It is time we realised that crimes without victims are like debts without creditors

Sam Harris

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

416 225 2777

Email collapse

I get hundreds of emails a week -- sometimes a day. So when I get, say, 5 I know email is down.

Such an amazing feeling of being disconnected!

Wonderful!!!!!

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

416 225 2777

“It is difficult to get a man to understand something, when his salary depends upon his not understanding it!”— Upton Sinclair, from I, Candidate for Governor: And How I Got Licked (1935)

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

416 225 2777

To move from mediocrity to success, be sure to devote the same effort to the last 5% of the project as you did to the first 5%

A nice quotation from a reader... .

Friday (ok Saturday) Night's Alright (For Fighting)

Walmart wins in SCC

The decision in Desbiens v. Wal-Mart Canada Corp., 2009 SCC 55 and the companion decision in Plourde v. Wal-Mart Canada Corp., 2009 SCC 54 was released today.

 

The workers of the Wal-Mart store at Jonquière chose to bargain collectively through their union, which had been certified by the Commission des relations du travail ("CRT") in August 2004.  After unsuccessful negotiations, the Minister of Labour appointed an arbitrator to resolve the outstanding differences.  On the same day, Wal-Mart announced closure of the store. Three employees filed a complaint under s. 16 of the Quebec Labour Code claiming that they lost their employment because of the unionization of the store. They sought an order under s. 15 of the Code that they be reinstated in their jobs.  The CRT was not satisfied that the store closure was definitive and allowed the employees' complaint, holding that Wal-Mart had failed to discharge its onus under s. 17 of the Code that the dismissals were for good and sufficient reason. It reserved its jurisdiction to determine the appropriate remedies.  The Superior Court dismissed Wal-Mart's application for judicial review, but the Court of Appeal overturned that decision.

 

The Supreme Court, with strong dissents, dismissed the appeal.

 

Per McLachlin C.J. and Binnie, Deschamps, Fish, Charron and Rothstein JJ.:  The Court of Appeal erred in quashing the CRT decision. On the evidence, the finding that Wal-Mart had failed to rebut the s. 17 presumption was a determination well within the range of reasonable outcomes open to the CRT.  However, in the companion case Plourde v. Wal-Mart Canada Corp., which dealt with the same factual issue, the CRT heard additional evidence which persuaded it that Wal-Mart had in fact terminated the lease of the building at the Jonquière location and concluded that Wal-Mart had successfully rebutted the s. 17 presumption by proof of a real and definitive business closure.  None of the parties now contends that Wal-Mart retains its option to re-open the Jonquière store.  As a practical matter it would be a waste of the parties' time and money to remit this case to the CRT to be dealt with on the basis of the Plourde decision.  The outcome would not be in doubt. The Jonquière store is closed and there is no possibility of reinstatement of the employees.  The substratum of their s. 15 claim no longer exist.

 

Per LeBel, Abella and Cromwell JJ. (dissenting): The employees' complaints should be returned to the CRT to be heard on the merits.  As stated in Plourde v. Wal-Mart Canada Corp., a dismissal can be scrutinized for anti-union animus under ss. 15 to 19 of the Labour Code.  The dismissals in this case ought therefore to be re-evaluated to determine whether there was an anti-union motivation.

'No more money' for lawyers

Justice funding issues:

'No more money' for lawyers:

A-G Threat to expand legal aid boycott has Bentley talking tough

By ANTONELLA ARTUSO,

QUEEN'S PARK BUREAU CHIEF

Last Updated: 27th November 2009, 2:44am

A tough-talking attorney general says he's prepared to take "whatever actions are required" as criminal defence lawyers consider expanding their boycott of legal aid.

Attorney General Chris Bentley would not rule in or out the possibility that the province could go to a public defender model where salaried government lawyers represent clients too poor to pay for a private sector attorney.

"We'll take whatever steps are required," Bentley said yesterday. "We're in a position where we have no more money."

Frank Addario, president of the Criminal Lawyers' Association, said in an e-mail yesterday that he will address the on-going boycott of legal aid at an annual conference today, but would not confirm reports that the campaign will be stepped up.

"We don't want to expand the boycott, we want to solve the problem," he said. "We are motivated to do that."Hundreds of the province's criminal lawyers have been boycotting the legal aid system to force the Ontario government to address what they say is two decades of chronic underfunding."We are reluctant participants in this fight," Addario said. "We spent 22 years working quietly with government to fix the system. That didn't work. I am hopeful that we will find a solution soon."

Bentley said the province has put $150 million on the table but insists there's no more money to be squeezed out of a government that's running a $24.7 billion deficit this year. A 20% increase in funding should be enough to ensure that lawyers are well compensated for their work, he suggested.

"Boy, there's a lot of money there," Bentley said. "You would have thought people would want to see what that would mean for them before taking actions which might force the government to take other steps."I think I'll just leave it at that," he said.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Brenda Martin never admitted her guilt

"Martin was convicted of money laundering by a Mexican judge last week and sentenced to five years in prison in Mexico without parole, as well as a fine of 35,800 pesos, or around $3,500.
Last week, the Conservative government paid the fine in order to expedite her transfer.
Jason Kenney, the secretary of state for multiculturalism, travelled to the prison near Guadalajara last week to discuss arrangements for her transfer."

Remember this story from May 2008?

Brenda Martin never admitted her guilt -- under the new rule for prison transfer that Canadian would still be in a Mexican prison

Otto Klemperer: Prelude to Richard Wagner's Lohengrin

http://www.youtube.com/watch?v=7prUFflX0_E&feature=related

Ce prélude est d'une extraodinaire et insurpassable beauté. Il est pour moi source d'une émotion qu'aucune autre musique ne provoque. Wagner était vraiment un compositeur génial.

Keeping Canadians out of Canada

Canadians abroad are convicted of a crime, seek to come home and now the Justice Minister asks, tonight on CFRB radio, "Do we want this person?"

Hello???

These people are Canadians and did not lose that status by being convicted of a crime by a foreign court.

"We" don't get to pick and choose who "we" want. A Canadian is a Canadian. We do not have different classes of Canadian.

The proudest statement a Roman could make was "civis Romanus sum" (I am a Roman citizen).

By stating "civis Romanus sum" the Roman claimed the privileges granted to Roman citizens. So Paul of Tarsus, under trial and appealing to the Emperor, claimed his right as a citizen to be tried in Rome, and the judicial process was suspended until he was carried to the capital city (Acts 22, 27).

Lord Palmerston recalled the Roman phrase and said, in 1850, that every British citizen in the world should be protected by the British Empire like a Roman citizen abroad by the Roman Empire. He said a British subject ought everywhere to be protected by the strong arm of the British government against injustice and wrong; he would never allow Britain to abandon her subjects to a foreign power. Lord Palmerston enforced that protection with gunboats.

The dignity of Canada demands that our government respect citizenship and hold it in high esteem. Canadians who break the laws of foreign states deserve punishment yes, but they are Canadians still. They should get at least the protection Queen Victoria gave to her subjects over a hundred and fifty years ago.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Those who say it cannot be done ought not to interrupt those who are doing it... .

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

416 225 2777

Zen and the (Polar Bear) Art of Truck (?) Repair

Conservatives hold steady lead over Liberals: poll

http://www.cbc.ca/canada/story/2009/11/25/ekos-poll025.html


The federal Conservatives continue to hold a 10-point lead — stable for nearly one month — over the Liberals, a new EKOS poll suggests.

The poll, commissioned by the CBC and released Thursday, suggests the Conservatives would have the support of 36.9 per cent of eligible voters and the Liberals 27.1 per cent.

The NDP would follow at 15.3 per cent, the Green Party at 11.4 per cent and the Bloc Québécois at 9.4 per cent, according to the poll.

While the Conservatives continued to hold the lead in voter support, approval of the government's direction dropped among those polled in the last week.

EKOS conducted the poll between Nov. 11 and Nov. 24.

Division of Powers

It is rare for Constitutional law division of powers cases to get to the Supreme Court f Canada in modern times.  Today's decision in Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53  is an exception.

 

A summary of the decision follows:

 

Fastfrate is a freight forwarding company with branches across Canada, including the Calgary branch.  Using its own terminal employees and mostly its own local drivers and trucks, one Fastfrate branch picks up and consolidates freight within the originating province, while another branch deconsolidates and delivers the freight in the receiving province.  Fastfrate employees and equipment do not cross provincial boundaries.  Fastfrate contracts with third party trucking and railway companies for the interprovincial carriage of the goods and, except in one unusual case, its employees play no role in the operation of those companies transportation systems.  Fastfrate has an integrated national corporate structure with a head office in Ontario and a team of three regional vice‑presidents who oversee a series of local branch offices throughout Canada, each with a branch manager who is responsible for the day‑to‑day management of the branch.  Employees at the branch offices deal directly with consignors and consignees and manage their own accounts receivable, but decisions regarding rates, asset acquisition and other matters of general profitability are made at the regional or national level.

 

The union representing the Fastrate Calgary employees applied to the Alberta Labour Relations Board for a declaration on whether the labour relations of Fastfrate Calgary are subject to provincial or federal regulation.  This application was in response to an earlier application by another union to be certified by the Canadian Industrial Relations Board as the regional bargaining unit of Fastfrate employees for Alberta, Saskatchewan and Manitoba.  The Board held that Fastfrate Calgary was subject to federal jurisdiction because it was part of a single, indivisible, interprovincial freight transportation undertaking.  The reviewing judge quashed the Board's decision and reaffirmed the existing provincial certification order, holding that absent any physical involvement in the interprovincial carriage of goods, there was "insufficient reason to displace the dominant presumption of provincial jurisdiction over labour relations".  The Court of Appeal, in a majority decision, restored the Board's decision.

 

Per LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ.:  The employees of Fastfrate Calgary are subject to provincial jurisdiction.  The question whether an undertaking, service or business is a federal one depends on the nature of its operations.  An undertaking that performs consolidation and deconsolidation and local pickup and delivery services does not become an interprovincial undertaking simply because it has an integrated national corporate structure and contracts with third party interprovincial carriers.  Fastfrate's operations are entirely intraprovincial.  Neither Fastfrate employees, nor its equipment, are involved in any actual interprovincial transport.  Section 92(10)(a) of the Constitution Act, 1867 and the jurisprudence interpreting it do not contemplate that a mere contractual relationship between a shipper and an interprovincial carrier would qualify Fastfrate as an undertaking connecting the provinces or extending beyond the limits of the province.  Rather, it is the carriers that physically transport the freight interprovincially that constitute federal transportation works and undertakings.  There is no indication that contracting alone can make intraprovincial undertakings subject to federal jurisdiction.  The operational reality of Fastfrate is that it depends on third‑party interprovincial carriers to conduct its business.  Fastfrate remains a shipper.  Its presence at both the originating and terminating ends may mean that it can provide a comprehensive service to its customers, but this does not change the fact that it is still only a shipper using an interprovincial railway or trucking company. 

 

The s. 92(13) provincial head of power over "Property and Civil rights" in the provinces includes labour relations.  By way of exception, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject.  Section 92(10)(a) provides for such an exception to the provincial jurisdiction over "Local Works and Undertakings" by granting to the federal government authority over "Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province".  However, having regard to the historical context of s. 92(10) and its underlying purpose, the preference for diversity of regulatory authority over works and undertakings should be respected, absent a justifiable reason that exceptional federal jurisdiction should apply.

 

In this case, there was no compelling reason to depart from the general rule that works and undertakings are regulated by the provinces.  Section 92(10)(a) focusses specifically on transportation and communication works and undertakings through its examples of "Lines of Steam or other Ships, Railways, Canals, Telegraphs".  The common thread among the enumerated transportation works and undertakings in s. 92(10)(a) is the interprovincial transport of goods or persons.  The enumerated examples are all instruments of or means of facilitating actual transport.  There is no reference to, or implication of, third parties connected to the means of actual transport through contract being subject to federal jurisdiction.  The genus of transportation works and undertakings contemplated in s. 92(10)(a) as "connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province" are those that physically connect the provinces through transport, not those that notionally connect them through contract.  The basket clause "other works and undertakings" is to be read ejusdem generis with the specific examples which precede it.  A requirement for federal jurisdiction over transportation undertakings is that the undertaking itself physically operates or facilitates carriage across interprovincial boundaries.  The line of cases holding that freight forwarders that are not themselves engaged in the interprovincial transport of freight and that simply contract with interprovincial carriers remain subject to provincial jurisdiction should be upheld. 

 

Finally, under s. 92(10)(a), there is a difference between the communications and transportation contexts.  Communications undertakings can operate and provide international and interprovincial communication services from a fixed point whereas transportation, by definition, involves mobility of goods, persons, and transportation equipment across territory.  In the transportation context, it is not possible for an undertaking to operate an interprovincial transportation service where it does not itself perform the interprovincial carriage.  A business can act as an intermediary between interprovincial carriers and consumers who want to access those carriers at a reduced price.  This does not mean that such a business becomes the operator and provider of the interprovincial carriage.  The objective of predictability in the freight‑forwarding context strongly suggests that the industry should be considered holistically and the prior jurisprudence of the courts concerning the industry respected. 

Admissibility and Assessment of Evidence as Questions of Law Alone

Today's decision in R. v. J.M.H., 2009 ONCA 834 is a good source for the basic law regarding how evidence is to be treated for appeal purposes in criminal matters:

                      

[33]         It is well-settled that the admissibility of evidence is a question of law: R. v. B. (G.), [1990] 2 S.C.R. 57, at p. 71.  What appears less clear is the extent to which the assessment of properly admissible evidence in a particular case also raises a question of law alone, thus is cognizable on appeals from acquittal under s. 676(1)(a).

[34]         A misapprehension of evidence may involve a failure to consider evidence relevant to a material issue, a mistake about the substance of the evidence, or a failure to assign proper effect to the evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538.  To determine in any given case whether a particular misapprehension of evidence amounts to an error of law alone is a question that is not entirely unencumbered with difficulty: Morrissey at p. 538.

[35]         The Crown is not entitled to contest an acquittal on the ground that the acquittal is unreasonable or not supported by the evidence.  Sections 686(1)(a)(i) and (ii) clearly distinguish between unreasonable and unsupportable verdicts, on the one hand, and wrong decisions on questions of law, on the other.  Implicit in the dispositive authority enacted by s. 686(1)(a) is the correlative right of a person convicted of an indictable offence to challenge the conviction on the ground of unreasonableness.  No such authority is furnished to the Crown or court on appeals from acquittal: Sunbeam Corp. (Canada) Ltd. v. The Queen, [1969] S.C.R. 221, at pp. 237-238; B. (G.) at pp. 67-68.

[36]         A trial judge must take a legally correct approach to the evidence in a case, lest the final step in the process of adjudication, weighing the evidence, be flawed: B. (G.) at p. 77.  As a necessary corollary to the proposition just stated, an erroneous approach to or treatment of the evidence adduced at trial constitutes legal error: B. (G.) at p. 71; see also Wild v. The Queen, [1971] S.C.R. 101, at pp. 111-112.  It is equally wrong to ground a reasonable doubt on pure conjecture: see Wild at p. 117. Misapprehension or lack of appreciation of relevant evidence only amounts to legal error where there is a self-misdirection by the trial judge on the applicable legal principles: B. (G.) at p. 75.  On appeals from acquittal, it is more difficult to establish with certainty that the error raises a question of law alone because of the Crown's burden of proof and the enhanced importance of examining critically all evidence that may raise a reasonable doubt: B. (G.) at p. 75.

[37]         A trial judge's failure to direct her or himself to all the evidence relevant to a material issue may amount to legal error: B. (G.) at p. 72.  It is also legally wrong for a trial judge to fail to consider individual items of evidence in the context of the evidence as a whole; in other words, it is wrong to use a piecemeal approach, extracting individual items from their evidentiary surroundings: see B. (G.) at p. 77.  It is all the more so where the individual items are subjected to the standard of proof required of the evidence as a whole: see R. v. Morin, [1988] 2 S.C.R. 345, at p. 359. 

[38]         As a general rule, findings of fact made in the absence of any supportive evidence are errors of law: R. v. Schuldt, [1985] 2 S.C.R. 592, at p. 604.  Where the finding of fact made in the absence of evidence is an acquittal, however, an error of law occurs only where there has been a transfer to the accused by law of the burden of proving a particular fact: Schuldt at p. 604.

 

Crashing the White House

A Virginia couple, Michaele and Tareq Salahi, were able to crash a White House dinner and get photos with the Vice-President and others. They didn't get any with the President.

So?

Since when has it been that difficult to get close to any politician other than the uberBoss -- here Obama? Sure there was a security breach but politicians are (in a democracy) there to serve the people so it's hardly a surprise that 'the people' get to see them!

(Besides, I am jealous -- Joe Biden never took a photo with me!!!)
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Attack?

There's a piece in today's Globe suggesting the Liberal Party needs to go on the attack -- pull out and publish dated stories of Harper saying Canada is second rate etc. The piece suggests that being unfair is not a bad thing -- it is a necessary thing.

My thinking is different.

Attack ads are good but only if they actually attack a real policy or problem. Attacking something that isn't there will, at least over time, backfire.

More to the point, perhaps, Canadians want to vote for (and not against) someone. It's not good enough to say "vote for us because they're dreadful and we're the other guys".

The Liberal Party is not defined by opposition to the Conservative Party -- we have, and must continue to have, our own policy and platform so as to give Canadians a reason to vote FOR a Liberal government.

So what does this mean?

Well, legitimate attacks on Conservative actions are right, proper and prudent.

Calling the Conservatives on failure to act on Afghanistan torture is right -- that deals with a real issue that goes to the heart of what Canada's role in the world is.

Calling Conservatives on child care and women's issues is right -- that goes to what Canada is and what Canada is not.

But calling Stephen Harper a fascist is not right -- it's obviously untrue and more it's merely going to make the name caller look silly.

The way forward is to set out good policies (we have many now but they are not always well communicated) and to hold the Conservatives to vigorous and honest scrutiny.

Attack ads can be part of that scrutiny but only where they attack a reality and not a phantom.

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

416 225 2777

Canadian International Peace Project

CIPP is a non-partisan organisation with the goal of promoting Canadian values for people of various cultures to work together domestically and internationally.

Mark Persaud, founder, right, Karen Mock, governor, left

Racial profiling found to have occurred; drugs excluded

Today's decision by Justice Kiteley in R v Ahmed is an unusual case where racial profiling was found to exist and which led to the exclusion of drug evidence.

The Court found that the accused had been stopped while driving because he was a young black man, that he was then subject to an illegal search (which uncovered drugs) and that highway traffic charges to justify the illegal search were trumped up. The Court excluded the evidence.

The decision is not available online but I can send a scan to whoever asks.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

From Full Pundit

http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/11/25/357702.aspx

In an interesting piece in the Ottawa Citizen, James Morton argues that "our Criminal Code is based on a society that no longer exists and assumptions that, if ever true, are clearly false today." Which is to say we're a far more urban, secular and multicultural country than we were when it was developed (though he never really explains why multiculturalism is especially relevant to the problem), and that human beings have since been shown to be pretty much immune to crime-deterrence, and prisons have been shown to be pretty much useless in preventing recidivism. As such, Morton demands a wholesale rewrite, among even bolder ideas: "Should we replace the entire system of adversarial court battle with something closer to a prosecuting magistrate?" Perhaps, he says, these would be suitable topics for the Liberals' upcoming Big Brainy Conference (or whatever it is they're calling it) in Montreal.

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

416 225 2777

Vice President - Organization of the Liberal Party of Canada (Ontario)

I am standing for Vice President - Organization of the Liberal Party of Canada (Ontario). It's a big job, and a big step to take, but I am eager to take on the task.

Je suis un Libéral pendant de nombreuses années.

C’est un temps de renouveau et de transparence. LPC(O) is already a motivating force for liberalism but we can make it even better. We need a more inclusive and efficient Liberal Party and I will work with LPC(O) Leadership to make that come true.

My experience as Deputy Chair of the Council of Presidents, President of the Ontario Bar Association and my work in Thornhill Riding gives me the background to take on the new challenge. I ask for your support in the campaign ahead. Je serais très heureux de parler avec vous!

Opera?

Little guilty

Chris Little has been found guilty of two counts of first-degree murder in the deaths of Julie Crocker and Paula Menendez.

Little was immediately escorted from the Newmarket courtroom.

He was crestfallen by the verdict, his eyes staring at the ground and his shoulders hunched.
Menendez' family held hands when the jury returned after two full days of deliberation. They hugged each other and wept when the guilty verdicts were read aloud inside the hushed courtroom.

Discretion in Costs

Today's decision in Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 830 gives a good illustration of where the Court will reduce costs because the issues under consideration are (reasonably) novel and the costs sought are out of proportion to the matters in dispute.  The Court writes:

 

[4]              With respect to the Region's trial costs, the region seeks costs in the amount of $50,000 inclusive of GST and disbursements.  As compared to the Township's costs and given the length of the trial, the amount sought does not appear to be excessive.  In the context of this case, however, we nonetheless, consider that a reduced amount is more appropriate and would award $18,000 inclusive of GST and disbursements.  We do so for the following reasons.

 

[5]              First, the issues raised with respect to the Region's liability involved an interpretation of s. 4(1) of the Occupier's Liability Act, not previously decided by our court.  The decision clarified the law respecting occupier's liability in a significant respect. 

 

[6]              Second, the total amount of costs the respondents are being asked to pay is significant and would be disproportionate to the amount in issue.  The Township's costs have already been agreed to by the parties and cannot now be changed.  In light of the amounts claimed and the issues involved, it would not be fair and reasonable to require the respondents to pay the full amount being claimed by the Region. 

Uganda, Canada and Gay rights (and wrongs)

Amazing how different the Commonwealth states are. Of course, homosexual conduct was illegal in Canada until Trudeau's revisions of the Criminal Code in the late 1960's. So it's not that long ago Canada was onside with Uganda's pending legal bigotry.

Uganda's anti-gay bill causes Commonwealth uproar

Proposed law that would impose life imprisonment on homosexuals has the potential to divide leaders at summit

Geoffrey York
Johannesburg— From Wednesday's Globe and Mail

The Commonwealth convenes for a summit this week amid growing furor over a proposed law that would impose life imprisonment on homosexuals in Uganda, whose President is chairing the gathering.

The law, proceeding through Uganda's Parliament and supported by some of its top leaders, would imprison anyone who knows of the existence of a gay or lesbian and fails to inform the police within 24 hours. It requires the death penalty for "aggravated homosexuality" – defined as any sexual act between gays or lesbians in which one person has the HIV virus.

The controversy is growing because Ugandan President Yoweri Museveni is the chairman of the Commonwealth Heads of Government Meeting in Trinidad and Tobago, which opens on Friday with Stephen Harper joining the leaders of 52 other countries.

If it is raised at the summit, the issue has the potential to divide Commonwealth leaders, who hold deeply polarized views on homosexuality. A number of Commonwealth countries, including Canada and Britain, have liberal views on the subject, but many African and Caribbean nations are socially conservative and maintain laws on their books that criminalize homosexuality

Yun Zi -- Am I really this cute?

Conservative MP sorry for 'no-good bastards' remark

The comment was pretty outre. Still, he has apologised.

Conservative MP Gerald Keddy is apologizing for referring to some unemployed Haligonians as "no-good bastards."

Keddy, MP for the Nova Scotia riding of South Shore-St. Margaret's, issued a statement Tuesday saying he was sorry for the "insensitive comments."
"In no way did I mean to offend those who have lost their job due to the global recession, nor did I mean to suggest that anyone who is unemployed is not actively looking for employment," he said.
Keddy's office declined to comment further.

In an interview with a local newspaper, Keddy suggested that farmers in the province need migrant labourers because unemployed Nova Scotians don't want the work.

"All those no-good bastards sitting on the sidewalk in Halifax that can't get work," Tuesday's Chronicle Herald quotes Keddy as saying.

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

416 225 2777

Polar Bear

A deer downtown

http://www.thestar.com/videozone/729958

We need 21st-century law

Brilliant article in the Citizen (ok, so I'm boasting, ok!)


We need 21st-century law

http://www.ottawacitizen.com/health/need+21st+century/2258467/story.html

Canada's approach to fighting crime was developed in a rural, ethnically uniform society that no longer exists

By James Morton, Citizen Special
November 24, 2009


In the early 1890s, Canada was a nation of fewer than five million people. Over 70 per cent 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 Sherbrooke, Que., in 2009. More than nine in 10 Canadians lived in rural areas.

The Criminal Code was enacted 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 was never 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 19th century by leading criminal lawyers considering the best law for a rural, ethnically uniform and fundamentally Christian nation. The Criminal Code is very much a piece of the 19th century, assuming that potential offenders are rational actors who would weigh their present actions against the likelihood of future punishment and social disgrace. Deterrence was assumed to work. Prisons were assumed to reform criminals.

Of course, the Canada of 1892 no longer exists. Fewer than one in 20 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 significant social stigma.
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. Drug abuse and psychiatric disorders are such common precursors of crime as to make the concept of the typical criminal as rational actor deterred by punishment absurd.

Prisons do not reform; at best they separate dangerous people from society. 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 people spent in jail, the more likely they were to commit another crime when they got out. Indeed, one conclusion of the study was that prisons serve as schools for crime.

Our Criminal Code is based on a society that no longer exists and assumptions that, if ever true, are clearly false today. Now that does not mean 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 crime really best dealt with by prisons? In some cases -- white collar crime -- probably yes, but in other cases, as with most drug related crime, probably 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; 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?

...

The Conservative party's crime legislation has been supported by the Liberal party. Criminal justice is a major part of the Conservative party's platform. The Liberal party is holding a major "thinkers' conference" in January to consider policy approaches for the future; such a conference in the early 1960s led to the modern Divorce Act and could lead to similar radical readjustments in the criminal law. Changes to the criminal law that were politically unthinkable just a few years ago are being debated in the House and Senate.

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

James Morton is the deputy chair of the Council of Presidents of the Liberal Party of Canada and a past president of the Ontario Bar Association. He is adjunct faculty at Osgoode Hall Law School and practises with Steinberg Morton Hope & Israel LLP. The views expressed are solely his own.

© Copyright (c) The Ottawa Citizen

James Morton in Senate on Bill C-15

http://www.youtube.com/watch?v=mBPcsK526HU

A Nation once again

When boyhood's fire was in my blood
I read of ancient freemen,
For Greece and Rome who bravely stood,
Three hundred men and three men;And then I prayed I yet might see
Our fetters rent in twain,

And Ireland, long a province, be.
A Nation once again!
A Nation once again,
A Nation once again,
And lreland, long a province, be
A Nation once again!

And from that time, through wildest woe,
That hope has shone a far light,
Nor could love's brightest summer glow
Outshine that solemn starlight;
It seemed to watch above my head
In forum, field and fane,
Its angel voice sang round my bed,
A Nation once again!
It whisper'd too, that freedom's ark

And service high and holy,
Would be profaned by feelings dark
And passions vain or lowly;
For, Freedom comes from God's right hand,
And needs a Godly train;
And righteous men must make our land
A Nation once again!

So, as I grew from boy to man,
I bent me to that bidding
My spirit of each selfish plan
And cruel passion ridding;
For, thus I hoped some day to aid,
Oh, can such hope be vain ?
When my dear country shall be made

A Nation once again!

Stunt driving case

A curiosity about the Drutz decision is that it is NOT an appeal decision but rather a trial decision with a Judge sitting at first instance. Normally an OCJ judge would be hearing appeals from a JP. Since in Drutz Justice West was sitting as a trial judge, in theory anyway, the decision is persuasive but not binding on other trial courts. Since Drutz is the second case where an OCJ judge ruled against the stunt driving by speeding regulation nothing much turns on the point but, in theory anyway, Drutz is of lesser impact.

Second court ruling against Ont. stunt driving law won't derail province

November, 23, 2009 - 07:30 pm Maurino, Romina - (THE CANADIAN PRESS)

TORONTO - A second ruling against Ontario's stunt driving law is unlikely to put the brakes on the legislation, although minor tweaking may be needed to ensure it stays in place after it was once again ruled unconstitutional.

Attorney General Chris Bentley defended the law Monday after a Newmarket judge dismissed stunt driving charges against Alexandra Drutz, an 18-year-old woman charged with going 157 kilometres per hour on Highway 407 north of Toronto.

Justice Peter West ruled that having a potential penalty of up to six months in jail for people caught driving 50 kilometres an hour over the posted speed limit violates the Charter of Rights because the law does not allow the accused to present a defence.

But Bentley said the law is an important public safety initiative and will continue to be enforced.

"The law was brought in to save lives," said Bentley.

"It is extremely important that we have safe roads, not only for those who are driving but all of the people who are users of the road."

Bentley said he still considers the 2007 law constitutional, and will fight to uphold it when the Court of Appeal hears an initial case in January.

Toronto criminal lawyer James Morton called West's decision "a real blow to the legislation," and said it will have some influence on the January appeal.

"It's leading to there being a weight of decisions in favour of finding it unconstitutional," said Morton.

"It's going to be difficult to have both of these decisions overturned."

The problem could be fixed with a little tweaking, however, because both rulings took issue with the same provision.

"To fix it all they have to do is remove the availability of a prison term," said Morton.

"And because the prison term is imposed by regulation, they could make the change next Wednesday in cabinet."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Israel, Hamas near swap of prisoners for soldier Sgt. Gilad Schalit

JERUSALEM – Hamas leaders raced to Egypt on Monday amid signs of progress on a deal to swap hundreds of Palestinian prisoners for a captive Israeli soldier held by the Islamic militant group for more than three years. 

The exchange could boost Hamas at the expense of its key rival, Western-backed Palestinian President Mahmoud Abbas, in part because one of the prisoners to be freed is Marwan Barghouti, his main challenger. 

Officials on both sides cautioned against exaggerated optimism that a deal is about to be concluded. Even so, conditions for a deal appear to be ripening on both sides. Israel and Hamas have been locked in on-again, off-again talks since Gaza militants tunneled into Israel and captured Sgt. Gilad Schalit in a 2006 raid that killed two other soldiers.

Until recently, the Egyptian-mediated talks had made little progress.

Israeli Prime Minister Benjamin Netanyahu is eager for a breakthrough. Bringing Schalit home would give him a huge domestic boost and provide an important diplomatic victory at a time when much of the international community is criticizing him for not doing enough to promote peace.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Investment banker awarded damages in wrongful dismissal suit

Investment banker awarded damages in wrongful dismissal suit
Scotia Capital banker terminated after grieving bonus

http://www.investmentexecutive.com/client/en/News/DetailNews.asp?Id=51493&cat=8&IdSection=8&PageMem=&nbNews=&IdPub=

An Ontario Superior Court judge has awarded an investment banker $920,000 in damages in a wrongful dismissal suit.

According to the judgment in the case, Kenneth Mathieson, sued Scotia Capital Inc. after he was dismissed from the firm in May 2007, following 30 years on the job. Scotia did not dismiss him for cause, and they offered him an 18 month severance package, in lieu of notice.

Mathieson rejected the severance, and sued. The firm continued to pay his base salary and most of his benefits for 24 months following his termination, it noted.

The judgment says that while the termination took place in May 2007, the trouble began a few months earlier after Mathieson received a poor performance evaluation and a bonus of just $360,000. From 2000 to 2005, his bonus had fluctuated from a low of approximately $500,000 to a high of approximately $1,100,000, it said.

“Mathieson vigorously grieved his bonus, complaining on a number of occasions to his superiors at Scotia Capital. When these efforts failed, he grieved to senior officials at the Bank of Nova Scotia, the parent corporation that owns Scotia Capital. In addition, he expressed broader concerns about his assignment to the Forest Products Industry group where he felt there were limited opportunities. He raised these broader issues at the same time as his specific concern about his reduced 2006 bonus. It was towards the end of this lengthy process of grievance, about both the 2006 bonus and about his desire for responsibilities outside of Forest Products, that Scotia eventually dismissed Mathieson in May, 2007,” the decision explains.

The case raises three main issues, the court said: whether the 2006 bonus was awarded unfairly and unreasonably and in breach of his employment contract; whether the 18-month notice period offered by Scotia was sufficient; and, whether the firm's conduct over the period preceding the termination gives rise to other damages.

The court ruled that the claim that the bonus was unfair or unreasonable was not proven; but that the appropriate notice period should be considered 24 months. While he was paid his base salary during the notice period, and received $210,000 as a pro rated share of his 2007 bonus, the court found that he is also entitled to some amount for year end bonuses during the 24 month notice period. It set that amount at $460,000 per year, concluding that he is entitled to an additional $920,000 (plus pre-judgment interest), beyond the salary and benefits already paid by Scotia during the period.

It didn't find grounds for damages for the period between the award of the disputed bonus and the dismissal.

Stunt driving

Justice Peter West's careful decision in R v Drutz basically upholds the Raham decision and says the stunt driving through speed offence is unconstitutional.

If anything the decision is more careful than Raham. It will be hard to overturn on appeal.

Drutz is not available online but I have a scan I can email to whoever asks.

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

416 225 2777

Ibbitson in the Globe

John Ibbitson says Liberals don’t stand for anything.

Rubbish.

The Liberal Party has careful and thoughtful policies on all the issues facing Canadians today. What’s more, the Liberal Party is holding a major thinkers conference in January that will call on the best Canadian minds, regardless of Party affiliation, to focus on how Canada can be made better for the long term.

It is true that the Liberal message needs some work in being articulated to Canadians. Making complex policies clear is not easy. That’s a task that Liberals will fulfill in the months ahead.

Canadians will face a real choice in the next election. Stay tuned.

Damn it Jim, you're an actor, not a politician!!!

William Shatner Wants to be Prime Minister of Canada

"The 'Star Trek' actor, who played Captain Kirk in the hit sci-fi TV show, is planning to make a dramatic career change and help lead his native country.

The 77-year-old star said: "My intention is to be Prime Minister of Canada, not Governor General, which is mainly a ceremonial position." This writer suspects Shatner was kidding.

Shatner revealed his lofty ambition in response to a letter from a fan who urged him to put himself forward for the Governor General of Canada.

http://www.stuff.co.nz/stuff/4854183a4560.html

Torture

As readers may recall, I supported, and support, the Canadian mission in Afghanistan.

I am troubled about the government there and its apparent lack of legitimacy.

I am more troubled about torture, especially where it seems commonplace, random and pointless (yes, I know, am I saying uncommon, focussed and goal oriented torture is ok? No -- my point is that here the torture is not just immoral, it's stupid).

And yes, the structures were intially set up by a Liberal government -- but this isn't a partisian issue -- it's an issue going to morality and Liberal or Conservative government, we cannot condone or allow torture.

Ottawa's deny, delay, disparage strategy: So far, it's working

http://www.theglobeandmail.com/news/world/the-governments-deny-delay-disparage-strategy-so-far-its-working/article1373377/

Nearly four years after Canadian troops started waging a tough counterinsurgency in the Taliban heartland of Kandahar, the government continues to deny there has been a single proven instance of torture.

Deny, delay, disparage. For years, government ministers and Canada's top brass have marched in unison, fighting off accusations that turning prisoners over to Afghanistan's ill-trained and brutal security forces consigned them to torture and abuse.

So far, the government's three-pronged counterattack has been largely successful. Nearly four years after Canadian troops started waging a tough counterinsurgency in the Taliban heartland of Kandahar, the government continues to deny there has been a single proven instance of torture. At the same time, it has fought in Federal Court to scuttle an independent inquiry and continues to portray anyone who suggests that transferred detainees are tortured as a gullible lackey of the Taliban.

At every stage, ministers and generals have fired off flat denials only to retreat. Within weeks of deploying to Kandahar in 2006, then-defence-minister Gordon O'Connor confidently proclaimed that if any detainees were abused after handover, the Red Cross would promptly tell Ottawa.

Mr. O'Connor is a former general, presumably schooled in the Geneva Conventions and the role of the Red Cross. Except he was wrong. Only after the Red Cross publicly contradicted him, pointing out that it was prohibited from ratting out the Afghans to the Canadians, did the minister apologize to the House of Commons for misleading it.

Diving into the new week

Whatever the setbacks of the past, let's push ahead!!!

I read Michael Ignatieff

Before I supported Michael Ignatieff I read several of his articles and one of his books. I met him and spoke to others about him. Based on that I supported him (and still do).

His book BLOOD AND BELONGING: JOURNEYS INTO THE NEW NATIONALISM is as good as any. His book stands as a sober reminder that we have not grown beyond our history.

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

416 225 2777

Maria Bun, Karen Mock and Judy Sgro

A very successful townhall was held in Thornhill today dealing with Senior Issues.