We only tortured a few, less than 10%, of our prisoners... .

When I was a child there was a soap ad that spoke of a brand of soap being 99 4/10th % pure (or something like that). I remember thinking "so 6/10th % is what? Poison?".

So here, yes, "we tortured but far fewer than alleged". Perhaps the Conservatives are wise to distance themselves from the Afghan government. Of course, that doesn't justify abandoning the Afghan people ... .

http://www.ottawacitizen.com/mobile/news/national-news/Prisoners+tortured+fewer+than+alleged+warden/2251880/story.html


KANDAHAR CITY, Afghanistan — Prisoners were tortured at Sarpoza Prison in Afghanistan, but not in nearly the numbers alleged this past week by a Canadian diplomat, the prison's chief warden has told Canwest News Service.

"Yes, there was torture and people were certainly beaten," chief warden Col. Abdullah Bawar said Saturday during an interview conducted inside the prison's heavily guarded walls.

"Hands and legs would be tied and they would be beaten with cables. I even remember one man who broke his leg from a beating."

Although his timeline was a bit fuzzy as to when such abuses stopped, Bawar estimated that "around 100 prisoners" from a population of about 1,100 had been physically abused during 2006 and 2007, which he referred to as "this dark period."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Provincial appointments

The province has appointed three new judges to the Ontario Court of Justice in the Toronto Region. In total, five judicial appointments have been made across Ontario and will be effective December 2, 2009. Madam Justice Leslie Chapin was called to the Bar in 1989. She practised civil litigation and family law at Enfield, Hemmerick, Adair and Wood in Toronto, before joining the Ministry of the Attorney General as an assistant Crown attorney in 1990. Most recently, she was deputy director of Crown operations in the Toronto region, providing legal and strategic advice to Crown attorneys in four offices. She was counsel to the regional director of Crown operations and acting director of the Special Investigations Unit. Madam Justice Chapin was also a member of the Ontario Crown Attorneys' Association and a board member of the East End Children's Centre. She has lectured at Osgoode Hall to the community and police about criminal law matters.  Chief Justice Annemarie E. Bonkalo has assigned Madam Justice Chapin to preside in Toronto.Justice Neil Kozloff was called to the Bar in 1979. He was an assistant Crown attorney and has prosecuted criminal charges in North York, Toronto, York Region, Durham and Peel. Since 1988, he was a sole practitioner appearing in all levels of court and tribunals, representing clients in a variety of criminal and quasi-criminal cases. Since 2005, he has led a team of lawyers representing the Ontario Provincial Police at the Cornwall Public Inquiry. He was a member of the Criminal Lawyers' Association and the Ontario Crown Attorneys' Association. Justice Kozloff has also served on the North York Mayor's Committee on Youth Violence and participated in several fund-raising activities for Gilda's Club of Greater Toronto. Chief Justice Annemarie E. Bonkalo has assigned Justice Kozloff to preside in Toronto.Madam Justice Diane Oleskiw was called to the Bar in 1989 in Ontario and in 2004 in the Yukon. From 1989 to 1991 she practised with Borden & Elliot in the areas of constitutional, administrative and criminal litigation. In April 1991, she joined the Ministry of the Attorney General as a Crown counsel in the Crown Law Office-Criminal and regularly appeared before the Court of Appeal. Since December 1993, she was a sole practitioner in criminal law. She has given many presentations and participated in workshops on various legal topics at children's centres, women's centres, rape crisis centres and new immigration programs. Madam Justice Oleskiw has been a member of the Criminal Lawyers' Association and the Advocates' Society. Chief Justice Annemarie E. Bonkalo has assigned Madam Justice Oleskiw to preside in Toronto. Justice Steve Anthony Coroza was called to the Bar in 1997. He worked with the Ontario Legal Aid Plan as a staff duty counsel in criminal matters and as a federal Crown counsel since July 1998. As senior counsel to the Public Prosecution Service of Canada, he prosecuted offences and appeared at all levels of court in Ontario. He also supervised over 100 federal Crown agents throughout southern Ontario. He taught at Seneca College, Osgoode Hall Law School and the Advocates' Society and has been a panellist and presenter at various law associations' sessions. Justice Coroza served on the board of directors of the Alzheimer Society of Peel and as treasurer of the Mississauga Community Legal Services clinic. Chief Justice Annemarie E. Bonkalo has assigned Justice Coroza to preside in St. Catharines.Madam Justice Joyce Susan Elder was called to the Bar in 1985 and became an associate at Vaughan, Willms in Toronto. In 1986, she became an associate at Cheadle, Bryan, Johnson, Shanks in Thunder Bay. In 1990, she co-founded the law firm Bode and Tom, and since 1996, has been a sole practitioner. In 1988 she became a panel member for the Office of the Children's Lawyer representing children in dependents' relief proceedings, custody and access disputes and child protection matters.  She was also a settlement conference facilitator for Legal Aid Ontario and a panel member of Pro Bono Ontario's Child Advocacy Project. Madam Justice Elder was a member of the Ontario Review Board and on the board of directors of the Children's Centre in Thunder Bay. Chief Justice Annemarie E. Bonkalo has assigned Madam Justice Elder to preside in Thunder Bay.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Killer ex-cop renews freak show, Nov. 18

From the Star:

Killer ex-cop renews freak show, Nov. 18

Rosie DiManno makes a fair point that Richard Wills, the former police officer convicted of murder, is not a very sympathetic man. Mr. Wills is highly theatrical and unable to focus on the merits of his case. Moreover, the crime of which he was convicted is especially nasty.

But these are reasons to ensure he is properly represented by a sensible lawyer who will cut through the irrelevances and present the case in a simple and direct way. Only when the facts are presented can the accused and the victim be given justice. The very fact that Mr. Wills is unsympathetic and relies on trivial matters makes the need for counsel stronger.

James Morton,
Past President, Ontario Bar Association

A photo to conjure with!

Crime, race and incarceration rates

The incarceration rates per 100,000 adult population of First Nations here in Canada mirror very closely the incarceration rates per 100,000 adult population of Australian Aborigines. Similarly, the incarceration rates per 100,000 adult African Americans are markedly similar to the incarceration rates per 100,000 adult Blacks in England and Wales.

There is disagreement among social scientists as to the causes of the disparities in the rates of imprisonment of racial minorities that result in their over representation in the criminal justice system.

While some view the racial disproportion as a result of differential involvement in crime by racial minorities, others are of the opinion that the causes are embedded in the operations of economic, social and criminal justice systems.

The percentages of minorities under correctional control and supervision in these countries in no way reflect their makeup in the civilian population. Currently here in Canada, First Nations constitute about 3% of the general population but 17% of prisoners in the federal system. In Australia the numbers are even worse; Aborigines currently make up 2% of the population but 20% of all prisoners. African Americans currently make up 13% of the US population and a staggering 46% of the sentenced prisoners (but note proportionally the American numbers, though appalling, are better than the Canadian numbers for First Nations). In England and Wales, Blacks comprised only 2% of the general population but 10.2% of the prison population.

Regardless of why, the disparity in incarceration rates of minority groups can be seen by members of those groups as suggesting a criminal justice system structurally slanted against them. Legitimacy of the criminal justice system is thereby radically undermined.

As a pragmatic matter, the legitimacy of the criminal justice system is essential because it encourages law-abiding behaviour. If people believe in the basic legitimacy of a procedure, they are far more likely to abide by the rules. If, on the other hand, a system is seen as corrupt, unfair, or unjust, those subjected to it will be less inclined to respect it. A legal system that relegates a significant part of the most disadvantaged populations to incarceration, and does next to nothing to help them avoid prison or to reintegrate into society upon release, invites disrespect—and crime.

Why weren't TTC riders alerted to shutdown?

This story, from the Star, raises a good question.

I got on the subway, sat down and waited while inaudible noises came from the intercom. Certainly no one told me, or any of the riders getting on northbound at Queen, the subway wasn't moving.
I only learned of the blockage after passengers started asking why we were so slow and eventually TTC staff walking by answered a question saying a "medical emergency" had blocked the subway -- I knew "medical emergency" was a code word for jumper and nothing would run for a while. It was only later I learned what had happened.  

Why weren't TTC riders alerted to shutdown?

Tess Kalinowski      

Transportation Reporter     

 

TTC collectors faltered in telling riders about a major subway disruption, leaving many to put tokens in turnstiles only to find they couldn't get on the train or wouldn't go as far as they needed.

Collectors, who are informed of service disruptions by Transit Control, are supposed to stop customers from doing that.

In the case of a shooting or terrorist incident, TTC staff have a procedure to immediately evacuate and lock down a station. But most stations must remain open during a service disruption so riders can access buses, said TTC spokesman Brad Ross.

In such cases, it's the job of TTC staff to alert people to the disruption.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Can Our Shameful Prisons Be Reformed? This week's NYR

It is almost beyond belief that Canada is moving closer to the American prison/incarceration system.

Can Our Shameful Prisons Be Reformed?

By David Cole

Full story here:
http://www.nybooks.com/articles/23382

With approximately 2.3 million people in prison or jail, the United States incarcerates more people than any other country in the world—by far. Our per capita rate is six times greater than Canada's, eight times greater than France's, and twelve times greater than Japan's. Here, at least, we are an undisputed world leader; we have a 40 percent lead on our closest competitors—Russia and Belarus.

Even so, the imprisoned make up only two thirds of one percent of the nation's general population. And most of those imprisoned are poor and uneducated, disproportionately drawn from the margins of society. For the vast majority of us, in other words, the idea that we might find ourselves in jail or prison is simply not a genuine concern.

For one group in particular, however, these figures have concrete and deep-rooted implications—African-Americans, especially young black men, and especially poor young black men. African-Americans are 13 percent of the general population, but over 50 percent of the prison population. Blacks are incarcerated at a rate eight times higher than that of whites—a disparity that dwarfs other racial disparities. (Black–white disparities in unemployment, for example, are 2–1; in nonmarital childbirth, 3–1; in infant mortality, 2–1; and in net worth, 1–5).

In the 1950s, when segregation was still legal, African-Americans comprised 30 percent of the prison population. Sixty years later, African-Americans and Latinos make up 70 percent of the incarcerated population, and that population has skyrocketed. The disparities are greatest where race and class intersect—nearly 60 percent of all young black men born between 1965 and 1969 who dropped out of high school went to prison at least once on a felony conviction before they turned thirty-five. And the incarceration rate for this group—black male high school dropouts—is nearly fifty times the national average.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

A polar prayer?

James Morton: A remedy for the wrongfully convicted

National Post: http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/11/20/james-morton-a-remedy-for-the-wrongfully-convicted.aspx

James Morton: A remedy for the wrongfully convicted

In 1991, three Saskatchewan children made grotesque allegations of sexual abuse against their foster parents, Anita and Dale Klassen. 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. Many years later, a Saskatchewan judge would conclude, in retrospect, that the children’s allegations were so unbelievable as to be patently absurd.

The allegations were, in fact, entirely false. But, before the accusations collapsed, the Klassens and some of their family were prosecuted and convicted. The convictions were even 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, that same Supreme Court unanimously held the claim could not succeed.

How can this be?

Readers might 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 changing that.

Crown attorneys, the people who prosecute crime, already can be personally sued for certain kinds of particularly outrageous prosecution. But to succeed in such a claim, a plaintiff must show that the Crown attorney acted maliciously. This is why the Supreme Court sided with the Klassens’ prosecutors: however grave the underlying injustice, the high court did not find evidence of prosecutorial malice.
...
But when people are convicted, and then vindicated, there should be some remedy.
Wrongful convictions, while rare, do occur. 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 involve a wrongful conviction. But they don’t all necessarily involve 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 a non-malicious Crown attorney who happened to prosecute the wrongfully accused, it does make sense for compensation to be available on a transparent and principled basis from government more generally.

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.

Just ask the Klassens.

National Post

James Morton is a lawyer with Steinberg Morton Hope and Israel LLP, a past president of the Ontario Bar Assocation and teaches evidence at Osgoode Hall Law School.

Very cute video of the tiger cub

http://blog.br-online.de/eisbaer/

Informant privilege

Yesterday's Supreme Court of Canada decision in R. v. Basi, 2009 SCC 52 makes clear that the informant privilege will continue to be enforced in Canada.  A summary follows:

 

The accused were charged with corruption, fraud, and breach of trust under the Criminal Code.  Given that some material produced on an application for disclosure had been blacked out, defence counsel applied  for "unredacted" copies.  The Crown objected, claiming informer privilege.  The Crown contended that the claim could not be properly established without live testimony by a police officer, and insisted on an in camera and ex parte hearing.  Defence counsel objected to the ex parte nature of the hearing and applied for permission to attend, without their clients.  When the trial judge held that defence counsel could participate fully in the in camera hearing so long as they were subject to a court order and undertakings, the Crown invoked s. 37 of the Canada Evidence Act ("CEA"), which provides for non‑disclosure where a public interest is at stake.  The trial judge affirmed her previous decision, and the Court of Appeal, in a majority decision, dismissed the Crown's appeal made pursuant to s. 37.1 CEA and upheld the trial judge's ruling.  The Crown then appealed to this Court on the issue of whether the trial judge erred in permitting defence counsel to attend the in camera hearing, and the accused cross‑appealed on the issue of whether the Court of Appeal had jurisdiction to hear the Crown's appeal.

 

While everyone charged with a criminal offence in Canada is constitutionally entitled to full and timely disclosure of all relevant material under the control of the Crown, the entitlement to disclosure is neither absolute nor unlimited.  Where informer privilege has been claimed by the Crown, an accused's constitutional right to make full answer and defence does not alone trigger an exception to the privilege.  It is only where innocence is at stake that the privilege yields and information tending to reveal the identity of the informant can be disclosed.  The strictness of the privilege is not relaxed when s. 37 CEA is invoked to protect it, and the privilege is not amenable to the sort of public interest balancing contemplated by s. 37(5).  No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies.  It follows that the trial judge erred in permitting defence counsel to attend the in camera hearing to determine the existence of an informer privilege where, in the course of the hearing, information tending to reveal the identity of the putative informer is bound to be revealed.  However, where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected.  And, even then, only to the necessary extent.  The trial judge will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings.  Lastly, s. 650 of the Criminal Code applies only to the presence of the accused at trial and has no application to the trial judge's decision under s. 37 CEA.  An application under s. 37 is a discrete proceeding, separate from and only ancillary to the criminal trial, and is therefore not caught by s. 650.

 

The trial judge's decision amounted to a "disclosure order" within the meaning of s. 37.1 CEA and the Court of Appeal had jurisdiction to hear the Crown's appeal.  The inevitable result of the trial judge's decision was to require the Crown to reveal to defence counsel information over which the informer privilege had been claimed.  As defence counsel are outside the "circle of privilege", permitting them access to this information — even subject to court orders and undertakings — constitutes inevitable disclosure of the information.  While the trial judge sought to restrict this disclosure of privileged information to defence counsel by prohibiting them from sharing it with any one else, her decision constituted an order of disclosure nonetheless.  Furthermore, the trial judge clearly stated that her decision was subject to immediate appeal under the CEA.

Conservatives shoot the messenger over torture allegations

http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/11/19/don-martin-tory-attacks-only-boost-diplomat-s-credibility.aspx

Don Martin, Canadian politics, afghanistan

 

OTTAWA — In an organized smackdown rarely seen in Ottawa, the government turned inward on Thursday to attack a new enemy in its Afghanistan conflict — senior Washington embassy intelligence officer Richard Colvin.

After 15 years of steadily rising through the foreign service ranks, Mr. Colvin now stands accused of being a Taliban stooge, someone so easily duped by torture complaints that he shredded his diplomatic reputation by passing along their accusations.

Mr. Colvin became fodder for such accusations the minute he told MPs that a full year of warnings about detainee torture had been ignored at the highest levels of the military and public service.

He even hinted at tentative, but unproven, connections to the government itself. That made his testimony very, very dangerous — and that's why the Conservatives have launched a campaign to discredit Mr. Colvin.

But it faces a big problem. Every action by this government to date has only enhanced the diplomat's credibility
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Meow

I just bought some beaujolais nouveau

Released on the third Thursday of November, France's beaujolais nouveau is the first wine of the season in the northern hemisphere. It's vinified quickly and gently, turning out a light-bodied, unserious, very fruity red wine from the gamay grape that's intended for drinking without navel contemplation.

It's all over the wine stores now and I had a glass for lunch -- and may have some more for dinner!!!

Hallo

UDI for Palestine

Palestinian leaders are toying with the idea of a unilateral declaration of independence – proclaiming a sovereignty that, in practice, they already have.

This development is hardly surprising. In early August, President Mahmoud Abbas (Abu Mazen) proposed a unilateral declaration of independence as one of two Palestinian fall-back positions in the event final status negotiations for a two-state solution fail (his other fall-back option is a one-state solution).

Israel has a need for security and peace. Palestinians, as much as Jews, have aspirations as a people to a State. The resolution of the Israeli-Palestinian dispute will come through a two-state solution -- the issue is not the answer to the problem but the road map to get this.

The Palestinian leadership has a de facto state at present. The Palestinian Authority holds elections, runs a court system, an education system and has armed police. As a factual matter there is a "state-like" apparatus in place. On the surface changing that de facto into a de jure state by officially declaring independence and seeking United Nations and other international recognition merely recognises the reality on the ground.

Of course, it is not certain the world would recognise Palestinian UDI -- it did not, after all, in 1988 when the Palestinian leadership-in-exile declared a state. But in 1988 there was not an established geographic area under control of the Palestinian Authority.

A newly-declared Palestinian state would almost certainly claim the 1967 green line boundary. Israel will have very serious problems with those proposed borders; security concerns will be the least of the difficulties. Some accommodation will have to be made -- this raises the issue of how to deal with settlements that exist today and the fact that Palestine claims territory it does not and never has held. The border issue poses significant problems. But negotiating borders between states is hardly something without historical precedent.

UDI could perhaps resolve the refugee issue. Palestinians would have a State so, perhaps, there would be no further debate over "right of return". Indeed, UDI might reflect Palestinian recognition that the insurmountable refugee problem has to be bypassed.

Israel might be well advised then to offer conditional recognition to a self-declared Palestinian state pending settlement of border and security issues. Solving those issues could be easier on a state-to-state basis, even if the outcome is a stable armistice agreement rather than an elusive end-of-conflict two-state solution.

“Bygone years wrinkle the face, but lack of enthusiasm wrinkles the soul.” - Lucille Ball

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

416 225 2777

Lie detectors

Here is an interesting website dealing with problems with the lie detector: http://antipolygraph.org/ 

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

416 225 2777

Response to ten percenter brouhaha

o The Liberal Party was the party that designated Hamas and Hezbollah as
terrorist organizations in 2002, which made any financing of Hamas and Hezbollah illegal.

o The Canadian delegation unequivocally condemned anti-semitism at Durban
I. Canada then continued its presence at the express request of the Israeli and other governments. Indeed, it is because of the skillful Canadian negotiators that the Israeli government said they could live with the final language, and the Canadian negotiators did not rest until that was the case.

o As Liberal Leader Michael Ignatieff stated in 2006, "Canada is a friend
to Israel. We stand shoulder to shoulder when the going gets tough. Between a terrorist militia and a democratic state, Canada must always side with Israel".
(October 13, 2006)

"It is beyond reckless for political leaders to try to score points by branding one another as anti-Israelto try to win votes by claiming a monopoly on supporting Israel. My party will never claim to be the only genuine defenders of Israel in Canadian politics because I don't want my party to be alone in the defence of Israel. I want all parties to be genuine defenders of Israel".
(Michael Ignatieff, Speech to the Canadian Jewish Congress Plenary, May 31, 2009)

Streetcars good

I have been called on that one -- fair enough, streetcars are not limited to the former Soviet bloc. I guess I was in a grouchy mood!

Why oh why do I insist on taking public transit

Leave aside the crowds, the smells, the rats and the filth -- it's slow and unreliable.

I suppose it's not the TTC's fault that a contractor broke into the tunnel at the St Clair station in Toronto but, hmmm, wasn't it the City of Toronto that hired the contractor to do the work that has made a major Toronto road unusable for years?

So Toronto can keep streetcars -- a quaint form of transit replaced everywhere but the Ex-Soviet Bloc?

Well, a $60 cab ride will do me good... .
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Nasty politics

Very nasty. And dangerous -- an attempt to set intra-national groups apart. All the Parties oppose anti-Semitism. This is not a wedge issue:

Liberals say Tory leaflets suggest the Grits are anti Semitic
Source: The Canadian Press

OTTAWA_ The Liberals say Conservative MPs have distributed taxpayer-funded leaflets which suggest the Grits are anti-Semitic.

They say the pamphlets, which were mailed to households in at least four ridings with large Jewish populations, are full of lies and represent a new low in petty partisanship.

They want an apology.

The leaflets ask voters to choose which federal political leader best represents and defends the values of Canada's Jewish community.

They compare Prime Minister Stephen Harper's strong support for Israel to alleged waffling on the part of the Liberals, including their participation in what the Tories call the ``overtly anti-Semitic'' 2001 Durban conference on racism.

Montreal Liberal MP Irwin Cotler, who attended the United Nations-sponsored conference, says Israel actually asked Canadian representatives to remain at Durban to ``bear witness'' to anti-Semitic rants by some delegations.


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

416 225 2777

Impaired driving amendments apply retrospectively

The Court in R. v. Dineley, 2009 ONCA 814 today held the amendments to s. 258(1) of the Criminal Code operate retrospectively.

The Court held:

[27]         I acknowledge that in support of his argument that Bill C-2 applies prospectively to offences committed on or after July 2, 2008, the respondent relies on Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256 and R. v. Boucher, [2005] 3 S.C.R. 499.  In both cases, when considering the temporal operation of legislation, the Supreme Court of Canada commented on legislation that has the effect of altering the content of an existing common law defence: see Angus at para. 21 and Boucher at para. 22.  In my opinion, however, read in their entirety, neither case stands for the proposition that legislation which merely alters the evidentiary content of a defence, rather than removing or eliminating an existing defence, compels a prospective application
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Osgoode in 1918

This is a stunning shot of Osgoode Hall's reading room at the end of the First War:

Fear not the weapon but the hand that wields it

Ninja Assassin has this as its tag line. The movie looks to be just another fight flick but gosh, what a wonderful line!

I doubt I'll ever be able to use it but wouldn't it be a great phrase for a Cold War thriller?

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

416 225 2777

Court lets sponsors off hook for immigrants

I blogged this from a legal standpoint last week. Still, this story from the Post is interesting:

http://www.nationalpost.com/m/story.html?id=2234418&s=Home

Natalie Alcoba, National Post
Wednesday, Nov. 18, 2009

An Ontario court has ruled in favour of a group of residents who said they should not automatically be made to pay for relatives they sponsored to immigrate to Canada, despite having pledged to do so, in a decision that could have costly implications due to the number of such immigrants who seek social assistance.

The landmark ruling by the Ontario Court of Appeal says the provincial government must consider the circumstances of immigrant sponsors and use "case-by-case discretion" when deciding whether to demand sponsors pay back the money their family members collect.

Appeal court Justices Janet Simmons, S.E. Lang and John Laskin wrote that Canada and Ontario "owe sponsors a duty of procedural fairness when enforcing sponsorship debt."

The ruling hinges on language in the legislation that says sponsorship debt "may be recovered," and which the judges believe grant the government discretion. There is "strong argument that the governments' discretion extends to forgiving sponsorship debt," the judges wrote.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Language in Canada

In the next 15 years, if current trends continue, French will be the third most common language in Canada.

In a Canada with English as the majority language followed by Cantonese and then French, how will Quebec's special status be affected?

Transport minister tried to kill passenger rights bill despite publicly supporting it

This story reflects, perhaps, a reality of politics. Sometimes Ministers have to be publicly support policy that privately they disagree with. As a reality that is as reality but when the duplicity is revealed it looks awful:

http://www.nationalpost.com/news/canada/story.html?id=2229584

Transport minister tried to kill passenger rights bill despite publicly supporting it
Sarah Schmidt, Canwest News Service


OTTAWA -- The federal transport minister's office privately pleaded with Canada's big airlines to step up their lobby campaign to kill a proposed passenger bill of rights even as the minister publicly rallied behind the popular initiative, according to internal documents obtained by Canwest News Service.

The motion by Newfoundland Liberal MP Gerry Byrne, calling on the government to bring forward a bill to entrench a passenger bill of rights into law, passed in the House of Commons unanimously last year, but only after a high-ranking political operative in then-transport minister Lawrence Cannon's office tried to scuttle the whole thing.

The effort to kill the motion is revealed in correspondence sent from the minister's office to top executives and lobbyists at Air Canada, WestJet Airlines and Air Transat. The government intended the block the release of these passages and others in response to an Access to Information request, but the full, uncensored documents were sent to Canwest News Service -- apparently by mistake.

"Gentleman, you're going to have to do some lobbying to stop this motion in its tracks," the minister's senior policy adviser at the time, Paul Fitzgerald, told officials at Canada's largest airlines in March 2008.

"If you don't lobby the Grits and the Block (sic), we're going to find ourselves in a position where we are outvoted by the opposition parties."

Mr. Fitzgerald added, "I don't want us to be forced into regulating passenger protection issues."

A few months later, Mr. Cannon and John Baird, the current transport minister, were among Conservative cabinet ministers and MPs who voted for the motion.

...

At the time of the June 2008 vote, opposition MPs were skeptical the Conservative government would carry through on the motion calling for legislation to strengthen the rights of airline passengers.

San Diego Panda name

Son of Cloud!!!!! Yun Zi!!!!

A pleasant swim

Good for the Prime Minister

I do not often praise Stephen Harper but good for him visiting the Chabad House in Mumbai. It symbolizes Canada's support of religious freedom worldwide.

He visits as the Prime Minister of Canada and that says a lot.

Litigation for Law Clerks

Today was the 9th Annual Civil Litigation for Law Clerks program at the Law Society. Over two hundred clerks came to hear speakers from the judiciary, practice and government. The keynote speaker was the Attorney General of Ontario, the Honourable Chris Bentley (photo on right).

Some days it's hard to get up ...

Ottawa’s fruit-flavoured tobacco bomb

Fascinating story -- and the cynicism it discloses is breathtaking:

Full story here:

http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/11/16/terence-corcoran-ottawa-s-fruit-flavoured-tobacco-bomb.aspx

By Terence Corcoran

At a news conference in mid-election campaign last year, Prime Minister Harper held up flavoured tobacco products and promised that, if relected, the Conservatives would crack down on tobacco that tasted like mints, bubble gum and banana splits. 

...

The result was Bill C-32, officially titled The Cracking Down on Tobacco Marketing Aimed at Youth Act — a misnomer if ever there was one. Today, a year later, what Mr. Harper's Conservatives have delivered instead is an over-the-top law that threatens a global trade war and another bonanza for Canada's already out-of-control contraband cigarette market.

...

The more immediate impact of the law, however, is a ban on the sale in Canada of virtually all brands of U.S. cigarettes. Guess where that leads? The logical result of a ban on legal imports of Marlboros and Winstons is new demand for illegal supplies through the burgeoning Native-dominated contraband market, a tax-evading multi-billion-dollar industry that already accounts for between 33% to 50% of the Canadian cigarette market.

While this may look like another case of unintended consequences run amok, it more likely is part of deliberate scheming by Health Canada officials and others who are consciously using fruit-flavoured smokes to create a global tobacco trade bomb against the U.S. and tobacco industries in Europe, South America and Asia.

There is certainly evidence that Health Canada officials misled Parliament on the trade implications of the flavoured tobacco ban.

...

Were the Tories snookered by Health Canada officials? It looks like it. It also looks like the Prime Minister's original campaign gambit, to protect children from flavoured tobacco, was a ruse. Whether Mr. Harper knew that he was getting into is another matter. The zeal with which his staff pushed the issue suggests they were eager to score political points but less keen on understanding what Health Canada was up to.

The final version of Bill C-32, which became law last month, does much more than ban bubble-gum flavours in tobacco. It bans the use of 5,000 ingredients in making tobacco. Most of the ingredients, however, are not used to turn tobacco into Froot Loops. Many are used, however, to subtly alter the harsher tobaccos used in the making of the kinds of cigarettes smoked all over the world, especially U.S. brands such as Marlboro and European brands such as Gauloise.  

...

Internationally, then, the Harper Tories have created a potential trade war. At home, meanwhile, the ban on the import of cigarettes that contain some of the 5,000 ingredients — including Marboros and Camels — will fuel new contraband demand. Warnings to that effect were issued during the Senate committee hearing. "I can guarantee you that we will lose even more money to the illegal cigarette trade," said Kenneth Kim, general manager of the Ontario Korean Businessmen's Association.

Still, Bill C-32 became law, even though Senator Segal abstained over the trade issue. As a result, Mr. Harper's opportunistic election gimmick, aimed at curbing the use of flavoured tobacco to children, will do nothing to protect children. By further enhancing the power and scope of the contraband market, it will only increase the supply of illegal cigarettes, a prime source of tobacco to the young. At the same time, the government has launched a protectionist scheme that threatens a trade conflict.

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

416 225 2777

Speaker's Corner: Time to kill Mr. Big?

From the Law Times

Full story here:

http://www.lawtimesnews.com/200911165802/Commentary/Speaker-s-Corner-Time-to-kill-Mr-Big

By James Morton | Publication Date: Monday, 16 November 2009

The criminal justice system exists to convict and punish the guilty. But convicting the innocent creates two failures: someone is unjustly punished and, almost as importantly, a criminal goes free.
...
The Kyle Unger case is just the latest example of an innocent man freed after a wrongful conviction and years in prison. He was convicted of the brutal sex slaying of a teenager at a rock concert, a killing that now seems likely to have been committed by someone who told the RCMP Unger was the culprit.

What went wrong? How could the courts convict the wrong man?

There was some mischaracterized physical evidence; for example, a hair supposed to be from Unger wasn't his.

...
What convicted Unger was a confession that, in hindsight, was clearly false and one police obtained in a highly questionable fashion.

That's where the problem arises. Unger's confession was the result of a notorious investigative method, the Mr. Big technique.

In a Mr. Big operation, undercover police pretend to be members of a criminal gang. They befriend a suspect, whom they offer to let join the gang by promising enticements such as money, drugs or sex.

Eventually, they introduce the suspect to the fake head of the supposed gang, Mr. Big. Mr. Big then demands a confession to some serious crime in order to prove the suspect is worthy of joining the gang. That's where the confession comes in. In Unger's case, the technique led to the evidence that convicted him.
...
But such evidence can be unreliable. Almost by definition, the confessions come from desperate people who are bragging. Without some corroboration, such as information that only the real killer would know, they are next to worthless.

Obviously, it's easy to blame people like Unger for making a false confession as he was trying to join a criminal gang. But even if there is some fault on Unger, the Mr. Big technique allows the real criminal to escape justice and, perhaps, to kill again.

Moreover, confessions, no matter how they come about, receive great weight even by educated people. I teach a course on evidence at Osgoode Hall Law School, where almost every year students, on hearing some confessions aren't admissible, say they can't even imagine that they're false. But the effect of letting a jury hear a confession is overwhelming.
...

Police must have the freedom to use a broad range of investigative techniques. Mr. Big is one that can work but only where it leads to hard evidence directly linking the suspect to the crime.

...

James Morton is a lawyer with Steinberg Morton Hope & Israel LLP and a past president of the Ontario Bar Association who teaches evidence at Osgoode Hall Law School.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Furtwangler Lohengrin

Prelude to Act I

Berliner Philharmoniker 1930

http://www.youtube.com/watch?v=bGy8oofiUlk

A remarkable recording -- you forget the sound quality just listening... .

(On the right Furtwangler in Budapest 1937-38)

Flocke standing

Contracting out of the Tenant Protection Act

It is common for residential leases to seek to contract, at least in part, out of the Tenant Protection Act. Today's decision in Montgomery v. Van, 2009 ONCA 808 deals with such a situation.

Regulations under the Tenant Protection Act place the responsibility upon the landlord to ensure that accumulations of ice and snow are removed from exterior common areas. 

The case concerned the validity of a provision in a tenancy agreement that provided that the tenant shall be responsible for snow removal.  The landlord relied on the provision in his defence against the tenant's negligence action.

The tenant commenced an action against a landlord for damages after slipping and falling on the premises.  In her claim, the tenant pleaded that on January 30, 2003 she slipped on ice on the walkway leading to her basement apartment and suffered injury. 

In his defence the landlord pleaded that the tenancy agreement between the parties provided that: "Tenants are responsible for keeping their walkway and stairway clean (including snow removal)." 

Based on this provision, he pleaded further that the tenant's injury was due to her own negligence in that "she failed to keep her walkway in a state of good repair, including free from snow and ice".

The Court considered whether the condition in the lease could stand:

Analysis

[9]              I agree with the observation of the motion judge that the legislation only requires the landlord to "ensure" exterior common areas are free of unsafe accumulations of ice and snow.  It does not prohibit a landlord from satisfying this statutory obligation by retaining others to provide the required services.  Specifically, it does not prohibit a landlord from contracting with a tenant to perform snow removal tasks. 

[10]         This, however, is not enough to conclude as the motion judge did, that the particular provision between the landlord and tenant in this case may be declared to be "not inconsistent" with the Act.  That the Act does not prohibit a landlord from contracting with a tenant for snow removal services does not mean that every provision that addresses snow removal by a tenant is consistent with the Act.  It remains necessary to consider the import of the provision in issue and determine if it creates a contractual obligation to which s. 16 of the Act does not apply.  

[11]         Turning to the provision in this case, I begin by observing that, read literally, it addresses the "responsibility" for snow removal, without specifying any services to be provided by the tenant.  By providing that tenants are "responsible" for snow removal, the clause clashes with the legislation that places that responsibility squarely on the landlord.  Thus, if taken literally, the clause would be inconsistent with the Act and void pursuant to s. 16.

[12]         I recognize, however, that the parties and the motion judge did not interpret the provision literally, but understood it to assign the task of snow removal to tenants.  As the motion judge put it, the provision "indicates that the Tenant will complete snow removal tasks." I continue the analysis on that basis.

[13]         In order to be effective, a clause that provides that a tenant will provide snow removal services must constitute a contractual obligation severable from the tenancy agreement.  The reason such a clause must be able to stand alone as an enforceable contract is because s. 16 of the Act voids provisions of tenancy agreements that are inconsistent with the Act or Regulations.  The Act and Regulations make clear that in the landlord and tenant relationship, the landlord is responsible for keeping the common walkways free of snow and ice.  Therefore, it cannot be a term of the tenancy that the tenant complete snow removal tasks.  

[14]         This does not mean that the landlord cannot contract with the tenant as a service provider to perform snow removal tasks.  It does mean, however, that the clause under which the tenant agrees to provide such services, even if included in the same document as the tenancy agreement, must create a severable contractual obligation.  The severable contractual obligation, while it cannot transfer the landlord's statutory responsibility to ensure maintenance standards are met, may support the landlord's claim over against the tenant in contract.

[15]         In this case, the provision is inextricable from the tenancy agreement.  It does not indicate a definite consideration for the snow removal task separate from the provision of the premises.  As well, a consideration of the context leads me to conclude, it is too indefinite to create an autonomous contract for services.  The tenant lives in one of several basement apartments of a multi-unit residential complex.  The provision vaguely places the task of snow removal "from their walkway and stairway" on tenants jointly.  It does not set out specifically what part of the complex's common walkways this tenant agrees to keep clean and does not stipulate on what schedule she should perform the joint obligation.  The provision fails to define this individual tenant's task clearly enough to create an enforceable contractual obligation.

[16]         Landlords cannot fulfill their statutory duty to ensure the prescribed maintenance standards are met by provisions as ill-defined as this one.  As I see it, this vague provision, even reading it as did the motion judge is nothing more than an impermissible attempt by the landlord to avoid his statutory obligations.  I would conclude the provision is not consistent with the Act and is void.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

When Abraham died

Isaac and Ishmael put aside their differences to give him an honourable burial.

Sometimes what divides us is less than what unites us.

New video of Raspi and Flocke

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

HST is sensible -- but require disclosure of cost savings?

Yes, I know I'll get hatemail on this but we already pay provincial and federal sales taxes. And we need to pay those taxes to fund the government.

(I won't go into the debate over sales tax, value added tax and income tax here -- certainly sales tax is closer to the flat tax beloved by the hard right but that's for another post -- for this post I assume we will continue to have provincial sales taxes and federal value added taxes).

The problem to be solved is that the sales taxes we pay now are uncoordinated and payable on different things in different ways. That creates transaction costs and paperwork. And that costs money.

Moreover, to quote Dwight Duncan, "right now there's a hidden tax -- businesses pay tax on tax on tax".

The Federal Conservatives were right to encourage Ontario to harmonise. (And the $4.3 billion federal sweetener helped).

Harmonising the GST and PST is sensible policy. What critics should do is focus on the mechanics and make it better. For example, perhaps disclosure of costs saved so that the market might require those savings be passed along. That's worth a debate.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Water polo

Water polo is a team water sport. It is the oldest continuous Olympic team sport. The playing team consists of six field players and one goalkeeper with a maximum of six substitutes. The winner of the game is the team that scores more goals. Gameplay involves swimming, players passing the ball while being defended by opponents, and scoring by throwing into a net defended by a goalie. Water polo, therefore, has strong similarities to the land-based game of team handball.

Barack Obama tells Burma to free Aung San Suu Kyi

Well, sort of. Apparently Obama would not speak directly to the representative of Burma's junta so he asked for her release in a voice loud enough to be heard by the representative. That's truth to power!!! Seriously, how do you negotiate with someone you refuse to address?

http://www.telegraph.co.uk/news/worldnews/asia/burmamyanmar/6574954/Barack-Obama-tells-Burma-to-free-Aung-San-Suu-Kyi.html

Barack Obama, US president, has told Burma's junta to free Aung San Suu Kyi, the pro-democracy leader, during an unusual face-to-face meeting.

Mr Obama delivered the strong message during his summit with leaders of 10 south-east Asian nations, which included Thein Sein, the Burmese prime minister.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

National Federation of the Blind Sues Law School Admissions Council for Inaccessible Web Site

There is a distinguished history of vision impaired lawyers. Blind lawyers have repeatedly proven themselves. There is no justification for failing ti make full accommodation for blind lawyers.

LSAC Discriminates Against Blind Law School Applicants

FOR IMMEDIATE RELEASECONTACT:
Chris Danielsen
Director of Public Relations
National Federation of the Blind(410) 659-9314, extension 2330(410) 262-1281 (Cell)cdanielsen@nfb.org

National Federation of the Blind Sues Law School Admissions Council for Inaccessible Web Site and LSAT Preparation Materials Baltimore, Maryland (February 19, 2009):

The National Federation of the Blind, the nation's oldest and largest organisation of blind people; its California affiliate; and a blind law school applicant, Deepa Goraya, filed a lawsuit today against the Law School Admissions Council (LSAC).  The complaint asserts that the LSAC, the body that administers the Law School Admissions Test (which most aspiring law students must take) and provides other services to law schools and law school applicants, violates the California Disabled Persons Act and the Unruh Act because its Web site(www.lsac.org) and LSAT preparation materials are inaccessible to blind law school applicants.  The plaintiffs have attempted to meet with the LSAC to resolve the matter, but the LSAC cancelled a planned meeting. Blind people access Web sites on computers equipped with screen access software that converts what is on the screen into synthesised speech or Braille.  The keyboard is used instead of a mouse to navigate the Web site and click on selected links or buttons. If a Web site is improperly coded,however, blind computer users cannot access the site.  Blind people can also use screen readers to access certain kinds of electronic documents,including those in the popular Portable Document Format (PDF).  However, if PDF files are not properly "tagged," they cannot be used by the blind.  The LSAC Web site contains accessibility barriers including improperly formatted online forms, tables and charts that cannot be read by screen access software, and faulty keyboard navigation support.  These access barriers make it difficult or impossible for blind people to use the Web site to register to take the LSAT, among other things.  The Web site is also the only avenue for people to apply online to any law school accredited by the American Bar Association.  However, blind applicants cannot submit their applications without sighted assistance because the application forms are improperly formatted.  In addition, none of the LSAT practice materials,which include previously administered versions of the test that sighted people can obtain on the LSAC Web site, are available in accessible electronic formats. Dr. Marc Maurer, President of the National Federation of the Blind, said:"The Internet is extremely useful to blind people, as well as our sighted peers, when Web sites are properly formatted according to well-established guidelines; there is no good reason for any Web site offering goods and services to the public to be inaccessible to blind people.  For too long,blind people have experienced barriers to entering the legal profession, despite our long history of demonstrated success in that field.  The National Federation of the Blind will not sit quietly while the LSAC wilfully refuses to provide the same services to blind people seeking admission to law school that it does to the sighted.  The LSAC is engaging in blatant discrimination against the blind and we will not stand for it."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Removal of a decision maker for bias

Removal of an adjudicator, whether a judicial officer or otherwise, for bias is a significant step. Parties often, and usually wrongly, see bias where none exists.

Friday's decision in Ontario Provincial Police v. MacDonald, 2009 ONCA 805 gives a useful summary of the law in this regard:

Test for reasonable apprehension of bias

[41] It has long been established that the removal of an adjudicator is appropriate where a reasonable apprehension of bias has been demonstrated. The applicable legal test was set out in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information... [The] test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude..."

[42] The test contains a two-fold objective element: first, the person considering the alleged bias must be reasonable; and second, the apprehension of bias itself must also be reasonable. The jurisprudence in Canada has, over the years, defined and fleshed out these two elements. For example, the reasonable person is vested with knowledge and understanding of the judicial process and the nature of judging. Further, "[t]he grounds for this apprehension must … be substantial… and the test [will not] be related to the very sensitive… conscience": R. v. S. (R.D.), [1997] 3 S.C.R. 484 at paras. 31 and 37.

[43] The reasonable person also knows and considers the context surrounding the impugned behaviour, including the length and difficulty of the proceedings: Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 at para. 77; Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 ( C.A. ).

[44] There is one final, essential element that informs the analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one: see, for example, R. v. Brown (2003), 64 O.R. (3d) 161 ( C.A. ) at paras. 37-39; Chainauskas Estate v. Reed (2009), 251 O.A.C. 209 ( C.A. ) at para. 12.

Children aware of racism by age nine, study finds

Interesting piece in the Citizen. But it's hardly surprising -- children may lack experience but they are not stupid. And social prejudice is something children will realize very quickly -- the concept of an 'in-group' is not alien to children


Children aware of racism by age nine, study finds              

Shannon Proudfoot
Ottawa Citizen , Nov. 14, 2009

By their ninth birthday, most children are aware of racism and know the stereotypes other people hold about certain groups, according to a new study that belies the idea of innocent, colour-blind childhood.

"Around the second or third grade, you see a majority of kids understanding that people have stereotypes," says Clark McKown, associate executive director of the Rush NeuroBehavioral Center at Rush University in Chicago.

"I think that would be surprising to many people, that by second or third grade a lot of kids get it, they get that there's racism in the world and they understand what it is."

The study wasn't examining children's own prejudices, but rather their "stereotype-consciousness" or awareness of other people's views.

The researchers told 124 children ages five to 11 a story about a place called Kidland where Green and Blue people live and Greens think Blues aren't very smart. The children were asked who they thought a Green child would pick to be their study buddy or spelling team member and why, then asked how Kidland is like the real world, and their answers were examined to determine their awareness of prejudice.

The older the children were, the more likely they were to understand stereotypes, the researchers found. And by Grade 5, almost all of them understood racism and could explain how the bias against Blues in Kidland related to the real world.

Full story here:

http://www.ottawacitizen.com/
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777