Racism alive and well in Keswick

Racist bullies in Keswick work to show their ignorance by calling Asians "Chinese," pushing Asian anglers into the water in a sport locally known as "nipper tipping" and beating up on Asian high school kids.

That said, the bullies made a bad mistake beating up an Asian high school kid who happened to have a black belt.

Now the school has suspended both students and has threatened to expel the Korean student from all schools in the school district. I suppose they want to make it clear you must turn the other cheek -- at least if you're Asian.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Convention Photographs

"We are a light unto the nations." (Isaiah 42:6)

In his speech Michael spoke of how Canada is a light unto the nations. He spoke of Canada as bringing democracy, tolerance and unity in diversity to the world.

He spoke of Canada as the nation of Vimy Ridge, Juno Beach and the Desert of Khandhar.

A nation with a vision.

As Michael is made Leader

I am writing from the floor of the Vancouver convention centre.

Michael is being formally elected leader.

Michael Grant Ignateiff.

To my surprise I find the moment quite emotional. This has been a long journey.

From our first meeting at the Ottawa policy convention, just a few years ago, Michael has been a committed Liberal. He fought a hard battle to become an MP and since then has struggled against considerable odds to become Liberal Leader.

He has united the Party -- we are all as one today. He will be the next Prime Minister and will be the next great Prime Minister.

Laurier, Trudeau, Ignatieff.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Dinner yet?

A discussion with Senator Smith

Senator Smith spoke to Liberal bloggers about election readiness and the Party.



Regarding election readiness he said we can be ready. He commented that presently momentum is favorable to the Liberal. He noted that the direction is critical -- and since the Bloc and the NDP are not well placed for and election so they might well not seek an election soon.



Senator Smith pointed out that Canadians are not keen for an election presently.



On being asked when the Government will fall the Senator said it's unlikely the government will go full term. Beyond that the Senator suggested the next budget or even in the fall would be a likely or possible fall time. The Senator noted an earlier date was possible even this spring. A suggestion of a possible 'understanding' between the Bloc and the Conservatives might put an election even further back.



On being asked about appointing women candidates, instead of having EDA elections for candidates, Senator Smith said that if necessary the Leader would so do. The Liberals will do what has to do. Senator Smith recalled a time where in the Toronto area the entire Liberal team was all men -- that will not be allowed to re occur.



In the last election the Liberals did not spend the limit. The Senator noted money helps but it's not everything. This time we will be in a better position to spend more -- obviously the greater the war chest the better. Financially things are improving.



In passing the Senator said he was satisfied with the one member one vote proposal.



James Morton

1100-5255 Yonge Street

Toronto, Ontario

M2N 6P4



416 225 2777

Canada-India Hospitality Event at Vancouver Convention

Justice of the Peace Bench

Defending the Bench


By James Morton, Ottawa Citizen
May 2, 2009


Recent media reports focusing on justices of the peace have centred around two cases of alleged conflict of interest and abuse of the position. One Ontario justice of the peace who is facing accusations of touching a colleague "in a sexual manner," was previously rebuked for releasing a man on drug trafficking and weapons charges for no apparent reason.

But these isolated cases obscure the fact that the Bench has become thoroughly professional and is a highly trained and skilled body of adjudicators.

The ancient office of justice of the peace is one of great honour and responsibility. In 1195, Richard I ("the Lionheart") of England commissioned certain knights to preserve the peace in unruly areas. They were responsible to Richard for ensuring that the law was upheld, and preserved the "King's Peace," and were the first Justices of the Peace.

Over time the policing role diminished and justices were chosen as being persons of standing and wisdom in the community. Their judicial function remains a vital part of the administration of justice in Ontario. Justices of the peace are the gatekeepers for the system and are, to a large extent, the public face of justice in Ontario.

Despite the honour 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.

In Ontario, justices of the peace must have a university degree, or equivalent, and a minimum of 10 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 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.

The two main areas of jurisdiction for justices of the peace are criminal law and 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 criminal process, and are responsible for the denial or issuance of search warrants. It is fair to say justices of the peace form the backbone of the criminal justice system.

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, races and religions and there is close to true gender balance, especially for more recent appointments. Justices of the peace genuinely reflect the people of Ontario; they are a bench the province can respect and be proud of.

James Morton is a past president of the Ontario Bar Association and teaches evidence at Osgoode Hall Law School. He has lectured to justices of the peace in Ottawa and Toronto.

Dutch Royal assault

So it appears there is no deeper political reasons behind the dreadful attack ...

THE HAGUE - A man who tried to ram his car into the Dutch royal family, killing six onlookers at a parade, died in hospital Friday as details emerged of how he lost his job and was about to lose his home.

The killer driver, who has not been officially identified, died in hospital in the early hours from severe head trauma as relatives of the six victims that he mowed down tried to come to terms with their loss.

The tragedy, labelled "an act of despair" by newspapers, also prompted questions about royal security and whether there would have to be a rethink about staging the annual Queen's Day procession.

Newspapers, displaying gruesome photographs of twisted limbs and bodies sent flying at a royal parade Thursday in the central city of Apeldoorn, said the man had recently lost his security guard job.

"Recently, he informed me that he had been dismissed and could no longer pay the rent," landlord Sem Bosman told the mass market De Telegraaf newspaper.

Canwest Poll Results

The polls are encouraging but remember they are but a snapshot and the Conservatives have depth and resources. And a national lead of three points is close to a rounding error.

VANCOUVER -- Liberal Leader Michael Ignatieff described his party as "fit to govern" Friday as a poll showed the Grits leading the Conservatives for the first time since the October election in an Ipsos Reid poll.

While the Liberal lead of 36% to 33% could be enough to form government, the poll found Prime Minister Stephen Harper outranks Mr. Ignatieff on many counts on the eve of a national Liberal convention vote confirming his four-month-old leadership.

It also found little public hunger for having another federal election. ...

Pollster John Wright said the Liberals' biggest strength appears to be their brand, while the Conservatives' strength is seen as Mr. Harper's leadership. ...

The poll suggested the Liberals have closed what was, as recently as December, a 23-point gap behind the governing Conservatives. ...

In Ontario, the Liberals have a 10-point lead over the Conservatives. And while the Liberals in Quebec trail the Bloc Quebecois 34% to 32%, the Conservatives are far behind, with just 14% of the support of decided voters.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Formal Opening

As I write the Liberal Party Convention is starting. A surprisingly high turnout, over 2,400 delegates, are here in the beautiful new Vancouver convention centre.

The business of the convention is significant -- already a streamlining of administrative functions in the Party has been approved. Tomorrow the concept of one member one vote will be given close consideration.

For myself there is a significant task ahead -- the task of making the Council of Presidents a functioning group exercising its constitutional role within the Party. This will require the mechanics of internal bylaws, structured telephone meetings, blogs and listserves and finally carefully organized agendas for effective meetings. And all this in both languages.

After tonight's opening festivities there will be hospitality suites -- likely far more lavish than mine. Bollywood looks to be exciting but I want to go to the Apps Family affair. And if I don't pass out before (joke) I want to see the McGinty suite.

It's the off Convention affairs that count -- today I have spoken to two former Prime Ministers, a former Party Leader, a future Prime Minister and my own Premier. And the night is young.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Amnesty International Outraged at Iran's Execution of Delara Darabi

It is shocking that the execution went ahead despite an explicit judicial stay. Iran's government is behaving in a lawless fashion that breaches its treaty obligations towards children. Perhaps this should not come as a surprise, but it did surprise (and disgust) me.

WASHINGTON - May 1 - This morning, Iranian authorities executed Delara Darabi in Rasht Central Prison. She is the second person to be executed this year after being convicted of a crime she was alleged to have committed while still under 18, Amnesty International revealed today. "Amnesty International is outraged at the execution of Delara Darabi, and particularly at the news that her lawyer was not informed about the execution, despite the legal requirement that he should receive 48 hours' notice. This appears to have been a cynical move on the part of the authorities to avoid domestic and international protests which might have saved Delara Darabi's life," said Hassiba Hadj Sahraoui, deputy director of the Middle East and North Africa program.

Delara Darabi was executed despite her having been given a two-month stay of execution by the Head of the Judiciary on April 19. "This indicates that even decisions by the Head of the Judiciary carry no weight and are disregarded in the provinces," said Hassiba Hadj Sahraoui.

Delara Darabi was convicted of murdering a relative in 2003 when she was 17. She initially confessed to the murder, believing she could save her boyfriend from the gallows, but later retracted her confession. She was being detained at Rasht Prison in northern Iran since her arrest in 2003, during which time she developed a significant talent as a painter.

Amnesty International does not consider her trial to have been fair, as the courts later refused to consider new evidence which the lawyer said would have proved she could not have committed the murder. Amnesty International had campaigned for her life since her case came to light in 2006, urging the Iranian authorities to commute her death sentence and calling for a her re-trial in proceedings that meet international standards.

Relaxing swim after a hard week

Victory Fund Champions

The Convention does not have a leadership race but it is tremendously busy. From the very start of each day there are meetings. This post has a picture of Victory Fund champions from across the country.

Irwin Cotler speaks to delegates in Vancouver

No looking back!

Principles are not enough

Wilfrid Laurier said, "it is not enough to have principles, we must also have organization"

Dion was the right leader for his time

My sense is that, over time, people will realize that Stephane Dion was, in many ways, the perfect leader for the Liberal Party for the brief time he was leader.

His leadership drew a line between the conflicted past and today's unity. His integrity and personal strength were clear to everyone.

Joe Clark, in hindsight, was a far greater leader of the Progressive Conservatives than he once seemed -- history will be kind to Stephane Dion.



Change in reality makes future unclear
The Toronto Star
Friday, May 1, 2009
Page: A06
Section: News
Byline: Chantal Hebert
Source: Toronto Star

As the Liberal party prepares to formally close the sorry chapter of his leadership tonight, it is unclear what, if anything, the political future holds for Stephane Dion.

Since he was cast aside in the heat of last year's parliamentary crisis, Dion has given few public indications of his post-leadership plans and no solid hints that a much-postponed return to academia is now in the cards.

Should he run in the next election and the Liberals win power, he could certainly imitate Joe Clark and Stockwell Day, who both went on to lead productive lives as senior ministers after bruising spells as party leaders.

But if Dion does stay on, it will be because he has become addicted to political life rather than because the original mission that brought him to the federal arena in the wake of the 1995 referendum requires that he remains on the front-line.

Upon his arrival on Parliament Hill, Dion had vouched to change the terms of Canada-Quebec conversation. In his own, hard-to-translate words, he wanted to "change mentalities and then change reality."

Back in early 1996, that sounded like a tall order in either official language but the fact is that there has been a shift in the Quebec optics on sovereignty and federalism.

In the ongoing fixation with the ups and downs of the major federal parties in voting intentions, it is easy to lose sight of the core issue that brought Dion to Parliament Hill more than a decade ago. Back then, sovereignty was the first choice of a majority of francophone Quebecers; now there is mounting evidence that the current quiet spell on the unity front is more than just a ceasefire while sovereigntists regroup for another referendum offensive.

From almost 50 per cent in 1995, support for sovereignty currently hovers at the 40 per cent mark. It has been down to that level since the adoption of the Quebec nation resolution in Parliament in 2006.

That was also the time when Stephen Harper was on an all-out charm offensive in Quebec and Conservatives were in ascent in Quebec.

Since then, Quebecers have soured on the government. These days, it is hard to think of a Conservative policy that has positive traction in Quebec or of a Harper minister who is popular in the province.

Over the past three months, the Conservatives have broken new lows for a sitting federal government in voting intentions in Quebec. At 13 per cent in a just-published CROP poll, they stand to be wiped out of the province in the next election.

And yet, support for sovereignty has remained stagnant. In sharp contrast with the past, deep discontent with the federal government and the reappearance of major irritants between Quebec and Ottawa are not translating into a nationalist surge.

That is not to say that the sovereignty movement is not alive, just that it is not doing as well as the parties that purport to advance its cause.

The support of two out of five Quebecers may be enough to ensure that the Bloc and the Parti Quebecois are forces to contend with in Parliament and the National Assembly but it does not amount to a springboard to another referendum.

Instead, with every passing poll, it is becoming clearer that a significant group of soft nationalists are no longer automatically inclined to use sovereignty as leverage in their collective dealings with Canada. And that, in the awkward words of Dion, is certainly a crucial change in mentalities.

Chantal Hebert is a national affairs writer. Her column appears Monday, Wednesday and Friday.

Liberal Minute Interview

In this episode I speak with James Morton just prior to his election as the new deputy chair of the Council of Presidents for the Liberal Party of Canada. Here James speaks about why he ran for this position and what actions he will take in order to reform the party as a whole.


http://liberalminute.wordpress.com/2009/05/01/libcon2009-4-james-morton-pre-victory-interview/

Frank Mahovlich, Gary Gladstone, James Morton (peeking in) and Ken Dryden

Council of Presidents

Quite a day -- I was lucky enough to be elected and so now the real work begins. I must thank Gary Gladstone and others who know who they are for their help.

It is a strange feeling speaking to such a large room with people from across the country. My French is still not what it should be (or what it will be) and I have to be careful to enunciate properly.

My opponent was a fine candidate and I was honoured to campaign against him. It was a difficult and close run fight.

But success is achieved.

Vancouver -- what a lovely spot for a Convention!

Smiling bear

Removing counsel for breach of privilege

Today's important Court of Appeal decision in Stewart v.  Humber River Regional Hospital, 2009 ONCA 350 deals with the issue of removing counsel who has come into possession of privileged material of a party opposite. Briefly put, such lawyer cannot continue to act:

[22]          The central issue is whether counsel for the appellants were properly found to be in possession of relevant solicitor-client information to which they have no claim of right such that they must be removed as the appellants' solicitor of record. The approach to this issue must be guided by the principles enunciated by the Supreme Court of Canada in MacDonald Estate and Celanese.

[23]          The starting point is that the courts have an inherent supervisory jurisdiction that extends to the removal of solicitors from the record where their conduct of legal proceedings would adversely affect the administration of justice (MacDonald Estate, at p. 1245).

[24]          Where solicitor-client information comes into the possession of the opposing party this creates a serious risk to the integrity of the administration of justice. The court in Celanese put it this way at paragraph 34:

Whether through advertence or inadvertence the problem is that solicitor-client information has wound up in the wrong hands. Even granting that solicitor-client privilege is an umbrella that covers confidences of differing centrality and importance, such possession by the opposing party affects the integrity of the administration of justice. Parties should be free to litigate their disputes without fear that their opponent has obtained an unfair insight into secrets disclosed in confidence to their legal advisors. The defendant's witnesses ought not to have to worry in the course of being cross-examined that the cross-examiner's questions are prompted by information that had earlier been passed in confidence to the defendant's solicitors. Such a possibility destroys the level playing field and creates a serious risk to the integrity of the administration of justice. To prevent such a danger from arising, the courts must act 'swiftly and decisively' as the Divisional Court emphasized. Remedial action in cases such as this is intended to be curative not punitive.

[25]           In short, if the public loses faith that communications between lawyer and client will be kept confidential and will not be used to the advantage of the adversary, this loss of faith would deliver a serious blow to the integrity of the legal profession and to the public's confidence in the justice system.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

From the Convention floor

The Convention will begin very soon -- the media are arriving and the tables set up. Far from being pointless, as some of the media seems to suggest, this will be an extremely valuble Convention. The Liberal Party is unified and ready to move ahead -- tous ensemble!

History's Hostages - From Outlook India

Thanks to Tarek Fatah for posting the link to this story. The tragedy is that Sikhs can live in peace and good will in Pakistan -- they had done so for many year. This is not an issue of religion; it is an issue of bigotry and discrimination.


History's Hostages
Held to a huge ransom by the Taliban, NWFP's Sikhs have nowhere to go

Decades before the cartographer sliced the subcontinent into Pakistan and India, ancestors of Kalyan Singh demonstrated the wanderlust typical of the Sikh community. They settled down in the green, picturesque Ferozkhel valley of Orakzai, one of the seven autonomous agencies which together comprise what is now called the Federally Administered Tribal Area (FATA). In his own 45 years of life, Kalyan had never experienced religious discrimination. He ran his business, lived a contented life with his family. And, despite the intolerance now sweeping across a swathe of FATA, Kalyan Singh would have told you, had you ever asked him, that the sturdy Pashtuns are hospitable, caring and kind-hearted.

Kalyan Singh’s feelings are now memories, his bucolic life in complete disarray. Much of Orakzai began to change when, early in 2008, Tehrik-e-Taliban leader Baitullah Mehsud’s men swept in here from South Waziristan through the neighbouring North Waziristan, inaugurating a reign of terror. Soon, Hakimullah Mehsud, Baitullah’s deputy, established an ‘Islamic emirate’ here, evoking horrific images of religious intolerance that scared a few Sikh families into migrating to Peshawar.

Kalyan Singh refused to shift out from what he saw as his ancestral home, believing he was safe living among the Orakzai tribals. But then, a fortnight ago, Hakimullah descended on the Ferozkhel valley and ordered members of the Sikh community, including women, to gather in an open area. They were told they were now in the custody of Taliban, and that they must pay jazia (a religious tax imposed on non-Muslims living under Islamic rule in the medieval times) or convert to Islam.

The soldiers of the Islamic emirate then picked up Kalyan Singh, tortured him in custody for 10 long days even as negotiations for the amount to be paid as jazia kept apace. Herjeet Singh, a local Sikh, quotes an eyewitness to say, "The militants convened a shura of their own and passed the verdict that Sikhs should pay Rs 100 million as jazia. Our elders pleaded that poor members of the community have no means to raise such a huge amount." Herjeet is among those who sneaked out of Orakzai before jazia was imposed.

The Sikh community’s plea prompted further talks, with the Taliban scaling down their initial demand to Rs 40 million, ultimately agreeing to Rs 12 million as the jazia, a source told Outlook. Kalyan Singh was then set free and asked to raise the demanded amount. His and 50 other families were held hostage. They were warned that any attempts to escape would lead to the slaying of men and conversion of children and womenfolk to Islam. "This is unheard of. Our forefathers lived among the Pashtuns for centuries and were never subjected to such humiliation and barbarism," laments Herjeet Singh.

Kalyan, these days, is in Peshawar, persuading the Sikh community here to somehow raise the whopping amount. Sources say he has managed to collect Rs 3.5 million. Only when Rs 12 million is paid fully will the Sikhs in Ferozkhel be set free, provided protection and allowed to practise their religion.

Vancouver Convention --Hospitality Suite

What a start to the Convention!!!

A great Hospitality Suite -- albeit closed down by Security around 11:30 pm (which was fine because by then jet lag does describe my state of being!).

Gary Gladstone did the most amazing job of organizing and running the suite -- it brought back memories of when Gary ran Student Network suites nearly 30 years ago -- he hasn't lost his touch!!!

Probably had a hundred people all told came and shared wine, or whiskey or soda and way way way too much food. Despite the excess of food we went through just about everything -- maybe a couple of platters of veggy and dip too many -- but those went to a homeless shelter so nothing went to waste.

Now on to the substantive action!
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

A hospitality suite

The nerves before the party ... .

Is there too much food? (Yes, waaaaaay too much). Is there enough wine? (Almost certainly not). Will anyone come?(Yes) Will too many people come? (No) Will security close us down and haul us off to jail? (Not too likely) Do my buttons look right? (Yes) Is the radio on the right station? (Yes)

Well, soon we will see...
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Attack ads ready to go

Word is the Conservatives have attack ads ready, in French and English, all focused on Michael Ignatieff.

Well, with the today's polling numbers from Quebec it makes sense to try to turn the trend.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Flight deck security

As a child, maybe 1966, I remember being taken into the cockpit of a DC 8. There was a door, but it was open, and the stewardess who took me to the flight deck just walked in.

There were three men running the plane, at least it so seemed to my childish eyes. One of them was smoking. Security was as serious as you find on a public transit bus.

As I write this I am on a Westjet flight to Vancouver standing in front of a door that looks like it leads to a bank vault. A security light blinks and a keypad with coding barred entry. The door hinges are secured behind reinforced steel. A secure video peep hole allows the pilots to look out (do they have a toilet in there? It's a long flight? Is security breached for bathroom breaks?).

Changes in the way we live.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

In and out in Court

In-and-out case might finally go to court

Good reason for the Conservatives to try to avoid a fall election

By Glen McGregor , The Ottawa Citizen
April 28, 2009


The Conservative Party’s legal action against Elections Canada could finally be heard in court this summer after two years of legal wrangling over advertising purchases in the 2006 campaign.

Elections Canada on Tuesday filed its final written reply to the Tories’ claim that Chief Electoral Officer Marc Mayrand wrongly disallowed $1.2 million in expense claims for radio and TV ads filed by its candidates.

The agency contends that party officials used a “scheme” of wire transfers coordinated by its national headquarters to funnel the costs of advertising through the campaigns of 67 candidates.
The Conservatives have repeatedly claimed they followed the Elections Act and insist that other parties made similar “in and out” transactions.

The argument filed in Federal Court on Friday notes that the party was very close to its $18.3 million spending cap during the election and would have exceeded it had it included the costs of the disputed ads on its books.

It also says that Quebec Conservative candidates who participated spent $761,000 on the media buys, while the national party listed spending only $180,000 in Quebec, out of the $8 million it spent on ads across the country.

“[It] appears unusual that the Party would have spent a mere 2% of its total advertising expenses in Quebec,” the document says.

An official close to the case said the court could schedule oral hearings in the politically-charged dispute as early as this summer.

While the Federal Court case unfolds, Commissioner of Elections William Corbett is continuing his own investigation into the Tories’ financing of their campaign. Last year, his officials executed search warrants for documents and electronic records at Conservative party headquarters in Ottawa. His investigation is continuing, according to the argument by Elections Canada.

If he finds wrongdoing, Corbett could refer it to the director of public prosecutions for possible charges under the Elections Act.

Goethe

"Things which matter most must never be at the mercy of things which matter least." – Johann Wolfgang von Goethe

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

416 225 2777

Arbitrating fee disputes

Today's decision of the Court of Appeal for Ontario in Jean Estate v. Wires Jolley LLP, http://www.ontariocourts.on.ca/decisions/2009/april/2009ONCA0339.htm <http://www.ontariocourts.on.ca/decisions/2009/april/2009ONCA0339.htm> offers a viable alternative. The Court of Appeal held that a client and lawyer may agree to have any fee dispute, including a contingency fee dispute, referred to arbitration---either domestic under the Arbitrations Act, 1991 or international under the International Commercial Arbitration Act (Model Law), with the caveat that the appointed arbitrator or arbitral panel must apply the Solicitors Act in the arbitral proceedings. In other words, the statutory protections afforded to clients under the Solicitors Act may not be waived by the parties based upon public policy concerns.
 
The competence/competence principle, where the issue of arbitrability is systematically referred to the arbitrator admits of two exceptions: (1) Where the challenge to the arbitrator's jurisdiction is based "solely on a question of law" or (2) a question of "mixed law and fact"  where the "questions of fact require only superficial consideration of the documentary evidence in the record" as opposed to "the production and review of factual evidence", a court may depart from the general rule of systematic referral: Dell Computer Corp v. Union des consommateurs, [2007] 2 S.C.R. 801 at paras. 84-85.  Weiler, J.A. (MacFarland JJ.A. concurring; Juriansz J.A. (concurring in the result) at para. 50 notes that "[t]hese exceptions, under which a court may rule first on questions of law relating to the arbitrator's jurisdiction, recognize that a court can itself find that an agreement is null rather than referring this issue to arbitration: Dell at para. 87." Justice Weiler concludes:
 
"(c)              Conclusion with regard to the enforceability of the arbitration clause

 

[84]           I would hold that the application judge erred in concluding that a solicitor and his or her client could not agree to have an arbitrator, as opposed to a Superior Court judge, hear a contingency fee dispute.  However, the two qualifications to the arbitrability of contingency fee disputes examined above lead me to the conclusion that public policy prevents the parties from contracting out of the statutory protections contained in the Solicitors Act, and that any arbitration must be conducted in accordance with them.  While the parties are free to select a different decision maker than the one contemplated in the Solicitors Act, any decision maker appointed to hear the dispute make his decision in accordance with the substantive statutory rights contained in the Solicitors Act.  There are two reasons for my conclusion.  First, the jurisprudence that I have reviewed regarding the enforcement of arbitration clauses has not considered or sanctioned the removal of any substantive statutory right affecting the merits of the underlying dispute.  Second, the jurisprudence in relation to the Solicitors Act holds that it would be contrary to the public interest to allow solicitors and their clients to contract out of any statutory remedy in relation to the assessment of solicitors' accounts.  
 
[85]          The jurisprudence is illustrative of broader principles at work.  One of the overarching principles that the law recognizes, albeit subject to the value of finality, is the right to have a dispute decided on the merits.  No doubt it is for that reason that the jurisprudence respecting enforcement of arbitration clauses considers whether enforcing the arbitration agreement will affect the merits of the dispute.  In addition, freedom of contract, the value recognized in the strong policy enforcing arbitration agreements, is tempered here by the jurisprudence removing the client's freedom to contract out of the remedies contained in the Solicitors Act on account of public policy."
 
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Conservative political stunts

More signs of an early election??

Tories' move to restrict political loans called a 'stunt' Ploy meant to draw attention to MPs' debt problems, critics charge


From Wednesday's Globe and Mail

April 29, 2009
OTTAWA — The Conservative government delivered a not-so-subtle jab at their political rivals yesterday as Liberal MPs prepare to leave Ottawa this week for a party convention in Vancouver.

The government re-introduced a bill yesterday that would dramatically restrict the type of loans politicians can receive, indirectly drawing attention to the debt problems facing several prominent Liberal MPs.

"It's a stunt on the eve of the convention in Vancouver to change the channel from the worrisome economic news," said Liberal MP Dominic LeBlanc after the government bill was introduced in the Senate. The Liberal justice critic said his party will give the bill a second look, even though Liberals voted against the legislation when it was introduced in the last Parliament.

The bill passed through the House of Commons last year with the support of the New Democrats, but died in the Senate when the fall election was called. By introducing the bill in the Senate this time, where the Liberals have a majority, the legislation can only pass and return to the House for final approval if the Liberals change position.

"It's a typical bill that they introduce in the Senate and probably have no intention of actually calling for debate and a vote," Mr. LeBlanc said.

Novation

The decision in Weyerhaeuser Company Limited v. Hayes Forest Services Limited, 2008 BCCA 69 dealt with the concept of novation.



The concept is sometimes used as a 'Hail Mary' defence when a party, seeking to avoid contractual liability, claims novation has occurred and the party is relieved of liability. In reality, of course, novation is very rare.



The modern concept of novation is described by Wilson J. in National Trust Co. v. Mead, [1990] 2 S.C.R. 410 at 426:



"A novation is a trilateral agreement by which an existing contract is extinguished and a new contract brought into being in its place. Indeed, for an agreement to effect a valid novation the appropriate consideration is the discharge of the original debt in return for a promise to perform some obligation. The assent of the beneficiary (the creditor or mortgagee) of those obligations to the discharge and substitution is crucial. This is because the effect of novation is that the creditor may no longer look to the original party if the obligations under the substituted contract are not subsequently met as promised."



The Court in Weyerhaeuser found that novation did not occur but in so doing described the concept in some detail. The description is useful.



"1. The new debtor must assume the complete liability;



2. The creditor must accept the new debtor as principal debtor and not merely as an agent or guarantor; and



3. The creditor must accept the new contract in full satisfaction and substitution for the old contract. "



James Morton

1100 - 5255 Yonge Street

Toronto, Ontario

M2N 6P4

Hallo!

Covert entry and search proper

Covert entry and search are proper and possible under the Criminal Code.

See today's decision in R. v. Ha, 2009 ONCA 340:

[58]          Section s. 487.01 of the Code can authorize a covert entry and search of private property.  In this case, the general search warrant complied with the conditions set out in both paragraphs (b) and (c) of s. 487.01(1) of the Code.  Accordingly, the trial judge correctly concluded that the issuance of the general search warrant did not violate the appellant's rights under s. 8 of the Charter.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Three men cleared in London bombing case

What is striking about this is how it shows that the British system is able to acquit even in cases that are truly notorious:

Three men cleared in London bombing case
Michael Holden Reuters
LONDON — Three Britons were cleared today of helping to plot the deadly London suicide bombings in July, 2005 in the first prosecution over the British capital's worst peacetime attack, which killed 52 people.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Campaign button -- what an odd feeling to see your name on a button...

Roar like a lion???

Meow???

Liberal Party

"When a tree falls it makes a big noise, when a forest grows nobody hears anything."

The bad stuff get attention but the slow growth goes unseen -- yet the forest grows.

As we come to the Convention later this week remember, there is a Liberal forest growing.

Pleadings matter

Today's Court of Appeal decision in Falvo v. Allstate Insurance Company of Canada , 2009 ONCA 334 reminds us that pleadings matter.

Evidence in civil matters is limited by the pleadings and the failure to plead an issue is fatal, or can be fatal, to that issue being dealt with by the Court.

The decision provides:

... the trial judge's refusal to allow the appellants to call evidence respecting mitigation and Florida law is a discretionary ruling and we see no basis for interfering with it.  As noted by the trial judge, the evidence sought to be adduced had no relevance based on the pleadings and the appellants had not served a motion to amend their pleading.  The appellants had been aware of the issues of mitigation and the limitation period but failed to plead them.  If an amendment had been allowed at that stage of the trial, expert's reports on Florida law would have been required and the respondent would inevitably have been prejudiced and delays and further expenses would have been incurred.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Tamil protest

I was caught today in the large Tamil protest in downtown Toronto. Many thousands of people were chanting slogans and making clear their very real concerns about Tamils in Sri Lanka.

What struck me particularly though was the respectful and peaceful nature of the protest. Despite the brutality of the fighting there was no hint of violence -- should I have wished I would feel free to engage in debate with the protesters.

It was a very Canadian protest -- remembering origins but recognizing that here protests are orderly and lawful at all times. KUDOS to the participants and organizers.

Reclining bear

Swine Flu Facts

The great flu following the First World War killed more people than the War itself. While it does not seem likely that the new flu will be anything like so terrible, it does make sense to be prepared:

What is a swine flu?

Like humans, pigs get the flu. They develop a sudden fever, a barking cough, sneezing, lethargy and typically lose their appetite.

Humans can catch a swine flu usually when people have direct contact with pigs; historically, there's such a case every year or two in the U.S.

What is this swine flu outbreak?

The virus responsible for this outbreak is a subtype of Influenza A/H1N1 that has never been detected in swine or humans.

The new virus appears to be made up of four different flu viruses: North American swine influenza; a swine influenza virus typically found in Asia and Europe; human influenza A; and a North American avian influenza. The U.S. Centers for Disease Control's Dr. Anne Schuchat calls it "an unusually mongrelized mix of genetic sequences."

What makes this new virus worrisome is how easily it appears to be able to pass from person to person. With cases popping up across the globe every day, how far this virus has already spread has yet to be fully assessed.

Why are we calling this outbreak 'swine flu'?

Technically, this influenza virus is no longer a swine flu. This new strain does not appear to be infecting pigs; it's infecting humans.

The CDC was the first to use the term "swine flu" to describe this virus after initial analysis suggested the virus had many of the characteristics of a wine flu. Further tests revealed it also contained genetic material from a human flu virus and avian flu virus.

How did this new strain develop?

No one yet knows. That investigation could took a long time and the answer might never be found.

Even though this new strain of influenza A H1N1 contains some elements of swine influenza virus, it may not have started in pigs. It could as well have been bred in birds or even another mammal.

Whatever the origin of the current outbreak, it is likely the "swine flu" name is going to stick.

Why is a new strain worrisome?

If an influenza virus changes and becomes a new strain against which people have little or no immunity -- and if this new strain can easily spread from person to person and cause severe illness in a high percentage of people that it infects -- the seeds would be sown for a pandemic that could sicken and kill many people around the world.

Epidemiologists have been warning for years that it's just a matter of time before a new strain of the flu emerges that has the potential to kill millions. Flu pandemics have historically occurred about three times per century and the world hasn't seen one in more than 40 years.

The World Health Organization estimates that in the best case scenario, the next pandemic could kill two to seven million people and send tens of millions to hospital.

Do we have a pandemic strain of influenza virus here?

We're not yet sure. It's clear the virus can spread easily from person to person. But its virulence is being debated.

The good news is that so far, the number of deaths from this virus is relatively low. In countries where the virus is just being found, such as Canada, it's causing such mild illness, it's running its course in two to three days, in some cases without treatment.

Is there a vaccine?

There is no vaccine as the genetic makeup of this virus is still being analyzed. The CDC has not announced that they're developing a vaccine. But if they do, it would likely take weeks if not months before it were widely available.

For swine influenzas that affect pigs, there is a vaccine available that can be given to pigs; there is no vaccine to protect humans from swine flu.

I got the flu shot this year. Am I protected?

Not likely. This is a virus that has never been seen before; therefore, vaccines for human flu would not provide adequate protection from the swine flu material contained in this virus. It may offer some protection though against the human flu genetic elements.

Can people catch swine flu from eating pork?


No. Swine influenza viruses are not transmitted by food; you cannot get swine influenza from eating pork or pork products.

What are the symptoms of swine flu in humans?

Symptoms of swine flu are similar to those of our regular flu, with sudden onset of:

fever
lethargy
lack of appetite
coughing

Some people with swine flu have also reported:

runny nose
sore throat
nausea, vomiting and diarrhea.

How is the virus transmitted?

Human-to-human transmission of swine flu is believed to occur the same way as seasonal flu, mainly through coughing or sneezing of people infected with the influenza virus.
People also can become infected by touching something with flu viruses on it and then touching their mouth or nose.

How can I protect myself from this virus?

Since influenza spreads through spit and spray as well as contact with contaminated surfaces, the usual good personal hygiene habits are the best defence.

Wash your hands repeatedly through the day with soap and water or with alcohol-based hand sanitizers. Avoid touching you mouth, nose or eyes with your hands unless they've been washed. When coughing, cough into a tissue and throw it in the garbage. If you cough into your hand, wash your hands immediately. Sanitize surfaces that may have come into contact with the virus.
With human flu, the virus is most contagious between the second and third days after infection, but the virus is still contagious for about 10 days.

Can we treat swine flu in humans?

Yes. Most of the infections have been treated successfully, though there have been deaths in Mexico. In most cases, patients with this swine flu have recovered on their own. In those who have had to be hospitalized, this virus has been treated with antiviral medications.

The virus appears to be resistant to amantadine and rimantadine but has been susceptible to zanamivir and oseltamivir (Tamiflu).

Have there been swine flu outbreaks before?

Yes. Most famously, there was an outbreak in 1976 at Fort Dix, N.J., among military recruits that grabbed big headlines at the time.

Worried that they had the beginning of a pandemic on their hands, U.S. officials ordered the manufacture of swine flu vaccine and the country launched a mass immunization program that saw about 40 million people vaccinated.

But the outbreak didn't turn into a pandemic and went away as mysteriously as it appeared.

Invigorated Liberals prepare to rev up the big red machine;

Invigorated Liberals prepare to rev up the big red machine;
Promising polls, dwindling debt mean Grit groove is back: party
The Ottawa Citizen Monday, April 27, 2009
Page: A5
Section: News
Byline: Juliet O'Neill
Source: Canwest News Service

Buoyed by positive polls and poised to pay off the last of the party's campaign debt, Liberals are claiming momentum as they head to a national convention in Vancouver this week.

There will only be about 1,500 delegates, no suspenseful leadership contest and a policy debate that may pale from the past; but resurgent Liberals will have plenty to celebrate, having shaken off a serious case of the political doldrums in the last few months.

National party director Rocco Rossi says the Liberals were "adrift," but are back on course, determined to show they are "people who have their act together, who can govern themselves and, therefore, are earning the right to govern Canada."

Michael Ignatieff has also said he feels "the party has rallied pretty magnificently" since he succeeded Stéphane Dion in December, when MPs Bob Rae and Dominic LeBlanc stepped aside so caucus could acclaim him interim leader.

"Stephen Harper set in train a set of consequences he never envisaged, never expected," Ignatieff said, "and I think he underestimated the party's capacity to come together in a moment of crisis."

After Harper convinced Gov. Gen. Michaël Jean to suspend Parliament in December, Liberals rallied behind Ignatieff, halting Dion's plan to stay on as leader until a convention was held and backing out of his coalition agreement with the New Democrats and the Bloc Québécois.

Morale among Liberals -- bruised by years of factionalism, irked by Dion's unpopularity and weakened by a poor showing in the Oct. 14 election -- has improved since they named a leader with more of a winning aura than Dion.

The Liberals have steadily risen in the polls, gaining a narrow lead over the minority Conservatives in one survey last week.

The rate of fundraising has picked up to the point where Rossi forecasts repayment by the end of May of the party's $2-million debt from the October campaign.

Michael Ignatieff's speech at the National Holocaust Memorial Ceremony.

On Tuesday, April 21st we remembered the millions of Jews who perished under the Nazi regime during the Second World War. In his address at the National Holocaust Memorial Ceremony, Michael Ignatieff said "…in words of Isaiah: We hope for the day when war and bloodshed cease—when nation will not threaten nation, and humankind will not again know war."

http://www.facebook.com/l.php?u=http://www.liberal.ca%2Fvideo_e.aspx%3Fguid%3DE2CEE920-C6ED-45D7-A9E5-D3BAAA9245F7 <http://www.facebook.com/l.php?u=http://www.liberal.ca%2Fvideo_e.aspx%3Fguid%3DE2CEE920-C6ED-45D7-A9E5-D3BAAA9245F7>

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

416 225 2777

Law on presentence reports

Presentence reports should be limited to a recital of the facts with regard to the antecedents and background of the accused. Their purpose is to reflect the accused as a person in society: their background, family, education, employment record, physical and mental health, associates and social activities, and their potential and motivation.[1]·

A report should not contain the views of the accused, the investigator, or anyone with respect to the facts relating to the offence, whether for good or bad. If it does, the trial Judge should disregard it in considering sentence.[2]·

Reports should not contain any information about other offences, whether they are reflected in the record or not.[3]·

Reports should not contain a copy of the accused’s criminal record. It is up to the Crown to provide details about the accused’s record.[4]·

Punishment is a matter that lies exclusively within the preserve of the trial Judge and should remain outside the ambit of any probation officer's report unless their views are sought.[5]·

Reports should be strictly factual. They should not speculate, nor should they reach any conclusions, whether warranted or not. They should not contain the author’s opinions.[6]

1. R. v. Silk, [1979] N.J. No. 1 (Nfld. C.A.); R. v. Urbanovich (1985), 19 C.C.C. (3d) 43 (Man. C.A.); R. v. Rudyk, [1975] N.S.J. No. 33 (N.S. C.A.); R. v. Bartkow, [1978] N.S.J. No. 35 (N.S. C.A.); Ruby on Sentencing, 6th Ed. (Butterworths: 2004), at pp. 95 to 103.

2. R. v. Urbanovich, supra; R. v. Rudyk, supra; R. v. Arsenault, [1981] P.E.I.J. No. 94 (P.E.I. C.A.).

3. R. v. Arsenault, supra; R. v. Urbanovich, supra; R. v. Rudyk, supra; R. v. Murphy, [1979] N.J. No. 36 (Nfld. C.A.); R. v. Rohatuk [1976] N.S.J. No. 487 (N.S. C.A.).

4. R. v. Martell, [1984] P.E.I.J. No. 67 (P.E.I. C.A.); R. v. Murphy, supra.

5. R. v. Silk, supra; R. v. Arsenault, supra; R. v. Rohatuk, supra.

6. R. v. White, [1978] N.J. No. 31 (Nfld. C.A.); R. v. Arsenault, supra.

Bizarre story from California -- the eternal teen

http://www.nytimes.com/2009/04/26/us/26juvenile.html?_r=1&th&emc=th

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

416 225 2777

Sleepy Sunday