Saturday, September 5, 2009
You must act as if there is no God
Here's a tale about the Hasidic rabbi, Moshe Lieb of Sasov.
Rabbi Moshe Lieb said if someone comes to you and asks your help, you should not turn them away saying: "Have faith and take your troubles to God!"
You must act as if there is no God, and as if there were only one person in the world who could help them -- only yourself.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
New jobs created, but unemployment edges up
This curious result is likely caused by people who gave up looking for work trying again:
New jobs created, but unemployment edges up
The StatsCan Labour Force Survey released Friday showed thousands of new jobs were created last month, largely in retail, finance and the construction industry.
While economists thought the economy would lose 15,000 jobs in August, 27,100 jobs were created.
Unemployment also rose, inching up by 0.1 per cent to an 11-year high of 8.7 per cent. But that gain was largely due to the fact that more people entered the market and were looking for work, Kane said.
New jobs created, but unemployment edges up
The StatsCan Labour Force Survey released Friday showed thousands of new jobs were created last month, largely in retail, finance and the construction industry.
While economists thought the economy would lose 15,000 jobs in August, 27,100 jobs were created.
Unemployment also rose, inching up by 0.1 per cent to an 11-year high of 8.7 per cent. But that gain was largely due to the fact that more people entered the market and were looking for work, Kane said.
Bike lanes
Yes bicycles are vehicles and properly allowed on roads (and people on bikes should stop at stop signs etc but that's a different point).
That agreed, it is obvious that when bikes and trucks and cars share a road there will be collisions. Forget who's to blame -- when a truck and bike collide the bike loses. And someone often dies.
So the idea is raised of bike lanes. Which seem sensible at first. But they are a very partial solution at best.
Bike lanes on the side (or centre) of mixed use roads are often blocked by delivery vans. Or careless, or selfish, motor vehicle drivers drive on the bike lane. Worse, the lanes tend to end abruptly where traffic is most dense and most dangerous. And of course bike lane in mixed use roads must cross other roads and collisions are very possible there.
What is needed is not bike lanes but dedicated bicycle paths. These are not with problems -- pedestrians walk on them (why? a death wish? or just foolishness?). And bicycle paths have an economic cost.
But bicycle paths are narrow, much cheaper than mixed use roads and bridges over mixed use roads can be fairly modest as they will not carry heavily loaded trucks.
As for the question "where?" look at a city map -- electric tower corridors are a good start. Next to major highways (not scenic but available land). Perhaps even converting side streets into one way for mixed used and (with a barrier) the other half for bicycles.
Now, all that said I am not for a "war on the car". The way Canadian cities (well, many of them) are built the car is required. And in Toronto, though I use the TTC daily, there are certain trips (even in the city) that are practical only by car.
That agreed, it is obvious that when bikes and trucks and cars share a road there will be collisions. Forget who's to blame -- when a truck and bike collide the bike loses. And someone often dies.
So the idea is raised of bike lanes. Which seem sensible at first. But they are a very partial solution at best.
Bike lanes on the side (or centre) of mixed use roads are often blocked by delivery vans. Or careless, or selfish, motor vehicle drivers drive on the bike lane. Worse, the lanes tend to end abruptly where traffic is most dense and most dangerous. And of course bike lane in mixed use roads must cross other roads and collisions are very possible there.
What is needed is not bike lanes but dedicated bicycle paths. These are not with problems -- pedestrians walk on them (why? a death wish? or just foolishness?). And bicycle paths have an economic cost.
But bicycle paths are narrow, much cheaper than mixed use roads and bridges over mixed use roads can be fairly modest as they will not carry heavily loaded trucks.
As for the question "where?" look at a city map -- electric tower corridors are a good start. Next to major highways (not scenic but available land). Perhaps even converting side streets into one way for mixed used and (with a barrier) the other half for bicycles.
Now, all that said I am not for a "war on the car". The way Canadian cities (well, many of them) are built the car is required. And in Toronto, though I use the TTC daily, there are certain trips (even in the city) that are practical only by car.
Friday, September 4, 2009
Khadr
Khadr may be the most important decision in Canadian judicial history -- it may set the boundaries for where the government can act and where the judges can intervene. The Supreme Court was right to grant leave.
OTTAWA -- The Supreme Court of Canada, in agreeing Friday to consider the repatriation of Omar Khadr, will face the thorny question of what legal duty, if any, the government has to protect Canadian citizens who are detained abroad.
Without giving reasons, a three-judge panel granted the Harper government's request to appeal a court order to seek Mr. Khadr's return from Guantanamo Bay, Cuba, as a remedy for violating his charter rights by participating in his mistreatment at the U.S. military compound.
The Supreme Court stayed the repatriation order and agreed to expedite its appeal, scheduling a hearing for Nov. 13.
If the high court had refused to consider the appeal, the Conservative government would have had no choice but to comply with the April repatriation order from the Federal Court, which was upheld last month in the Federal Court of Appeal.
Government lawyers, in their application seeking leave to appeal in the Supreme Court, assert that there is "an emerging trend" in the Federal Court to issue orders that interfere with the government's discretion to conduct its foreign relations as it sees fit.
"Clarification of the extent to which the charter may reverse foreign policy is important to assist Canadian officials in carrying out Canada's international commitments and legal obligations," says the application.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
OTTAWA -- The Supreme Court of Canada, in agreeing Friday to consider the repatriation of Omar Khadr, will face the thorny question of what legal duty, if any, the government has to protect Canadian citizens who are detained abroad.
Without giving reasons, a three-judge panel granted the Harper government's request to appeal a court order to seek Mr. Khadr's return from Guantanamo Bay, Cuba, as a remedy for violating his charter rights by participating in his mistreatment at the U.S. military compound.
The Supreme Court stayed the repatriation order and agreed to expedite its appeal, scheduling a hearing for Nov. 13.
If the high court had refused to consider the appeal, the Conservative government would have had no choice but to comply with the April repatriation order from the Federal Court, which was upheld last month in the Federal Court of Appeal.
Government lawyers, in their application seeking leave to appeal in the Supreme Court, assert that there is "an emerging trend" in the Federal Court to issue orders that interfere with the government's discretion to conduct its foreign relations as it sees fit.
"Clarification of the extent to which the charter may reverse foreign policy is important to assist Canadian officials in carrying out Canada's international commitments and legal obligations," says the application.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Why is the subway full going home after 6:00 pm on Friday of a long weekend?
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
HOW DO I FIX A PAGE I TYPED ALL IN UPPER CASE BY MISTAKE!!!
If you realize you"ve been TYPING ALL IN CAPS FOR A FEW SENTENCES by accident, in an email or Word document, we have a quick fix for you so you don’t need to manually type in the text all over again.
This works in Microsoft Outlook as well as Microsoft Word (versions 1997 and later).
If you realize you just typed a few sentences all in CAPS, highlight all the words you wanted fix (CTRL + A will highlight the entire page, if you like), and then press SHIFT+F3 and all the UPPERCASE text will switch to lowercase text. Do it again and it’ll change to Title case, if you prefer.
For example:
HI MOM, HOW ARE YOU TODAY?
(Shift-F3)
hi mom, how are you today?
(Shift-F3)
Hi mom, how are you today?
This works in Microsoft Outlook as well as Microsoft Word (versions 1997 and later).
If you realize you just typed a few sentences all in CAPS, highlight all the words you wanted fix (CTRL + A will highlight the entire page, if you like), and then press SHIFT+F3 and all the UPPERCASE text will switch to lowercase text. Do it again and it’ll change to Title case, if you prefer.
For example:
HI MOM, HOW ARE YOU TODAY?
(Shift-F3)
hi mom, how are you today?
(Shift-F3)
Hi mom, how are you today?
Most vile of crimes
This isn't the longest sentence possible but it is a very serious sentence indeed:
Member of 'Toronto 18' handed 14 years
Saad Khalid, 23, is a member of the so-called "Toronto 18," who plotted a conspiracy to commit terrorism in the heart of Canada's largest city. However, the judge gave Khalid seven years of credit for time already served.
Though Ontario Superior Court Justice Bruce Durno accepted that Khalid is remorseful, he noted that terrorist offences are "the most vile" of crimes.
Durno added that Khalid's degree of responsibility in the plot "remains fairly high."
The judge left the parole board to decide Khalid's eligibility for early release.
Member of 'Toronto 18' handed 14 years
Saad Khalid, 23, is a member of the so-called "Toronto 18," who plotted a conspiracy to commit terrorism in the heart of Canada's largest city. However, the judge gave Khalid seven years of credit for time already served.
Though Ontario Superior Court Justice Bruce Durno accepted that Khalid is remorseful, he noted that terrorist offences are "the most vile" of crimes.
Durno added that Khalid's degree of responsibility in the plot "remains fairly high."
The judge left the parole board to decide Khalid's eligibility for early release.
Thursday, September 3, 2009
Bird for young woman
Amazing the things you learn when you read the TLS.
The word 'bird' to mean a young woman (a British usage widely deplored) does not come in any way from some analogy to birds.
Rather it comes from 'burd', meaning maiden or lady, derived from the Old English 'byrde', meaning well-born and perhaps conflated with, and certainly related to, 'bride'.
Ooops!
BETHLEHEM, Pennsylvania - Authorities in eastern Pennsylvania say they have identified a suspected bank robber using the wallet he left behind.
Bethlehem police say 51-year-old Lloyd Virgil Barclay held up a KNBT branch on Wednesday morning, making off with $800. But Barclay forgot his wallet, which police say he placed on the teller's counter when he presented a note demanding money.
The wallet had two photo IDs, a Social Security card and a Philadelphia criminal registration card. Police say the ID pictures match Barclay's image in surveillance footage.
Crossing the street
I was almost hit by a person riding a bike right through a red light. You'd think...
Bryant didn't get special treatment
Today's Metro (among others) suggests the Michael Bryant got special treatment in not having to do a bail hearing before release and in being allowed to change his clothes.
Both suggestions are wrong.
Absent alcohol, the case here, anyone charged with these offences who had roots in the community would have been released on agreeing to conditions and promising to come to court. Bail hearings are not mandated and, in fact, very few charges lead to a bail hearing.
As for being allowed to change, yes, very few people have clothes brought to them or do bother to change before or after leaving custody. But that's because it's very rare for the media to care about someone being charged or released. Getting the change of clothes to the defendant is no big deal.
I don't do a lot of bail work anymore but I used to keep a couple of jackets, shirts and ties in my car (large and small) to have prisoners put on before attending in court (if they were being released from the station I didn't bother). I never had a problem getting permission for them to change into the jacket and tie.
I know one lawyer who specialised in street walkers (largely a thing of the past) who always had extra clothes available so the accused didn't have to attend court in the clothes they were arrested in. Again, not a problem to have them change.
Michael Bryant is not getting special treatment.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Both suggestions are wrong.
Absent alcohol, the case here, anyone charged with these offences who had roots in the community would have been released on agreeing to conditions and promising to come to court. Bail hearings are not mandated and, in fact, very few charges lead to a bail hearing.
As for being allowed to change, yes, very few people have clothes brought to them or do bother to change before or after leaving custody. But that's because it's very rare for the media to care about someone being charged or released. Getting the change of clothes to the defendant is no big deal.
I don't do a lot of bail work anymore but I used to keep a couple of jackets, shirts and ties in my car (large and small) to have prisoners put on before attending in court (if they were being released from the station I didn't bother). I never had a problem getting permission for them to change into the jacket and tie.
I know one lawyer who specialised in street walkers (largely a thing of the past) who always had extra clothes available so the accused didn't have to attend court in the clothes they were arrested in. Again, not a problem to have them change.
Michael Bryant is not getting special treatment.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Woman's fight opens legal titans' secret files
I would be astounded if there was direct discrimination at McCarthys, or any major Canadian lawfirm.
But note the comment about "unable to meet deadlines".
Lawyers at the big firms often work 12 hour days 6 days a week for weeks at a time -- even in smaller firms lawyers often work very long hours (trust me, I know this from personal experience).
The internet and blackberrys have made the hours longer, not shorter.
It may well be that these hours have a differential gender impact; how, and if, such differential issues can be accomodated is a serious issue and not one that can be dealt with by easily.
McCarthy Tetrault's treatment of women under the spotlight
Kenneth Kidd Feature Writer
In the wake of a lawsuit alleging "systemic, gender-based discrimination," one of the country's biggest law firms is being forced next week to reveal top-secret data on the way it compensates and promotes lawyers.
McCarthy Tétrault LLP must also release an internal report on the status of women at the firm prepared by Catalyst Inc., well-known consultants on gender issues in the workplace.
It's believed to be the first time that a major Canadian law firm has been ordered to reveal such normally confidential information related to gender, one reason the case is attracting international attention in legal circles.
The Superior Court of Ontario has ordered McCarthys to provide that information as a result of a $12 million lawsuit filed by a former McCarthys partner, Diane LaCalamita.
McCarthys, which "vigorously denies" that LaCalamita was a victim of any workplace discrimination, has until Sept. 7 to comply.
...
Annual billing quotas common at law firms are seen as another obstacle to the progress of female lawyers who have families.
The LaCalamita narrative, according to her allegations, is all about a woman who is lured to a major firm with promises of a bright future, only to be pushed aside and eventually terminated by a firm "plagued by systemic gender-based discrimination."
...
In its statement of defence, McCarthys says LaCalamita "was unable to meet the standards expected of senior lawyers practising litigation with the Firm."
Among other things, McCarthys claims that LaCalamita "displayed poor judgement as a litigator," was "unable to meet deadlines" and didn't fulfill expectations for billable hours.
"As there was no reasonable prospect of finding an alternative role within the Firm that was acceptable to both her and the Firm, and for no other reason, her employment was terminated."
Full story: http://www.thestar.com/news/gta/article/690286
But note the comment about "unable to meet deadlines".
Lawyers at the big firms often work 12 hour days 6 days a week for weeks at a time -- even in smaller firms lawyers often work very long hours (trust me, I know this from personal experience).
The internet and blackberrys have made the hours longer, not shorter.
It may well be that these hours have a differential gender impact; how, and if, such differential issues can be accomodated is a serious issue and not one that can be dealt with by easily.
McCarthy Tetrault's treatment of women under the spotlight
Kenneth Kidd Feature Writer
In the wake of a lawsuit alleging "systemic, gender-based discrimination," one of the country's biggest law firms is being forced next week to reveal top-secret data on the way it compensates and promotes lawyers.
McCarthy Tétrault LLP must also release an internal report on the status of women at the firm prepared by Catalyst Inc., well-known consultants on gender issues in the workplace.
It's believed to be the first time that a major Canadian law firm has been ordered to reveal such normally confidential information related to gender, one reason the case is attracting international attention in legal circles.
The Superior Court of Ontario has ordered McCarthys to provide that information as a result of a $12 million lawsuit filed by a former McCarthys partner, Diane LaCalamita.
McCarthys, which "vigorously denies" that LaCalamita was a victim of any workplace discrimination, has until Sept. 7 to comply.
...
Annual billing quotas common at law firms are seen as another obstacle to the progress of female lawyers who have families.
The LaCalamita narrative, according to her allegations, is all about a woman who is lured to a major firm with promises of a bright future, only to be pushed aside and eventually terminated by a firm "plagued by systemic gender-based discrimination."
...
In its statement of defence, McCarthys says LaCalamita "was unable to meet the standards expected of senior lawyers practising litigation with the Firm."
Among other things, McCarthys claims that LaCalamita "displayed poor judgement as a litigator," was "unable to meet deadlines" and didn't fulfill expectations for billable hours.
"As there was no reasonable prospect of finding an alternative role within the Firm that was acceptable to both her and the Firm, and for no other reason, her employment was terminated."
Full story: http://www.thestar.com/news/gta/article/690286
Hate speech law unconstitutional: rights tribunal
This result is quite unexpected. It will end up at the Supreme Court. My own take is the decision is right -- there are Criminal Code provisions and they are sufficient.
Hate speech law unconstitutional: rights tribunal
Joseph Brean, National Post
The Canadian Human Rights Tribunal on Wednesday ruled that Section 13, Canada's much maligned human rights hate speech law, violates the Charter right to free expression because it carries the threat of punitive fines.
The shocking decision by Tribunal member Athanasios Hadjis leaves several hate speech cases in limbo, and appears to strip the Canadian Human Rights Commission of its controversial legal mandate to pursue hate on the Internet, which it has strenuously defended against complaints of censorship.
It also marks the first major failure of Section 13(1) of the Canadian Human Rights Act, an anti-hate law that was conceived in the 1960s to target racist telephone hotlines, then expanded in 2001 to the include the entire Internet, and for the last decade used almost exclusively by one complainant, activist Ottawa lawyer Richard Warman.
Mr. Warman's first big loss is a victory for the respondent Marc Lemire, webmaster of freeedomsite.org and a prominent figure in the Canadian far right.
Typically for the messy state of Canada's perennial hate speech debate, public reaction to the ruling yesterday was polarized, running the spectrum from glowing praise for the "bold" Mr. Hadjis, to criticism that his "outrageous" conclusion is "vulnerable on judicial review."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Hate speech law unconstitutional: rights tribunal
Joseph Brean, National Post
The Canadian Human Rights Tribunal on Wednesday ruled that Section 13, Canada's much maligned human rights hate speech law, violates the Charter right to free expression because it carries the threat of punitive fines.
The shocking decision by Tribunal member Athanasios Hadjis leaves several hate speech cases in limbo, and appears to strip the Canadian Human Rights Commission of its controversial legal mandate to pursue hate on the Internet, which it has strenuously defended against complaints of censorship.
It also marks the first major failure of Section 13(1) of the Canadian Human Rights Act, an anti-hate law that was conceived in the 1960s to target racist telephone hotlines, then expanded in 2001 to the include the entire Internet, and for the last decade used almost exclusively by one complainant, activist Ottawa lawyer Richard Warman.
Mr. Warman's first big loss is a victory for the respondent Marc Lemire, webmaster of freeedomsite.org and a prominent figure in the Canadian far right.
Typically for the messy state of Canada's perennial hate speech debate, public reaction to the ruling yesterday was polarized, running the spectrum from glowing praise for the "bold" Mr. Hadjis, to criticism that his "outrageous" conclusion is "vulnerable on judicial review."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Wednesday, September 2, 2009
More election talk
Jason Kenney says no deal with the NDP is possible -- but of course that doesn't mean the Conservatives can force the NDP to vote down the government.
“Look. We've always tried to demonstrate willingness to co-operate with the opposition parties. We did in the last budget. But we're not for sale to the highest bidder, least of all the NDP,” Mr. Kenney told Calgary radio show host Dave Rutherford today.
“It's a party of hard-core left-wing ideologues. … It's not like a moderate, centre-left party. These folks, they drink their own Kool-Aid right? So I don't think we can see a realistic arrangement with the NDP.”
“Look. We've always tried to demonstrate willingness to co-operate with the opposition parties. We did in the last budget. But we're not for sale to the highest bidder, least of all the NDP,” Mr. Kenney told Calgary radio show host Dave Rutherford today.
“It's a party of hard-core left-wing ideologues. … It's not like a moderate, centre-left party. These folks, they drink their own Kool-Aid right? So I don't think we can see a realistic arrangement with the NDP.”
Only a panel on appeal can find a party without standing
BDC Venture Capital Inc. v. Natural Convergence Inc., 2009 ONCA 637, released today, deals with a fairly esoteric issue about standing on an appeal (can a failed bidder appeal a sale). That said, the case makes clear that a motion to find a party without standing must be heard by a panel on appeal and not a single judge -- and that's a procedural point worth remembering:
[15] On the basis of these authorities, Broadview asks me to conclude that BluArc is without standing to bring its appeal and that the appeal should be stayed and the s. 195 stay lifted. Both Skyepharma and Consumers Packaging were heard by a panel of this court and not by a single judge sitting in chambers. In my view, a single judge does not have the jurisdiction in the circumstances of this case to decide that an appellant lacks standing to bring an appeal and to stay the appeal. To do so would be tantamount to quashing the appeal. A motion to quash an appeal, which may result in the final disposition of the appeal, is heard by a panel of the court.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
[15] On the basis of these authorities, Broadview asks me to conclude that BluArc is without standing to bring its appeal and that the appeal should be stayed and the s. 195 stay lifted. Both Skyepharma and Consumers Packaging were heard by a panel of this court and not by a single judge sitting in chambers. In my view, a single judge does not have the jurisdiction in the circumstances of this case to decide that an appellant lacks standing to bring an appeal and to stay the appeal. To do so would be tantamount to quashing the appeal. A motion to quash an appeal, which may result in the final disposition of the appeal, is heard by a panel of the court.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Remember the NDP
John Ivison: Real-world signs don't point to fall vote
No sooner had Michael Ignatieff told his caucus in Sudbury, Ont., that the Liberal party will no longer support Stephen Harper's Conservatives than headlines started to pop up saying that the Liberal leader is set to topple the government.
Let's all take a deep breath here, people. There are 308 seats in Parliament and the Liberals hold only 77 of them. To bring down the government they need the support of both the Bloc Québécois and the NDP.
The last Canwest poll by Ipsos Reid had the Dippers at 14% support, down from 18% at the last election, when they won 37 seats. In the interim, the party has been drained of cash and energy by provincial elections in British Columbia and Nova Scotia that have hurt its ability to fight a fully funded national campaign.
The bottom line is turkeys don't vote for Christmas, so don't expect NDP leader Jack Layton to be lining up to support a Liberal vote of non-confidence any time soon.
http://www.nationalpost.com/m/blog.html?b=fullcomment&e=john-ivison-real-world-signs-don-t-point-to-fall-vote&s=Home
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
No sooner had Michael Ignatieff told his caucus in Sudbury, Ont., that the Liberal party will no longer support Stephen Harper's Conservatives than headlines started to pop up saying that the Liberal leader is set to topple the government.
Let's all take a deep breath here, people. There are 308 seats in Parliament and the Liberals hold only 77 of them. To bring down the government they need the support of both the Bloc Québécois and the NDP.
The last Canwest poll by Ipsos Reid had the Dippers at 14% support, down from 18% at the last election, when they won 37 seats. In the interim, the party has been drained of cash and energy by provincial elections in British Columbia and Nova Scotia that have hurt its ability to fight a fully funded national campaign.
The bottom line is turkeys don't vote for Christmas, so don't expect NDP leader Jack Layton to be lining up to support a Liberal vote of non-confidence any time soon.
http://www.nationalpost.com/m/blog.html?b=fullcomment&e=john-ivison-real-world-signs-don-t-point-to-fall-vote&s=Home
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Tuesday, September 1, 2009
Impeachment defence to foreign judgment
The Trial Warrior blog is always worth reading.
Today's post -- see link below -- deals with United States v. Yemec. Here an Ontario Court recognises the possibility of this new impeachment defence to the enforcement of a foreign judgment.
"Audi alteram partem (Latin: hear the other side), is a principle of fundamental justice in most legal systems based upon the rule of law that no person should be judged without a fair hearing where each party is given a meaningful opportunity to be heard and to respond to the evidence in a court of law. In a decision released today, the Ontario Superior Court of Justice in United States v. Yemec has taken a bold step in recognizing the possibility of this new impeachment defence to the enforcement of a foreign judgment in Canada. The procedural history is long and tortuous, so a brief overview is in order."
http://thetrialwarrior.blogspot.com/2009/09/united-states-v-yemec-ontario-court.html
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Today's post -- see link below -- deals with United States v. Yemec. Here an Ontario Court recognises the possibility of this new impeachment defence to the enforcement of a foreign judgment.
"Audi alteram partem (Latin: hear the other side), is a principle of fundamental justice in most legal systems based upon the rule of law that no person should be judged without a fair hearing where each party is given a meaningful opportunity to be heard and to respond to the evidence in a court of law. In a decision released today, the Ontario Superior Court of Justice in United States v. Yemec has taken a bold step in recognizing the possibility of this new impeachment defence to the enforcement of a foreign judgment in Canada. The procedural history is long and tortuous, so a brief overview is in order."
http://thetrialwarrior.blogspot.com/2009/09/united-states-v-yemec-ontario-court.html
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
The Bonfire of the Vanities
Does anyone remember The Bonfire of the Vanities, a 1987 novel by Tom Wolfe? Worth a read.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Costs in criminal law
Today's decision in R. v. Brown, 2009 ONCA 633 gives a helpful summary of when (rarely!) costs are available in a criminal case:
[16] The traditional rule is that an accused person in a criminal case, whether successful or unsuccessful, ordinarily is not entitled to costs: R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 97. It is only where the accused can show at a minimum "a marked and unacceptable departure from the reasonable standards expected of the prosecution" that a costs order will be made: R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 ("974649"), at para. 87.
[17] It has been recognized in many cases that while costs awards in favour of the winning party are a familiar feature of civil proceedings, they are rare in criminal cases: see recent decisions by this court in R. v. Ciarniello (2006), 81 O.R. (3d) 561 ("Ciarniello"), at paras. 32-33; Canada (Attorney General) v. Foster (2006), 215 C.C.C. (3d) 59, at paras. 62-69; and R. v. Tiffin (2008), 90 O.R. (3d) 575, at paras. 94-98. This difference derives from the different purposes of civil and criminal proceedings. Civil cases are concerned with compensation and the efficient resolution of disputes. Costs awards compensate the successful litigant, at least partially, for the expense of litigation. Costs awards also serve as an important judicial tool to control proceedings, discourage unreasonable or inappropriate behaviour, and encourage out of court settlements. The threat of adverse costs awards discourages unnecessary or frivolous litigation and encourages parties to settle their disputes.
[18] Criminal proceedings are not brought by one party to vindicate a private interest but in the interest of the public at large: see Berry v. British Transport Commission, [1962] 1 Q.B. 306 (Eng. C.A.), at p. 327: "[a] plaintiff brings an action for his own ends and to benefit himself; it is therefore just that if he loses he should pay the costs. A prosecutor brings proceedings in the public interest, and so should be treated more tenderly." There is a concern that if costs awards were routine, the discretion of the Crown when acting in the public interest would be unduly influenced or fettered: see R. v. Robinson (1999), 142 C.C.C. (3d) 303 (Alta. C.A.), at para. 29:
The reasons for limiting costs are that the Crown is not an ordinary litigant, does not win or lose criminal cases, and conducts prosecutions and makes decisions respecting prosecutions in the public interest. In the absence of proof of misconduct, an award of costs against the Crown would be a harsh penalty for a Crown officer carrying out such public duties.
[19] Here the respondents seek costs as a remedy for the breach of their Charter rights pursuant to s. 24(1), and submit that costs are "appropriate and just in the circumstances" within the meaning of that section. In Ciarniello, we summarized the jurisprudence relating to costs as a Charter remedy at paras. 35-6:
The traditional aversion to costs in criminal cases is a product of the pre-Charter era. Because of their constitutional status, Charter rights have a higher claim to judicial protection than non-Charter rights and s. 24(1) entitles the victim of a Charter breach to an appropriate remedy...
On the other hand, the authorities are clear that this does not mean that costs will be routinely ordered in favour of accused persons who establish Charter violations. Galligan J.A. cautioned in R. v. Pawlowski that costs awards in favour of an accused will be "rare". As a general rule, when claimed by an accused, absent Crown misconduct, costs will not be an "appropriate and just" Charter remedy: see R. v. 974649 Ontario Inc., supra, at para. 87; R. v. Leduc, [2003] O.J. No. 2974, 176 C.C.C. (3d) 321 (C.A.), at para. 161; R. v. Robinson, supra. In R. v. Hallstone Products Ltd., [2000] O.J. No. 1051 (S.C.J.), at para. 33, LaForme J. suggested that the expanded jurisdiction to award costs against the Crown as a s. 24(1) remedy for a Charter breach in cases not involving Crown misconduct requires something that is "rare" or "unique" that "must at least result in something akin to an extreme hardship on the defendant." [Emphasis added.]
[20] As the Supreme Court observed in 974649, at paras. 80-81, "[i]n recent years, costs awards have attained more prominence as an effective remedy in criminal cases" for breaches of the Charter, especially in relation to disclosure obligations. Costs awards "are integrally connected to the court's control of its trial process" and, in disclosure cases, may allow the court to avoid the extremes of either a stay of proceedings or a mere adjournment. Costs may be "the only effective remedy to control [the court's] process and recognize the harm incurred, even in cases involving unjustified and flagrant disregard for the accused's rights" and such awards are "a quintessential example" of the development of appropriate remedies "essential to the meaningful enforcement of Charter rights through the s. 24 guarantee".
[21] I do not accept the appellant's central submission before us that the application judge failed to make the findings required to bring the Crown's conduct within the category of "a marked and unacceptable departure from the reasonable standards expected of the prosecution". In my view, the findings by the application judge bring this case within that standard as it applies to cases involving the violation of Charter rights, as been in the authorities that I have discussed above. The application judge rested his decision to award costs on the basis of a systemic failure on the part of the prosecution to respect both the statutory and Charter rights of the respondents. Those findings were fully supported by the record. He aptly described the conduct of the Crown and the situation it produced as "improper and unacceptable." The cause of that improper and unacceptable situation was the failure of the Crown to make the necessary arrangements to have sufficient court resources available to deal with the known fact that there would be a massive intake of detained persons.
[22] As the application judge observed, the arrest of the respondents was part of an operation that involved careful and detailed planning. The central element of that careful and detailed plan was the sudden and sweeping arrest of a large number of suspects. The execution of such a plan was bound to overwhelm the ordinary capacity of the bail court to handle those arrested in a timely fashion. Regrettably, however, the otherwise careful and detailed plan entirely ignored the obvious fact that unless something was done to ensure that adequate court resources would be available on the morning of the sweeping arrests, chaos and the denial of the statutory and Charter rights of those arrested was inevitable.
[23] The respondents should not have been required to bring habeas corpus applications to secure their statutory and Charter rights. The situation that produced their need to resort to this remedy was entirely predictable. It could and should have been avoided.
[24] The application judge was quite rightly alarmed by what had occurred. His response to the situation was measured and very much in the spirit of the rationale for costs awards in criminal matters identified in 974649 as an appropriate remedy to avoid extremes. He denied the remedy of release and did what he could to have the bail hearings expedited. However, he had identified a systemic failure in the processing of the respondents post-arrest which resulted in a serious violation of their rights, and he was entitled to mark his disapproval of what had occurred by ordering the Crown the pay the costs of proceedings that should never have been required. While the appropriate remedy in most cases involving delayed bail hearings will be to direct or conduct an expedited hearing, the application judge found this to be an exceptional case calling for an exceptional remedy.
[25] In argument before us, the Crown laid great emphasis on the fact that this was a prosecution that involved serious charges against dangerous individuals. That, however, cannot justify any departure from the rights secured by the Criminal Code and the by the Charter. Quite apart from the need to respect the rights of those eventually found to be guilty, sweeps of this kind will often bring before the court bystanders who were simply in the wrong place at the wrong time.
[26] I would add that I have no doubt that, as was submitted on this appeal, the unfortunate Crown attorney who found himself in the bail court on the day the predictable storm hit did his best to cope with an impossible situation. Likewise, the Crown attorney faced with the habeas corpus applications made commendable efforts to arrange earlier dates for the bail hearings, albeit dates outside the statutorily prescribed period. However, it is not the conduct of those Crown attorneys that formed the basis for the costs order. The submission made before us that that no costs should be awarded because the Crown attorneys in bail court and at the hearing of the habeas corpus applications made best efforts to deal with a bad situation simply misses the point of both the application judge's findings and the rationale for his award of costs. While it may not be possible to lay responsibility for the violation of constitutional rights at the feet of any particular prosecutor, that does not preclude a costs award to sanction the failure of the Crown to take any steps to avoid the entirely predictable violation of the statutory and Charter rights of the respondents that occurred in this case.
[27] Costs in criminal cases have always been and still remain an exceptional remedy to be awarded only in "rare" cases. I am not persuaded that the trial judge erred in finding that the most unusual circumstances of this case brought it within the exceptional category calling for an award of costs.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
The top ten most irritating phrases
Add some more:
1 - At the end of the day
2 - Fairly unique
3 - I personally
4 - At this moment in time
5 - With all due respect
6 - Absolutely
7 - It's a nightmare
8 - Shouldn't of
9 - 24/7
10 - It's not rocket science
1 - At the end of the day
2 - Fairly unique
3 - I personally
4 - At this moment in time
5 - With all due respect
6 - Absolutely
7 - It's a nightmare
8 - Shouldn't of
9 - 24/7
10 - It's not rocket science
Monday, August 31, 2009
Portugal is right
I've blogged on this before but there's a good post on FullComment about Portugal and decriminalizing drugs.
Raphael Alexander: Evidence of success in decriminalizing drugs
Full Comment, Raphael Alexander
A socially conservative point of view generally holds that decriminalization of drugs will only lead to drug tourism, greater dependency for addicts, and a gradual social decline. But the Portuguese experiment would not seem to bear out those preconceptions, as revealed in the latest issue of the Economist.
Portugal decriminalized personal use and possession of all drugs in 2001, including such harmful narcotics as heroin and cocaine. Police were ordered not to arrest anyone discovered taking any illicit narcotics. At the time the rest of Europe thought that Portugal had gone insane, deeming it "ultraliberal legislation".
Interestingly, however, if you go into the news archives from that time period, there were a lot of publications in North America praising the move.
The predicted drug tourism and hardcore abuse, however, never came to pass:
Mr.Greenwald claims that the data show that "decriminalisation has had no adverse effect on drug usage rates in Portugal", which "in numerous categories are now among the lowest in the European Union".
This came after some rises in the 1990s, before decriminalisation. The figures reveal little evidence of drug tourism: 95% of those cited for drug misdemeanours since 2001 have been Portuguese. The level of drug trafficking, measured by numbers convicted, has also declined.
http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/08/31/raphael-alexander-evidence-of-success-in-decriminalizing-drugs.aspx
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Raphael Alexander: Evidence of success in decriminalizing drugs
Full Comment, Raphael Alexander
A socially conservative point of view generally holds that decriminalization of drugs will only lead to drug tourism, greater dependency for addicts, and a gradual social decline. But the Portuguese experiment would not seem to bear out those preconceptions, as revealed in the latest issue of the Economist.
Portugal decriminalized personal use and possession of all drugs in 2001, including such harmful narcotics as heroin and cocaine. Police were ordered not to arrest anyone discovered taking any illicit narcotics. At the time the rest of Europe thought that Portugal had gone insane, deeming it "ultraliberal legislation".
Interestingly, however, if you go into the news archives from that time period, there were a lot of publications in North America praising the move.
The predicted drug tourism and hardcore abuse, however, never came to pass:
Mr.Greenwald claims that the data show that "decriminalisation has had no adverse effect on drug usage rates in Portugal", which "in numerous categories are now among the lowest in the European Union".
This came after some rises in the 1990s, before decriminalisation. The figures reveal little evidence of drug tourism: 95% of those cited for drug misdemeanours since 2001 have been Portuguese. The level of drug trafficking, measured by numbers convicted, has also declined.
http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/08/31/raphael-alexander-evidence-of-success-in-decriminalizing-drugs.aspx
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Yes, Senate reform ...
Jeff Jedras in Full Comment:
You see, I support Senate reform. I'm just not sure Stephen Harper does. Oh, sure, he likes it as an issue. It plays well with his base to rail against the evil, unelected Senate. And the Senate is a handy bogeyman for him to blame his assorted inadequacies and short-comings on. Par example, after refusing Liberal offers to fast-track the bulk of his crime legislation, he finally gets it though the House. Then , after the Senate has it for less than a week, he accuses them of obstructionism. When legislation dies on the order paper because he prorogues parliament to avoid defeat, he blames the Senate. When the Senate wants to actually do its job of sober second though and not rubber-stamp bills in a day, well, you get the idea.
http://www.nationalpost.com/m/blog.html?b=fullcomment&e=jeff-jedras-if-harper-really-wanted-to-reform-the-senate-he-would&s=Home
You see, I support Senate reform. I'm just not sure Stephen Harper does. Oh, sure, he likes it as an issue. It plays well with his base to rail against the evil, unelected Senate. And the Senate is a handy bogeyman for him to blame his assorted inadequacies and short-comings on. Par example, after refusing Liberal offers to fast-track the bulk of his crime legislation, he finally gets it though the House. Then , after the Senate has it for less than a week, he accuses them of obstructionism. When legislation dies on the order paper because he prorogues parliament to avoid defeat, he blames the Senate. When the Senate wants to actually do its job of sober second though and not rubber-stamp bills in a day, well, you get the idea.
http://www.nationalpost.com/m/blog.html?b=fullcomment&e=jeff-jedras-if-harper-really-wanted-to-reform-the-senate-he-would&s=Home
(Source: OECD, http://www.oecd.org/dataoecd/62/27/43514819.pdf, StatsCan)
Sunday, August 30, 2009
So a Post got picked up by Richard Dawkins and re posted and got some comment
The web is amazing that way -- something you think sank without a trace comes to life again:
http://richarddawkins.net/article,4243,Honour-killing-is-terrorism,James-Morton---The-Toronto-Sun
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Harper cabinet unleashes flood of patronage
Maybe I should have been a Conservative???
Harper cabinet unleashes flood of patronage
By Tim Naumetz
THE CANADIAN PRESS
OTTAWA_ Weeks before Stephen Harper named some of his closest Tory friends to the Senate, his cabinet quietly approved a flood of appointments to federal boards that also rewarded party faithful.
At least 20 of the 111 appointments made Aug. 4 went to identifiable federal and provincial Conservative donors and supporters.
That includes a failed candidate in Vancouver, a top organizer with the Nova Scotia party, and a would-be Senate nominee from Alberta.
The postings come with per diems of up to $450 for part-time positions and salaries of up to $118,000 a year for full-time posts.
Some of the bodies involved were: the Immigration and Refugee Board, Canada Pension Plan review tribunals, employment insurance referee boards, the parole board, coastal pilotage authorities, port authorities and museum boards.
Nearly a third of the posts were first-time assignments and the remainder were renewals of three-year terms set to expire in late October or November.
The rush of appointments followed a little-noticed series of judicial appointments to superior courts across the country in July.
That round brought the total number of superior court judges appointed by the Harper government to 201 since 2006.
It also further fuelled opposition claims that the prime minister has abandoned election promises of transparency and merit-based public-service and judicial appointments.
Conservative appointments to courts, boards, quasi-judicial tribunals and Crown corporations now total an estimated 3,000 since Harper became prime minister.
The Tories are also closing in on the Liberals in the Senate after Harper's appointment of nine senators Thursday, including at least two close advisers.
Several of the earlier judicial posts went to lawyers with Tory connections.
Lawrence O'Neill is a former Progressive Conservative MP from Nova Scotia whose anti-abortion positions were the subject of controversy when he was named to the bench in 2007.
And Ronald Stevens was a member of the Alberta Conservative party, a sitting member of the legislature, and former attorney general, when he was appointed in May.
Harper has yet to establish his promised Public Appointments Commission to set standards and criteria for cabinet nominations to federal posts. That despite the fact that Treasury Board documents show a four-person secretariat set up to support the commission has cost taxpayers a total of $3.6 million since 2006.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Girls' names determine income later in life: study
This story may refelct nothing more than a selection effect -- that is, parents who pick very feminine names may (subconsciously) direct their daughters to more traditionally feminine roles and those who pick other names may not have that direction. I wonder what effect there is on boys having names that could be seen as girls names?
Girls' names determine income later in life: study
By Misty Harris,
A new study has found females with masculine names fare far better in legal careers, including increased pay and greater likelihood of of judicial appointment.
A well-chosen baby name, at least for future legal beagles, can pay higher dividends than mere immunity from playground jeers, according to two new economic studies.
University researchers report that "females with masculine names fare far better in legal careers than females with feminine names," with data showing gender-bending monikers increase the amount of money the woman commands per hour as well as her odds of being appointed a judge.
Though the annals of Canadian justice seem to contradict this — our highest court has seen such femininely named judges as Marie, Beverley, Rosalie and Bertha — the study authors report "robust support" for the effects, which they predict have implications for other traditionally male-dominated fields as well.
"When we see a masculine name, something in our subconscious is cued," says Bentley Coffey, an economist at Clemson University in South Carolina. "There seems to be a subtle sexist notion, even if it's not gender discrimination per se."
In the American Law and Economics Review, Coffey and his co-authors report that changing a woman's name from something feminine, such as Sue, to a gender-neutral name, like Kelly, increases her odds of being appointed a judge by five per cent. A predominantly male name, such as Cameron, triples the odds of becoming a judge. And a swap from Sue to Bruce, a name used almost exclusively for men, increases the odds of judgeship by a factor of five.
Girls' names determine income later in life: study
By Misty Harris,
A new study has found females with masculine names fare far better in legal careers, including increased pay and greater likelihood of of judicial appointment.
A well-chosen baby name, at least for future legal beagles, can pay higher dividends than mere immunity from playground jeers, according to two new economic studies.
University researchers report that "females with masculine names fare far better in legal careers than females with feminine names," with data showing gender-bending monikers increase the amount of money the woman commands per hour as well as her odds of being appointed a judge.
Though the annals of Canadian justice seem to contradict this — our highest court has seen such femininely named judges as Marie, Beverley, Rosalie and Bertha — the study authors report "robust support" for the effects, which they predict have implications for other traditionally male-dominated fields as well.
"When we see a masculine name, something in our subconscious is cued," says Bentley Coffey, an economist at Clemson University in South Carolina. "There seems to be a subtle sexist notion, even if it's not gender discrimination per se."
In the American Law and Economics Review, Coffey and his co-authors report that changing a woman's name from something feminine, such as Sue, to a gender-neutral name, like Kelly, increases her odds of being appointed a judge by five per cent. A predominantly male name, such as Cameron, triples the odds of becoming a judge. And a swap from Sue to Bruce, a name used almost exclusively for men, increases the odds of judgeship by a factor of five.
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