Michael Ignatieff in Hamilton

I wasn't there -- but I was told it was an amazing event!

A lifesaver???

Maybe Razzi does need to go on a diet???

Time will tell

In politics things can happen quickly or they can take a long time; Liberals know things take time.

Politics Lester Pearson was elected Liberal leader in 1958 but became Prime Minister only in 1963. As Prime Minister he brought in universal health care, the Canada Pension Plan and Canada Student Loans, and established a new national flag, the Maple Leaf.

The NDP and Bloc have acted to avoid an immediate Federal election but, sooner or later, the Harper government will fall. Regardless when that happens Michael Ignatieff's Liberals will be ready.

Diversity expert gets nod as Liberal candidate for Thornhill

Kim Zarzour



An educational psychologist and expert on multiculturalism has thrown her hat in the federal political ring with hopes of becoming the third female to represent Thornhill since the riding was created.



Dr. Karen Mock will be the Liberal party's candidate in the next federal election, James Morton, president of the Thornhill Federal Liberal Riding Association, announced last week.



Considered a pioneer in the field of multicultural teacher education, Dr. Mock is past executive director and CEO of the Canadian Race Relations Foundation and the former national director for the League for Human Rights of B'nai Brith Canada.



http://www.yorkregion.com/article/96562




416 225 2777

Statement from Liberal Leader Michael Ignatieff on Rosh Hashanah

This weekend, on Rosh Hashanah, Canadian Jews look forward to new beginnings, and reflect on the blessings of the past.

For these two days of hope and remembrance, all Canadians join in desiring a better future for our country, our world, and all peoples. We also celebrate the heritage of the Canadian Jewish community, and the contributions that Canadian Jews have made to Canada—not only to our country’s rich cultural fabric, but also to all aspects of our society.

On Rosh Hashana, we give thanks for the mutual respect and understanding that defines us as Canadians—and that makes us the envy of the world.

On behalf of the Liberal Party of Canada, I offer my very best wishes for a happy and healthy 5770 to all Canadian Jews, and all Jews around the world.

Fall Colours

Election averted as Tories survive crucial vote

The Conservative government has successfully passed a budget implementation bill that will avert a possible federal election and usher in the long-awaited Home Renovation Tax Credit among other budget measures.

The bill passed Friday morning with the support of Bloc and NDP members, marking the first time that Jack Layton's party supported the Conservatives since the election last fall. The final tally was 224 to 74.

Yogli eating apples

Coalition government comes to Canada

We have a Conservative-socialist coalition, propped up by the separatists, passing that very same budget Jack Layton slammed. (Well, in fairness, I guess that's how minority governments survive but still ...).

Liberals win big in St. Paul’s 

Candidly I thought it would be a lot closer.

The Conservatives ran as strong a candidate as the could and did a pretty good job on the campaign.

But the result shows they might as well have stayed home.

The fact is that the Provincial government, despite some bumps in the road, is doing a good job and the voters see that:

Liberals win big in St. Paul's
(Toronto Star)


September 18, 2009
     Queen's Park Bureau

Premier Dalton McGuinty's harmonized sales tax passed its first test with voters last night as the Liberals romped to a key by-election victory in the mid-town riding of St. Paul's.

Despite efforts by the Progressive Conservatives and New Democrats to stoke public anger in the long-held Liberal riding over what they called a "tax grab" from the 13 per cent HST coming next July, voters sent Dr. Eric Hoskins to the Legislature.

Government sources told the Star that Hoskins, a 48-year-old family physician and co-founder of the charity War Child Canada, is being groomed for a position in McGuinty's cabinet.

Hoskins, a married father of one, trounced Conservative challenger Sue-Ann Levy, the city hall columnist for the Toronto Sun; New Democrat lawyer Julian Heller, and realtor Chris Chopik from the Green party.

The Liberals had feared the race might be closer for many reasons, not the least of which was Levy – a high-profile, Jewish, openly gay candidate in one of Ontario's more cosmopolitan ridings.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Costs of Minimum Mandatory Sentences for Drug Offences

Interesting article in an Alberta law students paper -- The Costs of Minimum Mandatory Sentences for Drug Offences by Alex Bailey. Worth a read:

http://www.canonsonline.com/2009/09/the-costs-of-minimum-mandatory-sentences-for-drug-offences/#respond


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

416 225 2777

How can I eat this???

Remember that what you believe will depend very much on what you are.

Noah Porter (1811 - 1892)

Effect of ill witness on stay for delay under 11(b)

Today's decision in R. v. A.J.W., 2009 ONCA 661 deals with delay caused by the illness of a witness:

 

 

[35]         Delay as a result of the illness of a witness is ordinarily attributed to the inherent time requirements of the case.  As Hill J. said in R. v. Hoffner, 2005 CanLII 32924 (Ont. S.C.), at para. 41:  “Such a contingency, while unfortunate and unexpected, is nevertheless an inherent feature of the litigation process.  In turn, therefore, reasonable delay to a new trial date is prima facie considered neutral.”  Hill J. went on to make the important point that not all the ensuing delay is necessarily neutral.  If the time to the next trial date is itself unreasonable, some portion of the delay is properly considered institutional delay.

 

[36]         As I read his reasons, the trial judge characterized the delay from October 29, 2007 to June 23, 2008 as institutional/Crown delay because of the tactical or strategic decision by Crown counsel not to proceed without the witness and rely upon an application under s. 715 of the Criminal Code to read in the witness’ testimony from the examination for discovery.

 

[37]         The respondent supports the trial judge’s approach and fairly makes the point that if delay following illness of a witness was always considered neutral, cases could drag on forever despite the mounting prejudice to the accused’s interest in a speedy trial.  In effect, the accused would be held hostage to the vagaries of the health of prosecution witnesses.  Further, there would be no incentive to the prosecution to seek alternative methods of proving the case, as was available here under s. 715 of the Criminal Code, as long as the institutional delay remained within the Morin guidelines.

 

[38]         While these are legitimate points, in my view, the submission fails to take into account the nature of the Morin guideline for institutional delay.  The periods referred to in Morin are guidelines not limitation periods or hard and fast rules.  As Sopinka J. said in Morin at p. 796:  “A guideline is not intended to be applied in a purely mechanical fashion. It must lend itself and yield to other factors.”  It is open to a court to find the delay to trial unreasonable even where the institutional delay falls within the Morin guidelines, especially where there is real prejudice to the accused:  Morin at p. 807.

 

[39]         The respondent’s submission also fails to take into account other methods that the trial court has to protect the accused against unreasonable delay.  One obvious method that could have been employed in this case was for the presiding judge to refuse the Crown’s application for an adjournment if he considered the request inappropriate or infringing on the respondent’s constitutional rights.

 

[40]         In my view, it was unreasonable for the trial judge to attribute all the delay following October 29, 2007 to actions of the Crown or institutional delay.  The trial judge held that the Crown made a tactical decision to seek an adjournment rather than attempt to adduce the complainant’s mother’s evidence under s. 715.  However, the record does not bear out that view of the events.  The Crown application for the adjournment was heard on October 24 and was supported by an affidavit from an employee of the VWAP.  The effect of that affidavit was that the complainant’s mother had been diagnosed with cancer only a few days before and was to have surgery three days before the date for the trial.  The complainant’s mother told the VWAP employee that the complainant “will be critical to her after-care both physically and emotionally”.  Thus, it was not just that the complainant’s mother was unavailable, but at least at the opening of the trial, it would be difficult for the complainant to testify.  I appreciate that the adjournment request was put on the basis of the mother’s unavailability, but it strikes me as inappropriate to force the complainant to testify in those circumstances.  Defence counsel made no attempt to pursue the issue or press for the trial to proceed despite the circumstances. Rather, he seemed to accept that the adjournment was inevitable.  I repeat what he said about the adjournment at the time:

 

I mean, given the circumstances, the adjournment was practically a foregone conclusion, so I don’t have much to say about that, but I’m certainly, certainly not in the position to consent.  I want – I’m putting it on the record that [the respondent] intends to exercise his 11(b) rights in respect of this.

 

[41]         On this record, the Crown’s decision to apply for an adjournment was reasonable and should not be characterized as a simple tactical decision.  Presumptively then, the resulting delay was neutral.  That is not to say that all the ensuing delay should be considered neutral.  Given the delay that had already occurred through no fault of the respondent, he was entitled to expect the system to respond with some urgency by offering dates for the trial as soon as reasonably possible.  He was entitled to have the system give his case priority.  My review of the record indicates that this is exactly what occurred.  The respondent was offered trial dates within less than three months.  That said, if there was evidence that the respondent’s counsel was available within an even shorter time, I might have considered some of that three months to be institutional delay.  However, there was no such evidence and no suggestion that defence counsel was able to accommodate an earlier trial date.

 

Aglukkaq orders probe over flu body bags

Good for her!!!

Aglukkaq orders probe over flu body bags

WINNIPEG - The federal health minister has ordered a probe into why the government sent body bags to a Manitoba reserve for flu preparedness.

Leona Aglukkaq says she found the action by Health Canada `insensitive and offensive.'

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

416 225 2777

Human Rights Watch

From the Ottawa Citizen:


"Now there is the case of Marc Garlasco, a senior official with Human Rights Watch. In his capacity as an influential "human rights" activist, Garlasco has made a career of painting Israel as a criminal state. Scholars and other researchers have exposed Garlasco's reports as inaccurate and malicious, but no matter -- among anti-Israel activists, Garlasco is a hero.

This week, Human Rights Watch suspended Garlasco after learning that he has a, um, thing for Naziism. Among other things, he collects Nazi paraphernalia. Using fake names on the Internet, he has talked about how "cool" the leather SS jackets are. One pseudonym he reportedly used was "Flak88" -- "88" being code for the neo-Nazi salute, "Heil, Hitler" ("H" is the eighth letter of the alphabet).

Those Human Rights Watch reports attacking Israel always were a bit puzzling, being so one-sided and hostile. Sadly, they're perhaps not so puzzling anymore."

PMO pays former Clinton staffer to prepare for media

This is an odd little story -- I suppose some media preparation for the Prime Minister is proper. But why did he hire a liberal? Maybe because the PMO realizes the way the wind is blowing? If so we may see more "kinder, gentler" Stephen Harper (at least when he doesn't realize he's being taped!).

Here's the contract itself:

http://www.ctv.ca/generic/WebSpecials/pdf/McCurry_contract.pdf


PMO paid former Clinton spokesperson $24,000

The Prime Minister's Office spent $24,000 to have a high-powered communications strategist advise the prime minister on U.S. media opportunities during April's Summit of the Americas.

Documents posted on the U.S. Department of Justice website show that the PMO paid Michael McCurry to "develop a media plan" for the summit held in Trinidad and Tobago, five months ago.

The PMO wanted McCurry to provide "communications advice around issues pertaining to the 2009 Summit of the Americas as they relate to the United States in order to effectively articulate the position of the Government of Canada," the documents state.

McCurry's contract also called for him to help the prime minister set up relevant interviews with U.S. print media and TV networks.

He was assisted by Scott Warner, a Virginia-based consultant who helped in outreach "to U.S. news media in furtherance of communications objectives of the Office of the Prime Minister of Canada."

Chiefs furious after body bags sent to reserves

Talk about tin ears! It may, in fact, be sensible to send body bags if there is a material risk of many deaths. But to do so without sending the medical kits that might avoid those deaths? Apart from being morally wrong and insensitive it shows such a lack of political smarts as to be frightening.

News Staff Opposition critics and First Nations leaders are slamming the government after Health Canada shipped dozens of body bags to aboriginal communities in Manitoba that have been hit hard by swine flu.

Chiefs said the body bags were sent to a handful of northern communities where dozens had to be airlifted earlier this year.

"If this is preparedness, they're sending the wrong message to our communities. Who would do such a thing?" Grand Chief David Harper, representing Manitoba's northern First Nations, asked Wednesday.

From Abdolkarim Soroush's open letter to the leader of the Islamic state Ayatollah Khamenei.

We are a lucky generation. We shall celebrate the collapse of religious dictatorship. A moral society and a non-religious government are on our green horoscope.

Wilbär and Ewa in Orsa Bear Park!

When does a right of action accrue on a demand mortgage?

Today's Court of Appeal decision in The Mortgage Insurance Company of Canada v. Grant Estate, 2009 ONCA 655 deals with the issue in depth:

[19]         The law with respect to the date a right of action accrues on a demand mortgage is governed by the following principle: the cause of action accrues upon execution of the demand mortgage (Alter v. Csontos (2004), 26 R.P.R. (4th) 103 (Ont. S.C.), at para. 34, (appeal dismissed as abandoned 2006 CanLII 6191 (ON C.A.)) However, there are exceptions to this rule depending on the circumstances and the specific terms of the mortgage.

[20]         An example of an exception where the cause of action did not accrue before demand was made was Saved by Technology, the case relied on by the trial judge. In that case, the mortgage provided for no payment of principal or interest for at least ten years. After ten years, the mortgagee was entitled to obtain an appraisal of the property, and depending on the value at that time, the principal became payable. The mortgage did not provide for the payment of any interest. After ten years the mortgagee obtained the appraisal and demanded payment of the principal. The mortgagor, in response, commenced an action for extinguishment of the mortgage on the basis that enforcement was statute-barred by virtue of the ten-year limitation period under the former Limitations Act. The Court of Appeal upheld the decision of the trial judge that, in the circumstances, the cause of action did not accrue on execution because no monies were owing at that time or within the following ten years. The court observed that it would be absurd to find that the limitation period had passed before the mortgagee had any right to enforce the mortgage. The court held that the cause of action accrued on default, which occurred when no payment was made after the mortgagee made demand following the appraisal.

[21]         Another exception to the rule that the cause of action on a demand mortgage accrues from the date of execution arises where the mortgage is a collateral mortgage. The stated rule in the case of a collateral mortgage is that the cause of action accrues on demand. The rule arises from a decision of Chitty J., sitting in the Chancery Division in the case of In re Brown's Estate, [1893] 2 Ch. 300, where the court said at 304-305:

[I]t is plain that a distinction has been taken and maintained in law, the result of which is, that where there is a present debt and a promise to pay on demand, the demand is not considered to be a condition precedent to the bringing of the action. But it is otherwise on a promise to pay a collateral sum on request, for then the request ought to be made before action brought.

[22]         Although the exception is broadly stated, from the facts of Brown's Estate, the exception applies where the collateral mortgage is given by a third party who is guaranteeing the primary debt of another. In Brown's Estate the son, Alfred Brown, granted a mortgage to Stephen Perry on certain property in consideration of a loan of £3000. His father, John Brown, joined in the covenant on the mortgage which provided that Alfred Brown and John Brown would: "on demand, pay unto the said Stephen Perry…the sum of £3000." When John Brown died, the property was of sufficient value to cover the debt and no claim was made in the estate. However, some years later, the estate not having been distributed and the value of the mortgaged property having declined, Alfred was unable to repay the debt, and the mortgagee sought to claim against the estate. The issue was whether the action on the covenant of the mortgage was statute-barred. The court concluded that the action was not barred because the father was acting as a surety and demand was required in order to give the surety a reasonable amount of time to find the money to pay the debt. In those circumstances, the language of the covenant requiring a demand reflected the intentions of the parties.

[23]         Therefore, where collateral security is provided by a surety and is stated to be payable "on demand", demand on the surety is required to trigger the obligation to perform and the resultant accrual of a cause of action against the surety. As explained by Gabriel Moss Q.C. and David Marks in Rowlatt on Principal and Surety, 5th ed. (London: Sweet & Maxwell, 1999), at para. 4-108:

If a surety … covenants or promises to pay the principal debt "on demand," a demand must be made upon him before he can be sued. His obligation is to pay the collateral sum, and differs from a promise to pay on demand a present debt owing by the promisor. In the latter case an action can be brought at once without any other demand than the writ. [Footnotes omitted.]

[24]         The same rationale does not apply, however, where collateral security is provided by principal debtors to secure their own debt. In that case, the collateral security is provided as a source of payment by the principal debtors of their debt, and there is no special need for demand under the collateral security as the principal debtors have full knowledge of, and control over, the status of their debt. Their obligation under the collateral security is to pay the present debt that they owe. Therefore no demand is required.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Video of Flocke and Razzi frolicking

http://blog.br-online.de/eisbaer/index.php?/archives/532-Es-kanistert-bei-Nachbars!.html#extended

Verifying Driver's Licences

If you are presented with a Driver’s Licence by a potential client that you are unfamiliar with, you may wish to quickly verify the validity of the Driver’s Licence as fraudsters will often provide a fake Driver’s Licence.  

 

To confirm that a Driver’s Licence is valid, you can use the Ministry of Transportation’s online Driver Licence Check at

 

www.dlcheck.rus.mto.gov.on.ca/Scripts/OrderForm.asp  

Two for one

Why the pretrial credit ratio?

Simaan, [2005] O.J. No. 2804 (CJ, De Filipps J):‪

36     Prisoners are eligible for release on parole after serving one-third of their sentence and most are released on mandatory supervision after serving two-thirds of the sentence. The 2:1 ratio represents the mid-point between these release periods...‬  

Mills, [1999] B.C.J. No. 566 (CA):‪

46     Time in custody after sentence counts towards parole eligibility after one-third of the sentence is served and towards statutory release after two-thirds. Giving credit for double the time in pre-disposition custody hits the mid-point in a range between earning the equivalent of three days for every day served for parole purposes and one and a half days in the case of statutory release.‬
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Bathing beauty

Today's poll

The latest Canadian Press Harris-Decima survey finds the Conservatives maintaining a slight lead in popular support, with 34 per cent to the Liberals' 30 per cent.

The NDP are at 15 per cent, the Bloc Quebecois at nine and the Greens at 10.

The findings are virtually unchanged from a survey a week ago, even though politicians have been jockeying non-stop for electoral advantage.

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

416 225 2777

NDP

Interesting piece in the Globe:

"For years, the New Democrats have been berating the Harper Conservatives, while chiding the Liberals periodically and unmercifully for propping up the government. The NDP even has a list of the number of times the Liberals voted with the government...Yet, what have we here? All of a sudden, the NDP, faced with the prospect of an election - and the possibility (probability) of losing seats - is sounding conciliatory and sniffing around for a possible deal with those awful Conservatives, the very strategy for which the NDP gleefully excoriated the Liberals month after month after month. No wonder the voluble Mr. Layton suddenly grew quiet."

- Jeffrey Simpson, Sept 15, Globe and Mail

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

416 225 2777

Gerard Kennedy shines

Here's a substantive passage from a piece that is generally down on the Liberals. And it's a good point:

Gerard Kennedy, the infrastructure critic (and, dear God, the fifth Liberal to rise), suggested the Conservatives have been guilty of pork-barreling when it comes to spending stimulus money.

Of the top 10 ridings in Ontario receiving infrastructure funds, four are represented by cabinet ministers, including John Baird, the Minister of Transport, and a fifth by the Prime Minister's parliamentary secretary.

"How does the Prime Minister explain to the 408,000 Canadian families who became unemployed since last fall that his cabinet is too busy trying to buy votes to create the jobs that are needed?" he asked.

The government didn't deny the allegation, with Tony Clement, the Industry Minister, merely offering up the weak excuse that funding decisions are made with other levels of government.

It was unfortunate for Mr. Clement that he had to rise in the place of the absent Mr. Baird because it allowed Mr. Kennedy to point out that the Industry Minister's Parry Sound-Muskoka riding will benefit from 28 projects, five times the national average.

Mr. Kennedy also pointed out that three Conservative MPs, including Mr. Baird and government whip Gordon O'Connor, from the Ottawa area, where unemployment is half that of the rest of Ontario, will receive two to four times as much money for infrastructure stimulus as the average Ontario riding.

"[Jim] Flaherty [the Finance Minister] said that the money would be targeted toward communities most in need," Mr. Kennedy said in an interview. "This is a breach of trust."

He too has a point. He has argued for months that infrastructure money would have flowed much more quickly if it had been funneled through the system Ottawa uses to transfer its gas tax receipts to municipalities. The problem with this mechanism from the federal government's point of view is that they would not have been able to cherry-pick projects for their own political benefit.

This is an area of legitimate criticism -- the Opposition can argue with some conviction that the government has placed its own partisan interests ahead of the country's economic recovery.

Throw in the very real likelihood that millions of dollars have been spent on projects of dubious worth -- rumours are already emerging of a private school in the Collingwood, Ont., area that has received funding for a new sports field -- and the Liberals have the makings of a "waste, corruption and mismanagement" scandal of their very own.

Full story here: http://www.nationalpost.com/m/blog.html?b=fullcomment&e=john-ivison-liberals-miss-their-chance-to-roast-tory-pork-barrelers&s=Home
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Growl!!!

New poll

Yes, I know "the only poll that counts" ... . Still, on these numbers the NDP would be wiped out.

Latest poll gives Tories 9-point lead over Grits
By Andrew Mayeda,
Canwest News Service
September 14, 2009 6:02 PM

OTTAWA - Prime Minister Stephen Harper's Conservatives continue to hold a commanding lead over their political rivals, while Liberal Leader Michael Ignatieff risks taking the blame in the event of a fall election that Canadians clearly do not want, according to a new Ipsos Reid poll.

At the same time, the NDP have slid to their lowest level of support since the last election, suggesting party leader Jack Layton has an incentive to at least temporarily prop up the Harper government.

The Conservatives have the support of 39 per cent of decided voters, according to the Ipsos Reid survey, commissioned by Canwest News Service and Global National. The Tory support level is unchanged from the last Ipsos national poll on Aug. 21.

The Liberals have 30 per cent support, up two percentage points from Aug. 21. The NDP dropped two points to 12 per cent, while the Green party fell two points to eight per cent. The NDP received 18 per cent support in the last federal election in October 2008, but have fallen to 12 per cent in four separate Ipsos polls since then.

The Bloc Quebecois received nine per cent on a national basis. Seven per cent of respondents were undecided.

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

416 225 2777

Quiting time!!!

Layton and Harper dance but who leads?

OTTAWA_ N-D-P Leader Jack Layton is giving signals that he could prevent an election until at least the spring.

Layton says he wants to see more help for the unemployed from the minority Conservative government before deciding whether to help Prime Minister Stephen Harper maintain power.

In a statement after question period in Ottawa today, Layton said he'd prefer that there not be a fall election.

And Layton told reporters he expects the recession to affect Canadians until the spring.

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

416 225 2777

No election???

While in opposition Stepehn Harper had no issue about forming voting blocks with the NDP -- it's hard to see why he would have a problem now:

Tories forming coalition with NDP, Ignatieff says

In the first session of question period following the summer break, Liberal Leader Michael Ignatieff asked the prime minister whether he has a "newfound love for socialism and does he not think it's prudent to change his attack ads."

Ignatieff's charge comes after it came to light that the Tories intend to introduce legislation that would provide temporary, additional employment insurance benefits for long-tenured unemployed workers - legislation that the NDP seems likely to support.

It's a move that could help stave off Canada's fourth federal election in less than six years.

Drawing an adverse inference from the failure to call evidence

 In the adversarial trial system, a party in a civil case has an absolute right to withhold a source of evidence from the court; but if the issue may determine the case and the opponent's evidence is strong enough to call for a reply, the failure to call evidence may cause the trier of fact to draw an adverse inference.  So, if an obvious witness is not called to testify and no explanation of why the witness is not called is given, the court may infer the witness would prove unhelpful.  That said, as the chart below shows, the inference is seldom fully drawn.

 

A party's unexplained failure to call an important witness may provide the basis for such an inference. An adverse inference will be drawn against a party only if the opponent is able to establish a prima facie case requiring the party to disprove it or run the risk of losing the case. The inference is that the missing evidence would be contrary to, or at least not support, the party's case.

 

Thus, in Levesque v. Comeau   [1970] S.C.R. 1010 the Supreme Court, speaking of a plaintiff’s failure to call a witness said:

She alone could bring before the Court the evidence of those facts and she failed to do it. In my opinion, the rule to be applied in such circumstances is that a Court must presume that such evidence would adversely affect her case.

 

Other reasonable inferences may be drawn from the established facts concerning what the missing facts might have been.

 

No adverse inference will be drawn if the party can offer a reasonable explanation for failing to call the evidence.

 

Recent Ontario Cases Dealing With Calling a Witness

 

No Inference                                                                Inference

Favuzzi v. West Arthur 2009 ONCA 337	Gouvera v. Toronto Star 1998 CarswellOnt 3653
Magnussan Furniture v. Mylen 2008 ONCA 186
Dwyer v. Mark II (2006), 208 OAC 305
LLP v. Hong Kong 2003 CarswellOnt 2011

 

Today’s decision in R. v. Lapensee, 2009 ONCA 646 deals with the adverse inference that may be taken when a witness is not called.  The Court notes:

[41]         In certain circumstances, a trier of fact may draw an adverse inference from the failure of a party to call evidence. In R. v. Jolivet, [2000] 1 S.C.R. 751, at para. 25, Binnie J. cited the ancient rule from Blatch v. Archer (1774), 1 Cowp. 63, at p. 65:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

[42]           However, this principle is subject to several qualifications. Since the inference is one of “ordinary logic and experience”, it may only be drawn where there is not a plausible reason for nonproduction, i.e. where it would be natural for the party to produce the evidence if the facts exposable by the witness had been favourable: Jolivet at para. 24; R. v. Solomon, 2002 CanLII 8965 (On. S.C.), per Hill J., at para. 32; R. v. Rooke (1988), 40 C.C.C. (3d) 484 (B.C.C.A.), at pp. 512-13. As Binnie J. explained in Jolivet at para. 28, there are many reasons for not calling certain evidence that are unrelated to the truth of the witness’ testimony:

The circumstances in which trial counsel decide not to call a particular witness may restrict the nature of the appropriate “adverse inference”.  Experienced trial lawyers will often decide against calling an available witness because the point has been adequately covered by another witness, or an honest witness has a poor demeanour, or other factors unrelated to the truth of the testimony. 

[43]         In addition, evidence may not be called if it would be unimportant to the case, cumulative, or inferior to the evidence already available on the relevant point: see Solomon at para. 32; Rooke at p. 518; R. v. C.R.S. (1998), 133 C.C.C. (3d) 559 (N.S.C.A.), at p. 571.

[44]         Further, the inference is stronger where the “missing proof” lies in the “peculiar power” of the party against whom the adverse inference is sought to be drawn: Jolivet at para. 27.

 

 

I don't like Mondays

Thornhill Federal Liberal Riding Association nomination meeting

What an amazing nomination meeting!

Reza Moridi, Joe Volpe, Carolyn Bennett, Kathleen Wynn, John McCallum, Susan Kadis, Irwin Cotler and 75 others all for Karen Mock!

Who knew polars bears liked watermelon?

Note how Corrina can take an entire melon in her mouth at once!

Walking through Ottawa airport with a huge sign saying "Liberal"

I was pleased at the number of people who came up and said positive things. Now, Ottawa is not in Alberta but at least Ottawa looks good. The West is not hopeless but it will take a lot of time and work to turn that around -- work that Michael has made a solid start on.

Sunday dip

Ottawa

A hospitality suite. A regular hotel room with upwards of 120 people (not all at once!!!) crammed inside. Vast amounts of wine, bourbon, vodka, cheese, crackers, fruit, vegetables and jelly beans.

Parenting decisions and judges

Alan Shanoff did a column in the Sun pointing out the absurdity of estranged or divorced spouses asking a third party -- judges -- to make their parenting decisions.

I never really thought of it that way but it's a good point. Judges are highly trained in technical legal issues and are, more generally, bright people who care about justice.

But judges have no special insight into raising kids.

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

416 225 2777

Conservative/NDP coalition

So the NDP may prop up the Conservatives. The Conservatives say they don't want their help although back in 2005 Stephen Harper said:



"What the government has to do if it wants to govern for any length of time, is it must appeal primarily to the third parties in the House of Commons to get them to support it."



In any event, the thought of a Conservative/NDP coalition is just, well, I can't think of a word!



Layton makes conciliatory noises amid looming Parliamentary showdown





September 12, 2009

THE CANADIAN PRESS



TORONTO - NDP Leader Jack Layton is ratcheting down the election rhetoric with soothing words about making Parliament work as a confidence showdown looms.



The Commons returns for the fall session Monday after a break of almost three months, but a vote that could end the latest 10-month Conservative minority government might come before the week is out.



An unusually media-skittish Layton said little Saturday during an event in Toronto, but what he did say lowered the temperature somewhat.



"I think that everybody involved would want to see us co-operate in the House of Commons and get some results for people - especially those that are struggling right now: the unemployed and people being left behind," Layton said as he inched away from reporters at an archway opening in Toronto's china town.



"So that's going to remain our preoccupation."



The New Democrats hold 36 seats in the 308-seat House, more than enough to keep Prime Minister Stephen Harper's minority Conservative government alive through the autumn if they can find common cause on an issue such as Employment Insurance reform. The Tories are likely to unveil EI proposals this week.



"That's all I have to say about elections," added the NDP leader.