It's the weekend -- let's dance!!!

Lobbying Act -- is it valid? Perhaps not

One of the fundamental characteristics of a free country is the right of all citizens to ask the government to do something.

From the Magna Carta's Great Council onwards the Common Law has recognised the right of citizens peacefully to demand that the Crown act in a specific way.

This right to petition the Crown expanded over time and is now enshrined in the Canadian Constitution which provides that:

Everyone has the following fundamental freedoms:
...
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other means of communication.

(c) freedom of peaceful assembly; and

(d) freedom of association.

Canadians are so used to the freedoms of speech and expression that we are shocked when we see those freedoms denied, as recently in Iran.

Despite this, in Canada we have a federal law that bars some of our most talented and engaged citizens from petitioning the government except under limited circumstances.

Under the Lobbying Act designated public office holders are prohibited from seeking to influence governmental policy except in limited non-remunerative situations for a period of five years. Designated public office holders include Ministers of State and their exempt staff senior bureaucrats such as Associate Deputy Ministers, Assistant Deputy Ministers and senior members of the Canadian Forces

So, for example, for five years the former Assistant Deputy Minister of the Environment cannot work for Greenpeace in trying to convince the government to be more pro-active on global warming. A senior member of the Canadian Forces cannot work for five years for a Conservative political action committee to try to encourage the government to increase security in the Arctic. Former Minister's staff are barred for five years from doing what they know best -- government policy work.

These designated public office holders are voices who have knowledge experience and wisdom; denying them the right to speak to the government means we lose something important.

The reason for the prohibition is, of course, to limit influence peddling -- to make sure that government is swayed by reason and not by ties of personality. That's an important goal and it may be enough to make the Lobbying Act constitutionally valid.

In Canada our Constitutional freedoms may be subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

Perhaps the limit imposed by the Lobbying Act is valid -- but I suspect a far less restrictive limitation would work as well.
Certainly the answer is not obvious -- it may well be the Lobbying Act prohibition is unconstitutional. Regardless, it's only a matter of time before someone challenges it.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

White Collar Crime

The Conservatives are right that "white collar crime" is not dealt with well in Canada. My sense is better enforcement of existing laws is what is needed rather than new laws. As for the comment that the Opposition is getting in the way because of hesitation over changes to conditional sentencing -- well, that's just silly.


Tories promise action on white-collar crime
Ottawa wrong to say it has matter under control, forensic auditor says


The Harper government flexed its law-and-order muscles in the past three years against street racers, sex offenders, drug users and gang members.

But as white-collar criminals make headlines and expose flaws in the country's financial regulations, the Conservatives are turning their attention to the protection of fleeced investors, who are furious with the relatively weak sentences handed down in Canadian courts.

Prime Minister Stephen Harper said this week that the opposition parties are delaying Criminal Code amendments that would have hit hard at the likes of Vincent Lacroix and Earl Jones, who are facing criminal charges over their handling of millions of dollars in investments.

“Our government has been trying to strengthen the criminal justice system, including … measures to toughen up penalties not just for violent crime, but for these kinds of white-collar crimes as well. The opposition has resisted that,” Mr. Harper said.

“These crimes have real victims. They may not be victims of violence, but they are real victims, suffering real pain, and we should have a justice system that responds accordingly,” the Prime Minister added.

Asked which bills the opposition have delayed, the Prime Minister's Office later pointed to legislation that would eliminate house arrest as a sentence for major crimes, including theft over $5,000.

Stanley Thompson - Canadian golf hero

Golf heroes are common enough but from Canada we see only a few (yes, Weir is one). One of the greatest though is largely unsung today, Stanley Thompson.

He was (and is) one of the greatest golf course architects ever. His courses, from Uplands in Thornhill, Ontario to the Metrocourses in Ohio to the amazing CP courses in Western Canada still delight and challenge. I always look for one of his courses when I travel.

Built from the First World War to the 1940's the Thompson courses have withstood the test of time -- and the increased driving distances of the last twenty years are largely irrelevant on his courses. Heavily wooded and requiring precise placement Thompson courses are not designed for length.

And the greens! Subtle and difficult. They look flat but never are.

Canada's gift to golf; Stanley Thompson.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Internet everywhere -- research easy!

It is amazing how easy research has become. When I wrote my first book it was hours in the library and then notes on index cards to be typed (on a typewriter).

Today I was able to draft a newspaper piece on some federal legislation and do all the research from a blackberry. Seriously, the legislation, commentary, statistics and historical background all on-line.

Life is good!
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Petition of Right, 1628

An important document setting out the rights and liberties of the subject as opposed to the prerogatives of the crown (ie. Charles I). This action favouring the common man was championed by Sir Edward Coke (1552-1634), a prominent parliamentary adversary of the crown. His sparkling resume included public service as Speaker of the House of Commons, Attorney General, Chief Justice of the Court of Common Pleas and Chief Justice of the King's Bench.

The Petition exhibited to his Majesty by the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, concerning divers Rights and Liberties of the Subjects, with the King's Majesty's royal answer thereunto in full Parliament.

To the King's Most Excellent Majesty,

Humbly show unto our Sovereign Lord the King, the Lords Spiritual and Temporal, and Commons in Parliament assembles, that whereas it is declared and enacted by a statute made in the time of the reign of King Edward I, commonly called Stratutum de Tellagio non Concedendo, that no tallage or aid shall be laid or levied by the king or his heirs in this realm, without the good will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other the freemen of the commonalty of this realm; and by authority of parliament holden in the five-and-twentieth year of the reign of King Edward III, it is declared and enacted, that from thenceforth no person should be compelled to make any loans to the king against his will, because such loans were against reason and the franchise of the land; and by other laws of this realm it is provided, that none should be charged by any charge or imposition called a benevolence, nor by such like charge; by which statutes before mentioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom, that they should not be compelled to contribute to any tax, tallage, aid, or other like charge not set by common consent, in parliament.

II. Yet nevertheless of late divers commissions directed to sundry commissioners in several counties, with instructions, have issued; by means whereof your people have been in divers places assembled, and required to lend certain sums of money unto your Majesty, and many of them, upon their refusal so to do, have had an oath administered unto them not warrantable by the laws or statutes of this realm, and have been constrained to become bound and make appearance and give utterance before your Privy Council and in other places, and others of them have been therefore imprisoned, confined, and sundry other ways molested and disquieted; and divers other charges have been laid and levied upon your people in several counties by lord lieutenants, deputy lieutenants, commissioners for musters, justices of peace and others, by command or direction from your Majesty, or your Privy Council, against the laws and free custom of the realm.

III. And whereas also by the statute called 'The Great Charter of the Liberties of England,' it is declared and enacted, that no freeman may be taken or imprisoned or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.

IV. And in the eight-and-twentieth year of the reign of King Edward III, it was declared and enacted by authority of parliament, that no man, of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor disinherited nor put to death without being brought to answer by due process of law.

V. Nevertheless, against the tenor of the said statutes, and other the good laws and statutes of your realm to that end provided, divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your Majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty's special command, signified by the lords of your Privy Council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law.

VI. And whereas of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses, and there to suffer them to sojourn against the laws and customs of this realm, and to the great grievance and vexation of the people.

VII. And whereas also by authority of parliament, in the five-and-twentieth year of the reign of King Edward III, it is declared and enacted, that no man shall be forejudged of life or limb against the form of the Great Charter and the law of the land; and by the said Great Charter and other the laws and statutes of this your realm, no man ought to be adjudged to death but by the laws established in this your realm, either by the customs of the same realm, or by acts of parliament: and whereas no offender of what kind soever is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your realm; nevertheless of late time divers commissions under your Majesty's great seal have issued forth, by which certain persons have been assigned and appointed commissioners with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanor whatsoever, and by such summary course and order as is agreeable to martial law, and is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial.

VIII. By pretext whereof some of your Majesty's subjects have been by some of the said commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other ought to have been judged and executed.

IX. And also sundry grievous offenders, by color thereof claiming an exemption, have escaped the punishments due to them by the laws and statutes of this your realm, by reason that divers of your officers and ministers of justice have unjustly refused or forborne to proceed against such offenders according to the same laws and statutes, upon pretense that the said offenders were punishable only by martial law, and by authority of such commissions as aforesaid; which commissions, and all other of like nature, are wholly and directly contrary to the said laws and statutes of this your realm.

X. They do therefore humbly pray your most excellent Majesty, that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament; and that none be called to make answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the same or for refusal thereof; and that no freeman, in any such manner as is before mentioned, be imprisoned or detained; and that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come; and that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by color of them any of your Majesty's subjects be destroyed or put to death contrary to the laws and franchise of the land.

XI. All which they most humbly pray of your most excellent Majesty as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare, that the awards, doings, and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into consequence or example; and that your Majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honor of your Majesty, and the prosperity of this kingdom.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Escape through marriage?

Some years ago I knew a woman who had been subject to horrible abuse as a child and young teen.

After she failed to get help from the outside (no one believed her) she escaped by marrying very young. It seems almost beyond belief that such situations continue today but it seems they do.

Kingston canal victim made several attempts to marry: report

National Post

Zainab Shafia -- the eldest daughter of Mohammad Shafia, one of the alleged murderers in the Kingston canal tragedy -- made as many as three attempts to get married before she, her two sisters, and another relative were killed, allegedly at the hands of her parents and brother.

In an interview with The Gazette, a 26-year-old Montreal man said he and Zainab Shafia were married in a religious ceremony at a mosque in St. Léonard in May. The wedding was never officially registered with the province of Quebec because both his family and Zainab Shafia's disapproved of the union.

The couple decided not to register the wedding that day after it took place, he said adding he believes Zainab was engaged to another man at some point last year.

According to Sun Media, Zainab, 19, was about to announce her engagement to another man, a 27-year-old Montrealer, on July 1. She was found dead inside a car discovered submerged in the Rideau Canal on June 30. The bodies of her two younger sisters -- Sahari, 17 and Geeti, 13 -- were also found inside the car along with the body of Rona Amir Mohammad, Mohammad Shafia's first wife.

Mohammad Shafia, his second wife, Tooba Mohammad Yahya, and their 18-year-old son Hamed Shafia all face four counts each of first-degree murder and conspiracy in Kingston court.

A relative of the 27-year-old Montrealer declined to be interviewed by The Gazette last week. He said he would have something to say after the trial is over.

Relatives of Rona Amir Mohammad have alleged that her husband felt his oldest daughter had disgraced his family by her behaviour in Canada. They also alleged the homicides were carried out as so-called honour killings. The family, originally from Kabul Afghanistan, moved to St. Léonard from Dubai two years ago.

Montreal Gazette

Franklin Park Zoo -- Boston

Club Med? (Hands up, baby hands up...)

Americans don't want to be Canadian's. Canada are the reject's America didn't want.

Wow.

I did a (to be honest) rather ordinary post on the US health care debacle and got some really heated comments -- the title of the piece is the very first such comment (I did notice the non-standard use of apostrophes).

Why on earth did people react so strongly?

I totally disagree with the comments that attack Canada and Canadians but I don't consider them racist (Canadians include just about every race) so I won't pull them.

But what is this loathing of Canada's health care system?

It must be pure ideology.

Our system isn't perfect and some reasonable people think adding a private component to the system would help (as in the UK). It may also be that Canada's system is too costly and as the population ages is unsustainable. But all that said, the system works pretty well and isn't really a basis for the vitriol in the comments.

The US system is wonderful if you have the right insurance or are wealthy. But it does cost much more than the Canadian system and doesn't seem to deliver materially better results overall. (Of course much of the cost comes from useless tort costs -- Canadian tort awards are lower and much more difficult to obtain which saves). And if you're poor or unemployed your medical care depends on charity.

So why the anger? Perhaps because the Canadian system is a socialism that works? Or perhaps, if not socialism, a welfare state that succeeds?
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Toronto City workers strike over

City council approves deal


Adrian Morrow      

Staff Reporter     

 

Toronto city council has voted to ratify new contracts for both its inside and outside workers, signalling an official end to the city's 40-day strike.

Around 6:40 p.m., council voted 21 to 17 to approve the tentative agreements reached over the weekend with CUPE locals 416 and 79.

Mayor David Miller is currently holding a press conference.

Garbage workers are set to get back to work immediately, cleaning up temporary dump sites.

Other workers were already back on the job today, after both striking unions voted to ratify the deals earlier in the week.

Maintenance and parks department employees were on the street today emptying garbage bins, picking up refuse from the streets and collecting litter from city parks.

The task is expected to take until late Sunday night.

Garbage workers, however, had opted to wait until council voted on the deal before heading to the temporary garbage dump sites to start carting away the trash.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Look, up in the sky, it's a bird, it's a plane ...

Presence includes linguistic presence

Being present at a court hearing means more than just physical presence. The party must understand what is happening and so a failure to comprehend the language of the hearing renders the party "not present".

Depending on other issues that may make the hearing void or voidable.

Thus the Court of Appeal today notes in United States of America  v. Mendez, 2009 ONCA 601:

Presence includes linguistic presence.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

We're not out of the woods yet...

GDP slips 0.5% in May (StatsCan-GDP)
Source: The Canadian Press

OTTAWA_ The gross domestic product fell 0.5 per cent in May, a faster rate of decline than in the previous three months.

Over the last four months, the goods-producing industries have contributed the most to the decrease in GDP, while the output of the service sector has remained essentially unchanged.

Statistics Canada reports the energy and manufacturing sectors were the main contributors to May's decline; construction and wholesale trade also decreased.

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

416 225 2777

Blogs

94% of blogs haven't been updated in the last 4 months!!!
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

American health care

Reading the US papers and listening to Fox News I am struck by the debate over health care. It seems odd that something so obviously necessary as universal health care can be seriously debated.



Canada's system isn't perfect, and to a degree our weaknesses are covered by the ability to go to the US for treatment if necessary. But overall our system is pretty good. I have (sadly) seen friends and family go through the worst illnesses and the treatment, although often unsuccessful, was caring and competent. And it was not based on ability to pay. Other advanced countries all have some system of universal health care.



The US spends about twice as much per person on medical care than Canada but has lower life expectancy and higher infant mortality. The leading cause of bankruptcy in the US is medical bills. And working people who lose their jobs lose their health insurance.



The lack of American universal health care is a shame. The USA is an amazing place -- as a neighbour Canada is very fortunate -- American instincts are good, the people disposed to err on the side of freedom and charity and justice are taken seriously. But the lack of health care for all is unique among advanced nations. It doesn't have to be the Canadian model -- it could follow the mixed European models -- but it's time for America to join the mid-Twentieth Century and have a health care system.

Millimoles to milligrams

A fairly technical point which came up recently in a matter deals with the conversion, for impaired cases, from millimoles per litre to milligrams per cent. To make the conversion one multiplies the result in millimoles by 4.6. (Thanks to Yossi Schochet for this).


Noonan (Alta. Q.B.), [1987] A.J. No. 624: 

An expert witness testified that 53.4 millimoles of alcohol in one litre of blood converts to 246 milligrams of alcohol in 100 millilitres of blood or 246 milligrams per cent. In order to convert millimoles per litre to milligrams per cent, one multiplies the result in millimoles by 4.6.  

MacDonald, [1987] A.J. No. 444: 

Ms. Costello testified that the Appellant's blood contained 36.3 millimoles of alcohol per 1 litre of blood. Another expert called by the Crown converted this reading as being 167 milligrams of alcohol in 100 millitres of blood. The conversion from millimoles to milligrams percent is obtained by multiplying the number of millimoles by 4.6. 
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Microchip your pets

A few dollars and your pet is protected -- maybe we should start micro chipping people too. (nb -- before too many people get upset the last comment was intended as subtle irony -- and I know, if you have to explain your jokes ...).

Missing dog returns home after 9 years

1,700 Km Journey

National Post
Friday, Jul 31, 2009

A flea-bitten dog rescued from a squalid backyard is to be reunited with her owners 1,700 kilometres away -- nine years after she disappeared.

The dog, Muffy, was found sleeping on a tattered piece of cardboard in a backyard in Melbourne with a bad skin condition and matted coat by the Royal Society for the Protection of Animals after an anonymous call.

RSPCA Victoria spokesman Tim Pilgrim said the terrier-cross was found to have been microchip-ped, which did not fit with the circumstances, so they decided to try to track down the dog's owners, whom they found in Brisbane.

"It's amazing that the original owners had microchipped her as it wasn't that common nine years ago, and it is amazing that she had come 2,000 km from home," Mr. Pilgrim said.

"We are advising people to get their pets microchipped so we can have some more happy endings like this one."

The owner, Natalie Lampard, said, "I just couldn't believe it, it's absolutely amazing. I told my daughter Chloe and she was just over the moon. She can't wait to see Muffy again."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Leaping bear

Leaping bear!!!! Rasi jumps!!!

Today's SCC decision on disclosure

CRIMINAL LAW:  DISCLOSURE

R. v. Bjelland  (Alta. C.A., December 21, 2007) (32446) 

"The accused was charged with importing cocaine and possession of cocaine for the purpose of trafficking.  After pre-preliminary hearing conferences, the Crown indicated that disclosure was substantially complete.  A preliminary hearing was subsequently held and a trial date set for May 1, 2006.  In March and April 2006, the Crown provided the accused with evidence from two alleged accomplices, both of whom were to be called at trial.  The accused moved for a stay of proceedings or, alternately, for the exclusion of the evidence on the grounds that his right to make full answer and defence had been prejudiced by the late disclosure.  The trial judge ordered the exclusion of the late disclosed evidence under s. 24(1) of the Canadian Charter of Rights and Freedoms.  At trial, the accused was acquitted.  The Court of Appeal, in a majority decision, set aside the acquittal and ordered a new trial, finding that the trial judge committed a reviewable error by failing to consider whether a less severe remedy than exclusion of evidence could have cured the prejudice to the accused." 

The SCC held (4:3) that the appeal is dismissed. Justice Rothstein stated as follows (at page 2): "I agree with the result of the majority in the Court of Appeal.  In my view, the trial judge committed a reviewable error by failing to consider whether the prejudice to the appellant could be remedied without excluding the evidence and the resulting distortion of the truth-seeking function of the criminal trial process.  Under s. 24(1), where the evidence was obtained in conformity with the Charter , its exclusion is only available as a remedy where its admission would result in an unfair trial or would otherwise undermine the integrity of the justice system.  In this case, the prejudice to the appellant's right to make full answer and defence could be remedied through an adjournment and disclosure order and there was nothing that otherwise compromised the fairness of the trial process or the integrity of the justice system."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Smile

How did it get so dark so quickly???

Recent polling results

From the Toronto Star:  

Summer poll could cool talk of election

July 30, 2009

Tonda MacCharles      

...
A survey by Angus Reid Strategies for the Toronto Star shows the federal Liberals with 34 per cent support and the Conservatives with 33 per cent – a statistical dead heat. The result is a warning for any party thinking of plunging into a fall election: No wind of change is blowing across Canada.

The poll shows the shaky economy is still voters' top concern, despite a declaration by Bank of Canada governor Mark Carney that the recession is over, and no party's leader has clearly won the trust of a majority of Canadians on the issue.

...
Conducted Monday and Tuesday, it shows public approval for the opposition Liberals stands at 34 per cent – an increase of four points from two weeks earlier.

The governing Conservatives' support held at the same level as two weeks ago at 33 per cent. The poll of 1,012 people has a margin of error of 3.1 percentage points, which means the two parties are in a virtual tie.

The NDP was at 16 per cent support, down two points. The Bloc Québécois was at 10 per cent and the Green party 7 per cent.
...

"What we have seen in the summer is that Ignatieff's numbers have come back down to earth a little bit," said Jaideep Mukerji, a spokesman for the polling firm.

 ...

"With the numbers as they are, clearly no party is in a position to get a majority, and neither party seems to be able to get a clear advantage over the other," said Mukerji.

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

416 225 2777

Prisons, treatment and an adult sentence for MT

Melissa Todorovic was sentenced as an adult for her role in the Rengel murder. The sentencing wasn't a great surprise but what did surprise me was the reaction and media response.

Apart from a rather vague comment in the Globe that the murder was 'evil' (more below) most comments focussed on a medical issue -- can Todorovic be treated so that she can be a lawful productive adult? And if she cannot be made safe how can she be separated from society?

How odd.

The comments do not hint at successful deterrence, either specific or general, nor do they really suggest punishment as a goal of sentencing.

Implicitly people seem to be realising prison as warning to others is a failure. And punishment, while gratifying to victims (and that has value), does precious little for society.

Prison is seen as a place to re-educate the offender or, if incorrigible, to keep the offender separated from society.

That's exactly what I say prison should do -- and if reorganised it might work. Set up properly prisons might rehabilitate and if that failed separate convicts. Now Todorovic, as a youth, may well get proper treatment but she's a special case.

A word on 'evil'.

Despite some readers' comments, I believe evil exists. There are wicked and evil acts. Evil exists in all people -- some act on it and others don't. And it's that differential that makes me believe (hope?) that evil can be controlled and convicts rehabilitated. Sinners can find salvation; and salvation from outside themselves. Yes, some are too far gone in madness or wickedness or both and those people must be separated from society. But most can be saved.

I'm not sure if this is a liberal or conservative position but I believe it to be true.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Google Alerts

One of the odd things about having a Google alert is that it, from time to time, flips stories about people with your name but nothing else in common (still I like the sound of "Judge James Morton"):

The plantation was established in 1843 by Judge James Morton. He prospered there for 68 years. Today, the plantation stands testament to 165 years of excellent timber, land and wildlife management and is renowned as a recreational hunting and aesthetic paradise. Over 2,000 acres (60%) of the plantation is in native ground cover and natural timber.

Located on the Withlacoochee River on the eastern edge of the famous Tallahassee/Thomasville quail belt, it is nearby other famous Brooks County plantations such as Talloakas, Okapilco, Brannville, River Bend, Pinion Point, Kinderlou Forest, Tamathli, Pinckney Hill, Blackwater, and Hickory Head. Just off US Highway 84, it is a convenient drive to Thomasville and less than 15 minutes to commercial jet service from Valdosta, the 10th largest city in Georgia with all the benefits of the I-75 Corridor.

The famous 1850’s Greek Revival house makes this one of the few original plantations in existence. This plantation’s access to amenities, infrastructure, river frontage and historical assets gives it enormous higher and better use potential.

Liberal fundraising numbers

2nd Quarter Liberal Party fundraising numbers are in:

$3.9M

More than 4 times last year's.

So far this year: $5.7M.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Relax

Sleeping panda

Police caught plotting by dashboard camera

Four American police officers caught plotting to frame an innocent motorist after one of them crashes into her car:

http://www.huffingtonpost.com/2009/07/29/crooked-cops-caught-plott_n_246987.html

What is particularly bizarre is that they acted in front of a dashboard camera. Perhaps this is a good reason to require dashboard cameras so we can prove the innocence of false allegations against police (and the contrary when that's the case).
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Quantifying damages for unjust enrichment

Quantifying damages for unjust enrichment remains difficult. Today's Court of Appeal decision in Vanasse v.  Seguin, 2009 ONCA 595 makes clear that the quantum is to be determined based on "value received". The Court holds:

[4]               Having found a period of unjust enrichment and that monetary compensation was in order, the trial judge acknowledged that the "value received" approach was appropriate.  The value received approach determines the value of the services rendered by the claimant to the common law spouse.  However, at para. 117 of her reasons, she relied on Nasser v. Nasser-Mayer (2000), 5 R.F.L. (5th) 100 (Ont. C.A. ) for the proposition that, in general, this court has endorsed a blurring of the "value received" and "value survived" approach at the quantification stage.  The "value survived" approach, which looks at what the increase in value of the assets was during the period of the unjust enrichment, is used when a constructive trust is established because a link has been demonstrated between the contribution that founds the action and the assets themselves.

[5]               As a result, the trial judge did not use the "value received" approach to quantification but instead determined the increase in the value of Seguin's property during the period of unjust enrichment, namely the second period of cohabitation, and awarded Vanasse a monetary amount equal to half the increase in Seguin's assets during this period less the benefits received by Vanasse as a result of the relationship.  After subtracting Seguin's gifts to Vanasse of a half-interest in the matrimonial home worth approximately $215,000 and a spousal RRSP worth approximately $44,486 from Vanasse's half-interest in the increase in Seguin's net worth during the period of unjust enrichment, she ordered that Seguin pay Vanasse $996,500 as compensation for unjust enrichment. 

[6]               The appellant did not appeal the trial judge's finding of unjust enrichment during the second period of their cohabitation.  The only aspect of the trial judge's award that Seguin appeals is her approach to calculating the amount Seguin should pay Vanasse.  Seguin argues that the trial judge erred in the approach she used to quantify the compensation owed due to unjust enrichment.

[7]               We agree with Seguin's submission.  The approach adopted by the trial judge to quantify the compensation owed to Vanasse on the basis of unjust enrichment is precisely the approach this court held was incorrect in Bell v. Bailey (2001), 20 R.F.L. (5th) 272 (Ont. C.A.) at para. 35, and Wylie v. Leclair (2003), 38 R.F.L (5th) 227 (Ont. C.A. ) at para. 19.

[8]               Nasser does not stand for the general proposition that the "value received" and "value survived" approaches can be blurred.  Rather, the result in Nasser was driven by the facts of that case.  Ms. Mayer-Nasser worked directly for her common law husband's company for a period of time and spent virtually all the money she made outside the home on the household expenses enabling Mr. Nasser to keep a greater proportion of his assets.  That is not this case. 

[9]               The decision of this court in Yackobeck v. Hartwig (2000), 138 O.A.C. 131, on which Vanasse relies, also does not support the proposition that the two approaches may ordinarily be blurred in calculating the amount owed upon a finding of unjust enrichment.  In that case the trial judge gave Ms. Yackobeck 30% of the value of the property based on her contribution to the domestic undertaking over fifteen years in which she worked both on and off the farm property including in Hartwig's harness shop.  Any blurring of the "value survived" and "value received" approaches was again specific to the facts of that case: that case featured a direct connection to the property in question, but the strict application of the "value survived" approach would not have recognized Ms. Yackobeck's contribution given the deterioration of the farm property after she left.  The main issue on appeal was the trial judge's order for support.  In relation to the amount awarded for unjust enrichment the court simply endorsed the result arrived at by the trial judge.

[10]          Given that the correct approach was to determine the "value received" and perform a quantum meruit calculation, the value that each party received from the other should have been assessed and set-off.  See generally Peter v. Beblow, [1993] 1 S.C.R. 980, Bell v. Bailey (2001), 20 R.F.L. (5th) 272, (Ont. C.A. ), and Wiley v. Leclair (2003), 38 R.F.L. (5th) 227, (Ont. C.A. ).  In addition to Seguin's financial contribution, the trial judge should have considered relevant evidence pertaining to Seguin's non-financial contributions to the relationship during the second period of cohabitation.  For example, she did not appear to take into account that shortly after the birth of their first child, Seguin cut back his hours and resigned his position as President of the company which resulted in him losing the opportunity to obtain any further stock options.  Within a year after their first child was born, the family returned to Ottawa at Vanasse's urging.  The move resulted in a diminution of Seguin's commitment to the business, friction with his partners, and reduced the amount he ultimately received from the sale of the business. 

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

416 225 2777

At the request of several readers here is the text of the unreported paralegal/designation case. I assume it will be reported as it is of significance.

COURT FILE #112/09

DATE: July 21, 2009 

ONTARIO 

SUPERIOR COURT OF JUSTICE

B E T W E E N :                                                 
L, (G.Y.) (A Young Person)                 Daniel A. Stein for the Applicant

-and-                                                HER MAJESTY THE QUEEN                Catherine Mullaly for the Respondent

_______________________________
Ruling: Application for Certiorari
_________________________________

Heard: July 20, 2009
Released:  July 21, 2009

 ​McCombs​ J.

 1.0 - Introduction

[1]       This application raises the issue of whether ​paralegals​ licensed and insured by the Law Society of Upper Canada (the "Law Society") may attend in the Ontario Court of Justice pursuant to a ​designation​ for the purpose of routine remands for indictable offences.  In this ruling I conclude that they can. 

[2)        I conclude that Justice of the Peace R. Quon erred in law when he held that a licensed and insured ​paralegal​ was precluded from appearing by way of a ​designation​ of counsel at an early court appearance on the applicant's charges for indictable offences.  In issuing a bench warrant with discretion for the arrest of the applicant, he exceeded his jurisdiction. The warrant must therefore be quashed.

1.1 - Overview

[3]        The relevant facts are straightforward. The applicant is a young person facing four charges of assault and four charges of forcible confinement. His first appearance was scheduled for April 23, 2009 at the Ontario Court of Justice at 311 Jarvis Street in Toronto.

[4]        The applicant did not personally attend court on that date.  Instead, a ​paralegal​ licensed and insured by the Law Society attended and filed a duly executed ​designation​ under Criminal Code s. 650.01.   The ​designation​ appointed Mr. Daniel Stein as his counsel of choice, and ​designated​ his "counsel, articling student, or agent acting on his behalf to appear for all proceedings where [his] attendance is not required by law or the direction of the Ontario Court of Justice".

[5]        The Justice of the Peace ruled that only "a student of law or another lawyer" could act on the ​designation​.  He then issued a discretionary bench warrant for the applicant.

 2.0 – Discussion

 (a)  "​Designations​" under S. 650.01 of the Criminal Code of Canada
     
[6]        S. 650.01 was enacted in 2002 to help streamline an overburdened criminal justice system by dispensing with the obligation of an accused charged with an indictable offence to attend personally at each court appearance. Unless the court orders otherwise, the provision lets the accused ​designate​ counsel to appear on his behalf for any part of the proceedings other than during the presentation of oral evidence, jury selection, on a habeas corpus application, or on a plea of guilty.

[7]        Prior to the enactment of s. 650.01, an accused charged with an indictable offence could not appear by agent, even if the agent was his lawyer. Moreover, if the court did not act in response to the non-attendance of the accused (for example by issuing a bench warrant) there was a risk of loss of jurisdiction.[1][1]

[8]        S. 650.01 benefits the administration of justice by enabling "​designated​ counsel" to appear at routine remand appearances without the personal attendance of the client. Its benefits to the administration of justice include speeding up court appearances and reducing legal costs and inconvenience to accused persons.

(b) Can ​Paralegals​ Appear Pursuant to a ​Designation​ in the Ontario Court of Justice on an Administrative Remand?

[9]        In R. v. Golyanik, 2003 CanLII 64228 (ON S.C.), (2003) CanLII 64228 (Ont. S.C.), Trafford J. held that articling students could attend in the Ontario Court of Justice pursuant to a ​designation​ for the purpose of routine remands for indictable offences.  In his carefully reasoned decision, he held that in the context of s. 650.01, the definition of "counsel" includes articled students-at-law and embraces a counsel's law firm.  He held that articling students could appear pursuant to a ​designation​ on remands for indictable matters in the Ontario Court of Justice. He did not rule on the issue of the status of ​paralegals​ in the same circumstances, because the issue was not before him. 

[10]      Trafford J. rooted his reasoning in the modern approach to statutory construction, with its emphasis on contextual and purposive interpretation[2][2].  In my view, the same reasoning applies to this case.

[11]      ​Paralegals​ are now governed by the Law Society.  They are trained professionals subject to similar if not identical standards of ethics and civility as are lawyers and students-at-law.  Properly regulated, they make a significant contribution to the administration of justice.  Interpreting s. 650.01 in a way that prevents them from attending court in cases like this one would impede rather than enhance the proper and efficient administration of justice. If the purpose of s. 650.01 is to be respected, the definition of counsel demands a broad interpretation that encompasses ​paralegals​ and lets them appear in the Ontario Court of Justice on indictable matters pursuant to a proper ​designation​.

3.0 - Conclusion.

[12]      When this matter came before the justice of the peace, the applicant's interests were represented by a duly licensed and insured ​paralegal​ acting with the express instructions of the applicant's lawyer. The s. 650.01 ​designation​ was properly placed before the court. The Justice of the Peace erred in holding that ​paralegals​ were not included in the definition of counsel in s. 650.01.  There was no evidentiary basis for the issuance of a bench warrant and in doing so, he exceeded his jurisdiction.  

[13]      The bench warrant issued by Justice of the Peace Quon on April 23, 2009, is therefore quashed. 
                                                   ​McCombs​ J.

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

416 225 2777

Woman faces 40 lashes for wearing pants

Does anyone remember Darfur? This story illustrates the brutal fate for human rights in Sudan


Makes first court appearance in Sudan wearing the same green trousers that got her arrested for immodest dress after police raided party she attended

Andrew Heavens Khartoum — Reuters



Sudanese journalist Lubna Ahmed Al-Hussein, who writes for the left-wing Al-Sahafa newspaper and works for the media department of the United Nations Mission in Sudan, is preparing to be flogged 40 times in Khartoum for wearing "indecent" clothes, with 10 women already whipped for similar offences against Islamic law.

There were chaotic scenes as Hussein attended the hearing wearing the same green slacks that got her arrested for immodest dress. Indecency cases are not uncommon in Sudan.

But Ms. Hussein has attracted attention by publicizing her case, inviting journalists to hearings and using it to campaign against dress codes sporadically imposed in the capital.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Mayor Miller right on banked sick days

Toronto's Mayor is getting heat for allowing City workers to keep existing banked sick days on a going forward basis.

That's not right.

The City workers accumulated the banked sick days and the rights they had to those days ought not to be taken away. Although a bad concept (they should be eliminated on a go forward basis and seem to be) banked sick days amount to a form of pension that has already been earned.

It is right and fair and proper that City workers keep what they earned already. Criticising the Mayor for this is wrong.

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

416 225 2777

China to limit death penalty?

The Supreme People's Court announced that the death penalty was henceforth to be limited to only the most serious crimes of violence and to be used only against a small number of offenders. China presently executes for non-violent offences. While maintaining the death penalty the announcement, if true, is a big step in the right direction.

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

416 225 2777

Paralegals can appear on designations

The unreported decision of L(GY) v Regina (July 21, 2009 per McCombs J) holds that a licenced paralegal may appear as agent for counsel under a duly executed designation under s. 650.01 of the Criminal Code. (Students at law have long been permitted such attendance.)

This result is somewhat counter intuitive as paralegals are not generally entitled to appear on indictable matters.

That said, I am told that paralegals commonly appear before Justices of the Peace to set dates pursuant to designations.

Accordingly this decision clarifies the paralegals' right of attendance.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Show a toothy grin

Nortel goes overseas?

Maybe it is over?

Bankruptcy courts in U.S., Canada approve Ericsson's US$1.13 billion Nortel bid
Source: The Canadian Press
By Maria Babbage

THE CANADIAN PRESS

TORONTO_ LM Ericsson has won its bid to buy key assets of insolvent Nortel Networks after bankruptcy courts in Canada and the United States approved the Swedish company's US$1.13-billion bid.

In his ruling Tuesday, U.S. Judge Kevin Gross said he was satisfied that the assets were being sold at a fair price and both Nortel and its creditors will benefit.

``For all of those reasons, I am very enthusiastically prepared to enter the sale order in this matter,'' he said.

It's rare that a bankruptcy judge is enthusiastic, but ``I'm very enthusiastic'' about the sale, Gross said in his ruling, heard in the Canadian court via video.

But the rulings Tuesday in Toronto and Delaware may not be the final word in the tumultuous saga that has seen the former Canadian technology darling fall from atop the country's business world to be sold off in chunks out of creditor protection.

Before the decisions were handed down, vocal opposition to the deal sprang from a number of groups who say the company is too valuable to fall into foreign hands, including federal opposition parties, the Ontario government and BlackBerry maker Research In Motion (TSX:RIM), which failed in its own bid for the assets.

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

416 225 2777

Rengel killer's interview -- amazingly it's on-line

The Rengel murder case is now over (save for appeals). The young person has been sentenced as an adult and, amazingly, her video statement to police is on-line (see below). What defence lawyer would want such statements made? No wonder the general direction is "exercise your right to silence".

Remember the adage "more men are hanged by their tongues than by their necks"...

http://www.thestar.com/videozone/672886

Family law appeals

The Court of Appeal today restated their previous position that appeals in family law cases would be allowed but seldom.  The Court, relying on Juvatopolos v. Juvatopolos, [2005] O.J. No. 4181, held, in Normore v. Garcia, 2009 ONCA 592 :

 

The decision of the [judge below] is entitled to deference on appeal and the standard of review is designed to promote finality in family law litigation and to recognize the importance of the appreciation of the facts by the trial judge: see Hickey v. Hickey, [1999] 2 S.C.R. 518 at paras. 11-12.  It is only where the trial judge's decision exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong that an appellate court is entitled to interfere: see Silver v. Silver (1985), 54 O.R. (2d) 591 (Ont. C.A.).

Bankruptcy courts expected to rule today on Ericsson's Nortel bid

Source: The Canadian Press
Jul 28, 2009 11:45

TORONTO_ Bankruptcy courts in Toronto and Wilmington, Delaware are expected to rule today on LM Ericsson's bid to buy Nortel Network's wireless business.

The Swedish wireless giant's incoming chief executive says he is confident the US$1.13-billion bid will be approved despite objections to the deal.

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

416 225 2777

From Marley & Me

"A dog has no use for fancy cars, big homes, or designer clothes. A water-logged stick will do just fine. A dog doesn't care if you're rich or poor, clever or dull, smart or dumb. Give him your heart and he'll give you his. How many people can you say that about? How many people can make you feel rare and pure and special? How many people can make you feel extraordinary?"

Three hawks

Driving on a lonely country road (or as close to that as you get in southern Ontario) I saw three hawks sitting on light standards waiting for breakfast. Somehow they manage to live amongst humans. Remarkable!

Justifying State infringements of Charter Rights and Freedoms

Friday's Supreme Court of Canada decision in Alberta v. Hutterian Brethren of Wilson Colony 2009 SCC 37 is important both for its analysis of when a State infringement of a Charter Right or Freedom is justified and also because for the underlying approach taken by the Court. 

 

Broadly put the Court seems inclined to accept State explanations for legislation and to defer to State choices even where those choices do not seem drawn with the particularity that might be seen if protection of Charter Rights and Freedoms were seen as the most important of State goals.  Such an approach has broad implications for all constitutional litigation and suggests that, for example, the Court may be disinclined to strike down tough "law and order" legislation if such legislation can be rationally justified.  It may also be of interest to note that the dissenting voices on the Supreme Court are fairly consistent and (perhaps) ideological blocks have developed in the Court.

 

The facts of the case are fairly simple.  Alberta requires all persons who drive motor vehicles on highways to hold a driver's licence.  Since 1974, each licence has borne a photograph of the licence holder, subject to exemptions for people who objected to having their photographs taken on religious grounds.  Religious objectors were granted a non-photo licence called a Condition Code G licence, at the Registrar's discretion. 

 

In 2003, the Province adopted a new regulation and made the photo requirement universal.  The photograph taken at the time of issuance of the licence is placed in the Province's facial recognition data bank.  There were about 450 Condition Code G licences in Alberta, 56 percent of which were held by members of Hutterian Brethren colonies.  The Wilson Colony of Hutterian Brethren maintains a rural, communal lifestyle, carrying on a variety of commercial activities.  They sincerely believe that the Second Commandment prohibits them from having their photograph willingly taken and objected to having their photographs taken on religious grounds. 

 

The Province proposed two measures to lessen the impact of the universal photo requirement but, since these measures still required that a photograph be taken for placement in the Province's facial recognition data bank, they were rejected by the members of the Wilson Colony.  They proposed instead that no photograph be taken and that non-photo driver's licences be issued to them marked "Not to be used for identification purposes." Unable to reach an agreement with the Province, the members of the Wilson Colony challenged the constitutionality of the regulation alleging an unjustifiable breach of their religious freedom. 

 

The Court upheld the regulation writing, in part:

 

 

(2)   Is the Limit on the Section 2(a) Right Justified Under Section 1 of the Charter?

 

 

 

[35]                          This Court has recognized that a measure of leeway must be accorded to governments in determining whether limits on rights in public programs that regulate social and commercial interactions are justified under s. 1 of the Charter. Often, a particular problem or area of activity can reasonably be remedied or regulated in a variety of ways.  The schemes are typically complex, and reflect a multitude of overlapping and conflicting interests and legislative concerns.  They may involve the expenditure of government funds, or complex goals like reducing antisocial behaviour.  The primary responsibility for making the difficult choices involved in public governance falls on the elected legislature and those it appoints to carry out its policies.  Some of these choices may trench on constitutional rights. 

 

 

 

 

 

[36]                          Freedom of religion presents a particular challenge in this respect because of the broad scope of the Charter guarantee. Much of the regulation of a modern state could be claimed by various individuals to have a more than trivial impact on a sincerely held religious belief. Giving effect to each of their religious claims could seriously undermine the universality of many regulatory programs, including the attempt to reduce abuse of driver's licences at issue here, to the overall detriment of the community.

 

 

 

[37]                          If the choice the legislature has made is challenged as unconstitutional, it falls to the courts to determine whether the choice falls within a range of reasonable alternatives.  Section 1 of the Charter does not demand that the limit on the right be perfectly calibrated, judged in hindsight, but only that it be "reasonable" and "demonstrably justified".  Where a  complex regulatory response to a social problem is challenged, courts will generally take a more deferential posture throughout the s. 1 analysis than they will when the impugned measure is a penal statute directly threatening the liberty of the accused. Courts recognize that the issue of identity theft is a social problem that has grown exponentially in terms of cost to the community since photo licences were introduced in Alberta in 1974, as reflected in the government's attempt to tighten the scheme when it discontinued the religious exemption in 2003. The bar of constitutionality must not be set so high that responsible, creative solutions to difficult problems would be threatened. A degree of deference is therefore appropriate: Edwards Books, at pp. 781-82, per Dickson C.J., and Canada (Attorney General) v. JTI‑Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 43, per McLachlin C.J.

 

 

 

[38]                          With this in mind, I turn to the question of whether the limit on freedom of religion raised in this case has been shown to be justified under s. 1 of the Charter.

 

 

 

…

 

 

(ii)   Does the Limit Minimally Impair the Right?

 

 

 

 

 

[53]                          The question at this stage of the s.1 proportionality analysis is whether the limit on the right is reasonably tailored to the pressing and substantial  goal put forward to justify the limit.  Another way of putting this question is to ask whether there are less harmful means of achieving the legislative goal.  In making this assessment, the courts accord the legislature a measure of deference, particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives.

 

 

 

[54]                          In RJR-MacDonald, the minimal impairment analysis was explained as follows, at para. 160:

 

 

 

As the second step in the proportionality analysis, the government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be "minimal", that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement. ... On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail. [Emphasis added; citations omitted.]

 

 

 

 

 

In this manner, the legislative goal, which has been found to be pressing and substantial, grounds  the minimum impairment analysis.  As Aharon Barak, former President of the Supreme Court of Israel, puts it, "the rational connection test and the least harmful measure [minimum impairment] test are essentially determined against the background of the proper objective, and are derived from the need to realize it": "Proportional Effect: The Israeli Experience" (2007), 57 U.T.L.J. 369, at p. 374.  President Barak describes this as the "internal limitation" in the minimum impairment test, which "prevents it [standing alone] from granting proper protection to human rights" (p. 373). The internal limitation arises from the fact that the minimum impairment test requires only that the government choose the least drastic means of achieving its objective. Less drastic means which do not actually achieve the government's objective are not considered at this stage. 

 

 

 

[55]                          I hasten to add that in considering whether the government's objective could be achieved by other less drastic means, the court need not be satisfied that the alternative would satisfy the objective to exactly the same extent or degree as the impugned measure. In other words, the court should not accept an unrealistically exacting or precise formulation of the government's objective which would effectively immunize the law from scrutiny at the minimal impairment stage. The requirement for an "equally effective"  alternative measure in the passage from RJR-MacDonald, quoted above, should not be taken to an impractical extreme. It includes alternative measures that give sufficient protection, in all the circumstances, to the government's goal: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350. While the government is entitled to deference in formulating its objective, that deference is not blind or absolute. The test at the minimum impairment stage is whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner. As I will explain, in my view the record in this case discloses no such alternative.

 

 

 

 

 

[56]                          The purpose of the limit in this case, I earlier concluded, is to maintain the integrity of the driver's licensing system by minimizing the risk of driver's licences being used for purposes of identity theft, so as to prevent fraud and various other misuses of the system.  The regulation is part of a complex regulatory scheme and is aimed at an emerging and challenging problem.  The question, therefore, is whether the means chosen to further its purpose — the universal photo requirement for all licensed drivers — is reasonably tailored to address the problem of identity theft associated with driver's licences.

 

 

 

[57]                          The Province proposes alternatives which maintain the universal photo requirement, but minimize its impact on Colony members by eliminating or alleviating the need for them to carry photos.  This would permit the Province to achieve its goal of a maximally efficient photo recognition system to combat fraud associated with driver's licences, while reducing the impact on the members' s. 2(a) rights. 

 

 

 

[58]                          However, the Hutterian claimants reject these proposals.  For them, the only acceptable measure is one that entirely removes the limit on their s. 2(a) rights.  They object to any photo being taken and held in a photo data bank.  For them, the only alternative is a driver's licence issued without a photo, stamped with the words, "Not to be used for identification purposes".

 

 

 

 

 

[59]                          The problem with the claimants' proposal in the context of the minimum impairment inquiry is that it compromises the Province's goal of minimizing the risk of misuse of driver's licences for identity theft.  The stamp "not to be used for identification purposes" might prevent a person who comes into physical possession of such a licence from using it as a breeder document, but it would not prevent a person from assuming the identity of the licence holder and producing a fake document, which could not be checked in the absence of a photo in the data bank.  As Slatter J.A. pointed out, without the photo in the bank, the bank is neutralized and the risk that the identity of the holder can be stolen and used for fraudulent purposes is increased.  The only way to reduce that risk as much as possible is through a universal photo requirement.  The claimants' argument that the reduction in risk would be low, since few people are likely to request exemption from the photo requirement, assumes that some increase in risk and impairment of the government goal may occur, and hence does not assist at the stage of minimal impairment.

 

 

 

[60]                          The claimants' proposal, instead of asking what is minimally required to realize the legislative goal, asks the government to significantly compromise it.  An exemption for an unspecified number of religious objectors would mean that the one-to-one correspondence between issued licences and photos in the data bank would be lost.  As shown by the Province, this disparity could well be exploited by wrongdoers. Contrary to the suggestion of LeBel J. (para. 201), the evidence discloses no alternative measures which would substantially satisfy the government's objective while allowing the claimants to avoid being photographed.  In short, the alternative proposed by the claimants would significantly compromise the government's objective and is therefore not appropriate for consideration at the minimal impairment stage.

 

 

 

[61]                          This is not to suggest the Colony members are acting improperly.  Freedom of religion cases may often present this "all or nothing"  dilemma.  Compromising religious beliefs is something adherents may understandably be unwilling to do. And governments may find it difficult to tailor laws to the myriad ways in which they may trench on different people's religious beliefs and practices.  The result may be that the justification of a limit on the right falls to be decided not at the point of minimal impairment, which proceeds on the assumption the state goal is valid, but at the stage of proportionality of effects, which is concerned about balancing the benefits of the measure against its negative effects.

 

 

 

 

 

[62]                          I conclude that the universal photo requirement minimally impairs the s. 2(a) right.  It falls within a range of reasonable options available to address the goal of preserving the integrity of the driver's licensing system. All other options would significantly increase the risk of identity theft using driver's licences.  The measure seeks to realize the legislative goal in a minimally intrusive way.

 

 

 

[63]                          Much has been made of the fact that over 700 000 Albertans do not hold driver's licences. The argument is that the risk posed by a few hundred potential religious objectors is minuscule as compared to the much larger group of unlicensed persons. This argument is accepted by the dissent.  In my view, it rests on an overly broad view of the objective of the driver's licence photo requirement as being to eliminate all identity theft in the province. Casting the government objective in these broad terms, my colleague Abella J. argues that the risk posed by a few religious dissenters is minimal, when compared to the general risk posed by unlicensed persons. But with respect, that is the wrong comparison. We must take the government's goal as it is. It is not the broad goal of eliminating all identity theft, but the more modest goal of maintaining the integrity of driver's licensing system so as to minimize identity theft associated with that system. The question is whether, within that system, any exemptions, including for religious reasons, pose real risk to the integrity of the licensing system.

 

 

 

 

 

[64]                          The implication of  Justice Abella's reasoning is that because the province tolerates the identity theft risk posed by unlicensed Albertans, it must therefore tolerate the risk associated with non-photographed licensees. On this logic, the province would be required to take the more radical approach of requiring photographic identification for every Albertan, which would directly contravene the respondents' religious beliefs, before it could rely upon a security risk argument in the context of the narrower driver's licensing program. In my opinion, the province has a legitimate interest in ensuring the integrity of its driver's licensing system and guarding against the risk that it will be used to perpetrate fraud. In order to accomplish this goal, it should not be forced to undertake broader measures that it might have resisted for other policy reasons.  

 

 

 

[65]                          The courts below approached minimum impairment in a different fashion.  First, they conducted the balancing inquiry at the stage of minimal impairment. Second, drawing on this Court's decision in Multani, the courts below applied a reasonable accommodation analysis instead of the Oakes test. 

 

 

 

[66]                          In my view, a distinction must be maintained between the reasonable accommodation analysis undertaken when applying human rights laws, and the s. 1 justification analysis that applies to a claim that a law infringes the Charter.  Where the validity of a law is at stake, the appropriate approach is a s. 1 Oakes analysis.  Under this analysis, the issue at the stage of minimum impairment is whether the goal of the measure could be accomplished in a less infringing manner.  The balancing of effects takes place at the third and final stage of the proportionality test.  If the government establishes justification under the Oakes test, the law is constitutional.  If not, the law is null and void under s. 52 insofar as it is inconsistent with the Charter.

 

 

 

 

 

[67]                          A different analysis applies where a government action or administrative practice is alleged to violate the claimant's Charter rights. If a Charter violation is found, the court's remedial jurisdiction lies not under s. 52 of the Constitution Act, 1982 but under s. 24 (1) of the Charter:  R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61. In such cases, the jurisprudence on the duty to accommodate, which applies to governments and private parties alike, may be helpful  "to explain the burden resulting from the minimal impairment test with respect to a particular individual"(emphasis added): Multani, at para. 53, per Charron J.

 

 

 

[68]                          Minimal impairment and reasonable accommodation are conceptually distinct. Reasonable accommodation is a concept drawn from human rights statutes and jurisprudence. It envisions a dynamic process whereby the parties — most commonly an employer and employee — adjust the terms of their relationship in conformity with the requirements of human rights  legislation, up to the point at which accommodation would mean undue hardship for the accommodating party. In Multani, Deschamps and Abella JJ. explained:

 

 

 

The process required by the duty of reasonable accommodation takes into account the specific details of the circumstances of the parties and allows for dialogue between them.  This dialogue enables them to reconcile their positions and find common ground tailored to their own needs. [para. 131]

 

 

 

 

 

[69]                          A very different kind of relationship exists between a legislature and the people subject to its laws. By their very nature, laws of general application are not tailored to the unique needs of individual claimants. The legislature has no capacity or legal obligation to engage in such an individualized determination, and in many cases would have no advance notice of a law's potential to infringe Charter rights.  It cannot be expected to tailor a law to every possible future contingency, or every sincerely held religious belief.  Laws of general application affect the general public, not just the  claimants before the court.  The broader societal context in which the law operates must inform the s. 1 justification analysis.  A law's constitutionality under s. 1 of the Charter is determined, not by whether it is responsive to the unique needs of every individual claimant, but rather by whether its infringement of Charter rights is directed at an important objective and is proportionate in its overall impact. While the law's impact on the individual claimants is undoubtedly a significant factor for the court to consider in determining whether the infringement is justified, the court's ultimate perspective is societal. The question the court must answer is whether the Charter infringement is justifiable in a free and democratic society, not whether a more advantageous arrangement for a particular claimant could be envisioned.

 

 

 

[70]                          Similarly, "undue hardship", a pivotal concept in reasonable accommodation,  is not easily applicable to a legislature enacting laws. In the human rights context, hardship is seen as undue if it would threaten the viability of the enterprise which is being asked to accommodate the right. The degree of hardship is often capable of expression in monetary terms. By contrast, it is difficult to apply the concept of undue hardship to the cost of achieving or not achieving a legislative objective, especially when the objective is (as here) preventative or precautionary. Though it is possible to interpret "undue hardship" broadly as encompassing the hardship that comes with failing to achieve a pressing government objective, this attenuates the concept. Rather than strain to adapt "undue hardship" to the context of s. 1 of the Charter, it is better to speak in terms of minimal impairment and proportionality of effects.

 

 

 

 

 

[71]                          In summary, where the validity of a law of general application is at stake, reasonable accommodation is not an appropriate substitute for a proper s. 1 analysis based on the methodology of Oakes. Where the government has passed a measure into law, the provisions of s. 1 apply.  The government is entitled to justify the law, not by showing that it has accommodated the claimant, but by establishing that the measure is rationally connected to a pressing and substantial goal, minimally impairing of the right and proportionate in its effects.