Halloween (also written Hallowe'en, literally "holy evening"), also known as All Hallows' Eve or All Saints' Eve (in France more loosely known as La toussaint), is an annual holiday celebrated on October 31. It has roots in the Celtic festival of Samhain and gets its name from being the evening (e'en) before the Western Christian holy day of All Saints (the Eastern Orthodox celebrate All Saints' Day in June). It is largely a secular celebration but some have expressed strong feelings about perceived religious overtones.
The ancient Celts believed that the border between this world and the Otherworld became thin on Samhain, allowing spirits (both harmless and harmful) to pass through. The family's ancestors were honoured and invited home whilst harmful spirits were warded off. It is believed that the need to ward off harmful spirits led to the wearing of costumes and masks. Their purpose was to disguise oneself as a harmful spirit and thus avoid harm. In Scotland the spirits were impersonated by young men dressed in white with masked, veiled or blackened faces. Samhain was also a time to take stock of food supplies and slaughter livestock for winter stores. Bonfires played a large part in the festivities. All other fires were doused and each home lit their hearth from the bonfire. The bones of slaughtered livestock were cast into its flames.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Saturday, October 31, 2009
Friday, October 30, 2009
GST and Provincial Tax trusts in bankruptcy
Today's Supreme Court of
Narrowly put, claims by Her Majesty for GST fall into those of general creditors of a bankrupt and not into trust claims created by statute. While arising under the Quebec Code, and while the language reflects civil law, the decision ought to be fully applicable across
A summary of the decision follows:
The GST imposed under the Excise Tax Act ("ETA") and the QST payable under the Act respecting the Québec Sales Tax are taxes that are collected, and in respect of which credits are available, at each step of the manufacturing and marketing of taxable goods and services. They are payable by the recipient, who is regarded as the debtor in respect of the tax liability to the Crown. In principle, the supplier acts only as a mandatary of the Crown in collecting and remitting these taxes and is deemed to hold the amounts so collected in trust for Her Majesty.
A number of businesses went bankrupt. The Canadian and Quebec tax authorities (the "tax authorities") claimed from the trustees the GST and QST amounts that had been collected but not remitted, or were collectible, by those businesses as of the dates of their bankruptcies. The tax authorities submitted that they were entitled to the amounts in issue as the owners thereof. Financial institutions that held various security interests in the property of the bankrupts contended that, under the law applicable in bankruptcy matters, the federal or provincial Crown is only an ordinary creditor and must be ranked as such with the debtors' other creditors, and that their security interests could therefore be set up against the Crown. The Quebec Superior Court found for the tax authorities on the basis that the GST and QST amounts were not part of the bankrupts' patrimonies. The Quebec Court of Appeal set aside the judgments.
The Supreme Court dismissed the appeal from the Quebec Court of Appeal.
When a supplier goes bankrupt, the tax authorities do not own GST and QST amounts that have been collected but not remitted or are collectible at the time of the bankruptcy. Instead, they have an unsecured claim against the supplier. The legal characterization of the relationships between the tax authorities and the suppliers and recipients of goods and services cannot be considered in isolation from the overall context of the system for the collection and remittance of these taxes and from the provisions of the Bankruptcy and Insolvency Act ("BIA"). The tax authorities' position amounts to maintaining that the deemed trusts established by s. 222 ETA and s. 20 of the Act respecting the Ministère du Revenu ("AMR") continue to exist after a bankruptcy, which conflicts with both the words and the intent of the statutory provisions in question, and is inconsistent with the nature of the tax authorities' rights under the system for the collection and remittance of the GST and QST.
In light of the 1992 amendments to s. 67 BIA, the deemed trusts established by ss. 222 ETA and 20 AMR are terminated at the time of the bankruptcy. Parliament also enacted concordance amendments to the ETA by adding subsection (1.1) to s. 222. As a result of this provision, deemed trusts intended to secure GST claims are ineffective in bankruptcy situations. Although the
Youth sentences
American justice sends people to jail far more easily than we do in Canada. Remember the storm over an adult sentence for first degree murder for a young person?
Justices will scrutinize life sentences for youths
Cases of two Florida juveniles raise questions about penalty for non-homicide crimes
By Robert Barnes
It did not take long for the judge to determine that the convicted rapist in front of him was irredeemable.
"He is beyond help," Judge Nicholas Geeker said of Joe Harris Sullivan. "I'm going to try to send him away for as long as I can."


And then Geeker sentenced Sullivan to life in prison without the possibility of parole. At the time, Sullivan was 13 years old.
Now, 20 years after that sentencing in a courtroom in Pensacola, Fla., the Supreme Court will consider whether Sullivan's prison term -- and what his supporters say is an only-in-America phenomenon of extreme sentences for juveniles -- violates the Constitution's prohibition of cruel and unusual punishment.
The case -- which has drawn widespread notice and briefs from former senator Alan Simpson (R-Wyo.) and others describing their own youthful crimes -- is likely to be a cardinal criminal justice decision for the court this term.
It is a natural outgrowth of the court's bitterly divided ruling in 2005 that juveniles cannot be executed for murders they commit.
Those challenging sentences of life without parole for teenagers base their optimism on words in Justice Anthony M. Kennedy's majority opinion in that case: "The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. . . . It would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed."
To view the entire article, go to
http://www.washingtonpost.com/wp-dyn/content/article/2009/10/28/AR2009102805056.html?referrer=emailarticle
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Bandidos murders
14 hours may seem fast but it seems to me the jury decided they were all guilty more or less right away and then spent the time ensuring they got the judge's directions right.
In what's believed to be the largest number of murder convictions ever produced at a single criminal trial in Canada, six members of the Bandidos biker gang charged in the 2006 mass slaying of eight rivals were all found guilty on multiple counts of first-degree murder yesterday.
After just 14 hours of deliberation, the jury returned 44 verdicts of first-degree murder and four of manslaughter.
With their lawyers standing in front of them, a custom when a jury's verdict is delivered, the six defendants remained stone-faced as the 48 findings of guilt were read out one by one in Ontario Superior Court.
But near the end, proceedings were interrupted by angry protests from Marcelo Aravena, 33, who from his prisoner's box raised his hand and swore at the jury.
"You guys are fucking goofs, pieces of fucking shit," he yelled.
Then he turned on his lawyer, Tony Bryant. "Fuck you, Tony," he shouted.
A few minutes later, he spat at Mr. Bryant and was hustled out of the packed courtroom by police.
A handful of the dead men's relatives were also in court, two of them in tears. The Ontario Provincial Police officer who headed the long investigation said justice had been served by the outcome.
"Motorcycle gangs are inherently violent and this is a glimpse of just how violent they are," said Detective-Inspector Paul Beesley.
Mr. Aravena and his five co-accused, Wayne Kellestine, 60, Dwight Mushey, 41, Michael Sandham, 39, Frank Mather, 35 and Brett Gardiner, 25, were each charged with eight counts of first-degree murder.
Their eight victims were fellow Bandidos John Muscedere, George Jessome, George Kriarkis, Luis Raposo, Frank Salerno, Paul Sinopoli, Jamie Flanz and Michael Trotta, all from the Greater Toronto area. The jury's verdicts came 3½ years after the killings, and seven months after the trial began in a heavily secured 14th-floor courtroom in downtown London.
More than 70 witnesses testified.
Full story here: http://www.theglobeandmail.com/news/national/bandidos-trial-yields-44-murder-convictions/article1344800/
In what's believed to be the largest number of murder convictions ever produced at a single criminal trial in Canada, six members of the Bandidos biker gang charged in the 2006 mass slaying of eight rivals were all found guilty on multiple counts of first-degree murder yesterday.
After just 14 hours of deliberation, the jury returned 44 verdicts of first-degree murder and four of manslaughter.
With their lawyers standing in front of them, a custom when a jury's verdict is delivered, the six defendants remained stone-faced as the 48 findings of guilt were read out one by one in Ontario Superior Court.
But near the end, proceedings were interrupted by angry protests from Marcelo Aravena, 33, who from his prisoner's box raised his hand and swore at the jury.
"You guys are fucking goofs, pieces of fucking shit," he yelled.
Then he turned on his lawyer, Tony Bryant. "Fuck you, Tony," he shouted.
A few minutes later, he spat at Mr. Bryant and was hustled out of the packed courtroom by police.
A handful of the dead men's relatives were also in court, two of them in tears. The Ontario Provincial Police officer who headed the long investigation said justice had been served by the outcome.
"Motorcycle gangs are inherently violent and this is a glimpse of just how violent they are," said Detective-Inspector Paul Beesley.
Mr. Aravena and his five co-accused, Wayne Kellestine, 60, Dwight Mushey, 41, Michael Sandham, 39, Frank Mather, 35 and Brett Gardiner, 25, were each charged with eight counts of first-degree murder.
Their eight victims were fellow Bandidos John Muscedere, George Jessome, George Kriarkis, Luis Raposo, Frank Salerno, Paul Sinopoli, Jamie Flanz and Michael Trotta, all from the Greater Toronto area. The jury's verdicts came 3½ years after the killings, and seven months after the trial began in a heavily secured 14th-floor courtroom in downtown London.
More than 70 witnesses testified.
Full story here: http://www.theglobeandmail.com/news/national/bandidos-trial-yields-44-murder-convictions/article1344800/
Thursday, October 29, 2009
The CUPE strikers at York have had their local taken into administration
NOTICE TO MEMBERS OF CUPE LOCAL 3903:
CUPE NATIONAL OFFICE HAS PLACED YOUR LOCAL UNDER ADMINISTRATION
CUPE National has placed CUPE Local 3903 under administration. I have been named as the administrator. I'm Lynn McDougall, a CUPE National Representative, and Coordinator of the Ontario University Workers Coordinating Committee (OUWCC).
The National Union does not take such a move lightly.
I will be meeting with the former executive members of the local tomorrow, Thursday, October 29, to discuss the current situation, implications for the local, and next steps.
There will be information meetings for the membership of CUPE Local 3903 on Wednesday, November 4. When times and locations have been confirmed you will be notified.
It was the intention of CUPE National office and the former local executive that all the members of CUPE Local 3903 would be notified of the administration at the same time. However, unfortunately information was leaked to some members prior to this notice being posted.
It is unfortunate that a select few members have been made aware of the situation prior to the entire membership being informed.
I look forward to meeting with the membership, asking for your assistance and working closely with you in this time of rebuilding CUPE Local 3903.
In solidarity,
M. Lynn McDougall
Universities Coordinator
Canadian Union of Public Employees
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
CUPE NATIONAL OFFICE HAS PLACED YOUR LOCAL UNDER ADMINISTRATION
CUPE National has placed CUPE Local 3903 under administration. I have been named as the administrator. I'm Lynn McDougall, a CUPE National Representative, and Coordinator of the Ontario University Workers Coordinating Committee (OUWCC).
The National Union does not take such a move lightly.
I will be meeting with the former executive members of the local tomorrow, Thursday, October 29, to discuss the current situation, implications for the local, and next steps.
There will be information meetings for the membership of CUPE Local 3903 on Wednesday, November 4. When times and locations have been confirmed you will be notified.
It was the intention of CUPE National office and the former local executive that all the members of CUPE Local 3903 would be notified of the administration at the same time. However, unfortunately information was leaked to some members prior to this notice being posted.
It is unfortunate that a select few members have been made aware of the situation prior to the entire membership being informed.
I look forward to meeting with the membership, asking for your assistance and working closely with you in this time of rebuilding CUPE Local 3903.
In solidarity,
M. Lynn McDougall
Universities Coordinator
Canadian Union of Public Employees
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Speaking to a Parliamentary Committee
Today I was a witness on legislation before Parliament. It's a curious experience and while I have done it before, every time I attend I am struck at the importance, and un importance, of the attendance.
Un importance because most witnesses say exactly what you think they'll say. It might as well be called Question Period Redux -- it's just people taking positions without any impact at all on the legislation. No witness will ever convince whoever is the government to make a major policy shift.
But ... .
Importance because the Committees do listen and, if the points raised are technical and do not conflict with broader policy, those points may well be adopted by the Committee and find their way into legislation.
Sometimes it's good to reach for low hanging fruit because if you reach for the higher up stuff you'll just go hungry.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Knowing assistance
Today's brief Court of Appeal decision in Bray v. Fijnheer, 2009 ONCA 746 sets out some of the requirements for a plea of "knowing assistance". The case is useful as a recent source for "wilful blindness" being sufficient as the mental element for the cause of action.
The plea of "knowing assistance" is properly brought against someone who, with actual or implied knowledge, assists in the wrongful breach of a trust.
In Baden, Delvaux and Lecuit v. Societe pour Favoriser le Developpement du Commerce et de l'Industrie en France S.A., [1983] BCLC 325, the Court held that there are four elements to establish "knowing assistance":
"(1) the existence of a trust; (2) the existence of a dishonest and fraudulent design on the part of the trustees of the trust; (3) the assistance of the stranger in that design; and (4) the knowledge of the stranger."
In today's decision the Court deals with two of these elements and writes:
[4] In our view, the statement of claim lacks sufficient particulars with respect to two of the essential elements of an action for knowing assistance, those being the requirements that a stranger to a trust have actual knowledge of the existence of the trust and that the stranger have actual knowledge or be wilfully blind to and participate in the trustee's dishonest and fraudulent breach of trust.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
The plea of "knowing assistance" is properly brought against someone who, with actual or implied knowledge, assists in the wrongful breach of a trust.
In Baden, Delvaux and Lecuit v. Societe pour Favoriser le Developpement du Commerce et de l'Industrie en France S.A., [1983] BCLC 325, the Court held that there are four elements to establish "knowing assistance":
"(1) the existence of a trust; (2) the existence of a dishonest and fraudulent design on the part of the trustees of the trust; (3) the assistance of the stranger in that design; and (4) the knowledge of the stranger."
In today's decision the Court deals with two of these elements and writes:
[4] In our view, the statement of claim lacks sufficient particulars with respect to two of the essential elements of an action for knowing assistance, those being the requirements that a stranger to a trust have actual knowledge of the existence of the trust and that the stranger have actual knowledge or be wilfully blind to and participate in the trustee's dishonest and fraudulent breach of trust.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
This ain't no Harlequin romance about a Sheikh of Araby
Family law is notorious for allegations that aren't quite true.
Still, the story below has some credibility because of the meetings between officials.
Under Saudi law, as I understand it, custody of children is normally given to the father when a couple split up -- that was the Canadian practice a hundred years ago. If the children were born in, and have lived all their lives in, Saudi then, ghastly as it sounds, it makes sense to treat them under Saudi law.
The $300,000 appears to be grotesque but, again, perhaps there is another side to the story -- people who have to pay equalisation on divorce here in Canada often see that as unfair and extortion.
Still, Canadian officials don't seem to have been very media savvy in their comments; Canadians abroad are subject to foreign law but that doesn't mean the Canadian government can wash their hands of them. (And the reference to Saudi Arabia's Commission on Human Rights is amusing -- remember it is a crime to follow Christianity in Saudi).
Saudi husband demands $300K for wife's freedom
Marian Scott, Canwest News Service
Thursday, Oct. 29, 2009
The common-law husband of a Quebec woman is demanding $300,000 for the release of his three children and wife, who swore in an affidavit that she has been held against her will in Saudi Arabia since 2005.
Samir Said Ramthi Al Bishi met with Canadian officials in Saudi Arabia on Sept. 22, at which time he demanded the cash in exchange for the release of his wife, Nathalie Morin, 25, a Longueuil woman and mother to the couple's three children, ages 7, 3, and 11 months.
Canadian officials responded by saying Mr. Al Bishi's demand is legal under Saudi law, so "we cannot take sides and will continue to consider the situation of Mrs. Morin and her three children as a private, family matter," consular official Nathalie Tenorio-Roy told Ms. Morin's mother, Johanne Durocher, in an email on Oct. 22.
...
Meanwhile, information obtained by Bloc Quebecois MP Francine Lalonde under freedom of information reveals that Canadian consular officials suggested Ms. Morin's children might be better off staying in Saudi Arabia without her.
"Maybe we will get the children to Canada -- to be with their high-school-educated, 22-year-old mother," an embassy official wrote in a memo on Oct. 19, 2006.
In another memo, sent the previous day, the official wrote: "We have higher priorities and I have spoken with Nathalie -- not her priority either."
...
Ms. Morin met Mr. Al Bishi in 2001 in Montreal, where he was living illegally. He was deported in 2002, soon after she had a child by him. She moved to Saudi Arabia in 2005 after two visits there.
...
Natalie Sarafian, press attache to Foreign Affairs Minister Lawrence Cannon, noted that when Canadians leave Canadian territory, they are subject to foreign laws.
"Minister Cannon's greatest wish is that this matter is settled and we are doing everything we can to enable this," she said.
Ms. Sarafian added that Mr. Cannon met with Saudi Arabia's Commission on Human Rights and raised the Morin case with his Saudi counterpart on Saturday during a visit to the Middle East.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Scientists say curry compound kills cancer cells
This is interesting and I'm sure true ... but how many "X kills cancer" stories have we seen. Still, curry is good food so what's the downside to eating more?
Wednesday, October 28, 2009
Reuters
LONDON -- A molecule found in a curry ingredient can kill esophageal cancer cells in the laboratory, suggesting it might be developed as an anti-cancer treatment, scientists said on Wednesday.
Researchers at the Cork Cancer Research Center in Ireland treated esophageal cancer cells with curcumin -- a chemical found in the spice turmeric, which gives curries a distinctive yellow color -- and found it started to kill cancer cells within 24 hours.
...
Previous scientific studies have suggested curcumin can suppress tumors and that people who eat lots of curry may be less prone to the disease, although curcumin loses its anti-cancer attributes quickly when ingested.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Wednesday, October 28, 2009
Fiduciary duty
Friday's Supreme Court of Canada decision in Galambos v. Perez, 2009 SCC 48 provides a helpful re statement of the law regarding fiduciary duty. Briefly put, fiduciary duty does not arise except where there is (1) a relationship in which (2) the fiduciary agrees to act in the interest of the other and (3) where the fiduciary exercises a discretionary power. Absent these indicia there is no fiduciary relationship. The Court writes:
[67] An important focus of fiduciary law is the protection of one party against abuse of power by another in certain types of relationships or in particular circumstances. However, to assert that the protection of the vulnerable is the role of fiduciary law puts the matter too broadly. The law seeks to protect the vulnerable in many contexts and through many different doctrines. As La Forest J. noted in Hodgkinson, at p. 406: "[W]hereas undue influence focuses on the sufficiency of consent and unconscionability looks at the reasonableness of a given transaction, the fiduciary principle monitors the abuse of a loyalty reposed" (emphasis added). This brief sentence makes two important points which help sharpen the focus on the role of fiduciary law.
[68] The first is that fiduciary law is more concerned with the position of the parties that results from the relationship which gives rise to the fiduciary duty than with the respective positions of the parties before they enter into the relationship. La Forest J. in Hodgkinson, at p. 406, made this clear by approving these words of Professor Ernest J. Weinrib: "It cannot be the sine qua non of a fiduciary obligation that the parties have disparate bargaining strength. ... In contrast to the notions of conscionability, the fiduciary relation looks to the relative position of the parties that results from the agreement rather than the relative position that precedes the agreement" ("The Fiduciary Obligation" (1975), 25 U.T.L.J. 1, at p. 6). Thus, while vulnerability in the broad sense resulting from factors external to the relationship is a relevant consideration, a more important one is the extent to which vulnerability arises from the relationship: Hodgkinson, at p. 406.
[69] The second is that a critical aspect of a fiduciary relationship is an undertaking of loyalty: the fiduciary undertakes to act in the interests of the other party. This was put succinctly by McLachlin J. (as she then was) in Norberg, at p. 273, when she said that "fiduciary relationships ... are always dependent on the fiduciary's undertaking to act in the beneficiary's interests". See also Hodgkinson, per La Forest J., at pp. 404-7.
[70] Underpinning all of this is the focus of fiduciary law on relationships. As Dickson J. (as he then was) put it in Guerin v. The Queen, [1984] 2 S.C.R. 335, at p. 384: "It is the nature of the relationship ... that gives rise to the fiduciary duty." The underlying purpose of fiduciary law may be seen as protecting and reinforcing "the integrity of social institutions and enterprises", recognizing that "not all relationships are characterized by a dynamic of mutual autonomy, and that the marketplace cannot always set the rules": Hodgkinson, at p. 422 (per La Forest J.). The particular relationships on which fiduciary law focusses are those in which one party is given a discretionary power to affect the legal or vital practical interests of the other: see, e.g., Frame v. Smith, [1987] 2 S.C.R. 99, per Wilson J., at pp. 136-37; Norberg, per McLachlin J., at p. 272; Weinrib, at p. 4, quoted with approval in Guerin, at p. 384.
[71] I return to the Court of Appeal's holding that a fiduciary duty may arise in "power-dependency" relationships without any express or implied undertaking by the fiduciary to act in the best interests of the other party. I respectfully disagree with this approach, for two reasons: "power-dependency" relationships are not a special category of fiduciary relationships and the law is, in my view, clear that fiduciary duties will only be imposed on those who have expressly or impliedly undertaken them.
...
[74] In short, not all power-dependency relationships are fiduciary in nature, and identifying a power-dependency relationship does not, on its own, materially assist in deciding whether the relationship is fiduciary or not. It follows, in my view, that there are not and should not be special rules for recognition of fiduciary duties in the case of "power- dependency" relationships. I am therefore of the view that the Court of Appeal erred in this respect.
...
[80] In my respectful view, the Court of Appeal's analysis went wrong on this point. It found a fiduciary duty without finding an undertaking, express or implied, on the part of Mr. Galambos that he would act in relation to the loans only in Ms. Perez's interests. The court's reasoning is premised on the fact that there was no such undertaking; otherwise, there would have been no need to base the conclusion that a fiduciary duty existed on Ms. Perez's expectations alone.
...
[82] In summary, my view is that the Court of Appeal erred in holding that in the case of power-dependency relationships, a fiduciary duty may arise absent some undertaking on the part of the fiduciary to act in the interests of the other party. The Court of Appeal did not suggest that there was any such undertaking here and in any event, it would be inconsistent with the judge's factual findings to conclude that any such undertaking should be implied.
3. Transfer of Discretionary Power
[83] It is fundamental to the existence of any fiduciary obligation that the fiduciary has a discretionary power to affect the other party's legal or practical interests. In Guerin, Dickson J. spoke of this discretionary power as "the hallmark of any fiduciary relationship" (p. 387) and, while making no comment on whether it was broad enough to embrace all fiduciary obligations, he endorsed Professor Weinrib's description of a fiduciary relationship as one in which "the principal's interests can be affected by, and are therefore dependent on, the manner in which the fiduciary uses the discretion which has been delegated to him" (p. 384). The influential guidelines set out by Wilson J. in Frame, at p. 136, for identifying new categories of fiduciary relationships included that the fiduciary have scope for the exercise of some discretion or power, the exercise of which affects the beneficiary's legal or practical interests. In Norberg, McLachlin J. noted that a fiduciary must be entrusted with such power in order to perform his or her functions (p. 275).
[84] The nature of this discretionary power to affect the beneficiary's legal or practical interests may, depending on the circumstances, be quite broadly defined. It may arise from power conferred by statute, agreement, perhaps from a unilateral undertaking or, in particular situations such as the professional advisory relationship addressed in Hodgkinson, by the beneficiary entrusting the fiduciary with information or seeking advice in circumstances that confer a source of power: see, e.g., Lac Minerals and Hodgkinson. While what is sufficient to constitute power in the hands of the fiduciary may be controversial in some cases, the requirement for the existence of such power in the fiduciary's hands is not. The presence of this sort of power will not necessarily on its own support the existence of an ad hoc fiduciary duty; its absence, however, negates the existence of such a duty.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Police corruption case goes to trial
http://m.theglobeandmail.com/news/national/toronto/police-corruption-scandal-goes-to-trial/article1341746/?service=mobile
But the appeal delayed the case by what, two more years? And someone will try for the SCC.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Stay for delay from Court of Appeal
The decision R. v. Schertzer, 2009 ONCA 742 (the police officer stay for delay case) has just been released. The essence of the decision is set out below. The full decision is worth careful review in considering stay for delay claims.
BY THE COURT:
[1] This is a Crown appeal from the order of Nordheimer J. staying serious charges against six police officers because their rights to a trial within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms were infringed. The trial judge estimated that some 56 months would have elapsed before the trial of five of the six officers, John Schertzer, Steven Correia, Joseph Miched, Nebojsa Maodus and Raymond Pollard ("the Schertzer respondents"), could be completed. It would take even longer to complete the trial of the sixth officer, Richard Benoit. The trial judge stayed the charges because, in his words: "The vast majority of the time that has passed in this prosecution resulted from the Crown's inability to make full and complete disclosure." He also found that the prosecution was characterized by complacency and a lack of awareness of the need to prosecute the case without delay.
[2] In our view, the trial judge made two fundamental errors in finding that the s. 11(b) rights of the Schertzer respondents were infringed. First, he erred in finding that the delay was due to disclosure problems. Whatever the problems with disclosure, and there clearly were some, delay in making disclosure had no impact on the progress of the prosecution. There was no causal connection between problems with disclosure and the timing of the proceedings. To the contrary, the delay was a reflection of the inherent time required to prepare and prosecute this complex case.
[3] Second, the trial judge erred by failing to follow the direction in R. v. Morin, [1992] 1 S.C.R. 771, to expressly identify the causes for significant delays during the chronology of the case. Of the 56-month delay, the trial judge only specifically allocated 18 months of delay to any Morin category. The bulk of the time was unattributed.
[4] The trial judge delivered his reasons on the s. 11(b) motion after months of pre-trial proceedings. In those proceedings, he became very familiar with the long history of the charges before him, and the issues on which battle had been joined at the pre-trial stage. It is fair to say he knew a great deal about the investigation that led to the charges and the pre- and post-charge management of the case by the prosecution. Understandably, the trial judge formed certain opinions about the Crown's conduct of the prosecution. In some respects, he was clearly not impressed. The trial judge was also justifiably concerned about the length of time the charges had been before the courts, particularly given the lengthy pre-charge history of the matter and what he found to be significant ongoing prejudice suffered by all accused.
[5] Whatever the validity of the trial judge's assessment of parts of the Crown's management of this case – upon which we explicitly refrain from commenting – s. 11(b) is not the medium through which the quality of the prosecution's performance is measured. Section 11(b) focuses exclusively on delay and the causes of that delay, and this case proceeded in accordance with a schedule with which the accused and their counsel were content.
[6] When the causes of the delay are properly identified, there was no unreasonable delay in this case. This complex case proceeded at the pace contemplated and dictated by the parties. For this reason, the appeal in respect of the Schertzer respondents is allowed.
[7] The respondent Richard Benoit stands in an entirely different position. Following the preliminary inquiry, he was committed for trial only in relation to one set of allegations and, significantly, was discharged in relation to the most serious allegation, a charge of conspiracy to obstruct justice. It was anticipated that his trial would take no more than a week. There was no reason why Benoit could not have had that trial within months of the committal, but for the Crown's decision to proceed with the much more complicated trial of the Schertzer respondents first. The resulting two-year delay is unreasonable and the trial judge properly stayed the charges against Benoit. The Crown appeal with respect to Benoit is dismissed.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Sentencing guidelines
In the United States judges have sentencing guidelines. They may be set too high (that's another issue) but they are consistent, known and apply across the full range of crimes.
If we really are moving towards mandatory sentencing in Canada then let's stop doing it piecemeal based on what's hot in the press -- proper, uniform and full sentencing guidelines should be put in place.
Lawyer kills self day before charges
Sad story but not that uncommon. I have known a number of professionals who, as a result of criminal charges, have killed themselves.

Wed, 28 Oct 2009
FRIEND ADMITS GUILT
Toronto man accused of insider trading over years
TORONTO • A Toronto lawyer accused of illegally funnelling information to a former law school classmate as part of a multi-million-dollar fraud and insider trading scheme has killed himself, just a day before the Ontario Securities Commission planned to announce a settlement agreement with the two lawyers.
Gil Cornblum, 39, a former partner with the law firm Dorsey & Whitney LLP, died early Monday morning, according to Stanko J. Grmovsek, the law school classmate and coaccused in the scheme.
Toronto Police said a man was rushed to hospital after being found below a bridge in the Don Valley shortly after 7 a.m., but later died from his injuries.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777

Wed, 28 Oct 2009
FRIEND ADMITS GUILT
Toronto man accused of insider trading over years
TORONTO • A Toronto lawyer accused of illegally funnelling information to a former law school classmate as part of a multi-million-dollar fraud and insider trading scheme has killed himself, just a day before the Ontario Securities Commission planned to announce a settlement agreement with the two lawyers.
Gil Cornblum, 39, a former partner with the law firm Dorsey & Whitney LLP, died early Monday morning, according to Stanko J. Grmovsek, the law school classmate and coaccused in the scheme.
Toronto Police said a man was rushed to hospital after being found below a bridge in the Don Valley shortly after 7 a.m., but later died from his injuries.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Frequently asked questions about H1N1
Useful piece from the Post:
Daniel Kaszor, National Post
Tuesday, Oct. 27, 2009
Compiled by Megan O'Toole
How many people have died from H1N1 in Canada?
The latest numbers from the Public Health Agency of Canada show a total of 96 deaths countrywide from H1N1. The majority of those cases were in Ontario and Quebec, with the East Coast and northern Canada largely spared.
...
How quickly does the virus progress in the body?
That depends. It can progress more quickly in those with chronic conditions, such as a respiratory illness, by leading to complications. In general, officials say, it takes two to seven days after exposure for symptoms of H1N1 to develop.
In light of this week's death of a healthy young teenager, should all children be vaccinated early?
The H1N1 flu virus affects younger people more, officials say, but most experience few complications from the disease. A number of ''priority groups'' has been identified nationally who should get the vaccine first, but preteen and teenaged children are not among them.
So who are the priority groups?
They include pregnant and breastfeeding women, health-care workers, young children between six months and five years of age, people with chronic medical conditions, care providers and those living in remote or isolated communities.
What are the symptoms of H1N1?
If a child develops a high fever and cough, parents should watch closely for additional symptoms, such as breathing difficulties, discoloration of the lips, extreme drowsiness, crankiness or fussiness in infants, or not drinking enough fluids, Dr. King said. If there is cause for concern, citizens are advised to contact a health-care provider.
How do you know if you've contracted a mild or severe case of the flu?
Both mild and severe cases come from the same strain of the flu, and because H1N1 is a "novel" virus, it is more likely to cause severe illness in people who are otherwise young and healthy, said Dr. David McKeown, Toronto's medical officer of health. It is not clear why some of those people die and others do not.
Should I pull my child out of school or extracurricular events?
School closures have not been shown to be effective, Dr. King said, because young people tend to congregate in groups outside of school regardless. In addition, school can be a good place to teach children about how to prevent infection. "I think it's important that we keep living our lives," she said. Children involved in outside activities such as sports teams should take care to keep their hands clean and not share water bottles, Dr. McKeown said.
What should we do to prevent the spread of H1N1?
Getting the vaccination is the No. 1 way to prevent its spread, officials say. But other helpful tips include washing hands often, keeping common surfaces clean, coughing or sneezing into your sleeve if a tissue is unavailable, and staying home from work if symptoms show up.
Is there enough vaccine to go around?
Yes. "We are very fortunate in this country to have enough vaccine for anyone who will need and want it, and we are rolling out that vaccine as quickly as possible," Dr. King said.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Tuesday, October 27, 2009
Statement from Michael Ignatieff announcing Leader’s office reorganization
OTTAWA – Tonight, Liberal Leader Michael Ignatieff made the following statement announcing changes to the Leader's office:
"I am pleased to announce the arrival of Peter Donolo, who has accepted the role of Chief of Staff. Mr. Donolo brings a wealth of experience to this role through his long service as the director of communications for Prime Minister Jean Chretien and in his leading role at The Strategic Counsel."
"Ian Davey has my gratitude for his enormous service in building this OLO team, and I am grateful for his continuing counsel. I know that we are a stronger Liberal Party because of his contribution and leadership."
"I am pleased to announce the arrival of Peter Donolo, who has accepted the role of Chief of Staff. Mr. Donolo brings a wealth of experience to this role through his long service as the director of communications for Prime Minister Jean Chretien and in his leading role at The Strategic Counsel."
"Ian Davey has my gratitude for his enormous service in building this OLO team, and I am grateful for his continuing counsel. I know that we are a stronger Liberal Party because of his contribution and leadership."
Tough on crime, soft on the [Federal] budget
I have written here before about how the "law and order" agenda downloads most of its costs to the provinces.
The story below is fascinating because the Federal government is obfuscating wildly by suggesting the Provinces will save money be longer sentences leading to Federal incarceration.
The new sentencing requirements will dramatically increase the number of prisoners on remand and serving sentences of under two years -- all these will be a cost to the Provinces.
Federal prisoners will increase in number also. But that increase will be a small fraction of the Provincial increase. The Federal government is spending the Provinces money -- and now we see they don't intend to admit what they're doing.
Saying the Provinces should focus on "keeping communities safe" is disingenuous at best. The Federal government is ignoring the costs, especially those falling on the Provinces, and hiding that ignorance by cant.
Provinces want Ottawa to help pay for overcrowded jails
Janice Tibbetts, Canwest News Service
Tuesday, Oct. 27, 2009

OTTAWA - The provinces will ask the Harper government this week to help them pay for the federal law-and-order agenda, which they say will put extra strain on their overcrowded jails.
...
The provinces run jails, which house offenders serving sentences of less than two years. The federal government is responsible for prisons, reserved for terms of two years or more.
...
Mr. Van Loan told Canwest News Service he will not be taking his chequebook when he meets with his provincial counterparts -- and that they can expect to absorb any extra costs themselves, because they will benefit from several new and proposed laws that will put more offenders in prisons and jails.
"I think the real question is: Can we focus on keeping our communities safe and keeping the public safe? And I hope that will be the main focus of the provinces, as well," he said.
At least one federal initiative, which became law last week, will be "a huge benefit" financially to the provinces, because it will send more people to federal prisons, who are currently being detained in provincial facilities, awaiting the conclusion of their trials, Mr. Van Loan added.
The new law will eliminate a judicial practice, when sentencing offenders, of giving a two-for-one credit to compensate for time already spent in custody.
...
Mr. Van Loan has refused to reveal the total tab for the federal law-and-order agenda, which would put more people in jails and prisons and keep them there longer.
Among other things, the government has proposed legislation that would impose minimum mandatory sentences for a variety of crimes, including financial fraud and drug trafficking.
Automatic incarceration takes away discretion for judges to impose lesser sentences as they see fit.
The government is proposing other measures that will also keep offenders imprisoned longer. A bill introduced this week would repeal accelerated parole, which permits an offender serving time for a non-violent crime to be released on day parole after serving one-sixth of his sentence.
...
Mr. Van Loan said he expects that eliminating accelerated parole would cost the system about $60-million, but he has repeatedly declined to disclose the cost of any other measures, saying they are "cabinet confidences."
Mr. Van Loan's predecessor, Stockwell Day, stated publicly soon after the Conservatives came to power in 2006 that the government has set aside as much as $245-million over five years to pay for additional prison cells at the federal level.
For three years, provinces have been pushing for extra cash for their overcrowded jails, but they are expected to sharpen their lobbying this year, because several bills have become law, or are on the verging on passing.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Mariam Makhniashvili probe: Police seize computers from library near Forest Hill Collegiate
It may be that the police believe a surreptitious relationship is behind the disappearance. Perhaps the relationship was maintained by emails from public access computers? If so it may be hard to go back that far -- surely by now anything would have been over written? Regardless, good luck to the police in any way necessary.
Rob Roberts, National Post
Tuesday, Oct. 27, 2009
By Matthew Coutts, National Post
Toronto police were seizing the computers at a public library near Forest Hill Collegiate this morning, in the ongoing investigation into the disappearance of Mariam Makhniashvili.
Const. Wendy Drummond confirmed that police were executing a warrant at Forest Hill Public Library, near Eglinton Ave. West and Bathurst Street, and would be removing the library's computers to be searched.
"We have information that Mariam used those computers prior to her going missing. So we are going to be seizing those and going through them for investigative reasons, finding out who she was speaking with," Const. Drummond said.
http://www.nationalpost.com/m/blog.html?b=toronto&e=mariam-makhniashvili-probe-police-seize-computers-at-forest-hill-collegiate&s=Home
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Rob Roberts, National Post
Tuesday, Oct. 27, 2009
By Matthew Coutts, National Post
Toronto police were seizing the computers at a public library near Forest Hill Collegiate this morning, in the ongoing investigation into the disappearance of Mariam Makhniashvili.
Const. Wendy Drummond confirmed that police were executing a warrant at Forest Hill Public Library, near Eglinton Ave. West and Bathurst Street, and would be removing the library's computers to be searched.
"We have information that Mariam used those computers prior to her going missing. So we are going to be seizing those and going through them for investigative reasons, finding out who she was speaking with," Const. Drummond said.
http://www.nationalpost.com/m/blog.html?b=toronto&e=mariam-makhniashvili-probe-police-seize-computers-at-forest-hill-collegiate&s=Home
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Proportionality in sentencing
R. v. Tabbara, 2009 CanLII 57453 gives a good statement of proportionality in sentencing. The case arises in manslaughter but applies generally:
Principle of Proportionality
[50] The proportionality principle outlined under s. 718.1 requires that full consideration be given to both the gravity of the offence and the moral blameworthiness of the offender. In sentencing an individual for manslaughter, the sentence must be tailored to the degree of moral culpability of the offender.
[51] The enormity of the tragic consequences of an offence should not be allowed to unduly distort the consideration of the court as to the appropriate remedy: see R. v. Mellstrom (1975), 222 C.C.C. (2d) 472. In addition, it is an error for the court on sentencing to give undue weight to the actual, rather than the probable results of the act, where it is clear that, at the time of the act, in this case the assault, the probability of the actual results could not have been on the accused's mind: see R. v. Griffin (1975), 23 C.C.C. (2d) 11.
[52] On the other hand, where the offender knew or was willfully blind to the fact that his unlawful act was likely to put the victim at risk of death or cause death, there will be a heightened degree of moral blameworthiness: see R. v. K.K.L., [1995] A.J. No. 434 at ¶14.
[53] While giving weight to all the principles of sentencing, the sentencing judge must assess the extent of moral culpability in a particular case and consider where on the continuum from almost accident to almost murder, the particular offence falls: see R. v. Henry, [2002] N.S.J. No. 113 (C.A.) at ¶19.
KFC 'colonel' dupes UN security
Some stories you just cannot make up -- this is so beyond belief.
KFC 'colonel' dupes UN security
Steven Edwards, Canwest News Service Published: Monday, October 26, 2009
The KFC Colonel (Robert Thompson) meets with the President of the United Nations General Assembly, H.E. Dr. Ali A. Treki of Libya in New York, (photo right)
UNITED NATIONS -- Red-faced United Nations officials on Monday admitted to a major security lapse after a UN guard helped Kentucky Fried Chicken's "Colonel Sanders" gain access to restricted areas.
The guard escorted the white-suited intruder past security barriers, where he got a handshake from the UN General Assembly president, Dr. Ali A. Treki of Libya.
The faux fast food chain founder also posed for a picture beneath the assembly's giant UN logo, which overlooks the spot where world leaders address their international counterparts.
"It should not have happened -- that I will stress, and very strongly," said Michele Montas, spokeswoman for UN Secretary General Ban Ki-moon.
"There was some lapse in security and the individual in question . . . was, on the initiative of one security guard, taken . . . into the UN."
KFC 'colonel' dupes UN security
Steven Edwards, Canwest News Service Published: Monday, October 26, 2009
The KFC Colonel (Robert Thompson) meets with the President of the United Nations General Assembly, H.E. Dr. Ali A. Treki of Libya in New York, (photo right)
UNITED NATIONS -- Red-faced United Nations officials on Monday admitted to a major security lapse after a UN guard helped Kentucky Fried Chicken's "Colonel Sanders" gain access to restricted areas.
The guard escorted the white-suited intruder past security barriers, where he got a handshake from the UN General Assembly president, Dr. Ali A. Treki of Libya.
The faux fast food chain founder also posed for a picture beneath the assembly's giant UN logo, which overlooks the spot where world leaders address their international counterparts.
"It should not have happened -- that I will stress, and very strongly," said Michele Montas, spokeswoman for UN Secretary General Ban Ki-moon.
"There was some lapse in security and the individual in question . . . was, on the initiative of one security guard, taken . . . into the UN."
Monday, October 26, 2009
Truth in sentencing legislation grants unexpected sentencing power to Justices of the Peace
The Truth in Sentencing Legislation awaits proclamation.
The way the legislation is drafted, Justices of the Peace at the judicial interim release hearings have considerable power to constrain judges sentencing after trial.
This is a curiosity, and perhaps unintended, because (1) the Justice of the Peace at a bail hearing has very little admissible evidence – mainly bail decisions are based on credible assertions – and (2) normally a Judge would have review power over a Justice of the Peace and not the other way around.
The Parliamentary Library notes:
In general, the bill changes the two days for one currently credited to one day for one, that is, it limits the credit for pre-sentencing custody to a maximum of one day for each day spent in pre-sentencing custody (new section 719(3) of the Code). That maximum applies to all cases in which the accused was in pre-sentencing custody because of his or her criminal record or breach of conditions of release on bail, including the commission of a criminal offence (new sections 719(3) and 719(3.1) of the Code).
The actual transitional section provides:
Subsections 719(3) to (3.4) of the Act, as enacted by section 3, apply only to persons charged after the day on which those subsections come into force.
Those sections give a new power to the Justice of the Peace at the bail hearing. Before, the Justice simply would say that the accused was detained on the primary, secondary, and/or tertiary grounds.
Under the new section, section 515(9.1): …if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record.
The sentencing court can then give up to one and one half days credit for each day in custody, except where the Justice of the Peace detained, primarily because of a previous conviction of the accused
In those latter circumstances, the sentencing judge can only give one-for-one credit:
if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1)
Knut and Giovanna
The two bears are together and doing well, but it looks like they won't be able to stay together long -- still, it's nice to see them and Knut (lower photo) looks very much at peace.
The Harper government wants to tighten parole for non-violent criminals, introducing a bill to keep such offenders behind bars
This is something I genuinely don't understand. Toughen the parole requriements for non-violent offenders. Surely it makes sense to be stricter with the violent ones, or perhaps with all offenders? Why, except for political reasons, focus on non-violent offenders?
The Harper government wants to tighten parole for white-collar and other non-violent criminals, introducing a bill to keep such offenders behind bars longer.
Public Safety Minister Peter Van Loan made the announcement in Montreal this morning and said the government will table legislation in the House of Commons this afternoon.
Non-violent offenders in crimes such as fraud or drug trafficking are eligible for day parole after completing one sixth of their time; they can access full parole after serving a third of their sentence.
They obtain the early release automatically, unless the National Parole Board objects.
“The status quo gives the National Parole Board no discretion in such cases,” Mr. Van Loan said. “This offends Canadians' sense of justice.”
The early parole rules were introduced in 1992 as a cost-saving measure, Mr. Van Loan said. The Tories' new reform, which it calls as “earned parole,” will cost taxpayers about $60 million a year.
The Harper government wants to tighten parole for white-collar and other non-violent criminals, introducing a bill to keep such offenders behind bars longer.
Public Safety Minister Peter Van Loan made the announcement in Montreal this morning and said the government will table legislation in the House of Commons this afternoon.
Non-violent offenders in crimes such as fraud or drug trafficking are eligible for day parole after completing one sixth of their time; they can access full parole after serving a third of their sentence.
They obtain the early release automatically, unless the National Parole Board objects.
“The status quo gives the National Parole Board no discretion in such cases,” Mr. Van Loan said. “This offends Canadians' sense of justice.”
The early parole rules were introduced in 1992 as a cost-saving measure, Mr. Van Loan said. The Tories' new reform, which it calls as “earned parole,” will cost taxpayers about $60 million a year.
Polls
The polls are a concern; my own sense is that once our policies are in place the numbers will change significantly.
...
The Ipsos Reid poll suggests that, last week, the Liberals would have ... 25% of support among all Canadians.
...
Ipsos found 40% of survey respondents said they would vote Conservative. ...
... the Conservatives appear to be surging in Ontario, opening a nine-point lead -- 41% to 32% -- over the Liberals.
...
Nationally, NDP support remained stable through the month at 13% and the Green Party has the support of 11% of voters, an improvement of three percentage points since Ipsos Reid last polled Canadians in early October.
...
The Conservatives and the Bloc Quebecois seem to have benefitted most from last week's political back-and-forth.
In Quebec, the Bloc Quebecois is the choice of 42% of voters; the Liberals are at 22% and the Conservatives at 18%.
When judges make policy
James Morton, National Post
Published: Monday, October 26, 2009
Language rights, children and education are some of the most emotional topics in Canada. The balancing of language rights and choice of language instruction have posed huge challenges from 19th-century Alberta to Quebec and Ontario today. Partly to ensure the continuity of language and cultural rights in both English and French, the Constitution provides that "Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language."
Quebec's language laws provide that the primary language of education in Quebec is French. But, in order to comply with the Constitution, the laws allow children educated in English in Canada to continue their education in Quebec in English. So, a child who went to school in English in Alberta, on moving to Quebec, could continue to be educated in English. The language laws were the result of political compromise to meet the requirements of the Constitution and Quebec's determination to be a French-speaking province. Part of the compromise allowed for unsubsidized private schools to offer education in any language without restriction; the cost of such schools meant that they would never become a significant part of the overall education system.
Parents who lived in Quebec who wanted their children educated in English, but who had no history of being taught in English, enrolled their children, sometimes briefly, in unsubsidized schools that taught in English. These "bridging schools" were advertised as a way of avoiding the language laws. Children attended bridging schools and then, having studied in English, sought to move to the regular, subsidized, English language schools.
The "bridging schools" posed a threat to the Quebec system as they offered a way for parents to avoid the mandatory French language instruction. The Quebec legislature saw the threat as significant and responded by passing legislation that excluded unsubsidized school instruction from consideration for entitlement to attend an English language public school. No matter how long a student studied in English in an unsubsidized school, that student would never qualify to continue their education in an English public school.
Parents of children who went to an unsubsidized school sued to have the exclusion declared unconstitutional. The Supreme Court of Canada agreed, in a unanimous decision in Nguyen vs. Quebec last week, and ordered the Quebec government to come up with a narrower solution. In so doing the court gave surprisingly little deference to the legislature and the legislative compromise. The decision that "bridging schools" posed a threat to the integrity of French language laws was found insufficient to support the exclusion.
The court considered the number of students involved with "bridging schools" and noted that it was small. While acknowledging the problem could get worse the court said "this legislative response seems excessive in relation to the seriousness of the identified problem and its impact on school clientele and, potentially, on the situation of the French language in Quebec." The court's words suggests a policy determination -"seems excessive" is hardly the language of deference to a legislative choice.
The importance of the court's decision goes beyond the details of English language instruction in Quebec. The court has, in effect, substituted its view of the seriousness of a problem for that of an elected legislature and done so in the language of policy options and choices. While the court's view may well be reasonable, the issue is one of who shall determine policy choices. This willingness to consider policy matters may have implications for future cases.
In November the Supreme Court will hear arguments in the case of Omar Khadr, a Canadian held in Guantanamo Bay, Cuba, by the United States. The Federal Government has repeatedly refused to seek Khadr's return to Canada. The November hearing will consider whether a Federal Court order requiring the federal government to seek Khadr's return is an unwarranted interference with the government's discretion to conduct its foreign relations as it sees fit. The decision in Nguyen suggests the Court may be open to an oversight of governmental discretion.
-James Morton is adjunct faculty at Osgoode Hall Law School and a partner at Steinberg Morton Hope & Israel LLP. He is past president of the Ontario Bar Association.
Published: Monday, October 26, 2009
Language rights, children and education are some of the most emotional topics in Canada. The balancing of language rights and choice of language instruction have posed huge challenges from 19th-century Alberta to Quebec and Ontario today. Partly to ensure the continuity of language and cultural rights in both English and French, the Constitution provides that "Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language."
Quebec's language laws provide that the primary language of education in Quebec is French. But, in order to comply with the Constitution, the laws allow children educated in English in Canada to continue their education in Quebec in English. So, a child who went to school in English in Alberta, on moving to Quebec, could continue to be educated in English. The language laws were the result of political compromise to meet the requirements of the Constitution and Quebec's determination to be a French-speaking province. Part of the compromise allowed for unsubsidized private schools to offer education in any language without restriction; the cost of such schools meant that they would never become a significant part of the overall education system.
Parents who lived in Quebec who wanted their children educated in English, but who had no history of being taught in English, enrolled their children, sometimes briefly, in unsubsidized schools that taught in English. These "bridging schools" were advertised as a way of avoiding the language laws. Children attended bridging schools and then, having studied in English, sought to move to the regular, subsidized, English language schools.
The "bridging schools" posed a threat to the Quebec system as they offered a way for parents to avoid the mandatory French language instruction. The Quebec legislature saw the threat as significant and responded by passing legislation that excluded unsubsidized school instruction from consideration for entitlement to attend an English language public school. No matter how long a student studied in English in an unsubsidized school, that student would never qualify to continue their education in an English public school.
Parents of children who went to an unsubsidized school sued to have the exclusion declared unconstitutional. The Supreme Court of Canada agreed, in a unanimous decision in Nguyen vs. Quebec last week, and ordered the Quebec government to come up with a narrower solution. In so doing the court gave surprisingly little deference to the legislature and the legislative compromise. The decision that "bridging schools" posed a threat to the integrity of French language laws was found insufficient to support the exclusion.
The court considered the number of students involved with "bridging schools" and noted that it was small. While acknowledging the problem could get worse the court said "this legislative response seems excessive in relation to the seriousness of the identified problem and its impact on school clientele and, potentially, on the situation of the French language in Quebec." The court's words suggests a policy determination -"seems excessive" is hardly the language of deference to a legislative choice.
The importance of the court's decision goes beyond the details of English language instruction in Quebec. The court has, in effect, substituted its view of the seriousness of a problem for that of an elected legislature and done so in the language of policy options and choices. While the court's view may well be reasonable, the issue is one of who shall determine policy choices. This willingness to consider policy matters may have implications for future cases.
In November the Supreme Court will hear arguments in the case of Omar Khadr, a Canadian held in Guantanamo Bay, Cuba, by the United States. The Federal Government has repeatedly refused to seek Khadr's return to Canada. The November hearing will consider whether a Federal Court order requiring the federal government to seek Khadr's return is an unwarranted interference with the government's discretion to conduct its foreign relations as it sees fit. The decision in Nguyen suggests the Court may be open to an oversight of governmental discretion.
-James Morton is adjunct faculty at Osgoode Hall Law School and a partner at Steinberg Morton Hope & Israel LLP. He is past president of the Ontario Bar Association.
Teddy Bear in carpooling lane -- I was asked for the link and here it is...
I think the bear needed a ride -- that's the defence I'd use. Where is it written the passengers have to all be human???OTTAWA — A Gatineau, Que., man faces almost $300 in fines after police caught him twice this week driving with a teddy bear disguised as a third passenger in a carpooling lane.
Police were surprised to see the teddy bear dressed as a toddler with a toque and scarf and buckled into a rear child seat in the car on Tuesday during the morning rush hour. An officer gave the driver a $144 ticket and warned him that city traffic regulations require drivers to have at least three real passengers when they use bus, taxi and carpooling lanes.
Const. Isabelle Poirier said police spotted the same man, woman and teddy bear in the Fournier carpooling lane on Wednesday.
http://www.ottawacitizen.com/Quebec+pooler+caught+with+teddy+bear+child+seat/2138601/story.html#
Sunday, October 25, 2009
Tough-on-crime agenda is cheap for Feds but not cheap for taxpayers
A point I have mentioned before, "tough on crime" is generally cheap for the Feds but not cheap for taxpayers.
Most of the new mandatory sentences will be served in less than two years -- so the convicts will be sent to Provincial institutions paid for by the Provinces. Taxpayers will pay but it will not come from the Federal budget.
Similarly, the enforcement by police, the extra legal aid and (most of) the extra judges (and all of the extra Justices of the Peace) will be paid by the Provinces.
Federal costing is misleading here. The Conservative "tough on crime" agenda will be costly and will be paid for by taxpayers -- but not at the Federal level.
"Liberals request financial analysis, hoping to determine implications of crime bills
Bill Curry
Ottawa— From Monday's Globe and Mail
Parliamentary Budget Officer Kevin Page is launching the first stages of a financial analysis aimed at pinning down the total cost of the Conservative government's tough-on-crime agenda.
The preliminary work is being done in response to a written request by Liberal MP Mark Holland. The MP hopes it will determine the financial implications of three crime bills already passed into law and four others that are still being debated in Parliament.
"The government has supplied Parliament with no costing for these policies, despite the fact that the cost to our correctional system will inevitably be in the hundreds of millions of dollars as a significant influx of new federal inmates will result," Mr. Holland wrote."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Most of the new mandatory sentences will be served in less than two years -- so the convicts will be sent to Provincial institutions paid for by the Provinces. Taxpayers will pay but it will not come from the Federal budget.
Similarly, the enforcement by police, the extra legal aid and (most of) the extra judges (and all of the extra Justices of the Peace) will be paid by the Provinces.
Federal costing is misleading here. The Conservative "tough on crime" agenda will be costly and will be paid for by taxpayers -- but not at the Federal level.
"Liberals request financial analysis, hoping to determine implications of crime bills
Bill Curry
Ottawa— From Monday's Globe and Mail
Parliamentary Budget Officer Kevin Page is launching the first stages of a financial analysis aimed at pinning down the total cost of the Conservative government's tough-on-crime agenda.
The preliminary work is being done in response to a written request by Liberal MP Mark Holland. The MP hopes it will determine the financial implications of three crime bills already passed into law and four others that are still being debated in Parliament.
"The government has supplied Parliament with no costing for these policies, despite the fact that the cost to our correctional system will inevitably be in the hundreds of millions of dollars as a significant influx of new federal inmates will result," Mr. Holland wrote."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Karen Mock speaks to volunteers and young Liberals
The Thornhill Riding has been invigorated by young Liberals who have brought new energy and dedication to making Thornhill Liberal both Federally and Provincially. In this photograph, taken earlier this week, Karen speaks to young Liberals and volunteers.
Montreal man ticketed for teddy bear in car
Apparently he had the teddy bear set up as a passenger so as to be allowed to use a car pool lane.
Perhaps it was legit and the teddy bear was just sharing a ride?
David Chen -- stay the charges
Should David Chen, the store keeper who held a shoplifter until the police came, have been charged? Should the charges continue?
As a legal matter the charges seem sound. The fact a crime was committed against him does not impact on any crime he might himself commit.
But there is something known as prosecutorial discretion. It is not political and the government has no say in it -- it is a question of the Crown's professionals deciding whether a prosecution serves the interests of justice.
Here, I think, the discretion should be exercised to stay the proceedings. Chen's arrest and charges are seen as racist and unfair -- they do not promote justice and may lead to self-help (don't call the cops, just catch shoplifters, beat them up and release them).
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
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