Rereading Burke on the "Reflections on the Revolution in France" I was struck by something unexpected and that I did not recall.
Burke, correctly or not, is regarded by most political experts as the father of modern anglo-conservatism. He is revered, especially in America (and in fairness he was supportive of the American Revolution).
All that said, through Reflections, repeatedly and for no very necessary reason Burke attacks both Roman Catholics and Jews.
What is especially odd about this is that the purpose of his text was to show the faults of the French Revolution -- at least its early days -- and while the Revolution did liberate the Jews it was hardly friendly to the Church.
Indeed, just about the only good thing Burke saw with the Revolution was it "unhappily ... left unfinished" a "murder of the bishops".
Whether such vile comments mean the rest of Burke's work is unworthy I will leave to the reader to decide, but for me I will take Burke's view with a rather large chunk of salt ... .
(Now Burke may have been speaking about religion as opposed to people -- he supported rights for Irish Catholics and deplored mistreatment of Indians -- but the plain text of his work is, in a word, shocking).
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Saturday, April 18, 2009
Why we need a face to face Convention
The Liberal Convention is in a couple of weeks.
It will be expensive, time consuming and the election and policy results are likely predictable now.
So why not do everything by web and save cost?
Because the Convention will be much more than the speeches, votes and media events. A major, perhaps the major, part of the Convention will be the person to person meetings and informal gathering outside the convention floor.
The famous 'smokey back rooms' are said to be a bad thing but they are not. It is those quiet discussions between Party faithful that discover new candidates and build victory for the next election.
I am not delighted to spend a few thousand dollars to go to Vancouver for a very long weekend -- but I know it's worth every penny and every second.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Friday, April 17, 2009
Canadian self loathing
Reading the Globe and Mail on Afghanistan I ran across the following:
"Even acknowledging the brutality of domestic life in Afghanistan, the comparison is apt, for as Ms. Armstrong pointed out, in Canada a man was legally allowed to beat his wife until 1968 and to rape her until 1983. "
No no no.
Spousal assault was assault from at least 1066 and forced sexual contact was a crime from the same time (if you doubt it read Blackstone -- I suspect I am almost the last lawyer to do so but it's all there).
Yes, wife abuse was often overlooked in the past but the fact a law is enforced in a lax way doesn't change that fact it is a law. And even in the 1960's Canadians had a name for a man who beat his wife -- he was called a criminal. I remember the contempt honorable men had for someone who hit a woman -- maybe there was an element of paternalism there but there was also a recognition that mistreatment of women was just wrong.
It seems that the need to say Canada and the West is awful is so great that some give justification to the genuinely wicked actions of the Taliban.
Put otherwise, ask where is it better to live as a woman:
Winnipeg in 1966, or,
Mazari Sharif in 2009?
Not much of a decision.
And guess what, Winnipeg in 1966 wins for a man too. Canada today is a more progressive and open place than it was 32 years ago but Canada is 1966 was a free country -- Afghanistan is not.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
"Even acknowledging the brutality of domestic life in Afghanistan, the comparison is apt, for as Ms. Armstrong pointed out, in Canada a man was legally allowed to beat his wife until 1968 and to rape her until 1983. "
No no no.
Spousal assault was assault from at least 1066 and forced sexual contact was a crime from the same time (if you doubt it read Blackstone -- I suspect I am almost the last lawyer to do so but it's all there).
Yes, wife abuse was often overlooked in the past but the fact a law is enforced in a lax way doesn't change that fact it is a law. And even in the 1960's Canadians had a name for a man who beat his wife -- he was called a criminal. I remember the contempt honorable men had for someone who hit a woman -- maybe there was an element of paternalism there but there was also a recognition that mistreatment of women was just wrong.
It seems that the need to say Canada and the West is awful is so great that some give justification to the genuinely wicked actions of the Taliban.
Put otherwise, ask where is it better to live as a woman:
Winnipeg in 1966, or,
Mazari Sharif in 2009?
Not much of a decision.
And guess what, Winnipeg in 1966 wins for a man too. Canada today is a more progressive and open place than it was 32 years ago but Canada is 1966 was a free country -- Afghanistan is not.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Civil Remedies Act upheld
Today's Supreme Court of Canada decision in Chatterjee v. Ontario (Attorney General) 2009 SCC 19 upholds provincial forfeiture of proceeds of crime. This is a major decision and will greatly assist in dismantling criminal organizations.
A summary follows:
The police arrested C for breach of probation and, in a search of his car incidental to the arrest, discovered cash and items that not only were associated with the illicit drug trade but also smelled of marijuana but found no drugs. C was never charged with any offence in relation to the money, items, or with any drug related activity. The Attorney General of Ontario was granted an order under the Civil Remedies Act, 2001 ("CRA") preserving the seized money and equipment. He then applied under ss. 3 and 8 of the CRA for forfeiture of the seized money as proceeds of unlawful activity. In response, C challenged the CRA's constitutionality, arguing that the CRA's forfeiture provisions were ultra vires the province because they encroach on the federal criminal law power. Both the applications judge and the Court of Appeal concluded that the CRA is a valid provincial legislation.
Held: The appeal should be dismissed. The CRA's forfeiture provisions are constitutional. The argument that the CRA is ultra vires is based on an exaggerated view of the immunity of federal jurisdiction in relation to matters of criminal law that may, in another aspect, be the subject of provincial legislation. Resort to a federalist concept of proliferating jurisdictional enclaves (or "interjurisdictional immunities") was recently discouraged by this Court's decisions in Canadian Western Bank (2007) and Lafarge Canada Inc. (2007) and should not now be given a new lease on life. A court should favour, where possible, the ordinary operation of statutes enacted by both levels of government.
The evident purposes of the CRA are to make crime in general unprofitable, to capture resources tainted by crime so as to make them unavailable to fund future crime and to help compensate private individuals and public institutions for the costs of past crime. The practical (and intended) effect is to take the profit out of crime and to deter its present and would‑be perpetrators. These are valid provincial objects. Crime creates costs to victims and to the public that would otherwise fall on the provincial treasury including health, policing resources, community stability and family welfare. It would be out of step with modern realities to conclude that a province must shoulder the costs to the community of criminal behaviour but cannot take legislative steps to suppress it.
Where there is a degree of overlap between measures enacted pursuant to the provincial power and measures taken pursuant to the federal power, it is necessary to identify the "dominant feature" of an impugned measure. If the dominant feature of the provincial enactment is in relation to provincial objects, as it is here, the law will be valid, and if the enactments of both levels of government can generally function without operational conflict they will be permitted to do so. In factual situations where operational conflict does occur, the conflict will be resolved by the doctrine of federal paramountcy.
The CRA is an enactment in relation to "property and civil rights", and as such its provisions may incidentally "affect" criminal law and procedure without doing violence to the division of powers. The fact the CRA aims to deter federal offences as well as provincial offences and indeed offences committed outside Canada, is not fatal to its validity. On the contrary, the very generality of the CRA shows that the province is concerned about the effects of crime as a generic source of social ill and provincial expense, and not with supplementing federal criminal law as part of the sentencing process. While it is true that forfeiture may have de facto punitive effects in some cases, the CRA does not require an allegation or proof that any particular person committed any particular crime. Property may be forfeited under the CRA if, on a balance of probabilities, it is demonstrated that the property constituted the proceeds of crime in general without further specificity.
C argues that the provisions of the CRA introduce an interference with the administration of the Criminal Code forfeiture provisions. If such operational interference were demonstrated, or if it were shown that the CRA frustrated the federal purpose underlying the forfeiture provisions of the Criminal Code, the doctrine of federal paramountcy would render inoperative the CRA to the extent of the conflict or interference. However, this is not the case. Where forfeiture is sought and refused in the criminal process, the various doctrines of res judicata, the issue estoppel and abuse of process are available to prevent the Crown from re‑litigating the sentencing issue. Given the flexibility of these remedies there is no necessary operational conflict between the Criminal Code and the CRA such as to render the latter inoperative in relation to federal offences generally. If in particular circumstances there arises a conflict between the forfeiture provisions of the Criminal Code and the CRA then to the extent that dual compliance is impossible the doctrine of paramountcy would render the CRA inoperable to the extent of that conflict, but only to that extent.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Justices of the Peace
The recent media reports focussing on Justices of the Peace and conflicts of interest obscure the fact that the Bench has become thoroughly professional and is a highly trained and skilled body of adjudicators.
There may, in fact, be some Justices of the Peace who do not measure up to the high standards required. The likely removal of a very few does not suggest a failure of the Bench -- in fact, it shows the high standards expected of all Justices of the Peace.
Justices of the Peace must have a university degree, or equivalent, and a minimum of ten years work experience. They are appointed following careful vetting by an arms-length non partisan appointments committee similar in structure to that used for the appointment of Ontario Court of Justice judges.
The annual income for a Justice of the Peace is uniform and is only slightly greater than $100,000.00 a year - and while that's a good income, it's not a fortune. Many Justices of the Peace willingly gave up far more lucrative positions in the professions or business to serve Ontario.
While Justices of the Peace do not have to have legal training many do and, regardless, all new appointments undergo a rigorous training cycle. After initial training Justices of the Peace have a continuing legal education process. Having been involved with the ongoing legal education of Justices of the Peace I can attest to their professionalism and dedication to knowing the law they apply.
This legal background is needed because they perform significant and complex duties. The Criminal Code and the Ontario Provincial Offences Act confer jurisdiction upon a Justice of the Peace, but there are many other federal and provincial statutes and regulations that empower Justices of the Peace with legal jurisdiction.
Primarily, the two main areas of jurisdiction are criminal law and regulatory law (provincial offences). Justices of the Peace preside over virtually all bail hearings and the majority of criminal remand courts. They also receive informations (the document which commences a criminal proceeding), confirm or consider the issuance of process by either a summons or a warrant and are responsible for receiving and considering the denial or issuance of search warrants and other matters of criminal process.
Justices of the Peace exercise jurisdiction over the majority of provincial regulatory offences and municipal by-law prosecutions. As in criminal proceedings, justices of the peace receive informations and warrant applications, consider the issuance of process and preside at hearings and trials.
Sometimes Justices of the Peace err and are overturned on review or appeal but, in fairness, that is the fate of some decisions of Superior Court Judges; indeed, even the Court of Appeal is overturned from time to time. In general Justices of the Peace know the law they apply and know it well.
There are approximately 325 Justices of the Peace in Ontario. They sit across the entire province and are a truly diverse Bench. Justices of the Peace come from all backgrounds and there is close to true gender balance, especially for more recent appointments. Justices of the Peace genuinely reflect the people of Ontario.
Lawyers at the magnetic North Pole
This week two Ontario lawyers David Shannon and Christopher Watkins, crossed the polar ice by sledge to the magnetic North Pole. This unique expedition is an historic first because it is the first time that a person with quadriplegia due to a spinal cord injury, and a partner with a significant form of arthritis has reached the North Pole.
Congratulations to both - for more detailed about their trek, visit http://www.teamindependence.ca/ <http://www.teamindependence.ca/>
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Congratulations to both - for more detailed about their trek, visit http://www.teamindependence.ca/ <http://www.teamindependence.ca/>
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Suicide radio
I saw a woman hit by a subway train. Whether she jumped or slipped I don't know but there was no media coverage although the subway was not working for several hours. Either way it was an awful scene and one I will not soon forget.
'Suicide' ad irks transit authority JEFF GRAY
From Friday's Globe and Mail
An irreverent ad for local Virgin Radio 99.9 FM that depicts a radio about to commit suicide by leaping onto the TTC's subway tracks is being pulled from the city's transit shelters after the chairman of the transit agency complained. "That ad was not amusing," Adam Giambrone, chairman of the Toronto Transit Commission, said yesterday. "I don't believe Torontonians would find that ad funny. ... Suicide is a serious issue."
Rebecca Shropshire, a spokeswoman for station owner Astral Media Radio, said the ads had been up for about two weeks with just two complaints, but that all were being removed yesterday at the city's request. "It wasn't intended to make light of suicide. It was intended to frame up a piece of social commentary about whether traditional media still have a place in the world," Ms. Shropshire said. The ad campaign for the recently relaunched pop radio station depicts radios in various settings appearing to contemplate suicide, with the tagline, "Give your radio a reason to live."
Mr. Giambrone, who was alerted to the ad by a writer at the Torontoist blog this week, said he immediately asked city officials to tell advertising contractor Astral Media Outdoor to remove the ad from the city's transit shelters. (Astral, which holds the city's massive street furniture contract and administers all advertising on transit shelters, also owns Virgin Radio.) Mr. Giambrone said the TTC is reviewing its policies on approving photo shoots on its property. The TTC currently vets scripts for film or TV shoots to ensure that none depict suicides on its system. It demands only written descriptions of still photography.
In this case, Mr. Giambrone said, Astral Media Radio's Chicago-based ad agency, Zig, said it was taking photos of "radios on TTC platforms." Zig spokeswoman Katrina Limbaugh said the agency "did properly fill out all of the required paperwork according to their guidelines for commercial photography shoots" and that TTC staff were present during the entire shoot.
The TTC is extremely sensitive about suicides on its system, which traumatize many subway operators. It generally does not discuss the issue in public and asks the media not to report on suicides to avoid encouraging them.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Thursday, April 16, 2009
Governing party's support dropping in Ontario, Quebec, survey suggests - CBC News
Fortunes have shifted substantially for Stephen Harper's Conservatives since December, with Michael Ignatieff's Liberals enjoying an upsurge, says a new poll from EKOS released exclusively to CBC News.
Asked which party they would support if an election were held tomorrow, 36.7 opted for the Liberals while 30.2 per cent chose the Conservatives. About 15.5 per cent supported the NDP, while the Green party was the choice of 8.1 per cent and the Bloc Québécois was backed by 9.4 per cent.
The survey was conducted using a hybrid internet-telephone research panel between April 8 and 13, and involved a random sample of 1,587 Canadians. It has a margin of error of plus or minus 2.5 per cent, 19 times out of 20.
A similar poll question was asked just after the December prorogation crisis, when the minority Conservative government almost fell in the face of a challenge from a Liberal-NDP coalition headed by former Liberal leader Stéphane Dion.
It suggested the Conservatives had 44 per cent approval among the Canadian public, with dips for the Liberals (at 24 per cent) and NDP (at 14.5 per cent) compared to vote share those two parties had earned in the Oct. 14 federal election (26.2 per cent and 18.2 per cent respectively).
'Iffy proposition' to retain minority: pollster
EKOS pollster Frank Graves said the latest numbers, accompanied by regional breakdowns showing the Conservatives' level of support well below that of the Liberals in the key battleground provinces of Ontario and Quebec, suggest that "even the question of repeating a minority is an iffy proposition" for Harper's party.
The Liberals and NDP would almost certainly gain seats at the Conservatives' expense if an election were held this spring or summer, Graves pointed out. "There would be little in Stephen Harper's toolkit to discipline an opposition in these circumstances."
The province of Quebec in particular "almost looks like a wasteland for them," the pollster said.
Though the poll's Quebec margin of error is relatively high at plus or minus 5.7 per cent, 19 times out of 20, the Conservatives register only 10.9 per cent support in the province, compared to 39.5 per cent for the Bloc Québécois, 33.0 per cent for the Liberals, 11.7 per cent for the NDP and 4.9 per cent for the Greens.
In the Ontario breakdown, with a margin of error of plus or minus 4.3 per cent, 19 times out of 20, the Conservatives enjoy 32.4 per cent, compared to 42.0 per cent for the Liberals. The two parties were statistically tied the last time EKOS conducted party preference polling.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Asked which party they would support if an election were held tomorrow, 36.7 opted for the Liberals while 30.2 per cent chose the Conservatives. About 15.5 per cent supported the NDP, while the Green party was the choice of 8.1 per cent and the Bloc Québécois was backed by 9.4 per cent.
The survey was conducted using a hybrid internet-telephone research panel between April 8 and 13, and involved a random sample of 1,587 Canadians. It has a margin of error of plus or minus 2.5 per cent, 19 times out of 20.
A similar poll question was asked just after the December prorogation crisis, when the minority Conservative government almost fell in the face of a challenge from a Liberal-NDP coalition headed by former Liberal leader Stéphane Dion.
It suggested the Conservatives had 44 per cent approval among the Canadian public, with dips for the Liberals (at 24 per cent) and NDP (at 14.5 per cent) compared to vote share those two parties had earned in the Oct. 14 federal election (26.2 per cent and 18.2 per cent respectively).
'Iffy proposition' to retain minority: pollster
EKOS pollster Frank Graves said the latest numbers, accompanied by regional breakdowns showing the Conservatives' level of support well below that of the Liberals in the key battleground provinces of Ontario and Quebec, suggest that "even the question of repeating a minority is an iffy proposition" for Harper's party.
The Liberals and NDP would almost certainly gain seats at the Conservatives' expense if an election were held this spring or summer, Graves pointed out. "There would be little in Stephen Harper's toolkit to discipline an opposition in these circumstances."
The province of Quebec in particular "almost looks like a wasteland for them," the pollster said.
Though the poll's Quebec margin of error is relatively high at plus or minus 5.7 per cent, 19 times out of 20, the Conservatives register only 10.9 per cent support in the province, compared to 39.5 per cent for the Bloc Québécois, 33.0 per cent for the Liberals, 11.7 per cent for the NDP and 4.9 per cent for the Greens.
In the Ontario breakdown, with a margin of error of plus or minus 4.3 per cent, 19 times out of 20, the Conservatives enjoy 32.4 per cent, compared to 42.0 per cent for the Liberals. The two parties were statistically tied the last time EKOS conducted party preference polling.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Afghan women
The specter of Afghan women protesting a law treating women as chattels would be heartening except for the vast and violent crowd that attacked them. This brave protest follows word of a public execution of a couple that tried to elope to avoid an arranged marriage.
One could argue these outbursts are merely a reflection of necessary chaos -- something like the work of Seth, the Egyptian god of the desert. These terrible events are merely the birth pangs of a new and just Afghanistan.
Perhaps, but I wonder if they are more akin to the TSN monkey picking sporting winners.
Put less crudely, I strongly suspect that the Taliban is in control of Afghanistan's spirit and the fighting to support the government there merely supports brutality with an urbane face.
That does not mean the mission is wrong or that we should leave. But it does mean we should realize certain preconditions ought to apply before there can be support of any government. One of them is that women ought to have the right to choose whom to marry -- that was the law in medieval Europe which was not really a progressive place for women's rights.
If the minimal standards we require are not met then we need to recognize the mission in Afghanistan is limited to ensuring the Taliban cannot reach outside that country. It is a purely military mission without a nation building component.
That is a sad and tragic thing. But it is more just than supporting a government that is morally insupportable.
One could argue these outbursts are merely a reflection of necessary chaos -- something like the work of Seth, the Egyptian god of the desert. These terrible events are merely the birth pangs of a new and just Afghanistan.
Perhaps, but I wonder if they are more akin to the TSN monkey picking sporting winners.
Put less crudely, I strongly suspect that the Taliban is in control of Afghanistan's spirit and the fighting to support the government there merely supports brutality with an urbane face.
That does not mean the mission is wrong or that we should leave. But it does mean we should realize certain preconditions ought to apply before there can be support of any government. One of them is that women ought to have the right to choose whom to marry -- that was the law in medieval Europe which was not really a progressive place for women's rights.
If the minimal standards we require are not met then we need to recognize the mission in Afghanistan is limited to ensuring the Taliban cannot reach outside that country. It is a purely military mission without a nation building component.
That is a sad and tragic thing. But it is more just than supporting a government that is morally insupportable.
Yorkdale gunplay
Wow -- you really can get everything at Yorkdale ...
Toronto mall guard shot
TIMOTHY APPLEBY AND NICKI THOMAS
Globe and Mail
TORONTO — Two teens aged 18 and 15 were in custody and a security guard was in hospital early Thursday afternoon with a bullet wound to the chest after gunfire erupted at the big Yorkdale Shopping Centre in North York, Ont.
The guard's injuries were described as serious, but he was wearing body armour and was expected to recover.
Toronto Police Constable Tony Vella said the guard's bulletproof vest saved his life.
“I think it's awful," said Sears customer Lisa Fargnoli, 42, who had come to Yorkdale to meet relatives for lunch.
Natalie Grabia, 21, said it was frightening the shooting could happen in the middle of the day in such a busy place.
"You just wouldn't expect that," she said.
The mall opened its doors in 1964 and is one of the largest in Canada. After a recent $60-million expansion it comprises more than 240 stores and services.
Toronto mall guard shot
TIMOTHY APPLEBY AND NICKI THOMAS
Globe and Mail
TORONTO — Two teens aged 18 and 15 were in custody and a security guard was in hospital early Thursday afternoon with a bullet wound to the chest after gunfire erupted at the big Yorkdale Shopping Centre in North York, Ont.
The guard's injuries were described as serious, but he was wearing body armour and was expected to recover.
Toronto Police Constable Tony Vella said the guard's bulletproof vest saved his life.
“I think it's awful," said Sears customer Lisa Fargnoli, 42, who had come to Yorkdale to meet relatives for lunch.
Natalie Grabia, 21, said it was frightening the shooting could happen in the middle of the day in such a busy place.
"You just wouldn't expect that," she said.
The mall opened its doors in 1964 and is one of the largest in Canada. After a recent $60-million expansion it comprises more than 240 stores and services.
AbitibiBowater files for bankruptcy protection
Forestry giant AbitibiBowater filed for bankruptcy protection in the United States on Thursday, saying it saw no other viable alternatives.
The company made its filing under Chapter 11 of the U.S. Bankruptcy Code in a Delaware court.
AbitibiBowater 12-month TSX chart The Montreal-based company said it expects to make a similar filing in Canada on Friday.
Forestry giant AbitibiBowater filed for bankruptcy protection in the United States on Thursday, saying it saw no other viable alternatives.
The company made its filing under Chapter 11 of the U.S. Bankruptcy Code in a Delaware court.
AbitibiBowater 12-month TSX chart The Montreal-based company said it expects to make a similar filing in Canada on Friday.
Rescission under the Arthur Wishart Act
Under the Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3 a franchisee has a right of rescission in limited circumstances.
A key question is whether a disclosure document has been delivered – if such document has been delivered then reciscission is limited.
Today’s decision in 4287975 Canada Inc. v. Imvescor Restaurants Inc., 2009 ONCA 308 makes the limitation on rescission very clear:
[25] In respect to timing, s. 5 of the Act ensures that a prospective franchisee has at least fourteen days to review and consider a disclosure document before signing a franchise agreement or paying consideration in relation to a franchise. In the event that the franchisor does not comply with s. 5, the Act provides the franchisee with an extraordinary remedy: the right to rescind the franchise agreement with two different limitation periods, depending on when and whether the franchisor provides a disclosure document.
[26] First, s. 6(1) permits rescission within sixty days of receipt of the disclosure document if the disclosure document is not provided “within the time required by s. 5”. Not only did the appellant not provide a notice of rescission within sixty days of receiving the document, but it also had six months to consider the disclosure document before entering into the agreement.
[27] Second, under s. 6(2), a franchisee may rescind a franchise agreement within two years, but only if there was no disclosure document provided by the franchisor. In particular, for s. 6(2) to apply, the franchisor must never have provided the disclosure document. The time for rescission under s. 6(2) starts to run from the date when the franchise agreement was signed, owing to the fact that unlike under s. 6(1) — where the applicable time starts when a proper disclosure document is provided — s. 6(2) applies to a situation where there is no disclosure document provided at all.
[28] In sum, s. 6(1) provides for a sixty day rescission period if either a franchisor fails to deliver a disclosure document within the required time periods under s. 5 or the contents of a disclosure document did not meet the requirements of s. 5. Section 6(2) provides for a two year rescission period in the event of a failure by the franchisor to deliver a disclosure document.
[29] To state it in the terms of the appellant’s arguments, s. 6(1) applies to a situation in which the franchisee was unable to make a fully informed decision as a result of inadequate time for consideration of such decision or inadequate disclosure of the material facts. Section 6(2) applies to a situation in which the franchisee is unable to make an informed decision at all because of a complete lack of a disclosure document.
[30] As noted, there was disclosure in this case. As the motion judge correctly held, s. 6(2) of the Act, therefore, has no application.
[31] The motion judge also found that s. 6(1) was not available to the appellant on the facts of this case, noting at para. 12 that s. 6(1) “does not purport to provide a rescission right in all circumstances”. Again, I agree with the motion judge.
[32] Section 6(1) contemplates a situation in which a franchisor has failed to comply with the timing or content requirements of the Act in respect of a disclosure document. It extends the time normally provided for the review of the disclosure document (at least fourteen days) to afford a franchisee sixty days from the date the disclosure document is given to review the disclosure document and determine whether to rescind a binding franchise agreement.
Duress under the Provincial Offences Act
Can duress apply as a defence to a quasi-criminal charge? The interesting decision in R. v. Chu 2008 CarswellOnt 3557 suggests yes.
The Court writes:
Duress
43 I was not able to find any decisions, reported or otherwise, dealing with the defence of duress under the Smoke Free Ontario Act nor was I referred to any by the prosecutor or counsel for the defendant.
44 Duress is a defence used in both civil and criminal matters. Here I am dealing with a regulatory matter, which by its nature is quasi-criminal.
45 In the criminal context, the defence of duress can be used in two circumstances:
i. first, as a statutory defence under s. 17 of the Criminal Code,
ii. second, as a defence at common law.
46 In the regulatory context, the defence of duress that is used is not the statutory defence but instead is the defence at common law. Although similar to the defence of necessity, it is not the same. The defence of necessity was not argued here. That being said, the Supreme Court of
47 I begin my analysis with the statement at paragraph 17 of the
[17] R. v. Ruzic, supra, holds that s. 17 of the [Criminal] Code is unconstitutional in so far as it restricts the defence of duress to circumstances where the threats are of immediate death or bodily harm and the threatener is present when the offences are committed. The common law defence of duress does not include such restrictions.
and at paragraphs 28 and 29:
[28] On the basis of Ruzic, it must now be accepted that duress can arise from threats of future harm, not just immediate harm. It can arise from threats to third parties, not only threats to the accused himself or herself. It is not necessary that the threatener be present when the actual offence is committed: see R. v. Ruzic, supra, at pp. 29 and 40 - 41. However, there must be a close temporal connection between the threat and the harm threatened. The threat must be a real threat affecting the accused at the time of the offence: see p. 43. The duress defence is assessed by a mixed objective/subjective standard. It is available where a reasonable person having reasonable firmness, sharing the same characteristics as the accused such as his or her age or background, would have acted on the threats: see pp. 31-32.
[29] However, it is still the law that the duress defence is not available where the accused has a safe avenue of escape. In applying this defence, the law does not require an accused to seek the protection of police in all cases. The requirement of objectivity must take into consideration the special circumstances in which the accused finds himself or herself as well as his or her perception of those circumstances (R. v. Ruzic, supra, at pp. 31 and 40).
48 Duress is a defence available to an individual who, under the pressure of an unlawful threat by another person to harm him or a third person, commits an offence. The defence is fact specific and when successful results in the defendant being found not guilty of the offence alleged. It is a defence that acknowledges human weakness in situations of danger as it has at its heart the idea that the weaker party is left with no real choice.
49 The rationale of necessity and thereby duress is a recognition the law "cannot hold people to the strict obedience of the law in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience": Perka v. R. (1984), 14 C.C.C. (3d) 385 (S.C.C.).
50 Although the statutory defence involves a subjective test by requiring that the defendant believe that the threat will be carried out, our courts have adopted an objective standard of reasonableness for the common law defence. As Justice Libman writes in his text Libman on Regulatory Offences in
Necessity requires that "compliance with the law be demonstrably impossible"; duress is likewise unavailable "where a safe avenue of escape is open to the defendant". The issue as to whether a safe avenue of escape existed must be determined on an objective basis, taking into account the personal circumstances of the defendant.
[R. v. Hibbert, [1995] 2 S.C.R. 973, 99 C.C.C. (3d) 193]
Punishing persons whose acts are involuntary in the physical sense is unjust, "because it conflicts with the assumption of the criminal law that individuals are autonomous and freely choosing agents". It is likewise unjust to penalize an individual who acts in a morally involuntary fashion, because his or her acts "cannot be realistically attributed to that person". Like physical involuntariness, moral voluntariness deserves protection as a tenet of fundamental justice. It is a principle of fundamental justice that only voluntary conduct, that is, "behaviour which is the product of a free will and a controlled body, unhindered by external constraints", should attract criminal liability.
[R. v. Ruzic, [2001], 1 S.C.R. 687, 153 C.C.C. (3d) 1].
51 Accordingly, the question is whether, on the facts of this case, a reasonable person in Mr. Chu's situation would have felt compelled to act in the manner in which he did.
BENEDICT XVI CELEBRATES HIS 82ND BIRTHDAY TODAY
VATICAN CITY, 16 APR 2009 (VIS)
- The Holy Father will today celebrate his 82nd birthday in the Apostolic Palace of Castelgandolfo a few kilometres south of Rome where he is enjoying a brief period of rest following the ceremonies of Holy Week.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Wednesday, April 15, 2009
The Judge is not given a divine insight into the hearts and minds of the witnesses
One of the most difficult tasks of a trial judge is determining who to believe. From a Justice of the Peace in POA Court to a Courts Martial in Afghanistan the task is the same and equally difficult.
The recent Superior Court decision in Springer v. Aird & Berlis LLP, 2009 CanLII 15661 (ON S.C.) contains a useful summary of the nature of the task.
It is a summary useful across all courts and all areas of law:
[14] In making credibility and reliability assessments, I find helpful the statement of O'Halloran J.A. in R. v. Pressley (1948), 94 C.C.C. 29 (B.C. C.A.):
The Judge is not given a divine insight into the hearts and minds of the witnesses appearing before him. Justice does not descend automatically upon the best actor in the witness-box. The most satisfactory judicial test of truth lies in its harmony or lack of harmony with the preponderance of probabilities disclosed by the facts and circumstances in the conditions of the particular case.
[15] I also find it helpful, particularly in this case, the statement of Farley J. in Bank of America Canada v. Mutual Trust Co. (1998), 18 R.P.R. (3d) 213 at para. 23:
Frequently in cases judges will be called upon to make findings concerning credibility of witnesses. This usually is a most difficult task absent the most blatant of lying which is tripped up by confession, by self-contradictory evidence, by directly opposite material developed at the relevant time period or by evidence of an extremely reliable nature from third parties. One is always cognizant that people's perceptions of the same event can sincerely differ, that memories fade with time, that witnesses may be innocently confused over minor (and even major) matters as well as the aspect of rationalization, a very human and understandable imperfection. A point that a witness may not be sure of initially becomes eventually a point that the witness is certain about because it fits the theory of his side. Rationalization will also affect some person's views so that a certainty that a fact was "A" evolves into a confirmation that that fact was "not A".
[16] In Olympic Wholesale Co. v. 1084715 Ontario Ltd. [1997] O.J. No. 5482 at para. 3, Farley J. also made the following statement which I find helpful:
I would like to review the aspect of assessing credibility and the weighing of evidence, and I do this in a very general way. … The evidence and the way it is given should be taken in context and in a balanced way. No one should expect perfection in testimony and it is often said that evidence which is too consistent may be a sign of it being artificially constructed. I also recognize that there can be an inadvertent rationalization of memory to fit what is afterwards said that must have happened as opposed to actually remembering what did happen. This usually increases over time…
[17] Farley J. used the word "rationalization". I take his comments to refer to what is often said to be "reconstruction" of evidence. Reconstruction can be either inadvertent or advertent. In either case, when it occurs, it is something that the trier of fact must consider in weighing evidence.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
The Schreiber-Mulroney show
The Oliphant Inquiry today asked an important question:
Why did the German arms dealer give the former prime minister hundreds of thousands of dollars, but not check whether he had done any work?
It's the sort of question that answers itself -- he must have checked and there must have been something being done.
So what was being done?
Why did the German arms dealer give the former prime minister hundreds of thousands of dollars, but not check whether he had done any work?
It's the sort of question that answers itself -- he must have checked and there must have been something being done.
So what was being done?
Conquest ceases operations
Oh dear -- another sign of the economic times...
Conquest ceases operations
By DON PEAT, Sun media
Conquest Vacations has been vanquished by the economic downturn.
The 37-year-old company announced on its website today that it has ceased tour operations effective immediately leaving would-be tourists scrambling to get refunds on booked vacations.
A statement on the website blamed overcapacity and an ongoing price war among the major tour operators along with "unreasonable demands by the credit card processing companies."
The company also blamed the economic downturn for making it impossible for Conquest to continue in business, "even after weathering many storms over the past 37 years."
"Customers who are booked and paid using cash/check through a travel agency are requested to contact their respective agency who will assist you with respect to a refund or claim," the company states. "Customers who have booked directly with Conquest Vacations will be contacted or should they wish to contact Conquest, please email to directcustomers@conquestvacations.com with a booking reference number."
The company advises anyone that booked future travel by credit card to contact their credit card company for a refund.
Conquest ceases operations
By DON PEAT, Sun media
Conquest Vacations has been vanquished by the economic downturn.
The 37-year-old company announced on its website today that it has ceased tour operations effective immediately leaving would-be tourists scrambling to get refunds on booked vacations.
A statement on the website blamed overcapacity and an ongoing price war among the major tour operators along with "unreasonable demands by the credit card processing companies."
The company also blamed the economic downturn for making it impossible for Conquest to continue in business, "even after weathering many storms over the past 37 years."
"Customers who are booked and paid using cash/check through a travel agency are requested to contact their respective agency who will assist you with respect to a refund or claim," the company states. "Customers who have booked directly with Conquest Vacations will be contacted or should they wish to contact Conquest, please email to directcustomers@conquestvacations.com with a booking reference number."
The company advises anyone that booked future travel by credit card to contact their credit card company for a refund.
Sentencing a lawyer for criminal acts
Today’s decision in R. v. Rosenfeld, 2009 ONCA 307 provides a basis for suggesting when a lawyer commits a crime, especially one related to justice issues, the status as a lawyer is a significant aggravating factor. The Court holds:
[40] The appellant’s status as a lawyer is a significant aggravating factor for two distinct reasons. First, apart from the specifics of the offences committed by the appellant, those privileged to practise law take on a public trust in exchange for that privilege and the many advantages that come with it. Lawyers are duty bound to protect the administration of justice and enhance its reputation within their community. Criminal activity by lawyers in the course of performing functions associated with the practice of law in its broadest sense, has exactly the opposite effect. Lawyers like the appellant who choose to use their skills and abuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of the profession. In the long run, that cynicism must undermine public confidence in the justice system: see R. v. Oliver, [1977] 5 W.W.R. 344 (B.C.C.A.).
[41] The second reason the appellant’s status as a lawyer is an aggravating factor relates to the specifics of this crime. Lawyers, for arguably valid reasons, are exempt from the reporting conditions applicable to other professions and financial institutions who deal in cash transactions. The communications between lawyers and their clients, also for valid reasons, are protected from disclosure by the client/solicitor privilege. This privilege attaches uniquely to lawyers and their clients. The wiretap interceptions and Majcher’s evidence demonstrate that the appellant appreciated the advantage to a money laundering operation of both the solicitor’s exemption from the reporting conditions and the client/solicitor privilege. He was ready and willing to abuse these specific privileges available to him because of his status as a lawyer to enhance his money laundering services. The appellant’s willingness to prostitute his legal services and abuse the special privileges associated with them are significant aggravating features of his conduct.
A useful guide to the Schreiber Inquiry
What the #!%* is the deal with the Mulroney-Schreiber Inquiry?
In this occasional feature, the Post tells you everything you need to know about an issue. Today, James Cowan on the Mulroney-Schreiber inquiry:
Who is Karlheinz Schreiber?
Born in Germany, Mr. Schreiber became a Canadian citizen in 1982. Over the past two decades, he ran a number of businesses in Canada, including a road marking company and a pasta enterprise. In 1985, he was involved in a bid by Thyssen, a German firm, to establish a light armoured vehicle manufacturing facility in Nova Scotia and later in Quebec. To aid this plan, he created Bear Head Industries, a lobbying firm aimed at garnering political support.
What is Mr. Schreiber doing these days?
He currently faces extradition to Germany on bribery, tax evasion and fraud charges. The Supreme Court denied his appeal of the extradition order, although the federal government agreed to keep him in the country until he testified at a federal inquiry into his relationship with Brian Mulroney.
Who is Brian Mulroney?
You must be joking.
No? Sheesh, kids these days. Mr. Mulroney was prime minister between 1984 and 1993. He met Mr. Schreiber more than 25 years ago, when the businessman helped Mr. Mulroney become leader of the Progressive Conservatives .
Why are Mr. Mulroney and Mr. Schreiber the subjects of a public inquiry?
Mr. Schreiber says he met Mr. Mulroney at Harrington Lake, the prime minister’s summer residence, two days before Mr. Mulroney stepped down in 1993. During this encounter, Mr. Schreiber alleges Mr. Mulroney agreed to promote the Thyssen project to Canadian officials. In exchange, Mr. Schreiber gave Mr. Mulroney three envelopes over the next two years, each filled with $100,000. For his part, Mr. Mulroney denies making a deal until after he retired as prime minister and says he only promoted the vehicles to foreign governments. Oh, and for what it is worth, he claims he only received $225,000.
People keep talking about an “Air Bus.” What is that?
In 1988, Airbus Industrie, a European company, sold 34 planes to Air Canada, which was then a crown corporation. International Aircraft Leasing, another company controlled by Mr. Schreiber, reportedly received a $20-million commission for helping to facilitate the sale. Seven years later, the RCMP launched an investigation into the deal, including allegations that Mr. Mulroney received a kickback. When details of the investigation were released to the media, Mr. Mulroney filed a lawsuit and eventually received a $2.1-million settlement from the government. No charges were ever laid.
Thanks for the history lesson, but what does that have to do with the inquiry?
As it turns out, very little. David Johnston, an academic who advised the government on the inquiry’s terms of reference, argued that in light of the extensive RCMP investigation, it would be “inappropriate” for the inquiry to revisit the matter. So this whole inquiry is designed to determine whether Mr. Schreiber is telling the truth about Thyssen deal?Yes, but there will be a couple of sideshows as well. The inquiry will also explore why Mr. Mulroney did not disclose the payments for tax purposes until 1999 and why Stephen Harper, the Prime Minister, did not receive a letter sent to him by Mr. Schreiber in March 2007.
But why should I care about an inquiry focused on events that occurred five prime ministers and 16 years ago?
Opposition politicians, academics and the government itself have all argued an inquiry is necessary to restore public confidence. As Mr. Johnston wrote in one of his reports: “the public interest issue is the integrity of government and whether there was a breach of constraints; and if not, whether there is a need for further constraints on former high office holders after they leave office.”
In this occasional feature, the Post tells you everything you need to know about an issue. Today, James Cowan on the Mulroney-Schreiber inquiry:
Who is Karlheinz Schreiber?
Born in Germany, Mr. Schreiber became a Canadian citizen in 1982. Over the past two decades, he ran a number of businesses in Canada, including a road marking company and a pasta enterprise. In 1985, he was involved in a bid by Thyssen, a German firm, to establish a light armoured vehicle manufacturing facility in Nova Scotia and later in Quebec. To aid this plan, he created Bear Head Industries, a lobbying firm aimed at garnering political support.
What is Mr. Schreiber doing these days?
He currently faces extradition to Germany on bribery, tax evasion and fraud charges. The Supreme Court denied his appeal of the extradition order, although the federal government agreed to keep him in the country until he testified at a federal inquiry into his relationship with Brian Mulroney.
Who is Brian Mulroney?
You must be joking.
No? Sheesh, kids these days. Mr. Mulroney was prime minister between 1984 and 1993. He met Mr. Schreiber more than 25 years ago, when the businessman helped Mr. Mulroney become leader of the Progressive Conservatives .
Why are Mr. Mulroney and Mr. Schreiber the subjects of a public inquiry?
Mr. Schreiber says he met Mr. Mulroney at Harrington Lake, the prime minister’s summer residence, two days before Mr. Mulroney stepped down in 1993. During this encounter, Mr. Schreiber alleges Mr. Mulroney agreed to promote the Thyssen project to Canadian officials. In exchange, Mr. Schreiber gave Mr. Mulroney three envelopes over the next two years, each filled with $100,000. For his part, Mr. Mulroney denies making a deal until after he retired as prime minister and says he only promoted the vehicles to foreign governments. Oh, and for what it is worth, he claims he only received $225,000.
People keep talking about an “Air Bus.” What is that?
In 1988, Airbus Industrie, a European company, sold 34 planes to Air Canada, which was then a crown corporation. International Aircraft Leasing, another company controlled by Mr. Schreiber, reportedly received a $20-million commission for helping to facilitate the sale. Seven years later, the RCMP launched an investigation into the deal, including allegations that Mr. Mulroney received a kickback. When details of the investigation were released to the media, Mr. Mulroney filed a lawsuit and eventually received a $2.1-million settlement from the government. No charges were ever laid.
Thanks for the history lesson, but what does that have to do with the inquiry?
As it turns out, very little. David Johnston, an academic who advised the government on the inquiry’s terms of reference, argued that in light of the extensive RCMP investigation, it would be “inappropriate” for the inquiry to revisit the matter. So this whole inquiry is designed to determine whether Mr. Schreiber is telling the truth about Thyssen deal?Yes, but there will be a couple of sideshows as well. The inquiry will also explore why Mr. Mulroney did not disclose the payments for tax purposes until 1999 and why Stephen Harper, the Prime Minister, did not receive a letter sent to him by Mr. Schreiber in March 2007.
But why should I care about an inquiry focused on events that occurred five prime ministers and 16 years ago?
Opposition politicians, academics and the government itself have all argued an inquiry is necessary to restore public confidence. As Mr. Johnston wrote in one of his reports: “the public interest issue is the integrity of government and whether there was a breach of constraints; and if not, whether there is a need for further constraints on former high office holders after they leave office.”
Tuesday, April 14, 2009
Schreiber in reruns ... .
This is a pretty good piece in the Post.
A few readers wanted to comment on the Schreiber case so here's a chance.
Having watched some of the testimony I still don't think Schreiber is very credible -- indeed, but for the admission made by Mulroney I would not have believed he got the money just because Schreiber said so.
That said, the judge is doing a careful and full job and is not limiting the investigation overly. We'll get a decent report and some idea what really happened.
Kelly McParland: The new Karlheinz, just like the old Karlheinz
A lot has happened in the world since we last had the benefit of seeing Karlheinz Schreiber on our TV screens, so it’s nice to know some things never change.
There he was this morning, giving testimony at the public inquiry he has done so much to bring about, the same cranky, irascible, self-centred former arms dealer we have all come to know over so many years. Desperate not to be sent back to Germany where they want to lock him in jail. Determined to get even with all those people who have been so mean to him.
All the old tricks were on display. Uninvited soliloquies on how badly he’s been treated by successive governments in Canada. Unprovoked personal attacks on anyone who impeded him from the sales commissions he deserved. Insulting asides about the questions he was expected to answer. An inability to explain why his story keeps changing. The new Karlheinz, just like the old Karlheinz.
Even the ritual pre-testimony pledge of big things to come, issued to reporters on the way in:“I can tell you one thing, if you think we have one scandal, no. I tell you it’s the biggest political scandal. The secret is it’s seven scandals in one. You can count on me. I’m not going to disappoint,” he said before heading in to take the stand.
Oh, if only it was true. The most interesting thing we learned from Schreiber on his first morning of testimony was how little he cares about money. Questioned by inquiry chief counsel Richard Wolson about the potential payoff of the famous Bear Head project he was so determined to land, he acknowledged he could have earned “at least $1.8 billion” if everything had gone as planned.$1.8 billion?
Wolson was so taken with that number he immediately asked for a lunch break. But not before Schreiber could make clear that, for him, it was never about money. Oh no. It’s about lives, don’t you understand? Canadian lives. Why, just this morning another Canadian casualty was announced in Afghanistan, a brave young woman only two weeks into her first tour.
Schreiber repeatedly invoked Afghanistan and Canadian casualties there to justify his anger at his treatment, and at the failure of the government to buy his products.“This is my huge anger with the Canadian government,” he said at one point. “This is my whole war with this government.”A military man who wouldn’t listen was an idiot. “The man has not the smallest clue what he is doing and is responsible for many Canadian deaths today.” And again: “I am deeply hurt when i see it every day ... dying people.”
Wolson carefully took Schreiber through a series of payments to various associates. $90,000 here, half a million there; some in cheques, some in cash; sometimes he got receipts, sometimes he didn’t; once he sent the money before he even got an invoice.
He shrugged it all off. It’s all there, somewhere, he maintained. Just look at the documents. I’m an honest guy.Wolson, it must be said, wasn’t entirely sympathetic. “Are you finished your outburst?” he inquired politely after Schreiber had gotten yet another complaint off his chest. “I’d like you, sir, to focus on my questions.”When Schreiber sought to use today’s tragedy in Afghanistan in his defence, Wolson wouldn’t let it pass.“You also stood to make a great deal of money” out of selling military hardware to Ottawa, he noted. Schreiber maintained he was already rich at that point.
“I had a wonderful life and it was completely ruined” by the controversy, he said.“Give me a number,” demanded Wolson.The answer: $1.8 billion. At least. Not that it was ever about the money.
A few readers wanted to comment on the Schreiber case so here's a chance.
Having watched some of the testimony I still don't think Schreiber is very credible -- indeed, but for the admission made by Mulroney I would not have believed he got the money just because Schreiber said so.
That said, the judge is doing a careful and full job and is not limiting the investigation overly. We'll get a decent report and some idea what really happened.
Kelly McParland: The new Karlheinz, just like the old Karlheinz
A lot has happened in the world since we last had the benefit of seeing Karlheinz Schreiber on our TV screens, so it’s nice to know some things never change.
There he was this morning, giving testimony at the public inquiry he has done so much to bring about, the same cranky, irascible, self-centred former arms dealer we have all come to know over so many years. Desperate not to be sent back to Germany where they want to lock him in jail. Determined to get even with all those people who have been so mean to him.
All the old tricks were on display. Uninvited soliloquies on how badly he’s been treated by successive governments in Canada. Unprovoked personal attacks on anyone who impeded him from the sales commissions he deserved. Insulting asides about the questions he was expected to answer. An inability to explain why his story keeps changing. The new Karlheinz, just like the old Karlheinz.
Even the ritual pre-testimony pledge of big things to come, issued to reporters on the way in:“I can tell you one thing, if you think we have one scandal, no. I tell you it’s the biggest political scandal. The secret is it’s seven scandals in one. You can count on me. I’m not going to disappoint,” he said before heading in to take the stand.
Oh, if only it was true. The most interesting thing we learned from Schreiber on his first morning of testimony was how little he cares about money. Questioned by inquiry chief counsel Richard Wolson about the potential payoff of the famous Bear Head project he was so determined to land, he acknowledged he could have earned “at least $1.8 billion” if everything had gone as planned.$1.8 billion?
Wolson was so taken with that number he immediately asked for a lunch break. But not before Schreiber could make clear that, for him, it was never about money. Oh no. It’s about lives, don’t you understand? Canadian lives. Why, just this morning another Canadian casualty was announced in Afghanistan, a brave young woman only two weeks into her first tour.
Schreiber repeatedly invoked Afghanistan and Canadian casualties there to justify his anger at his treatment, and at the failure of the government to buy his products.“This is my huge anger with the Canadian government,” he said at one point. “This is my whole war with this government.”A military man who wouldn’t listen was an idiot. “The man has not the smallest clue what he is doing and is responsible for many Canadian deaths today.” And again: “I am deeply hurt when i see it every day ... dying people.”
Wolson carefully took Schreiber through a series of payments to various associates. $90,000 here, half a million there; some in cheques, some in cash; sometimes he got receipts, sometimes he didn’t; once he sent the money before he even got an invoice.
He shrugged it all off. It’s all there, somewhere, he maintained. Just look at the documents. I’m an honest guy.Wolson, it must be said, wasn’t entirely sympathetic. “Are you finished your outburst?” he inquired politely after Schreiber had gotten yet another complaint off his chest. “I’d like you, sir, to focus on my questions.”When Schreiber sought to use today’s tragedy in Afghanistan in his defence, Wolson wouldn’t let it pass.“You also stood to make a great deal of money” out of selling military hardware to Ottawa, he noted. Schreiber maintained he was already rich at that point.
“I had a wonderful life and it was completely ruined” by the controversy, he said.“Give me a number,” demanded Wolson.The answer: $1.8 billion. At least. Not that it was ever about the money.
One man's trash ...
James Morton, National Post
Published: Tuesday, April 14, 2009
Last Thursday's Supreme Court of Canada decision upholding a search of a drug dealer's garbage bags is sensible and reflects a genuine concern for a balance between liberty and law enforcement.
Russell Stephen Patrick, a former national swimming star, was operating an Ecstasy lab in his Calgary home. On several occasions, police officers conducted a search of Patrick's garbage, which involved seizing garbage bags located inside garbage cans in a receptacle at the back of his house. The bags had been put out for trash collection and were readily accessible to the public. Nonetheless, the officers did have to reach on to Patrick's property to get the garbage bags. The police found items in at least four bags that were suggestive of an Ecstasy lab operation.
These items were used to obtain a search warrant for Patrick's residence and, unsurprisingly, the Ecstasy lab was discovered.
At trial in 2006, the court dealt with the admissibility of the evidence obtained from the police search. The trial judge held that Patrick did not have a reasonable expectation of privacy over the items seized from his garbage, and that the search of his home was lawful. Patrick was convicted of unlawfully producing, possessing and trafficking Ecstasy. Patrick was sentenced to four years in prison. On Thursday, the Supreme Court ruled that the garbage search was reasonable and, as a result, Patrick's conviction should be upheld.
The Supreme Court's decisions on privacy are not always easy to reconcile. In one case, the court held sniffer dogs cannot properly be used at bus stations to find contraband, while in another case the court allowed the use of heat-detecting aircraft for peering into people's homes to find grow operations. Thursday's decision laboured to distinguish when privacy rights trump society's right to be free from crime.
The court held that the issue of privacy cannot turn on what is being kept private. A criminal has the same privacy rights as a law-abiding citizen. The question is not whether there was proof of illegal activity in the garbage bags, as opposed to embarrassing but legal materials, but rather whether there is some entitlement to privacy in trash.
As a purely legal matter, until actually disposed of, Patrick's garbage was still his property -- and as the English proverb notes, one man's garbage is another's treasure. Certainly, as the court found, there can be a privacy interest in garbage. Clues to people's most private traits and affairs can be found in their garbage. Personal letters, bills, receipts, prescription bottles and similar items that are regularly disposed of in household trash disclose information about the resident that few people would want to be made public. The court recognized this, saying "a garbage bag may more accurately be described as a bag of 'information' whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder's activities and lifestyle."
On the other hand, Patrick planned to dispose of the garbage. Once it was thrown away and off the property, how could Patrick complain about it being taken by anyone, including the police? This is the critical point that underpinned the court's decision. Patrick had put his trash out for collection; as soon as he did so, he abandoned the right to privacy for the information in the garbage.
The majority of the Supreme Court judges found that since the garbage had been "abandoned" there was no need for the court to consider the privacy issue more closely. Nevertheless, the court made it very clear that, absent the abandonment, there was a legitimate privacy interest which would have merited protection. The court took a position that protects privacy rights but allows for law enforcement: If you throw away information, you run the risk of it becoming public; if you want to keep something private, don't put it in the garbage.
When the rights of accused are at stake extreme positions are common. Some argue that police efficiency ought to trump rights -- if you have nothing to hide why should a search bother you -- while others make extravagant claims for privacy rights ignoring the fact that crime itself limits freedom in society. The court took a middle ground and protected privacy while allowing for law enforcement.
- James Morton is a Toronto lawyer who teaches evidence at Osgoode Hall Law School. He is a past president of the Ontario Bar Association.
Published: Tuesday, April 14, 2009
Last Thursday's Supreme Court of Canada decision upholding a search of a drug dealer's garbage bags is sensible and reflects a genuine concern for a balance between liberty and law enforcement.
Russell Stephen Patrick, a former national swimming star, was operating an Ecstasy lab in his Calgary home. On several occasions, police officers conducted a search of Patrick's garbage, which involved seizing garbage bags located inside garbage cans in a receptacle at the back of his house. The bags had been put out for trash collection and were readily accessible to the public. Nonetheless, the officers did have to reach on to Patrick's property to get the garbage bags. The police found items in at least four bags that were suggestive of an Ecstasy lab operation.
These items were used to obtain a search warrant for Patrick's residence and, unsurprisingly, the Ecstasy lab was discovered.
At trial in 2006, the court dealt with the admissibility of the evidence obtained from the police search. The trial judge held that Patrick did not have a reasonable expectation of privacy over the items seized from his garbage, and that the search of his home was lawful. Patrick was convicted of unlawfully producing, possessing and trafficking Ecstasy. Patrick was sentenced to four years in prison. On Thursday, the Supreme Court ruled that the garbage search was reasonable and, as a result, Patrick's conviction should be upheld.
The Supreme Court's decisions on privacy are not always easy to reconcile. In one case, the court held sniffer dogs cannot properly be used at bus stations to find contraband, while in another case the court allowed the use of heat-detecting aircraft for peering into people's homes to find grow operations. Thursday's decision laboured to distinguish when privacy rights trump society's right to be free from crime.
The court held that the issue of privacy cannot turn on what is being kept private. A criminal has the same privacy rights as a law-abiding citizen. The question is not whether there was proof of illegal activity in the garbage bags, as opposed to embarrassing but legal materials, but rather whether there is some entitlement to privacy in trash.
As a purely legal matter, until actually disposed of, Patrick's garbage was still his property -- and as the English proverb notes, one man's garbage is another's treasure. Certainly, as the court found, there can be a privacy interest in garbage. Clues to people's most private traits and affairs can be found in their garbage. Personal letters, bills, receipts, prescription bottles and similar items that are regularly disposed of in household trash disclose information about the resident that few people would want to be made public. The court recognized this, saying "a garbage bag may more accurately be described as a bag of 'information' whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder's activities and lifestyle."
On the other hand, Patrick planned to dispose of the garbage. Once it was thrown away and off the property, how could Patrick complain about it being taken by anyone, including the police? This is the critical point that underpinned the court's decision. Patrick had put his trash out for collection; as soon as he did so, he abandoned the right to privacy for the information in the garbage.
The majority of the Supreme Court judges found that since the garbage had been "abandoned" there was no need for the court to consider the privacy issue more closely. Nevertheless, the court made it very clear that, absent the abandonment, there was a legitimate privacy interest which would have merited protection. The court took a position that protects privacy rights but allows for law enforcement: If you throw away information, you run the risk of it becoming public; if you want to keep something private, don't put it in the garbage.
When the rights of accused are at stake extreme positions are common. Some argue that police efficiency ought to trump rights -- if you have nothing to hide why should a search bother you -- while others make extravagant claims for privacy rights ignoring the fact that crime itself limits freedom in society. The court took a middle ground and protected privacy while allowing for law enforcement.
- James Morton is a Toronto lawyer who teaches evidence at Osgoode Hall Law School. He is a past president of the Ontario Bar Association.
Something's missing from this puzzle
There is something very troubling about this story. A little girl disappears from school, apparently taken by a stranger. The police (even now nearly a week later) still seem to suggest the situation doesn't necessarily involve foul play. Do they know something they aren't telling? Is that why they didn't go public right away when the abduction occurred? There's something missing here.
Child's disappearance 'every parent's worst nightmare' Jordana Huber,
National Post Tuesday, Apr 14, 2009
WOODSTOCK, Ont. -- As children returned to school here Tuesday morning following an Easter break, counsellors were on hand to speak with the students about their eight-year-old classmate who vanished without a trace after school last Wednesday. Sally Christensen, school psychologist and head of the traumatic events team for the school district, said eight crisis counsellors will be available to discuss any concerns the children might have about Victoria "Tori" Stafford and her disappearance. Tori's classmates will be offered the chance to make purple ribbons for their school mates, said Ms. Christensen.
Purple is Tori's favourite colour and residents of Woodstock have been wearing purple ribbons to show solidarity with the girl's family. "This is something they can do to help," she said. "They are little and there is not much else they can do," she said, adding she has been speaking with teachers about the best way to deal with students. A spokeswoman for the Thames Valley District School Board said classes will go ahead as usual. "We want to make the day as normal as possible and I know that is going to be tough for everyone," said Kate Young.
"I am sure every parent at this school and every parent in Woodstock and in Ontario and Canada is thinking twice about how their children are getting to and from school today." Parents and grandparents dropping children off at school Tuesday morning expressed mixed emotions as students returned to classes. "I'm terrified for my children," said Heather Ditchfield whose children are eight and 13. "I can't let them go anywhere without me." She said it is difficult to explain to her children what has happened to Tori. "You have no answers for them. I have no answers for my kids. I can't comfort them," she said. Parent Jeff Ebel said he has reinforced the importance of not talking to strangers but will still allow his children in grades 2 and 8 to walk to school together. "Everybody's doing the same things. We are emphasizing safety," he said. "You have to be protective, but you also have to go on."
On Monday, police called off the search for Tori, saying they believe the child is still alive. Oxford Community Police Const. Laurie-Anne Maitland told media that she was still hopeful about the probe into the whereabouts of the little girl. Const. Maitland said there has been no evidence found to support the possibility she met with foul play. Officers from the Ontario Provincial Police behavioral sciences unit spent Sunday reviewing the case with local police, and Const.
Maitland said police would begin another ground search only if new information surfaces. Rob Stafford, Tori's uncle, has posted a Facebook plea for the safe return of the Grade 3 student. As of Tuesday morning, nearly 40,000 people had joined the online group, which asks for Tori's safe return -- no questions asked. Johanne Barrette, a family friend of Tori's mother, Tara McDonald, said it is a struggle to remain positive.
"She's not doing good, but she is hanging in there," Ms. Barrette said. On Sunday, hundreds of people gathered at a vigil for Tori. She was last seen in a fuzzy surveillance video, walking without a struggle with an unidentified woman just before she went missing after classes had been let out. Her disappearance has shaken this community of 35,000 and has left parents uneasy.
"This is every parent's worst nightmare," said Woodstock Mayor Mike Harding. "We expect our children to be safe on the streets and they, by and large, are. When these things happen, I think it rattles us to the core and hopefully, we don't overreact." Across Woodstock, about 150 kilometres southwest of Toronto, posters with photos of Tori are taped to utility poles and lining store windows and car windshields.
Video Conference
Modern technology is remarkable. I had a lengthy video conference this afternoon. The HD signal was so clear, the sound quality so good, that after a moment or two I forgot I wasn't in the same room as the participants from across the country.
Canadian Somali Mentorship Program -- A Link
In response to a comment and request here is a link to the program:
http://www.canadianipp.org/en/projects.htm
http://www.canadianipp.org/en/projects.htm
Monday, April 13, 2009
A tragic end to a tragic story
It's easy to forget the victim in a situation like this but gosh, how dreadful a story. The Court heard of years of Russian roulette -- what inner demons drove such a talented man at the end of his career to such behavior?
Phil Spector found guilty of actress' 2003 murder
LOS ANGELES, California (CNN)
A jury has found music legend Phil Spector guilty of second-degree murder in the 2003 shooting death of an actress at his home in Alahambra, California.
The jury returned the verdict in a Los Angeles courtroom shortly after 5 p.m. ET on Monday.
The six men and six women began their deliberations on March 26. They deliberated for about 30 hours.
Jurors had to decide whether Spector, 69 was guilty of second-degree murder or a lesser charge of involuntary manslaughter.
Spector, 69, was charged in the death of Lana Clarkson, 40, who was found dead, slumped in a chair in the foyer of Spector's home with a gunshot wound through the roof of her mouth.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Phil Spector found guilty of actress' 2003 murder
LOS ANGELES, California (CNN)
A jury has found music legend Phil Spector guilty of second-degree murder in the 2003 shooting death of an actress at his home in Alahambra, California.
The jury returned the verdict in a Los Angeles courtroom shortly after 5 p.m. ET on Monday.
The six men and six women began their deliberations on March 26. They deliberated for about 30 hours.
Jurors had to decide whether Spector, 69 was guilty of second-degree murder or a lesser charge of involuntary manslaughter.
Spector, 69, was charged in the death of Lana Clarkson, 40, who was found dead, slumped in a chair in the foyer of Spector's home with a gunshot wound through the roof of her mouth.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
The Res Gestae exception to the Hearsay Rule
Res Gestae
This is a rather confusing exception to the hearsay rule. It has been used, and is still used, by some counsel to try to admit hearsay without giving serious consideration to the issue of hearsay.
Thayer reminds us that the exception was first used by “Garrow and Lord Kenyon – two famously ignorant men”[i]. That said, the res gestae exception to the hearsay rule is quite clearly established and fairly easily defined. The res gestae exception to the hearsay rule can be stated thusly:
A hearsay statement relating to a startling evidence or condition that was made while the declarant was under the stress of excitement caused by the event or condition is admissible though hearsay.
The reasoning here is that the event was so startling that the declarant does not have reflective capacity and will only speak the truth as the declarant sees it.[ii] The statement must be made while the declarant still feels the shock of the event; if the shock wore off and reflective thought occurred, the statement will not be admitted. The Court in Gilbert[iii] accepted the following definition of the res gestae exception:
Whatever act, or series of acts, constitute, or in point of time immediately accompany and terminate in, the principal charged as an offence against the accused, from its inception to its consummation or final completion; or its prevention or abandonment, – whether on the part of the agent or wrong-doer in order to its performance, – and whatever may be said by either of the parties, during the continuance of the transaction, with reference to it, including herein, what may be said by the suffering part, though in the absence of the accused, during the continuance of the action of the latter – form part of the principal transaction, and may be given in evidence as part of the res gestae, or particulars of it.
The view of res gestae in Gilbert comes out of the caselaw. The Wilkinson[iv] decision is fairly typical. A deceased made a statement suggesting that she was in the midst of a fight with her husband – she was then shot by an unseen shooter. The prosecutor wanted to adduce the deceased’s statement to prove she was fighting with her husband. The statement was taken as hearsay being an out of court statement adduced to prove the truth of its contents. Was the statement admissible as part of the res gestae? The statement was made contemporaneous with the fight and flowed from it and, as a result, was admissible as being part of the res gestae. Justice Hall notes:
She [the deceased] had no opportunity for fabrication and her statements were not mere narrative of events but were part of the transaction itself, and are admissible on this ground.
Similarly, Lord Wilberforce notes in Ratten v The Queen[v]:
As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adopt his account, he should exclude it. If the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.
At base, res getae is based on the assumption that something said spontaneously and without time for reflection is likely to be sincere and believed.[vi]
The statement may be false as a result of misperception, but it will not be fabricated.
[i] (1881), 15 Amer. L. Rev. 1, 10. If anyone other than Thayer said such a thing, it might bespeak contempt, but even abuse by Thayer conveys a measure of respect. In any event, one doubts Garrow or Lord Kenyon are disturbed in the grave by the reference.
[ii] R v Folland (1999), 132 C.C.C. (3d) 14; R v Mitchell [2006] O.J. No. 4172
[iii] Gilbert v The King (1907), 12 C.C.C. 127
[iv] R. v Wilkinson [1934] 3 D.L.R. 50
[v] [1971] 3 All E.R. 801
[vi] R. v Schwartz (1978), 40 CCC (2d) 161 (NS CA)
This is a rather confusing exception to the hearsay rule. It has been used, and is still used, by some counsel to try to admit hearsay without giving serious consideration to the issue of hearsay.
Thayer reminds us that the exception was first used by “Garrow and Lord Kenyon – two famously ignorant men”[i]. That said, the res gestae exception to the hearsay rule is quite clearly established and fairly easily defined. The res gestae exception to the hearsay rule can be stated thusly:
A hearsay statement relating to a startling evidence or condition that was made while the declarant was under the stress of excitement caused by the event or condition is admissible though hearsay.
The reasoning here is that the event was so startling that the declarant does not have reflective capacity and will only speak the truth as the declarant sees it.[ii] The statement must be made while the declarant still feels the shock of the event; if the shock wore off and reflective thought occurred, the statement will not be admitted. The Court in Gilbert[iii] accepted the following definition of the res gestae exception:
Whatever act, or series of acts, constitute, or in point of time immediately accompany and terminate in, the principal charged as an offence against the accused, from its inception to its consummation or final completion; or its prevention or abandonment, – whether on the part of the agent or wrong-doer in order to its performance, – and whatever may be said by either of the parties, during the continuance of the transaction, with reference to it, including herein, what may be said by the suffering part, though in the absence of the accused, during the continuance of the action of the latter – form part of the principal transaction, and may be given in evidence as part of the res gestae, or particulars of it.
The view of res gestae in Gilbert comes out of the caselaw. The Wilkinson[iv] decision is fairly typical. A deceased made a statement suggesting that she was in the midst of a fight with her husband – she was then shot by an unseen shooter. The prosecutor wanted to adduce the deceased’s statement to prove she was fighting with her husband. The statement was taken as hearsay being an out of court statement adduced to prove the truth of its contents. Was the statement admissible as part of the res gestae? The statement was made contemporaneous with the fight and flowed from it and, as a result, was admissible as being part of the res gestae. Justice Hall notes:
She [the deceased] had no opportunity for fabrication and her statements were not mere narrative of events but were part of the transaction itself, and are admissible on this ground.
Similarly, Lord Wilberforce notes in Ratten v The Queen[v]:
As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adopt his account, he should exclude it. If the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.
At base, res getae is based on the assumption that something said spontaneously and without time for reflection is likely to be sincere and believed.[vi]
The statement may be false as a result of misperception, but it will not be fabricated.
[i] (1881), 15 Amer. L. Rev. 1, 10. If anyone other than Thayer said such a thing, it might bespeak contempt, but even abuse by Thayer conveys a measure of respect. In any event, one doubts Garrow or Lord Kenyon are disturbed in the grave by the reference.
[ii] R v Folland (1999), 132 C.C.C. (3d) 14; R v Mitchell [2006] O.J. No. 4172
[iii] Gilbert v The King (1907), 12 C.C.C. 127
[iv] R. v Wilkinson [1934] 3 D.L.R. 50
[v] [1971] 3 All E.R. 801
[vi] R. v Schwartz (1978), 40 CCC (2d) 161 (NS CA)
Canadian Somali Congress
The Canadian Somali Congress held a meeting with over ninety participants to provide information on the Somali-Jewish Mentorship Project.
A remarkable speech was given by Saaed Mohamud, a respected Somali elder.
The thrust of the speech was that Somali Canadians must integrate into Canada to better themselves and their family in Somalia.
Speaking in Somali Mr Mohamud expressed the need to bridge the gap between Somalia and Canada for the Somali community.
Pictured, Ahmed Hussen, President and James Morton, Counsel, Canadian Somali Congress
Berlin Zoo
The woman who jumped into the polar bear pond at the Berlin Zoo was, it seems, in despair over losing her job as a teacher. Of course, in trying to kill herself, if that is what she was doing, she nearly killed a polar bear and tramatized children across the world. I suppose she was deranged and so that is some excuse but this blogger is not impressed.
The Zoo keepers pushed one animal out of the way after one of four polar bears dived into the moat and attacked the woman. At last they dragged her out of the water. The 32-year-old woman suffered seriously bites to her arms and legs.
In a striking understatement the local police said "The woman has proved herself to be careless by jumping into the enclosure".
At least it seems Knut was not involved -- but as a word of warning, don't jump in front of hungry polar bears dressed like a seal -- that's a careless thing to do... .
The Zoo keepers pushed one animal out of the way after one of four polar bears dived into the moat and attacked the woman. At last they dragged her out of the water. The 32-year-old woman suffered seriously bites to her arms and legs.
In a striking understatement the local police said "The woman has proved herself to be careless by jumping into the enclosure".
At least it seems Knut was not involved -- but as a word of warning, don't jump in front of hungry polar bears dressed like a seal -- that's a careless thing to do... .
Piracy laws
The killing of three Somali pirates in the dramatic U.S. Navy rescue of a cargo ship captain has sparked concern for other hostages and fears that the stakes have been raised for future hijackings in the busy Indian Ocean shipping lane.
Sunday's rescue of Capt. Richard Phillips followed a shootout at sea on Friday by French navy commandos, who stormed a pirate-held sailboat, killed two pirates and freed four French hostages. The French owner of the vessel was also killed in the assault.
Under customary international law, pirates were considered "hostis humani generis" or "the enemy of mankind" and any country could arrest and try them under their jurisdiction.
The modern international law governing piracy is the 1982 UN Convention on the Law of the Sea (UNCLOS). UNCLOS defines piracy as illegal acts of violence, detention, or depredation (plundering, robbing or pillaging) committed for private ends by a private ship on the high seas, i.e. outside the jurisdiction of any country.
The same acts, when committed inside the territorial waters of a country, do not fall under the definition of piracy, but are simply considered "sea robbery" under international law, and are dealt with by the laws of that country.
Under UNCLOS, all signatory countries are required to cooperate to the fullest possible extent in the repression of piracy on the high seas. Any country may seize a pirate ship or a ship taken by pirates, arrest the pirates, and that country's courts are entitled to decide on the penalties to be imposed.
However, UNCLOS does not apply to sea robbery taking place within the territorial waters of a country, meaning that any rights and obligations it imposes are useless outside of the high seas.
In reaction to the Somali situation, the UN Security Council passed a resolution in June 2008 allowing countries with the consent of Somalia's transitional federal government to enter Somali waters to repress acts of piracy and armed robbery at sea, and to use, in a manner consistent with international law, all necessary means to repress acts of piracy and armed robbery.
Why Is Amazon Removing The Sales Rankings From Gay, Lesbian Books?
Interesting story -- I had always assumed the Amazon ratings were "unmoderated" and merely reflected actual sales:
Why Is Amazon Removing The Sales Rankings From Gay, Lesbian Books?
According to author Mark R. Probst, Amazon.com has begun pulling the sales rank numbers from several gay and lesbian books, claiming that the books are "adult" and should be excluded from some searches and lists.
Probst noticed the disappearing rankings after searching for a few high-profile gay romance novels; believing there was some sort of glitch in the system, he continued researching and discovered that "HUNDREDS of gay and lesbian books simultaneously lost their sales rankings," including his own book, The Filly. When Probst contacted Amazon regarding the situation, he was given this response by the company:
In consideration of our entire customer base, we exclude "adult" material from appearing in some searches and best seller lists. Since these lists are generated using sales ranks, adult materials must also be excluded from that feature.
Hence, if you have further questions, kindly write back to us.
Best regards,
Ashlyn DMember ServicesAmazon.com Advantage
This sounds like a big old bowl of BS, does it not? Especially when you consider the fact that Amazon has vibrators, clitoral stimulators and anal plugs available in their search system with sales ranks attached. One wonders why these items are allowed to remain in the system with sales ranks while books including gay and lesbian content, themes, and even, as a commenter points out, autobiographies of gay and lesbian authors such as Stephen Fry, are deemed too "adult" for such things.
The LiveJournal community MetaWriter is currently keeping tabs on the books that have had their sales ranks removed: Rubyfruit Jungle, Brokeback Mountain, and even Alex Sanchez's Rainbow Boys, a YA novel, have been deemed too "adult" for Amazon's customers to view their sales rankings. Twitter is currently buzzing with the controversy.
See story here: http://jezebel.com/5209088/why-is-amazon-removing-the-sales-rankings-from-gay-lesbian-books
Why Is Amazon Removing The Sales Rankings From Gay, Lesbian Books?
According to author Mark R. Probst, Amazon.com has begun pulling the sales rank numbers from several gay and lesbian books, claiming that the books are "adult" and should be excluded from some searches and lists.
Probst noticed the disappearing rankings after searching for a few high-profile gay romance novels; believing there was some sort of glitch in the system, he continued researching and discovered that "HUNDREDS of gay and lesbian books simultaneously lost their sales rankings," including his own book, The Filly. When Probst contacted Amazon regarding the situation, he was given this response by the company:
In consideration of our entire customer base, we exclude "adult" material from appearing in some searches and best seller lists. Since these lists are generated using sales ranks, adult materials must also be excluded from that feature.
Hence, if you have further questions, kindly write back to us.
Best regards,
Ashlyn DMember ServicesAmazon.com Advantage
This sounds like a big old bowl of BS, does it not? Especially when you consider the fact that Amazon has vibrators, clitoral stimulators and anal plugs available in their search system with sales ranks attached. One wonders why these items are allowed to remain in the system with sales ranks while books including gay and lesbian content, themes, and even, as a commenter points out, autobiographies of gay and lesbian authors such as Stephen Fry, are deemed too "adult" for such things.
The LiveJournal community MetaWriter is currently keeping tabs on the books that have had their sales ranks removed: Rubyfruit Jungle, Brokeback Mountain, and even Alex Sanchez's Rainbow Boys, a YA novel, have been deemed too "adult" for Amazon's customers to view their sales rankings. Twitter is currently buzzing with the controversy.
See story here: http://jezebel.com/5209088/why-is-amazon-removing-the-sales-rankings-from-gay-lesbian-books
Sunday, April 12, 2009
Decriminalizing drugs - Portugal's experience
On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin. Under the new legal framework, all drugs were "decriminalized," not "legalized." Thus, drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm. Drug trafficking continues to be prosecuted as a criminal offense. While other states in the European Union have developed various forms of de facto decriminalization — whereby substances perceived to be less serious (such as cannabis) rarely lead to criminal prosecution — Portugal remains the only EU member state with a law explicitly declaring drugs to be "decriminalized." Because more than seven years have now elapsed since enactment of Portugal's decriminalization system, there are ample data enabling its effects to be assessed. Notably, decriminalization has become increasingly popular in Portugal since 2001. Except for some far-right politicians, very few domestic political factions are agitating for a repeal of the 2001 law. And while there is a widespread perception that bureaucratic changes need to be made to Portugal's decriminalization framework to make it more efficient and effective, there is no real debate about whether drugs should once again be criminalized. More significantly, none of the nightmare scenarios touted by preenactment decriminalization opponents — from rampant increases in drug usage among the young to the transformation of Lisbon into a haven for "drug tourists" — has occurred. The political consensus in favor of decriminalization is unsurprising in light of the relevant empirical data. Those data indicate that decriminalization has had no adverse effect on drug usage rates in Portugal, which, in numerous categories, are now among the lowest in the EU, particularly when compared with states with stringent criminalization regimes. Although postdecriminalization usage rates have remained roughly the same or even decreased slightly when compared with other EU states, drug-related pathologies — such as sexually transmitted diseases and deaths due to drug usage — have decreased dramatically. Drug policy experts attribute those positive trends to the enhanced ability of the Portuguese government to offer treatment programs to its citizens — enhancements made possible, for numerous reasons, by decriminalization.
See: http://www.cato.org/pub_display.php?pub_id=10080
James Morton
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