Saturday, September 12, 2009

Ignatieff addresses LPC(O) Executive Board


Unexpectedly Michael Ignatieff addressed the Executive Board in Ottawa today. He received a warm welcome.

Political infighting


The Tory commitment to ‘eliminate’ Canada’s total net debt by 2021 now looks absurd

I'm not troubled by deficit spending in the context of short term stimulus for an economy in trouble. The problem is systemic debt, the type of deficits eliminated by tough budgets of (Liberal) governments past. The real problem is the lack of credibility in terms of numbers. Still, the article is worth a read.

Terence Corcoran

http://www.nationalpost.com/m/blog.html?b=fullcomment&e=terence-corcoran-canada-s-1-trillion-debt-baby&s=Home


Debt is good, even for governments. But it depends on the kind of debt, what it's used for and what the financial plan is for getting out of debt. Finance Minister Jim Flaherty's latest revelations on the future of Ottawa's annual deficits do not fill one with confidence that the federal government has a firm grip on the floodgates that control the level of debt in Canada, not all of which is going to be doing much good for the economy.

By 2015, said Mr. Flaherty in his surprise fiscal update on Thursday, Ottawa will have pretty well tamed the beast. He said the annual deficit in 2015 will be only be about $5-billion, "a very modest number to deal with."

The trouble with very modest numbers in the $5-billion range is that they tend to pop up without notice on a regular basis in government operations and then quickly, like gurgling slimy creatures in the movies, turn into gigantic long-term problems that are not so easy to handle. The next thing you know, you're dealing with real money.

For instance, the federal deficit for this year, originally estimated at $50-billion, is now a modest 10% higher at $55-billion. Going forward, Mr. Flaherty laid out a slightly revised series of deficits that would still, under the best of circumstances, run the national debt up by $170-billion by 2015. That would bring Ottawa's total net debt to $628-billion, a record in nominal dollars and about $19,000 per capita — compared with $608-billion or $20,000 per capital in 1997, the peak year for federal debt in current dollars. The numbers are different in constant deflated dollars, but not that different. The 1997 figure would be equivalent to $24,000 today. For taxpayers, having to carry a debt burden of $20,000 today isn't a whole lot better than $24,000 in 1997.

That's not progress, especially from a government that in 2006 boldly committed to "eliminating total government net debt."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Breakfast in Ottawa


It's the Executive Board meeting for LPC(O) in Ottawa this weekend. No doubt there will be much said and, perhaps, something learned!!!

Stay tuned!!!

The politics of division and demonization applied to courts and judges.

Every lawyer has seen this situation -- a client loses a case and blames the judge. It's easy to do and it shifts the responsibility from the client.

I was reminded of that situation when I heard Stephen Harper spoke to party faithful and told them:

"Imagine how many left wing ideologues [the Liberals] would be putting in the courts, federal institutions, agencies, the senate".

Stephen Harper suspects he is going to lose a major court battle. And so he felt the need to slag Canadian judges as "left wing ideologues". That way, like the client who lost a case, he preemptively shifts the blame. It is the politics of division and demonization applied to courts and judges.

Of course, also like the client who lost the case, the blaming of judges is wholly bogus.

Canada has an enviable tradition of judicial independence dating back to the earliest days of the British settlements that would become Canada. Canadian judges are consistently, and rightly, held in high regard by the public.

But part of the role of judges is to make tough and, sometimes, unpopular decisions. The very reason we have judicial independence is to allow judges to make those difficult decisions.

Since the patriation of the Constitution in 1982 judges have had to supervise the Federal Government and hold it to the standards of due process and fairness set out in the Constitution. If there is legislation or a governmental action contrary to the Constitution a Court is obliged to find the legislation or act invalid. When judges hold legislation invalid as breaching the Constitution they are not usurping power from Parliament but rather applying the fundamental law that governs Canada and indeed creates Parliament itself.

But some see the application of law as being somehow illegitimate.
So, a few years ago, Stephen Harper said "I share many of the concerns of my colleagues and allies about biased 'judicial activism' and its extremes. I agree that serious flaws exist in the Charter of Rights and Freedoms, and that there is no meaningful review or accountability mechanisms for Supreme Court justices." (Stephen Harper, Globe and Mail, June 13, 2000). At least Stephen Harper's attacks on judges have the virtue of consistency.

Especially now there may be good reason for Stephen Harper to try to paint judges as being mere puppets of ideology. The Khadr case is finally coming to an end.

On November 13, 2009 the Supreme Court of Canada will hear the case and likely require the Federal Government to ask for the repatriation of Omar Khadr.

Such requirement is both distasteful and embarrassing for the Conservatives. It's easier to blame the Courts for being biased than to face up to the fact the case shouldn't have been fought.

It's easier but it's wrong.

Friday, September 11, 2009

The Attorney General's letter to the Bar

Dear Member of the Bar:

As many of you know, legal aid has been an ongoing passion of mine, throughout my 25 years as a criminal defence lawyer and during my time in government.  That's why I was pleased to announce that the McGuinty government is investing $150 million over the next four years.

This 21% increase to Legal Aid Ontario's base funding means that Legal Aid Ontario will receive an additional $60 million in year four and every year thereafter.  This investment means that the government's contribution to Legal Aid will rise from $288 million per year to $348 million per year. We understand that to get legal aid to a better place, we have to properly support lawyers.

This is the largest investment that the province has made since the beginning of legal aid.  We are committed to ensuring that the poorest Ontarians get the legal support that they need, when they need it and in the way that they need it. 

I am confident that the Bar shares these goals.  This investment will support poverty alleviation.  It will also help drive significant reforms in our family and criminal courts—which will themselves help Ontarians needing assistance.

The transformation plan targets four key areas: creating a central role for legal aid clinics in poverty alleviation; fostering a faster, less confrontational and simpler family justice system; promoting justice effectiveness through the use of block fees; and improving the approach to big cases.

The members of the Bar, including the Alliance for Sustainable Legal Aid, asked us for two things:  an additional investment and an assurance that they would not simply be presented with a reform plan that was a fait accompli.  As a result, we will immediately establish an Advisory Group in each of five areas: family, clinics, large criminal case management, standard criminal cases and immigration law. 

Your advice as front-line service providers, on the advisory groups will inform how best to achieve our mutual goals.

There are a few parts of our announcement that I would like to clarify:

1. We have been explicitly given direction to develop and seek approval of an indexation mechanism.  This has always been part of our legal aid renewal plan.  The implementation would take place in 2013 (our investment rises every year until then);

2.      We understand that appropriate support is required for service providers to assist Ontario's vulnerable and are open to the Advisory Working Group's advice on the best way to provide that support so that we get experienced counsel in family and criminal matters.  There was a specific commitment to look at models such as the British Columbia big case model if the advisory group so advised;

3.      This historic investment in legal aid is not the government's "opening proposal" as some have suggested.  This is the single largest increase to legal aid funding ever in Ontario.  In fact, it is one of the largest single justice sector investments in history.  The discussion from here forward needs to be about how to make the funding work as well as possible; an over 20% increase to LAO's base budget is unprecedented and significant in the best of times. It is extraordinary in these times.

4.      The Major Case Management Office is being created to provide the required accountability and quality control that the Bar has supported. The government is responsible to ensure that cases progress and that the rights of the accused are protected.

5.      Legal Aid is responsible to ensure that the accused who need counsel to defend themselves on serious charges but cannot afford them have access to counsel. To the extent that members of the private bar remain unavailable to do these cases, a large case office will have to develop the permanent capacity to do them.

The capacity and role of this office, will, therefore, depend, on the availability of private counsel.

We are committed to a legal aid system that provides support to Ontarians when they are at their most vulnerable. This investment will ensure that a vibrant legal aid system is able to assist those in need, now and in the future.

Sincerely,

Original Signed


By Hon. Chris Bentley

Hon. Chris Bentley
Attorney General
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

I aways get sleepy on Friday afternoon...


The South African runner Caster Semenya

Her body is that of a woman. She has lived as a woman. That's enough.

Hearsay

Today's decision in R. v. Moo, 2009 ONCA 645 is a good summary of admission of hearsay especially in domestic abuse cases: 

5.         The Governing Principles

[89]         The deceased's out-of-court statements tendered by the prosecutor to establish the truth of their contents were prima facie inadmissible because they contravened two exclusionary canons of the law of evidence. The first, which assumed paramount importance at trial, was the hearsay rule.  The second, which occupied a less prominent position at trial, was the character rule.

[90]         At trial, the prosecutor advanced her case for the exceptional admission of this hearsay on the principled basis, not on the ground that what was proposed qualified under an existing hearsay exception.  The necessity test was met – the declarant was deceased.  What remained for the trial judge to determine were two issues:

i.          Were the proposed statements, or any of them, reliable?

ii.         Did the probative value of any otherwise admissible hearsay exceed its prejudicial effect?

[91]         The reliability requirement or criterion, an essential constituent of the principled approach to hearsay, attempts to ensure the reliability of the trial process: R. v. Khelawon, [2006] 2 S.C.R. 787, at para. 49. It does so by insisting that, to be admissible by exception to the general rule of exclusion, hearsay evidence must demonstrate a measure of reliability, which we term "threshold reliability", before it can form part of the evidentiary basis for findings of fact. 

[92]         To satisfy this reliability requirement, hearsay evidence must be sufficiently reliable to overcome the dangers associated with it.  In the case at hand, those dangers arise from the difficulty or inability to test the evidence before the trier of fact:  the declarant was not available for cross-examination before the trier of fact.  And so it is that we must look to the circumstances in which the declarations were made to see whether they can serve as a surrogate for the traditional means of testing reliability, contemporaneous cross-examination.  In some instances, the circumstances in which a declaration came about may render it sufficiently reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process: Khelawon, at para. 49.

[93]         It should scarcely surprise that the principled approach to the exceptional admission of hearsay disavows any closed list of factors to be applied to determine whether the circumstances in which a hearsay statement came about meet the reliability requirement in an individual case.  While the inquiry in circumstances like those here has as its primary focus, the circumstances surrounding the making of the statement, its borders are not so restrictive: Khelawon, at para. 100.

[94]         In the end, the inquiry into reliability is at once functional and case-specific, not formulaic or subject to a priori rules.  In each case, the focus of the inquiry into reliability is on the particular dangers raised by the hearsay evidence tendered for reception, and on those attributes or circumstances relied upon by the proponent to overcome those dangers: Khelawon, at para. 93; R. v. Blackman, [2008] 2 S.C.R. 298, at para. 54.

[95]         Satisfaction of the necessity and reliability requirements of the principled approach to hearsay removes the hearsay rule as a barrier to admissibility, but does not guarantee that the hearsay statements will be admitted.  Trial fairness may encompass factors beyond the narrow inquiry into necessity and reliability mandated by the principled approach to the admissibility of hearsay.  Despite satisfaction of these two criteria, a trial judge has a discretion to exclude otherwise admissible hearsay evidence where its probative value is outweighed by its prejudicial effect: Khelawon, at para. 49.

[96]         The second admissibility rule that the appellant invokes looks to the substance of the hearsay declarations, in particular their disclosure of the appellant's bad character. The character rule generally prohibits the use of character evidence as circumstantial proof of conduct: R. v. Handy, [2002] 2 S.C.R. 908, at para. 31.  This exclusionary rule equally bars evidence of similar acts or extrinsic misconduct to support an inference that an accused has the propensity or disposition, in other words, character, to do the type of acts charged and, accordingly, is guilty of the offence: Handy, at para. 31.  We establish guilt by proof of conduct, not by proof of character.

[97]         Despite this general rule excluding character evidence as circumstantial proof of guilt, we recognize that, sometimes, evidence of prior misconduct, which tends to show bad character, may be so highly relevant and cogent that its probative value in the search for the truth outweighs any potential for misuse: Handy, at para. 41. Thus, we permit admission of this evidence by exception where its probative value exceeds its prejudicial effect.

[98]         In prosecutions for domestic homicide, evidence is frequently admitted to elucidate the nature of the relationship between the accused and the deceased. This evidence, which often discloses misconduct other than that charged, not only demonstrates the nature of the relationship between the parties, but also may afford evidence of motive and animus relevant to establish the identity of the deceased's killer and the state of mind with which the killing was done: R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.), at para. 27; R. v. Cudjoe 2009 ONCA 543, at para. 64; R. v. Van Osselaer (2002), 167 C.C.C. (3d) 225 (B.C. C.A.), at para. 23, leave to appeal refused (2003), 313 N.R. 199n (S.C.C. ).

[99]         Evidence of extrinsic misconduct comes with baggage – moral prejudice (the potential stigma of "bad personhood") and reasoning prejudice (including potential confusion and distraction of the jury from the actual crime charged): Handy, at para. 100.

[100]     Where evidence of extrinsic misconduct is admitted, one antidote to ensure that prejudice does not substitute for proof are mid-trial and final cautions that educate jurors about the permitted and prohibited use of the evidence. This general rule does not apply, however, where the extrinsic misconduct evidence is offered to demonstrate motive or animus towards the victim in a prosecution for unlawful homicide: R. v. Jackson (1980), 57 C.C.C. (2d) 154 (Ont. C.A.), at pp. 168-169; R. v. Merz  (1999), 140 C.C.C. (3d) 259 (Ont. C.A.), at para. 59; R. v. Pasqualino (2008), 233 C.C.C. (3d) 319 (Ont. C.A.), at paras. 65-68.

[101]     Appellate deference is due to the decisions of trial judges determining that hearsay evidence meets the test of threshold reliability and that the probative value of evidence, whether hearsay or extrinsic misconduct, exceeds its prejudicial effect: R. v. Couture, [2007] 2 S.C.R. 517, at paras. 81 and 132; R. v. S. (S.) (2008), 232 C.C.C. (3d) 158 (Ont. C.A.).
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Transcripts are not enough

With thanks to Yossi Schochet here are some quotations showing transcripts do not capture the full trial experience:


Scopelliti, [1981] O.J. No. 3157 (CA) at para 80: " It is rarely possible, however, to capture the atmosphere of a trial by a reading of the transcript." 

K.G.B., [1993] S.C.R. No. 22 at para 98: " The audio-visual medium captures other elements of the statement lost in a transcript, such as actions or distinctive motions which the witness demonstrates (as in this case), or answers given by nodding or shaking the head." 

Harder, [2002] B.C.J. No. 536 (CA):    15     It might appear from the bare printed words of the transcript that the sentencing judge was somewhat brusque during his exchanges with counsel at the sentencing hearing...However, a printed transcript never captures the full picture. It does not pick up pauses, gestures, changes in inflection of the voice, and it is really just a bare record of what occurred. 

White v. The Queen, [1964] N.B.J. No. 7 (CA):     2     Without the advantage the learned magistrate possessed of seeing and hearing the witnesses and observing their demeanour and attitudes in the witness box, I am not prepared on a bare reading of the cold text of the transcript of testimony taken below to pit my judgment against his. 

R.A.K., [1995] B.C.J. No. 1199 (SC) at para 9: "The bare transcript does not afford the court adequate opportunity to reliably take the full measure of her testimony; in my view it would be imprudent to base a final decision, which would bring this proceeding to an end, upon the transcript alone."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Ghosts on campus

Stories of haunted buildings on campus are common. In the 1970's the Astronomy Department at Western was supposed to be in ghost infested quarters -- I always thought that silly -- the ghosts of times past lingered more in Huron College!!!

Seriously, though, the story of a woman killed at U of T is tragic. Common though it is, the urban explorer phenomenon is not a safe concept. There are reasons why the public is not allowed into certain areas of otherwise public places. Sadly the deceased learned that lesson.

Woman falls to death while 'ghost-hunting' in T.O.

A woman has fallen to her death after attempting to jump across a gap in the roof of a historic, Gothic-style building at the University of Toronto while out on a first date.

Leah Kubic, 29, fell three or four storeys after a wire support gave out on the roof, Toronto police spokesperson Const. Tony Vella told ctvtoronto.ca.

Kubic, whose 30th birthday was only a few weeks away, was taken to a downtown hospital where she was pronounced dead.

9/11

I clearly remember the day eight years ago.

My assistant came to tell me a plane hit a building in NYC. My instinct was (I'm sorry to admit):

"so what? Some small private plane got lost and hit a building -- rough on the people killed but so's a car crash".

I was wrong.

And I will think about that when I get on a plane to Ottawa later today ... .

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

416 225 2777

Corrina and Anton


Thursday, September 10, 2009

Another issue from Winlow -- roadside statements by motorists are never voluntary? Roadside statements by motorists are never admissible?

After I read York (Regional Municipality) v. Winlow, 2009 ONCA 643, released today, there was something that troubled me. Now, pushing midnight I realize what that something was.

As part of the Court's reasoning the Court noted, with approval, roadside plea negotiations with the peace officer charging the motorist. The Court suggests that "systemically" this roadside negotiation is a useful and efficient practice.

Of course, that means that, since such a practice exists, whenever a motorist is stopped the discussions with the peace officer take place in circumstances where the motorist has reason to expect "hope of favour" -- a better deal.

Perhaps such "hope of favour" applies to any roadside stop -- including dangerous driving or impaired driving? After all, if a practice of roadside plea negotiations exists why would an accused mentally limit it to HTA matters?

Regardless that means roadside discussions, at least for HTA matters (and perhaps others), are not voluntary.

And that means, because of the confession rule, statements made by an accused stopped at roadside are never admissible.

Quite a significant point!

See the relevant passage below:

[61]         I do not consider it inappropriate when a police officer uses discretion to charge a driver with speeding at a rate less than the actual rate over the speed limit.  In a sense it is a form of plea bargaining.  Normally, the prosecutor engages in plea bargaining with the defence.  If a police officer charged a person with speeding 30 km per hour over the speed limit, and the prosecutor said that the charge would be reduced by 15 km if the person pleaded guilty, no one could seriously object.  Plea bargaining by the prosecution and the defence is as essential to the effective working of the provincial regulatory system as it is to the effective working of the criminal justice system.

[62]         In this case, the police officer, not the prosecutor, initiated the plea bargaining.  Many offending drivers no doubt welcome receiving this "break" from the officer, without having to go to court to obtain it.  Systemically, many cases can be disposed of without using valuable court time and resources.  Indeed, I expect that the large number of speeding charges, the heavy volume of traffic cases before justices of the peace, and the desirability of finding an efficient way to deal with many of these cases has prompted the practice now before this court.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Time to sleep


Amending up proper

Sometimes a motorist gets a speeding ticket and the officer lowers the rate of speed charged. So the charged speed is less than the real speed (say 75 reduced to 60).

What if the motorist demands a trial -- can the prosecution "amend up" the speed to meet the actual speed?

The Court of Appeal today in York (Regional Municipality) v. Winlow, 2009 ONCA 643 said "yes" subject to certain limits:

[61]         I do not consider it inappropriate when a police officer uses discretion to charge a driver with speeding at a rate less than the actual rate over the speed limit.  In a sense it is a form of plea bargaining.  Normally, the prosecutor engages in plea bargaining with the defence.  If a police officer charged a person with speeding 30 km per hour over the speed limit, and the prosecutor said that the charge would be reduced by 15 km if the person pleaded guilty, no one could seriously object.  Plea bargaining by the prosecution and the defence is as essential to the effective working of the provincial regulatory system as it is to the effective working of the criminal justice system.

[62]         In this case, the police officer, not the prosecutor, initiated the plea bargaining.  Many offending drivers no doubt welcome receiving this "break" from the officer, without having to go to court to obtain it.  Systemically, many cases can be disposed of without using valuable court time and resources.  Indeed, I expect that the large number of speeding charges, the heavy volume of traffic cases before justices of the peace, and the desirability of finding an efficient way to deal with many of these cases has prompted the practice now before this court. 

[63]         However, when drivers, as is their right, decide not to plead guilty and pay the set fine, but to instead defend the charge at a trial, different considerations come into play.  The prosecutor then has carriage of the charge against the defendant.  The prosecutor's carriage of the charge includes the discretion to manage the prosecution in accordance with the statute. 

[64]         And, under s. 34(2) of the POA, the legislature has expressly authorized the court to amend a charge to conform to the evidence disclosed at trial.  Defendants have no vested right to insist on a trial only on the charge named on the certificate of offence.  The prosecutor may thus exercise discretion by asking the court to "amend up" the certificate.  The legislation gives the prosecutor the right to do so: see R. v. Irwin.  It is not for the courts to interfere with the exercise of prosecutorial discretion except in cases of flagrant impropriety: see Krieger v. The Law Society of Alberta, [2002] 3 S.C.R. 372.

[65]         However, before the amendment is granted, the court must consider the four requirements of s. 34(4) – the word "shall" makes the court's consideration mandatory.  These requirements are intended to ensure that the court's amendment power, although broad, is not exercised in a way that is unfair to defendants.

34(4)  The court shall, in considering whether or not an amendment should be made, consider,

(a)              the evidence taken on the trial, if any;

(b)              the circumstances of the case;

(c)              whether the defendant has been misled or prejudiced in the defendant's defence by a variance, error or omission; and

(d)              whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

[66]         Although the court's consideration of these requirements will depend on the facts of each case, I offer the following general observations.

(i)        The evidence taken at trial

[67]         Obviously the court can "amend up" a certificate only if the evidence supports the amendment. 

(ii)       The circumstances of the case

[68]         The particular circumstances of a case may well influence the court's decision whether to grant an amendment.  For example, in Ontario (Ministry of Labour) v. NMC Canada Inc. (1995), 25 O.R. (3d) 461 (C.A.), this court ordered an amendment to an information that had charged a partnership with a workplace safety offence.[2]  The amendment substituted for the partnership the two individual partners as defendants.  One "circumstance of the case" strongly favouring the amendment was the seriousness of the charge: a workplace fatality.  As a partnership is not a legal entity for the purpose of proceedings under the POA, without the amendment the charge could not proceed.  See also Ottawa (City) v. Seenanan (2004), 47 M.P.L.R. (3d) 4 (Ont. C.A.) at paras. 24-29.

[69]         It is unwise to try to catalogue the various circumstances that might be considered under s. 34(4)(b) of the POA.  These ought to be addressed case by case as the circumstances arise.

(iii)        Whether the defendant has been misled or prejudiced in the defendant's defence by a variance

[70]         The court must consider whether the defendant is misled or prejudiced by the proposed amendment.  This is a key consideration in deciding whether to grant an amendment.  Being misled or prejudiced under s. 34(4)(c), however, does not mean the prospect of facing more severe consequences because of the amendment.  That a defendant may face a stiffer fine, more demerit points or increased insurance premiums is not a reason to refuse to amend the certificate to allege a higher rate a speed over the limit.  To decide whether a defendant is misled or prejudiced under s. 34(4)(c), the court must consider whether the defendant's opportunity and ability to meet the charge would be adversely affected by the amendment.  The court must ask: will "amending up" mislead or prejudice the defendant; and if so, can the misleading or prejudice be cured by, for example, an adjournment.

[71]         Justices of the peace and prosecutors should be especially sensitive to the question of prejudice.  As they know better than most, many defendants who appear in traffic court are self-represented; many have little or no knowledge of the justice system; many are poorly educated or have but a rudimentary knowledge of English.  As McKinnon A.C.J.O.  said nearly 30 years ago, in words still true today, "the Provincial Offences Act is not intended as a trap for the unskilled or unwary": see R. v. Jamieson (1981), 64 C.C.C. (2d) 550 at p. 552.

[72]         Special care must be taken to ensure that POA proceedings are fair to defendants.  Where the prosecutor seeks to "amend up", the prosecutor and the court should ensure, at a minimum, that the defendant understands the amendment, understands the consequences of the amendment and is given a reasonable opportunity to make submissions on why the amendment should not be granted.

[73]         Under s. 34(2) of the POA, the amendment is to be made during the trial as disclosed by the evidence.  An important question bearing on the fairness of the amendment is when the defendant receives notice of it.  No special form of notice is required.  Indeed, the notice need not even be in writing.  But the timing matters.

[74]         Ideally, the defendant should receive notice of a proposed amendment before the day of trial.  However, in POA proceedings this ideal will not always be practical.  If, for practical reasons, notice of the amendment can only be given on the day of trial, then it would be far preferable that the notice be given before the trial begins and that the defendant then be given a reasonable opportunity to consider how to respond.

[75]         After notice is given, in most cases, the prosecutor and the court would be wise to do what was done in this case – offer the defendant an adjournment to consult counsel or an agent or just to have more time to consider whether to conduct the defence differently.  Of course, if the defendant is represented by an agent, and notice of the motion to amend is not given until the day of trial, the case may necessarily have to be adjourned so that the agent can obtain instructions.

[76]         However, I would not lay down as an inflexible rule that on a request to amend up, an adjournment should always be granted if the defendant wants one.  Some cases could no doubt go ahead even if the defendant objects.  However, prosecutors and the court must take care not to pressure defendants into proceeding, but instead give them a fair opportunity to state their position.  Despite a prosecutor's or the court's urge to proceed, an adjournment, if asked for or desired, may be the sensible course of action.  By itself, it may cure even the possibility of prejudice. 

[77]         The appeal court judge in the present case observed that if the practice of amending up will most often require an adjournment, then the practice is at odds with an important objective of POA proceedings: to deal with charges quickly, efficiently and inexpensively.  He may well be right.  However, as I have already said, the practice is not inherently unfair or impermissible.  Municipalities and their prosecutors will have to decide whether this practice makes for the most efficient use of resources available for POA proceedings.

[78]         Although I have suggested that defendants be given notice of their potentially increased jeopardy before the trial begins, the broad amendment power in s. 34(2) of the POA does contemplate that notice of the amendment can be made during or even at the conclusion of the evidence.  Still, the later during the proceedings that the defendant is given notice of the proposed amendment, the greater the risk of prejudice if the amendment is granted: see R. v. Wanamaker, [2005] O.J. No. 1581 (Ct. J.).  Where notice to amend up is first given during the trial, defendants may well argue that they would have conducted their defence differently or even retained an agent had they known that they faced more serious consequences.  In the face of these or other arguments, before granting an amendment, the court must consider whether prejudice will result and whether any resulting prejudice can realistically be cured. 

[79]         Ordinarily, the prosecutor will ask the court to amend up.  Yet the amendment power in s. 34(2) also contemplates that the court on its own initiative can amend up a certificate of offence: see, for example, R. v. Morozuk, [1986] 1 S.C.R. 31.  I would not encourage justices of the peace to do so; certainly, they should be cautious before doing so.  And, before deciding to exercise the amendment power on their own initiative, justices of the peace must give every defendant a fair opportunity to address the question of prejudice and make submissions why the amendment should be refused: see R. v. Rahil (2005), 21 M.V.R. (5th) 262 (Ont. Ct. J.).  Again, before exercising this power, justices of the peace must consider whether the defendant is misled or prejudiced by the amendment, and whether any misleading or prejudice can be cured.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Occupier's liability for recreational use

Yesterday's decision in Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 640 is a useful summary of occupier's liability as relates to recreational uses:

[22]         At common law, persons entering an occupier's premises were traditionally defined as invitees, licensees or trespassers, and the duty of care owed by the occupier to such persons was determined on this basis.  In 1980, the legislature enacted the Occupier's Liability Act, S.O. 1980, c. 14,[1] with the intention of replacing, refining and harmonizing the duty of care owed by occupiers to visitors on their premises: Waldick v. Malcolm, [1991] 2 S.C.R. 456, at p. 475.

[23]         The Act was continued in the consolidated statutes of 1990, and remained substantively the same.  In Waldick, the Supreme Court explained that the goals of the Act were "to promote, and indeed, require where circumstances warrant, positive action on the part of occupiers to make their premises reasonably safe": p. 477.

[24]         The appellant has argued that s. 4 of the Act, and s. 4(4)(f) specifically, was intended to encourage occupiers to make their lands available to the public for recreational use. I agree. In a discussion paper published by the Ministry of the Attorney General prior to the enactment of the Act in 1980, Discussion Paper on Occupiers' Liability and Trespass to Property (Toronto: Policy Development Division, 1979), the Attorney General highlighted the tension between the growing participation of urban residents in outdoor recreational activities and the outdated scheme governing occupiers' liability, at p. 7:

The desirable growth of outdoor recreational activities has had some undesirable effects.  Urban residents have flocked in ever increasing numbers to the countryside. In the countryside, farmers and other occupiers of land have become fearful of being sued for damages by persons who might be injured while engaged in recreational activities on their land.

[25]         The Attorney General also expressed the concern that the prevailing common law approach to occupiers' liability penalized the benevolent occupier, by imposing a greater duty of care in relation to persons permitted to use the land than to trespassers. At p. 7 of the Discussion Paper:

[A]n occupier owes a greater duty to persons he permits to use his land for recreational activities than he does to trespassers.  This penalizes the occupier who is willing to permit recreational activities on his land. It discourages benevolence.

[26]         The Attorney General circulated a draft of the proposed Act as Appendix B to the Discussion Paper.  Much like s. 4 of the current Act now does, the proposed legislation suggested imposing a lesser duty of care on occupiers of certain types of premises, including "marked recreational trails".

[27]         Imposing a lesser duty of care on occupiers of recreational trails of all kinds appears to have been justified on the basis that the existence and availability of these trails was heavily dependent on the use of private lands: see Discussion Paper, at p. 7.  As a result, changes to the law limiting occupiers' liability were warranted to encourage occupiers to make their land available for recreational activities.  This approach was considered reasonable because, as explained in the Discussion Paper, at p. 10:

[P]ersons permitted to use the land, without charge, for recreational activities…have usually assumed that they are responsible for their own injuries, though the existing law would technically consider them as licensees. They are grateful for the privilege being extended to them. The proposal that such entrants would assume their own risks seems to accord with usual expectations of those who pursue recreational activities on private lands.

[28]         In their current iteration, ss. 4(1), 4(3)(c) and 4(4)(f) of the Act work together such that a person who enters recreational trails, reasonably marked by notice as such, for the purpose of a recreational activity and without payment of any fee is deemed to have willingly assumed the risks associated with the activity. In such cases, the duty of the occupier to the person is "to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property."

[29]         In my view, it is clear that the legislature intended that s. 4 of the Act encourage occupiers to promote the use of recreational trails on their land by members of the public. Against this backdrop, the central question on this appeal is whether the trial judge erred in finding that the Park was not a recreational trail for the purposes of s. 4(4)(f) and that the lesser duty of care established by s. 4(1) did not apply.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Globe -- who's really killing the crime bills?

Who's killing the crime bills?

That's a simple whodunnit that the Conservatives will solve for you: the Liberals, they say, will be killing C-25 and twelve other tough-on-crime bills if they force an election this fall.

"What is of concern with an election looming is the number of pieces of legislation that we have on the tackling-crime front that would be at risk," Public Safety Minister Peter Van Loan warned Wednesday.

But it was the Tories themselves who killed crime bills last year, when it was Prime Minister Stephen Harper who called the election.

As the Conservatives ratchet up a campaign to make the Liberals and other opposition parties bear the blame for a fall election, some of the criticisms may clash with the record. Their attack on an opposition forcing the fourth election in 51/2 years may be weakened because they triggered the past two.

On Tuesday, the Federal Court of Canada was hearing arguments into whether Mr. Harper broke his own law setting a fixed 2009 election date when he called the 2008 general election. If the court rules quickly, it could unsettle the anti-election arguments Mr. Harper is aiming at the opposition.

"The line that they're being opportunist is simply hypocritical for the government, given what they did last September," said Duff Conacher, the long-time government-ethics gadfly who sued Mr. Harper in Federal Court.

On Wednesday, Mr. Van Loan was complaining that an "unnecessary election" would kill 13 bills winding their way through Parliament that would end "faint-hope" parole for murderers, stiffen drug sentences and reduce house arrest.

What he didn't mention was that Mr. Harper's 2008 election call also killed bills on drug crime, youth crime and identity theft.

Bills that are already winding through Parliament, including some that have passed the Commons and are before the Senate, are wiped out by an election, and must start at square one in a new Parliament.

One of the bills Mr. Van Loan fretted over is legislation to address identity theft – a bill that was also killed when Mr. Harper called last year's election.

"This will be the third election we've had that bill before the House," said New Democrat justice critic Joe Comartin, complaining that Canada's identity-theft laws are years behind those in Europe and the U.S.

Crime has proved to be such a no-risk political winner that the Harper government has for three years stacked up a long queue of crime bills in Parliament, sometimes letting them sit without debate, and blaming the opposition for stalling them.

Mr. Comartin said the Conservatives are transparently slowing the progress of some crime bills so that they can use it as a political weapon, mainly against the Liberals.

"Pushing the crime button has worked for them fairly effectively," he said. "They'd love to be able to beat up on the Liberals."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Stephen Harper said what?

Here is a link to Warren Kinsella's blog -- worth a read:

http://warrenkinsella.com/index.php?m=09&y=09&entry=entry090910-020323

CBC ran a huge story near the top of their newscast, a few minutes ago, featuring a videotape of the Reformatory leader at a no-media, no-public party gathering in the Sault.

A sampling of what the Cons didn't want you to hear:

· On his claim to be satisfied with a Parliamentary majority: "Let me be clear about this, we need to win a majority in the next election campaign…we need to win a majority…to teach them a lesson."

· On women, gays and minorities which are helped by a government program: "[They're] left-wing fringe groups."

· On gun control: "We are still trying to get rid of that registry…we need a mandate to get that thing passed."

· On our international allies: "[We don't poll] the U.N. General Assembly to determine Canada's foreign policy."

· On judges: "[They're] left-wing ideologues."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777
Those who have suffer the slings and arrows of outrageous fortune remember the wounds forever.

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

416 225 2777

Wednesday, September 9, 2009

Convicted murderer Wills appeals conviction

Province trying to recoup costs in $1.4 million trial
BY JOE FANTAUZZI

Convicted murderer Richard Wills wants an appeal.

But the province is more concerned with re-couping some of the cost associated with his approximately $1.4 million trial.

Wills, a former Richmond Hill resident and Toronto police officer, convicted of murdering his lover Linda Mariani, is due before the Ontario Court of Appeal for a hearing in Kingston Nov. 17.

At the same time, a lawsuit announced by the province last February, aimed at recovering funds spent on Wills' defence is underway.

Mr. Wills liquidated his assets and transferred most of them to his wife and three children before applying for Legal Aid.

The total cost of his trial included fees for his defence counsel and law students, fees of friends of the court that worked on his case and costs for experts, Attorney General spokesperson Brendan Crawley said.

"There is no question that there needs to be more accountability on large cases," he said in a statement. "That is why we established a protocol and continue to work with Legal Aid Ontario on big case management."

But recovering any of the money spent on Wills' defence will be difficult, James C. Morton a lawyer with Steinberg Morton Hope&Israel LLP said.

Exploring if Wills' financial dealings before he was imprisoned were proper is valid but it may be difficult to even get a judgement, Mr. Morton said.

Wills was convicted of first-degree murder on Oct. 31, 2007.

Wills' trial lasted about six months and the associated costs are being borne by taxpayers, even though he is believed to have had a personal worth of more than $1 million at about the time of his arrest.

After Wills represented himself during his preliminary hearing, a court ordered the province to allow for special funding so he could retain an attorney.

The controversy, especially over the cost of the trial, that ensued following Wills' conviction may have put the government into a position where it had to act, Mr. Morton said. But, he doesn't believe the government's move to sue Wills is strictly political.

"There is obviously a desire to take proactive steps when you see there has been a problem," he said.

The Wills trial led to a significant reorganization of how public funds are used for defence, Mr. Morton said.

"There was never a case like Wills before," he said.

According to a 2008 report by Ontario Ombudsman Andre Marin, Wills had 13 lawyers, including seven publicly funded, two 'friends of the court' and one who worked pro bono. Three of his attorneys were paid for privately.

Mr. Marin called the case the result in many ways of "a perfect storm of mischief" and "misjudgment" and bemoaned the $50,000 cost estimate originally associated with it.

Meanwhile, in his notice of appeal, Mr. Wills claims he had an incompetent defence while also attacking the Crown and court staff.

"If I were arguing for Wills, I would do a very short, very focused appeal arguing that because of the way it shook out, his case wasn't effectively put before the jury," Mr. Morton said. "Beyond that, he doesn't have a chance. This was not a case that had any significant legal issues in it."



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

416 225 2777

Blackberry down across Canada

It is amazingly frustrating!!!!!

Convicted murderer Wills appeals conviction

Province trying to recoup costs in $1.4 million trial
BY JOE FANTAUZZI

Convicted murderer Richard Wills wants an appeal.

But the province is more concerned with re-couping some of the cost associated with his approximately $1.4 million trial.

Wills, a former Richmond Hill resident and Toronto police officer, convicted of murdering his lover Linda Mariani, is due before the Ontario Court of Appeal for a hearing in Kingston Nov. 17.

At the same time, a lawsuit announced by the province last February, aimed at recovering funds spent on Wills' defence is underway.

Mr. Wills liquidated his assets and transferred most of them to his wife and three children before applying for Legal Aid.

The total cost of his trial included fees for his defence counsel and law students, fees of friends of the court that worked on his case and costs for experts, Attorney General spokesperson Brendan Crawley said.

"There is no question that there needs to be more accountability on large cases," he said in a statement. "That is why we established a protocol and continue to work with Legal Aid Ontario on big case management."

But recovering any of the money spent on Wills' defence will be difficult, James C. Morton a lawyer with Steinberg Morton Hope&Israel LLP said.

Exploring if Wills' financial dealings before he was imprisoned were proper is valid but it may be difficult to even get a judgement, Mr. Morton said.

Wills was convicted of first-degree murder on Oct. 31, 2007.

Wills' trial lasted about six months and the associated costs are being borne by taxpayers, even though he is believed to have had a personal worth of more than $1 million at about the time of his arrest.

After Wills represented himself during his preliminary hearing, a court ordered the province to allow for special funding so he could retain an attorney.

The controversy, especially over the cost of the trial, that ensued following Wills' conviction may have put the government into a position where it had to act, Mr. Morton said. But, he doesn't believe the government's move to sue Wills is strictly political.

"There is obviously a desire to take proactive steps when you see there has been a problem," he said.

The Wills trial led to a significant reorganization of how public funds are used for defence, Mr. Morton said.

"There was never a case like Wills before," he said.

According to a 2008 report by Ontario Ombudsman Andre Marin, Wills had 13 lawyers, including seven publicly funded, two 'friends of the court' and one who worked pro bono. Three of his attorneys were paid for privately.

Mr. Marin called the case the result in many ways of "a perfect storm of mischief" and "misjudgment" and bemoaned the $50,000 cost estimate originally associated with it.

Meanwhile, in his notice of appeal, Mr. Wills claims he had an incompetent defence while also attacking the Crown and court staff.

"If I were arguing for Wills, I would do a very short, very focused appeal arguing that because of the way it shook out, his case wasn't effectively put before the jury," Mr. Morton said. "Beyond that, he doesn't have a chance. This was not a case that had any significant legal issues in it."



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

416 225 2777

CTV Newsroom


Panda cub and mom in the sun -- San Diego zoo


Bear Breaks Through Lodge Doors

http://ca.video.yahoo.com/watch/5931161?fr=yvmtf

Quite a video!!!!

Judge rules Ont. stunt driving law unconstitutional

The Ontario Provincial Police will continue to nab excessive speeders and charge them under the province's stunt-driving laws despite a judge's ruling that the legislation is unconstitutional.

Sgt. Dave Woodford told CTV Toronto the legislation is still being enforced because the law has been effective in reducing the number of fatalities on Ontario highways by about 30 per cent in the last two years since its been inacted.

"This piece of legislation is helping us get to be number one (in road safety) not only in Canada but in the world," he said.

Napanee Judge G. J .Griffin ruled Friday that convicting someone who is "morally blameless" of an offence that carries a jail sentence breaches the Charter of Rights.

Toronto-based lawyer James Morton said he was "really surprised" at the decision but that the judge is probably right.

By law, speeding is considered an absolute liability, which means a driver can't claim he didn't know he was speeding as a defence. However, the driver could very well be "morally blameless," meaning the motorist thought he was going at the speed limit even though he was not, Morton said.

"The defence of due diligence is not a defence because of the way the legislation is written," he told ctvtoronto.ca. "You would still be convicted even if you tried not to speed."

The judge was presiding over a case involving a grandmother in her 60s, who was nabbed by police for driving more than 50 kilometres faster than the posted speed limit on Highway 7.

The woman said she sped up in order to pass a truck. However, she said, the truck also sped up which forced her to speed up even more to pass him. The evidence given by the police officer who issued the ticket demonstrated that the driver slowed her vehicle to 110 kilometres an hour after passing the truck.

On Sept. 30, 2007, Ontario enacted provisions of the Safer Roads for a Safer Ontario Act that allowed officers to immediately seize the car of any motorist caught driving more than 50 km/h over the posted speed limit. Aside from having their car towed for a week, motorists automatically have their licence suspended for seven days. Drivers also face a hefty minimum fine of $2,000.

"The judge didn't say licence suspension or a car tow was unconstitutional. What he said is that a conviction for stunt driving by speeding is unconstitutional," Morton said.

Street racers who are nabbed under this legislation would not be affected by the judge's ruling. They would be tried under a different subsection of the law that deals with racing in particular, Morton explained.

The Crown would have a hard time reversing the judge's decision at the Court of Appeals, he said.

Prosecutors had a chance to argue the judge's decision using Section 1 of the Charter which essentially says that a breach of the Charter can be justified if it shown to be reasonable in a free and democratic society. However, in court Friday the Crown conceded it could not argue with the judge.

Morton said there are hundreds of cases in the system where people have been charged with stunt driving. Now the defendants have an excellent chance of getting the charge thrown out in court.

"This (ruling) is very important," he said. "It seems to me that the judge is probably right but my instinct is that it can be reasonably justified. Going over 50 kilometres is a serious offence."

With files from CTV Toronto's Austin Delaney

Hey, the media reads the Blogs

I got calls this morning from CFRB and the Star both from reading my blog ...

Tuesday, September 8, 2009

Time for George Smitherman

Of course, over time the numbers will likely rebound a bit but ... .

New poll paints bleak picture for Miller

Allison Hanes, National Post

Mayor David Miller's popularity nosedived in the wake of Toronto's 39-day strike this summer and an overwhelming majority of city residents would vote to replace him in the next election, a new poll for Global TV reveals.

With just over a year to go before Torontonians next go to the ballot box, 79% told Ipsos Reid "it's time someone else was chosen as Mayor to lead the city," while 21% said they would vote to re-elect Mr. Miller for a third term.

The results emerged on the same day Ontario Deputy Premier George Smitherman mused aloud about running for Mayor.

Pollster John Wright at Ipsos Reid, said he's never seen a precipitous decline like Mr. Miller's popularity rating, plummeting from 69% to 43% to 39% to the low 20s in recent years..

"I have been doing this for 20 years in the city," Mr. Wright told Global. "I have never seen numbers like this. Ever."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Stunt racing law found unconstitutional

Friday's (September 4) decision from Napanee from Ontario Court of Justice Judge G J Griffin in R v Raham, 2009 ONCJ 403 holds the stunt racing by excessive speed law to be unconstitutional. This decision has been eagerly awaited.

The decision is unreported and I do not have an electronic copy -- I have a rather poor photocopy and that was not easy to obtain -- and so I will describe the decision in some detail.

The decision is clear stunt driving by excessive speed contrary to s 172(1) of the Highway Traffic Act and O Reg 455/07 fails.

The reasoning is that the excessive speed section of the definition of stunt (the 50 km/hr over the speed limit) is an absolute liability offence. No mental element is required to find guilt and no due diligence defence will avoid guilt. This conclusion, which differs from many Justice of the Peace decisions, is based largely on the language of O Reg 455/07 which refers to intention in regarding several ways a stunt can occur but not with regard to speed.

Considering a possible due diligence defence the Court held any such defence was implausible and that suggested absolute liability.

In other cases speeding, in the sense of breaking the speed limit, has been found to be an absolute liability offence.

The Court reviewed the traditional tests to distinguish absolute and strict liability and found stunt driving by excessive speed to be absolute liability.

The Court noted that the provision in question, while called stunt driving and punished potentially by jail, might more properly be called driving at extremely excessive speed. In effect the offence was one of super speeding.

As a matter of constitutional law, an absolute liability offence tied to a potential prison sentence breaches s 7 of the Charter. The principles of fundamental justice forbid imprisonment without some mental element -- some wrongful mens rea, even if limited to being able to avoid conviction by showing due diligence.

Here the Court, noting that stunt driving can lead to jail time, found a breach of s 7 of the Charter.

Surprisingly, perhaps, the Crown acknowledged that if there was a breach of s 7 of the Charter such breach could not be saved by s 1 of the Charter.

Hence, the stunt driving law, as to speed, fails.

On to the Court of Appeal!!!
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Back to school and time to catch up on gossip!!!


Public interest litigation and costs

Where litigation is brought in the public interest and the parties acted reasonably, especially where there is government as parties, costs may not be awarded against an unsuccessful party. An example of that is today's decision in Abdoulrab v. Ontario (Labour Relations Board), 2009 ONCA 639 where the Court holds:

[6] Nevertheless, the appeal did raise for the first time in this court the interpretation of s. 4 of the Employment Standards Act, which is a matter of broad public interest. The Divisional Court ordered that there would be no costs of the appeal before it on this basis.

[7] There will be no order as to costs.

Is this some Hasidic Rabbi???


No, it's a very Christian judge from Barrie Ontario, Wm F A Boys, (Judge Barrie 1883 - 1908). It is interesting how fashions change and what is seen now as specially religious garb is, in fact, just really old fashioned clothing!!!

Poll from the Globe

http://m.theglobeandmail.com/news/politics/new-poll-gives-tories-the-edge/article1278722/?service=mobile

With Michael Ignatieff's Liberals insisting nothing will stop them from forcing an election, a new survey shows them trailing the Conservatives nationally by five percentage points and continuing their slide down the polling ratings in Quebec.

The survey, conducted by Strategic Counsel for CTV and The Globe and Mail, puts Conservative support at 35 per cent of voters. The Liberals are at 30 per cent. The NDP are at 14, the Greens at 9 and the Bloc Québécois at 12.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Spam -- a query to readers

Have you had much more spam recently?

My spam levels had gone down but now they are amazingly high -- 5 or so an hour.

Time for a new filter!!!

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

416 225 2777

Convicted killer seeks mistrial after jury vetted

This could be the start of a series of retrials. My sense is such result is unlikely but ...

Convicted killer seeks mistrial after jury vetted

Shannon Kari, National Post

A young man convicted of first-degree murder in Barrie is asking a judge to throw out his conviction or order a new trial because prosecutors had vetted lists of potential jurors that were not disclosed to the defence.

The legal motion, which will be heard today in Superior Court in Barrie, is the latest example of the ongoing fallout from revelations that prosecutors in some parts of Ontario were using police to conduct background checks on potential jurors, contrary to the provincial Juries Act.

The 19-year-old man, who can be identified only as N.B. because he was a youth when he was charged in the March 2006 stabbing death of 14-year-old Brayton Bullock, was convicted of first-degree murder by a jury in February.

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

416 225 2777

Monday, September 7, 2009

Vitus


A Labour Day smile (?!?)

Sudanese "Trousers" Woman Jailed

September 7, 2009.

See full article at:

http://news.bbc.co.uk/2/hi/africa/8241894.stm

Sudanese 'trousers woman' jailed.

A Sudanese woman has been jailed for a month after refusing to pay a fine for "dressing indecently" by wearing trousers, her lawyers say. Lubna Ahmed Hussein did not want to "give the verdict any legitimacy" by paying the fine of about $200 (£122), her lawyer, Nabil Adib, told the BBC ( . . . )

"She thinks she was unfairly tried and convicted, and was not given a proper chance to put her defence case." Mr Adib said Ms Hussein would appeal to both the Court of Appeal and the Constitutional Court.

Kamal Omar, another of Ms Hussein's lawyers, told the AFP news agency his client had been taken to the women's prison in Omdurman ( . . . )

Earlier, at least 40 protesters were held by police outside the courthouse in the Sudanese capital. Some of them were women reportedly wearing trousers in support for Ms Hussein. Our correspondent saw one woman being hit eight or nine times by police with truncheons. All the protesters were later released on bail ( . . . )

Ms Hussein's supporters were heckled by Islamists, who tore up some of the women's homemade signs, says our correspondent. The presence of diplomats and human rights activists inside the court, and the protests outside, show that the trial has become a test case for women's rights in Sudan ( . . . ) 

In a column published in the UK's Guardian newspaper on Friday, Ms Hussein wrote: "When I think of my trial, I pray that my daughters will never live in fear of these police... We will only be secure once the police protect us and these laws are repealed."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Sunday, September 6, 2009

Drunk driver as dangerous offender?

Dangerous offender status makes sense when the only purpose to incarceration is to isolate a danger from society.

The suggestion as to deterrence is misplaced -- by definition dangerous offenders cannot be deterred -- they simply can never be let out into society -- they are always a danger.

Here the history certainly suggests a danger and if the mental health evidence supports it the status is warranted.

Drunk driver as dangerous offender? Legal precedent could be set this week


By Sidhartha Banerjee

Published: September 6, 2009


MONTREAL - Canadian legal history could be made this week when a Quebec man finds out whether he will become this country's first drunk driver to be declared a dangerous offender.

The dangerous offender designation is usually reserved for the very worst criminals in Canada - like murderers and serial rapists.

But in a Valleyfield, Que., courtroom this Wednesday, a judge could set a legal precedent that would make it easier for repeat drunk drivers who kill people to be locked away under that designation.

Roger Walsh pleaded guilty to a 19th impaired driving charge last December - this time after he mowed down Anee Khudaverdian in October. The wheelchair-bound mother was out with her dog, on her 47th birthday.

While awaiting the decision from Quebec court Judge Michel Mercier, the victim's sister said it's a historic opportunity to make roads safer.

"If they don't hand it down (in this case), we're in trouble -  an impaired driver will never be given a sentence like this again," said Clara Khudaverdian, a Montreal sociologist who has pushed for stricter laws since her sister's death.

"If people know this (dangerous offender status) is a possibility if you re-offend, they may think twice."
...
He pleaded guilty this past December to hit-and-run causing death, impaired driving causing death, and violating a court order barring him from drinking.

...

Walsh's 18 previous impaired driving convictions and 114 previous convictions in total for assault, uttering threats, breaking and entering and theft were entered into evidence
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Underwater snack


Facebook and applied math

The radio is full of a story that about 40% of first year college students in Ontario drop out of math and there's a high failure rate.

The story blames this on Facebook, MP3 players and a lack of Grade 13.

Well, I started my B Sc in Applied Math in slide rule days and back then about half the kids who started first year dropped it and lots failed.

This wasn't because of, say, too much Six Million Dollar Man. It was because math was, and is, damn hard.

Facebook has nothing to do with it.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Police video of racially motivated disturbances in the UK

Police video of the protest:

http://www.youtube.com/watch?vXxzyjizp2JU

On Judgment Day

One of the questions to be asked is "did you enjoy the world?"

Joy is essential to life.

Kiddushin 4:12

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

416 225 2777

Flogging for wearing pants

A woman in Sudan faces flogging for wearing a pair of pants.

I'm sorry -- this is wrong. There isn't a cultural excuse that applies.

Yes, I can understand laws saying "our nation values modesty so no exposed legs" or, say, banning pork or even banning meat altogether.

But beating a woman for wearing pants? Wrong.

The Toronto Star did an article on this story (a good article) but noted as follows:

"In fact, however, the contemporary practice tends to be considerably milder, at least in some Muslim countries where floggings or canings are intended more to cause shame than to inflict intense physical suffering."

This may be true but it does sound like special pleading. Moreover, even if the punishment was, say, a month in a humane jail I'd still say it's wrong.

The problem is that punishment is being given for an act that ought not to be punished.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777