Who wants to know what Peter Van Loan finds interesting about the Firearms Commissioner's Report?

Thanks to Omar for this:

The public safety minister meets the press. It doesn't go well:

Question: How long have you had the report from the Commissioner of Firearms?

Hon. Peter Van Loan: The report from the Commissioner of Firearms has to be tabled tomorrow which it will be. I know that some information - some information on it will be coming out shortly. Some of it has already been released in the public accounts. The one that I know has attracted some interest is the number of times that the police access it which is close to three and a half million times. What's very interesting about that statistic is of those three and a half million times only 2.4 percent of the time is it actually information about the registration of a long-gun that would eliminated by the long-gun registry. If the bill to eliminate the long-gun registry is passed and becomes law, 97 percent of the times that the police utilize that information from the firearms centre would continue to be in place because of course the bill does not eliminate the requirement for licensing of gun owners and only, as I said, 2.4 percent of those queries had to do with information related to long-gun registration.

Question: (Inaudible)
Hon. Peter Van Loan: I am referring to the 2008 statistics. And what's more interesting -

Question: (Inaudible)
Hon. Peter Van Loan: If I could finish, what's more interesting -

Question: You haven't answered my question once yet though.
Hon. Peter Van Loan: If I could answer ----

Question: A different question from the one I asked you, sir.
Hon. Peter Van Loan: The report will be tabled tomorrow which is the requirement.

Question: How long have you had it?
Hon. Peter Van Loan: What is more interesting -

Question: Well, no -
Hon. Peter Van Loan: --- what is more interesting is that -

Question: (Inaudible) what's more interesting we ask the questions.
Hon. Peter Van Loan: --- the proportion of times when in 2003, for example, eight percent, 8.3 percent of the time that police accessed information from the National Firearms Centre it was information related to the registry of long guns, right?

Question: Okay, great.
(Several reporters speaking at once.)
Hon. Peter Van Loan: That proportion, that percentage has gone down every single year since 2003 -

Question: So how long have you had it?
Hon. Peter Van Loan: --- to last year when it was 2.4 percent. So what the information -

Question: How long have you had it?
Hon. Peter Van Loan: --- what this report demonstrates is exactly what we have been saying.

Question: How long have you had the Commissioner of Firearms report?
Hon. Peter Van Loan: If I could finish -

Question: No, sir, you haven't answered the question that I asked you. You're answering a completely different question.

Hon. Peter Van Loan: What the report demonstrates is what we have been saying all along -

Question: How long have you had the Firearms Commissioner's report, sir?
Hon. Peter Van Loan: --- that the registry - the long-gun registry is not used by police to prevent crime. It's thoroughly ineffective and that when we eliminate the long-gun registry, 97 percent - over 97 percent of the occasions -

Question: This isn't a news conference, these are questions. How long have you had the Firearms report?

Hon. Peter Van Loan: --- over 97 percent of the occasions that -

Question: This is not QP, okay?
Hon. Peter Van Loan: --- that individuals -

Question: We're asking you a question. How long have you had this report?
Hon. Peter Van Loan: --- that the police access the registry will be continued.

Question: How long have you had it? Has it been weeks?
Question: Why did you hide it before the vote? How long have you had this report?

Hon. Peter Van Loan: This report has not been hidden. I think when people see the report -
Question: How long have you had it then?
Hon. Peter Van Loan: --- when people see - it's been available to me a matter of days.

Question: How many days?

Question: Did your department receive it in April, is that true?

Hon. Peter Van Loan: I don't know. I don't believe so but I -

Question: When?
Hon. Peter Van Loan: I certainly did not see it back in April or May?

Question: Well, when did it (inaudible) your office?
Hon. Peter Van Loan: It's - I received it and looked at just recently, in recent days.

Question: When? Recently meaning what?
Hon. Peter Van Loan: However - in days. I could go back and find that for you. It's not terribly relevant because the information -

Question: (Inaudible)
Hon. Peter Van Loan: The information that is revealed is exactly what we say.

Question: But the information was revealed after the vote.
Hon. Peter Van Loan: The long-gun registry is not utilized by police to prevent police. In fact, the information that they utilize, 97 percent of it, more than 97 percent of it now is information they will still have after the elimination of the long-gun registry because we maintain -

Question: Useful information for MPs who don't know so why didn't you give it to them before yesterday's vote?

Hon. Peter Van Loan: Well, it's the same information. We had the report last year revealed the same trend. The year before revealed the same trend. The year before revealed the same trend. There's no new information in that. What we know is the same thing -

Question: So you decide what information should be or should not be made public because you don't find it's interesting enough?

Hon. Peter Van Loan: We release it as the statute requires, as the rules require and it'll be released tomorrow in accordance with the rules.

Question: How long have you had the statistics about that?
Hon. Peter Van Loan: That's what we do with reports. But what's interesting is the report has said -

Question: You decide what's interesting ---
Hon. Peter Van Loan: --- every single year that the information -

Question: --- you decide what people can know before they vote so you ---
Hon. Peter Van Loan: No, we table the report as we are required to.

Question: After the vote though.
Hon. Peter Van Loan: What's interesting though is this is -

Question: No, you don't get to decide what's interesting.
Hon. Peter Van Loan: No, here -

Question: We're asking you a very simple question. When did you get that report?

Hon. Peter Van Loan: Here's one more - here's one more thing -

Question: When did you get that report, sir?
Hon. Peter Van Loan: --- here's one more thing, in fairness, that's interesting about the report.

Question: We don't care what you find interesting.
Hon. Peter Van Loan: What you're going to see tomorrow in this report produced by the National Firearms Centre to justify the existence is that the statistics I just gave you were not included. Whoever put it together didn't put in there the information that only 2.4 percent of those three and a half million queries were actually related to information about a long-gun registration number or about a serial number of a gun. Only 4.5 percent.

Question: Why do you think that is?
Hon. Peter Van Loan: And that shows -

Question: (Inaudible) that's why you didn't make it public? Is that what you're saying?

Hon. Peter Van Loan: No, that information was not put there by the people at the National Firearms Registry so you should ask them why that information wasn't there. We've gone and got that information -

Question: And that's why you decided not to make it public, because that information was not there?

Hon. Peter Van Loan: No, no. We're putting it out there on the public table at the time that's required under the law. But the more important question is why was that piece of information I gave you not revealed by the Firearms Centre and that's a very important piece of information for Canadians to have. That's why I'm sharing it with you. Thank you very much.

Question: That was totally useless. Thank you.

If one fights the wrong war, good tactics actually make things worse, by encouraging persistence, while brilliant tactics are even worse, inducing an even greater waste of resources in hopeless places.

Edward Luttwak in the TLS discussing the wars Iraq and Afghanistan.

Toronto beats two rivals to win bid to host Pan Am Games in 2015

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

416 225 2777

Women in Politics

Ontario Education Minister Kathleen Wynn and Thornhill Liberal Candidate Karen Mock in a recent Women in Politics event (Thanks to DM for the photo!).

Malicious prosecution decision in Supreme Court of Canada

The Supreme Court of Canada decision in Miazga v. Kvello Estate 2009 SCC 51 has just been released. The case is a useful decision dealing with malicious prosecution. A summary follows:

Three children made allegations of sexual assault against their biological parents, their mother's boyfriend and the respondents, who were the children's foster parents and members of the foster parents' extended family.  Charges were subsequently laid and M, a provincial Crown attorney, prosecuted the case against the parents and the mother's boyfriend.  All three were convicted, and the convictions were upheld by the Court of Appeal.  The Supreme Court of Canada overturned the convictions, but concluded that the evidence of the children was sufficient to order new trials against the parents.  Meanwhile, taking under advisement the trial judge's comments urging that the children not be made to endure another criminal proceeding, M negotiated a plea bargain with one of the accused (who is not a respondent in this case).  The charges against the respondents were stayed.  Some years later, all three children recanted their allegations against the respondents.  The respondents commenced a civil suit for malicious prosecution against a number of individuals involved in the proceedings against them, including M.

M was found liable.  The trial judge held that there were no objectively reasonable grounds upon which M could have believed that the respondents were probably guilty of the offences alleged.  He held that M could not have had a subjective belief in the existence of reasonable and probable cause because of the unbelievable nature of the children's allegations against the respondents.  He concluded that the absence of reasonable and probable cause raised a presumption of malice which, in the circumstances of this case, was itself sufficient to ground a finding of malice.  In the event he was wrong on this conclusion, the trial judge held that there were other "indications of malice" to support the conclusion that M's prosecution of the respondents was animated by an improper purpose.  While the Court of Appeal was unanimous in rejecting virtually all of the trial judge's "indicators of malice", the majority nevertheless concluded that the trial judge's finding that M did not have a subjective belief in the probable guilt of the respondents was sufficient to support the conclusion that he was actuated by malice and dismissed the appeal.

Held:  The appeal should be allowed and the action dismissed.

To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was:  (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect.  Only the last two elements are at issue in this appeal. 

The third element of the tort requires a plaintiff to prove an absence of reasonable and probable cause for initiating the prosecution.  It is well established that the reasonable and probable cause inquiry comprises both a subjective and an objective component, such that for grounds to exist, there must be actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances.  However, principles established in suits between private parties cannot simply be transposed to cases involving Crown defendants without necessary modification.  While the accuser's personal belief in the probable guilt of the accused may be an appropriate standard in a private suit, it is not a suitable definition of the subjective element of reasonable and probable cause in an action for malicious prosecution against Crown counsel.  The reasonable and probable cause inquiry is not concerned with a prosecutor's personal views as to the accused's guilt, but with his or her professional assessment of the legal strength of the case.  Given the burden of proof in a criminal trial, belief in "probable" guilt means that the prosecutor believes, based on the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law.  The public interest is engaged in a public prosecution and the Crown attorney is duty‑bound to act solely in the public interest in making the decision whether to initiate or continue a prosecution.  This decision may not entirely accord with the individual prosecutor's personal views about a case, but Crown counsel must take care not to substitute his or her own views for that of the judge or the jury.  Furthermore, where the action is taken against a Crown attorney, the inquiry into the prosecutor's subjective state of belief does not properly belong at the third stage of the test.  In the context of a public prosecution, the third element necessarily turns on an objective assessment of the existence of sufficient cause.  If the court concludes, on the basis of the circumstances known to the prosecutor at the relevant time, that reasonable and probable cause existed to commence or continue a criminal prosecution from an objective standpoint, the criminal process was properly employed, and the inquiry need go no further.  If a judge determines that no objective grounds for the prosecution existed at the relevant time, the court must next inquire into the fourth element of the test for malicious prosecution. 

Malice is a question of fact, requiring evidence that the prosecutor was impelled by an "improper purpose".  The malice element of the test will be made out when a court is satisfied on a balance of probabilities, that the defendant Crown prosecutor commenced or continued the impugned prosecution with a purpose inconsistent with his or her role as a "minister of justice".  The plaintiff must demonstrate on the totality of the evidence that the prosecutor deliberately intended to subvert or abuse the office of the Attorney General or the process of criminal justice such that he or she exceeded the boundaries of the office of the Attorney General.  The need to consider the "totality of all the circumstances" does not mean that the court is to embark on a second‑guessing of every decision made by the prosecutor during the course of the criminal proceedings.  It simply means that a court shall review all evidence related to the prosecutor's state of mind, including any evidence of lack of belief in the existence of reasonable and probable cause, in deciding whether the prosecution was in fact fuelled by an improper purpose.  While the absence of a subjective belief in reasonable and probable cause is relevant to the malice inquiry, it does not equate with malice and does not dispense with the requirement of proof of an improper purpose.  By requiring proof of an improper purpose, the malice element ensures that liability will not be imposed in cases where a prosecutor proceeds absent reasonable and probable grounds by reason of incompetence, inexperience, honest mistake, negligence or even gross negligence. 

In this case, there is no evidence to support a finding of malice.  The trial judge's "indicators of malice" find no support in law or on the record.  Moreover, the approach adopted at trial in the review of M's conduct of the prosecution exemplifies the very kind of second‑guessing of prosecutorial discretion that should be avoided.  The trial judge's basis for concluding that M did not have the requisite subjective belief amounts to a palpable and overriding error and, as such, is not entitled to deference.  M testified that while he did not believe some aspects of the allegations, he believed the children.  The trial judge did not reject this testimony but faulted M for failing to state that he believed in the respondents' "probable guilt".  However, even if he had so testified, his testimony would have been rejected because, in the trial judge's view, the children's allegations could not possibly give rise to a reasonable belief in probable guilt.  That conclusion is not supported by the evidence.  Several judges at both the trial and appellate levels in the criminal proceedings accepted and relied upon the same allegations by the children in convicting their biological parents.  In the circumstances of this case, reliance on the findings of courts in antecedent proceedings does not amount to improper "bootstrapping", but simply belies the trial judge's assertion that no one could possibly have believed the children.  

The Court of Appeal erred in upholding the trial judge's finding that M was liable for malicious prosecution.  The court was unanimous in overturning virtually all of the facts relied upon by the trial judge as indicative of malice on the part of M.  Nevertheless, the majority relied on the "totality of all the circumstances" requirement to forego the need for evidence beyond absence of reasonable and probable cause to prove that M was in fact actuated by an improper purpose.  The majority erred by concluding that M's lack of subjective belief in the existence of grounds was sufficient to ground a finding of malice without identifying any improper purpose.  Neither the plaintiffs nor the courts below have pointed to any improper purpose that impelled M to prosecute the respondents. 
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

‘Allahu Akbar'

A repeated question of reporters through the evening was "did the shooter say anything before he started shooting"?

It was pretty clear what they were looking for.

Does saying 'Allahu Akbar' reflect more than just a troubled man (yes, a murderer and wicked -- but also mentally unstable) using the language of the day? Hard to say -- did the Montreal Massacre mean anything broader about gender or was it just a deranged killer with a gun? There is a culture of violence (violence against women, Western values, gays and, yes, Jews) that has adopted 'Allahu Akbar' as a slogan.

One blogger said "no one ever cries 'Christ is King' and starts shooting". I was struck by that because it's so clearly wrong -- as recently as the 90's such language, albeit not in English, was used just before murder. (And that use brought shame to Christians everywhere). That said, I had hoped the shooter here was silent; but he was not. What that means, or doesn't mean, will be important in the days to come.

Gunman shouted 'Allahu Akbar:' witnesses

Base commander at U.S. army base Fort Hood says psychiatrist suspected in rampage that killed 13 made comment before shooting

April Castro and Devlin Barrett

Fort Hood, Texas— Associated Press



The base commander at Fort Hood says soldiers who witnessed a shooting rampage that left 13 people dead reported that the gunman shouted "Allahu Akbar!" before opening fire at the Texas post.

Lt. Gen. Robert Cone told NBC's Today show that suspected shooter Maj. Nidal Malik Hasan made the comment, which is Arabic for "God is great!" before the rampage Thursday that also left 30 people wounded. Military officials say they are still piecing together what may have pushed Mr. Hasan, an Army psychiatrist trained to help soldiers in distress, to turn on his comrades.



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

416 225 2777

Malicious prosecution decision to be released today

At 11:00 a.m. (Ottawa time) today the Supreme Court will release a decision on malicious prosecution -- it may clarify a difficult area of law -- I hope so!!!

Matthew Miazga v. Estate of Dennis Kvello (by his personal representative, Diane Kvello), et al.

Torts ‑ Malicious prosecution ‑ Negligence ‑ Charges of sexual abuse of minor wards brought against persons running foster homes ‑ Child therapist key in having charges laid ‑ Supreme Court either setting aside convictions or ordering new trial with which Crown did not proceed ‑ Action for malicious prosecution against child therapist and Crown prosecutor ‑ Both found liable ‑ Appeal of child therapist allowed and that of Crown prosecutor dismissed ‑ Was there a lack of reasonable and probable grounds to prosecute? ‑ Was evidence of malice present?
This case deals with liability for malicious prosecution. It arises from the prosecution of several foster parents (the Kvello‑Klassens), who were related, on charges of sexual abuse of their foster children. The children’s allegations were not only with respect to the Kvello‑Klassens but also made with respect to the involvement of other children and satanic rituals. The alleged sexual abuse took place in the late 1980s and early 1990s and the criminal proceedings took place from 1991 to 1993. The prohibitions in the Criminal Code, R.S.C. 1985, c. C‑46, and the Canada Evidence Act, R.S.C. 1985, c. C‑5, against convictions upon the unsworn evidence of children, unless their evidence was corroborated in a material particular, had just been repealed, effective January 1, 1988.

Ms. Bunko‑Ruys, a child therapist, was very involved in the investigations, in the role as the children’s supporter. This role continued after the charges were laid. Mr. Miazga was the Crown attorney who prosecuted the Kvello‑Klassens. He did not know another Crown attorney had advised the police that a conviction would be unlikely given the nature of the children’s evidence and he advised the police to lay charges if the police thought the Kvello‑Klassens were guilty. Mr. Miazga was accused of adopting a very aggressive style during the hearing.

The Kvello‑Klassens began their action for malicious prosecution some years after their criminal prosecution. Bunko‑Ruys and Miazga were found to have maliciously prosecuted the plaintiffs and judgment for the plaintiffs ordered and to be subsequently determined. On appeal, the appeal of Bunko‑Ruys was unanimously allowed and judgment against her set aside; the appeal of Miazga was dismissed with costs, Vancise J.A. dissenting. Leave to appeal was granted to Miazga.

Employment stats

The economy is improving but employment lags -- indeed, it may get a bit worse before an employment turnaround.

Following two months of moderate growth, employment decreased by 43,000 in October, all in part time. This drop pushed the unemployment rate up 0.2 percentage points to 8.6%.

Compared with the peak of October 2008, employment is down 400,000 (-2.3%), with the bulk of the decline (-357,000) occurring during the first five months of the labour market downturn.

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

416 225 2777

Prince and Princess of Wales in Canada

Sleep

Students rally to save job of blind professor

Louise Brown   
The Toronto Star , Nov. 5, 2009

Rod Michalko orders his students to sit in the same seats all year. For the blind professor at the University of Toronto, getting to know their names hangs on hearing their voice from the same spot in the room.He holds his talking wristwatch to his ear from time to time to make sure his lecture isn't running long.When it is time to mark papers, his teaching assistants read them to him and he dictates comments to be written in the margins. And after each class, he asks his assistants whether the students ever seemed bored, "because that's something I can't always tell without seeing them."It's rare to have a blind professor, and I do some things in a different way than most, but that's cool - and together with my students we get the job done."The shaggy-haired sociologist with dark glasses and white cane is at the eye of a storm of protest at the University of Toronto - but should you even use that phrase? As a specialist in disability issues, Michalko wants people to think twice about words they use that can seem insensitive to those of differing abilities.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

You shouldn't take a fence down until you know the reason it was put up

G. K. Chesterton

The Conservatives and the Liberals are back where they were after last year's election in terms of support, according to the latest poll from EKOS.

Bao bao

Examining witnesses in the Court of Appeal

Today's decision in R. v. Sihota, 2009 ONCA 770 deals with the highly unusual circumstance of a witness being examined on a pending appeal.  The specific issue dealt with fresh evidence.

 

[12]         The power to order the attendance of a witness to be examined on a pending appeal is conferred by s. 683(1)(b) of the Criminal Code:

Powers of court of appeal

683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

...

(b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial,

(i) to attend and be examined before the court of appeal, or

(ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose.

[13]         The powers conferred by s. 683 are "designed to maximize protection against wrongful convictions": R. v. Trotta (2004), 23 C.R. (6^th) 261 at para. 24. These powers were discussed by Gonthier J. in R. v. Levesque, [2000] 2 S.C.R. 487, at para. 25:

Determining the probative value of fresh evidence on appeal may be a difficult task, since the evidence has not been put to the test of cross-examination or rebuttal at trial.  Some courts of appeal express reluctance when they are asked to admit fresh evidence containing information which the adverse party has not been able to verify.

…

In my view, where fresh evidence is challenged, or where its probative value is in dispute, it is desirable that it be tested before being admitted, primarily for two reasons:  (1) this facilitates the determination of the probative value of the fresh evidence, and (2) this is fairer to the party objecting to the admissions of the fresh evidence.  This "testing" can be done in a number of ways…Courts of appeal may also…allow cross-examination of a witness or submission of expert evidence in response to fresh expert evidence.  In other words, they can do everything that the powers conferred on them by s. 683 of the Criminal Code permit them to do.

[14]         It will only be in exceptional cases that an appellant who has been convicted of sexual assault should be afforded the opportunity to cross-examine the complainant in aid of a fresh evidence application on appeal.  The interests of complainants who have already testified and been cross-examined at trial must be carefully considered and respected.  They should not be forced to repeat the stress and trauma of the legal process unless clearly required by the interests of justice.  The scope of any examination should be carefully circumscribed and confined to what is fresh evidence.  The appellant should not be allowed to rehash ground covered at trial or to proceed on a speculative basis or "fishing expedition" to uncover fresh evidence not yet identified, but must show - to paraphrase the test for ordering Crown disclosure set out in Trotta  at para. 25 - that there is some reasonable possibility that the cross-examination could assist on the motion to adduce fresh evidence by yielding material that will be admissible as fresh evidence, or assist the applicant in developing or obtaining material that will be admissible as fresh evidence.

 

Ex-boyfriend confesses to child's murder

This is a dramatic story from the TorStar. A confession in a witness stand, wow.

The trouble is the confession can't be used against the man in a charge for murder. And absent the statement there isn't enough evidence to charge him let alone convict him. So apart from perjury he runs no risk if he lies. And in so lying he may save his ex-girl friend.

But how can you find someone guilty beyond reasonable doubt if someone else confesses in front of you? Difficult case:

 Ex-boyfriend confesses to child's murder

 

November 5, 2009

Peter Small      

Courts Bureau     

 

In a scene worthy of movie-of-the-week witness box confessions, the former boyfriend of a woman charged with fatally beating her 2-year-old daughter testified Wednesday he was the killer.

"Who is responsible for the death of Emmily?" Bob Richardson, lawyer for Erika Mendieta, asked her former live-in partner, Johnny Bermudez.

"I am," Bermudez told a packed University Ave. courtroom.
...

Emmily died on Nov. 23, 2003, 10 days after her mother called 911 from her home on Flax Gardenway, near Steeles Ave. W. and Jane St.

The cause of death was blunt force trauma to the head. Emmily had bruises and marks all over her body.
...
Police did not arrest her immediately, but tapped her phone and bugged her home, eventually recording her saying to Bermudez: "I killed her myself."

They charged her with second-degree murder on March 5, 2005.

Bermudez testified that about 3:25 p.m. Nov. 13, Mendieta left him with their baby, Maximuz, 20 months, and Emmily – fathered by another man – while she went to pick up her four other children from school.

The two toddlers wouldn't stop crying, Bermudez said. "I couldn't take them crying any more."

He slapped his son twice in the face and threw him on the couch. The boy fell to the floor, he said.

Still crying, Emmily approached him, and he slapped her face several times and pushed her, he said. She approached him a second time and he pushed her again, he said.

"You lost it," Richardson said.

"Yes," Bermudez agreed.

Suddenly the little girl stopped crying. "She was lying down on the carpet," Bermudez testified. "I went toward Emmily and I realized she wasn't moving at all. She was breathing and she had a pulse but it was very, very faint."

But, in a voice choked with emotion, Bermudez denied being responsible for Emmily's severe, head-to-toe injuries. "I'm not the type of guy that would beat up a baby, man," he said, claiming that was the only time he has hit a child.

"Why didn't you call 911?" Richardson asked.

"I was scared," he said.

"Did you think she was going to die?" Richardson asked.

"I didn't think that she would come back," Bermudez admitted.

But prosecutor Allison MacPherson suggested Bermudez was lying about being the killer, and that his previous evidence, in which he disavowed any role in Emmily's death, was more accurate. "Each time you testify you give a slightly different version of events," she said.

"Everything I said prior to today is a lie," he said.

But MacPherson suggested that "big chunks" of his previous evidence were true.

He agreed.

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

416 225 2777

Taking crime seriously

Today's Post has a piece on the Conservatives' justice system legislative approach. In fairness, criminal justice is not a wedge issue between the Liberals and the Conservatives.

Both Parties have supported the criminal justice reforms proposed over the last year. There is a difference in emphasis -- Liberals focus more on rehabilitation Conservatives more on deterrence -- but both Parties have the same goal of a safer Canada.

The specific reforms are welcome but a broader problem remains.

The criminal justice system is outdated, inefficient and relies on untested (and questionable) assumptions. Canada is better served by a global review of criminal law and punishment with an evidence based approach to limiting crime rather than dealing piecemeal with, say, fraud. Such a review can only succeed when, as now, there is a broad consensus on goals and objectives.

The political will exists; it's time to take crime seriously and make real change.

Toronto to add a general sales tax?

Well, I assume it would help stores just outside Toronto. Still, the City is broke ... .

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

416 225 2777

Newest species

Polar bears evolved from Alaskan brown bears about 100,000 years ago, making them the world's most recently evolved large mammal species.

Guns registry shot down

I suppose the legislature's intention is clear. And with that guns become anonymous in Canada -- well, fair is fair, gun advocates organised, got the votes and won. That's the way it's supposed to work so good for them. I disagree but recognise and respect the decision. I do hope this doesn't presage removing the limits on handguns in Canada.

Vote to kill gun registry passes

Private member's bill now goes to a Commons committee for review and possible amendment

Bill Curry
Ottawa— Globe and Mail


The House of Commons dealt a major blow to the federal long-gun registry Wednesday night as 20 Liberal and NDP MPs broke ranks with their leaders to endorse a Conservative bill that would bring the program to an end.

The vote exposed clear splits among Liberals and New Democrats along rural and urban lines, as the 12 NDP MPs and eight Liberals who voted with the Conservatives were primarily from rural ridings.
...
Both Liberal Leader Michael Ignatieff and NDP Leader Jack Layton allowed their MPs a free vote, even though both leaders officially support the registry.

Following the vote, the two parties were sharply criticized by Wendy Cukier, the President of the Coalition for Gun Control, who was in the House of Commons for the vote.

"It's appalling," she told reporters Wednesday evening. "It wasn't even close. You had urban MPs not stand up for gun control. … Many Canadians are going to wake up [Thursday], I predict, and will be absolutely horrified."

...

Earlier in the day, Mr. Ignatieff said he supported decriminalizing the federal long gun registry.

In the highly polarized debate that has raged in Ottawa for years, Mr. Ignatieff said his party is working on a proposal that aims to find a middle ground.
...

"Peace is more than just ceasing to fire." -- Lester B. Pearson (1897-1972)

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

416 225 2777

Resting after a good meal?

Bear kills militants in Kashmir

A bear killed two militants after discovering them in its den in Indian-administered Kashmir, police say.

Two other militants escaped, one of them badly wounded, after the attack in Kulgam district, south of Srinagar.

The militants had assault rifles but were taken by surprise - police found the remains of pudding they had made to eat when the bear attacked.

It is thought to be the first such incident since Muslim separatists took up arms against Indian rule in 1989.

Bodies found

The militants had made their hideout in a cave which was actually the bear's den, said police officer Farooq Ahmed.

The dead have been identified as Mohammad Amin alias Qaiser, and Bashir Ahmed alias Saifullah.

News of the attack emerged when their injured comrade went to a nearby village for treatment.

"Word spread in the village that Qaiser had been killed by the bear," another police officer said.

A joint party of the police and army personnel went into the forest and collected the bodies of the two militants.

Police say they also recovered two Kalashnikov assault rifles and some ammunition from the hideout.

Animal attacks

Wildlife experts say the conflict in Kashmir has actually resulted in an increase in the population of bears and leopards.

Following the outbreak of the insurgency people had to hand in their weapons to police - which put a halt to poaching.

As a result, there has been a greater incidence of man-animal conflict, say experts.
There have been many reports of bears and leopards killing or mauling humans in different parts of the Kashmir valley in recent years.

Three years ago, residents of Mandora village near the southern town of Tral, beat a black bear to death which had strayed into the village.

Privacy Slipping Away?

It always happens; you are in a rush and person ahead of you is buying a chocolate bar with a debit card. They scan their debit card, the paper prints and after the signing and the transaction is complete you are tempted to scream!

This problem seems trivial but there is a more significant issue at stake.

Every time you use the 407 or a loyalty points card you are letting someone know where you are and where you have been. Now perhaps that's not an issue for the specific transaction (who cares if you bought a chocolate bar last Wednesday?) but over time a significant portfolio of who you are and what you do is created. The specter of Big Brother is among us.

That said, there are protections in law for your privacy.

In Canada, federal legislation governs the use of personal information by businesses.

You have right to see and correct any personal information about you collected by companies. Specifically, businesses must tell you in advance if they are collecting information, why the information is being gathered, and for what purposes it will be used. That means you should read the fine print when you sign onto a mailing list to make sure you are comfortable with what will be done with your personal information.

Personal information can be kept only if it is used for the reason it was gathered. So, if you are told information is gathered to, say, run a customer loyalty program that information cannot be used for something else without your permission. You have a right to review and correct any information gathered and the information must be kept up to date.

If your privacy rights are breached and information misused the Privacy Commissioner of Canada is entitled to investigate and to publish the results of the investigation. This power generally has the effect of leading to resolutions of complaints. However, if a problem cannot be resolved by the Privacy Commission the Federal Court can intervene. If the Court rules that a business has contravened the law, the Court can order the business to change its behavior and can also award damages if warranted.

While we have to be cautious about revealing personal information too widely, there are protections in law for our privacy.

Letters of credit

Today's decision in Nareerux Import Co. Ltd. v. Canadian Imperial Bank of Commerce, 2009 ONCA 764 provides a useful review of the law of letters of credit:

[48]         Letters of credit are an important and unique type of financial instrument designed to facilitate the flow of goods and trade.  They are frequently resorted to in transactions with international dimensions, where buyer and seller are strangers to, and distanced from, each other and are looking for some assurances to reduce the risks of dealing with each other.  In his text, Letters of Credit: The Law and Current Practice, 3d ed., looseleaf (Toronto: Thomson Canada Limited, 2009), at pp. 1-2.1 to 1-3 and 1-5, Lazar Sarna describes the need for letters of credit to reduce the uncertainty in international transactions, and the benefits to those involved:

An importer places an order for the purchase and shipment of goods with a foreign seller.  The importer has no reason either to trust or mistrust the solvency, reliability or efficiency of the foreign seller; he has no means of ascertaining whether in this specific transaction the foreign seller will ship the number and quality of goods ordered at the place and on the dates set out in the purchase order.  Similarly, the foreign seller has little assurance upon receipt of the purchase order that the importer is solvent or will pay the full amount of the purchase order without deductions, set-offs or counter-claims once the goods are delivered.  … In order to accommodate the expectations of both parties, it is often agreed that the importer will supply the foreign seller with a letter of credit which the former obtains upon application to his bank in his own jurisdiction.

…

The practical effect of financing the underlying contract by way of letter of credit is beneficial for all parties concerned.  The importer dispenses with the problem of advance payment, loss of interest while awaiting shipment, and fear of loss resulting from inadequate or late shipment.  Subject to the problem of fraud and subterfuge, the importer is assured that payment will only be made if the foreign seller strictly complies with the terms of the credit.  On the other side, the foreign seller, prior to shipment, has in hand a promise to pay for the shipment from a reputable foreign financial institution, or in the event of the intervention of a confirming bank, from a native bank.  From the point of view of the issuer, it is paid a remuneration for the opening of the credit and retains the bills of lading and other shipping documents presented with demand of payment as security for reimbursement by the customer of the amount of credit extended and paid.

[49]         Thus, letters of credit are an important mechanism for ensuring that international commerce flows smoothly, effectively, and with some degree of assurance.   As one American authority has put it, albeit colourfully, letters of credit are intended "to grease the wheels of trade and commerce": Alaska Textile Co., Inc. v. Chase Manhattan Bank, N.A., 982 F.2d 813 (2d Cir. 1992), at p. 824.  Care is required, therefore, to ensure that they are not interpreted and enforced in a way that might jeopardize their uniqueness and commercial efficacy or the relative certainty that must surround their use.  Hence the doctrines of autonomy, strict compliance and strict construction that will be discussed below.

[50]         At the same time, however, letters of credit are not completely divorced from the general rules and principles of contract law, including those invoking notions of fairness and equity: see Mutual Export Corporation v. Westpac Banking Corporation, 983 F.2d 420; Exxon Co. v. Banque de Paris et des Paysbas, 889 F.2d 674 (5th Cir. 1989), at p. 678, cert. denied, 496 U.S. 943 (1990); Timber Falling Consultants, Inc. v. General Bank, 751 F. Supp. 179 (D. Or. 1990), at p. 181; Karpassia Shipping Co., S.A. v. Chase Manhattan Bank, World Trade Center Branch No. 232, 1980 U.S. Dist. LEXIS 17285 (S.D.N.Y. 1980), at *18. (2d Cir. 1993), at p. 423.

[51]         For example, in Karpassia Shipping, at *18-19, the U.S. District Court for the Southern District of New York acknowledged the following notions of contractual interpretation in the context of a letter of credit:

A construction that will sustain an instrument will be preferred to one that will defeat it; if an agreement is fairly capable of a construction that will make it valid and enforceable, that construction will be given it.  The same general principles which apply to other contracts in writing govern letters of credit.  Where a letter of credit is fairly susceptible of two constructions, one of which makes it fair, customary and one which prudent men would naturally enter into, while the other makes it inequitable, the former interpretation must be preferred to the latter, and a construction rendering the contract possible of performance will be preferred to one which renders its performance impossible or meaningless.  Moreover, as between the beneficiary of a letter of credit and the issuer … if ambiguity exists, the words are taken as strongly against the issuer as a reasonable reading will justify.  [Citations omitted; emphasis added.]

 

Gun registry appears doomed

Well, this seems to be it. A peculiar "law and order" agenda.

Tonda MacCharles      

Ottawa Bureau      

OTTAWA – Opponents of a long-gun registry in Canada are about to put a bullet in it.

Both sides of the gun-control debate believe the Conservatives now have enough Commons votes to give parliamentary approval in principle to a private member's bill to kill the registry for rifles and shotguns.
...

However, the registry's supporters and its critics see it as a major step toward the registry's demise."I'm concerned about the vote," Ontario Attorney General Chris Bentley said in an interview."People shouldn't play politics with public safety. The gun registry saves lives; it protects police officers," Bentley said.

After a heavy lobbying effort, including a Tory-backed radio ad campaign targeting vulnerable opposition ridings, the bill's sponsor, MP Candice Hoeppner (Portage-Lisgar), says she is confident at least eight NDP and Liberal MPs will vote to get rid of the law that requires rifles and shotguns to be registered.

That's because Liberal Leader Michael Ignatieff and NDP Leader Jack Layton, who personally pledged to vote against the bill, will allow their MPs to vote freely on the issue, citing their respective parties' "tradition" of free votes on private members' business.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Republicans score pair of victories in "off-year" races

Virginia is not a surprise but New Jersey is. Voters are fickle -- a fact worth remembering here in Canada. Today you're a hero, tomorrow a bum ... .

WASHINGTON - U.S. Republicans scored a pair of morale-boosting victories Tuesday night in "off-year" elections that could signal early disenchantment with Democrats and President Barack Obama only a year after the electoral landslide of 2008.

Voters in Virginia and New Jersey - two states that Obama won handily in last year's presidential race -elected Republicans to the governor's office despite the president's last-minute campaign efforts on behalf of the Democratic candidates.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Read over your compositions, and where ever you meet with a passage which you think is particularly fine, strike it out.

Samuel Johnson, quoting an old college tutor. Collected in James Boswell The Life of Samuel Johnson (1791), vol.2.

100 jobs may go at Toronto Star

This is a sign of the times. The Star has a long and proud tradition of investigatory journalism. That's not something bloggers can replicate (I wish we could but).


Kenyon Wallace, National Post 

The Toronto Star has asked all unionized and non-unionized staff to consider voluntary severance packages as the newspaper explores contracting out what could amount to more than 100 jobs in its editorial and production divisions.

In a memo to employees Tuesday, Star publisher John Cruickshank said the newspaper's goal of transforming itself into a "multi-platform news and content organization" would involve "what is likely to be the biggest restructuring of the Star's workforce in its history."

He said the newspaper is launching a "voluntary separation program" for all employees in which three weeks of severance for each year of service would be offered, up to a maximum of 85 weeks.

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

416 225 2777

Animals at play

Stuart Brown describes Norbert Rosing's striking images of a wild polar bear playing with sled dogs in the wilds of Canada's Hudson Bay.


http://speakingoffaith.publicradio.org/programs/play/audiogallery/soundseen.shtml

Under the sea

Note the tire ...

Re-examination limited to matters arising from cross-examination

R v Burk (1999), 139 C.C.C. (3d) 266 (Ont. C.A.) is a useful source for the principle that, since counsel should elicit anything of relevance that a witness has to say on examination-in-chief, re-examination should be confined to matters arising from cross-examination.

 

Stephen Harper uses Prince Charles's line

In fairness, I very much doubt that Harper intended to steal the Prince's thunder -- my guess is a speech writer took the Prince's (great) quote and didn't realize the Prince was going to use it himself. And nobody did a joint review of both speeches (that's sloppy). So the "boner" is accidental...

DiManno: As royals arrive, PM lacks tact, Jean is too tactile
Stephen Harper uses Prince Charles's line while Governor General gets a little familiar

http://www.thestar.com/news/canada/article/720167

By Rosie DiManno Columnist
Published On Tue Nov 3 2009

ST. JOHN'S, NFLD. — The Royal We were not amused. That would be the Prince of Wales, in particular, scooped on his own best line by the Prime Minister of Canada.

Yes, Stephen Harper committed a boner on Monday night by, well, plagiarizing a part of the speech that Prince Charles had prepared for delivery at Mile One Stadium. Either that or it was one helluva coincidence.

See, this isn't rocket science. When touring royals deliver prepared comments on these gigs, they routinely submit the speeches in advance for vetting, lest they put their foot in it and say something controversial or actually worth quoting.

For Charles, this time around, there was a quoting-of-self reference to remarks he'd made on an earlier trip to Canada. As written in the speech distributed to reporters: "When I was here many, many years ago, I remember saying, `Every time I come to Canada ... a little more of Canada seeps into my bloodstream – and from there straight to my heart."

Except Harper, first at the microphone, had just resurrected that exact sentence, leaving Charles, a few minutes later, to ad lib scramble: "I was going to say," blah-blah-blah, "but he got there before I did." Then he turned and stared pointedly at Harper.

Once we did what we dared, now we do what we must

Urgency from feds still lacking

http://www.theglobeandmail.com/news/opinions/editorials/urgency-from-feds-still-lacking/article1349010/

The bumps in Canada's biggest-ever vaccination campaign that sparked an emergency debate in the House of Commons last night seemed inevitable. From the beginning of the H1N1 pandemic there has been a calm, verging at times on complacency, from federal officials. On top of that, jurisdictions overlap, making for a cacophony of voices. As a test of Canada's ability to handle a truly severe pandemic (which this one may yet become), it has raised serious questions.

The debate gives the opposition parties, and Parliament as a whole, a chance to express a sense of urgency about the outbreak. Too often the process of the past several months seemed mere spoon-feeding of the public at news conferences. The United States, by contrast, held a televised town hall session featuring governors, health officials, school leaders and President Barack Obama, at which anxious questions were raised in the open. Perhaps because the public was left out, public health officials were surprised by the demand for the vaccine – Toronto, the biggest city in the country, initially opened just two clinics for all the people most at risk from the disease.

UPDATE: Conservatives move closer to killing gun registry

It seems the issue raises emotion -- my sense is that registering guns is a good idea, especially as it allows for some (limited) benefit to police in trying to resolve (or prevent) gun crimes. That said, there is a cost benefit analysis that needs to be considered and if the registration is too unpopular that is an important consideration -- a sensible, but unpopular, law ought not to be the law in a democracy.

Update:

Some political gifts just keep on giving. Among the most generous is the long-gun registry.
Parliament is to vote Wednesday on the future of a sound idea gone horribly wrong. Whatever the result, it will be win-win for Conservatives and lose-lose for public policy.

http://www.thestar.com/news/canada/article/720144--gun-registry-a-gift-that-keeps-on-giving-to-tories


I can appreciate that the mechanics of gun registration are a problem; guns are proper and legal and owners use them for many legitimate purposes so any registration should be transparent, respect privacy and not be onerous. But I cannot see why the registration of guns should raise such emotions. Guns are dangerous -- many dangerous items are registered so first responders know what they may face -- guns are no different.

Susan Delacourt Ottawa Bureau

OTTAWA–Gun-control advocates say they are horrified and fearful that Canada's long-gun firearms registry is on the verge this week of being scrapped because the Conservatives may have enough support from the opposition to kill it.

Wendy Cukier, president of the Coalition for Gun Control, says her organization has been monitoring the progress of a Conservative private member's bill to abolish the registry and is now bracing for it to clear an important vote in the Commons on Wednesday.

"It is astonishing, just a few months after the opposition parties voted for a Bloc Québécois motion that reiterated support for the firearms registry and against efforts to repeal it, that many of the same MPs will support this Conservative bill," Cukier said Sunday.

"It not only eliminates the need to register rifles and shotguns but requires that the information contained on seven million registered guns be destroyed."

...
Liberal MP Mark Holland (Ajax-Pickering) said he's not ready to concede defeat yet on killing the bill, but he acknowledged it's going to be tight and it means that a lot of pressure is going to be placed on individual Liberal MPs over the next few days to block the legislation.

"This is deeply concerning. The implications of dismantling the long-gun registry are very serious," Holland said, noting Toronto Police Chief Bill Blair was only last week hailing the registry as instrumental in the seizure of a 58 —guns. All the Conservatives need are between seven to 10 MPs from the opposition benches to support the legislation, and Comartin says he's reasonably certain Conservatives have secured that number from his own caucus and from Liberal ranks.

Wednesday's vote isn't a death warrant for the registry – it still has to be examined by a Commons committee, pass again in the Commons and then in the Senate.
...

Planning the day

Link to ANNUAL REPORT OF THE OFFICE OF THE CORRECTIONAL INVESTIGATOR 2008-2009

http://www.oci-bec.gc.ca/rpt/annrpt/annrpt20082009-eng.aspx

Prison Ombudsman's report

There are three reasons to put people in prison.

- separate dangerous people from society

- rehabilitate criminals

- punish and thereby deter crime.

As a factual matter, as they exist today, prisons only succeed on reason one. Someone in prison is (generally) not committing crimes outside of jail (they may well be committing crimes inside jail but that's another story). Deterrence and rehabilitation seem to be absolute failures -- in fact, increasing the use of jail seems to increase crime and make re offending more common.

Indeed since "the federal government spends only 2% of its $2.2-billion prison budget on offender treatment programs" how can we expect rehabilitation to work.

Note also that the rate for aboriginal incarceration last year was nine times the national average.

In any event, today's report is illustrative.

http://www.nationalpost.com/m/story.html?id=2173837&s=Home

'Hardened' restrictive prisons aren't helping with rehabilitation: watchdog

Janice Tibbetts, Canwest News Service
Monday, Nov. 2, 2009



OTTAWA -- Canadian prisons are becoming "hardened" places where inmates are increasingly confined to their cells, prohibited from having visitors, restricted in their exercise, subjected to lockdowns, and less likely to secure temporary absences, says a report from Canada's prison watchdog.

"Many on-site visits this year confirmed that the physical conditions of confinement have been significantly hardened, especially at the high-security levels" wrote correctional investigator Howard Sapers in his annual report, released Monday.

"The problem, of course, is that a more punitive and restrictive environment is not one that is likely to promote rehabilitation of inmates."

The prison ombudsman's report also confirms that temporary absences, work releases and day parole grant rates are now at their lowest level this decade, and consequently, offenders are often freed at the end of the their term without the benefit of discretionary releases behind them.

...
Mr. Sapers, however, told Canwest News Service that he believes the prison system is becoming meaner to "brace itself for the storm" of an anticipated influx of inmates who will be captured by the Harper government's get-tough-on-crime laws that will put more people in prison for longer.

"The system seems to be preparing itself for more people," said Mr. Sapers, who predicted prison over-crowding and a proliferation of "double bunking."

...
The report also noted that there is a severe shortage of treatment programs for offenders, even though enrolment is often a condition of release and successful reintegration into society.

Some institutions have hundreds of names on their waiting lists and "there are even waiting lists for the waiting lists," Mr. Sapers said.

...
Mr. Sapers said that the federal government spends only 2% of its $2.2-billion prison budget on offender treatment programs -- which is half the amount that it spends on staff overtime.

At the same time, the Conservative government introduced a bill last spring that will tie parole to prisoner participation in programs.

For the last several years, Mr. Sapers has highlighted the problem of the prison system warehousing mentally ill offenders and this year's report said that it is getting worse without adequate treatment or workers to cope with people who often should be cared for by the health system rather than in penitentiaries.

"Mental health-care delivery and related services and supports in federal corrections are perhaps the most serious and pressing issues facing the service today," he wrote.
...
Mr. Sapers reported that the gap between aboriginal and non-aboriginal offenders continues to grow and that the rate for aboriginal incarceration last year was nine times the national average.
...
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

No trusteeship for Montreal

Municipal corruption is hardly limited to Montreal. I am surprised at how common it is -- perhaps it's because the cities now control budgets that are way beyond what they used to? On the other hand, Montreal has not been a village for a very long time...


No trusteeship for Montreal: Charest

Canada's second-biggest city will not be placed under trusteeship despite a mayor corruption scandal, said Quebec Premier Jean Charest.

The premier made the comments a day after Montreal Mayor Gérald Tremblay was re-elected despite allegations of corruption at city hall.

'Rest assured that I have heard [voters] concerns and expectations.'—Montreal Mayor Gérald Tremblay

A newspaper report on Monday suggested the Quebec Liberal government was ready to place Montreal under trusteeship to limit its control in awarding contracts.

But Charest says the province is not about to go that far. The government will, however, clean up the process used to award public contracts across the province, he said.

How not to use Facebook

Story here: http://www.lawtimesnews.com/200911025723/Headline-News/Social-media-tripping-up-litigants

By Robert Todd | Publication Date: Monday, 02 November 2009


A recent criminal case in Ontario has called attention to the role social media is playing in landing people in legal hot water.

The case involved a pair of women charged with robbing a home last year in Kitchener, Ont. The two women, both in their early 20s, might have gotten away with it if not for a questionable decision to post a photo of themselves with their loot online.

Lawyer Jon Graham, who represented Michele Nolan, tells Law Times his client posted photos of stolen jewellery on the social networking web site Facebook.

Graham says his client and a co-accused were caught after the latter sold one of three laptops. The buyer had trouble installing a program on the computer, says Graham, and managed to find the registered owner to try to fix the problem.

The owner then got the seller's name from the buyer and conducted a search for her on Facebook, Graham adds, noting the victims then found photos of the pair with what appeared to be the stolen items.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Conduct of defence not an aggravating factor for sentence

In wrongful dismissal matters, the conduct of the defence can be a basis to increase the damage award.  More broadly, in civil matters, taking unfounded positions in litigation can lead to cost or even substantive damage awards. 

 

This principle does not apply in criminal matters and the conduct of a defence is never an aggravating factor for sentencing.  Today the Court of Appeal noted this saying, in R. v. Kavanagh, 2009 ONCA 759 :

 

[6]              Regarding the sentence appeal, the Crown concedes, and we agree, that the trial judge made an error by referring to the conduct of the defence as an aggravating factor for sentence and that this court should therefore consider and decide the appropriate sentence in this case.

Flocke arising

Hard to believe she will soon be living in the south of France. An odd place for a polar bear!

Legal fees

The cost of going to Court is famously high. Lawyers have been blamed for that cost for many years – I used to have a wonderful 19th Century Cartoon where two skinny and bedraggled men pulled on either end of a cow marked “litigation” while a fat lawyer milked the cow (and presumably got the cream). Echoing that concept Bejamin Franklin is supposed to have said “A countryman between two lawyers is like a fish between two cats.” A couple of years ago, the Chief Justice of Canada said the “price of justice should not be so dear” when she was told a three day civil trial in Ontario costs about $60,000.

And it is true that legal costs are enormous. The three day civil trial is a rarity now – even fairly straightforward matters take a week and as a default it is best to assume an even moderately complex matter will take at least two weeks. If experts reports are needed the cost of taking a matter to trial can easily break into the six figure range.

But is that cost because lawyers are making too much money? The question really becomes “what is a fair income for a lawyer and how does that turn into the hourly rate that is the basis of most legal billing?” Put otherwise, what is a fair amount to pay for a lawyer’s time? A survey from 2005 said the average hourly rate for a lawyer with 10 years experience from $170 to $260, depending on the province.

Lawyers are often compared to doctors and dentists in terms of professionals. Certainly both professions require post graduate degrees and intensive practical training before qualification. Doctors in Canada, at the GP level, tend to make around $100,000 a year while specialists can make up to $250,000 yearly. Dentists seem to make a bit more than general practice doctors with annual incomes in the $125,000 range. As a control, postgraduate degree or diploma holders made $72,500 annually as an Ontario average for 2006.

Lawyers seem to make more or less the same as doctors or dentists. Although there is a range, a lawyer with 10 to 12 years experience in a midsized law firm would be expected, on average, to make $135,000 annually. More junior lawyers, say up to three years of experience, would make less, around $77,000 annually. Of course, some lawyers (particularly in large commercial law firms) make considerably more but there are many lawyers (often serving a poverty based clientele doing criminal or family work) who make considerably less.

Another point often overlooked is that law, in some ways like medicine, is a very high stress profession. People who are coming to lawyers are seldom in the best and most amiable frame of mind. Lawyers deal with upset, angry and often unreasonable people. That may explain the significant drop out rate from the profession – looking at my graduation photograph significantly more than half my graduating class stopped practicing law years ago.

All that said, from the salary numbers sought it is easy to calculate an appropriate hourly rate (I omit the calculation here but am happy enough to share it with anyone who cares for it). Assuming four weeks vacation, and the usual overhead and write offs for bad debts, for a lawyer to make $77,000 annually they need to charge at least $115/hr. To make $135,000 annually the hourly rate has to go to $200/hr. A number closer to $400/hr is required for a lawyer to get to the high end salary of a specialist doctor. This assumes the lawyer is more or less constantly busy and gives up no time to pro bono or free legal work.. Every time a lawyer does work for free (as lawyers are often urged to do by the judiciary) the paying clients have to pay more to make up the difference. Where the overhead is higher – Toronto, Vancouver, Montreal all spring to mind, the hourly rate has to be increased accordingly.

All this suggests that legal fees, on an hourly rate, are not out of proportion to the actual costs of doing business and giving a modest return to lawyers – put otherwise, lawyers hourly rates are not grossly excessive.

Commencement of limitation period for demand loan

Today's decision in Bank of Nova Scotia v. Williamson, 2009 ONCA 754 decides that the limitation period for a demand loan runs from date of demand and not from when the lender knew or ought to have known that the principal debtor was not going to pay.  The Court held:

Issue 2:  Does s. 5 of the Limitations Act, 2002 change the date for the commencement of the limitation period from the date of demand to the date when the Bank knew or ought to have known that the principal debtor was not going to pay?

 

[16]         In Hare v. Hare, this court held that the Limitations Act 2002 does not, nor was it intended to change the common law with respect to the operation of demand promissory notes. The same applies to the common law regarding demand guarantees. As discussed above, a demand is required before anything is owed by a guarantor under a third party guarantee.

[17]         The appellant submits, as he did to the motion judge, that by requiring a demand as a condition of the existence of a cause of action and therefore the commencement of the limitation period, the court is promoting indefinite liability. However, as Trotter J. observed, that had always been the accepted effect under the former Limitations Act of obligations that required a demand in order to be enforceable. Furthermore, the appellant could have bargained for a different result. Also, section 15 of the Limitations Act, 2002 imposes a 15 year ultimate limitation period so that liability will not be indefinite.

[18]         In any event, the Limitations Act, 2002 was amended on November 27, 2008 to add ss. 5(3) and (4), which deal specifically with the requirement for the commencement of the limitation period for demand obligations.  Those sections provide:

Demand Obligations

5.(3)  For the purposes of subclause (1)(a)(i), the day on which injury, loss or damage occurs in relation to a demand obligation is the first day on which there is a failure to perform the obligation, once a demand for the performance is made.

Same

(4)       Subsection (3) applies in respect of every demand obligation created on or after January 1, 2004.

[19]         This amendment demonstrates the intent of the legislature that for all demand obligations, a demand is a condition precedent for the commencement of the limitation period. The legislature may be taken to have recognized that this puts the creditor in the position to extend the limitation period by failing to make a prompt demand. However, it creates more certainty in establishing the commencement date for the limitation period. Although this new section does not affect this case, it affirms the law regarding third party demand guarantees.

 

Anton smiles

Snow predicted for tomorrow morning

National Post to continue

This is good news. The Post is a solid read -- yes, it is conservative but it's a good paper. And linking to the other cross Canada papers will not hurt.

An Ontario judge has approved a proposal by CanWest Global Communications Corp. to shift its flagship National Post newspaper to a subsidiary that contains the company's other newsprint assets, such as the Vancouver Sun and Ottawa Citizen.

In court documents filed this week, CanWest said it would have to close the newspaper if the asset shuffle weren't allowed since creditors at the parent company, which owns Global Television, didn't want to cover further financial losses at the paper. Creditors at the newspaper subsidiary agreed to move the National Post into the sub-company.

Sources close to the restructuring said there was little doubt the move would take place since all major creditors agreed in advance to the proposal and there were no legal objections. However, the shift has broader implications for the company.

Before the shuffle, the National Post was part of CanWest Media Inc., which filed for court protection from creditors three weeks ago. CanWest Media is the holding company for the operating assets of CanWest Global.

CanWest is moving the Post into its newspaper subsidiary, CanWest LP, to group all of the company's print assets together in advance of a separate filing for court protection for that business.

It is expected the newspaper subsidiary, which owns about a dozen papers across the country, will file for protection under the Companies' Creditors Arrangement Act (CCAA) in the coming weeks. That could lead to the company being split up as part of the restructuring.

A lawyer for CanWest said Friday that the National Post has never turned a profit and the creditors of the parent company, a group of hedge funds that own most of the company's bonds, don't want to continue covering its losses.

"If the bondholders on the [parent company] side thought they could squeeze one more nickel out of it, they would have," CanWest lawyer Lyndon Barnes said. "There is just no money to continue beyond today."

However, Mr. Barnes said the paper does have value to the other papers in the CanWest chain if grouped with those print assets.

The newspapers have numerous shared services contracts among them, which result in cost savings for the print subsidiary
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777