Conrad Black -- champion of the oppressed

The title of this post is not sarcastic -- it may be unexpected but it is intended to be genuine.

I met Conrad Black a couple of times -- not that he'd remember me. He was (likely still is) quite unforgettable. A brilliant thinker, Black was never condescending even to the unimportant junior lawyer who briefly passed through his life.

And while many of my readers will not agree, I don't think justice was done - not even close to done - at his trial. I usually have faith in American courts (I even think Omar Khadr might get a fair shake) but what happened in Chicago to Black was not impartial and even-handed.

Black is a larger than life man -- he was a capitalist convinced of the merits of the system. And in fairness it served him pretty well until his downfall.

His tragic fall -- and its worthy of Shakespeare -- seems to have changed his view of society, at least to a degree. He went to Chicago believing in American Justice and left without that faith. He also seems to have seen the downside of raw capitalism. He writes eloquently about those left behind by the American system (and our system is much of a muchness).

Witness this passage from his piece about being a teacher in prison in the Post today:

"I would not meet the usual definition of a socialist, and many of my students acted unwisely and unscrupulously to get where they are.

But many are victims of legal and social injustice, inadequately provided for by the public assistance system, and over-prosecuted and vengefully sentenced. The greater competitiveness of the world makes the failures of American education, social services and justice unaffordable, as well as repulsive.

In tens of millions of undervalued human lives, as in the consumption of energy and the addiction to consumer debt, the United States pays a heavy price for an ethos afflicted by wantonness, waste and official human indifference."

Sadly much the same can be said of many in Canadian prisons, especially those of First Nations background.

It's a fine and moving article. The full story is here:

http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/11/14/conrad-black-the-transformative-effect-of-teaching-my-fellow-inmates.aspx

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

416 225 2777

Recidivism

Prisons do separate people from society. But, at least as they exist today, prisons do not reform people.

In 1999, researchers at the University of New Brunswick examined 50 studies on recidivism that covered more than 300,000 offenders.

Considering other factors—such as an inmate's criminal background and age—they found that the longer someone spent in jail, the more likely they were to commit another crime when they got out.

The researchers found the impact was most significant for low-risk offenders—suggesting prison may indeed be a "school of crime" that makes people worse, not better.

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

416 225 2777

Life loophole for killer

This is the sort of story that embarrasses the law; Joe Warmington is right.

Defence counsel was totally right to rely on the law and Crown was right to apply it. But ... this should be First Degree Murder -- and the legislation should reflect that.

I have long said we need thorough criminal justice reform but here is a specific fix that's needed.


Life loophole for killer
JOE WARMINGTON


http://m.torontosun.com/11743166.1

BRAMPTON -- You hear the one about the guy who shot to death an innocent man but won't be tried for first-degree-murder thanks to a technicality that creates difficulty for the Crown to prove the act was premeditated?

Instead, already on a firearms ban and on parole for gun offences, 24-year-old Andre Bourne pleaded guilty yesterday before Mr. Justice Thomas Dunn to the more lenient charge of second-degree murder for the gutless gunning down of Ronell Williams on Sept. 9, 2007 outside a birthday party on Salisbury Circle in Brampton.

The Crown's hands were tied since the way the criteria to gain a first-degree-murder conviction is written, it would have made the prospect of a conviction risky.

Instead, the Crown has accepted second-degree and is now going for a stiff sentence.

Still, it was Christmas Day for Bourne who may now actually get a third chance at freedom!

There will be no more chances for 27-year-old Chrysler worker Williams. The six shots that tore into him took care of his future
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

I know it's wrong but I love drinking milk from the carton ... .

Free speech

And you have the right to free speech, as long as you're not dumb enough to actually try it... - The Clash, "Know Your Rights"

Canada -- a Nation?

This small story ties in well with a piece I did a few months ago saying Honour Killing was terrorism -- not everyone agreed!

The bigger question is "what is a Canadian"? This isn't a racial thing -- space aliens living in Calgary can be "Canadian" -- I recently heard 20% of Canadian citizens were born elsewhere. But do we have a uniform ethos? Is there a Nation of Canada or is it merely a State?

My sense is that there is a Nation here -- it is rapidly evolving because of massive immigration and economic change -- when I was a child Eatons was a unifying force but that's not true today -- and in my grade school the exotic foreigners came from Poland. But there is a Nation.

Canada's Nationhood is built by common national institutions -- whether they be public (the Forces) or private (Tim's). And the apparent triviality of, say, a donut chain as national symbol changes nothing of its enduring connectedness to the core of what we are.

Perhaps I am too fancy for an early Toronto morning?

The new citizenship guide won't make Canadians but it is a good step:

New citizenship guide says no to 'barbaric' practices

Kathryn Blaze Carlson,
National Post

Canada's revamped citizenship guide warns newcomers that "barbaric cultural practices" such as honour killings will not be tolerated, marking a stronger tone against importing beliefs that clash with Canadian values.

"In Canada, men and women are equal under the law," the document says. "Canada's openness and generosity do not extend to barbaric cultural practices that tolerate spousal abuse, 'honour killings,' female genital mutilation or other gender-based violence. Those guilty of these crimes are severely punished under Canada's criminal laws."

The guide, released on Thursday and called Discover Canada: The Rights and Responsibilities of Canadian Citizenship, (read the full guide) is the first of its kind to explicitly denounce violence in the name of family honour -- a crime in the headlines just this week after an Ottawa man was sentenced to a year in jail for threatening violence against his daughter.

While honour killings remain relatively rare in Canada, several high-profile cases have drawn attention to the issue. Even the use of the term "honour killings" has stirred debate, as critics of the wording say it implies the practice is accepted by certain religions when, in fact, it is not.

"The government had long been cautious about offending people," said Amin Muhammad, a psychiatry professor at Memorial University and author of a recent paper on the subject, which was submitted to the federal Department of Justice. "But now, the government is bravely -- but politely -- warning that this is something that is not to be tolerated."

Splash!

Thomas Cromwell

Wolf Hall, a new novel, suggests Cromwell was a wise minister and a decent man. Perhaps that over states the matter -- at least the decent man part -- but the truth is Cromwell was very competent at he was loyal to his first master and to his King.

It may be that an element of ruthlessness, when combined with competence and intelligent, is necessary for a political operator.

Of course, that's history only.

Flocke

Governments have a duty of procedural fairness when enforcing undertakings given to sponsor a relative’s immigration

Today's decision in Mavi v. Canada (Attorney General), 2009 ONCA 794 considers whether governments must exercise discretion on a case-by-case basis and comply with a duty of procedural fairness when enforcing undertakings given to sponsor a relative's immigration to Canada. 

In a lengthy, careful, but somewhat surprising, decision the Court held that governments have a duty to consider fairness when enforcing a sponsorship debt.  These debts are not enforced as mere contractual obligations. 

The Court's conclusion follows:

(iii)                        Canada and Ontario owe sponsors a duty of procedural fairness when enforcing sponsorship debt; and

(iv)                        the duty of procedural fairness includes: a) an obligation to provide sponsors with a process for explaining their own and their sponsored relative's relevant personal and financial circumstances; b) an obligation to consider those circumstances; and c) an obligation to inform any sponsor who makes submissions that their submissions have been considered and of the decision that was made.

 

EKOS Poll

As of Nov 11, 2009

Conservatives: 36.6 (-0.8)
Liberals: 26.6 (-0.2)
NDP: 16.8 (+0.5)
Green: 11.2 (+1.2)
Bloc Quebecois (in Quebec): 35.6 (-2.0)
Undecided: 16.6 (+0.6)

I am somewhat surprised at the undecided -- it's not that large.

A milestone -- 4,000 posts!!!

Hard to believe but this is the 4,000th post on my blog!!!

Imagine how much valuable stuff I could have done -- how many books and articles I could have written -- but for the blog!!!

Kidding -- the blogosphere is a wonderful place!!!

Flocke and Raspi -- a new video

http://www.youtube.com/watch?v=drGYlUxmJwY&feature=player_embedded#

Today in 1775 ...

Montreal - American Revolutionary General Richard Montgomery (1736-1775) landed at Point St. Charles and marched into Montreal a day after Guy Carleton evacuated the city.

All Canada except Trois-Rivieres and Quebec City was under the occupation of the Army of the Continental Congress, and the French habitants were urged to join the Revolution.

They didn't.

TTC riders "strike"

This is bound to fail.

When I go downtown I do have options -- I have a car and can drive or I could take a taxi. But that costs at least $25 and takes twice as long as the TTC.

Frankly, until the TTC fares get to the $10 a ride range -- or the service gets so insecure and/or dirty as to make it unusable -- the TTC will remain the better way for me.

So there is little stopping fare hikes except, perhaps, a realization that low income riders are hurt worst.


Toronto transit riders 'strike'
By BRYN WEESE, SUN MEDIA
The Toronto Sun


The TTC will be up and running tomorrow, even though some riders have been stressing about a "strike."

In fact, tomorrow's protest is a boycott by several thousand riders upset at the prospect of a fare hike next year.

The commission will be considering a cash fare hike from $2.75 to $3 on Tuesday. Student and senior fares could also increase by 15 cents, children's by 5 cents and the monthly cost of a Metropass from $109 to $126.

Organizers of the TTC Riders' Strike, as it's called on Facebook, are asking people to find another way around the city tomorrow.

Making fun of Canadians

This is a mildly amusing article from the Star. But it misses the real point -- Canada is the subject of humour because everyone knows there isn't an anti-Canadian bias in the United States.

No one says "I won't have my daughter date a Canadian".

Making fun of Canadians isn't a serious act -- it's like making fun of Scots.

Humour at the expense of, say, Mexicans feeds into an existing bigotry -- that's no risk with Canadians.

Token Canadian humour gets smarter on U.S. TV

http://mobile.thestar.com/mobile/NEWS/article/724627

November 12, 2009

Raju Mudhar       

`Duh, I'm from Canada and they think I'm slow, eh."

Ever since the kid in Bart's remedial class uttered that line in an early Simpsons episode many years ago, it echoes in my head whenever there's a joke aimed at us by a big U.S. show. Perhaps it's a sign of our Canadian meekness that I can't muster indignation.

Of course, what I'll dub "token Canadian humour" has a pretty long and funny history. It's currently enjoying a bit of a heyday, as tonight's 30 Rock features the arrival of a new cast member on the fictional TGS show, a Canadian. In only a few moments onscreen, he's already shown Canadian traits, like politeness, as he was the only person who shook bedbug-infected boss Jack Donaghy's hand. Previews from tonight's episode show the characters trying to beat the Canadian accent out of the new guy.

The other exceptional gold mine of Canadian humour is CBS's How I Met Your Mother, which features Vancouver-born Cobie Smulders portraying Robin Scherbatsky, a Canadian New York-based anchor. Recently, she faced being deported for a chair-smashing hockey fight at the Hoser Hut, the Canuck bar she frequents, precipitating a crisis as she contemplates becoming an American citizen.

The show was a litany of Canadian jokes, with references to curling, Toronto, Tim Hortons and our money. This past week, they followed up with a special guest appearance by Alan Thicke.

South Park's "Blame Canada" and the fart-happy Terrance and Phillip have been poking fun our way for years. The Office made a road trip to Winnipeg last year. There are way more Simpsons references (anyone else want to go to the National Grammar Rodeo at the Sheraton Hotel in Canada?), and mentions by Jon Stewart and Stephen Colbert, who knows that the mere mention of Canada will inspire response from fans in this country.

"Those syrup-suckers won't let us practise at their Olympic venues," Colbert said recently. "This is the most unsportsmanlike conduct by Canadians since it was discovered Toronto Blue Jays pitcher Roy Halladay is a moose."

...
Obviously a lot of these jokes also allow Americans to shine a light on their own cultural foibles. We're the friendly other that can be seen as a twisted mirror: America Jr. as Homer put it once. Or as Steve Martin's fugitive guest character once exhorted Liz on 30 Rock: "Come with me to Canada. Toronto is just like New York, but without all the stuff."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Meow

Fur flies over death of 'Thatcher'

Wednesday, November 11, 2009

By David Akin, Canwest News Service


OTTAWA — With lightning speed, it spread from BlackBerry to BlackBerry among the 2,000 or so Conservatives in black-tie Tuesday evening at the Metro Toronto Convention Centre for the first ever True Patriot Love Tribute Dinner.

"Thatcher has died."

The message was a dagger in the heart of many in the Canadian conservative movement who revere former British prime minister Margaret Thatcher, 84.

...

Turns out, the deceased was actually Thatcher, Transport Minister John Baird's beloved, 16-year-old grey tabby named in honour of the Iron Lady of British politics.

Baird, at home in his Ottawa-area riding in Nepean, Ont., had sent a message about the cat's death to someone at the dinner in Toronto.

But in the meanwhile, Harper spokesman Dimitri Soudas was in contact with Buckingham Palace and 10 Downing Street.

Both were baffled by his inquiries.

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

416 225 2777

Khadr

The Supreme Court of Canada hears the Omar Khadr case this Friday. The Court is asked to consider ordering the federal government to seek Canadian custody for Khadr. The Federal Court both at first instance and on appeal ordered the federal government to seek Khadr's return to Canada.

Federal lawyers intend to fight Mr. Khadr's return. In a scathing brief to the Supreme Court, they called the Federal Court order to seek Mr. Khadr's return "an unprecedented and unprincipled remedy."

Who will win?

And what will happen if the federal government loses?

At first blush it seems implausible that the Supreme Court would make an order regarding what is essentially a policy matter -- and yet recent Court decisions have not hesitated to reconsider government policy choices. Moreover, Khadr was interviewed by CSIS officers so arguably the matter isn't policy but practice. My guess is that the Court will uphold the Federal Court.

But what can the Court order? To direct the federal government to take "all steps necessary to request Khadr's delivery to Canadian custody"? How do you enforce that? And if the federal government ignores the order or sits on it what then? The Court risks losing authority if it makes an unenforceable order.

Well, wiser heads than mine will grapple with the matter shortly ... .
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

I love birthdays ...

Raspi enjoys his second birthday

McMaster to offer free tuition to children of fallen soldiers

Full story here: http://cnews.canoe.ca/CNEWS/Canada/2009/11/11/11712336-cp.html

By THE CANADIAN PRESS


HAMILTON, Ont. — McMaster University says it will offer four years of free tuition to the children of Canadian soldiers killed in military action.

The university in Hamilton, Ont., says it will also provide residence accommodation and a meal plan for the first year of study.

Random bigotry

I removed some comments today that were deeply bigoted and rather nasty; they were also wholly irrelevant to the main Post. I suspect they were not posted by regular readers but rather by people looking to spread hatred who found a site where posting was open.

Just a reminder, I delete nothing unless it is violent, sexual or racist but if it's any of those I delete as soon as I see it.

Raspi turns two -- Happy birthday bear!!!

Lester B. Pearson

With gratitude to Wikipedia, I did a little reading on Mike Pearson's early struggles. He became one of our greatest leaders and yet he didn't have an easy time becoming Prime Minister -- there were plenty of naysayers calling for his resignation early after he became Leader.

It took him five full years to rebuild the Party and he became Prime Minister when he was 66.

One of my earliest memories was of the Pearson becoming Prime Minister.

Here's a clip from CBC on his first minority election victory -- worth a look:

http://archives.cbc.ca/politics/prime_ministers/clips/7702/

It took a lot of work, and a Thinkers' Conference was just a small part of what was needed, but Pearson built the basis of the modern Liberal Party.

After the resignation of Louis St. Laurent, Pearson was elected leader of the Liberal Party at its 1958 leadership convention, defeating his chief rival, cabinet minister Paul Joseph James Martin.
As the newly-elected leader of the Liberals, Mr. Pearson had given an ill-advised speech in the House of Commons that asked Prime Minister John Diefenbaker to give power back to the Liberals without an election, because of a recent economic downturn. This strategy backfired when Diefenbaker seized on the error by showing a classified Liberal document saying that the economy would face a downturn in that year. This contrasted heavily with the Liberal's 1957 campaign promises.

Consequently, Pearson's party was badly routed in the election of that year, losing over half their seats, while Diefenbaker's Conservatives won the largest majority ever seen in Canada to that point (208 of 265 seats). The election also cost the Liberals their Quebec stronghold; the province had voted largely Liberal in federal elections since the Conscription Crisis of 1917, but upon the resignation of former Prime Minister Louis St. Laurent, the province had no favourite son leader, as they had had since 1948.

Pearson convened a significant 'Thinkers' Conference' at Kingston, Ontario in 1960, which developed many of the ideas later implemented when he became prime minister.

In the 1962 election, his party reduced the Progressive Conservative Party of John Diefenbaker to a minority government.

Not long after the election, Pearson capitalized on the Conservatives' indecision on installing nuclear warheads on Bomarc missiles. Minister of National Defence Douglas Harkness resigned from Cabinet on February 4, 1963, because of Diefenbaker's opposition to accepting the missiles. The next day, the government lost two non-confidence motions on the issue, prompting the election.

Pearson led the Liberals to a minority government in the 1963 general election, and became prime minister. He had campaigned during the election promising "60 Days of Decision" and support for the Bomarc missile program.

Pearson never had a majority in the Canadian House of Commons, but he nevertheless managed to bring in many of Canada's major social programs, including universal health care, the Canada Pension Plan and Canada Student Loans, and established a new national flag, the Maple Leaf. This was due in part to support for his minority government in the House of Commons from the New Democratic Party, led by Tommy Douglas. His legislation included instituting the 40-hour work week, two weeks vacation time and a new minimum wage.

War is cruelty

I'm not sure how I feel about these pictures cycling about online today -- November 11. This is a troubling picture -- the fact the soldiers are not Canadian is unimportant.

There is bravery and honour in the military -- that was, in part, why I signed on for the Reserves.

But war is not a positive thing.

War always kills and worse yet injures dreadfully.

As a child my father told me that a soldier does not fear dying as much as being maimed. I always remember that.

Sometimes war is forced upon a nation, and other times there are reasons to fight that justify the violence, but in general we must always remember what General William Tecumseh Sherman said:

"You cannot qualify war in harsher terms than I will. War is cruelty, and you cannot refine it; and those who brought war into our country deserve all the curses and maledictions a people can pour out. I know I had no hand in making this war, and I know I will make more sacrifices to-day than any of you to secure peace."

Sherman knew that war "is hell" and knew we must strive for peace. War is the last resort -- that does not mean war is never to be fought but it does mean that war is to be fought only when there is no other option.

November 11 thoughts from Lawrence Ben-Eliezer

Lawrence is a well known, and thoughtful, Toronto lawyer:


November 11 is almost upon us.

As the air temperatures drop and ground gets colder, as those with a living memory of the tragedies of war become fewer in number because of attrition, as our society becomes more and more selfish and less and less concerned with the history of sacrifices that has allowed us to enjoy our lives, it is time to change the mechanism and think a little about how we got here and what we must do to ensure that young men and women never again have to risk life and limb to combat evil and terror. We cannot achieve the promise of the future without honouring the sacrifices of the past.

Our courts will for the most part be closed on November 11. Bail courts will be running and many of us will be working to clear our desks and prepare for the next trial. All of us should, however, take or make the time to pay homage to those who left the comforts of home to serve Canada despite knowing there was a substantial chance they would never return. Attend at a cenotaph or otherwise take a moment to reflect on the past so that you may contemplate the future in context.

Those who know me also know that I am not a very religious man, and that I am given to a largely secular view of the universe. Nonetheless, I reproduce passages from the book of Ecclesiasticus, Ch. 44.

Make of it what you will.


[1] Let us now praise famous men,and our fathers in their generations.
[2] The Lord apportioned to them great glory,his majesty from the beginning.
[3] There were those who ruled in their kingdoms,and were men renowned for their power,giving counsel by their understanding,and proclaiming prophecies;
[4] leaders of the people in their deliberationsand in understanding of learning for the people,wise in their words of instruction;
[5] those who composed musical tunes,and set forth verses in writing;
[6] rich men furnished with resources,living peaceably in their habitations –
[7] all these were honored in their generations,and were the glory of their times.
[8] There are some of them who have left a name,so that men declare their praise.
[9] And there are some who have no memorial,who have perished as though they had not lived;they have become as though they had not been born,and so have their children after them.
[10] But these were men of mercy,whose righteous deeds have not been forgotten;
[11] their prosperity will remain with their descendants,and their inheritance to their children's children.
[12] Their descendants stand by the covenants;their children also, for their sake.
[13] Their posterity will continue for ever,and their glory will not be blotted out.
[14] Their bodies were buried in peace,and their name lives to all generations.
[15] Peoples will declare their wisdom,and the congregation proclaims their praise.


Lawrence Ben-Eliezer

Poppy

Youth crime law praised in U.K. study

I have not seen the study yet so it may be gobbledegook but, if it is solid, then it is worth close consideration. Again, we need to focus on the goal of reducing crime rather than merely being "tough on crime".

http://www.nationalpost.com/m/story.html?id=2209970&s=Today's%20Newspaper

Youth crime law praised in U.K. study

Harper has called act a failure, pledges rewrite

Janice Tibbetts, Canwest News Service
Wednesday, Nov. 11, 2009

Canadian laws on youth crime are being held up by British researchers as a shining example of success even as the Harper government has denounced them as an unmitigated failure that must be replaced with "new balanced legislation that focuses on deterrence and responsibility."

Researchers Enver Solomon and Rob Allen, in a study highlighting "lessons from abroad" that could be used to reduce youth crime in England and Wales, conclude that Canada's Youth Criminal Justice Act has met its goal of cutting the crime rate and incarcerating fewer young people.

...

The act, adopted by the former Liberal government in 2003 to replace the Young Offenders Act, promotes rehabilitation for young people aged 12 to 17 who are in trouble with the law, while reserving incarceration for serious violent crimes.

The British study found that in England and Wales, custody is "proving to be an expensive, ineffective tool for reducing youth crime" and "excessive use of youth custody is one of the surest ways to grow the adult prison population of the future."

When the Youth Criminal Justice Act was adopted, Canada had one of the highest youth incarceration rates in the world. Those numbers dropped a dramatic 36% between 2003 and 2008, according to the latest figures available from Statistics Canada.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Police methods in Mariam search criticized

CBC News

New police efforts to find missing Toronto teen Mariam Makhniashvili are coming under fire for being too intrusive.

Around 60 police investigators are searching people's homes in the north Toronto neighbourhood where Makhniashvili, an 18-year-old student from Forest Hill Collegiate Institute, was last seen.

Over the next two to three weeks, police hope to canvas 6,000 homes in an area between Bathurst Street, Eglinton Avenue, Shalamar Boulevard and Chaplin Crescent in hopes of finding her.

"The police will keep knocking at your door until they can identify that you are there behind the door," Det.-Sgt Dan Nealon advised residents Monday.

"We're also going to be asking that we be invited inside your home for just a quick peek into areas of your home to ensure that there is no evidence in relation to this case with respect to you."

Police have already visited the apartment of area resident Golan Derozen, who invited them in. They stayed for 10 minutes, asked him a few questions, looked at his car and storage unit, then left.

"They asked me some personal questions — my age, what I do, if I knew … Miriam, if I know what happened," he said.

Residents can refuse entry

Criminal defence lawyer Edward Sapiano calls the technique a dangerous fishing expedition.

Although Nealon said Monday that people "certainly" have the right to refuse entry to the police, Sapiano told CBC News that those who deny police entry will come under suspicion.

The police service's methods mean "a Canadian citizen is deemed guilty until police are satisfied you are innocent," he said. "And a Canadian citizen who insists on exercising the rights of [a] Canadian citizen is immediately deemed a suspect."

Another criminal lawyer, James Morton, said the police force's request of residents didn't amount to "a tremendous intrusion" if there is some reason to believe Makhniashvili is alive.

"And certainly if you say no, that doesn't mean you're going to be subject to enormous police scrutiny," he told CBC News. "But it will mean that you'll be somebody the police will look at more carefully."

Mariam was last seen on the morning of Sept. 14 when she headed to school with her brother.

Police have struggled to find leads in the investigation, although on Oct. 8 they found Mariam's backpack in a parking lot behind 120 Eglinton Ave. E. — a building that sits on a busy Toronto street — just a few kilometres from where she was last seen. The backpack was the first and only tangible item police uncovered in relation to the case.

Investigators say they still don't know if Makhniashvili is a victim of foul play or vanished on her own or if something else happened
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

And the Band Played Waltzing Matilda

by Eric Bogle.

THE BAND PLAYED WALTZING MATILDA

Now when I was a young man I carried me pack

And I lived the free life of the rover.

From the Murray's green basin to the dusty outback,

Well, I waltzed my Matilda all over.

Then in 1915 my country said,

"Son,It's time you stop rambling, there's work to be done."

So they gave me a tin hat and they gave me a gun

And they marched me away to the war.

And the band played Waltzing Matilda,

As the ship pulled away from the quay

And amidst all the cheers, flag waving and tears,

We sailed off for Gallipoli

And how well I remember that terrible day,

How our blood stained the sand and the water

And of how in that hell that they called Suvla Bay

We were butchered like lambs at the slaughter.

Johnny Turk, he was ready, he primed himself well.

He showered us with bullets, and he rained us with shells,

And in five minutes flat, he'd blown us all to hell,

Nearly blew us back home to Australia.

(But)

And the band played Waltzing Matilda,

As we stopped to bury our slain,

We buried ours, the Turks buried theirs,

Then we started all over again.

And those that were left, well we tried to survive

In that mad world of blood, death and fire.

And for ten weary weeks I kept myself alive

Though around me the corpses piled higher.

Then a big Turkish shell knocked me arse over head

And when I awoke in me hospital bed

And saw what it had done, well I wished I was dead.

Never knew there were worse things than dying.

For I'll go no more Waltzing Matilda,

All around the green bush far and free

To hunt, tent and pegs, a man needs both legs,

No more waltzing Matilda for me.

So they gathered the crippled, the wounded, and maimed,

And they shipped us back home to Australia.

The legless, the armless, the blind and insane,

Those proud wounded heroes of Suvla.

And when our ship pulled into Circular Quay

I looked at the place where me legs used to be

And I thank Christ there was no body waiting for me

To grieve, to mourn and to pity.

But the Band played Waltzing Matilda

As they carried us down the gangway,

But nobody cheered, they just stood and stared,

Then they turned all their faces away.

So now every April I sit on me porch

And I watch the parade pass before me.

And I see my old comrades, how proudly they march

Reviving old dreams and past glory,

And the old men march slowly, all bone stiff and sore

They're tired old heroes from a forgotten war

And the young people ask "What are they marching for?"

And I ask myself the same question.

But the band plays Waltzing Matilda,

And the old men still answer the call,

But as year follows year, more old men disappear

Someday, no one will march there at all.

Waltzing Matilda, Waltzing Matilda.

Who'll come a-Waltzing Matilda with me?

And their ghosts may be heard as they march by the billabong

Who'll come a-Waltzing Matilda with me

Death in Virginia

I was in Washington during the shootings. The reason for the shootings -- did he see it as sport -- was never clear to me. Still John Allen Muhammad is dead and that's an end to it:

Jarratt, VIRGINIA (Reuters) - John Allen Muhammad was executed on Tuesday for masterminding and carrying out with his teenage accomplice the 2002 sniper shootings that killed 10 people and terrified the Washington, D.C. region a year after the September 11 and the deadly anthrax attacks.

The 48-year-old Muhammad was put to death by lethal injection at the Greensville Correctional Center in Jarratt, Virginia, said Virginia Department of Corrections spokesman Larry Traylor.

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

416 225 2777

Criminal justice reform -- time for a full overhaul

In 1891 Canada’s third census revealed a young nation of nearly five million people. Over 70% of Canadians lived in Quebec or Ontario. The Church played a significant and direct role in civic life and virtually the entire population was Christian. Ethnic populations were, apart from First Nations, effectively non-existent. Urban areas were small – Toronto in 1890 had a population about the same size as Burlington, Ontario in 2009. More than nine in ten Canadians lived in rural areas.

The Criminal Code was proclaimed into such a nation in 1892. It was a careful attempt by leading criminal specialists to codify British law as applied in Canada in 1890. Despite amendments following a Royal Commission in 1947 (passed in 1953) the Criminal Code has never been fundamentally revised. A modern Canadian lawyer would immediately recognize the 1892 Criminal Code as being, in the main, the same Criminal Code as applies in Canada today.

This history is relevant largely because the Criminal Code was written in the Nineteenth Century by progressive penal thinkers considering the best law for a rural, ethnically uniform and fundamentally Christian nation. The Criminal Code is very much a piece of the Nineteenth Century, assuming that potential offenders are rational actors who will weigh their present actions against the likelihood of future punishment and social disgrace. Deterrence was assumed to work.

Of course, the Canada of 1892 no longer exists. Less than one in twenty Canadians live in rural areas. In many urban centres the concept of a visible minority has lost relevance – there is no group that obviously qualifies as the majority. The power of the Church in civic life is long gone and many Canadians fail to see a criminal record as amounting to a social stigma at all. The concept of the criminal as rational actor has been found to be in error (except perhaps for white collar criminals); mental illness is widespread through the criminal system and drug abuse and psychiatric disorders are so common precursors of crime as to make the concept of the rational actor deterred by punishment laughable.

Our Criminal Code is based on a society that no longer exists and assumptions that, if ever true, are clearly false today.

Now that doesn’t mean that we have to abandon trying to control crime. But it does mean that it is time to look again at how we deter crime. Is it really best dealt with by prisons? In some case, white collar crime, probably yes, but in other cases, most drug related crime, not. Should we use mental health treatment as a basis for dealing with crime? Perhaps, but there are some criminals who cannot be rehabilitated and who must be separated from society; perhaps those criminals need to be in prisons or in functional equivalents. Should we assimilate quasi criminal/administrative law into true criminal law? Certainly society’s revulsion at crimes of personal violence is greater than, say, environmental offences, but those environmental offences may injure far more people than a simple assault. Should we replace the entire system of adversarial court battle with something closer to a prosecuting magistrate? Perhaps; there are issues of fairness and the appearance of justice but is, say, the law of France grossly unfair?

All these issues should be open to consideration on an evidence based approach.

Being “tough on crime”, in itself, meaningless.

The goal of the criminal justice system is to prevent crime and to justify society where crime has occurred. We should revisit the Criminal Code in light of those goals.

Vera swims

Appeals based on credibility

Today's decision in R. v. J.W.J., 2009 ONCA 791 reminds us that a trial judge's view of credibility is to be given great weight.  Merely because another judge might have decided differently does not ground an appeal:

 

… It is well settled by prior decisions of this court including but, not only, R. v. Howe (2005), 192 C.C.C. (3d) 480, at para. 49, and R. v. T.(T.), [2009] O.J. No. 3388, at para. 31, that it is not enough to show that a different trial judge could have reached a different credibility assessment, that the trial judge failed to say something he could have said in assessing the credibility of the witnesses, or that the trial judge failed to expressly set out legal principles relevant to credibility assessment.  In this case, nothing that was said or left unsaid demonstrates that any such differential standard was applied to the evidence of the two principal witnesses.

 

I almost fear to write this but ...

even for a Liberal like me there is good news in the Conservative win in rural Quebec -- I was too Party focussed to notice but, hey, a Federalist Party beat the Bloc. That's good news.

Consent searches

The radio asked "what if the police, on being allowed to inspect a house to search for the missing Toronto teen, find evidence of other crimes, say a marijuana plant"?

The answer is clear -- it was a consent search and if they, within the scope of the consent, find evidence of other crime they can lay charges.

Conservatives pick up seat in rural Quebec

Well, this is a bit of a wake up call. Obviously the Conservatives are doing something right and we need to work hard to rebuild the base in Quebec. It seems our vote improved a bit over the last election but, give due where due, the Conservatives came in first.

Door to door searches

Toronto police will search, so the radio says, 6000 homes all without a warrant.

They will knock and ask to do a quick search.

Consent given they will do a cursory scan -- but if you say no then they may want to look more closely... .

Knut smiles

Appeals from interlocutory rulings in Small Claims Court

A small practice point (which will become more significant with the major increase in Small Claims jurisdiction in the new year) was set out in Grainger v. Windsor-Essex CAS (2009), 96 O.R. (3d) 711.

 

There is no right of appeal to any court from an interlocutory order of a Small Claims Court judge.

Juries Act amendments impact on who can sit on a jury

An interesting change is included in proposed changes to the Juries Act.

The changes to s 38(1) suggest that anyone convicted of a hybrid offence will no longer be eligible for jury duty (even if the Crown elects summarily). (see text below).

This new change will exclude a large number of people from serving on juries in Ontario.

Juries Act

38. (1) Clause 4 (b) of the Juries Act is amended by striking out "an indictable offence" and substituting "an offence that may be prosecuted by indictment".

I've never been in a prison that didn't leave people worse

Michael Ignatieff

And he is right.

Prison can be a deterrent and tougher sentences where appropriate can deter crime.

But prison as we have it now does not rehabilitate. If our prisons are to work we need to refocus our efforts and make them re eduction centres.

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

416 225 2777

November 9

November 9 is not only the anniversary of the opening of the Berlin Wall. It is also the anniversary of Kristallnacht, the organised attack upon German Jews in 1938, and of Hitler's Beer Hall putsch in 1923.

Comprehensive reform of Canada's Criminal Code

There have been many calls for comprehensive reform of Canada's Criminal Code. It is over fifty years since the last major revision of the Code -- and that was not a complete rewrite. The Canada for which the Code was written no longer exists.

Perhaps the most scathing call for reform came from the now defunct Law Reform Commission of Canada which said of the Code:

"It is too complicated. It is too illogical. It is poorly organized. It is not comprehensive and it is too intrusive. Our Code is no longer worthy of Canadians. We deserve a Criminal Code that is modern, simple, logical, coherent, comprehensive, organized, understandable and restrained."

As I have said in other places, piecemeal amendments do little; there is a political will to create a new Code. Now it the time.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Grumpy bears

Time for a remedy for the wrongfully accused

In 1991 three children made grotesque allegations of sexual abuse against Anita and Dale Klassen, their foster parents. The children told police that their abusers had committed upon them, and had forced them to commit, various sexual acts. The allegations by each of the children were virtually identical. The children also detailed bizarre events including the mutilation and ritualistic killing of animals, dismemberment of babies and drinking of human blood. A Saskatchewan judge held children's allegations were so unbelievable as to be patently absurd, such that no reasonable person would have believed the accusations without corroborating evidence.

The allegations were, in fact, entirely false. But, before the accusations collapsed, the Klassens and some of their family had been prosecuted through the criminal courts and convicted. The convictions had been upheld in the Saskatchewan Court of Appeal.

As the Supreme Court of Canada said earlier this month, the Klassens " were the victims of a clear miscarriage of justice which undoubtedly had a devastating effect on their lives."

Nevertheless, when the Klassens' sued the prosecutor who put them through their ordeal the Supreme Court of Canada unanimously held the claim could not succeed. How can this be? You would think that for every legal wrong there must be a remedy; but that's not correct. In Canada there is no existing remedy for the harm caused by a wrongful conviction. It is time to consider creating a remedy.

Crown attorneys, the people who prosecute crime, can be personally sued for malicious prosecution. But to succeed in such a claim you have to show the Crown attorney acted maliciously. What the Supreme Court decided in Klassen was what amounts to malice.

Previously some Courts had found malice was not just a prosecution motivated by, say, personal hatred of the accused but included malice inferred from the fact that a prosecution was wholly without merit. Blindly prosecuting a hopeless claim might qualify as acting maliciously.

In Klassen the Court rejected this saying "Malice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice". In effect, prosecutors are entirely free in their discretion to prosecute.

While the requirement of actual malice may work an injustice in specific cases like Klassen, generally the immunity of Crown Attorneys makes sense. If Crown Attorneys are subject to suit whenever they lose a case they may hesitate to prosecute any but the strongest cases -- worse, they may hesitate to end a weak case for fear a withdrawal might encourage a claim.

Would anyone have the stomach to prosecute a wealthy businessperson for fraud if they knew they could be dragged through the Courts for years if they lost?

That said, where people are vindicated there should be some remedy.

Wrongful convictions, while rare, do occur. Wrongful accusations are not unheard of. Klassen is an example but there are others; the cases of Donald Marshall Jr., David Milgaard, Kyle Unger and Erin Walsh have all shown the fallibility of Canadian justice.

All these cases are linked by an exoneration but they are not all situations where there was prosecutorial or police misconduct -- sometimes they are just examples of an accused being in the wrong place at the wrong time. That said, in each case the wrongfully accused individual has suffered enormous financial and emotional harm. And while it doesn't make sense to have compensation come from the Crown Attorney who happened to prosecute the wrongfully accused does make sense for compensation to be available on a transparent and principled basis.

Where an individual has been fully exonerated for a crime they were accused of, and where the accusation did not come about because of some wrongdoing by the accused, it is appropriate for the accused to receive compensation for legal costs, lost income and some symbolic amount for solace. Such payments should be made administratively through the Provinces and could be similar in form to Workers Compensation -- it makes little sense to force the wrongfully convicted through the Courts again to get their compensation.

The amounts awarded would not be windfalls and would hardly be full compensation for the loss of time, money and enjoyment of life reputation but they would reflect society's recognition of a tragic error and that is better than what we have today.

Material change in circumstance

Friday's decision in Persaud v. Garcia-Persaud, 2009 ONCA 782 deals with variation of a custody and access order.

The Court sets out the condition precedent to such an order being made (material change in circumstance) and then describes when that condition precedent is met.

Absent a material change in circumstance the motions court lacks jurisdiction to vary a custody and access order.

The Court of Appeal writes:

[3] To begin with, the motion judge was without jurisdiction to make the order in question. As this court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman (2008), 52 R.F.L. (6th) 239 (Ont. C.A.). The matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation. In the present case, no such finding was made. Thus, as has been stated, the motion judge was without jurisdiction to vary the original order.

[4] A material change in circumstances is one which: (1) amounts to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) materially affects the child; and, (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order: see Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 13. None of these factors are addressed in the brief reasons of the motion judge nor can they be found on a broader reading of the record as a whole, including the exchanges that the motion judge had with counsel. Indeed, it is highly questionable whether the third factor could have been made out, given the motion judge's numerous statements to the effect that the issues and differences between the parties were but a rehash of that which he heard at the time he made the initial custody and access order.