Well, it would be nice if it were me...

Master runner James Morton keeps fit as he looks ahead to the World Indoor Masters Championships

by The Republican Sports Desk

Saturday May 30, 2009, 5:32 PM

By BILL WELLS
wellsb6@charter.net

In his adulthood, James Morton has never let himself slip physically and he's been able to set athletic goals for himself.

That combination has allowed Morton to compete on the track at the highest level nationally. And in less than a year, Morton hopes to do the same internationally.

Morton, coming off another indoor track championship, is eyeing the World Indoor Masters Championships, which are slated for British Columbia in March of 2010.

Story here: http://www.masslive.com/sports/index.ssf/2009/05/master_runner_james_morton_of.html

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

416 225 2777

Motion tips for young lawyers … in no particular order …

1. Be timely – say what needs to be said concisely and clearly then sit down. Take as long as you need but do not take any longer. As for time estaimates, make sure you do not exceed the estimate given. If you said you would take 15 minutes, take 15 minutes.

2. Focus on the important stuff. Judges and Masters are very busy and will stop listening if they think you are just treading water. And whatever you do, don’t oversell the importance of a point. If it is a central issue that will set new precedent say so, but if it’s a motion for undertakings just say that and go to the disputed issues.

3. Begin with a summary. Even if your motion will take three days you can explain the central focus in a moment or two. If you cannot explain it that quickly, then you don’t know your case well enough. Imagine you are in line buying a coffee in the courthouse coffee shop and you see a classmate from law school who says “what are you on today?”. You could tell your chum the essence of the case in 30 seconds – do that for the Judge or Master when you start.

4. Ask, does your position make sense? Not in terms of some odd decision of the Privy Council from 1932 but in terms of the way the Courts work today. If your position makes no sense it wont find favor with the Court. So you should rethink your position or try to see how you can make it make sense.

5. Don’t use Privy Council cases from 1932. Use recent current local cases or, better yet, use the Rules or a Statute. Old caselaw can bolster your argument but it should never never never underpin it. If a point has not been made or repeated for 80 years there’s probably a reason why.

6. If a Judge or Master asks a question answer it. But never ever answer by saying “you have it wrong”. Don’t tell the Court they misunderstood something – first because they probably did not and second because you want the Court to rule for you and insulting the Court is a bad idea. If the Court really has the wrong end of the stick say “perhaps I did not explain the issue as clear as I ought to have” and then explain it.

Magna invests and saves Opal

This is good and I am not complaining that a Canadian company has a great achievement.
But it seems hard to cheer for saving jobs in Europe when we are losing them here.

But perhaps I am being too localist?
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Flying Bear

Flocke to the rescue ...

Important but confusing Supreme Court decisions on forfeiture

Today's very confusing decision in R. v. Craig, 2009 SCC 23, and two related cases, deals with the forfeiture of property following conviction for drug related offences.

In summary, the Court held that the forfeiture provisions are to be viewed separately from the sentencing of a convict largely because not to do so would mean convicts with property could receive less jail time than convicts without property to seize.

This analysis seems to overlook the customary sentencing practice of allowing a lesser penalty where restitution is made, as is common for, say, fraud cases.

Since the Supreme Court must be taken to consider such issues perhaps it ought to be that restitution is not a proper consideration for sentencing? Or perhaps drug cases and forfeiture are special because they do not restore a "victim" as restitution does? But then one might ask who, other than society, might be the victim in a drug case and how might restitution be made save by forfeiture?

In any event, the Court's decision holds the forfeiture inquiry under s. 19.1(3) of the Controlled Drugs and Substances Act is a discrete and distinct one from terms of imprisonment or other aspects of the sentence.  While the rest of an offender's sentence is governed by the principles of sentencing found in the Criminal Code, the forfeiture of offence-related real property is determined with reference only to the principles contained in s. 19.1(3), which set out a different and unique template. 

The risk in approaching the forfeiture inquiry as being interdependent with terms of imprisonment is that, based on a "totality" approach, those who have property available for forfeiture will likely be able to trade property for jail time or to avoid jail entirely.  This would result in lengthier custodial terms being imposed on those who have no property available for forfeiture, an untenable result. 
 
The purpose and statutory language underlying the forfeiture scheme reflect Parliament's intention that forfeiture orders be treated independently.  While the sentencing inquiry focuses on the individualized circumstances of the offender, the main focus of forfeiture orders is on the property itself.  The structure of the Controlled Drugs and Substances Act confirms this interpretation.  Part I, entitled "Offences and Punishment", governs sentences for offences under the statute and refers to ordinary sentencing principles, including the circumstances of the offender.  Part II, called "Enforcement", contains a proportionality test in s. 19.1(3) governing the forfeiture of offence-related real property.  The two tests are distinct and s. 19.1(3) notably excludes the circumstances of the offender.  Furthermore, forfeiture may apply to property owned by a complicit individual who is neither sentenced nor even charged with an offence, and certain types of forfeiture orders operate without the existence of a term of imprisonment imposed on anyone for the relevant offence. 

The majority writes:

[33]                          Although neither approach is free from difficulty at a policy level, the statutory scheme does not support an approach that results in an exchange of jail time for property.

[34]                          There is no doubt that forfeiture may be punitive in its impact.  (See Industrial Acceptance Corp. v. The Queen, [1953] 2 S.C.R. 273, at p. 278, R. v. Green (1983), 148 D.L.R. (3d) 767 (Ont. H.C.J.) at p. 768, and Gisby, at para. 19.)  It does not follow, however, that it should be consolidated with sentencing on a totality approach, especially since it almost inevitably leads to lower terms of imprisonment for offenders with property if one treats the "total" punishment (jail plus forfeiture) as  unduly harsh. In other words, people with property might be able to avoid jail or receive reduced custodial terms, while those without property would not.

 

[35]                          Such a result troubles not only the conscience by inadvertently rewarding offenders with property available for forfeiture and penalizing those without, it offends our bedrock notions of fitness in sentencing since individuals with no property to forfeit are no more blameworthy than those with property.  It would be unjust for them to receive more severe custodial terms simply because they have no property to forfeit.

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

416 225 2777

My definition of a free society is a society where it is safe to be unpopular.

Adlai E. Stevenson Jr. (1900 - 1965),
Speech in Detroit, 7 Oct. 1952

Liberal Party President Announces Bold Fundraising and Recruitment Initiative

OTTAWA, ON – Liberal Party President Alfred Apps announced plans today to launch a series of bold initiatives designed to dramatically increase membership and donations to the Liberal Party of Canada. 

"Successful fundraising today is highly interactive and issue-focused," said Mr. Apps. "The support and momentum we've seen in recent weeks shows that Canadians are waiting for, and deserve, a government dedicated to delivering constructive solutions and positive change. Michael Ignatieff offers hope, and Canadians are responding in a big way. With this announcement, we are showing that we are willing and able to capitalize on this momentum." 

Mr. Apps explained that there are two main aspects to the fundraising plan, which was approved by the National Board of Directors, in consultation with the Council of Presidents.

The first, to be called "The Leader's Circle", will create a group of existing donors responsible for encouraging the recruitment of new Laurier Club members.

The second, designed to mark the first anniversary of the Victory Fund, will kick-start a two-year drive for growth in grassroots fundraising.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

What if damages in simplified case grow exceed $50,000.00

Where is a case starts under mandatory simplified procedure as damages were, at the issuance of the claim within the mandatory limit, and the damages increase to beyond that limit, ought the defendant to be able to amend and object?

The issue arose in yesterday's unreported decision of  Dixie Lee Food Ltd. v, Dixie Lee of Canada (Newmarket). 

Justice Herman was considering a lease claim where the amounts unpaid started at under $50,000 when the claim was issued but were, by the time of a motion for summary judgment, over that amount.  The claim went to summary judgment under the simplified procedure where the rule for summary judgment differs markedly from that under the ordinary procedure.

In reply to the motion for judgment the defendant sought to amend and object to the simplified procedure. (The motion was brought without notice and was apparently argued "on the fly" -- not the best way for new law to be made).

The Court allowed the amendment and adjourned the motion for judgment to be dealt with under the ordinary process.The case may go to appeal (I was not counsel).

Arguably the Court should take the case as it is when presented. For now, however, this narrow but important point is as ruled
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Summer (?) flowers at the University Club, Toronto

$1,400,000 for every job saved

If today's news is right and the auto bailout really cost $1,400,000 for every job saved (for the moment) then the government out to resign.

And this is not merely a partisan statement. If a Liberal government screwed up that badly it would be time for an election.

It takes little insight to see the deal made -- $1,400,000 per insecure job -- is a terrible one.

Cuban cha cha

Ok, we don't want to tell Cuba what to do, but we want them back in the OAS, but only if they are (sort of) nice to dissidents, but we have a long relationship with Cuba ...

Really, I don't mind a cautious approach to a totalitarian state -- engagement is often wise -- but we should try to be coherent.

We just look weak and incoherent.

The Canadian Press
Thu 28 May 2009
Section: National General News
Byline: BY JENNIFER DITCHBURN

OTTAWA_ Canada would ``love'' Cuba to rejoin the Organization of American States, says junior foreign minister *Peter* *Kent*.

The statement is a shift from the more circumspect position the Conservative government has taken recently toward lifting the 47-year-old suspension on the communist nation.

Kent, minister of state for the Americas, will represent Canada at the OAS general assembly in Honduras next week.

``Canada's position is that like virtually every member of the OAS, we would love to see Cuba re-enter hemispheric affairs at all levels,'' Kent said Thursday.

But he added that re-entry will be conditional on upholding the tenets of the InterAmerican Democratic Charter, including the protection of human rights and respect for the rule of law.

Canada will back a last-minute U.S. resolution to open a dialogue with Cuba about its ``eventual reintegration'' into the inter-American system.

Kent will push for members to come to a consensus on issues, rather than hold tension-filled votes.

Canada-Cuba relations have experience a chill over the past couple of months.

A trip Kent had scheduled to Havana for mid-May was abruptly cancelled by the Cubans after Prime Minister Stephen Harper described himself as a ``anti-communist Conservative,'' and Kent said publicly that he would press the government on human rights.

Kent said reports of a rift were exaggerated, and that's he's working on a new date for the trip.

``Canada does not want to impose anything on Cuba,'' Kent said.

``We've got a more than six-decade old relationship, we are dealing with the government of Cuba on any number of levels...We're simply prepared to assist in any way that we can to Cuba's re-entry into affairs of the hemisphere at any level.''

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

416 225 2777

Liberals v. Conservatives and fiscal responsibility

This story in the Star is troubling because it does ring true.

In spite of the fact that the Liberal Party has a consistent history of sensible spending -- and the Conservatives don't -- the Liberals get a rap for being "tax & spend".

Oddly we see the same thing in the US -- Bush was terrible for the economy but Democrats are still accused of spending like drunken sailors (note, that is a slur on drunken sailors, because when they spend wildly they are spending their own money -- the attack on Democrats is that they are spending someone else's money):

OTTAWA–"My party has an unimpeachable record in fiscal responsibility," Liberal Leader Michael Ignatieff boasted yesterday in the Commons.

But that record hasn't sunk in with Canadians, according to Ian Brodie, former chief of staff to Prime Minister Stephen Harper.

In fact, Brodie told a conference of political scientists this week that the Liberal "brand" is not connected to good economic management in Canadians' minds – at least not in any voter research he's seen.

"The idea that the Liberal party has a brand as a fiscally responsible organization – I never once saw a single piece of market-research evidence to support that. Never," Brodie told the mostly academic crowd at Carleton University.

His glimpse into that voter research helps explains why Conservatives continue to hammer the Liberals as the party of high taxes and spending, believing it to be an area of vulnerability for their rivals.

Citing party data, public polls, advertising research, Brodie said the Liberals consistently rank last in terms of fiscal responsibility – regardless of the success enjoyed by Jean Chrétien and his finance minister, Paul Martin, in wrestling the deficit to a surplus in the 1990s.

"Even despite Martin's enviable track record as finance minister, Chrétien's enviable track record as prime minister, there you go," Brodie said, arguing that parties often end up with an image they don't want or even help to create.

Full story here: http://www.thestar.com/news/canada/article/642305

Another attack ad -- don't trust those intellectuals, especially if they are French

http://www.youtube.com/watch?v=Kvhxp9Rmhow&feature=related

Geese having a meal at the Royal Botanical Gardens

A true Canadian jewel is the RBG in the Hamilton/Burlington area.

Charges properly disclosed in criminal records check

In order to apply for an get certain jobs an individual has to give consent to a criminal records check. Today's decision in Tadros v. Peel (Police Service), 2009 ONCA 442 makes clear that such checks can properly disclose criminal charges that did not result in convictions. The Court writes:

[40]   Mr. Tadros authorized the Toronto Police Service to undertake Criminal Records and Vulnerable Persons Searches. The Peel Police Service disclosed the existence of the eight withdrawn charges against Mr. Tadros to the Toronto Police Service based on the consent forms signed by Mr. Tadros for the purpose of the Vulnerable Persons Searches that he authorized. Pursuant to s. 32(b) of MFIPPA, a chief of police may disclose personal information with the specific consent of the affected person. The information regarding withdrawn charges against Mr. Tadros was personal information under MFIPPA. There is no basis for an injunction to restrain disclosure where the proper consent is given. In our view, the proper consent was given by Mr. Tadros. There is no conflict between s. 32(b) of MFIPPA and the PSA or the Regulation that would operate to eliminate the consent exception to the presumption in MFIPPA against the disclosure of personal information.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

New Videos of Michael Ignatieff

It seems the Conservatives are threatening to play old videos of Michael Ignatieff, likely out of context, saying things they say show he is not a good leader.

Of course, that leaves open the old stuff of Harper saying:

"Canada appears to be content to become a second-tier socialist country, boasting ever more loudly about its economy and social services to mask its' second rate status".

And I'm sure there are worse things that Harper said -- but my sense is that Harper was taken somewhat out of context and even if he wasn't, people do change their thinking over time.

George Wallace was a strong supporter of segregation -- by the time of his death he was completely converted. Wallace became a born-again Christian in the late 1970s and apologized for his earlier segregationist views to black civil rights leaders. He said while he once sought power and glory, he realized he needed to seek love and forgiveness. His term as Governor (1983–1987) saw a record number of black appointments to government positions

Now, Wallace was an extreme case and it's fair to ask what is the "real agenda" of a political figure. But what matters is not so much what was said long ago in another context -- what matters is what is said and done now.

And if we judge Harper on his record to date and what he is saying now, well, maybe a focus on the economy and substantial issues might be a good idea? Whatever you might say about Preston Manning, he was (is) a man of ideas who didn't stoop to personalities.

Corbett Applications

Today’s decision in  R. v. Paul, 2009 ONCA 443 gives a good restatement of Corbett:

 

[14]          We cannot agree with this submission.  Cross-examination of a witness, including an accused, on his or her criminal record is presumptively admissible.  A judge may, in the exercise of his or her discretion, disallow cross-examination where he or she is satisfied that despite the safeguards available in the trial process, most especially a proper jury instruction, the potential prejudice flowing from that cross-examination is sufficient to justify exclusion of cross-examination on the record.  As Dickson C.J.C. observed in R. v. Corbett (1988), 41 C.C.C. (3d) 385 at 399-401, trial by jury assumes that as a general rule, juries will follow limiting instructions.  That assumption must be given due weight when a trial judge is asked to exclude cross-examination in a “Corbett” application.

Tori Stafford

I am concerned that the police case against the accused may rest on unverified statements of one person. And I hope those statements are wrong and Tori is alive somewhere somehow -- although I feel that hope is futile. Still, the lawyers for the accused, or one of them, says "something significant" will emerge today. We'll see:

Stafford case suspects to make court appearance

The two people charged in the abduction and murder of eight-year-old Victoria "Tori" Stafford will be in a Woodstock court today for what is expected to a quick court appearance.

Terri-Lynne McClintic, charged with abduction and being an accessory, and Michael Rafferty, charged with first-degree murder and abduction, are scheduled to make an appearance by video link.

Lawyers for both accused plan to ask the court to adjourn the case, to allow police to complete their investigation and to allow the Crown to provide them with disclosure (documents outlining the Crown's case).

Meanwhile, the search for Tori's remains has turned to areas around her hometown of Woodstock, under rainy skies.

For myself, I am an optimist. It does not seem to be much use being anything else. Winston Churchill

Bailout blues

I'm beginning to wonder if this bailout makes sense. The cost goes up and bankruptcy still happens.

Ottawa, Ontario tab for GM rescue package triples; key contributor to ballooning federal deficit

From Thursday's Globe and Mail, Thursday, May. 28, 2009 03:52AM EDT

Canada's contribution to the bailout of two Detroit auto makers could soar to more than $13-billion with the increasing need for cash by General Motors Corp., which has moved a giant step closer to filing for bankruptcy protection.

The cost to Ottawa and Ontario of the GM rescue package is now expected to be about $10-billion. The two governments are expected to receive an equity stake in a much-shrunken GM in return for the financing to keep GM operating during restructuring.

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

416 225 2777

A blogger action figure ...

Bear paws

Best Western Hotel Villa Gabriele D'Annunzio

Surfing the web I came across the remarkable Best Western Hotel Villa Gabriele D'Annunzio, Florence. (I’m not making this up, check the website: http://gabrieledannunziohotel.com/ ).

While I tend to think D’Annuzio’s early work is somewhat under valued – see his Canto nuovo, 1882, there is no doubt he was a Fascist Icon and a committed, if rather ineffective Fascist himself (ok, so he captured Fiume capture in September 1919 and held it till 1921, but that was early days).

Is it possible the Best Western folks don’t realize they have a hotel named after a famous Fascist?

Peace in the Middle East and what Canada can do

There is a chance for a historical deal to bring peace to the Middle East. With the backing of the United States, a two-state resolution of the Israeli-Palestinian conflict may indeed be possible. Such a resolution, which is consistent with the stated positions of both Canada's government and official opposition, is possible. We must accept that, in the Middle East, reality sometimes diverges from the theoretical formality, and now is the time to acknowledge the facts on the ground.

Israeli Prime Minister Benjamin Netanyahu says he's willing to open peace talks with the Palestinians immediately, contingent on their acceptance of Israel's right to exist. U.S. President Barack Obama agrees the time is right to move ahead.

"We have seen progress stalled on this front, and I suggested to the prime minister that he has a historic opportunity to get a serious movement on this issue during his tenure," Obama said. "That means that all the parties involved have to take seriously obligations that they have previously agreed to."

Netanyahu's visit in Washington last week and the visit to Canada and the United States by Palestinian President Mahmoud Abbas seem to indicate that both sides are willing to try again for peace.

Can Canada help? Yes.

How? By taking steps that recognize reality and acknowledge the legitimate aspirations of all parties.

Israel's seat of Government is clearly Jerusalem. As a matter of geography, Jerusalem is the seat for the President of the State, the Knesset, the Government and the Supreme Court. and all major Israeli government functions take place in Jerusalem. Many nations maintain consular offices in Jerusalem that are significantly larger than their so-called embassies in Tel Aviv. In the Jerusalem Law of 1980, Israel declared, "Jerusalem, complete and united, is the capital of Israel."

In a similar way, people living in, say, Nablus have a government, and that government is the Palestinian Authority. The Palestinian Authority has a parliament, courts, police, embassies to foreign states and a flag — it is a State.

A declaration of a "State of Palestine" was made in Algiers on November 15, 1988, by the Palestinian National Council. Currently, the Palestinian National Authority (PNA), along with the United States, the European Union, and the Arab League, envision the establishment of a State of Palestine to include all or part of the West Bank, the Gaza Strip and East Jerusalem, living in peace with Israel under a democratically elected and transparent government.

The actual government of the Palestinian Authority is currently split. Hamas is in control in the west; in the east Fatah is master. While such division makes negotiating difficult, it hardly changes the reality that a government exists.

The facts on the ground are obvious. What needs to be done and what may push forward the solution in the Middle East is to make the facts on the ground the facts as recognized.

Canada's main political parties do not differ on the need for a two-state solution. Canada stands for a durable, fair and just peace for all peoples of the Middle East. The question is, what can Canada do to move this process ahead?

Canada should move its Embassy in Israel to Jerusalem and recognize Jerusalem as the capital of Israel. Simultaneously, Canada should recognize the Palestinian Authority as a sovereign national government over the territory it controls, in effect recognizing the 1988 declaration.

Taking these steps would show Canada's support for a democratic Israel within secure borders and, at the same time, recognize that Palestine, as a nation, also exists within defined borders.

The love of liberty is the love of others; the love of power is the love of ourselves. William Hazlit (1778 - 1830)

Sufficiency of reasons and credibility

The issue of credibility and sufficiency of reasons continues to pose challenges for the Court.  Today’s decision in R. v. H.A., 2009 ONCA 438 shows the problem.  An express reference to W(D) and why the evidence of one witness is more compelling than another is almost certainly prudent:

 

The trial judge was faced with starkly conflicting versions of what happened on that day from the appellant and his wife.  His reasons do not expressly indicate the basis upon which he resolved that conflict.  Nor do they permit us to infer how he did so.

 

John A. Macdonald action figure

I was a little harsh earlier suggesting John A. Macdonald was not a "real" Canadian. He was an immigrant who made good.

He was a pragmatic statesman, earning the title of Old Chieftain, and a procrastinating drunk with the nickname of Old Tomorrow.

There's no denying the legacy of Canada's first prime minister. He united the country with his national vision and the construction of the world's longest railway.

Macdonald would overcome personal hurdles, albeit with the help of the bottle, to lay the foundation for modern Canada.

And now you can have his action figure... .

(Imagine, if you will, in 150 years a Harper action figure???)

GG eating a seal heart

There is a positive media storm over the GG tasting raw seal heart.

I must say I find the concept rather unappetizing. But is it 'morally' offensive as some suggest?

That depends on how you see eating animals.

If you see eating, say, beef as being 'wrong' (and that's a valid enough position) then eating seal heart is also wrong.

But if you see no moral issue with meat then eating seal heart is uncontentious except perhaps as to the nature of the slaughter.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Improper to add a party merely to obtain evidence or a discovery

Although it seems obvious, persons ought not to be joined in a proceeding merely so that their evidence is available.

Evidence can be obtained at trial. If their is a genuine need to examine a person for discovery the examination of a non-party rules can be employed.

Absent a proper claim, or some legally required reason that a person be bound 'in personem', a person ought not to be added as a party.

Hence this week's Court of Appeal decision in D & A v. Groothuis, 2009 ONCA 431 notes:

We agree with the motion judge that Ms. Truemner is not a person "whose presence is necessary to enable the court to adjudicate effectively on the issue" within the meaning of rule 5.03.  The claim asserted by the appellant against his former articling student does not in any way implicate the rights of Ms. Truemner so as to make her presence in this action necessary.  At best, her evidence may be required on to the quantification of his claim which is not sufficient to justify joining her in this proceeding.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

The $50 Billion deficit (funny -- the Conservatives run their Party finances so much better than they run the country's finances)

I am in two minds on this.

It worries me to see such a huge deficit and such debt load being accumulated. This is especially so as there seems to be real problems with delivery of the stimulus monies.

On the other hand, a short term deficit makes sense in this economy. We need stimulus and that requires deficit spending right now.

Of course, while times were good the Conservatives failed to maintain the "rainy day" cushion so carefully created by the Liberals (funny, they run their Party finances so much better than they run the Country's finances). That said, even though the Conservatives spent everything and stripped the cupboard bare, there would still be a deficit regardless in this economy.

At least the "tax and spend" Liberal attack ads won't be on tv this week.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Law as Lottery

In Provincial Offences Court (everything from speeding tickets to more minor Provincial Offences) trials are grossly overbooked.

You will often see 20 trials booked for, say, a 3:00 p.m. docket -- and it is inconceivable that 20 matters can be heard in the time allowed.

So what is done is deals are made and of the remaining cases one or two are tried and the rest withdrawn because "there is no time left".

What is wrong here is that the cases are withdrawn or pursued on a totally unprincipled basis -- it is merely what gets called first. The lottery aspect of Law is made very obvious indeed.

Bear explodes from water

Kierkegaard in '08 -- Here's a model ad!

http://www.youtube.com/watch?v=1uYO0vsI6UM&NR=1

A real Canadian -- Laurier!

How cool is this - a Wilfrid Laurier action figure!

Failure to investigate adequately not a Charter breach

Today’s Court of Appeal decision in R. v. Barnes, 2009 ONCA 432 makes clear (albeit by splitting an infinitive) that the failure of authorities to investigate properly is not a Charter violation:

 

 

As the law now stands, a failure to adequately investigate a case does not give rise to an independent Charter violation. Where, as here, the Crown has met its disclosure obligations, to make out a s. 7 breach on the basis of evidence that is no longer available the accused must establish actual prejudice to the right to make full answer and defence: see R. v. La, [1997] 2 S.C.R. 680 at para. 25.

Twitter Mr. Kim

OK, this is very weird indeed -- Twitter with a major world crazy:

His new nemesis, Barack Obama, is on Twitter. So are many of the movie stars that North Korean dictator Kim Jong-il is known to admire. So perhaps it's no surprise that the regime led by the self-described film buff and Internet fan has also joined the fast-moving social networking site.

North Korea has for decades been the most isolated country on the planet, with almost no links to the outside world. The Internet can be accessed only by the most powerful and well-connected in Pyongyang, while ordinary North Koreans aren't allowed to possess mobile phones.
Which is why the discovery Monday that the North Korean government has a Twitter page caused a stir in the world known as the Twitterverse.

“First they got nukes. Next level: Twitter account” tweeted Mikaël Hardy, a French engineer living in the Chinese city of Shenzhen and one of the first to discover that Mr. Kim's regime had gone online using the account kcna_dprk.

Word spread fast. Within hours, more than 300 people were “following” the North Korean Twitterer, including this reporter. To my surprise, the kcna_dprk immediately returned the compliment and deigned to follow my postings as well.

The Pyongyang Twitterer's bio reads “News from Korean Central News Agency of DPRK,” referring to the news service that has long been the official voice of the regime (the country's official name is the Democratic People's Republic of Korea). All of its 467 updates since going online in April have been English versions of the agency's news reports.

Mysteriously, another Twitter page (koreadpr) claims to be the Twitter page of Mr. Kim himself, who has bragged in the past of his Internet knowledge and once asked U.S. secretary of state Madeleine Albright for her e-mail address. However, it sits empty other than an image of North Korea's official state emblem and a link to the government's website.

John A. Macdonald attack ad -- Not a Real Canadian!

Thanks to KirbyCairo I post a link to this:


http://www.youtube.com/watch?v=WNZ0aIeBczI&feature=related

John A Macdonald --really Canadian?

This morning I learned to my horror that John A Macdonald was not born in Canada. Indeed, he lived out of Canada for a goodly period of time. As a result I have changed my mind about him -- no longer will I see him as a significant Canadian figure. He's just another damn foreigner!
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Perhaps a different slant on the Middle East?

A slight change in tone perhaps from the Conservatives? Hard to say -- what will be interesting will be to see how they follow up from here.

Israeli expansion 'illegal move', Cannon says By Mike Blanchfield, National Post - Chris Wattie/Reuters OTTAWA - Israel's expansion of settlements into Palestinian territory is an "illegal move" that undermines Middle East peace, says Canada's foreign affairs minister. In an exclusive interview Monday with the Canwest News Service, Lawrence Cannon offered the most pro-Palestinian comment to date from a Conservative government that has been heavily criticized for unduly favouring Israel in its Middle East policy. ... "Canada has never supported the expansion of settlements. We believe that it's an illegal move, and it's certainly not helpful to the peace process," Cannon said after a meeting with visiting Palestinian President Mahmoud Abbas.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

The Tyger

A reader commented on a post yesterday and mentioned Blake's Tyger -- a good excuse to post it here:

THE TYGER (from Songs Of Experience)
By William Blake

Tyger! Tyger! burning bright

In the forests of the night,

What immortal hand or eye

Could frame thy fearful symmetry?

In what distant deeps or skies

Burnt the fire of thine eyes?

On what wings dare he aspire?

What the hand dare sieze the fire?

And what shoulder, & what art.

Could twist the sinews of thy heart?

And when thy heart began to beat,

What dread hand? & what dread feet?

What the hammer? what the chain?

In what furnace was thy brain?

What the anvil? what dread grasp

Dare its deadly terrors clasp?

When the stars threw down their spears,

And watered heaven with their tears,

Did he smile his work to see?

Did he who made the Lamb make thee?

Tyger! Tyger! burning bright

In the forests of the night,

What immortal hand or eye

Dare frame thy fearful symmetry?

1794

It's a hard week ... and it's only Monday!!!

North Korea's test

It was too much to hope that the genie could be kept in the bottle. North Korea is a dangerous place run by a madman. That said, its major threat to the world, outside of Korea itself, is export. Other countries, with radical expansionist ideologies are perhaps different.

UN chief voices alarm; Security Council to hold emergency session
Source: The Associated Press
May 25, 2009 10:41

COPENHAGEN_ The United Nations secretary general said Monday that a second nuclear test by North Korea would represent ``a clear violation'' of a UN Security Council resolution.

The 15-member council has called an emergency session on the matter for later Monday at UN headquarters in New York.

``I sincerely hope that the Security Council will take necessary corresponding measures,'' Ban Ki-moon told The Associated Press, declining to specify what further measures, or sanctions, he would urge the council members to take.

Ban, who was in Copenhagen for a global business summit on climate change, said he would closely monitor the meeting in New York.

New testing by North Korea would undermine peace and security in the region, Ban said, and he urged the Communist country ``to refrain from taking any actions which will deteriorate the situation.''

``I'm deeply disturbed by a report of nuclear testing,'' he said. ``If it is confirmed, it is a clear violation of Security Council resolution 1718 of 2006. And it runs counter to the ongoing international community's efforts to curb nuclear proliferations.''

Ban also said North Korea's announcement that it carried out an underground nuclear test Monday far bigger than one conducted three years ago ``will create negative impact to ongoing negotiation on nuclear disarmament.''

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

416 225 2777

'I believe a fictional threat is best met with decisive fictional force,' explained President Obama

I know reposting from other blogs is vulgar but this piece from CathieFromCanada is too good to pass over in silence:

Seeking to quell fears of terrorists somehow breaking out of America's top-security prisons and wreaking havoc on the defenseless heartland, President Barack Obama moved quickly to announce an Anti-Terrorist Strike Force headed by veteran counterterrorism agent Jack Bauer and mutant superhero Wolverine.

...

'I believe a fictional threat is best met with decisive fictional force,' explained President Obama. 'Jack Bauer and Wolverine are among the very best we have when in comes to combating fantasy foes.'

Mr. Bauer said, 'We're quite certain that our prisons are secure. Osama bin Laden and his agents wouldn't dare attempt a break-out, and would fail miserably if they tried. But I love this country. And should Lex Luthor, Magneto or the Loch Ness Monster attack, we'll be there to stop them.'

Timing tight to pick up federal cash; Municipalities lining up for project grants worry they could lose out

Times Colonist (Victoria)
Mon 25 May 2009
Page: A3
Section: Capital & Van. Isl.
Byline: Bill Cleverley
Source: Times Colonist

Municipal politicians across the country worry that the window of opportunity for federal infrastructure funds is starting to close.

"These funds are coming out late, and every second we delay in getting the funds out, the windows close," said Hans Cunningham, a Federation of Canadian Municipalities vice-president and Kootenay regional director.

"I'm from the Interior so our construction season ends in, probably October, when we start to look at our first snowfall. Up in the north, the same types of things are happening."

Greater Victoria municipalities are queuing up for money for projects that range in scope from Victoria's bid to replace the Johnson Street Bridge at an estimated $60-million tab to $2 million to replace a Saanich sewer lift station in Portage Inlet and almost $2 million to refurbish Esquimalt's Archie Browning Sports Centre.

The federal government announced its two-year, $4-billion Infrastructure Stimulus Fund program in January as part of its $12-billion strategy to kick-start the economy. Under the program, Ottawa and the relevant province each kick in one third of the cost of approved municipal-infrastructure projects.

But four months after the announcement, not much ground had been broken on "shovel ready" projects. Weather is not as much of a concern on Vancouver Island. But the tight timeline, coupled with federal requirements for vetting applications, is starting to jeopardize some of the projects, said Saanich Mayor Frank Leonard.

"There are a lot of concerns right now," Leonard said, noting projects are required to be completed by March 2011.

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

416 225 2777

Wilbär pounces on the attack ads

Careful what you bid for!

A New Zealand mom made some online bids on toys before napping. Then her
3-year-old daughter took over and bought a bigger plaything than
expected - a huge earth-moving digger for a cool $12,300.

http://www.msnbc.msn.com/id/30885324/from/ET/ <http://www.msnbc.msn.com/id/30885324/from/ET/>

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

416 225 2777

Blake's Jerusalem

Sometimes you know something so well you don't know it at all. I realized that truth again on rereading a poem I long since thought I knew.



Today I heard a (rather indifferent) recording Sir Hubert Parry's setting of the preface to Milton by William Blake -- better known as Jerusalem (note, Blake wrote Jerusalem: The Emanation of The Giant Albion and this is not that work -- yes, it's confusing).

See photograph of text at right.



The poem was inspired by the story that a young Jesus, accompanied by his uncle Joseph of Arimathea, traveled to the area that is now England and visited Glastonbury.



What I didn't realize until I bothered rereading the text this afternoon was that it does not affirm the story of Jesus in England but rather Blake poses is as a question.



Blake says that there may, or may not, have been such a visit, when there was briefly heaven in England. But that was then; now, he says, we are faced with the challenge of creating such a country once again.



Here's Blake's poem



And did those feet in ancient time,

Walk upon Englands mountains green:

And was the holy Lamb of God,

On Englands pleasant pastures seen !

And did the Countenance Divine,

Shine forth upon our clouded hills ?

And was Jerusalem builded here,

Among these dark Satanic Mills ?

Bring me my Bow of burning gold;

Bring me my Arrows of desire:

Bring me my Spear: O clouds unfold:

Bring me my Chariot of fire !

I will not cease from Mental Fight,

Nor shall my Sword sleep in my hand:

Till we have built Jerusalem,

In Englands green & pleasant Land.

Unexpired intermittent sentence not rendered illegal by conditional sentence for differing offence imposed at same time

Friday's Supreme Court of Canada decision in R. v. Middleton, 2009 SCC 21 clarifies an issue in sentencing law -- whether the imposition of a conditional sentence of more than 90 days renders illegal an unexpired intermittent sentence imposed on the same offender for a different offence.  The Court held it does not.

A case summary follows:

The accused was sentenced to 90 days' imprisonment, to be served intermittently, for an assault causing bodily harm committed in September 2004. 

At the same hearing, he was immediately thereafter sentenced to two concurrent 18‑month conditional sentences for uttering a death threat and pointing a firearm in February 2005. 
The trial judge also ordered three years' probation. 

The Court of Appeal held that the imposition of the conditional sentences in addition to the intermittent sentence did not render the intermittent sentence unlawful in virtue of s. 732(1) of the Criminal Code. 

It held also that because the intermittent sentence preceded the conditional sentences, and the trial judge did not order otherwise, s. 732(3) of the Code required the accused to serve the 90‑day sentence on consecutive days. 

The balance of the sentence remained unchanged.  

Held:  The appeal should be allowed and the sentences imposed by the trial judge affirmed.

Imposing a conditional sentence of more than 90 days cannot render illegal an unexpired intermittent sentence imposed on the same offender for a different offence.  It is apparent from the words "confinement" and "prison" in s. 732(1) that this provision contemplates only custodial sentences of imprisonment.  Conditional sentences are, by definition, meant to be served in the community, not in prisons.  To conclude that they are sentences of imprisonment within the meaning of s. 732(1) is inconsistent not only with the plain wording and a purposive and contextual interpretation of the provision, but also with the express terms adopted by Parliament in providing for intermittent sentences and with the distinct purposes of conditional and intermittent sentences.  Such a conclusion would, as well, disregard the valid sentencing objectives of the trial judge in this case and would unduly limit the discretion of other trial judges to render similarly fit sentences where they conclude that a custodial sentence is required. Moreover, "imprisonment" does not bear a uniform meaning for all purposes of the Criminal Code.  In several instances, as in s. 732, "sentence of imprisonment" or "term of imprisonment" necessarily contemplate incarceration in a manner that cannot include conditional sentences.  As well, a harmonious reading of the English and French versions of s. 732 clarifies that it contemplates only custodial sentences. 

Section 139 of the Corrections and Conditional Release Act does not contemplate conditional sentences and has no application to intermittent sentences.  It is found within Part II of the Act which does not apply to conditional sentences.  Moreover, s. 99(1) of the Act excludes a person who receives a conditional sentence while serving only an intermittent sentence from the definition of "offender" for the purposes of Part II.  A purposive interpretation of s. 139(1) also militates against its application to conditional sentences.  Parliament enacted s. 139 to simplify the calculation of multiple custodial sentences in order to facilitate the administration of parole and statutory remission, an object not engaged by conditional sentences. 

Although the trial judge pronounced the intermittent sentence before the conditional sentences, as a matter of principle, nothing in this case should turn on the order in which the sentences were pronounced. The accused is not required by virtue of s. 732(3) of the Code to serve his intermittent sentence on consecutive days because a purposive and contextual reading of the expression "sentence of imprisonment" in s. 732(3) makes it clear that it does not contemplate conditional sentences.  

While chaining intermittent sentences beyond the 90‑day limit defeats the object of s. 732(1) and the purpose of intermittent sentences, combining intermittent and conditional sentences can serve the purposes of both types of sentences.  This case illustrates how intermittent and conditional sentences can be effectively combined to take appropriate advantage of their complementary purposes.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

First Nations child -- haircut without consent

A reader brought this story to my attention and asked why an assault charge could not be laid.

I suspect the argument would be that the teacher's aide was acting in the place of the parent and had the authority to cut the child's hair; moreover, the action was taken in good faith.

Not knowing the facts I cannot say if a charge would sensible.

Certainly, the action shows tremendous insensitivity.

That said, the public comments by some that if a white child had his hair cut in the same way charges would have been laid seem wrong to me. In fact, if a white child had his hair cut this way, while still grossly insensitive, I don't imagine there'd be any significant news coverage -- it would be a trivial incident of, at most, local concern. But since the act may speak to a wider failure of understanding between First Nations and the borader community, it is a matter of interest and charges would seem to be more, rather than less, likely.

Teaching aide suspended over hair cut
By SARAH ELIZABETH BROWN
Friday, May 22, 2009


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A Lakehead Public Schools board employee has been suspended and a family has hired a lawyer after their seven-year-old son‘s hair was cut while he was at school.

The mother reported the incident to police shortly after the incident on April 16, Thunder Bay Police spokesman Chris Adams said Thursday.

Police interviewed the aboriginal boy, his mother, the McKellar Park school principal and the teaching assistant, and then consulted with the Crown‘s office about laying an assault charge, Adams said.

David MacKenzie, an assistant Crown attorney, said the decision to not lay an assault charge was made with strict accordance to Crown policy.
That policy outlines the need for both a reasonable prospect of conviction and a public interest before a charge is laid.

Toronto's UJA Walk

Toronto's annual UJA walk raises money for numerous different causes. But out of that diversity there is unity in the community. Of course, Liberal Friends of Israel were proudly represented.