp would not let them in without a search warrant, but they entered anyway. The police did not find the bomber, but they came across a trunk containing “lewd and lascivious” books and pictures.

Ms. Mapp was convicted of possessing obscene materials, even though the evidence was taken without a warrant. She was tried in state court, like the overwhelming majority of criminal defendants. So it did her no good that federal courts had applied the so-called “exclusionary rule” since 1914 to bar the use of illegally seized evidence.

In 1961, in Mapp v. Ohio, the Supreme Court reversed Ms. Mapp’s conviction and adopted the exclusionary rule as a national standard. The court acknowledged that the rule might let some criminals go free, but it underscored that it was more important to compel the nation’s police forces to obey the law.

The court carved out exceptions over the years, but the basic rule laid down in Mapp has endured for nearly five decades. Now, Chief Justice John Roberts’s conservative majority on the Supreme Court is working to undo the exclusionary rule in a more fundamental way. It’s been a longstanding interest of Mr. Roberts’s. As a young Reagan administration lawyer, he worked on what he described in a memo as a “campaign to amend or abolish” the rule.

The Mapp decision has had both effects that were predicted when it came down. Some criminals had convictions thrown out, or avoided being charged, because evidence was obtained illegally or found by relying on illegally obtained information. But Mapp also changed the incentives for the police. It gave them less reason to enter a home or tap a phone without a warrant.

The exclusionary rule has always had critics. Long before Mapp, Judge Benjamin Cardozo said it allowed the criminal to go free “because the constable has blundered.” In recent years, it has become Exhibit A for those who argue that defendants get off on technicalities.

In 2006, in Hudson v. Michigan, Chief Justice Roberts assigned the majority opinion to Justice Antonin Scalia, who wrote a sweeping assault on the rationale for excluding illegally obtained evidence. Justice Scalia argued that “the increasing professionalism of police forces,” the increased availability of civil rights lawsuits, and other checks on police wrongdoing have sharply reduced the need for such measures.

Last month, the court eroded the rule still further in Herring v. United States. Writing for the majority, Chief Justice Roberts declared that evidence need not necessarily be disqualified if it was illegally obtained because of errors in police databases. Isolated mistakes of this sort, he insisted, are not among the exclusionary rule’s “core concerns.”

Justice Ruth Ginsburg, in dissent, was right to point out that in the modern age database errors can lead to many people’s rights being denied. The harm to a citizen who is arrested and searched on the street because a bureaucrat has made a computer error, she noted, is just the sort of invasion the founders worried about when they drafted the Fourth Amendment.

After Hudson and Herring, critics of the exclusionary rule have high hopes that the Roberts court will take the ultimate step of overruling Mapp v. Ohio. That would be a great setback for the rule of law.

Despite Justice Scalia’s claims, police misconduct is rampant. In the last few years, the Atlanta and Oakland police departments have had major scandals over officers’ lying to obtain search warrants. In this same period, of course, the federal government engaged in an illegal domestic wiretapping program, the extent of which is still unknown.

The exclusionary rule does more than simply put a check on police misconduct. It protects the integrity of the judicial system. If courts put people like Ms. Mapp in prison based on the actions of lawless, marauding police officers, respect for the law suffers.

There is no denying that the exclusionary rule allows a small number of criminals to go free because the police have blundered — which is certainly no minor matter. But the more faithfully the rule is applied, the more likely the police are to collect evidence lawfully.

As important as it is to convict criminals, the Supreme Court in Mapp rightly insisted that the Constitution must not be trampled in the process. “Nothing can destroy a government more quickly,” the court noted, “than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”

And you thought Canadian courts were slow???

The problems in India are well known and impact the economy. Virtually all significant Indian contracts are drafted to provide any litigation will take place in the United Kingdom only:


India court 466 years behind schedule Judges spend about 5 minutes on cases, but thousands still pending

The Associated Press

NEW DELHI - The High Court in New Delhi is so behind in its work that it could take up to 466 years to clear the enormous backlog, the court's chief justice said in a damning report that illustrates the decrepitude of India's judicial system.

The Delhi High Court races through each case in an average of four minutes and 55 seconds but still has tens of thousands of cases pending, including upward of 600 that are more than 20 years old, according to the report.

The problems of the Delhi High Court, which hears civil, criminal, and constitutional cases, is more the standard than the exception in India.

The country's creaky judicial system has long been plagued by corruption, inefficiency and lack of accountability, often making the rule of law unattainable for all but the wealthy and the well-connected. The United Nations Development Program says some 20 million legal cases are pending in India.

"It's a completely collapsed system," said Prashant Bhushan, a well-known lawyer in New Delhi. "This country only lives under the illusion that there is a judicial system.

"One reason for the delays is that there aren't enough sitting judges. India — a country of 1.1 billion people — has approximately 11 judges for every million people compared with roughly 110 per million in the United States.

India's Justice Ministry last year called for an increase of 50 judges per million people by 2013, but it was unclear how the government would pay for such a massive overhaul.

http://www.msnbc.msn.com/id/29164027/from/ET/
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Madness and modern life

I remember years ago, while reading a magazine on the subway, being violently shoved to the ground by an otherwise ordinary looking man. He proceeded to scream at me about how wicked reading was. Clearly the man was deranged and I forgot about the incident until reading the story below. Modern life has many opportunities for danger -- we rely upon strangers to behave in accordance with normal rules -- to stop at red lights, not to throw bricks off apartment balconies, not to shove people off sidewalks into traffic. Usually we are right in this reliance but sometimes madness takes control.

Accused of pushing teens into path of train, man appears in court
JOSH WINGROVE
Globe and Mail Update with Canadian Press

TORONTO — A psychiatric evaluation has been ordered for a middle-aged man accused of shoving three teens in the path of an oncoming Toronto subway train. In an apparent unprovoked attack, a man pushed the teens toward the train, two narrowly escaping serious injury when they landed on the tracks.

Adenir DeOliveira, 47, of Toronto, appeared in court Saturday and was remanded in custody until a bail hearing Tuesday. Dressed in yellow sweatshirt, khaki pants and sporting dishevelled grey hair, the man was present for five minutes while the court made the order.

Chaos unfolded at Toronto's west-end Dufferin station during the height of rush hour Friday when a man violently disrupted the teens, who were out celebrating a birthday.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4