Pearl Harbor Day

The attack on Pearl Harbor was an unannounced military strike conducted by the Japanese navy against the United States naval base at Pearl Harbor, Hawaii on the morning of December 7, 1941. It resulted in the United States entry into World War II. The attack was intended as a preventive action to keep the U.S. Pacific Fleet from influencing the war the Empire of Japan was planning in Southeast Asia against Britain and the Netherlands, as well as the U.S. in the Philippines. The attack consisted of two aerial attack waves totaling 353 aircraft, launched from six Japanese aircraft carriers.

The attack sank four U.S. Navy battleships (two of which were raised and returned to service later in the war) and damaged four more. The Japanese also sank or damaged three cruisers, three destroyers, and one minelayer, destroyed 188 aircraft, and caused personnel losses of 2,402 killed and 1,282 wounded. The power station, shipyard, maintenance, and fuel and torpedo storage facilities, as well as the submarine piers and headquarters building (also home of the intelligence section) were not hit. Japanese losses were minimal, with 29 aircraft and five midget submarines lost, and 65 servicemen killed or wounded. One Japanese sailor was captured

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

416 225 2777

Another wrongful conviction

If Canadian courts sometimes wrongly convict then perhaps foreign courts do the same? That's why saying Canadians abroad convicted and sentenced to prison must admit guilt before being allowed to apply to return to Canada is wrong:

http://mobile.thestar.com/mobile/NEWS/article/735273

The Ontario Court of Appeal has exonerated a Trenton woman in the 1996 death of her infant son, acknowledging she was wrongly prosecuted with flawed evidence from notorious pathologist Dr. Charles Smith.

Smith had ruled that Sherry Sherret's four-month old son Joshua had been smothered. She was convicted of infanticide and spent almost a year in jail. Child protection authorities put her older son in foster care and Sherret was later forced to give him up for adoption.

"Fresh evidence has shown she was the victim of a miscarriage of justice," Justice Marc Rosenberg said Monday in overturning her conviction.

This was the second wrongful conviction involving Smith, who has retired and lives in Victoria. William Mullins-Johnson, who had been convicted of murdering his niece on the strength of Smith's evidence, was acquitted last year.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Knut at three

Frankly it doesn't look too yummy but, it's his party...

Corruption charges stayed

Police cases seem to fail frequently.

http://mobile.thestar.com/mobile/NEWS/article/735247 

Corruption charges against Toronto police officers stayed
 
December 7, 2009

Peter Small      

Courts Bureau     

A judge has thrown out corruption charges against retired Det.-Const. William McCormack, son of a former Toronto police chief, and Rick McIntosh, one-time head of the police union.

Superior Court Justice Bonnie Croll stayed the charges against the two men, along with Const. George Kouroudis, on Monday, ruling that their fair trial rights had been breached by excessive delays.

This is the second major Toronto police corruption case in two years thrown out because of Crown delays. In January 2008, Ontario Superior Court Justice Ian Nordheimer stayed charges against six former members of an elite police drug squad. That ruling was overturned on appeal in October.

McCormack, 50, and McIntosh, 55, were charged with soliciting and accepting bribes from nightclub owners in downtown Toronto's Entertainment District. Charges included influence peddling and breach of trust.

The probe began in 2003, when investigators working on Project ORA, a multi-police force probe into drug and mob activity in Greater Toronto, stumbled upon allegations that police officers were allegedly taking bribes from downtown clubs.

Records showed that bars like Peel Pub and Distrikt nightclub, whose owners allegedly paid bribes, had fewer charges than those who refused.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Fisher order accounts subject to assessment

Hamalengwa v. Ontario (Attorney General), 2009 ONCA 859, released online today, makes clear that "Fisher" order accounts are subject to assessment. The Court writes:

[1]              The Attorney General was required under the term of the "Fisher" order to pay the appellants' legal bills.  That order also provided that Legal Aid Ontario would "vet and approve" the bills.  In our view, that provision, obviously introduced into the order because the Attorney General could not review the bills during the criminal prosecution, does not preclude the operation of s. 9 of the Solicitors Act, which contemplates assessments of bills at the request of "third party" payors.  The fact that the appellants' bills may have been vetted and approved by Legal Aid may figure in the assessment, but does not remove this case from the reach of the assessment process.

[2]              We agree with the motion judge that "special circumstances" within the meaning of s. 11 of the Solicitors Act exist in this case.  In particular, the strong comments of the experienced trial judge referred to by the motion judge, and the practical inability of the Attorney General to move for an assessment before the trial was complete constitute "special circumstances".
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Anti-Muslim views grow in Europe

I thank Ahmed Hussen for drawing this to my attention. Ahmed is the President of the Canadian Somali Congress and a great force for bringing people together.

Ideas such as the “integration contracts” like the one proposed by Germany’s integration commissioner last month, headscarf bans and other “legal condescension” do not achieve this purpose, he said. Instead they are “damaging populist activism.”While Muslims are regularly accused of an unwillingness to integrate or engage in dialogue, the majority of European society does “very little” to be hospitable or respectful, he said.

http://www.thelocal.de/national/20091202-23675.html

Jewish leader says Swiss vote shows Europe's growing anti-Muslim views

Published: 2 Dec 09 17:43 CETOnline:
http://www.thelocal.de/national/20091202-23675.html

An official from the German Jewish Council warned on Wednesday that Switzerland’s vote to ban mosques with minarets was an expression of Europe's deep-seated aversion to Islam that was aggravating the integration of Muslims.
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Westerwelle defends Swiss after minaret ban - Politics (5 Dec 09)
Director Fatih Akin boycotts Switzerland after minaret ban - Society (4 Dec 09)
Thou shalt not shop - Analysis & Opinion (3 Dec 09)

The council's general secretary, Stephan Kramer, said that the referendum in the Alpine country on Sunday could be “neither euphemised nor re-interpreted.”“With relative certainty, there's not a single country (in Europe) that doesn’t have more or less similar fears of Muslims and they would have had similar results in a referendum,” he said. Kramer encouraged a more open discussion about how such a referendum on basic rights could even come to a popular vote. The Swiss, Germans and others were not "born to hate foreigners or fundamentally against Muslims," he said, adding Europeans were not engendering an atmosphere of trust.“Those who want integration instead of assimilation, and really means it, must create a climate of mutual respect, acknowledgement and trust,” he said.Ideas such as the “integration contracts” like the one proposed by Germany’s integration commissioner last month, headscarf bans and other “legal condescension” do not achieve this purpose, he said. Instead they are “damaging populist activism.”While Muslims are regularly accused of an unwillingness to integrate or engage in dialogue, the majority of European society does “very little” to be hospitable or respectful, he said. “A climate of trust can only happen if Muslims are naturally entitled to the right to their own religion, culture and language, and cultural diversity is considered to be a benefit and enrichment to our country and not a threat or burden,” Kramer said.

Breakfast with friends

Christ the King Cathedral, Hamilton

A Hamilton landmark.

Iran chokes off Internet on eve of student rallies

The Czech revolution took place without the internet... .

Iran chokes off Internet on eve of student rallies

Government also warns foreign journalists to stay in their offices for the next three days

Ali Akbar Dareini
Tehran— The Associated Press


Former Prime Minister and presidential election candidate Mirhossein Mousavi looks on as he speaks to his supporters at an election campaign at a cultural centre in southern Tehran in this May 30, 2009 file photo.

On the eve of student demonstrations planned for Monday, Iran choked off Internet access and warned journalists working for foreign media to stick to their offices for the next three days.

The measures were aimed at depriving the opposition of its key means of mobilising the masses as Iran's clerical rulers keep a tight lid on dissent. Government opponents are seeking, nonetheless, to get large numbers of demonstrators to turn out Monday and show their movement still has momentum.

Opposition leader Mir Hossein Mousavi threw his support behind the student demonstrations and declared that his movement was is still alive. A statement posted on his Web site said the clerical establishment cannot silence students and was losing legitimacy in the Iranian people's minds.

"A great nation would not stay silent when some confiscate its vote," said Mr. Mousavi, who claims President Mahmoud Ahmadinejad stole the June 12 election victory from him by fraud.

Sudbury Steelworkers Hall decision

R. v. P. (Z.) 2009 ONCJ 580, the Sudbury Steelworkers Hall case is difficult to get. It is not available, yet, on CanLII. While the entire case is worth reading, perhaps the most striking sections follow:

6:2 Protection of the Public

45 Before dealing with this particular sentencing, I will digress to several factors that either detract from or aid the public protection. This will help to put this particular sentence in a proper context.

46 There are two pillars to the protection of the public. The first is public social and economic policy that targets the root causes of crime. It recognizes the need to minimize the people coming into the criminal justice system in the first place. The second pillar is judicial sentencing practices. By far, the first pillar is the most important in protection of the public.

47 So how has Canada done in public policy to target the root causes of crime? Canada lags behind most western democratic countries. A barometer of public policy targeting the root causes of crime is the incarceration rate.

48 At one end of the spectrum are Sweden and other Scandinavian countries with well less than one hundred people in jail for every one hundred thousand population. The United States is at the other end of the spectrum. It has now broken through the one thousand barrier- one thousand people in jail for every one hundred thousand population. For decades, Canada had the second highest incarceration rate, though far behind the United States, in a range of 120 to 150 per one hundred thousand population. Most European countries have incarceration rates lower than Canada.

49 The Scandinavian countries have lower crime rates on a per capita basis, far fewer people in jail on a per capita basis and a better rate of recidivism - compared to Canada. Many European countries outperform Canada.

50 Why such a discrepancy? Because Scandinavia has figured out the best protection of the public is a sound socio-economic policy. It pours funds and resources into the root causes of crime. When people do come into the criminal justice system, including the youth justice system, they do not simply respond with the mantra of jail; they effectively fund rehabilitative services and utilize creative and enlightened rehabilitative strategies. The bottom line is they have the societal and political will to take this approach. They view judicial sentencing practices as supplementary to public policy and understand the inherent limitations of judicial sentences.

51 What about the American experience? They have by far the most punitive sentencing practices in the democratic world. Does this better protect the public? It does not.

52 Take for instance capital punishment. When it came back into use, the prevailing thinking was it was required as a deterrence to prevent murder. It has not worked. The American murder rate is hundreds of percentage points above Canada. The deterrent argument has been an abject failure. Americans no longer pretend to justify capital punish-ment as a deterrent penalty. It is a purely punitive penalty.

53 Most of the people that commit murder in the United States are so hardened because of socio-economic circumstances that the logic of deterrence is lost on them. The American rate of violence is worse than ours. Torontonians may complain about guns and gun violence, however, it does not even come close to the per capita gun violence in the United States. Putting people in jail more frequently and for longer periods of time creates an illusion of safety. The public may be protected while they are in jail but what kind of condition are they in when they get out. The more punitive the sentence is, the worse they will be and the more likely they will continue to commit serious crime.

54 The balance between public policy to target the root causes of crime and judicial sentence practices has been tipped too heavily toward punitive sentence practices. The Americans have failed to target the socio-economic causes of crime.

55 For those in this country who would like to see an American style approach to judicial sentencing practices, which usually involves frequent, harsh and lengthy jail sentences, I can point out that the United States stands alone in the democratic world with their approach. They are roundly criticized by the British common law countries, European countries and Scandinavia. They are considered to be a model for failure. No democratic country in the world is emulating their practices.

56 A further argument against the American approach is the staggering cost to the public treasury of incarcerating one thousand people per one hundred thousand population. On a per capita basis, most American states spend far more than Ontario on their penal and correctional system. This money is going into warehousing people and not enough into rehabilitation. For all practical purposes, California is now broke, contributed greatly by the cost of their prison system. If those in Canada and Ontario want this kind of an incarceration system, which caters to punitive instincts, the cost will be adding billions of dollars annually to the federal and Ontario budget. Is the public pre-pared to pay for this? When you do a cost benefit analysis, how is society better off and protected with this approach?

57 In Canada, we do a far better job of protecting the public from crime than the United States, though we incarcerate people significantly less. However, the United States should not be the standard of measurement. We should be looking at public policy in most other western democratic countries, who perform better than we do.

58 Understanding the causes of crime is not difficult. It starts with poverty. This has a domino impact on other so-cial and psychological factors, such as substance abuse. Twenty years ago this week, Parliament voted unanimously to eliminate child poverty within a decade. It is not come close to happening. The most recent statistics, from 2007, before the recession hit, indicate 9.5% of Canadian children are living in poverty. For a mature civilized democracy, this is a shameful performance. Canada has fared poorly in United Nations and other international reports as to its management of child poverty.

59 Poverty is the first fuel that drives crime. It becomes mixed in with the destabilization of families, widespread substance abuse, child abuse, sexual abuse and domestic violence. If you review the pre-sentence reports before Ca-nadian judges in relation to serious crime, you will see this constellation of socio-economic factors that go to the root causes of crime. Most of today's serious criminals were once victims. They patterned their behaviour after the societal forces that shaped them.

Regarding Christmas trees

As some readers may recall, I am fine with public Christmas trees.

My sense is that public spaces should reflect holidays and so I am also good with the giant public menorahs of Chabad and whatever other symbols of holidays people want to put up.

Always on the basis that the displays are inclusive rather that exclusive.

A good argument for keeping, say, Christmas trees down is that, in specific cases, they may alienate already "at risk" people. So I understand keeping all such displays out of the Toronto Jarvis Street court where young children, many of whom are the victims of violence, are often of Muslim background. For those kids a Christmas tree in the very courthouse where they are taken during a family dispute where they may lose a parent might not have an inclusive effect but quite the opposite.

For what it's worth, Old City Hall in Toronto is full of Christmas trees... .

Yun Zi’s 14th weekly exam

http://www.sandiegozoo.org/videos/?bcpid=4552241001&bclid=5172095001&bctid=54241016001

Meow!

Ministry of Defence ends UFO team

I noticed the British MoD cut its UFO group after fifty years of funding. The MoD noted they saw no defence threats from UFOs and, in any event, had no capacity to repel invaders from Outer Space.

Perhaps the MoD has not been watching the more recent Dr Who series? Or attending UFO conferences in Vegas?

Aliens are already here and they have actually infiltrated the highest levels of government -- hmmn, perhaps that's why funding is cut off???

A small story that suggests a lot -- cutting an innovative rehabilitation program for women convicts

This is an odd story that (perhaps) offers insight into the attitude to prison of the current administration. (Make prison as awful as possible to discourage offenders). If so, the approach is stunningly self defeating because offenders who come out of prison with no rehabilitation or life skills are ... just going to commit more crime and go right back in.


Correctional Service Canada has pulled the plug on a unique dog training program at the women's prison in Truro, leaving its outgoing director distraught for the inmates, the dogs and those who benefit from the highly trained animals.

The Pawsitive Directions Canine Program at the federal Nova Institute for Women had jailed women caring for and teaching obedience to shelter dogs who were eventually paired with disabled clients.

Heather Logan, who has run the program under contract with the prison since 1996, said she told administrators in mid-November that she would retire in six weeks, but her trained replacement was in place to keep the program going.
Instead, she was shocked to learn that administrators had axed the program, lauded for its success in helping inmates learn highly marketable skills and for rescuing dogs from shelters so that the animals can help those with special needs.

"This is devastating," Ms. Logan said Thursday from her home in Upper Stewiacke.

"There are woman and dogs and children being hurt by this action."

For rest of the article:

http://thechronicleherald.ca/NovaScotia/1155894.html
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Ken Dryden

Before the Montreal Boston game tonight said today's Canadiens must make their own story.

He said it was time to stop thinking of the glories of the past hundred years. The future is to be made by today's players. History is to be remembered and honoured but not to be a substitute for what must be done now.

Good advice for the Canadiens and, perhaps, for others.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

More subway chaos

So, after a minor assault at Old City Hall I crawl to the subway expected the Red Rocket to shoot me north in the comfort and style one expects in the mid-Twentieth Century (hey, I am an old fashioned guy so that's A OK by me).

But ...

"Attention Subway patrons. Due to a personal injury accident at track level at the Bloor Station there is no service between Union Station and Bloor Station."

It's a long walk to Bloor...

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

416 225 2777

Store owner admits lottery fraud

This type of fraud is far more difficult now. But the store owner must have been remarkably thick to think no one would notice his new-found wealth.

Store owner admits lottery fraud

http://m.torontosun.com/News/Toronto-et-GTA/12040061.1

A Toronto convenience store-owner admitted today he ripped off four lottery winners for a $5.75-million jackpot by claiming their winning Lotto 6/49 ticket as his own.

Hafiz Malik, 62, pleaded guilty to fraud over $5,000 in front of Madam Justice Rebecca Shamai for pilfering the lottery ticket, which belonged to Lorraine Teicht, Paul Carlisi and sisters-in-law Silvana Pincivero and Aurora Pincivero, all school staff workers.

Crown attorney Philip Perlmutter said the four victims played the same numbers for several years and Teicht checked their winning June 2004 ticket at Malik's store, Mike Lotto at 1507 Dupont.

Teicht, who bought the ticket in Orillia near her houseboat, handed Malik her ticket and he didn't tell her she was holding a jackpot-winning ticket.

Instead, Malik kept her ticket and then cashed it as his own at Ontario Lottery and Gaming Corporation offices.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Overheard at Old City Hall criminal court

"Hey, you got that all wrong. I got 32 convictions and you can't just come to court late. There are rules and you got to obey them".

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

416 225 2777

Identity issues and reasonable grounds in Supreme Court

Today's Supreme Court decision in R. v. Burke, 2009 SCC 57(Que. C.A., January 19, 2009) (33031) deals with identity issues and reasonable grounds.

"A police officer arrested the accused without a warrant and, following a search incidental to arrest, found a bag of crack in the accused's pocket.  The arresting officer did not investigate the accused's claim that he was the brother of the person sought by the arrest warrant at the time of the arrest.  At the police station, however, the accused was confirmed not to be the person sought by the warrant.  The trial judge acquitted the accused on a charge of possession of cocaine for the purpose of trafficking, finding that, despite the resemblance between the accused and his brother, the officer did not have objective grounds for the arrest because he had not investigated the accused's claim of mistaken identity at the time of the arrest.  She concluded that the arrest was illegal, the subsequent search was unreasonable and excluded the evidence.  The Court of Appeal, in a majority decision, upheld the acquittal.  The issue in this appeal as of right was whether the trial judge erred in law by substituting a more onerous standard for the requirement of reasonable grounds that a peace officer must have in order to make an arrest without warrant pursuant to s. 495 of the Criminal Code." 

The SCC (5:2) dismissed the appeal. 

Justice Fish wrote as follows (at pages 1-2): "The decisive issue on the appeal is whether the trial judge erred in law, as the Crown contends, by substituting a more onerous standard for the requirement of reasonable grounds that a peace officer must have in order to make an arrest without warrant pursuant to s. 495 of the Criminal Code, R.S.C. 1985, c. C-46. We are not persuaded that she did.  Rather, the trial judge concluded that the reasonable grounds required under s. 495 had not been made out in the particular circumstances of this case.  And her conclusion in this regard rests essentially on an appreciation of the evidence before her. The trial judge's reasons, delivered orally, explain in detail why she found the evidence of the arresting officer inconsistent, contradictory and wanting as to the circumstances surrounding the respondent's arrest." 
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Vitus at lunch

This is MY salad -- back off!

Hamilton Mountain Liberal Event

I wasn't there but it looks like a great time!

From today's Post

I'm not sure the salary range figures from the Province are widely understood. They reflect totals paid in a year which may or may not reflect actual annual salaries. Regardless:

Re: Ontario AG, Lawyers Agree To Legal-Aid Talks, Dec 3.

This excellent article on the discussions between the Ontario Attorney-General and criminal defence lawyers needs a small correction. Justices of the Peace have a uniform fixed annual income of $114,070. The Justices of the Peace with higher reported incomes received additional amounts for prior years' unpaid back salary, which made their one-year income appear higher.

James Morton, Toronto.

Reporter Shannon Kari responds:

While the 2009 base salary for Ontario Justices of the Peace is $114,000, more than 200 of them made over $150,000 last year. And the base salary does not include other benefits, such as vacation, allowances, pension and opportunities to earn extra pay.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Tiger cubs

Criticism of non-parties

Sometimes during a trial it seems as if a non-party has acted inappropriately.

The Court may then be required to make findings of fact that hold that non-party up to criticism. Of course, the non-party had no chance to explain what really happened. Accordingly a Court should be very careful about finding wrongdoing by non-parties.

Today's Court of Appeal decision in Butty v. Butty, 2009 ONCA 852 deals with such a situation. A lawyer was strongly criticised by a trial court and that lawyer intervened on appeal. The Court of Appeal cleared the lawyer's reputation and noted the problem could have been avoided had more care been taken at trial:

[20]         As a result of the reasons for judgment, Mr. Jaskot has suffered unwarranted personal and professional embarrassment.

[21]         This unfortunate situation could have been prevented in either of two ways.  First, when the trial judge realized at the end of the trial that there were two parcels of land rather than one, he should have used a procedural remedy to resolve his concern about the matter.  He could have – and should have – invited counsel to make submissions on the matter.  If necessary, the parties could have re-opened their cases, counsel for the respondent could have been given an adjournment to allow her an opportunity to deal with the matter or a mistrial could have been declared.  Second, when the trial judge expressed some concern about the matter at the end of trial, counsel for Ms. Butty should have made it clear to him that she was under no misapprehension that the farm property consisted of two parcels of land.  The suggestion that Mr. Jaskot's theory that the two parcels could only, or would only, be sold as a single piece of farmland in no way explains away these failings.  That theory could have been tested and challenged in the normal fashion.  It does not amount to an attempt to deceive the court into believing there was a single property at issue.

[22]         This court cannot truly repair the damage that Mr. Jaskot has suffered.  Having said that, its comments are intended to serve as an unequivocal statement that there was nothing improper in his conduct in this matter.  We regret what appears, on this record, to be unwarranted judicial criticism levied against him. 
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Suicide attack kills 19 in Somalia

I tried to comment but am at a loss for words. Somali are genuinely a peaceful people. They have been infected by the virus of radical faith. It's hard to say anything more. I have not been in Mogadishu for a long time; it looks like I won't be returning soon... .

Mogadishu, (Somalia): A male suicide bomber dressed as a woman attacked a university graduation ceremony on Thursday in a small part of the capital still under government control, killing up to 19 people, including three Cabinet ministers and three journalists.

The attack was a severe blow to a country long battered by war and underscored the government's tenuous hold on even a small area of the capital.

African Union peacekeeping troops protecting the government wage near daily battles with Islamic militants who hold much of central and southern Somalia and act so brazenly in the capital that the carry out public executions.
"What happened today is a national disaster," said Somali Information Minister Dahir Mohamud Gelle, who confirmed that the ministers for education, higher education and health were killed in the blast.

The ministers for sports and tourism were also wounded in the attack inside the Shamo Hotel, he said.

The assailants hit one of Somalia's most important efforts to extricate itself from anarchy and violence, explaining the presence of so many top government officials. The former medical students among the graduates came from only the second class to receive diplomas from the medical school.
The first class graduated a year ago. Before then, almost two decades has passed since anyone earned a medical degree in Somalia.

In the December 2008 ceremony, held at the same hotel, the graduates proudly hoisted diplomas into the air. This year, there was mayhem as the bomb went off among 43 graduates, their families and officials who were sitting on plastic chairs facing a small stage, leaving the dead and wounded in bloody heaps.

More than 40 people were wounded. Students and doctors were among the dead.
No group immediately claimed responsibility, but suspicion fell upon the militant group al-Shabab, which has ties to al-Qaida, controls much of the country and has carried out past suicide attacks.
"A man who disguised himself as a woman, complete with a veil and a female's shoes, is behind the explosion," Gelle said. "We even have his picture."

Saudi-owned Al-Arabiya television said its Somali cameraman, Hassan Zubeir, died. Two other Somali journalists working for local outlets also died, said Bashir Khalif, a reporter for the Somali government's radio service.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Smiles

Assessment of Wills accounts

The Court of Appeal for Ontario ruled today that the statements of account rendered by the lawyer in Wills are subject to assessment pursuant to the Solicitors Act. The lawyer had submitted his accounts for vetting and approval by LAO pursuant to a Fisher Order. The A-G paid all but the last account and obtained an Order assessing all of the accounts after the completion of the trial. 

Counsel funded or have been funded by a Fisher Order and have rendered accounts in the past 12 months are now subject to this ruling.

Thanks to Lawrence Ben-Eliezer for sharing this.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Internet luring

The Supreme Court decision in R. v. Legare, 2009 SCC 56 was just released.

 

The decision has made it easier to prosecute individuals who attempt to troll the Internet and lure children for sexual purposes. A 7-0 majority ordered a new trial this morning for an Alberta man who allegedly tried to lure a 14-year-old Ontario girl in 2005.

 

The Court said that overly narrow interpretations of Internet luring offences will harm attempts to keep the Internet a safe place for children to roam. It said that offenders need not actually meet or intend to meet their intended victims.

 

A summary follows:

 

A 32 year old Alberta man, who had claimed online to be 17, engaged in two private online "chats" with the complainant, a 12 year old Ontario girl.  Both private chats were sexual in nature, and the second included words uttered by both parties indicating a desire to engage in explicit sexual activity with one another.  During this second chat, the accused asked the complainant to e‑mail her photo to him.  She made two attempts, both in vain.  Later, the accused inquired about her age — "and u r 14".  The complainant replied that she was 13.  The complainant gave the accused her phone number; he, in turn, gave her his postal address.  The accused told the complainant that he would call her to "talk dirty".  He called immediately afterward and, in the second of two conversations, told the complainant — in coarse and explicit language — that he "would love" to perform oral sex on her.  The complainant hung up and there were no further calls.  The accused was subsequently arrested and charged, inter alia, with one count of "luring a child" contrary to s. 172.1(1)(c) of the Criminal Code.  At trial, the accused was acquitted, but the Court of Appeal set aside the acquittal and ordered a new trial, finding that  the trial judge misdirected himself as to the essential elements of the offence.

 

The trial judge, in acquitting the accused, adopted an unduly restrictive construction of s. 172.1(1)(c) of the Criminal Code and misapprehended the essential elements of the offence.  Section 172.1(1)(c) creates an inchoate offence consisting of three elements:  (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offence with respect to the underage person.  The focus of s. 172.1 is on the accused's intention at the time of communication by computer and that intention must be determined subjectively.  While sexually explicit comments may suffice to establish the criminal purpose of the accused, the content of the communication is not necessarily determinative.  The offender need not meet or intend to meet the victim with a view to committing any of the specified secondary offences. 

 

"Facilitating", in this context, includes helping to bring about and making easier or more probable.  Finally, it is neither necessary nor particularly helpful to recast the elements of the offence in terms of the actus reus or mens rea components.  In this unusual context, determining whether each of the essential elements of the offence constitutes all or part of the actus reus or mens rea of s. 172.1(1)(c) is of no assistance in reaching the appropriate verdict.  More particularly, forcibly compartmentalizing the underage requirement of s. 172.1(1)(c) — "a person who is, or who the accused believes is, under the age of 14 years. . ." — as either part of the actus reus or part of the mens rea, may well introduce an element of confusion in respect of both concepts. 

 

Finally, it is neither necessary nor necessarily sufficient for the impugned acts of the accused to be objectively capable of facilitating the commission of the specified secondary offence with respect to the underage person concerned.  What matters is whether the evidence as a whole establishes beyond a reasonable doubt that the accused communicated by computer with an underage person for the purpose of facilitating the commission of a specified secondary offence in respect of that person.

 

Sexual interference, sexual assault and Kienapple

Today’s decision in R. v. FNC (O’Donnell J, OCJ unreported) carefully reviews the law respecting Kienapple as it applies to charges of sexual interference and sexual assault.  The Court finds that sexual interference is the “more serious” charge and, applying Loyer [1978] 2 SCR 631, stays the sexual assault charge.  As these charges are often found together, and as SJM [2009] O.J. 1130 (CA) has limited reasons on the point, the FNC decision is of some importance.  The case will no doubt be on CanLII shortly but if anyone wants a scan right away I am happy to send it.

 

Flying Flocke

Classic Noel Coward

From the Stately Homes of England:

Though our mental equipment may be slight
And we barely distinguish left from right,
We are quite prepared to fight
For our principles,
Though none of us know so far
What they really are.

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

416 225 2777

Loss of evidence prior to criminal trial

Today’s decision in R. v. J.P., 2009 ONCA 850 deals with the situation where relevant evidence goes missing prior to a criminal trial.  Assuming there is no suggestion of spoliation the question then becomes, does the loss of evidence justify a stay of proceedings?  The answer depends on the defendant establishing that the loss of the evidence has had the effect of prejudicing the defendant – absent such proof, there should be no stay.  The Court writes:

[4]              The loss of a portion of the complainant’s evidence occurred due to an unexpected and unforeseeable defect in one of the tapes used to record the evidence from the preliminary inquiry. There is no suggestion that the missing tape was deliberately destroyed or tampered with or altered in any fashion; nor is it suggested that the defect in question was part of a larger systemic problem that the responsible ministry was aware of but chose to ignore. As the trial judge himself observed, “it is a rare happening where preliminary hearing transcript evidence is lost.”

[5]              In the circumstances, the missing transcript cannot reasonably be attributed to “unacceptable negligence” on the part of the Crown. On the contrary, the Crown provided a satisfactory explanation for its loss.

[6]              That being so, in order to establish a breach of his right to make full answer and defence under s. 7, the respondent had to do more than show that the lost transcript was, in the words of the trial judge, “likely relevant and material” or “logically probative to issues at trial, including the credibility and reliability of the complainant.”  

[7]              An accused’s right to make full answer and defence is not automatically breached every time he or she is deprived of relevant information. Rather, as the Supreme Court stated in R. v. La (1997), 116 C.C.C. (3d) 97 at paras. 24 and 25, where the Crown has met its duty of explaining the circumstances of the loss of any missing evidence, in order to make out a breach of s. 7 on the ground of lost evidence, “the accused must establish actual prejudice to his or her right to make full answer and defence.”

[8]              That is not an easy task. Sopinka J. made this clear at para. 24 of La where he stated:

Thus, in extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial. In such circumstances, a stay may be the appropriate remedy...

[9]              At para. 27 of the same decision, Sopinka J. made it equally clear that in most cases, the decision whether to stay the proceedings should be left to the end of the trial after all of the evidence has been heard. This court made the same point in R. v. Bero (2000), 151 C.C.C. (3d) 545 at para. 18.

 

Vitus -- a video

http://www.youtube.com/watch?v=0aApc1hYNZk&feature=player_embedded

A grand old bear!

Speaking at West Point can define a presidency

This is a war we have troops in.

Speaking at West Point can define a presidency

FDR, Reagan and Bush have used academy setting

Agence France-Presse
Wednesday, Dec. 2, 2009

WASHINGTON - In June 2002 George W. Bush delivered a speech at West Point military academy that came to define his presidency. With the Afghan war still in the backdrop, President Barack Obama last night followed in his footsteps.

Mr. Bush travelled to the New York state institution months after the Sept. 11, 2001 attacks to warn of a hard road ahead in the "war on terror" and to expound what would come to be known as the "Bush Doctrine" of preventive war.

"Our security will require all Americans to be forward-looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives," he told the academy more than seven years ago.

Ye s t e r d ay, Mr. Ob a m a travelled to West Point for a speech that may also come to define his presidency.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Ah, but to know when the tide is in our favour...

There is a tide in the affairs of men.
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat,
And we must take the current when it serves,
Or lose our ventures.

Teeth

New Zealand's only native land mammals were three species of bat

Now that's a curious factoid. The only land mammals in New Zealand were those able to fly there (or be carried there by humans).
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

Zelig

Reading the news I saw someone described a Zelig-est. I thought to track that down to a favourite movie -- Zelig.

The plot is simplicity itself -- a man who blends everywhere but somehow remains apart.

Set in the 1920s and 1930s, the film focuses on Leonard Zelig, a nondescript man who has the ability to transform his appearance to that of the people who surround him. He is observed at a party by F. Scott Fitzgerald, who notices that while mingling with the guests, Zelig sings the praises of the affluent classes in a refined, snobbish accent, but while in the kitchen with the servants, he seethes with rage at the fat cats in a thick proletarian voice. He soon gains international fame as a "human chameleon".

Towards the end of the film Zelig is in Germany working with the Nazis before the outbreak of World War II. He comes home to America and wins Dr. Eudora Fletcher (Mia Farrow).

Surely the metaphor is obvious?

The face of Mohammed

Surfing the web I ran across a series of sites that showed picture of scenes in the life of Mohammed. In order to comply with the prohibition against actually depicting Mohammed, the artists showed him with his face blank or hidden.

This reminded me of a (now closed) synagogue in Hamilton known as the "bird-synagogue" because it had stain glass depictions of bible stories where the characters (Moses etc) were all birds so as to avoid any suggestion of making images that could be worshiped.

In this illustration we see the Prophet Mohammed (Turkish, 16th Century, painting on paper. Museum of Fine Arts, Boston) in very long sleeves so as to avoid even showing his hands.

A necklace???

Breach of historic standard of care?

Today's important decision in Berendsen v. Ontario, 2009 ONCA 845 makes clear that the standard of care in historical tort cases must be established by evidence of the what was known at the time of the alleged tort. Evidence is required and the knowledge of today cannot be used to assess the conduct of the past.

The Court writes:

(b) Breach of the standard of care?

[58] A defendant's conduct breaches the standard of care, or in ordinary parlance, is negligent, if it creates an unreasonable risk of harm. In the words of McLachlin C.J. in Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 at para. 6: "Liability for negligence requires breach of a duty of care arising from a reasonably foreseeable risk of harm to one person, created by the act of omission of another".

[59] From this quote, it is evident that foreseeability of harm is a crucial component of a breach of the standard of care. To succeed in showing a breach of the standard of care in this case, the Berendsens had to show that, back in the 1960s when Ontario deposited asphalt and concrete waste on the dairy farm, harm to the cattle from this buried waste material was a reasonably foreseeable risk. It is not necessary that the precise way the harm occurred be foreseen; but the risk of harm in a general way from drinking or not drinking the water had to be reasonably foreseeable to impose liability.

...

[61] For virtually every other finding that the trial judge made in her lengthy and detailed reasons, she cited the supporting evidence that she relied on. In contrast, her finding on foreseeability of harm is stated baldly without any supporting evidence. Instead, the trial judge wrote at para. 262: "There is also no evidence to suggest potential harmful effects of waste roadbed materials buried on the dairy farm next to a water course and close to the barn, residence and well would not be known to a reasonably prudent servant or agent of the Crown in mid 1960s."

[62] Of course, the Berendsens had the onus of showing that harm to their cattle from the deposit of waste material on the dairy farm was a reasonably foreseeable risk. And foreseeability of harm had to be assessed when the conduct in issue occurred, in the 1960s, not today when we know so much more about the risks of toxicity from waste material.

...

[64] What was needed was evidence of foreseeability of harm. Yet despite the voluminous amount of expert evidence called by the Berendsens, not one of their many experts testified about the known or likely harmful effects of buried waste material in the 1960s. The Berendsens conceded as much because, both in their factum and in oral argument, the only evidence on foreseeability of harm that they could point to was the evidence of Ontario's expert, Dave McLaughlin, of the Ministry of the Environment.

Pete Doherty sings Nazi anthem on stage in Munich

Pete Doherty sings Nazi anthem on stage in Munich...claims to have been just trying to fit in

Pete Doherty is either really dumb, or really unlucky, or both.

The hapless British rocker -- who is best known this side of the Atlantic for being a junkie who magically, somehow managed to date Kate Moss for a while -- had his set cut short in Germany after he made the very serious faux pas of singing the first verse of 'Das Deutschlandlied' on stage at the on3 festival in Munich. He was reportedly booed while singing the lyrics that are closely associated with the Nazi Party.

Diving