Sophie Kinsella

No relation to Warren and a fine comic writer -- but is it just me or is the Confessions of a Shopaholic series, and Becky's issues a little outre in the collapsing economy? The movie is amusing but a little awkward, at least in light of the recession ... .
James Morton

Ecclesiastes

The Book of Ecclesiastes has always been a favorite worldwide. 

The Canadian Bible Society put this lovely scripture to Pachelbel's Canon and the accompanying video...and in so doing really nailed the poetry of The Book. 

Be sure  your computer's sound is 'on'...
 

<http://www.biblesociety.ca/free_scriptures/escriptures/ecclesiastes3/ecclesiastes3.html>
James Morton

Canada without CTV?

CTV expects to lose as much as $100-million on its conventional television operations in 2009, painting a bleak portrait of the year ahead in the TV sector.

That announcement was contained in documents filed to federal broadcast regulators that also revealed CTVglobemedia took a $1.7-billion writedown on its television operations at the end of the last quarter.

The figure is the largest in a recent parade of hefty writedowns on television assets this year. In November, CTV rival CanWest Global Communications Corp. announced it was writing down the value of its television assets by $1-billion. This month, Rogers Communications Inc. said it was writing down the value of its City-tv network by $294-million.

James Morton

CUPE Ontario resolution on Israeli universities crosses the line, Liberals say

OTTAWA – Liberals condemned a resolution, passed last weekend by the Ontario wing of the Canadian Union of Public Employees, which calls for a boycott of Israeli universities.

Liberal Justice Critic Dominic LeBlanc said that boycotts or divestment appeals that target Israel for singular condemnation and exclusion are unacceptable.

"The CUPE resolution is reprehensible because it singles out academics for discriminatory treatment because of their nationality," said Mr. LeBlanc. "This goes beyond reasonable criticism—we're seeing Israeli Jews demonized in a way that has absolutely no place in our public discourse."

"I'm greatly disappointed in CUPE Ontario's leadership for working to stifle the free exchange of ideas and opinions that should be at the centre not only of every university campus, but also of our national life as Canadians," Mr. LeBlanc said.

Mr. LeBlanc pointed to a disturbing trend on university campuses, in Canada and elsewhere, where Jewish students are too often made to feel intimidated or even physically threatened because they hold personal views in support of Israel.

"Our commitment to tolerance and openness at Canada's universities must be absolute," said Mr. LeBlanc. "Short-sighted proclamations like last weekend's CUPE resolution help undermine the safe campus environment that should be the right of every student."

Mr. LeBlanc also pointed to widespread academic collaboration between Canadian and Israeli scholars, which continues to benefit both countries.

"It is both foolish and reckless to undermine the relationship between Canadian and Israeli academic institutions with polemics," Mr. LeBlanc said.

Mr. LeBlanc expressed hopes that CUPE members would follow the example of the union's National President, Paul Moist, who has refused to support the resolution passed by the Ontario wing.

"The Liberal Party of Canada unequivocally condemns the CUPE Ontario resolution for the short-sighted intolerance it entails," Mr. LeBlanc said. "I hope that CUPE members across the country, and all Canadians, will do the same."

James Morton

Prison guards' action leads judges to toss out charges

The lawyer listserves have been filled with stories about this for days. Prisoners due in court at 10:00 being brought for 3:30 or not at all. The unfairness is made all the worse because, usually, the prisoner's family spends the entire day at court waiting to be sureties and then nothing happens.


Prison guards' action leads judges to toss out charges:


KIRK MAKIN
Globe and Mail Update



Frustrated Ontario judges are tossing out criminal charges or granting bail in absentia as a response to an apparent job action by prison guards that is preventing inmates from getting to court, defence lawyers from around the province reported yesterday.

The president of the Criminal Lawyers Association, Frank Addario, said his members are having great difficulty getting clients into court, or even contacting them.

"In the past month, there have been repeated delays in prisoner transfers at numerous facilities and detention centres," he said. "We are hearing of judges being so frustrated that they are releasing people on reduced bail to avoid having to bring them to court for release."

Mr. Addario said that in a typical case yesterday, Ontario Court Judge Hugh Atwood stayed weapons charges against a first-time offender because he could not be brought to court three days in a row.

More partisian shots -- the lessons of November have not sunk in???

Yesterday the Prime Minister announced significant anti-gang legislation. To my mind the legislation, while it won't hurt, won't do much good either.

In effect it increases the presumed degree of murders of a certain type and adds a few mandatory minimum sentences. None of this is counterproductive (it won't increase gang violence) but it won't have much impact either. It shows society's horror at the violence (something of some value) but it is more theatre tha crime fighting.

What will make a difference is more police, especially if put into an intense community policing role, and additional power to seize proceeds of crime. (Further investigatory tools, such as easier cell phone taps might help too).

All these measures are justified because of the spread of violence in Canadian cities. Gunplay on Toronto buses, drive by shootings being common in Vancouver, bombings in Montreal all point to a serious problem than needs addressing. And the additional police powers and, yes, even the increased penalties sought by the Prime Minister, are not a serious infringement on the rights of Canadians -- a balance between privacy and the need to stop crime is required.

And no one is saying no.

So why does the Prime Minister say things like this:

"I would call on the opposition to stop parroting the soft-on-crime lines and get on with passing these things," ... . "The truth of the matter is, those who say that tougher penalties on perpetrators will not work, don't want them to work because they don't believe in this kind of approach."?

Again, partisian political cant not tied to the reality. It seems the Prime Minister has not learned the lessons of last November even now.

Talk about dysfunctional family!!!

Mom, daughter allegedly hired hit man

DALLAS, Feb. 24 (UPI) -- A Dallas-area mother and daughter have been charged with conspiring to kill their husband and father to collect on his life insurance.

Shirley Bilbrey Hughes, 56, and Tammie Lafawne Lewis, 31, were arrested Monday, The Dallas Morning News reported. They were being held in lieu of $100,000 bail on charges of solicitation to commit capital murder.

Kenneth Hughes, 57, only learned of the alleged plot when Dallas police called him at work and asked him to come in for questioning.

Detectives say that Shirley Hughes admitted the plan. Her husband, who called his wife "the best-natured woman you'd ever see," was not allowed to talk to her after her arrest but told the newspaper what he wanted to ask.

"I guess I'd ask her if it was true and ask her why," he said. "I don't understand."
The couple lived in Garland just outside Dallas. Lewis returned to her parents home with her 10-year-old son after a recent divorce.

Investigators say that Lewis approached an unidentified witness, asked him to kill her father for a $25,000 payment and gave him a gun as security and as the weapon to be used.

Lessons Learned

How could I not blog this?

Spain accuses NDP MP of being 'xenophobic' and 'anti-Spanish

<http://www.montrealgazette.com/Spain+accuses+being+xenophobic+anti+Spanish/1328744/story.html>
James Morton

ooopsie!

Swedish woman finds 1.13-bln-dollar windfall

STOCKHOLM (AFP) - A Swedish woman received the shock of a lifetime when she found 1.13 billion dollars (883 million euros) more than expected in her bank account, a newspaper reported Tuesday. Cornelia Johansson discovered the windfall on Monday, after she logged on to her Internet bank to pay some bills, regional daily Goeteborgs-Posten said in its online edition.
"The balance was more than 10 billion kronor. It said the amount had been deposited as a correction for a credit card purchase," Johansson's boyfriend Daniel Hoeglund told the daily.

Barring Muslims from scholarship?

When I was in college there was a scholarship, and a good one, that was expressly restricted to Protestant white people. Even in the 70's that was beyond the commonly accepted and I remember thinking that the taint of the limitations on the scholarship would impact the people receiving it. And indeed, over time, fewer and fewer people applied for for the scholarship.

The anger of the settlor of the scholarship is understandable -- I gather he is of Polish background and the brutal murder of the Polish engineer is a scandal that properly haunts the world. But the response is not to say "no Muslims" but rather to, perhaps, require that applicants support the Canadian value of respect for all (and refrain from beheading those they disapprove of).


Former judge wants to bar Muslims from scholarships

A retired judge wants two Ontario universities to bar Muslim students from being awarded scholarships he has established, though the spokesperson for one institution says her school won't support a proposal that "flies in the face of everything we stand for."

Paul Staniszewski said he objects to the "medieval violence" used by the Taliban -- such as when Taliban militants recently kidnapped and beheaded Polish engineer Piotr Stanczak -- and he wishes to "disqualify" Muslim students from receiving financial aid he has paid for.

"I'm reacting to what's going on to people who aren't even soldiers, who are having their heads beheaded and this stuff is shown on the TVs and everything else," Staniszewski told CTV.ca in a phone interview from his Tecumseh, Ont., home, just outside of Windsor.

"I am doing the same thing these people are doing, except I'm not cutting off heads, I'm cutting off applications for help in their studies," he added later in the interview.

Staniszewski, who is in his 80s, has established scholarships at both the University of Windsor and York University's Osgoode Hall Law School.

The University of Windsor website lists three $1,000 scholarships under the name of the judge and his wife, and the York University website lists an award that is also named after the couple.

Pat Paulsen

Assuming either the Left Wing or the Right Wing gained control of the country, it would probably fly around in circles.

Ash Wednesday

Today is Ash Wednesday, the first day of Lent occuring forty-six days (forty days not counting Sundays) before Easter.

Ash Wednesday gets its name from the practice of placing ashes on the foreheads of the faithful as a sign of repentance. The ashes used are gathered after the Palm Crosses from the previous year's Palm Sunday are burned.

At Masses and services of worship on this day, ashes are imposed on the foreheads of the faithful (or on the tonsure spots, in the case of some clergy). The priest, minister, or in some cases officiating layperson, marks the forehead of each participant with black ashes in the shape of a cross, which the worshipper traditionally retains until washing it off after sundown. The act echoes the ancient Near Eastern tradition of throwing ashes over one's head to signify repentance before God (as related in the Bible). The priest or minister says one of the following when applying the ashes:

Remember, O man, that you are dust, and unto dust you shall return. (Latin: Memento homo, quia pulvis es, et in pulverem reverteris.)

—Genesis 3:19

Turn away from sin and be faithful to the Gospel.

—Mark 1:15

Repent, and hear the good news.

—Mark 1:15

The ashes used in the service of worship or Mass are sacramentals, not a sacrament. The ashes are blessed according to various rites proper to each liturgical tradition, sometimes involving the use of Holy Water. In some churches they are mixed with light amounts of water or olive oil, which serve as a fixative.

Transferrable intent in attempt murder

The Criminal Code tells us that a person who intends to kill another person but, by accident or mistake, kills somebody else commits murder.  What the Criminal Code does not tell us, at least not in so many words, is what crime a person commits who intends to kill another person but, by accident or mistake, hurts or injures somebody else. 

Is the person guilty of attempt murder?  – today’s careful decision in R. v. Gordon, 2009 ONCA 170 says not.

The entire decision is worth reading but the most critical passages for analysis are below:

[71]          First, every crime, inchoate or substantive, involves both mens rea and an actus reus. The actus reus of many but not all crimes may include an element of harm, as for example the crimes of unlawful homicide. In most cases, including offences against the person, the mens rea and actus reus relate to the same victim. When transferred intent principles are in play, however, the mens rea relates to an intended victim and the actus reus relates to the actual victim. The principles connect a culpable mental state in relation to one with a result or harm visited upon another.

[72]          The principles underlying transferred intent apply to crimes that require a result as part of the actus reus, for example, death of a human being in cases of unlawful homicide. But inchoate crimes in general, and attempted murder in particular, do not require a result or harm as part of their actus reus. The actus reus is complete upon the first act beyond preparation.

[73]          Second, no modern and reasoned authority is offered to support the claim that transferred intent principles apply to the crime of attempted murder. The decision in R. v. Ménard (1961), 130 C.C.C. 242 (Que. C.A. ), seems to favour the contrary view (that transferred intent principles do not apply to attempted murder), although the decision may be better regarded as one that turns on the specific allegations contained in the indictment.

[74]          In this case, if the appellant intended to kill André Thompson and, by accident or mistake, killed one or more bystanders, the unlawful homicide would be murder under s. 229(b). But it by no means follows that the appellant’s crime is attempted murder where the bystanders were injured but not killed, although it would be murder if they died:  Ancio at p. 250.

[75]          Third, the application of transferred intent principles to the crime of attempted murder may extend liability unduly and foster irrational distinctions. X shoots at Y intending to kill him. In the vicinity of Y are several others. All hear the shot, but none are injured. How far do we extend the scope of liability on the basis of transferred intent?  If someone is injured, a bystander, is X guilty of attempted murder of that person on the basis of transferred intent? And, if so, are we making a distinction on the basis of a consequence that is immaterial to liability for attempted murder – injury or harm?  Recourse to a legal fiction in these circumstances is scarcely necessary to fairly label and punish the crimes committed.

[76]          Fourth, in crimes of attempt, it is not necessary to make a whole crime out of two halves by joining the intent in relation to one victim with the harm caused to another, the purpose that underlies the principle. When the unintended victim suffers no harm, the accused has already committed an inchoate crime in relation to the intended victim, a crime of the same level of gravity as if the intent were to be transferred under the doctrine. Leaving aside principles of concurrent intent, the accused may also be punished in connection with the unintended victim according to his moral culpability and the injury he or she has caused.

[77]          Finally, consummated criminal homicides are, in the last analysis, sui generis. Many of their complexities, of which the transferred intent doctrine (or its statutory surrogate) is one, simply do not travel well to other climes, especially those where harm is not a constituent of the actus reus. Moreover, no necessity exists forcing the transferred intent doctrine to march into territory other than that of actual, consummated criminal homicides. For the remainder, the actuality of the real mens rea, together with its precisely related actus reus, is enough to establish guilt at the appropriate level without any need to resort to an intention – shifting legal fiction:  Harvey v. State, 111 Md. App. 401 at p. 432 (Ct. Spec. App. 1996).

 

 

New anti-gang legislation

Mandatory sentences are not as useful as better policing. Increase the risk of arrest and sentence and crime will go down.


Ottawa to unveil tough anti-gang legislation

The federal government is expected to unveil new legislation Thursday that will include an automatic first-degree murder charge for any gang-related killings, CTV News has learned.

CTV News has learned that the federal government is set to unveil a new law on Thursday that aims to crackdown on gang violence.

In other proposals contained in the bill, drive-by shootings and some serious drug offences would carry a mandatory minimum prison sentence.

A nice refreshing drink???

What if an order is unclear? Do you appeal or do you seek directions from the judicial officer making the order?

The point may seem obscure but it comes up repeatedly especially where orders are complex and have many parts.
Today's very brief Court of Appeal decision in Arenson v. Toronto (City), 2009 ONCA 169 makes the point clearly.

Considering an order alleged to be unclear the Court held:

"If there is any reason for the parties to be concerned with the clarity of the motion judge's order, counsel should obtain clarification from the motion judge."
James Morton

Lewis Mumford

"The clock, not the steam engine, is the key-machine of the modern industrial age. "

Interesting quotation -- I wonder what is the 'key-machine' of the modern information age???
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Strength and beauty

Jewwatch Hoax

One of a odder email hoaxes I have recently seen relates to a very ernest request for signatures on a on-line petition to Google asking the search company to remove Jewwatch from their search results.

www.jewwatch.com does usually show up as the first result if you type in 'jew' on Google. Apparently this has been the case since at least 2001 and perhaps before. The trouble is that the petition's premise, that Google will remove a website from search results based on a petition, is just wrong.

And that makes some sense. For a search to be useful it cannot have constraints based on petitions. For example, while anti-Semites might want to view jewwatch, so might people interested in anti-semitism. For Google to be useful it must allow for unregulated searching.

As for jewwatch itself, the website is a classic of anti-Semitism, albeit with a modern twist. The attacks on Zionism and Jewish domination of the world economy are customary. The Holocaust denial is the usual stuff, albeit with some quality animation. But the linkage of Jews with militarism is new as is the insistence that the website is not bigoted, and supports freedom of religion for Jews (but the website has trouble with Jewish domination of the world through ZOG).

It is curious that the madness of anti-Semitism survives so well in cyberspace. But that's another post.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Sleepy Rasputin

LPC President

As several of you commented the site Mike Crawley seemed to be one of front runners for LPC President.  He would have been a wonderful President (I go way back with Alf Apps and support him but that doesn't mean I didn't see how good Mike could have been). 

 

However, Mike has discontinued his campaign and is encouraging people to speak to and consider Alf.

 

Mike is a great Liberal and a good man!

 

 

Politics is not the art of the possible. It consists in choosing between the disastrous and the unpalatable.
John Kenneth Galbraith

Juvenile crime

This dreadful story is somewhat misleading. In Pennsylvania anyone under 14 is tried as a juvenile and receives special protections similar to those seen in Canada. A break point is seen in the Pennsylvania statutes at age 13 and it seems very likely this case will not go ahead as a criminal matter but more likely as a child welfare case.


11-year-old Pennsylvania boy charged with killing pregnant woman

WAMPUM, Pa. - An 11-year-old boy has been charged in the death of a pregnant woman who was found shot in a bedroom of her western Pennsylvania farmhouse Friday, police said Saturday.

A statement from state police said the boy was charged with criminal homicide and criminal homicide of an unborn child in the killing of 26-year-old Kenzie Marie Houk. The victim was eight months pregnant.

The statement said the boy had been arraigned in District Court and placed in the Lawrence County jail.

Commercial law analysis in family case

Recent Supreme Court of Canada decisions have suggested that domestic contracts ought to be viewed differently from other agreements, partly because of power imbalance issues and partly because of the inherent emotional strain such agreements are accompanied by. Accordingly it is interesting to see a commercial law analysis of a family issue as set out in today's Court of Appeal decision in Andrews v. Lundrigan, 2009 ONCA 160:

[5]         Before this court, counsel for the appellant, who was not counsel before the motion judge, made a different argument. She submits that by May 16, 2005, the parties had reached a settlement because they had agreed on all of the essential terms.  Counsel relies upon the decision of this court in Bogue v. Bogue (1999), 46 O.R. (3d) 1, which in turn relied upon this court's decision in Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. (4th) 97.  The critical passage from Bawitko is found at pp. 103-104: As a matter of normal business practice, parties planning to make a formal written document the expression of their agreement, necessarily discuss and negotiate the proposed terms of the agreement before they enter into it. They frequently agree upon all of the terms to be incorporated into the intended written document before it is prepared. Their agreement may be expressed orally or by way of memorandum, by exchange of correspondence, or other informal writings. The parties may "contract to make a contract", that is to say, they may bind themselves to execute at a future date a formal written agreement containing specific terms and conditions. When they agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract. However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the "contract to make a contract" is not a contract at all. The execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself.

[6]         The appellant says that from May 16 the parties had agreed on all of the essential terms of the settlement, and the fact that there was some uncertainty about whether the written memorandum of those terms was open for signature is beside the point; the parties had made a contract.  As in Bawitko, the fact that the parties contemplated that there was to be a formal written document to the same effect as the terms upon which the parties had agreed does not alter the binding validity of the original agreement or settlement.

[7]         In our view, the motion judge did not err in finding that the June 22 Minutes were no longer open for acceptance. We would also not give effect to the slightly different argument made before us. We address that latter argument first.

[8]         As the passage quoted above from Bawitko indicates, the intention of the parties is important in determining whether or not there was a final settlement that was merely to be recorded in a formal document.  The term "intention" is not used in a subjective sense but rather to refer to whether "in the eyes of a hypothetical onlooker [the parties] appeared to have reached an agreement":  G.H.L. Fridman, The Law of Contract in Canada, 5th ed. ( Toronto: Thomson Carswell, 2006), at p. 6.  In making this determination, the court will look at the conduct of the parties at the time.  As was said in Bawitko at p. 104, if in examining what transpired it is apparent that "execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself", there is no contract, or in this case, no settlement.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Liberal Friends

About 40 Thornhill Liberals attended at a Liberal Friends event this afternoon with Dr. Carolyn Bennett and Susan Kadis -- see the three of us above. The event discussed all sorts of issues relating to the Liberal Party, renewal and politics in general.

New arguments on appeal

Generally speaking an appeal court will not consider arguments not made at trial. 

 

This means it is essential to raise objections and adduce a full record at trial.

 

Sometimes, where the justice of the case demands, an appeal court will consider an issue not raised at trial.  That said, such arguments will be considered only where a proper record allowing the appeal court to deal will the issue exists.  Where such record is not available the appeal court will not consider the issue.

 

Friday’s decision in R. v Roach, 2009 ONCA 156, dealing with the constitutionality of a mandatory minimum sentence, makes the point clearly:

 

[6]               Generally speaking, appeal courts will not entertain arguments not made at trial:  Kaiman v. Graham, [2009] O.J. No. 324 at paras. 18-19 (C.A.).  That general rule applies to constitutional arguments raised for the first time on appeal regardless of whether the arguments invoke the remedial powers of s. 24 of the Charter or the nullifying power in s. 52(1) of the Constitution Act, 1982: e.g. see R. v. L.G. (2007), 228 C.C.C. (3d) 194 at para. 43 (Ont. C.A.);  R. v. Seo (1986), 25 C.C.C. (3d) 385 at 394 (Ont. C.A. ).

[7]               An appellate court does, however, have the discretion to permit new arguments, including Charter arguments.  In exercising that discretion, the appellate court must be satisfied that the new issue raised on appeal can be fully, effectively and fairly addressed on appeal even though it was not raised at trial.  An appellate court will be most inclined to exercise its discretion in favour of hearing a new argument where that new argument can be fully addressed and determined based on the trial record:  e.g. see R. v. Sweeney (2000), 148 C.C.C. (3d) 247 at paras. 34-40 (Ont. C.A. ).  More rarely, an appellate court will hear a new argument based on an evidentiary record laid out for the first time in the court of appeal:  e.g. R. v. Seo, supra. 

[8]               In my view, the more numerous and contentious the evidentiary disputes generated by the material filed on appeal in respect of the issue raised for the first time on appeal, the less likely it is that the appellate court will exercise its discretion in favour of considering the merits of the new argument.  While appeal courts do resolve evidentiary disputes from time to time in the course of deciding appeals, appellate procedures are not designed for that purpose.  The appellate forum and its procedures are not adapted to the weighing of evidence and the finding of facts.  Appeal courts review decisions made at trial.  The appeal process is premised on the issues under appeal having been vetted in the trial court and subjected to the reasoned analysis of the trial court.  If a new argument put forward on appeal can only be effectively and fairly resolved by conducting what amounts to the trial of an issue or several issues in the appellate court, the appellate court should, absent exceptional circumstances where the interests of justice require otherwise, decline to resolve the new issue raised on appeal. 

 

Rockets into northern Israel -- attacks on largely Christian villages

At least one person is injured after two rockets were fired from Lebanon into Israel early Saturday, with one slamming into a village in northern Israel, according to Lebanese and Israeli officials.

The rockets were fired from the Mansouri and al-Qulaila areas, which are near the coastal town of Naqoura, Lebanese security personnel said.

An Israeli army spokesperson said one woman was injured in the attacks. However, Israeli paramedics in Jerusalem said one rocket injured three people who were taken to a hospital in the coastal town of Nahariya.

The exact location of the rocket's landing point is unknown, as Israeli censorship guidelines do not allow media to report specific landing points for rockets fired from Lebanon.

What is known is the rocket exploded in a primarily Christian Arab village in the Galilee region.
The rocket left a hole in the ground next to a house, which was littered with shrapnel.