Danny Boy

The cool weather (the summer's gone) put me in mind of "Danny Boy".

Frederick Weatherly wrote it in 1910. The song is widely considered an Irish anthem, although Weatherly was an Englishman and was living in America at the time he composed the lyrics.

Lyrics

Oh Danny boy, the pipes, the pipes are calling
From glen to glen, and down the mountain side
The summer's gone, and all the flowers falling
'Tis you, 'tis you must go and I must bide.
But come ye back when summer's in the meadow
Or when the valley's hushed and white with snow
'Tis I'll be here in sunshine or in shadow
Oh Danny boy, oh Danny boy, I love you so.

And when you come, and all the roses are dying
If I am dead, as dead I well may be
You'll come and find the place where I am lying
And kneel and say an "Ave" there for me.
And I shall hear, tho' soft you tread above me
And all my grave will warmer, sweeter be
For you will bend and tell me that you love me
And I shall sleep in peace until you come to me.


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

416 225 2777

Rogers Wireless continued

Faithful readers may recall I have a problem with one of my two cell phone numbers -- a fairly simple problem -- one number isn't forwarded as it's supposed to.

So last Monday -- after realising the problem -- I phoned Rogers.

Lengthy delays later (after a 1hr56m wait then being cut off) I spoke to a nice person who said the problem would be fixed directly.

I also sent emails to service which were supposedly to be replied to in under 24 hours.

Wednesday, when nothing was fixed, I called again and emailed and was told (after bouncing around a few people) it might take a few days (note it had been two days then).

Thursday late I get a call from the Office of the President saying they saw my blog posts (did you know Rogers was surfing the web reading posts? I was surprised my blog post got a faster response than my actual complaints). They said they were looking into things.

Friday I got a reply to my Monday email -- it asked for my birth date (they said it was necessary for them -- curious it isn't a part of the standard form).

Today's Saturday. Phone still isn't forwarded.


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

416 225 2777

Fritzl and Dugard

I had forgotten about the Fritzl case but it does have similarities to the Dugard case.

In both there were opportunities for discovery a rescue that were missed.

The truth is, the truth was so incredible that it makes sense nobody saw it.

From the Post:

Ms. Dugard's case bears similarities to other high-profile cases, including last September's case where Josef Fritzl was discovered holding his daughter captive in a windowless cellar for 24 years and forcing her to bear him seven children. Elisabeth Fritzl later said she always thought her father's threats were real, and desperately tried to make her life as normal as possible for her children.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Do not attempt too much at once

Re reading Æsop I was struck by how sensible the majority of the advice is.

I was also put in mind of parables from the Bible -- anyway one story in particular struck a chord with me.


THE BOY AND THE FILBERTS

A Boy was given permission to put his hand into a pitcher to get some filberts. But he took such a great fistful that he could not draw his hand out again. There he stood, unwilling to give up a single filbert and yet unable to get them all out at once. Vexed and disappointed he began to cry.

"My boy," said his mother, "be satisfied with half the nuts you have taken and you will easily get your hand out. Then perhaps you may have some more filberts some other time."

Do not attempt too much at once.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Another poll

The polls seem to be all over the place. That said, it does seem clear that we do not have a commanding lead moving into the Fall. That doesn't mean an election is a bad idea but it does mean we should move cautiously.

Tories lead Liberals by 4 points: Poll

August 28, 2009

Richard J. Brennan      
OTTAWA BUREAU     

OTTAWA – Over the summer Canadians warmed up to Prime Minister Stephen Harper and his Conservative party, according to the latest Toronto Star/Angus Reid poll.

However, regional disparities continue to be story as the Conservatives struggle to get anywhere near majority territory of about 40 per cent.

The survey conducted Aug. 25 and 26, shows that 34 per cent of decided voters — up 1 percentage point from July — would vote for the Conservatives compared to 30 per cent for the Liberals, down 4 percentage points since July.

The NDP is third with 18 per cent, up 2 percentage points, followed by the Greens with nine per cent or up 2 points and the Bloc Québécois with eight per cent or down 2 points. The Greens are leading the BQ for the first time this year.

The survey of 1,003 adult Canadians, conducted Aug. 25 and 26, has a margin of error of plus or minus 3.1 per cent 19 times out of 20.

The Conservatives continue to be clear favourites in Alberta with 62 per cent and both Manitoba and Saskatchewan with 51 per cent while they are holding onto 43 per cent support in British Columbia. However, the Conservatives in Quebec have virtually fallen off the radar with just 16 per cent support.

The survey shows the Liberals tied with the Bloc in Quebec at 33 per cent and hold a two-point lead over the Tories in Ontario, 37 per cent and 35 per cent respectively.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Climbing to freedom

Thanks to Mike for sending me this:

A bear was discovered stranded in a skateboarding park in the Colorado town of Snowmass. Park staff believe it stumbled in overnight and was unable to climb the steep sloping concrete wall. The bear climbed a ladder placed for escape. The bear wandered off, and no injuries to people or bear were reported.


http://www.pattayatoday.net/index.php?action=show&type=news&id=7113

Alibi Defence

Yesterday’s decision in R. v. Wright, 2009 ONCA 62 deals well with the disclosure of an alibi defence.  An accused has a constitutional right to remain silent throughout the criminal process prior to conviction.  There are, however, some qualifications on that right.  One arises where an accused chooses to advance an alibi defence.  An accused who advances an alibi defence must make timely disclosure of the substance of that defence to the prosecution or run the risk of an adverse inference being drawn by the trier of fact from the failure to make timely disclosure.  The Court writes:

 

[17]         The criminal process is both accusatorial and adversarial.  Respect for individual autonomy and privacy dictates that when the prosecution levels a criminal accusation, it must investigate and prove its case without any compelled assistance from the target of that accusation.  The constitutional right to silence, the constitutional protection against self-incrimination and the constitutionally protected presumption of innocence all reflect the fundamental importance of the principle protecting an accused from conscription to the cause of the prosecution.  An accused is constitutionally entitled to say “prove it” and nothing more in answer to a criminal charge.  For convenience, I will refer to this constellation of constitutional rights as the right to silence:  see R. v. Noble (1997), 114 C.C.C. (3d) 385 (S.C.C.); R. v. Cleghorn (1995), 100 C.C.C. (3d) 393 (S.C.C.), per Iacobucci J. at para. 4, per Major J. (dissenting on another point) at paras. 20-23; R. v. Chambers (1990), 59 C.C.C. (3d) 321 (S.C.C.), at p. 341.

[18]         There are qualifications on the accused’s right to silence.  One such qualification arises where an accused advances an alibi defence.  If the accused fails to make timely disclosure to the prosecution of the substance of the alibi (or fails to testify in support of the alibi), the trier of fact may, not must, draw an adverse inference against the defence from that failure:  R. v. Noble, at para. 111; R. v. Cleghorn; R. v. Crawford (1995), 96 C.C.C. (3d) 481 (S.C.C.), at pp. 494-95; R. v. Chambers, at p. 343; R. v. P. (M.B.) (1994), 89 C.C.C. (3d) 289 (S.C.C.), at pp. 304-05; R. v. Hill (1995), 102 C.C.C. (3d) 469 (Ont. C.A.), at pp. 476-77. 

[19]         The qualification on the right to silence that arises where alibi is raised is said to be a rule of “expediency” borne out of the nature of the alibi defence.  The word “alibi” means “elsewhere”.  Where an accused advances an alibi defence, he claims that as he was elsewhere he could not have committed the crime alleged.  The alibi defence moves the factual focus from the facts alleged by the Crown to an entirely different factual scenario.  But for the alibi defence, the factual scenario introduced by the alibi has no relevance to the Crown’s allegation.  In the normal course, the Crown would have no way of knowing that the facts introduced by the alibi claim had relevance to the charge.  As R.N. Gooderson put it in his text, Alibi (London: Heinemann Educational Books, 1977), at p. 30, cited with approval by Major J. in Cleghorn, at para. 22:

Alibi evidence, by its very nature, takes the focus right away from the area of the main facts, and gives a defence a fresh and untrammelled start.  It is easy to prepare perjured evidence to support it in advance.

[20]         The common law has responded to the risk of fabrication and the Crown’s inability to effectively challenge alibi defences revealed long after the relevant events occurred by permitting the trier of fact to draw an adverse inference against the veracity of those defences.  The constitutionality of this qualification on the right to silence has been accepted in this court and is not challenged on this appeal:  see R. v. Hill, at p. 477.^[1]  One cannot, however, lose sight of the fact that the adverse inference instruction is a qualification on constitutionally enshrined principles.  The qualification can be justified only where the rationale for that qualification actually operates.  Thus, if the alibi defence is disclosed in time to permit meaningful investigation of the defence, there can be no justification for the instruction:  see R. v. Hogan (1982), 2 C.C.C. (3d) 557 (Ont. C.A.), at p. 566; Cleghorn, at paras. 3-5.

 

 

Wilbär

Executive and judiciary distinct and roles ought not to be blurred

In general actions of a prosecutor, even if backing out from a joint sentence agreement, will not be reviewed by the Courts. This is because there is a distinction between the role of the judiciary and the executive.

Quaere, does such distinction apply broadly to executive decisions such as domestic policy and foreign affairs?

See R. v. Nixon, 2009 ABCA 269:

[19] The high threshold for the review of matters of prosecutorial discretion has its genesis in the
constitutional imperative requiring a bright line between the roles of the judiciary and the executive;
the functions of judges and prosecutors must not be blurred. If the court steps in to review the
prosecutor's exercise of discretion, the court effectively becomes a supervising prosecutor and ceases to be an independent tribunal. Examining the basis for a prosecution suggests invasive
scrutiny of prosecutors' motives, decisions and confidential strategies. Such examination would undermine law enforcement and prosecutorial effectiveness. Moreover, decisions to initiate,
terminate or accept a plea to a lesser charge are not easily reviewed and are particularly ill-suited to judicial review, given the breadth and nature of the considerations that must be taken into account in making such decisions. See: R. v. Power, [1994] 1 S.C.R. 601 at 623-629, 89 C.C.C. (3d) 1 ("Power"); R. v. Ng, 2003 ABCA 1, 327 A.R. 215 ("Ng") at paras. 24 and 30; and Krieger at paras. 31-32.

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

416 225 2777

Applause

Harper names Tory pals to Senate
The Canadian Press
Aug 27, 2009

OTTAWA_ Prime Minister Stephen Harper has named nine new senators, including some of his Conservative friends.

The decision to name Tory campaign chair Doug Finley and other party insiders to the Upper House was slammed by the Liberals as ``Harpocrisy.''

When he was in opposition, Harper said he would never make patronage appointments to the Senate.

Among the Conservative appointees with close ties to Harper are Carolyn Stewart Olsen, his long-time communications aide, and party president Don Plett.

Finley will represent Ontario, Plett will represent Manitoba, and Stewart Olsen will represent New Brunswick.

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

416 225 2777

Expert evidence

Today's Court of Appeal decision in R. v. Abbey, 2009 ONCA 624 significantly clarifies the law relating the expert evidence. The Court has materially changed the law and it may well be the case will go on to the Supreme Court -- certainly the Mohan test has been reinterpreted. It is a decision of great importance and ought to be read carefully by all counsel:

[71] It is fundamental to the adversary process that witnesses testify to what they saw, heard, felt or did, and the trier of fact, using that evidentiary raw material, determines the facts. Expert opinion evidence is different. Experts take information accumulated from their own work and experience, combine it with evidence offered by other witnesses, and present an opinion as to a factual inference that should be drawn from that material. The trier of fact must then decide whether to accept or reject the expert's opinion as to the appropriate factual inference. Expert evidence has the real potential to swallow whole the fact-finding function of the court, especially in jury cases. Consequently, expert opinion evidence is presumptively inadmissible. The party tendering the evidence must establish its admissibility on the balance of probabilities: Paciocco & Stuesser at pp. 184, 193; S. Casey Hill et al., McWilliams' Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2009), at para. 12:30.10.

[72] The increased reliance on expert opinion evidence by both the Crown and defence in criminal matters is evident upon even a cursory review of the reported cases. Sometimes it seems that a deluge of experts has descended on the criminal courts ready to offer definitive opinions to explain almost anything. Expert evidence is particularly prevalent where inferences must be drawn from a wide variety of human behaviour: see, for example, R. v. McIntosh (1997), 35 O.R. (3d) 97 (C.A.), at pp. 101-103, leave to appeal to S.C.C. refused R. v. McCarthy, [1998] 1 S.C.R. xii [leave sought by second appellant in McIntosh, Mr. McCarthy]; David M. Paciocco, "Coping With Expert Evidence About Human Behaviour" (1999) 25 Queen's L.J. 305, at pp. 307-308; S. Casey Hill et al. at para. 12:30.10; R. v. Olscamp (1994), 95 C.C.C. (3d) 466 (Ont. Ct. (Gen. Div.)), approved in R. v. Lance (1998), 130 C.C.C. (3d) 438 (Ont. C.A.), at para. 24; Ontario, The Commission on Proceedings Involving Guy Paul Morin: Report, vol. 1 (Toronto: Queen's Printer, 1998), at pp. 311-24. As Moldaver J.A. put it in R. v. Clark (2004), 69 O.R. (3d) 321 (C.A.), at para. 107, a case involving the proposed expert evidence of a criminal profiler:

Combined, these two concerns [giving expert evidence more weight than it deserves and accepting expert evidence without subjecting it to the scrutiny it requires] raise the spectre of trial by expert as opposed to trial by jury. That is something that must be avoided at all costs. The problem is not a new one but in today's day and age, with proliferation of expert evidence, it poses a constant threat. Vigilance is required to ensure that expert witnesses like Detective Inspector Lines are not allowed to hijack the trial and usurp the function of the jury. [Emphasis added.]

[73] Despite justifiable misgivings, expert opinion evidence is, of necessity, a mainstay in the litigation process. Put bluntly, many cases, including very serious criminal cases, could not be tried without expert opinion evidence. The judicial challenge is to properly control the admissibility of expert opinion evidence, the manner in which it is presented to the jury and the use that the jury makes of that evidence.

[74] The current approach to the admissibility of expert opinion evidence was articulated by Sopinka J. in Mohan. Broadly speaking, Mohan replaced what had been a somewhat laissez faire attitude toward the admissibility of expert opinion evidence with a principled approach that required closer judicial scrutiny of the proffered evidence. After Mohan, trial judges were required to assess the potential value of the evidence to the trial process against the potential harm to that process flowing from admission.

[75] The four criteria controlling the admissibility of expert opinion evidence identified in Mohan have achieved an almost canonical status in the law of evidence. No judgment on the topic seems complete without reference to them. The four criteria are:

q relevance;

q necessity in assisting the trier of fact;

q the absence of any exclusionary rule; and

q a properly qualified expert.

[76] Using these criteria, I suggest a two-step process for determining admissibility. First, the party proffering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence. For example, that party must show that the proposed witness is qualified to give the relevant opinion. Second, the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence. This "gatekeeper" component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence: see Mohan; R. v. D.D., [2000] 2 S.C.R. 275; J.-L.J.; R. v. Trochym, [2007] 1 S.C.R. 239; K. (A.); Ranger; R. v. Osmar (2007), 84 O.R. (3d) 321 (C.A.), leave to appeal to S.C.C. refused (2007), 85 O.R. (3d) xviii.

[77] I appreciate that Mohan does not describe the admissibility inquiry as a two-step process. It does not distinguish between what I refer to as the preconditions to admissibility and the trial judge's exercise of the "gatekeeper" function. My description of the process as involving two distinct phases does not alter the substance of the analysis required by Mohan. In suggesting a two-step approach, I mean only to facilitate the admissibility analysis and the application of the Mohan criteria.

[78] It is helpful to distinguish between what I describe as the preconditions to admissibility of expert opinion evidence and the performance of the "gatekeeper" function because the two are very different. The inquiry into compliance with the preconditions to admissibility is a rules-based analysis that will yield "yes" or "no" answers. Evidence that does not meet all of the preconditions to admissibility must be excluded and the trial judge need not address the more difficult and subtle considerations that arise in the "gatekeeper" phase of the admissibility inquiry.

[79] The "gatekeeper" inquiry does not involve the application of bright line rules, but instead requires an exercise of judicial discretion. The trial judge must identify and weigh competing considerations to decide whether on balance those considerations favour the admissibility of the evidence. This cost-benefit analysis is case-specific and, unlike the first phase of the admissibility inquiry, often does not admit of a straightforward "yes" or "no" answer. Different trial judges, properly applying the relevant principles in the exercise of their discretion, could in some situations come to different conclusions on admissibility.

[80] In what I refer to as the first phase, four preconditions to admissibility must be established, none of which were in dispute at trial:

q the proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence;

q the witness must be qualified to give the opinion;

q the proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert opinion rule; and

q the proposed opinion must be logically relevant to a material issue.

[81] For the purpose of explaining the analytic distinction I draw between the preconditions to admissibility and the "gatekeeper" function, I need not address the first three preconditions. The relevance criterion, however, does require some explanation. Relevance is one of the four Mohan criteria. However, I use the word differently than Sopinka J. used it in Mohan.

[82] Relevance can have two very different meanings in the evidentiary context. Relevance can refer to logical relevance, a requirement that the evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence: J.-L.J. at para. 47. Given this meaning, relevance sets a low threshold for admissibility and reflects the inclusionary bias of our evidentiary rules: see R. v. Clark (1999), 129 C.C.C. (3d) 1 (Ont. C.A.), at p. 12. Relevance can also refer to a requirement that evidence be not only logically relevant to a fact in issue, but also sufficiently probative to justify its admission despite the prejudice that may flow from its admission. This meaning of relevance is described as legal relevance and involves a limited weighing of the costs and benefits associated with admitting evidence that is undoubtedly logically relevant: see Paciocco & Stuesser at pp. 30-35.

[83] The relevance criterion for admissibility identified in Mohan refers to legal relevance. To be relevant, the evidence must not only be logically relevant but must be sufficiently probative to justify admission: see Mohan at pp. 20-21; K. (A.) at paras. 77-89; Paciocco & Stuesser at pp. 198-99.

[84] When I speak of relevance as one of the preconditions to admissibility, I refer to logical relevance. I think the evaluation of the probative value of the evidence mandated by the broader concept of legal relevance is best reserved for the "gatekeeper" phase of the admissibility analysis. Evidence that is relevant in the sense that it is logically relevant to a fact in issue survives to the "gatekeeper" phase where the probative value can be assessed as part of a holistic consideration of the costs and benefits associated with admitting the evidence. Evidence that does not meet the logical relevance criterion is excluded at the first stage of the inquiry: see e.g. R. v. Dimitrov (2003), 68 O.R. (3d) 641 (C.A.), at para. 48, leave to appeal to S.C.C. refused (2004), 70 O.R. (3d) xvii.

[85] My separation of logical relevance from the cost-benefit analysis associated with legal relevance does not alter the criteria for admissibility set down in Mohan or the underlying principles governing the admissibility inquiry. I separate logical from legal relevance simply to provide an approach which focuses first on the essential prerequisites to admissibility and second, on all of the factors relevant to the exercise of the trial judge's discretion in determining whether evidence that meets those preconditions should be received.

[86] As indicated above, it was not argued that Dr. Totten's evidence did not meet the preconditions to admissibility. Nor is it suggested that it was not logically relevant to identity, a fact in issue. The battle over the admissibility of his evidence was fought at the "gatekeeper" stage of the analysis. At that stage, the trial judge engages in a case-specific cost-benefit analysis.

[87] The "benefit" side of the cost-benefit evaluation requires a consideration of the probative potential of the evidence and the significance of the issue to which the evidence is directed. When one looks to potential probative value, one must consider the reliability of the evidence. Reliability concerns reach not only the subject matter of the evidence, but also the methodology used by the proposed expert in arriving at his or her opinion, the expert's expertise and the extent to which the expert is shown to be impartial and objective.[8]

[88] Assessment of the reliability of proffered expert evidence has become the focus of much judicial attention, particularly where the expert advances what is purported to be scientific opinion: see, for example, Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993); J.-L.J. at paras. 33-37; S. Casey Hill et al. at para. 12:30.20.30; Bruce D. Sales & Daniel W. Shuman, Experts in Court Reconciling Law, Science, and Professional Knowledge (Washington, D.C.: American Psychological Association, 2005).

[89] In assessing the potential benefit to the trial process flowing from the admission of the evidence, the trial judge must intrude into territory customarily the exclusive domain of the jury in a criminal jury trial. The trial judge's evaluation is not, however, the same as the jury's ultimate assessment. The trial judge is deciding only whether the evidence is worthy of being heard by the jury and not the ultimate question of whether the evidence should be accepted and acted upon.

[90] The "cost" side of the ledger addresses the various risks inherent in the admissibility of expert opinion evidence, described succinctly by Binnie J. in J.-L.J. at para. 47 as "consumption of time, prejudice and confusion". Clearly, the most important risk is the danger that a jury will be unable to make an effective and critical assessment of the evidence. The complexity of the material underlying the opinion, the expert's impressive credentials, the impenetrable jargon in which the opinion is wrapped and the cross-examiner's inability to expose the opinion's shortcomings may prevent an effective evaluation of the evidence by the jury. There is a risk that a jury faced with a well presented firm opinion may abdicate its fact-finding role on the understandable assumption that a person labelled as an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury: J.-L.J. at para. 25.

[91] In addition to the risk that the jury will yield its fact finding function, expert opinion evidence can also compromise the trial process by unduly protracting and complicating proceedings. Unnecessary and excessive resort to expert evidence can also give a distinct advantage to the party with the resources to hire the most and best experts - often the Crown in a criminal proceeding.

[92] All of the risks described above will not inevitably arise in every case where expert evidence is offered. Nor will the risks have the same force in every case. For example, in this case, I doubt that the jury would have difficulty critically evaluating Dr. Totten's opinion. There was nothing complex or obscure about his methodology, the material he relied on in forming his opinion or the language in which he framed and explained his opinion. As when measuring the benefits flowing from the admission of expert evidence, the trial judge as "gatekeeper" must go beyond truisms about the risks inherent in expert evidence and come to grips with those risks as they apply to the particular circumstances of the individual case.

[93] The cost-benefit analysis demands a consideration of the extent to which the proffered opinion evidence is necessary to a proper adjudication of the fact(s) to which that evidence is directed. In Mohan, Sopinka J. describes necessity as a separate criterion governing admissibility. I see the necessity analysis as a part of the larger cost-benefit analysis performed by the trial judge. In relocating the necessity analysis, I do not, however, depart from the role assigned to necessity by the Mohan criteria.

[94] It seems self-evident that an expert opinion on an issue that the jury is fully equipped to decide without that opinion is unnecessary and should register a "zero" on the "benefit" side of the cost-benefit scale. Inevitably, expert opinion evidence that brings no added benefit to the process will be excluded: see, for example, R. v. Batista (2008), 238 C.C.C. (3d) 97 (Ont. C.A.), at paras. 45-47; R. v. Nahar (2004), 181 C.C.C. (3d) 449 (B.C.C.A.), at paras. 20-21. Opinion evidence that is essential to a jury's ability to understand and evaluate material evidence will register high on the "benefit" side of the scale. However, the ultimate admissibility of the opinion, even where it is essential, will depend on not only its potential benefit, but on the potential prejudice to the trial process associated with its admission.

[95] In many cases, the proffered opinion evidence will fall somewhere between the essential and the unhelpful. In those cases, the trial judge's assessment of the extent to which the evidence could assist the jury will be one of the factors to be weighed in deciding whether the benefits flowing from admission are sufficiently strong to overcome the costs associated with admission. In addressing the extent to which the opinion evidence is necessary, the trial judge will have regard to other facets of the trial process -such as the jury instruction - that may provide the jury with the tools necessary to adjudicate properly on the fact in issue without the assistance of expert evidence: D.D. at para. 33; R. v. Bonisteel (2008), 236 C.C.C. (3d) 170 (B.C.C.A.), at para. 69.

[96] It is unnecessary to explore the necessity requirement in any greater detail. The trial judge appears to have accepted defence counsel's concession that Dr. Totten's evidence was necessary in the sense that the meaning of a teardrop tattoo was outside of the ordinary knowledge of a Toronto juror (para. 34).

Senate appointments

Obviously Senate appointments have been political for a long time (we have made some partisan appointments) but it is surprising to see such a transparent turnaround by Harper. I guess he's hoping that by releasing in the last week of August no one notices:

 "We don't support any Senate appointments."

(Stephen Harper, Winnipeg Free Press, January 29, 1996) 

"Despite the fine work of many individual Senators, the Upper House remains a dumping ground for the favoured cronies of the Prime Minister."

(Stephen Harper Leadership Website, January 15, 2004)

"In the 21st century, those who want to sit in the parliament of a democratic state should have a mandate from the people."

(Stephen Harper, February 7, 2006)

"A conservative government will not appoint to the senate anyone who does not have a mandate from the people."

(Conservative Party website during 2006 election)

"As everyone in this room knows, it has become a right of passage for aspiring leaders and prime ministers to promise Senate reform - on their way to the top - but once they are elected, Senate reform quickly falls to the bottom of the Government's agenda. Nothing ever gets done."

(Stephen Harper, Speech on Senate Reform before Senate Committee, September 7, 2006) 

"I don't plan to appoint senators; that's not my intention."

(Stephen Harper, Cornwall Standard-Freeholder, January 14, 2006) 

"Stephen Harper will cease patronage appointments to the Senate. Only candidates elected by the people will be named to the Upper House."

(Stephen Harper Leadership Website, January 15, 2004) 

"I challenge Mr. Martin, once he becomes Prime Minister, to turn a page on the past, and appoint only elected Senators to the Upper House."

(Stephen Harper, Canadian Alliance Press Release, July 4, 2003) 

"Canadians from Newfoundland and Labrador to British Columbia remain ashamed of Canada`s senior legislative body. They are ashamed the Prime Minister continues the disgraceful, undemocratic appointment of undemocratic Liberals to the undemocratic Senate to pass all too often undemocratic legislation."

(Stephen Harper, Hansard, March 7, 1996)
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Freedom of speech

Put it otherwise, would you try to make him be quiet???

China from Quebec City

From today's Globe

James Morton

Toronto — From Thursday's Globe and Mail

Sensible commentators generally agree it's time to urge the United States to release Omar Khadr to Canadian custody. That point, however, does not imply that an appeal to the Supreme Court of Canada is wrong (There Is A Better Route To Justice - editorial, Aug. 26).

Mr. Khadr can return to Canada and an appeal proceed. The Federal Court of Appeal's decision raised a serious question as to the authority of the courts to supervise the conduct of foreign affairs by the federal government. Such a key issue ought to be considered by the Supreme Court, so the law will be clear.

James Morton, past president, Ontario Bar Association,

LIBERALS IN THORNHILL ANNOUNCE NOMINATION CANDIDATE

August 26, 2009 – Thornhill, ON –

The president of the Thornhill Federal Liberal riding association announced today that Susan Kadis, who has represented the riding for the Liberals since election as its Member of Parliament (MP) in 2004 to 2008, has decided not to run, and that Dr. Karen Mock has declared she will seek the nomination to represent Thornhill for the Liberals in the next election.

James Morton, president of the riding association, stated "The riding executive wants to thank Susan Kadis for her distinguished service to the riding and her many contributions.  We understand and accept her decision wishing her all the best in her future endeavours."

In a letter to riding members, Kadis declared her intentions and acknowledged the new nomination candidate, "I look forward to continuing to work with you for the betterment of our community and country. I am pleased to learn that a strong woman, with her own remarkable history and exemplary career of civic engagement and grassroots community involvement is declaring her candidacy for the nomination.  It is a pleasure to call Dr. Karen Mock a friend and to let you know she is a very worthy candidate. I hope you support her efforts to be our next MP for Thornhill.  

Karen Mock is registered psychologist in a private consulting practice, specializing in human rights, hate crime and diversity issues.  She is widely acknowledged as one of the foremost Canadian authorities on multicultural/anti-racist education.

In 2001, Mock was appointed Executive Director of the Canadian Race Relations Foundation. Prior to her four years with the CRRF, she served 12 years as National Director of the League for Human Rights of B'nai Brith Canada and also as Executive Director of the League's Human Rights Education and Training Centre.  Dr. Mock had also worked for over 20 years in psychology and teacher education at the University of Toronto, Ryerson Polytechnical University and York University. 

"I believe the next election will be important to Canada as we emerge from the global recession and need to redefine our place in the world while confirming our country's position as an open, tolerant, diverse nation of peoples from around the globe. I decided it was time to try and make a difference and to put my experience and energies to work through political action," stated Dr. Mock. 

Should Karen Mock win the nomination she would be the third Liberal woman to represent the riding federally.  When the riding of Thornhill was created, Elinor Caplan became its first MP. No date has been set for the nomination.

MEDIA INQUIRIES:

James Morton, President,
Thornhill Federal Liberal Riding Association 
                                            
416 225 2777   or  416 358 7964   or    jmorton@smhilaw.com
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Arguably the best true crime journalist has died

NEW YORK -- Dominick Dunne, the American author and journalist best known for his coverage of high-profile court cases such as the O.J. Simpson murder trial, died Wednesday at the age of 83.

Dunne died at his home in Manhattan after a long struggle with bladder cancer, his son, the actor Griffin Dunne, told Vanity Fair magazine.
...
Dunne, who was born in Hartford, Connecticut, on Oct. 29, 1925, and was awarded the Bronze Star for his service in World War Two, published a memoir, "The Way We Lived Then: Recollections of a Well-Known Name-Dropper," in 1999.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Bob Tarantino: Standing up for judges — selectively

In Full Comment Bob Tarantino makes a fair point in suggesting judicial discretion is often used as a stalking horse for those who wish for lenient criminal sentences.

Certainly, legislation cutting back judicial discretion usually attacks the lowest rather than highest ends of sentencing practice. Such legislation seldom has much practical effect as the lowest sentences are rarely if ever imposed.

Judicial discretion cuts both ways and often leads to stern sentences. It is commonplace to read Court of Appeal decisions where the Court defers to a sentencing judge's discretion in granting a more severe sentence than the Court of Appeal would itself impose.

Punishment is not an abstract -- it is a tool to reduce crime. Beccaria said "for a punishment to be just it should consist of only such gradations of intensity as suffice to deter men from committing crimes." Only where there is sufficient discretion to fit sentence to the crime can punishment be both effective and just.

Canadian judges do not pander to criminals and sentences generally fit the crime.

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

416 225 2777

Rogers wireless continued

So I waited on the phone one hour and fifty three minutes before getting hung up on -- another transfer from person X to person Y.
Finally, after calling back, I got a nice person who seemed to know what she was doing. She promised to fix the problem with my voice mail -- within 24 hours.

Well, it's longer and when I called again -- and waited and waited and bounced from person to person was finally told "oh yes, well we can't say how long it will take -- it took three days for them to fix my phone" ... .

Oh yes, of course my emails to service ("contact us by email and we'll respond right away") go unanswered -- just like the letters to Rogers offices -- maybe the vast empire has no employees? Perhaps it's like some sci-fi story where a machine keeps working long after humanity dies out?

I can't really say why I stick with Rogers -- perhaps I feel it will shorten my time in purgatory (or get me a free pass out of hell).

Seriously, do readers have any suggestions? Would switching to Bell help?
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

And now for something completely different!

Continuing intention to defend required to set aside default judgment.

To set aside a default judgment there must be an intention to defend when the claim is first received.

That said, should the intention to defend cease before a defence is delivered, a motion to set aside default judgment will fail.

There must be a continuing intention to defend.

Thus, we see the Court of Appeal's decision in 1316845 Ontario Limited v. Es-Lea Holdings Limited, 2009 ONCA 622 holding:

Although we accept the appellants' submission that they had an intent to defend the counterclaim when the litigation started, we see no error in Justice Quigley's finding at para. 22 of his reasons that the appellants did not maintain their intent. ... Absent a continuing intend to defend, this appeal must be dismissed.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Michael Ignatieff and Chief Blair

Susan Kadis

What a gracious note. Susan was a fine MP and will continue to be a true leader in the community

SUSAN KADIS
August 24, 2009

Dear Friends,

After a great deal of thought and consideration I have decided not to seek the nomination in Thornhill for the next Federal election.

I am honoured to have served Thornhill residents, and my country, as the federal Member of Parliament for Thornhill. In fact, it doesn't seem that long ago that I first earned the privilege of being your MP in June of 2004 and again through re-election in January 2006. I am proud of the positions I held within the Party and the Government including the Associate Critic of Infrastructure and Communities, Critic for Science and Research, Critic of National Revenue and Member of the Economic Prosperity Caucus. I served in Parliament as the Vice-Chair for the Standing Committee on Public Safety and National Security, was a Member of the Standing Committee on Industry, Science and Technology and was Vice-Chair of the Standing Committee on Health.

I was elected Chair of the House of Commons Standing Committee on the Status of Women and was elected Chair of the Greater Toronto Area (GTA) Liberal Caucus by my colleagues in October 2004.

Friendship is a key word that defined a special time in my years of federal public service. I want to thank each and every one of you for your generous support and dedication to myself and our wonderful community. Together, we have accomplished a lot. I hope you are as proud as I am.

I look forward to continuing to work with you for the betterment of our community and country. I am pleased to learn that a strong woman, with her own remarkable history and exemplary career of civic engagement and grass roots community involvement is declaring her candidacy for the nomination. It is a pleasure to call Dr. Karen Mock a friend and to let you know she is a very worthy candidate. I hope you support her efforts to be our next MP for Thornhill.

Once again, I extend my heartfelt thank you for the privilege of representing you in the House of Commons, the honour of your support and friendship and the unique experience afforded to me that I will always cherish deeply. My best regards to all,

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

416 225 2777

Terrorism continued

Terrorism is violence designed to intimidate for an ideological purpose.

Can that include hate crimes?

Certainly; not all hate crimes are terrorism but some are.

Gaybashing, if intended to keep gay people in the closet, is terrorism.

Attacking women who, say, dress in a way disliked by the attackers, if done to discourage such dress, is terrorism.

Can a State commit terrorism?

Certainly; one could argue many wars, especially those of religion or ideology, would be terrorism. Internal "police" actions can count too.

The Spanish attack on Elizabethan England would probably count as violence designed to intimidate for an ideological purpose.

The Chinese crackdown on some but not all dissidents certainly is violence designed to intimidate.

My point is that terrorism is a broad category of human action -- and it is wrong world wide.

Appealing Khadr

Sensible commentators generally agree that it is time to urge the United States to release Omar Khadr to Canadian custody. (What happens then is a matter of intense debate).

That point, however, does not imply an appeal to the Supreme Court is wrong.

Mr Khadr can return to Canada and an appeal proceed. The Federal Court of Appeal's decision raised a serious question as to the authority of the Courts to supervise the conduct of foreign affairs by the Federal Government. Such a significant matter ought to be considered by the Supreme Court so that the law is clear for the future.

Bring Khadr back, yes, but seek a ruling from the Supreme Court of Canada.

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

416 225 2777

Kennedy gone

His replacement will prove interesting -- and regardless of your views on Ted Kennedy (I see him as a tragic figure, flawed -- like all of us -- but trying) his passing is a major politcal milestone.

Ted Kennedy dies after battle with brain cancerSen. Edward 'Ted' Kennedy, the liberal lion of the Democratic Party and the patriarch of the United States' most famous political family, has passed away after a long battle with brain cancer.

Kennedy's family announced his death in a brief statement released early Wednesday.
He was 77 and spent more than half his life serving the state of Massachusetts as one of its senators.

Political dances -- Harper and Layton look for common ground

Remember, all three opposition parties must agree for the government to fall.

Harper and Layton look for common ground
Source: The Canadian Press
Aug 25, 2009 12:56

OTTAWA_ NDP Leader Jack Layton was having a face-to-face meeting with the prime minister Tuesday.

It was likely to be the first tango in a series of political dances aimed at avoiding a fall election.

Rick Boychuk, Layton's communication's director, said his boss was to meet with Prime Minister Stephen Harper to talk about the NDP's ``legislative agenda'' with the goal of making Parliament work.

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

416 225 2777

Lisa, Knut's grandmother

Jackson homicide -- gross neglect

This does not mean Jackson was intentionally murdered - but it does mean the death was wrongful because of gross negligence.

AP Source: Coroner rules Jackson's death a homicide; tests reveal propofol, 2 other sedatives

Justin Pritchard,Thomas Watkins,

THE ASSOCIATED PRESS LOS ANGELES - Michael Jackson's death has been ruled a homicide caused by a mix of drugs meant to treat insomnia, a law enforcement official told The Associated Press, while his personal doctor told investigators he was actually trying to wean the King of Pop off the powerful anesthetic that did him in.

Forensic tests found the anesthetic propofol combined with at least two sedatives to kill Jackson, according to the official, who spoke Monday on condition of anonymity because the findings have not been publicly released. Based on those tests, the Los Angeles County Coroner has ruled the death a homicide, the official said.

Khadr goes up to the SCC

‪‪‪"After careful consideration of the legal merits of the ruling ... the government has decided to seek leave to appeal the decision to the Supreme Court" of Canada, Foreign Affairs said in a statement.

With today's news that the Khadr case is going to the Supreme Court, at least for leave, I thought it useful to look at what the decision says about reviewing the foreign policy decisions of the Federal government.  

Certainly one can argue there is an intrusion into the peculiar jurisdiction of Crown policy making. 

That said, the Federal Court of Appeal says it is within the Court's power to oversee such policy, Harper v. Khadr 2009 FCA 246:   

[58]           Further, Crown prerogative in the conduct of foreign affairs has already been held to be subject to the Charter. For instance, when Canada is asked pursuant to a treaty to extradite a Canadian citizen to stand trial in another country for an offence punishable by death, the Minister of Justice must refuse the request in the absence of an assurance from the prosecuting authorities that they will not seek the death penalty. Thus, in United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, the Court reviewed the constitutionality of the Minister's decision to surrender Burns, saying (at paragraph 38):

We affirm that it is generally for the Minister, not the Court, to assess the weight of competing considerations in extradition policy, but the availability of the death penalty, like death itself, opens up a different dimension. 

Similarly, the knowing involvement of Canadian officials in the mistreatment of Mr. Khadr in breach of international human rights law, in particular by interviewing him knowing that he had been deprived of sleep in order to induce him to talk, "opens up a different dimension" of a constitutional and justiciable nature. 

[59]           Finally, there is no factual basis for the Crown's argument that a court order requiring the Government to request the return of Mr. Khadr is a serious intrusion into the Crown's responsibility for the conduct of Canada's foreign affairs. The Crown adduced no evidence that requiring it to request Mr. Khadr's return would damage Canada's relations with the United States (see Burns, at paragraph 136). Indeed, when pressed in oral argument, counsel for the Crown conceded that the Crown was not alleging that requiring Canada to make such a request would damage its relations with the United States.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

From the Sun - 'Honour killing' is terrorism

Yes, I am the James Morton who wrote in today's Sun:

'Honour killing' is terrorism
By JAMES MORTON

Steven Hazel wanted to end his marriage.

He increased the life insurance on his wife and removed his prize possessions from the family home. Hazel then murdered his wife and tried to hide the murder by burning down the family home in southwestern Ontario with his wife's body inside.

This is a terrible story about violence and greed -- but Hazel's violence was directed at his wife only and he had no plans to intimidate others by his cruel deed.

Compare the Hazel case to the dreadful actions of Hasibullah Sadiqi who murdered his sister Khatera and her fiance Feroz Mangal in the Ottawa area because Khatera moved in with Feroz before getting married.

According to the Crown at Sadiqi's trial, the killing was committed for the purpose of "restoring the family's reputation and respect in the Afghan community."

Sadiqi presents a typical "honour" killing; a killing, usually of a woman, committed because she has breached some sexual code of conduct, say, by dating a man of a different religion or race.
In an honour killing the murder is committed for the purpose of enforcing the sexual code of conduct and warning others who might be tempted to breach that code of the fate that may befall them.

At first blush there's no difference between an honour killing and any other murder. If a woman is killed for insurance money or for honour, she's still dead.

But on closer analysis there is a difference and an important one.

Killing a spouse for insurance is brutal and monstrous but it is an act only focused on the deceased.

But honour killing kills the deceased and threatens others. An honour killing uses violence as theatre to intimidate others. It stands to enforce a sexual code of conduct by violence and threats.

An honour killing is part of an organized effort to subjugate women to a specific and oppressive view of society. Although the total number of honour killings in Canada is still relatively small, probably less than 50 in total to date, the impact on the community as a whole is huge. When compared to a worldwide figure of perhaps 5,000 honour killing a year the implied threat is heightened.

But numbers alone do not tell the story. Even at its height, the number of lynchings in the American South was fairly small (probably less than 100 a year) but the intimidation huge. Southern blacks knew the danger of speaking up for their rights; with honour killings, women can see the risk of behaving outside their place.

Under Canadian law, terrorism includes an act taken for political, religious or ideological purposes which threatens the public or national security by killing, seriously harming or endangering a person. Terrorism is violence designed to intimidate for an ideological purpose.
That's what an honour killing is -- violence intended to subjugate and intimidate women.

In the United Kingdom ,the Crown Prosecution Service has found links between honour killings and terrorism.

Nazir Afzal, the CPS's spokesperson on honour crime, said a terror group threatened to kill a woman, now in hiding, for her sexual behaviour.

"They told her husband that if he didn't put his wife in her place then they would do it themselves," Afzal said.

In just the same way the Ku Klux Klan used violence to enforce white supremacy in the southern United States honour killings seek to keep women as second-class citizens unable to choose how to live their lives.

Let's call honour killing what it really is.

Call it terrorism.

I'd scream but no one would listen! Hello Rogers!!!!!!

Has anyone ever called Rogers and had their called answered without “we’re sorry but due to a higher than normal volume of calls…”?

When do they have a “normal volume” of calls? You call at any time (I did before 7:00 am today) and expect at least an hour wait. E-mails and letters go unanswered (I have a stack in my files) -- maybe if I just stopped paying the account?

I guess Rogers has to keep their staff to a bare minimum so they can keep their prices so low (sarcasm intended) – I guess I could switch to Bell – they’re so much better!!!

From the Hill Times

The Hill Times, August 24, 2009

Five-year ban on lobbying too restrictive for industry's future

Federal government should conduct a review on the Lobbying Act next year to see if objectives are being met.

By Bea Vongdouangchanh

The Lobbying Act's new provisions are like taking a sledgehammer to kill a fly, say lobbyists, who think the changes to improve transparency and accountability are too restrictive for the future of the industry.

"There is no question the Lobbying Act truly handcuffs future generations from learning more about public service and then applying what they've learned. It is a sledgehammer used to kill a fly," said Joe MacDonald, president of the Public Affairs Association of Canada. "A five year ban is far too long.

It discourages younger minds from joining politics and the public service, and it inhibits those already involved from transferring their skills, knowledge and experience to the private and broader public sectors. For all of that, Canadian politics and political discourse in general is much the poorer." Changes to the Lobbying Act came into effect last July, under the Federal Accountability Act.

The changes include creating an independent office of the Commissioner of Lobbying, eliminating contingency fees, imposing a five-year ban on lobbying by designated public office holders who leave the government, requiring registration and communications disclosures by all lobbyists if their job in government relations takes up more than 20 per cent of their time and doubling the fine for infringing the new rules (from between $50,000 and $200,000).

In an editorial in the Montreal Gazette last week, Toronto lawyer James Morton said the new rules restrict freedom of speech and expects someone to bring a court challenge to its constitutionality in the near future. "Canadians are so used to the freedoms of speech and expression that we are shocked when we see them denied, as recently in Iran," Mr. Morton wrote.

"Despite this, we have a federal law that bars some of our most talented and engaged citizens from petitioning the government except under limited circumstances." Mr. Morton pointed out that designated public office holders—including ministers, ministers' exempt staff, and senior bureaucrats such as heads of departments, associate and assistant deputy ministers and senior members of the Canadian Forces—who have extensive knowledge and expertise in their fields are banned from lobbying governments for five years and this could mean that "some of Canada's brightest policy minds will be strictly limited in what they can do once they leave government."

Mr. Morton said he believes that either a bureaucrat who wants to continue working after retiring from the civil service or a government relations firm who wants to hire a retired bureaucrat will likely bring the issue to court. "Certainly the answer is not obvious—it might well be the Lobbying Act prohibition is unconstitutional. A judge might well find that the objective could be met with a shorter ban or with limitations on dealing with the very people the official worked with as an official," Mr. Morton wrote.

"Regardless, it's only a matter of time before someone challenges it." Joe Jordan, a consultant with the Capital Hill Group and a former Liberal MP, said last week that the Lobbying Act is too restrictive and that he agrees with Mr. Morton about a constitutional challenge. "I'm not sure [the five-year ban] keeps the best and brightest out of the policy debate, but to restrict people's right to work, I agree with him saying this will be tested in a court and in all likelihood, I think the courts are going to punt those aspects of the bill. I think it's unconstitutional," he said.

"The courts are going to look at what is the reason for restricting basis rights. I don't think potential for harm is high enough. There is a lot of solid politics around this stuff and that can't be disputed, but in terms of policy, I think it was a little overkill. But time will tell. This will sort itself out." Mr. Jordan noted that the rule previously was a one-year ban on issues and files the designated public office holder was directly working on, and a two year ban if you were a minister.

He said a five-year total ban is too long. He argued this two years ago when he appeared before the Senate Legal and Constitutional Affairs Committee when it was studying the Federal Accountability Act and said a two year total ban might be more appropriate. "It needs to be looked at," he said at the committee, adding that the ban should be extended to opposition and backbench MPs in the governing party if the goal is complete transparency and accountability. "You are trying to tell me that a 20-year-old staffer who is keeping a minister's schedule is banking political currency at a rate that exceeds that of a backbencher? MPs should be demonstrating outside in protest because they know stuff too.

If it is that serious, then include them in it. It makes no sense to pick on the staffers only, who, from my own experience, spend a great deal of time fighting with the bureaucracy because they are defending the interests of their ministers against the interests of the department. It is not always a holding-of-hands situation," Mr. Jordan said. "The public might think that five years sounds good and would be a good thing—as I said in my opening remarks, "good politics"—but if you truly think it is that serious, then make it wider and include MPs and senators in the five-year ban. Personally, I think that five years is too long."

Summa Strategies vice-president Tim Powers said that while no legislation is flawless, improvements could always be made. He said the government would have sought legal advice on the bill's constitutionality before putting the bill forward and so a challenge may or may not be successful. "Nonetheless, I will be watching how this develops," he said. Mr. MacDonald said that he's unsure whether a constitutional challenge would be successful, but noted that "the Lobbying Act is a curious bit of work."

He told The Hill Times in an email last week, that "As Mr. Morton pointed out, when we deny the now designated public office holders 'the right to speak to government, ... we lose something important.'" For Leo Duguay, a government relations consultant with the Rothwell Group and a former Progressive Conservative MP, a simple review of the act would be helpful, rather than opening up a constitutional debate about the merits of a five-year ban on lobbying by designated public office holders.

The previous act, the Lobbyist Registration Act, had a three-year statutory review, and that's something the government should look at, Mr. Duguay said. "When this act was introduced, a lot of us felt that it was using an elephant gun on a mosquito, but having said that, we've now had the act for a year," he said. "I think the government might want to review and hear testimony from people in the field, and hear testimony from departments and to see whether the requirement, the exigency of transparency has gone beyond the norm and whether that's in fact now actually hurting public policy, which I think is Mr. Morton's point. You want to be sure that you have these twin objectives that everybody in Canada who has a view about public policy can voice it fairly and we want it to be transparent.

I think this is a matter of finding the happy middle ground. My view was that we exceeded the happy middle ground." Mr. MacDonald said the industry is not afraid of regulations, registrations and being transparent and accountable. The issue is whether the rules in the Lobbying Act meet those objectives well. "Both policy makers and elected officials of the highest standing are indirectly portrayed as buffoons and hayseeds, swept up by the fast talkin', big spendin' sharps from the big city, totally befuddled by the complexities of government and utterly unable to resist the seductive whispers from the shadows in the halls of Parliament Hill. Clearly that simply isn't the case," he said.

"Our public policy process continues to evolve with more voices clamouring to be heard and greater access to the resources needed to develop a message and get it out. But developing policy, creating regulations and standards does require some level of expertise. If that expertise is no longer available, what hope do we have for the increased transparency and accountability that is the stated goal of the Act?

A constitutional challenge, successful or not, may clear the air of rhetoric and put the issues at play clearly on the table. And that would be a good thing." bvongdou@hilltimes.com The Hill Times

Liberals, Tories in dead heat: poll

Liberals, Tories in dead heat: poll (Poll-Tories-Liberals)
Source: The Canadian Press
Aug 24, 2009 14:43

--------------------------------------------------------------------------------

OTTAWA_ A new poll suggests the Conservatives and Liberals remain locked in a dead heat amid rumblings of a possible fall election.

The Canadian Press Harris-Decima survey put the parties in a statistical tie, with 32 per cent support for the Liberals and 31 per cent for the Tories.

The NDP were at 16 per cent, the Greens at 11, and the Bloc Quebecois at nine.

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

416 225 2777

Conservatives jump to big lead in poll

I'm not happy with this but we have to deal with it...

Module body
Mon Aug 24, 11:22 AM

OTTAWA (Reuters) - Canada's governing Conservatives have leaped to a sudden lead among likely voters that could bring the party a majority in Parliament, according to a poll published on Monday that diverges sharply from other recent surveys.

The impression that the economy was recovering from a recession helped propel the Conservatives to 39 percent support and cut the Liberals to 28 percent, the Ipsos Reid poll said. Two months ago, it had the Liberals ahead 35 to 34 percent.

...
Most recent polls had put the two main parties neck and neck, and a Nanos survey two weeks ago had the Liberals ahead by 2-1/2 percentage points.

Next week the Liberal caucus meets in Sudbury, Ontario. The party could reach a decision at the meeting to bring down the Conservative government and force an early election.

...

The survey had the leftist New Democrats at 14 percent, the Green Party at 10 percent and the separatist Bloc Quebecois at 8 percent.

Conducted August 18-20, the survey of 1,001 Canadians carries an error margin of 3.1 points 19 times out of 20.

Seeing eye dog

On the subway today a large dog emerged, from total silence, below a seat.

I was amazed at how calm a quiet the dog was until I realised he was a seeing eye dog.

A young girl and her mother were led away by the dog.

I was impressed, as I often am, by how animals have the wisdom we usually limit to people.

Dr Eric Hoskins campaigning

A fine candidate for the people of St Pauls!!!

Humane?

Here's the problem. If Basset al-Megrahi was released because of doubts of his guilt, and that release was accelerated because he is dying, then all well and good. But that's definitely not what happened -- at least according to Scotland.



Basset al-Megrahi, though guilty, was released as a humane gesture. And that's wrong -- if he was guilty, and if his sentence was for burning alive (among others) a former schoolmate of mine, then his release was misguided at best. Treat Basset al-Megrahi, have him given proper medical treatment, but don't commute his crime because he will join his victims some two decades plus later.





Scottish parliament recalled over Lockerbie bomber's release



Alice Ritchie, National Post

Monday, Aug 24, 2009



EDINBURGH -- Scotland's justice minister faced an angry grilling from lawmakers Monday over his decision to free the convicted Lockerbie bomber -- and the ensuing furious backlash from the United States.



Scotland's parliament has been recalled for an emergency debate on Justice Secretary Kenny MacAskill's decision last week to release Abdelbaset Ali Mohmet al-Megrahi, who then flew home to a hero's welcome in his Libyan homeland.



A little-known figure before the decision, Mr. MacAskill's now finds himself at the centre of a growing international storm which could damage Edinburgh's ties with Washington -- and could even topple the Scottish government.



In the United States, Secretary of State Hillary Clinton, the head of the Federal Bureau of Investigation and the victims' families have all criticised Megrahi's release, with websites emerging urging a boycott of Scottish goods.

Groups go to court to stop US seismic research in Canadian waters

VANCOUVER, BC

Aug 24, 2010
VANCOUVER – In the midst of a lawsuit launched by environmental groups, the Minister of Foreign Affairs has just granted permission for a controversial American research ship to conduct seismic blasting in a Canadian marine protected area. The Minister granted this permit at the close of business hours Friday night, despite an ongoing lawsuit by environmental groups challenging the legality of the permit on the basis that the ship will violate Canadian environmental laws.

Ecojustice, on behalf of Living Oceans Society and Canadian Parks and Wilderness Society, will argue the lawsuit in Federal Court on Tuesday in an attempt to stay the permit granted to the US vessel. The proposed seismic tests would threaten endangered whales in the Endeavour Hydrothermal Vents – a Canadian marine protected area located approximately 250km off the coast of British Columbia.

The lawsuit alleges that Canada's Minister of Foreign Affairs cannot grant clearance to a foreign vessel that will harass marine mammals in violation of Canadian law.

"We are shocked that the government would allow seismic testing in one of Canada's few marine protected areas," says CPAWS National Oceans Manager Sabine Jessen,

"The reason marine protected areas exist is to keep harmful activities from occurring in special areas that protect the animals living there, including endangered species like blue whales."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

I guess Jenkins did come in from the cold ...

Murder fugitive found dead in B.C. hotel room

A former reality TV contestant wanted in the brutal murder of his ex-wife has been found dead, the RCMP said Sunday evening, ending an intense manhunt that spanned both sides of the border.

Welcoming the new week -- what wonders will it bring???

Boneheaded Molsons

It's hard to understand how Molsons could have such a tin ear.

Billboards erected in BC promoting Coors beer (brewed by Molson Coors) boasted a giant picture of a frosty can of the beer and the tag line:

Colder than most people from Toronto.

Perhaps this happened because Molsons is no longer a Canadian company?

Molsons is the Canadian division of the world's fifth-largest brewing company, the Molson Coors Brewing Company. The brilliant "I am Canadian" ads disappeared after the Coors takeover in 2005 and perhaps the sense of what it is to be a "Canadian" went with the ads?

Regardless, I will go out and buy some beer this week -- but it won't be a Molson Coors product. I suspect I'll avoid the company for a year or so (ps, I come from Hamilton so I like Lakeport Honey Lager -- and yes I know Lakeport is owned by Labatts).
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Malaysian model to be caned

Before we judge remember we had the cane in our criminal law till recently and alcohol was prohibited in Canada under criminal sanction within living memory. That said, we got past those evils.

What's more, the person being put to the cane is a young, attractive and progressive woman.

There may well be a subtext of gender bias and oppression of women -- heck, what "may well be"? there is.

Women are being beaten into submission across the world. We should, must, speak against this. It's not a cultural thing -- it's a matter of what is right and what is wrong.

A Malaysian model will receive six strokes from a rattan cane after admitting in an Islamic court to the crime of drinking beer in a bar. Kartika Sari Dewi Shukarno’s sentence was confirmed by her lawyer yesterday after she decided not to appeal, making her the first woman to face corporal punishment imposed by a Malaysian Sharia court. The case has caused controversy in a country that projects an image of moderation to foreign tourists and businesses but imposes stern Islamic justice on its Muslim population. Alcohol is served to members of other religions at the country’s tourist bars and hotels but for Muslims — who make up two thirds of the population — its consumption is punishable by a fine, up to three years in prison or six strokes of the cane.

Jenkins - come in from the cold

If Jenkins is in Canada (or America) and isn't dead he will eventually be caught. His best bet is to turn himself in and then maintain whatever defence he has -- hiding makes it worse.

Jenkins' father mum on case

As the manhunt for Ryan Jenkins continues, the accused killer's father said he has not been told by authorities to encourage his son to turn himself in.

Reached by phone yesterday, Dan Jenkins said police in Canada have not asked him to publicly plead for his son to come forward.

"I was just in a meeting with Canadian authorities," said the prominent Calgary architect.
"They didn't urge me to do that."

When asked if he has been in contact with his son over the last week or if he would encourage Ryan to turn himself in, the elder Jenkins refused to answer.

"I cannot comment," he said, adding his lawyer advised him not to.

Summer Garden

Restful Sunday

Testing judges

Today's Star raises the issue of ongoing testing of older judges mental capacity.

The problem with cognitive testing for judges is that it poses a real risk of becoming a cover for removing "troublesome" judges.

False health concerns were used in the Soviet Union and are still used in China today to remove politically independent minded iurists. Judicial independence is too important to risk, especially as there are no known cases in Canada where a judge's failing cognitive faculties led to an unfair trial.

People in their seventies bring a wealth of experience, wisdom and life knowledge to the bench. Their contributions ought to be celebrated and not undermined by spurious fears of ill health.

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

416 225 2777