... there are religious doubts over the abilities of women...

Iran clerics object to women ministers

Agence France-Presse
Saturday, Aug 22, 2009

TEHRAN -- Iran's conservative clerics have objected to President Mahmoud Ahmadinejad's decision to include three women in his new cabinet, a report said on Saturday, dealing a blow to the hardliner's bid to secure parliament's nod for his ministerial line-up.

Ahmadinejad named Sousan Keshvaraz, Marzieh Vahid Dastjerdi and Fatemeh Ajorlou as his ministers respectively of education, health, and welfare and social security in his 21-member cabinet.

"Although it is a new idea to choose women as ministers, there are religious doubts over the abilities of women when it comes to management. This should be considered by the government," Mohammad Taghi Rahbar, the head of the clerics' faction in the 290-member conservative-dominated Iranian parliament was quoted as saying by the conservative daily Tehran Emrouz.

He said the faction will seek the opinion of the country's supreme leader Ayatollah Ali Khamenei on the issue.

Ahmadinejad's proposed cabinet, which boasts 11 new names including the three women, will face a vote of confidence on August 30.

Rahbar said leading Iranian clerics such as Grand Ayatollah Nasser Makarem Shirazi and Grand Ayatollah Lotfollah Safi Golpayghani too wanted Ahmadinejad to reconsider his decision regarding the three women.

...
Since the 1979 Islamic revolution, women have been banned from becoming judges and suffer from legal inequalities with men in marriage, divorce and inheritance.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Polar bear diet

In general polar bears naturally eat meat -- they tend to eat vegetation (including kelp) and berries only when there is no other food. However, when given plenty to eat and an option, it is common for polar bears to eat vegetables and fruit. In earlier posts I have noted how Flocke seems to prefer vegetables, fruit and cheese to meat. Here Larissa eats lettuce have carefully washed the leaves first.

Prokofiev receiving the Order of the Red Banner of Labor from Mikhail Kalinin, Moscow 1943

"Art is not blameless. Art can inflict harm. The Taliban know that. It's about time we learned"

Richard Taruskin

Death penalty


Some comments on the blog reference this story.

On one level it does seem odd that we will not extradite unless we get assurances regarding the death penalty while refusing to argue against the death penalty for Canadians abroad.

I suppose it's the difference between an act of commission -- sending someone to their death -- and omission -- ignoring them in their plight (albeit self caused).

Perhaps more pragmatically, the Courts have ruled in extradition matters and not in foreign death penalty cases.


Manhunt continues for Calgary man

UPDATE: It's possible Jenkins made a run for the border to avoid the prospect of california's death penalty.

Local defence lawyer Mark Jette says a previous Supreme Court of Canada decision prevents the Federal Government from extraditing Canadian citizens to the United States in cases where they could face capital punishment. "The minister of justice would have to seek assurances from the prosecuting forces in California that if convicted they would not seek the death penalty, and if the American's agreed with that then they would be bound by it, so they would take Jenkins to prosecute him on that condition."

Jette was speaking on sister station in Vancouver.

Ryan Jenkins, who is still believed to be on the run anywhere between Vancouver and Calgary, faces a maximum sentence of 25 years to life in state prison if convicted.

Without the threat of a death penalty, Canada will probably not block any extradition request to return Jenkins to California to stand trial.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Another tornado shot

Good for the Premier and the Mayor -- they did the right thing visiting and organzing relief work.

Carrots

Tornado north of Toronto -- close to a friend's house!!!

Pre-Action discovery

Discovery prior to an action is rarely allowed in Ontario.  That said, Norwich orders for such discovery can be obtained in rare circumstances.  Today's Court of Appeal decision in GEA Group AG v. Ventra Group Co., 2009 ONCA 619 outlines when those orders can be obtained:

 

 

(1)              Norwich Relief

[40]          I begin with consideration of the origins and nature of Norwich relief and the test for the granting of such relief in Ontario. 

[41]          The remedy of pre-action discovery derives from the ancient bill of discovery in equity.  Contemporary consideration of this type of equitable relief began with the 1974 decision of the House of Lords in Norwich Pharmacal, a case of suspected patent infringement.  Norwich Pharmacal holds that, in certain circumstances, an action for discovery may be allowed against an "involved" third party who has information that the claimant alleges would allow it to identify a wrongdoer, so as to enable the claimant to bring an action against the wrongdoer where the claimant would otherwise not be able to do so.  In a passage frequently quoted in subsequent authorities, Lord Reid described the basic principle at p. 175:

[I]f through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers.  I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did.  It may be that if this causes him expense the person seeking the information ought to reimburse him.  But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.

[42]          In his concurring speech in Norwich Pharmacal at p. 199, Lord Cross of Chelsea rejected the suggestion that the recognition of an action for discovery to permit disclosure of the names and addresses of alleged wrongdoers would open the door to meritless "fishing requests" by prospective plaintiffs who sought to collect evidence or information from persons who had no relevant connection with the person to be sued or the events at issue.  In so doing, he also identified the following factors as relevant to the determination of whether pre-action discovery of a third party should be allowed in the exercise of the court's discretion:

(i)     the strength of the applicant's case against the unknown alleged wrongdoer;

(ii)  the relationship between the alleged wrongdoer and the respondent (the person from whom discovery is sought);

(iii)  whether the information could be obtained from another source; and

(iv)    whether the provision of the information "would put the respondent to trouble which could not be compensated by the payment of all expenses by the applicant".

See also, to substantially the same effect, the speech of Lord Kilbrandon in Norwich Pharmacal, at p. 205. 

[43]          In Norwich Pharmacal, pre-action discovery was sought for a narrow purpose – to identify suspected wrongdoers where it was known that a wrong had occurred, in order to permit the injured parties to sue for redress.  To achieve this focused objective, discovery was allowed against an "innocent" third party against whom the appellants had no direct cause of action.

[44]          However, following Norwich Pharmacal, the reach of the equitable action for discovery in England was significantly expanded.  In subsequent cases, pre-action discovery was granted where a cause of action against the respondent from whom discovery was sought was asserted on the basis of the respondent's own alleged wrongdoing (see British Steel Corpn. v. Granada Television Ltd., [1981] A.C. 1096 (H.L.)), as well as where the object of the relief was to permit the tracing and freezing of assets (see Bankers Trust Co. v. Shapira, [1980] 3 All E.R. 353 (C.A.); A. v. C., [1980] 2 All E.R. 347 (Q.B.)).  In addition, in P. v. T., [1997] 4 All E.R. 200 (Ch D), Norwich relief was granted to permit an applicant to determine if, in fact, he had a cause of action against a suspected wrongdoer. 

[45]          Moreover, in Ashworth Hospital Authority v. MGN Ltd., [2002] 4 All E.R. 193 (H.L.), it was held at para. 44 that the " Norwich jurisdiction" was not linked "to any requirement that the information should be available to the individual who had been wronged only for the purpose of enabling him to vindicate that wrong by bringing proceedings".  In other words, the court in Ashworth accepted that a Norwich order could be obtained in the absence of a settled intention to sue the alleged wrongdoer or the person from whom discovery is sought.  See also Norwich Pharmacal, at p. 175, per Lord Reid.  The rationale for this expansive approach to Norwich relief was explained by Lord Woolf C.J. in Ashworth at para. 57:

New situations are inevitably going to arise where it will be appropriate for the jurisdiction to be exercised where it has not been exercised previously.  The limits which applied to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy.

[46]          The availability of pre-action discovery has also been codified in the applicable rules of court in England .  For example, Rule 31.16 of the Civil Procedure Rules 1998 (U.K.), SI 1998 No. 3132 (L. 17), provides that a court may order disclosure against a respondent who is "likely to be a party to subsequent proceedings" under certain circumstances in order to: "(i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs".    Further, under Rule 31.17, an order for disclosure by a person who is not a party to proceedings may be made by a court where: "(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs".  Finally, Rule 31.18 provides that Rules 31.16 and 31.17 "do not limit any other power which the court may have to order – (a) disclosure before proceedings have started; and (b) disclosure against a person who is not a party to proceedings".

[47]          In contrast, as in most provinces in Canada , the Ontario Rules of Civil Procedure make no provision for equitable relief in the nature of a Norwich order.^[1]  Moreover, Norwich orders have been considered in only a limited number of cases in Canada to date.

[48]          In Glaxo Wellcome plc v. Minister of National Revenue, [1998] 4 F.C. 439 (C.A.), leave to appeal refused [1998] S.C.C.A. No. 422, on facts similar to those in Norwich Pharmacal, a pharmaceutical patent holder applied to the Minister of National Revenue under the Customs Act, R.S.C. 1985, c. 1, (2nd Supp.) for disclosure of the names of various drug importers who were said to have infringed the applicant's intellectual property rights.  As in Norwich Pharmacal, disclosure of the requested information was denied on the ground of confidentiality.  The drug company then applied to the Federal Court of Canada for judicial review of that denial and for an order permitting it to examine the Minister on discovery to obtain the importers' identities.  Both applications were dismissed.  On appeal to the Federal Court of Appeal, the appeal from the dismissal of the judicial review application was dismissed but the appeal from the dismissal of the application for an equitable bill of discovery was allowed.

[49]          Following a detailed review of the decision in Norwich Pharmacal, Stone J.A. held at p. 461 that there are two threshold requirements for obtaining the discretionary remedy of an equitable bill of discovery: (i) the applicant must have a bona fide claim against the alleged wrongdoers; and (ii) the applicant must share some sort of relationship with the respondents.  Justice Stone explained that the first requirement is intended to ensure "that actions for a bill of discovery are not brought frivolously or without any justification", while the second requirement reflects the principle that "a bill of discovery may not be issued against a mere witness or disinterested bystander to the alleged misconduct".  Justice Stone then identified two additional requirements for granting a bill of discovery: (iii) the person from whom discovery is sought must be the only practicable source of information available to the applicant; and (iv) the public interests both in favour and against disclosure must be taken into account.

[50]          A similar approach to Norwich orders has been adopted in Alberta.  In Alberta (Treasury Branches) v. Leahy (2000), 270 A.R. 1 (Q.B.), aff'd (2002), 303 A.R. 63 (C.A.), leave to appeal refused [2002] S.C.C.A. No. 235, after an extensive review of the relevant authorities in England and Canada, Mason J. described the variety of situations in which Norwich relief has been granted by the courts (at para. 106):

(i)                where the information sought is necessary to identify wrongdoers;

(ii)              to find and preserve evidence that may substantiate or support an action against either known or unknown wrongdoers, or even determine whether an action exists; and

(iii)           to trace and preserve assets.

[51]          Justice Mason then offered the following formulation of the test for a Norwich order (at para. 106):

The court will consider the following factors on an application for Norwich relief:

(i)                Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;

(ii)              Whether the applicant has established a relationship with the third party from whom the information is sought such that it establishes that the third party is somehow involved in the acts complained of;

(iii)           Whether the third party is the only practicable source of the information available;

(iv)             Whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure, some [authorities] refer to the associated expenses of complying with the orders, while others speak of damages; and

(v)               Whether the interests of justice favour the obtaining of the disclosure.

[52]          In Ontario, this court has held that the equitable action for discovery lies in this jurisdiction and that it co-exists with the Rules of Civil Procedure: Straka v. Humber River Regional Hospital (2000), 51 O.R. (3d) 1, at paras. 27 and 32.  In Straka, Morden A.C.J.O. observed at para. 36: "The real question with respect to an action for discovery is: in what circumstances does it properly lie?  We are concerned with an equitable remedy and, accordingly, the exercise of a discretion is involved."  Justice Morden went on to accept Stone J.A.'s analysis in Glaxo of the prerequisites to the obtaining of an order for pre-action discovery.^[2] 

[53]          The holding in Straka that the equitable remedy of a bill of discovery is preserved in Ontario law and that it operates in concert with the Rules of Civil Procedure was reaffirmed by this court in Meuwissen (Litigation Guardian of) v. Strathroy Middlesex General Hospital (2006), 40 C.P.C. (6th) 6, at paras. 3-4 and 9.  The remedy was also recently considered in Isofoton S.A. v. Toronto Dominion Bank (2007), 85 O.R. (3d) 780 (Sup. Ct.), in which the court expressly adopted the Leahy test for the granting of Norwich relief.

[54]          Thus, many of the general principles applicable in Ontario to the granting of Norwich relief are well developed.  That said, the following observation by Morden A.C.J.O. in Straka at para. 51 remains apposite: "[t]he nature and scope of the Norwich Pharmacal principle is far from settled."

 

Press Release – Thornhill Federal Liberal Riding Association

“The Thornhill Federal Liberal Riding Association offers our thoughts and prayers to all those who suffered injury as a result of last night’s dramatic weather. We are encouraged that municipal, provincial and federal officials have acted quickly to do whatever can be done to assist. Clearly this is not a time for partisanship and we must work together to repair to damage to the local community.


James Morton
President
Thornhill Federal Liberal Riding Association”

For Immediate Release
August 21, 2009

Statement from Liberal Leader Michael Ignatieff on the devastation caused by tornadoes in central Ontario

I am concerned by the widespread devastation caused by the series of violent tornadoes that swept through central Ontario yesterday, and I was saddened to learn of the death of a child as a result of the storm.

Today the work begins to recover from the damage caused in the town of Durham and the city of Vaughan, where states of emergency have been declared. Some families have completely lost their homes, and it will be some time before lives can be restored to normal. We call on the federal government to provide the financial assistance and additional supports needed to help re-build these communities.

On behalf of the Liberal Party of Canada and our Parliamentary caucus, my thoughts and best wishes go out to all residents affected by this tragedy, and I offer my heartfelt condolences to the family and friends of the young boy who died.

Pirate bear

Cross-Examination

Cross-Examination

Introduction

Cross-examination is arguably the most difficult and the most important part of a trial. Examination in chief, while critical, is basically just having witnesses tell their story and seldom poses difficulty.

A critical point to emphasize about cross-examination is that it does not consist of examining crossly! Great care must be taken to help your case and being abrasive seldom, if ever, achieves anything. Firm and determined examination is the way to go but never a hint of emotion should show, certainly not a hint of anger.

Legal Matters

Cross-examination is not required except in a very limited set of circumstances.

This is worth remembering because sometimes the best cross-examination is no examination at all. If there is nothing you can get from a witness then it is most prudent not to ask no questions.

Writing in the criminal context, Earl Levy, Q.C., put the difficulty well, writing:[i]

There is nothing sadder than seeing the cross-examiner use an aimless and scattergun attack on the prosecution witnesses hoping that something fruitful will occur for the defence. The almost inevitable result will be that the prosecution’s case is made stronger by this Russian roulette approach as the cross-examiner fills in gaps in the Crown’s case or, because he foolishly repeats the same questions as those asked in-chief, the witness repeats the same damaging answers. Worse, it may distract attention from the genuinely strong parts of the defence case.

In Canada there is no limit on the scope of cross-examination – any relevant question may be put to any witness.[ii] That said, generally speaking, unless cross-examination has a clear and unambiguous purpose it is better not to conduct cross-examination. No cross-examination is far more helpful than a bad cross-examination. The only exception to the principle that cross-examination ought to be avoided if it serves no immediate purpose is the Rule in Browne v Dunn[iii]. The Rule is well set out in the Dyck[iv] decision:

As a rule a party should put to each of his opponent’s witnesses in turn so much of his own ease as concerns that particular witness, or in which he had a share, e.g., if the witness has deposed to a conversation, the opposing should indicate how much he accepts of such version, or suggest to the witness a different one.
In effect, unless counsel cross-examines a witness on a topic the counsel you may be deemed to accept that witness’s story. The rule is not absolute[v] but should be followed unless there is some very good reason to ignore it. This sometimes leads to bizarre examinations beginning as follows:
Now, witness, I am going to ask you a series of questions that we all know how you will answer, but I am obliged to put these questions to you in fairness and so as to comply with the rule in Browne v Dunn.”
The witness is put questions which are always leading and usually denied[vi]. No matter how unnecessary this may seem, omit to do it and counsel may be barred from putting their case at all if it is based on a denial of testimony counsel have been deemed to accept. As the Ontario Court of Appeal noted:[vii]

... a party wishing to impeach the credibility of a witness must ordinarily put the contradictory material to the witness in order to give the witness an opportunity to explain it.
Even if there was no Rule from Browne v Dunn good advocacy would suggest the confrontation of a witness with a damaging statement or contradiction is far more effective than the mere adduction of evidence inconsistent with that of the witness whose evidence is to be discredited.

Cross-examination must be focused and the questions must be clear. An unclear question is improper and can even lead to a retrial. Ambiguities must be avoided[viii]. Cross-examination as to character of the accused is improper unless the accused has raised their own character – that said, cross-examination on prior convictions (not charges) is proper going to credibility.

Cross-examination of an opposite party’s witnesses is a matter of right – but what about co-defendants? Can one defendant cross-examine the witnesses of another defendant? The question is not without difficulty, but the better view is that where the defendants are taking adverse positions cross-examination is to be allowed. Adversity was described in Menzies thusly:[ix]

An actual issue in tangible form spread upon the record is not essential, so long as there is manifest adverse interest in one defendant against another defendant. “Adverse interest” is a flexible term, meaning pecuniary interest, or any other substantial interest in the subject-matter of litigation.
Of course, even if cross-examination is not proper, examination in chief (by non-leading questions) must be allowed.[x] A right to examine witnesses (whether in chief or by cross) is a fundamental part of a fair trial.[xi]

Practice Tips

An even and steady tempo for cross-examination makes good sense. This author writes out, in full, all the questions he expects to ask. That said, of course the questions to be asked must be altered to meet the evidence arising from examination in chief – and drafting such questions “on the fly” can be difficult.

The principle that you must never ask a question to which you do not know the answer is not quite accurate – a better position is not to ask a question the answer to which can hurt your case. Moreover, asking questions that merely repeat the evidence in chief is unhelpful – short, focused and to the point questions are best.

Witness preparation is quite proper. While you must never coach the witness to tell a falsehood, it is proper to prepare your witness, in major cases anyway, on how to truthfully answer difficult questions in cross-examination. Most people go to Court very seldom and will be confused and awkward unless they are given some explanation of what to expect. Louis Nizer, the leading American counsel, writes:[xii]

The law permits you – it does more than permit you, it makes it your duty – to examine your witness carefully in advance to refresh his recollection as to dates and details by exhibiting documents to him which establish these matters; to acquaint him with the sequence of questions so that the truth may be established in orderly fashion and without confusion which may through doubt on it. It is the only way, in fact, in which you can present the truth. For truth never walks into a court room. It never flies in through the window. It must be dragged in by you....
The best preparation is to think about what questions you would ask if you were cross-examining and then to put those to the witness. Then listen and see if there is a way for the witness to answer in a clearer and more direct way. Remember, it is essential never to have the witness deviate from the truth – rather, the witness must tell the truth but in a way that is as clear and convincing as possible.


[i] Examination of Witnesses in Criminal Cases (Toronto, 1991), 145
[ii] This is not the case in some of the United States where cross-examination is limited to issues raised during examination in chief.
[iii] (1893), 6 R. 67 (H.L.)
[iv] (1970), 2 CCC 283 (B.C.C.A.), citing with approved, Phipson on Evidence
[v] R. v Verney (1993), 87 C.C.C. (3d) 363
[vi] Occasionally witnesses will not respond as expected and will admit the facts put.
[vii] O’Brien v Shantz (1999), 167 D.L.R. (4th) 132, 136
[viii] R. v. M.F., 2009 ONCA 617
[ix] Menzies v McLeod (1915), 34 O.L.R. 572, cited with approval in Aviaco v Boeing (2000), 2 C.P.C. (5th) 48 (Ont. S.C.)
[x] Whiton v Pilot (1996), 132 D.L.R. (4th) 568 (O.G.D.)
[xi] Marchand v Public General (2000), 51O.R. (3d) 97
[xii] “The Art of the Jury Trial” (1946), 32 Cornell L. Q. 59, 66

Panda and donut

http://blogs.sandiegozoo.org/blog/2009/08/19/gifts-that-keep-on-giving/#more-5342

New Ekos Poll:

Liberals: 30.2
CPC: 32.8
NDP: 17.3
Green: 11
Bloc: 8.7

Forbidden questions

Today's Court of Appeal decision in R. v. M.F., 2009 ONCA 617 deals with the issue of ambiguous questions of marginal relevance. Such questions may lead to an unfair trial, especially if the answers are relied on by the judge, and so ought to be avoided.

In this case the question related to whether the accused thought his nieces (whom he was alleged to have assaulted) were pretty. The Court writes:

18] In relation to the charges relating to JC, the trial judge said:

Why have I come to this conclusion? On the R. v. W. (D.) analysis, I neither believe the accused, nor does his evidence raise reasonable doubt. The accused was evasive to questions in respect to watching pornography and whether JC was attractive. Therefore, I find that he is not being forthright with the court. He is not credible.

[19] There are at least two problems with the line of questions relating to whether the appellant found his nieces to be attractive. Because of these problems, the questions were unfair to the appellant and the trial judge should not have relied upon the appellant's difficulty in answering these questions in assessing his credibility.

[20] First, the questions are ambiguous. It is unclear from the questions whether the Crown was using the term "attractive" to mean 'pretty' or 'sexually attractive'. In the context of a trial involving allegations of sexual misconduct, such ambiguity is extremely unfair to an accused person.

[21] Because of their inherent ambiguity, from an accused person's perspective, there can be no right answer to such questions. An accused person who thinks his or her nieces are pretty could properly harbour concerns that an affirmative answer would be taken as an acknowledgment of sexual attraction and could lead to an inference that he or she was more likely to have committed the crime charged. Although such an inference would be improper in many if not most circumstances, an accused person would have no way of knowing whether it might be drawn because of the ambiguity of the question.

[22] Further, the same accused person could equally have concerns that a negative answer could be viewed as patently false. As the question could properly be taken as meaning pretty, a negative answer might be viewed as an obvious lie and as an attempt to avoid responsibility.

[23] By the same token, an accused person who does not think his or her nieces are pretty, could find it difficult, if not impossible, to publicly acknowledge that view. Finally, it would be apparent to many accused that any request for clarification of this type question could be viewed as evasiveness, as happened here.

[24] Second, whatever their meaning, the questions are essentially irrelevant. On one reading of the line of questions, they were directed at determining whether the appellant considered his nieces to be pretty. Such a line of questioning would appear to be premised on a stereotypical assumption that only pretty females are sexually assaulted. There is no empirical support for such an assumption and questions about whether the appellant considered his nieces pretty were therefore wholly irrelevant to the issues at the trial.

[25] On another reading of this line of questions, they were directed at determining if the appellant found his nieces sexually attractive. Except perhaps in circumstances where a particular crime involves sexually deviant behaviour, e.g. paedophilia, the fact that one person finds another sexually attractive, does not make it more likely that the first person sexually assaulted the second person. Even if such questions might be viewed as being marginally relevant, the risk of attributing undue weight to a positive answer should, in most circumstances, mandate their exclusion. In R. v. Moose (2004), 190 C.C.C. (3d) 521, at paras. 22-23, the Manitoba Court of Appeal said this about a similar line of questioning:

[T]he trial judge was in error in relying upon the accused's evasive answers to improper questions as the basis for rejecting his testimony. Assuming a positive answer, where does the question and answer lead? It does not follow that when a man finds a woman attractive, a sexual assault is likely to occur.

In my view, the questions and answers were indeed irrelevant for they do not tend to prove the issue before the court. Even if, on a broad interpretation of the inclusionary principle, it could be argued that the questions and answers constitute relevant evidence, it should be excluded because of its tenuous value and because it is unfairly prejudicial to the accused. See E. G. Ewaschuk, Criminal Pleadings & Practice in Canada , loose-leaf, 2d ed. ( Aurora: Canada Law Book Inc., 2004) vol. 1 at para. 16:12010.

[26] In this case, AMS was between five and ten years old at the time the alleged misconduct occurred. Had the questions to the appellant being directed at determining whether he found her sexually attractive at those ages when the misconduct allegedly occurred, they may have been relevant. However, framed as referring to whether the appellant found any of his nieces attractive at the time of trial, the questions were improper and the trial judge erred in relying on the appellant's answers to them as a basis for rejecting his evidence.

Lockerbie bomber freed

Your view on this must be driven by your view on why people are sent to prison.

If it's purely to stop that person from committing further offences then release here is reasonable enough. Clearly no more danger of direct action exists.

But if you believe that prison also acts to deter others and to show community consensus as to wrongful acts and crimes then the release here doesn't make sense.

Of course, since Libya has been brought back to the world of acceptable states it does seem odd to punish the servant who acted while being friendly to the master -- but that's another issue.

I see prison as being overused and badly structured. But this is one case where I cannot see how it is sensible to release just because of advanced illness. There's no suggestion treatment is limited in prison (that would be a reason for release) and the fact the convict faces death soon, well, sooner or later that's true for everyone.

I think I'd have kept him in.

Lockerbie bomber freed

August 20, 2009

Ben McConville      

THE ASSOCIATED PRESS     

 

EDINBURGH, Scotland – Scotland freed the terminally ill Lockerbie bomber on compassionate grounds Thursday, allowing him to go home to Libya to die and rejecting American pleas for justice in the 1988 attack that killed 270 people.

As the White House declared it "deeply regrets" the Scottish decision and U.S. family members of Lockerbie victims expressed outrage, Abdel Baset al-Megrahi left Greenock Prison and flew out of Glasgow Airport on a Libyan Airbus plane.

"I think it's appalling, disgusting and so sickening I can hardly find words to describe it," said Susan Cohen of Cape May Court House, New Jersey, whose 20-year-old daughter, Theodora, died in the attack. "This isn't about compassionate release. This is part of give-Gadhafi-what-he-wants-so-we-can-have-the-oil."

Al-Megrahi, who had served only eight years of his life sentence, was recently given only months to live after being diagnosed with advanced prostate cancer.

Scottish Justice Secretary Kenny MacAskill said although al-Megrahi had not shown compassion to his victims – many of whom were American college students flying home to New York for Christmas – MacAskill was motivated by Scottish values to show mercy.

"Some hurts can never heal, some scars can never fade," MacAskill said. "Those who have been bereaved cannot be expected to forget, let alone forgive ... However, Mr. al-Megrahi now faces a sentence imposed by a higher power."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

A bearish submarine surfacing!

Google must disclose name of blogger -- not a surprising result

This result is not surprising. If a newspaper publishes an defamatory article but withholds the author's name they will be ordered to disclose the name (and the newspaper will be liable for the defamation). Here that principle is just applied to Google.


Canadian model Liskula Cohen is used to the sometimes catty attitudes of the New York fashion world, but when one woman decided to dig her claws into her in an online blog, Cohen fought back.

CTV.ca News Staff


In August 2008, Cohen ran across a blog on Blogger.com, called "Skanks in NYC." The now defunct blog included five anonymous postings that read "I would have to say the first-place award for 'Skankiest in NYC' would have to go to Liskula Gentile Cohen."

The posts included pictures of 5-foot-10 blond Cohen and an unidentified man in sexually suggestive positions, with captions describing her as a "skanky ho'" and "a psychotic, lying, whoring skank."

Cohen, 37, a Canadian-born cover girl who has appeared in Vogue and other fashion magazines, was livid and demanded that Google, the owner of the blogging service, give her the poster's identity. When Google refused, Cohen took it to court -- and won.

On Tuesday, New York Supreme Court Judge Joan Madden agreed that Cohen was entitled to information about the blogger and ordered Google to turn it over.

Provincial by-election St Paul's

St. Paul's by-election is on


August 19, 2009

Tanya Talaga      
Toronto Star
Queen's Park Bureau     

 

The election in the key downtown riding of St. Paul's is now officially on.

The race to fill the seat vacated by former Liberal economic development minister Michael Bryant was announced late this afternoon by the premier's office.

Premier Dalton McGuinty told reporters in Peterborough today he was reluctant to call an election in the summer but he now feels he has given all parties sufficient time to get ready. Voting day is Sept. 17.

"As a matter of fairness I think we have given all the parties the opportunity now, adequate time to get a candidate ready," McGuinty said. He was in Peterborough to attend a provincial Cabinet meeting and announce the expansion of Highway 7 from two lanes to five from Drummond Line to Highway 28 east of Peterborough.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Provincial by-election to replace Michael Bryant, MPP

September 17

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

416 225 2777

Alleged Ponzi schemer Jones declared bankrupt

To be found a bankrupt a Court must find the debtor owes $1,000 or more and has committed an act of bankruptcy -- basically, failing to pay debts in the ordinary course. It is unusual for creditors to petition a debtor into bankruptcy -- usually you get more money outside of bankruptcy -- but here I assume they acted to try to grab hidden money, perhaps overseas.

Alleged Ponzi schemer Jones declared bankrupt


Alleged Montreal Ponzi schemer Earl Jones was declared personally bankrupt in a Quebec court Wednesday morning.

Jones, who is accused of bilking more than 100 investors out of as much as $50 million, appears to have few assets left to protect.

Documents show Jones owns three condominiums, including two in Quebec.

Bankruptcy lawyer Neil Stein said he will subpoena Jones, who was not present in court.

Jones' company, Earl Jones Consultant and Administration Corp., was declared bankrupt last month.

At a meeting Tuesday with investors at a suburban Montreal hotel, the company's interim receiver said Jones used $12.3 million from his company's account to support a lavish lifestyle, which included homes and cars.

In a report, accounting firm RSM Richter said Jones took payments worth about $4.3 million for himself and his wife, according to records dating back to 1987.

The report also shows Jones took:

$912,000 for real estate
$593,000 for his children's education
$530,000 for credit card payments
$497,000 in cash transfers to Bermuda
$170,000 for cars
It also appears that Jones cashed in his RRSPs, an insurance policy and other investments earlier this year.

Investors say they started getting suspicious about Jones' activities earlier this summer when cheques he issued began to bounce.

Women's rights in Afghanistan

Women may have, nay have, made vast strides to equality in some places but in other places things go the other way.

Afghan friends have told me about life in Kabul in the 1960's -- women wore whatever they wanted, girls went to scholl with boys and they sat together, there were dances etc -- it was far from true equality, especially out of the city, but it was light years ahead of today... .

Excerpted from The Guardian, see full text at:

http://www.guardian.co.uk/world/2009/aug/14/afghanistan-womens-rights-rape

Afghanistan passes 'barbaric' law diminishing women's rights


by Jon Boone, Kandahar, August 14, 2009

Afghanistan has quietly passed a law permitting Shia men to deny their wives food and sustenance if they refuse to obey their husbands' sexual demands, despite international outrage over an earlier version of the legislation which President Hamid Karzai had promised to review.

The new final draft of the legislation also grants guardianship of children exclusively to their fathers and grandfathers, and requires women to get permission from their husbands to work.

"It also effectively allows a rapist to avoid prosecution by paying 'blood money' to a girl who was injured when he raped her," the US charity Human Rights Watch said ( . . . )

Islamic law experts and human rights activists say that although the language of the original law has been changed, many of the provisions that alarmed women's rights groups remain, including this one: "Tamkeen is the readiness of the wife to submit to her husband's reasonable sexual enjoyment, and her prohibition from going out of the house, except in extreme circumstances, without her husband's permission. If any of the above provisions are not followed by the wife she is considered disobedient." The law has been backed by the hardline Shia cleric Ayatollah Mohseni, who is thought to have influence over the voting intentions of some of the country's Shias, which make up around 20% of the population. Karzai has assiduously courted such minority leaders in the run up to next Thursday's election, which is likely to be a close run thing, according to a poll released yesterday ( . . . )

Human Rights Watch, which has obtained a copy of the final law, called on all candidates to pledge to repeal the law, which it says contradicts Afghanistan's own constitution. The group said that Karzai had "made an unthinkable deal to sell Afghan women out in the support of fundamentalists in the August 20 election" ( . . . )

Lion of Justice

At Old City Hall Courthouse, Toronto

Polar bears are omnivores

But I was surprised to learn that Flocke prefers vegetarian food.

Shirley Greenberg

On July 1, Shirley Greenberg of Ottawa was awarded the Order of Canada, which is Canada's highest civilian award. Shirley has very generously contributed a great deal of her time and energy, as well large amounts of money, to many feminist and women's health projects throughout her life. Shirley is a co-founder of the Ottawa Women's Centre and of the National Association of Women and the Law (NAWL). Congratulations Shirley!!!

Attacking motives

A piece today suggests much of the opposition to Obama's health care reforms is based on racism. Another piece suggests support for bringing Khadr back to Canada is politically motivated. Others, yes including me, have previously questioned whether positions about Israel are motivated by malice.

The problem with going to motive is that it moves a debate to irrelevances. So, assume a critic of Obama's health plan is motivated by racial animus; does that affect the substance of the opposition? Suppose a critic of Israel is an anti-Semite; does that automatically mean that Israel is right? (And I am well aware I have fallen into the trap of so thinking).

Even a broken clock is right twice a day.

Motive goes (at most) to credibility -- so comments by a racist should be closely scrutinised -- but the underlying concerns may be valid.

Hamas and its fellow travellers may, from time to time, have a point; the KKK is occasionally correct. That doesn't mean we should ignore who is speaking but does mean we cannot dismiss a complaint because we loath the complainant -- merits, not persons, must determine our thinking.

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

416 225 2777

Boston

A lovely and historic city but gosh, I still hate business trips where you are flying and running and running and flying ... .

Appeal from acquittal by jury

Canada is fairly unusual in the common law world in permitting appeals from jury acquittals in criminal matters. A more common position is that an acquittal by a jury ends a matter.

That said, even though an appeal from an acquittal is possible it is difficult. The Court of Appeal today made that clear in R. v. Samuels, 2009 ONCA 614 saying:

1)     The Vezeau standard

[19]          Under s. 676(1)(a) of the Criminal Code, the Crown may appeal against a verdict of acquittal on a question of law alone.  However, even if a trial judge commits a legal error in instructing a jury, the Crown bears a heavy onus to overturn an acquittal.  Under the standard established by the Supreme Court of Canada in Vezeau v. The Queen (1977), 28 C.C.C. (2d) 81, at p. 87, "it was the duty of the Crown, in order to obtain a new trial, to satisfy the court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury". 

[20]          Later decisions of the Supreme Court of Canada on the Vezeau standard reflect the underlying proposition that a verdict of acquittal is not lightly to be overturned.  For example, in R. v. Morin, [1988] 2 S.C.R. 345, at p. 374, Sopinka J. for the majority emphasized that the Crown's onus is "a heavy one… [it] must satisfy the court with a reasonable degree of certainty".  And in its recent decision in R. v. Graveline (2006), 207 C.C.C. (3d) 481, at para. 14, Fish J. for the majority wrote that for an accused who has been acquitted to be sent back for a new trial, the Crown must "satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal". 
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Mildly amusing

But it's an easy mistake.

PMO Iqaluit gaffe draws smiles, frowns

Source: The Canadian Press
Aug 18, 2009 11:09

OTTAWA_ An unfortunate blunder by the Prime Minister's Office has residents of Nunavut alternately chuckling and cringing.

A news release sent out Monday outlined Prime Minister Stephen Harper's itinerary as he began a five-day tour of the North.

The release repeatedly spelled the capital of Nunavut as Iqualuit_ rather than Iqaluit.

The extra ``u'' makes a world of difference in the Inuktitut language.

Iqaluit, properly spelled, means ``many fish.''

Spelled with an extra ``u,'' the Nunavut language commissioner's office says the word translates as a derogatory reference to ``people with unwiped bums.''

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

416 225 2777

DNA Evidence Can Be Fabricated, Scientists Show

http://www.nytimes.com/2009/08/18/science/18dna.html 

New York Times 
August 18, 2009

By ANDREW POLLACK 

Scientists in Israel have demonstrated that it is possible to fabricate DNA evidence, undermining the credibility of what has been considered the gold standard of proof in criminal cases. The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva.

They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person. 

"You can just engineer a crime scene," said Dan Frumkin, lead author of the paper, which has been published online by the journal Forensic Science International: Genetics.

"Any biology undergraduate could perform this." Dr. Frumkin is a founder of Nucleix, a company based in Tel Aviv that has developed a test to distinguish real DNA samples from fake ones that it hopes to sell to forensics laboratories. 

The planting of fabricated DNA evidence at a crime scene is only one implication of the findings. A potential invasion of personal privacy is another. Using some of the same techniques, it may be possible to scavenge anyone's DNA from a discarded drinking cup or cigarette butt and turn it into a saliva sample that could be submitted to a genetic testing company that measures ancestry or the risk of getting various diseases.

Celebrities might have to fear "genetic paparazzi," said Gail H. Javitt of the Genetics and Public Policy Center at Johns Hopkins University. 

Tania Simoncelli, science adviser to the American Civil Liberties Union, said the findings were worrisome. "DNA is a lot easier to plant at a crime scene than fingerprints," she said. "We're creating a criminal justice system that is increasingly relying on this technology."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Drummer bear from Boston

The Bear and the Two Travelers

TWO MEN were traveling together, when a Bear suddenly met them on their path.

One of them climbed up quickly into a tree and concealed himself in the branches.

The other, seeing that he must be attacked, fell flat on the ground, and when the Bear came up and felt him with his snout, and smelt him all over, he held his breath, and feigned the appearance of death as much as he could.

The Bear soon left him, for it is said he will not touch a dead body.

When he was quite gone, the other Traveler descended from the tree, and jocularly inquired of his friend what it was the Bear had whispered in his ear.

"He gave me this advice," his companion replied. "Never travel with a friend who deserts you at the approach of danger."


Misfortune tests the sincerity of friends.

Stand up and be counted!!!

Unfair trials

Canadian trials are fair.  While the Courts are not above error, it is extraordinary for a trial to be unfair.  That said, today's Court of Appeal decision in R. v. T.T., 2009 ONCA 613 sets out the applicable principles that apply in such an unusual circumstance:

The Applicable Principles

 

[30]          Counsel agree on the applicable legal principles.

Different Standards of Scrutiny

[31]          The argument that a trial judge has applied a different level of scrutiny in assessing the evidence of the accused and the complainant, as Doherty J.A. noted in R  v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, "is a difficult argument to make successfully."  The unbalanced scrutiny must be clearly demonstrated in the reasons for judgment or the trial record.  Doherty J.A. continued, in the same paragraph:

It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment.  To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make[s] it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant. [Emphasis added.]

[32]          The question is whether that rigorous test has been met here. 

Misapprehension of Evidence

[33]          A misapprehension of the evidence warranting appellate interference requires more than a mere misstatement or inaccuracy in the trial judge's treatment of the evidence.  The trial judge must be "mistaken as to the substance of material parts of the evidence" and "those errors [must] play an essential part in the reasoning process resulting in a conviction": R v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541, per Doherty J.A., adopted in R v. Lohrer, [2004] 3 S.C.R. 732, per Binnie J. at paras. 1-2. In such circumstances, as Doherty J.A. observed, the accused has not received a fair trial and has been the victim of a miscarriage of justice; this is so even if the evidence at trial was capable of supporting a conviction: Morrissey, at p. 541.

[34]          The appellant contends that the criteria for setting aside his conviction on both "different standard of scrutiny" and "misapprehension of the evidence" grounds exist here.  He asserts that the trial judge failed to address important aspects of the evidence in making her overall assessment of the complainant's credibility.  He also asserts that she misapprehended the evidence she did consider in significant ways.  These two errors – alone and in combination – were central to the trial judge's reasoning process and key to the fairness of her decision because, as she herself observed, she had to consider whether she believed the complainant when conducting the third part of the W.(D.) analysis.  She asked herself:  "Was [the complainant] credible?  Was her evidence reliable?  Was there other evidence that supported the reliability of her evidence or was there other evidence that supported the accused, such as to raise a reasonable doubt in [the trial judge's] mind?" [Emphasis added.]   

[35]          As noted above, the appellant's arguments – different standards of scrutiny and misapprehension of the evidence – overlap and find common ground in the record at times as the trial judge's treatment of evidence now and then crossed the boundaries between the two.

…

 

 [73]          As Doherty J.A. noted in Morrissey, at p. 541, and the Supreme Court of Canada affirmed in Lohrer, at para. 1:

If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence, then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice.  This is so, even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[74]          The same rationale applies and the same result must flow, in my view, in those rare cases where – as here – "the appellant [can] point to something in the reasons of the trial judge or perhaps elsewhere in the record that make[s] it clear that the trial judge [has] applied different standards in assessing the evidence of the appellant and the complainant": Howe, at para. 59.  In such a case – even where the record may otherwise be capable of supporting a conviction, had the evidence been properly assessed and the complainant believed – the appellant has not received a fair trial and has thus been the victim of a miscarriage of justice.

 

 

Interesting refugee story

But how do the children even get to the border? There's something bogus here:

As many as four children a week are showing up without parents or loved ones at Niagara Falls border crossings to file refugee claims to stay in Canada, U.S. immigration workers say.

And some suspect unscrupulous consultants could be behind the scheme to send child refugees here for a hefty fee so that one day they can sponsor their parents.

The children are in the U.S. illegally or arrive there from other countries and head to the border, said Brian Brown-Cashdollar, executive director of Vive Inc., a Buffalo shelter that helped resettle almost 4,000 refugees in Canada last year.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Safe countries and immigration

The problem here is how do we define 'safe' countries?

And more, how do we explain to allies, say Turkey or South Africa, that they are not 'safe'.

Imagine the debate over where Israel is placed regardless of whether it is 'safe' or not?

This may be the way to go -- and the system must be reformed root and branch -- but maybe a better system has screening at port of entry, security hold until a rapid determination and removal on failure?

The trouble there is you are imprisoning legitimate refugees (even briefly) and you may send people back to their deaths if the summary process fails.

Ottawa seeks to fast-track refugee claims from 'safe' nations

Norma Greenaway, National Post

OTTAWA -- The Harper government is readying for Parliament a package of reforms that for the first time could have Canada fast-tracking refugee claimants from countries where citizens are generally thought to be safe from persecution.

Though the proposal has yet to get the final nod from cabinet, Martin Collacott, a former Canadian diplomat who specializes in immigration issues, says such a move is long overdue.

"We are the only country in the world that will consider a [claim] from someone coming from the United States, from the Philippines, from Thailand, from South Korea," said Collacott, a senior fellow at the Fraser Institute.

The proposal envisions senior immigration officers hearing the refugee claimants from safe countries more quickly, thereby easing the load on the Immigration and Refugee Board. There would still be an appeal option, but it would be more streamlined than at present and would not necessarily involve another hearing.

...
"Essentially, an unsuccessful claimant who is determined to game the system can stay in Canada for several years with a work permit and/or welfare benefits, and this fundamentally undermines the fairness of our immigration system," Immigration Minister Jason Kenney said.

The stepped-up talk of reform follows a months-long, carefully orchestrated campaign, led by Kenney, to focus attention on a refugee system that almost everyone agrees needs repair.
...
Refugee advocates and New Democrats strongly oppose the idea of fast-tracking claimants from safe countries. They say naming safe countries will provoke a political firestorm at home and abroad and that there are better ways to improve the system.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Sleepy summer day

THE CAT AND THE FOX

Once a Cat and a Fox were travelling together. As they went along, picking up provisions on the way — a stray mouse here, a fat chicken there — they began an argument to while away the time between bites. And, as usually happens when comrades argue, the talk began to get personal.



"You think you are extremely clever, don't you?" said the Fox. "Do you pretend to know more than I? Why, I know a whole sackful of tricks!"

"Well," retorted the Cat, "I admit I know one trick only, but that one, let me tell you, is worth a thousand of yours!"

Just then, close by, they heard a hunter's horn and the yelping of a pack of hounds. In an instant the Cat was up a tree, hiding among the leaves.

"This is my trick," he called to the Fox. "Now let me see what yours are worth."

But the Fox had so many plans for escape he could not decide which one to try first. He dodged here and there with the hounds at his heels. He doubled on his tracks, he ran at top speed, he entered a dozen burrows, — but all in vain. The hounds caught him, and soon put an end to the boaster and all his tricks.

Common sense is always worth more than cunning.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Khadr -- on to the Supreme Court?

It would be surprising if there was no attempt to seek leave to appeal to the Supreme Court. The Federal Court has ruled in a way that trenches directly on the foreign policy autonomy of the Federal Crown. It may well be that any Federal government (Liberal, NDP, Conservative) would appeal.

The best compromise might be for the Feds to say "we'll ask for Khadr, but not because we're ordered to, and we'll appeal anyway". That way the matter is ended but the legal issue remains alive. The appeal could then quietly be delayed a while and ultimately withdrawn as moot.

Will Harper do that? Perhaps not but consider this -- what if the SCC ordered a new (majority?) Conservative government to ask for Khadr and the government didn't? (Granted, we all know there will be a majority Liberal government by then but imagine).

What now? (And could one imagine the Conservatives saying the order is outside the Court's jurisdiction and ignoring it?).

Perhaps we are looking at a Constitutional crisis coming down the track?

Harper hints at appeal of Khadr ruling

Federal Court of Appeal upholds decision ordering Ottawa to seek Khadr's return from U.S. military prison

Bill Curry
Ottawa— From Saturday's Globe and Mail

Prime Minister Stephen Harper is hinting his government will fight on in court rather than comply with a second decision ordering his government to ask the Americans to release Omar Khadr from Guantanamo Bay.

Speaking with reporters, Mr. Harper said officials will be reviewing yesterday's 2-1 ruling from the Federal Court of Appeal before announcing the government's next move. However, he twice highlighted the fact that one of the judges sided with the Crown.

"I'm aware there is a decision that has been rendered. Apparently it is a split decision," Mr. Harper told reporters today in Chelsea, Que.

That comment leads one constitutional expert to predict the government's next move will be to seek leave to appeal to the Supreme Court of Canada.

"I think the federal government would be wanting to hang its hat on the dissent because it so clearly agrees with its position," says Michael Lynk, the associate dean of law at the University of Western Ontario. "The dissent, in my view, gives them enough hope that - whether or not they win at the Supreme Court - they certainly can wait another eight to 15 months."