This week's decision in R. v. Thain, 2009 ONCA 223 deals with the tricky issue of whether disclosure in a criminal case may be considered in weighing an accused evidence.
An accused is entitled to review the evidence of the Crown before trial through disclosure. As a practical matter this means an accused could tailor their testimony to meet the Crown's case.
But if that was to be taken into account, the provision of disclosure would be a trap for an accused.
As a result, especially if the suggestion has not been put to the accused during testimony, the fact an accused has had disclosure may not be taken into account in weighing the accused's evidence.
The Court writes:
[29] In my view, the fact that the accused enjoyed his constitutional right to disclosure had no bearing on his credibility in this case and the trial judge erred in law by stating that it did. Even if the disclosure might possibly have had a bearing on credibility, trial fairness demanded that the accused be confronted with the suggestion and afforded the opportunity to refute it or make submissions before being disbelieved on that account.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Saturday, March 14, 2009
Big news!!!
If you post stuff on the web it may be used against you in Court or otherwise.
Who woulda thunk it? I always assumed that posting something on the web made it clearly private... .
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Religion and intolerance
Religion seems to bring out dogma -- which makes sense seeing that religion is belief and opinion and where the word dogma is derived (from Greek δόγμα "that which seems to one, opinion or belief" and that from δοκέω, "to think, to suppose, to imagine").
Of course here I am using dogma in the Marxist, and negative sense, and not to refer to things like عقيدة in Islam or the Nicene Creed for Eastern Christianity.
Sadly, when discussing religious differences even some Canadians can show an inflexible intolerance.
Some recent online discussions that some readers have seen have made this last point very clear; and put me in mind of a debate between Symmachus, a pagan aristocrat, and St. Ambrose.
I always felt Symmachus (see a translated passage below) had the better of St. Ambrose but, of course, St. Ambrose won the war:
"We ask, then, for peace for the gods of our fathers and of our country. It is just that all worship should be considered as one. We look on the same stars, the sky is common, the same world surrounds us. What difference does it make by what pains each seeks the truth? We cannot attain to so great a secret by one road; but this discussion is rather for persons at ease, we offer now prayers, not conflict. "
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Of course here I am using dogma in the Marxist, and negative sense, and not to refer to things like عقيدة in Islam or the Nicene Creed for Eastern Christianity.
Sadly, when discussing religious differences even some Canadians can show an inflexible intolerance.
Some recent online discussions that some readers have seen have made this last point very clear; and put me in mind of a debate between Symmachus, a pagan aristocrat, and St. Ambrose.
I always felt Symmachus (see a translated passage below) had the better of St. Ambrose but, of course, St. Ambrose won the war:
"We ask, then, for peace for the gods of our fathers and of our country. It is just that all worship should be considered as one. We look on the same stars, the sky is common, the same world surrounds us. What difference does it make by what pains each seeks the truth? We cannot attain to so great a secret by one road; but this discussion is rather for persons at ease, we offer now prayers, not conflict. "
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
you are being watched...
The Stefanie Rengel murder trial will likely turn on a vast exchange of text messages as well as MSN Chat. Using Google Latitude and a little ingenuity your friends can track your cell phone to a location within 3 metres. I recently saw a production order where someone was being tracked by their AirMiles card! And don't even consider the information on Facebook!
The truth is that being anonymous is not really an option (save see below) and Big Brother isn't the State -- it's everybody else!
(To truly disappear you have to not use any of the obvious internet resources; buy disposable cellphones for cash; not use debit cards; pay for everything in cash money. Not easy!!!)
Friday, March 13, 2009
Interpretation of contracts
Today’s Court of Appeal decision in Seip & Associates Inc. v. Emmanuel Village Management Inc., 2009 ONCA 222 has a nice passage about interpreting contracts, and by extension statutes and other legal documents:
On basic principles of contractual interpretation, unless the context dictates otherwise, words in a single document should be presumed to bear the same meaning throughout.
Meow
SPOKANE, Wash. (AP) - The mysterious mewing in Vickie Mendenhall's home started about the time she bought a used couch for $27. After days of searching for the source of the noise, she found a very hungry calico cat living in her sofa.
Her boyfriend, Chris Lund, was watching TV on Tuesday night and felt something move inside the couch. He pulled it away from the wall, lifted it up and there was the cat, which apparently crawled through a small hole on the underside.
Mendenhall contacted Value Village, where she bought the couch, but the store had no information on who donated it. So she took the cat to SpokAnimal CARE, the animal shelter where she works, so it could recover, and contacted media outlets in hopes of finding the owner.
Sure enough, Bob Killion of Spokane showed up to claim the cat on Thursday after an acquaintance alerted him to a TV story about it.
Killion had donated a couch on Feb. 19, and his 9-year-old cat, Callie, disappeared at about the same time.
Her boyfriend, Chris Lund, was watching TV on Tuesday night and felt something move inside the couch. He pulled it away from the wall, lifted it up and there was the cat, which apparently crawled through a small hole on the underside.
Mendenhall contacted Value Village, where she bought the couch, but the store had no information on who donated it. So she took the cat to SpokAnimal CARE, the animal shelter where she works, so it could recover, and contacted media outlets in hopes of finding the owner.
Sure enough, Bob Killion of Spokane showed up to claim the cat on Thursday after an acquaintance alerted him to a TV story about it.
Killion had donated a couch on Feb. 19, and his 9-year-old cat, Callie, disappeared at about the same time.
Heritage Dinner 2009
Last night's Heritage Dinner for the Provincial Liberal Party was a great success. Several thousand gathered to hear a passionate speech by the Premier, among others.
Thursday, March 12, 2009
Overheard on the subway ...
On the subway today "Octavius was pretty ruthless".
One wonders, is there some office manager in Toronto called Octavius who is harsh on employees or were my fellow passengers thinking of Augustus Caesar?
And if Augustus, what was the lead in and follow up???
Undertaking valid though charge a nullity
Today's decision in R. v. Oliveira, 2009 ONCA 219 provides a very helpful review of the law of release by peace officers. A passage from the decision is set out below.
The holding of the case is that an undertaking given by an accused has force independent of the validity of the underlying charge. So an accused may be convicted of breaching an undertaking even where the charge is a nullity.
This is consistent with the general principle that a court order is binding, and its breach is contempt, even if the order is later set aside on appeal. Here there is no order but the undertaking is valid until and unless the underlying charge ceases to be vital.
The Court holds:
[2] Part XVI of the Criminal Code sets out a detailed procedural scheme governing the laying of criminal charges and the arrest, detention and release of persons charged with criminal offences. Among other purposes, Part XVI seeks to minimize, to the extent consistent with the public interest, the pre-trial incarceration of persons charged with criminal offences. To achieve that goal, several provisions of Part XVI permit a peace officer to release an individual, thereby avoiding the need to hold that person in custody pending appearance before a judicial officer: see Criminal Code, ss. 496, 498, 499, 503(2).
[3] A peace officer who arrests an accused may release that person on a promise to appear. That document compels the named person to appear in court on a specified date in answer to the charge set out in the promise to appear: Criminal Code, s. 501. Failure to appear as required is a criminal offence: Criminal Code, s. 145(5).
[4] If an accused is released on a promise to appear, two steps are necessary to bring the criminal charges before the court. First, an information alleging the offence(s) must be laid before a justice "as soon as practicable" and "in any event before the time stated in the … promise to appear": Criminal Code, s. 505. Failure to lay the information "as soon as practicable" renders the promise to appear ineffective and provides a defence to a charge of failure to appear as directed by the promise to appear: R. v. Naylor (1978), 42 C.C.C. (2d) 12 (Ont. C.A.), at p. 19; R. v. Gougeon (1980), 55 C.C.C. (2d) 218 (Ont. C.A.), at pp. 230-31, leave to appeal to S.C.C. refused 35 N.R. 83n; R. v. Markovic (2005), 77 O.R. (3d) 752 (C.A.), at paras. 23-25, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 530.
[5] The second step necessary to move the criminal charges forward also takes place when the information is laid before the justice of the peace. The justice of the peace must decide whether to confirm or cancel the promise to appear. If he or she cancels the promise to appear, it is of no force and effect, the accused is not required to appear at the time and place set out in the promise to appear, and failure to appear is not a criminal offence. A justice of the peace may cancel a promise to appear for various reasons. For example, the justice of the peace may conclude that the criminal charge(s) should not have been brought against the accused, or that some other process should be used to compel the attendance of the accused: Criminal Code, s. 508.
[6] Although the promise to appear and other similar mechanisms for release by the police introduced into the Criminal Code by the Bail Reform Act, S.C. 1970-72 c. 37, gave the police broad powers of release, those powers were deficient in that they did not permit the police to impose conditions as a term of the release. Unless the police were satisfied that the arrested person should be released without any conditions, they had to detain that person pending appearance before a justice of the peace. The justice of the peace could then release that individual on the appropriate bail conditions. This shortcoming was eventually cured by amendments that gave a peace officer who released the person on a promise to appear, the power to require that person to enter into an undertaking before being released: Criminal Code, s. 503(2). That undertaking could contain one or more of the conditions set out in s. 503(2.1) of the Criminal Code and is aptly described as "police bail": see Gary T. Trotter, The Law of Bail in Canada, 2nd ed. (Scarborough, ON: Carswell, 1999), at pp. 94-100.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Daily frauds
It's odd how many frauds are floating around on the internet.
I received a notice from an apparently legitimate company explaining how they were compiling a list of "leading Canadian lawyers" in a specific specialty and telling me I had be found to be among the top 45 in Canada.
How flattering.
Except I do not, and never have, practiced law in that specific specialty.
Curious though I replied to the email and said how delighted I was to be selected -- what's next?
Of course ... An invoice to have my name in a special directory of "leading lawyers" ... .
Any time you have to pay for an honour, the honour is bogus. Perhaps not as obviously as a PhD bought for cash but it's the same idea.
James Morton
Justice minister orders new trial in 1990 murder
The Kyle Unger case shows the dangers of undercover police work where tunnel vision takes over and rather than investigating a crime police efforts are turned to convicting a suspect.
There is a natural human tendency to see what you expect to see. Police techniques intended to extract a confession from someone assumed to be guilty usually lead confessions of guilt.
And that's the problem with the infamous Mr Big investigation technique -- it confirms a bias already held -- the guilt of the suspect is a given and all that is sought is material in support thereof.
(Conservative) Federal Justice Minister Rob Nicholson deserves high praise for taking direct action and ordering a new trial for Unger. There was no ducking of a difficult decision here. I don't always agree with the Conservative Government's positions on crime but here they did right!!!
James Morton
Justice Mullins being assisted in putting on her new robes by Regional Senior Justice Hackland
Ontario needs many more Superior Court judges -- Justice Mullins' appointment and swearing in yesterday will help ease the burden on the court system.
Wednesday, March 11, 2009
The return of purple hair
Walking about downtown today I noticed a fair number of youths with purple hair or at least purple streaks.
I recall when purple hair had the capacity to shock (granted, that's when I was a youth -- some time ago).
No longer.
Indeed, in the current world of Toronto/Vancouver/Montreal or many other centres it's hard to imagine what hairstyle would attract attention.
Perhaps a young woman with a Mohawk would get noticed in Pembroke but certainly not on the Metro in Montreal.
But if there's no shock value why bother dying your hair purple? Perhaps I should try? It likely beats the grey and I suspect it might attract some attention if I came to court with a purple Shaggy ... .
James Morton
Jewish Tribune
The Jewish Tribune is not a "Liberal Friendly" paper by any stretch of the imagination. This story shows the significant strides made by the Liberal Party in outreach to the Jewish community, even the conservative (and Conservative) community.
Liberals join Conservatives, condemn IAW, CUPE resolution, but no specific NDP policy
Written by the Jewish Tribune staff
Tuesday, 10 March 2009
TORONTO - Michael Ignatieff, leader of the Liberal Party of Canada, has gone on record in strong condemnation of both Israeli Apartheid Week (IAW) and the motion by the Ontario wing of Canadian Union of Public Employees (CUPE) to boycott Israel.
In fact, an op-ed by Ignatieff, articulating his position on this issue, appeared in the National Post last week. A private meeting had been held earlier between B'nai Brith Canada leaders and the Liberal leader, in which these same concerns were raised.
"Labelling Israel as an apartheid state is a deliberate attempt to undermine the legitimacy of the Jewish state itself," Ignatieff stated. "IAW singles out one state, its citizens and its supporters for condemnation and exclusion, and it targets institutions and individuals because of what and who they are - Israeli and Jewish.... IAW goes beyond reasonable criticism into demonization. It leaves Jewish and Israeli students wary of expressing their opinions, for fear of intimidation."
Regarding CUPE Ontario, it "has joined the chorus of denunciations of Israel on our campuses," Ignatieff said. The resolution passed recently to boycott Israeli academics is "an unacceptable violation of academic freedom."
This attitude is compatible with the stand taken by Stephen Harper's Conservative government. As Jason Kenney, minister of citizenship, immigration and multiculturalism, had stated in Parliament, IAW is "a systematic effort to delegitimize the democratic homeland of the Jewish people.... Jewish students at campuses across the country are subsequently feeling increasingly vulnerable. We condemn these efforts to single out and attack the Jewish people and their homeland in this terrible way."
Similarly, MP John Volpe (Eglinton-Lawrence) has stood up in Parliament against events such as IAW, which "inevitably sow discord, promote negative stereotyping and fuel hatred."
In Montreal, MP Irwin Cotler (Mount Royal) told a Jewish Tribune reporter during IAW that Jewish students have been feeling intimidated and fearful on campus for quite some time, and the events of the week only make the situation worse.
"Israeli Apartheid Week slides inexorably into the indictment of Israel not only as an apartheid state, but as a Nazi state," he said.
Other political leaders to condemn IAW included MP James Lunney (Nanaimo), who said its organizers "must not have a clear understanding of apartheid itself,"
The Jewish Tribune was in contact with NDP leader Jack Layton's office, but there was no statement forthcoming that specifically addressed IAW.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Lifting the stay in bankruptcy
When a creditor seeks to lift the automatic stay arising from an assignment in bankruptcy that creditor must show, among other things, that the claim has some merit. It must be a claim with a chance of success: see the Court of Appeal's decision in Re Ma 2001 CanLII 24076 (ON C.A.).
That raises the question, just now decided in Kandasamy (Re), 2009 CanLII 7763 (ON S.C.), whether the defence's strength is to be considered in determining whether the claim has a chance of success. The answer appears to be 'no'.
The Court is to review the merits of the claim only and not to consider whether the defence is strong. (To this writer's view that position seems wrong. In this case the defence was, on its face, weak. What if an absolutely solid defence was presented? Surely that should be considered?).
The Court held:
Merits of the Claim
In Re Ma the Court of Appeal indicates that a court considering whether to lift the stay should examine the "merits of the proposed action." In this case, the Bankrupt wants to examine the proposed merits of his defence to the fraud allegation. To my mind these are not the same thing. For the Bankrupt to be successful in his defence a trier of fact will have to find the evidence of the Bankrupt credible. If that happens, it may be that the Bankrupt has a full defence. On the other hand, even if the Bankrupt is found to be credible, and his story is accepted by the court, a judge still might find that the Bankrupt was wilfully blind and thus nevertheless liable for the fraud. These are not questions which I can and or should determine at this stage. As a result I am not able to say that the proposed BNS claim is without merit.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
That raises the question, just now decided in Kandasamy (Re), 2009 CanLII 7763 (ON S.C.), whether the defence's strength is to be considered in determining whether the claim has a chance of success. The answer appears to be 'no'.
The Court is to review the merits of the claim only and not to consider whether the defence is strong. (To this writer's view that position seems wrong. In this case the defence was, on its face, weak. What if an absolutely solid defence was presented? Surely that should be considered?).
The Court held:
Merits of the Claim
In Re Ma the Court of Appeal indicates that a court considering whether to lift the stay should examine the "merits of the proposed action." In this case, the Bankrupt wants to examine the proposed merits of his defence to the fraud allegation. To my mind these are not the same thing. For the Bankrupt to be successful in his defence a trier of fact will have to find the evidence of the Bankrupt credible. If that happens, it may be that the Bankrupt has a full defence. On the other hand, even if the Bankrupt is found to be credible, and his story is accepted by the court, a judge still might find that the Bankrupt was wilfully blind and thus nevertheless liable for the fraud. These are not questions which I can and or should determine at this stage. As a result I am not able to say that the proposed BNS claim is without merit.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Police nab suspects in 32 armed robberies
These are the types of crimes that lead to calls for youth crime initiatives -- and rightly so. What could motivate such crimes from such youths? An interesting sidenote for gun control -- none of these especially horrific robberies involve firearms ...
Police nab suspects in 32 armed robberies
TIMOTHY APPLEBY
March 11, 2009
Three Brampton teens are in custody and a fourth suspect is on the run, all alleged to have used knives, meat cleavers and masks in a 32-store string of armed robberies described as one of the most concerted crime rampages the Toronto hold-up squad has seen in years.
The trio were arrested in Etobicoke late on Monday afternoon, after patrolling police officers attached to the Toronto Anti-Violence Intervention Strategy - a community policing initiative that targets violent offenders - spotted four young men loitering in a laneway near Lakeshore Boulevard West and 31st Street.
The suspects fled, two of them discarding butcher knives. Three of the group, aged 18 and 19, were caught nearby, while the fourth escaped.
The arrests were quickly linked to a series of Toronto-wide robberies that began in the second week of December and targeted retail outlets in general and gas stations in particular.
Police believe the four suspects were about to commit a 33rd robbery when they were interrupted.
"These were takeover-style robberies, violent robberies, and [the perpetrators] were all masked and armed with meat cleavers and knives," said Detective Sergeant Shawn Getty of the holdup squad.
Police nab suspects in 32 armed robberies
TIMOTHY APPLEBY
March 11, 2009
Three Brampton teens are in custody and a fourth suspect is on the run, all alleged to have used knives, meat cleavers and masks in a 32-store string of armed robberies described as one of the most concerted crime rampages the Toronto hold-up squad has seen in years.
The trio were arrested in Etobicoke late on Monday afternoon, after patrolling police officers attached to the Toronto Anti-Violence Intervention Strategy - a community policing initiative that targets violent offenders - spotted four young men loitering in a laneway near Lakeshore Boulevard West and 31st Street.
The suspects fled, two of them discarding butcher knives. Three of the group, aged 18 and 19, were caught nearby, while the fourth escaped.
The arrests were quickly linked to a series of Toronto-wide robberies that began in the second week of December and targeted retail outlets in general and gas stations in particular.
Police believe the four suspects were about to commit a 33rd robbery when they were interrupted.
"These were takeover-style robberies, violent robberies, and [the perpetrators] were all masked and armed with meat cleavers and knives," said Detective Sergeant Shawn Getty of the holdup squad.
St Matthew Passion
On today's date in 1829, Felix Mendelssohn arranged and conducted a performance in Berlin of Bach's St Matthew Passion. The orchestra and choir were provided by the Berlin Singakademie. The success of this performance (the first since Bach's death in 1750) was an important element in the revival of J.S. Bach's music in Germany and, eventually, throughout Europe. It earned Mendelssohn widespread acclaim at the age of twenty. It also led to one of the very few references which Mendelssohn ever made to his origins: 'To think that it took an actor and a Jew's son (Judensohn) to revive the greatest Christian music for the world!'
James Morton
James Morton
Tuesday, March 10, 2009
What were they thinking???
There are no cars built in North America worth giving away?
Lotto corp. blasted for buying foreign cars as prizes
KAREN HOWLETT
Globe and Mail
TORONTO — Ontario's scandal-plagued lottery corporation is embroiled in controversy again, this time over its "crappy decision" to buy European-made luxury cars as prizes instead of ones produced in the province's ailing auto sector.
George Smitherman, the Ontario cabinet minister responsible for Ontario Lottery and Gaming Corp., told reporters on Tuesday that he admonished the top executive of the Crown agency over the decision to buy 22 Mercedes Benz cars, which will be given away as prizes.
Mr. Smitherman said it is too late to undo this purchase, but he said he put CEO Kelly McDougald on notice that he won't tolerate another "huge lapse in judgment" like this, especially at a time when domestic car makers are laying off thousands of workers amid slumping demand.
James Morton
Lotto corp. blasted for buying foreign cars as prizes
KAREN HOWLETT
Globe and Mail
TORONTO — Ontario's scandal-plagued lottery corporation is embroiled in controversy again, this time over its "crappy decision" to buy European-made luxury cars as prizes instead of ones produced in the province's ailing auto sector.
George Smitherman, the Ontario cabinet minister responsible for Ontario Lottery and Gaming Corp., told reporters on Tuesday that he admonished the top executive of the Crown agency over the decision to buy 22 Mercedes Benz cars, which will be given away as prizes.
Mr. Smitherman said it is too late to undo this purchase, but he said he put CEO Kelly McDougald on notice that he won't tolerate another "huge lapse in judgment" like this, especially at a time when domestic car makers are laying off thousands of workers amid slumping demand.
James Morton
Madoff pleads?
This seems, on its face, to be a bad deal for Madoff.
He wasn't likely to win his trial, but he might, and in any event he stays free until then. By pleading now he goes to jail, basically forever; so what motivates him?
It can't be money -- sometimes people want to avoid legal fees and so plead guilty but here Madoff, presumably, was paying his lawyer with money otherwise frozen. Put otherwise, he was paying his lawyer with money he defrauded from others. His legals were being paid with 'other people's money'.
It could be remorse. But I've done lots of criminal cases and that's pretty well unheard of in white collar crime. Murder, sexual assault, criminal negligence causing death, sure there you see remorse leading to early guilty pleas. But not fraud.
So what is it?
At a guess it's his family. There is a deal -- despite what the prosecutors say -- and the deal is to let Madoff take the fall for everyone. I'd be surprised if his sons actually were involved in wrongdoing (it seems Madoff kept them pretty far away from the truth) but that wouldn't stop a prosecution and possible convictions for something. Look at Lord Black's co-accused -- at least one of them really didn't do anything wrong and he was convicted.
There's an old story about Stalin. True or not it's telling.
Stalin executed a young man and that same night demanded that the young man's father come to dinner and tell jokes and sing.
The father did as his was told.
Why?
Because the father was a coward?
No; it was because the father had another son.
Madoff to plead guilty to 11 charges
Former Wall Street baron likely to spend rest of his life in prison
David Glovin and Erik Larson,
National Post
Bernard Madoff will plead guilty in two days to fraud charges in a Ponzi scheme that was the largest in U.S. history, his lawyer Ira Sorkin said in a court hearing Tuesday.
Madoff appeared in Manhattan federal court Tuesday and waived a possible conflict of interest by his attorney, Ira Sorkin.
In the course of the hearing, Mr. Sorkin said that Madoff will plead guilty to fraud charges on March 12.
The guilty plea has been expected since March 6, when Madoff's lawyer said his client would agree to be prosecuted without a grand jury indictment.
Madoff, who is free on US$10-million bail, is likely to spend the rest of his life in prison after pleading guilty.
AFP reported that prosecutors would seek a 150-year prison term for the ex-Wall Street baron.
Madoff faces 11 criminal charges including securities fraud, mail fraud, wire fraud, three counts of money laundering and filing false statements with the Securities and Exchange Commission, said U.S. assistant attorney general Marc Litt.
"There is no plea agreement," Mr. Litt said, meaning Madoff has to plead guilty to all 11 counts.
Madoff, 70, was arrested on Dec. 11 and charged with fraud for using billions of dollars from new investors to pay off old ones. The day before, he told relatives that his business was "one big lie," prosecutors said in court papers.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Things seen
A large Free Tibet rally in downtown Toronto. The crowd was orderly and well behaved. My sense is there were about 1500 protesters.
Dunsmuir interpreted by the Supreme Court of Canada
The crucial Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9 made clear that there was deference required to administrative decisions and that there were only two standards of review: correctness and reasonableness.
Last week's decision in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 explains and clarifies Dunsmuir.
A summary of the Court's decision follows:
Dunsmuir recognized that, with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision has been allocated to administrative decision makers in matters that relate to their special role, function and expertise. A measure of deference is appropriate whether or not the court has been given the advantage of a statutory direction, explicit or by necessary implication.
A legislature has the power to specify a standard of review if it manifests a clear intention to do so. However, where the legislative language permits, the court (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based in part on Dunsmuir including a restrained approach to judicial intervention in administrative matters.
Dunsmuir establishes that there are now only two standards of review: correctness and reasonableness. The relevant factors include: (1) the presence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation — the IAD determines a wide range of appeals under the IRPA and its decisions are reviewable only if the Federal Court grants leave to commence judicial review; (3) the nature of the question at issue before the IAD — Parliament has provided in s. 67(1)(c) a power to grant exceptional relief and this provision calls for a fact dependent and policy driven assessment by the IAD itself; and (4) the expertise of the IAD dealing with immigration policy. These factors must be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case.
Where the reasonableness standard applies, it requires deference. Reviewing courts ought not to reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Liberal Friends of Israel and Purim
Chaim Yehashua Munitz, Mendel Chesney and Gary GladstoneLiberal Friends of Israel sponsored a reading of the Book of Esther. Many thanks the Yeshiva Lubavitch.
Here is the Purim story:
The story of Purim is a great tale. There is a beautiful, courageous heroine, an all powerful king, a loyal cousin, and a villain who gets foiled by his own evil plans. Read and enjoy!
Once upon a time, between the destruction of the First Temple and the building of the Second Temple, the Jews were almost destroyed. In the city of Shushan, Vashti, the Queen of Persia, refuses to obey the order of the King of Persia, Ahasuerus, to appear before his guests. The King then searches the country for a new queen.
From among hundreds of applicants, Esther, cousin of Mordechai the Jew, is chosen. The King's Prime Minister was an evil man named Haman.
Haman, a descendant of the tribe of Amalek, hates the Jews and decides to kill them. He convinces King Ahasuerus to issue an edict which orders the destruction of all Jews in the land. Mordechai pleads with Esther to save the Jewish people by talking to the King.
At the risk of her own life, Esther appears before the King without being summoned by him. She reveals her own Jewish identity to the King and reveals Haman's evil plans. The King is outraged at Haman, and he issues a decree to make Haman the victim of his own infamous plot.
Haman and his sons are killed, and the Jews are saved.
Tory support plummets in Quebec, poll finds
Tory support plummets in Quebec, poll finds
DANIEL LEBLANC
From Tuesday's Globe and Mail
OTTAWA — Conservative support has plunged in Quebec, according to a new poll that suggests the party would lose some of its 10 seats in the province if an election were held today and would again be unable to form a majority government.
The party has benefited in the rest of the country from the “afterglow” of U.S. President Barack Obama's recent to visit to Ottawa, regaining the lead over the Liberal Party, but it may not be enough to make up for the big drop in Quebec.
Only 10 per cent of Quebeckers would vote for the Conservative Party today, according to a poll conducted by The Strategic Counsel for The Globe and Mail/CTV News. That's down from 17 per cent in last month's poll and 22 per cent in the October election.
The Liberals, under new leader Michael Ignatieff, were the beneficiaries of much of the dissatisfaction, rising to 30-per-cent vote support from 24 per cent in February. The Bloc Québécois remains in first place in Quebec, with the support of 40 per cent of respondents.
The numbers suggest that the some of the 10 Conservative seats in Quebec are at risk, especially in and around Quebec City.
“Those ridings would definitely be in play with those numbers,” said Strategic Counsel pollster Peter Donolo, noting the Conservatives seem to be in the “bad books of francophone Quebeckers.”
According to research firm Léger Marketing, the Conservatives have not been below 10 per cent in the polls since Dec. 2005.
The Conservatives started losing ground in Quebec in the last election over cuts to cultural programs, and their decline accelerated after a series of attacks by Prime Minister Stephen Harper in December against separatists forces in the province.
Nationally, the Conservative Party has the support of 35 per cent of respondents, a four-point lead over the Liberal Party at 31 per cent. The NDP is in third place at 16 per cent and the Green Party has 10 per cent.
In last month's Strategic Counsel poll, the Liberal Party was at 33 per cent nationally, enjoying a one-point lead over the Conservative Party.
Mr. Donolo said the Liberals were still struggling to break through with women voters, as well as residents in medium-size cities.
In addition, Mr. Harper obtained largely positive media coverage during Mr. Obama's one-day visit to the nation's capital Feb. 19.
“There is a bit of an afterglow of Obama. It didn't hurt Mr. Harper and the Conservatives to be seen in his presence, and to get the lion's share of the news from the Obama visit,” Mr. Donolo said.
The Strategic Counsel polled 1,000 respondents between March 5 and 8. The margin of error is 3.1 percentage points at the national level and, given the smaller sample size, 6.3 points in Quebec.
In Quebec, some Conservative strategists and officials have been predicting their own decline ever since Mr. Harper started attacking a proposed Liberal-NDP coalition because it had Bloc Québécois support. Mr. Harper has not changed his strategy, brushing off a question in the House of Commons last week from the “separatist party.”
Still, the Conservatives have not written off the province, officially announcing over the weekend the creation of a new “structure” in Quebec to oversee the work of party organizers. Mr. Harper's Quebec lieutenant, Public Works Minister Christian Paradis, has told party workers he has obtained more financial resources for them in the province.
In addition, Mr. Paradis said the riding associations in Quebec will be able to join forces in regional clusters, given the province is already broken up in about 100 regional administrations.
“Individual ridings associations have been given additional flexibility,” a Tory official said.
DANIEL LEBLANC
From Tuesday's Globe and Mail
OTTAWA — Conservative support has plunged in Quebec, according to a new poll that suggests the party would lose some of its 10 seats in the province if an election were held today and would again be unable to form a majority government.
The party has benefited in the rest of the country from the “afterglow” of U.S. President Barack Obama's recent to visit to Ottawa, regaining the lead over the Liberal Party, but it may not be enough to make up for the big drop in Quebec.
Only 10 per cent of Quebeckers would vote for the Conservative Party today, according to a poll conducted by The Strategic Counsel for The Globe and Mail/CTV News. That's down from 17 per cent in last month's poll and 22 per cent in the October election.
The Liberals, under new leader Michael Ignatieff, were the beneficiaries of much of the dissatisfaction, rising to 30-per-cent vote support from 24 per cent in February. The Bloc Québécois remains in first place in Quebec, with the support of 40 per cent of respondents.
The numbers suggest that the some of the 10 Conservative seats in Quebec are at risk, especially in and around Quebec City.
“Those ridings would definitely be in play with those numbers,” said Strategic Counsel pollster Peter Donolo, noting the Conservatives seem to be in the “bad books of francophone Quebeckers.”
According to research firm Léger Marketing, the Conservatives have not been below 10 per cent in the polls since Dec. 2005.
The Conservatives started losing ground in Quebec in the last election over cuts to cultural programs, and their decline accelerated after a series of attacks by Prime Minister Stephen Harper in December against separatists forces in the province.
Nationally, the Conservative Party has the support of 35 per cent of respondents, a four-point lead over the Liberal Party at 31 per cent. The NDP is in third place at 16 per cent and the Green Party has 10 per cent.
In last month's Strategic Counsel poll, the Liberal Party was at 33 per cent nationally, enjoying a one-point lead over the Conservative Party.
Mr. Donolo said the Liberals were still struggling to break through with women voters, as well as residents in medium-size cities.
In addition, Mr. Harper obtained largely positive media coverage during Mr. Obama's one-day visit to the nation's capital Feb. 19.
“There is a bit of an afterglow of Obama. It didn't hurt Mr. Harper and the Conservatives to be seen in his presence, and to get the lion's share of the news from the Obama visit,” Mr. Donolo said.
The Strategic Counsel polled 1,000 respondents between March 5 and 8. The margin of error is 3.1 percentage points at the national level and, given the smaller sample size, 6.3 points in Quebec.
In Quebec, some Conservative strategists and officials have been predicting their own decline ever since Mr. Harper started attacking a proposed Liberal-NDP coalition because it had Bloc Québécois support. Mr. Harper has not changed his strategy, brushing off a question in the House of Commons last week from the “separatist party.”
Still, the Conservatives have not written off the province, officially announcing over the weekend the creation of a new “structure” in Quebec to oversee the work of party organizers. Mr. Harper's Quebec lieutenant, Public Works Minister Christian Paradis, has told party workers he has obtained more financial resources for them in the province.
In addition, Mr. Paradis said the riding associations in Quebec will be able to join forces in regional clusters, given the province is already broken up in about 100 regional administrations.
“Individual ridings associations have been given additional flexibility,” a Tory official said.
Monday, March 9, 2009
Peter MacKay as secretary-general of NATO?
Interesting concept and, to a degree, flattering to Canada. Certainly Peter MacKay is a good face for NATO -- one might wonder if he would be a lesser rival to the Prime Minister as Secretary -General. Certainly he is one of the more competent Cabinet Ministers so his loss would be felt; but he is a little to 'red' for the Conservatives so perhaps there's another reason to want him gone.
James Morton
James Morton
Cold cases
The main problem with very cold cases (here the crimes are over 40 years old) is that the wrongdoer may well be long dead or unavailable. Any way of linking the crime to the criminal may be impossible to find. That said, the identification of the body brings some closure and sometimes a prosecution is possible.
Police link three unsolved murders over 40-year span Police say 1967 slaying of Eric Jones of Noelville, Ont., linked to two others years apart
National Post
Monday, Mar 9, 2009
TORONTO -- He was 18 when he was found slain in 1967 and on Monday Ontario Provincial Police put a name to the victim in the 42-year-old case. OPP used DNA testing and facial reconstruction to identify the skeletal remains discovered more than four decades ago as Eric Jones of Noelville, Ont.
OPP said the Centre of Forensic Sciences confirmed the identity of the mystery remains after family members of Mr. Jones learned of their investigation through a media report.
Mr. Jones was living in Toronto and was last seen in April 1967. His remains were found in December 1967 by a hunter in a wooded area of Balsam Lake provincial park near Coboconk, Ont.
Police said he was found naked with his hands bound by an three-metre length of twine. In 2006, police released facial reconstructions of Mr. Jones and of a second man found murdered near Schomberg, Ont. in 1968. He was also found unclothed, with his hands bound by shoelaces. Members of the public quickly identified the Schomberg victim as 17-year-old Richard Hovey of Fredericton, and DNA testing confirmed that finding.
Authorities have also linked the two murders with a third discovery of human remains near Markham, in 1980, citing numerous similarities between the victims and locations in which they were discovered.
All three cases had turned cold after initial probes, but were reactivated in 2006 when police decided to apply modern forensic techniques in the hopes of gleaning new leads.
James Morton
Police link three unsolved murders over 40-year span Police say 1967 slaying of Eric Jones of Noelville, Ont., linked to two others years apart
National Post
Monday, Mar 9, 2009
TORONTO -- He was 18 when he was found slain in 1967 and on Monday Ontario Provincial Police put a name to the victim in the 42-year-old case. OPP used DNA testing and facial reconstruction to identify the skeletal remains discovered more than four decades ago as Eric Jones of Noelville, Ont.
OPP said the Centre of Forensic Sciences confirmed the identity of the mystery remains after family members of Mr. Jones learned of their investigation through a media report.
Mr. Jones was living in Toronto and was last seen in April 1967. His remains were found in December 1967 by a hunter in a wooded area of Balsam Lake provincial park near Coboconk, Ont.
Police said he was found naked with his hands bound by an three-metre length of twine. In 2006, police released facial reconstructions of Mr. Jones and of a second man found murdered near Schomberg, Ont. in 1968. He was also found unclothed, with his hands bound by shoelaces. Members of the public quickly identified the Schomberg victim as 17-year-old Richard Hovey of Fredericton, and DNA testing confirmed that finding.
Authorities have also linked the two murders with a third discovery of human remains near Markham, in 1980, citing numerous similarities between the victims and locations in which they were discovered.
All three cases had turned cold after initial probes, but were reactivated in 2006 when police decided to apply modern forensic techniques in the hopes of gleaning new leads.
James Morton
Shakespeare's picture
There have been so many claims for a "true" picture that I hesitate to believe this one, but it's an interesting story nevertheless... .LONDON — Scholars studying the life and times of William Shakespeare unveiled a portrait today believed to be the only authentic image of the Bard painted during his lifetime.
Experts at the Shakespeare Birthplace Trust think the painting was used as the basis for the enduring engraving of Shakespeare that graces the cover of the First Folio collection of his plays. Paul Edmondson, the group's director of learning, said it was also used as a basis for the famous portrait of the playwright that hangs in the Folger Shakespeare Library in Washington.
“What makes it so important is that it's a portrait of William Shakespeare made during his lifetime,” he said. “We think it was painted in 1610 and several copies of it were made early on, including the engraving. So our portrait is the primary version of one of the greatest portraits of Shakespeare.”
When it's over it's over
Sometimes counsel try to keep arguing a case after it's over. Judges don't like that. Witness today's Court of Appeal decision in Harrington v. Harrington, 2009 ONCA 190:
[1] On January 19, 2009 this court released its decision allowing the appellant's appeal in part and invited costs submissions from the parties. The appellant's counsel appears to have taken this as an invitation to reargue his case. It was not.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
[1] On January 19, 2009 this court released its decision allowing the appellant's appeal in part and invited costs submissions from the parties. The appellant's counsel appears to have taken this as an invitation to reargue his case. It was not.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
Tory's future?
Toronto Councillor Denzil Minnan-Wong says he won't "write off" former PC leader John Tory's chances in politics, insisting he will always have a place in public life should he want it.
Minnan-Wong and a handful of other councillors threw their support behind Tory's 2003 unsuccessful bid for mayor. He finished second behind David Miller.
"I think John Tory is the best mayor Toronto never had," Minnan-Wong said yesterday. "There is a lot of goodwill between the public and John."
The former Progressive Conservative leader was defeated last week by Liberal Rick Johnson in a byelection held in the riding of Haliburton-Kawartha Lakes-Brock. Former Conservative MPP Laurie Scott resigned her seat so Tory could run in the riding.
The day after his defeat, Tory announced he was leaving politics. He couldn't be reached for comment yesterday.
A former adviser to Ontario premier Bill Davis and prime minister Brian Mulroney in the 1980s, Tory was seen as premier-in-waiting after winning the PC leadership in 2004.
A former Rogers executive, h
e entered the 2007 election in a dead heat with Liberal Dalton McGuinty, but his hopes were dashed after a plan to extend public funding to faith-based schools proved to be unpopular.
Minnan-Wong and a handful of other councillors threw their support behind Tory's 2003 unsuccessful bid for mayor. He finished second behind David Miller.
"I think John Tory is the best mayor Toronto never had," Minnan-Wong said yesterday. "There is a lot of goodwill between the public and John."
The former Progressive Conservative leader was defeated last week by Liberal Rick Johnson in a byelection held in the riding of Haliburton-Kawartha Lakes-Brock. Former Conservative MPP Laurie Scott resigned her seat so Tory could run in the riding.
The day after his defeat, Tory announced he was leaving politics. He couldn't be reached for comment yesterday.
A former adviser to Ontario premier Bill Davis and prime minister Brian Mulroney in the 1980s, Tory was seen as premier-in-waiting after winning the PC leadership in 2004.
A former Rogers executive, h
e entered the 2007 election in a dead heat with Liberal Dalton McGuinty, but his hopes were dashed after a plan to extend public funding to faith-based schools proved to be unpopular.
Sunday, March 8, 2009
Erasmus
When Popes and Emperors make the right decisions I follow, which is godly; if they decide wrongly I tolerate them, which is safe.
James Morton
James Morton
Justice Department and diversity issues
OTTAWA -- The Justice Department, confronting public allegations that it drives away visible minorities by denying them promotions and other opportunities, is requiring hundreds of managers nationwide to take anti-racism training.
The "national diversity awareness initiative" is part of a broad effort to change a departmental culture that a former government lawyer described as "toxic" when he testified at a Senate hearing on employment equity in the public service.
Mark Persaud, who came to Canada from Guyana as a refugee in 1983, told the Senate committee last year that he quit the Justice Department in 2003 because he was fed up with the "overt racism and discrimination of employees."
The department, which denied at the time that it had a problem, now acknowledges that it needs to address the fact that employees in the top salary brackets are almost exclusively white.
Justice Canada will begin this spring to hold up to 22 weekend workshops for managers in major Canadian cities and attendance will be mandatory, said Donna Miller, an associate deputy minister.
As many as 660 managers will be required to attend.
"The department has always been committed to diversity," Miller said. "What happened last year I think gave up a boost in how we focused on this."
Persaud, who joined the Justice Department in 1993 after graduating from Osgoode Hall Law School in Toronto, drew national headlines in February 2008 when he slammed the department's track record.
He told the committee that all the non-white lawyers he knew eventually left Justice because they were tired of being stuck at the bottom of the career ladder. They didn't get the best files, were passed over for promotions and lacked mentors, he said.
Deputy Minister John Sims, in a letter last year to the Ottawa Citizen, refuted Persaud's allegations by writing that the department "does not tolerate discrimination or racism in any form" and offers "a fair and welcoming work environment."
Sims was not available for an interview, but Miller acknowledged that the department recognizes there are too many visible minorities in the bottom pay rungs.
James Morton
The "national diversity awareness initiative" is part of a broad effort to change a departmental culture that a former government lawyer described as "toxic" when he testified at a Senate hearing on employment equity in the public service.
Mark Persaud, who came to Canada from Guyana as a refugee in 1983, told the Senate committee last year that he quit the Justice Department in 2003 because he was fed up with the "overt racism and discrimination of employees."
The department, which denied at the time that it had a problem, now acknowledges that it needs to address the fact that employees in the top salary brackets are almost exclusively white.
Justice Canada will begin this spring to hold up to 22 weekend workshops for managers in major Canadian cities and attendance will be mandatory, said Donna Miller, an associate deputy minister.
As many as 660 managers will be required to attend.
"The department has always been committed to diversity," Miller said. "What happened last year I think gave up a boost in how we focused on this."
Persaud, who joined the Justice Department in 1993 after graduating from Osgoode Hall Law School in Toronto, drew national headlines in February 2008 when he slammed the department's track record.
He told the committee that all the non-white lawyers he knew eventually left Justice because they were tired of being stuck at the bottom of the career ladder. They didn't get the best files, were passed over for promotions and lacked mentors, he said.
Deputy Minister John Sims, in a letter last year to the Ottawa Citizen, refuted Persaud's allegations by writing that the department "does not tolerate discrimination or racism in any form" and offers "a fair and welcoming work environment."
Sims was not available for an interview, but Miller acknowledged that the department recognizes there are too many visible minorities in the bottom pay rungs.
James Morton
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