Wednesday, April 7, 2010
Pharmacists and Ontario drug reforms
http://tinyurl.com/yhe6jp5
Rob Ferguson
Queen's Park Bureau
The stage is set for a battle between the Ontario government and pharmacists over drug reforms introduced Wednesday by Health Minster Deb Matthews.
The government says Ontarians could see their pharmacists fulfil services that doctors and nurses have mostly performed until now.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
Karzai - Diem?
http://tiny.cc/8j7d5
Prime Minister Stephen Harper has upbraided Afghan President Hamid Karzai for threatening to throw in his lot with the Taliban.
Mr. Karzai’s remarks, part of a growing rift with the West, are objectionable to Canadians at a time when their troops are risking their lives in Afghanistan, the PM indicated.
“I have not seen the context of President Karzai's remarks, but what I have seen reported is completely unacceptable,” Mr. Harper told reporters after making an infrastructure announcement in Mississauga.
“We have men and women who are over there putting their lives on the line to help the population in its struggle against the Taliban.
“These remarks are not helpful and in the context of the dangerous work our people are doing, they are completely unacceptable to Canada and, I'm sure, the same is true for all of our allies.”
Willful blindness -- a defence to murder? We'll know tomorrow
Of course, Admiral Nelson did not disobey any order – he was given discretion to withdraw and chose not to. But the concept of turning a blind eye, or willful blindness was born.
Legally, willful blindness describes a situation where someone seeks to avoid criminal liability by intentionally putting himself in a position where he will be unaware of facts which would render him liable. For example, in a number of cases, persons transporting packages containing illegal drugs have asserted that they never asked what the contents of the packages were, and therefore lacked the requisite intent to break the law. Generally speaking, the defence does not work because willful blindness amounts to knowledge. And knowledge of wrongdoing is a crucial element of an offence.
In Canada a criminal act is defined by two things – the act itself and the intention behind the act. The very same act can be criminal or not depending on the intention; so a taxi driver driving a holdup gang away from a bank has committed no crime if the driver is unaware of a robbery but the very same act is criminal if the driver knows of the robbery and intends to assist in a getaway. If the driver were willfully blind to the knowledge of the robbery but assisted the holdup gang anyway, the driver would be a party to the crime.
The same analysis applies to murder charges. To be guilty of being a party to a murder an accused must assist someone knowing the act of the principal is intended to cause death or at least bodily harm likely to cause death. But what if the person does not know that there an intention not to cause death or bodily hard likely to cause death because they were willfully blind? It would seem sensible that willful blindness would afford no defence.
Tomorrow’s Supreme Court of Canada decision in R. v. Briscoe will answer the question.
Rocco Rossi @ Six Degrees
As the only candidate with real private sector experience, Rocco represents the chance for a break from career politicians who have dominated City Hall. To keep growing, we need you to take the next step.
Here is how you can meet Rocco in person and hear his vision for Toronto.
For a small donation, this is your opportunity to engage with one of Toronto’s freshest new voices on the issues and challenges that matter to you. Supporters who have already donated the maximum permitted are also welcome to attend for free.
Please email gary.gladstone@roccorossi.com for your ticket -- and bring a friend along!
Wednesday April 28, 2010
7:00 p.m. – 9:00 p.m.
Six Degrees Event Venue
2335 Yonge Street
Toronto, OntarioM4P 2C8
$50 (a net cost of $12.50 after the $37.50 rebate)
Please click here to purchase tickets online.
Pardons
Actually, the system is not skewed and pardons are a valuable tool in preventing crime and rehabilitating criminals. It is important to be clear what a pardon actually does. The term 'pardon' suggests a wiping clean -- almost like a religious remission of sin -- in fact, the reality is quite different.
A pardon does not remove a criminal record. The record remains and any entry on a sex offender registry is unaffected. Should someone with a pardon commit another crime the pardon can be revoked. Foreign travel is not made easier -- the United States border authorities pay little attention to a pardon. The only thing a pardon does is allow someone legitimately to say they do not have a criminal conviction.
Being able to say "I have no criminal convictions" is important. Many jobs require a clean record and holding down a job is a significant step towards full rehabilitation. Obtaining a pardon for a serious offence, while largely administrative, requires someone convicted to have stayed out of the criminal system for five full years following the completion of their sentence.
The person seeking a pardon must show five years of "good conduct," which the Criminal Records Act defines as "behaviour that is consistent with and demonstrates a law-abiding lifestyle." Five years is a long time and, broadly put, if someone stays out of trouble for that long they are very likely going to stay out of the system. Very few pardons are revoked because of new offences.
Since 1970, more than 400,000 Canadians have received pardons. Of those, less than one in twenty have had their pardons revoked, indicating that the vast majority of pardon remain crime-free in the community. The pardon system works.
A pardon allows someone who has in fact turned their life around to go beyond their earlier offence and become a productive citizen. The prospect of a pardon is an incentive to persons convicted of a crime to stay out of trouble and is a useful tool for rehabilitation.
And rehabilitation is important. Perpetual incarceration is not an option for any but the most dangerous of offenders. People convicted of serious offences are going to be released back into society. Unless there are incentives for them to turn away from their past lives they will inevitably drift back to crime; this is especially so if they are always to be marked as criminals without hope of redemption.
Perhaps we could rename "pardon" to be something less evocative -- say "remission of conviction". Perhaps pardons could be made more difficult to get for sexual based offences.
But the concept of an eventual pardon for good behaviour is appropriate and ought not to be eliminated. Schiller said "cowards have done good and kind actions, but a coward never pardoned."
It takes courage to pardon a criminal. It requires that we be open to more than just punishment and to remember that no one in this world is perfect. It means we have to accept that people can change and that the criminal of today can be the decent person of tomorrow.
Tuesday, April 6, 2010
The problem to be faced is how to combine loyalty to one's own tradition with reverence for different traditions: Abraham Joshua Heschel
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Harris Decima poll
Nevertheless, it does point out that we, as Liberals, need to have a clear and consistent message. Things like the pardon issue give us an opportunity to explain why we are different from the Conservatives -- but we need to do more than react -- we need to explain our message. Canada at 150 was a good start but we need to build from there:
http://tinyurl.com/yaqjbb9
The poll put the Conservatives at 32 per cent nationally, with the Liberals close behind at 29 per cent. The NDP stood at 17 per cent and the Greens at 11 per cent.
...
The two main parties have been stuck in a virtual tie — far short of majority support levels — for much of the past few years. And the latest poll results suggest that's because neither has been able to convincingly persuade Canadians they share their values or can handle economic turbulence.
Asked which party is best able to balance the budget in five years, half of respondents answered either "Don't know" or "None." Just 26 per cent chose the Tories, while 14 per cent picked the Liberals, six per cent the NDP, and two per cent each chose the Bloc and the Greens.
Asked which party can be trusted to manage the economy, 36 per cent said "Don't know" or "None," while 30 per cent said the Tories, 20 per cent the Liberals, nine per cent the NDP and three per cent each chose the Bloc and the Greens.
As to which party holds values closest to their own, 27 per cent said "Don't know" or "None," while 25 per cent picked the Tories, 20 per cent the Liberals, 15 per cent the NDP, six per cent the Bloc and seven per cent the Greens.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
Jurisdiction of Justice of the Peace over summary conviction matters
Today’s decision in R. v. Montgomery, 2010 ONCA 243 makes the jurisdiction of a Justice of the Peace to try a summary conviction matter quite clear:
[2] The charges were prosecuted as summary conviction offences and their trial was conducted by Her Worship Justice of the Peace Diane L. Jackson. They were convicted of the offence under s. 35(1) of the Act. They challenged the jurisdiction of the Justice of the Peace by means of a prohibition application before the Superior Court of Justice. Gunsolus J. dismissed that application and they now appeal to this court.
[3] We see no error in the reasoning or result below. The trial proceeded as a summary conviction proceeding. The reviewing judge correctly explained the source of jurisdiction of the Justice of the Peace to try this case. In summary, his reasoning proceeded as follows. Section 798 of the Criminal Code provides that:
Every summary conviction court has jurisdiction to try, determine and adjudge proceedings to which this Part applies in the territorial division over which the person who constitutes that court has jurisdiction.
Section 785 of the Criminal Code defines “proceedings” as meaning
(a) proceedings in respect of offences that are declared by an Act of Parliament … to be punishable on summary conviction …
and “summary conviction court” as including:
a person who has jurisdiction in the territorial jurisdiction where the subject matter of the proceedings is alleged to have arisen and who
...
(b) is a justice or provincial court judge, where the enactment under which the proceedings are taken does not expressly give jurisdiction to any person or class of persons....
Finally, in s. 2 of the Criminal Code, “justice” is defined as including a Justice of the Peace.
[4] This court has recognized that justices of the peace are empowered to try summary proceedings involving federal legislation: see Lyne v.
Justices of the peace shall exercise the powers and perform the duties conferred or imposed on a justice of the peace by or under an Act of the Legislature or of the Parliament of Canada.
[5] We conclude by noting that the Crown has asked that the court indicate that the initial proceeding was a summary conviction proceeding and that any appeal from conviction lies to the Superior Court of Justice. It is so noted.
Monday, April 5, 2010
Keep pardons available
The police still have your record (and the US generally doesn't recognise our pardons) but it's a (small) but useful incentive to rehabilitation.
Perhaps it should be renamed (call it "waiver of record of conviction"?) but we shouldn't go all frantic and eliminate it -- unless we plan perpetual imprisonment or capital punishment we need to rehabilitate and pardons are a useful tool:
Parole board must recognize 'certain types of criminals cannot be rehabilitated,' Public Safety Minister says in wake of sex-offender furor
Daniel Leblanc Ottawa— The Globe and Mail
The Conservative government is vowing to bring new legislation making it harder for some criminals – including sexual predators – to obtain a pardon in Canada.
In an interview, Public Safety Minister Vic Toews said he will change the workings of the National Parole Board in the wake of the furor sparked by the 2007 pardon of Graham James, the hockey coach who preyed on his teenage players.
Mr. Toews made it clear he wants to make it harder for the board to issue pardons for some crimes, including those of a sexual nature, compared to pardons for offences like an impaired driving charge.
"I'm going to make legislation happen, I am going to bring forward and it will be up to the House to pass it," he said. "I obviously have to consider the advice of my department and victims' groups and police groups and others, but I'm committed to making this happen."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
What next in Manners?
Steven Skurka: What's next after a hung jury in the Manners trial?
http://tinyurl.com/yafuc8b
A new trial date was set this week after a hung jury in the Jordan Manners jury trial. While hung juries occur infrequently, they are a feature of a system of justice that requires 12 jurors to reach unanimous verdicts. In most cases new juries are constituted at the second trial and verdicts are satisfactorily reached.
Suicide not necessarily an admission of guilt
Former CFB Trenton leader tried to kill himself: report
Kristy Nease, Canwest News Service

The former base commander of CFB Trenton, Ont., accused of killing two women and sexually assaulting two others, tried to kill himself just before Easter Sunday by stuffing cardboard from a toilet paper roll down his throat, a Kingston newspaper reported.
Unnamed sources from the Quinte Detention Centre in Napanee, Ont. where Col. Russell Williams is being held, told the Kingston Whig-Standard that at about 5 a.m. on Saturday, Williams used mustard to write a suicide note on the wall of his cell.
The note said his affairs were in order and that his feelings were too much to bear, the paper reported.
Williams has been charged with first-degree murder in the deaths of Jessica Lloyd, 27, of Belleville, Ont. and Cpl. Marie-France Comeau, 37, of Brighton, Ont. He is facing sexual assault charges in relation to two September home invasions in the Tweed, Ont. area, where he owns a cottage.
On Saturday morning, Williams jammed his cell door with cardboard and foil, apparently to prevent staff from gaining entry and stopping him, it was reported.
Detention centre staff, however, were able to force their way into the cell to rescue Williams, who was being watched.
The cardboard roll he used had been stuffed with more foil and cardboard, the report said, adding that Williams is now on a 24-hour, one-on-one suicide watch.
...
The paper reported Williams had been placed on suicide watch after a psychiatric assessment. It also noted that Williams had been acting as though he were a prisoner of war, only giving authorities his name, rank and serial number.
During a brief Belleville court appearance via video link in mid-February, Williams' friend of nine years, Lt.-Col. Tony O'Keefe, said he barely recognized the former colonel, who had sighed before giving his name.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
Here's one place we need more police -- the Liberal Party
Why is Shelly Glover a Conservative?
That's a serious question.
I don't mean why is Shelly Glover herself Conservative -- I assume she has her reasons and that's fine -- I mean, why do we Liberals not have more people like her in our Party?
Someone with Ms Glover's history would bring a wealth of valuable expertise. Imagine what insight and credibility she can bring to social justice issues.
But she is a Conservative.
And my sense is that police (as a group) feel out of place in the Liberal Party. Doctors, lawyers, teachers blend but police, well, not so much. We don't welcome police as a group -- at least not the same way we welcome, say, social workers.
That's a problem because police are (1) doing a tough and necessary job and (2) have a far better understanding of the criminal justice system than anyone else (yes, better than lawyers). We need their input.
What's more, if we are to be a broadly based Party of the people as a whole we need to be open to all.
Being inclusive includes including police, hunters, farmers, evangelicals and small business people. Hunters and farmers care about the environment. Evangelicals care about poverty. Police care about justice. Small business people care about jobs. And they all care about Canada.
Some believe the police are biased and unfair to accused -- and I admit there is a risk of police being jaded -- but gosh defence lawyers are not totally free of biases. Some police sound like angry talk radio announcers -- but every group has its wingnuts.
And my dealings with police usually disclose a world view far more open to Liberal values than we Liberals typically assume.
Police see that prisons are not the panacea the Conservatives suggest. They know criminals are
more likely mad than bad. And ask a cop what they think about the "war on drugs" -- they are totally realistic.
We need more police -- in the Liberal Party.
Hard-nosed 'cop' rises fast in Conservative caucus
Winnipeg police officer and MP Shelly Glover is one of few women on PM's team who quickly earned enough trust to carry Tory ball in public
Jennifer Ditchburn
Ottawa— The Canadian Press
Shelly Glover wouldn't be the one throwing a hissy fit at an airport; she'd be the one hauling someone's butt into the station for not obeying the rules.
The police officer-turned-MP had to be a tough customer dealing with crack addicts and gang members in downtown Winnipeg. Now her plainspoken, hardnosed style is fitting in quite nicely within the Conservative caucus.
Ms. Glover has become a go-to-woman on law-and-order issues when a bilingual speaker is in demand, and when someone is needed to crack some opposition heads on TV or in committee.
Sunday, April 4, 2010
“The invisible and the non-existent look very much alike.” — Delos B. McKown
http://www.philosophyofreligion.info/
Easter Statement
OTTAWA - Liberal Leader Michael Ignatieff made the following statement today on the celebration of Easter:
"On behalf of the Liberal Party of Canada and our Parliamentary caucus, I would like to extend my warmest wishes to all those celebrating Easter this weekend.
For many Canadians there is no more important celebration of the year. It is the day that unifies so many faiths with its powerful messages of sacrifice and renewal within the Christian context.
In the gathering of friends and family, and in the celebration of Christianity, we celebrate the virtues and the values at the heart of a caring, generous Canada, where tolerance, respect and compassion for others has allowed us to find strength in our diversity and shared traditions.
From my family to yours: Happy Easter."
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
Contempt sought against Human Rights Tribunal
http://tinyurl.com/yjld854
Comic's lawyer wants human rights tribunal cited for contempt of court
By Keith Fraser, The Province
A lawyer for standup comedian Guy Earle, who has been accused of making homophobic remarks, has filed a motion in B.C. Supreme Court asking that the B.C. Human Rights Tribunal be cited for contempt.
...
In his Supreme Court motion, Millar says that a prior court ruling by B.C. Supreme Court Justice Peter Willcock called for the issue of jurisdiction to be dealt with before any hearing proceeds.
Easter Sunday
Jesus was resurrected from the dead on the third day after his crucifixion. This resurrection is celebrated and remembered on Easter Day or Easter Sunday.
Traditionally the Easter Season lasted for the forty days from Easter Day until Ascension Day but now officially lasts for the fifty days until Pentecost.
The first week of the Easter Season is known as Easter Week or the Octave of Easter. Easter also marks the end of Lent, a season of fasting, prayer, and penance.
Easter is a moveable feast, meaning it is not fixed in relation to the civil calendar. The First Council of Nicaea (CE 325) established the date of Easter as the first Sunday after the full moon (the Paschal Full Moon) following the vernal equinox.
Ecclesiastically, the equinox is reckoned to be on March 21 (regardless of the astronomically correct date), and the "Full Moon" is not necessarily the astronomically correct date. The date of Easter therefore varies between March 22 and April 25.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
Saturday, April 3, 2010
Attacks on the Church
http://preview.tinyurl.com/ydkovzs
VATICAN CITY -- Attacks on Pope Benedict and the Catholic Church over a sexual abuse scandal are comparable to the most shameful anti-Semitism, said a letter read by a preacher at a Vatican Good Friday service attended by the pontiff.
Father Raniero Cantalamessa, a Franciscan whose title is "Preacher of the Pontifical Household," drew the parallel during a "Passion of the Lord" service in St Peter's Basilica on the day Christians commemorate Jesus' death by crucifixion.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
Rex Murphy and human rights
Perhaps that should be the law, but human rights commissions in Canada were created to prevent discrimination by Canadians against each other. Initially human rights commissions investigated overt discrimination in accommodation and services -- hotels explicitly not open to Jews and similar. Such work was largely non contentious.
Recent controversies likely arise from success in eliminating overt discrimination; classified ads no longer say, for example, "white males only" need apply. Absent overt discrimination commissions perforce must investigate more subtle forms of prejudice -- whether this is appropriate is a matter for the legislatures and Parliament.
Friday, April 2, 2010
Is there room for bold ideas in our politics?
The answer – at least according the thousands who took part in online and Montreal for the Canada at 150 conference this past weekend – is a resounding "yes."
As we approach our 150th birthday as a country in 2017, we face some big challenges – challenges that call for a national conversation about the future.
Canadians took part in droves in an unprecedented exchange of bold ideas that was truly national in scope. 70 satellite events were held across the country. Over 20,000 people watched the live webcast from Montreal. Questions came in via Twitter and Skype, contributing to an open and honest discussion that crossed borders, both geographical and technological.
In Montreal, presenters like the former Bank of Canada Governor David Dodge put it starkly: an ageing population, rising health care costs, and slower economic growth require urgent and difficult choices.
In spite of the gloomy prognosis, Canada at 150 pointed the way to a more hopeful future – but only if we choose our priorities.
First, learning and innovation to support high quality jobs. We need a pan-Canadian approach to learning, from early childhood development and care, to adult literacy and language training, to helping families send their kids to higher education and training.
Second, social and economic security. We need a national approach to health promotion, to keep Canadians healthy and to ease the strain on our health care system. We need to stand shoulder-to-shoulder with families who care for loved ones at home. And we need immediate measures to boost retirement savings like a supplementary Canada Pension Plan.
Third, restoring Canada's global leadership, beginning with the clean energy investments that will create the well-paying jobs we want for our kinds. We need to be better stewards of our environment, as we work to become the most energy-efficient society on the planet.
Learning and Innovation. Social and economic security. Canadian global leadership. These are big challenges – and unless we start working on them now, the Canada of 2017 will be a poorer, less equal country.
Everything I heard at Canada at 150 suggested that addressing these challenges will require a new kind of federal leadership.
Federal leadership should be about convening, not command and control. Ottawa needs to bring the country together in common purpose, and build networks of responsibilities that are focused on outcomes.
Instead, all the current government offers is cuts and reduced expectations, because they have no other plan to address the $54 billion deficit they created.
On Sunday, I made a different choice, by announcing that a Liberal government will freeze corporate tax rates.
Thanks to responsible tax cuts by Jean Chretien and Paul Martin, Canada's corporate tax rate is already globally competitive, and a 25 percent lower than in the United States.
This measure will free up billions of dollars to reduce the deficit, while also allowing us to make the necessary investments in learning, care, and global leadership we discussed last weekend in Montreal.
The current government plans to rush ahead with further corporate tax reductions, when ours are already competitive. We would defer those reductions until the country can afford them.
We've committed to a credible deficit reduction target, with reductions every year until the budget is balanced. We will build a fiscal cushion into our planning to make sure we meet fiscal targets. And we will commit to a policy of spending restraint, by proposing new platform investments only if we can show exactly where the money is coming from, without increasing the deficit.
Our approach allows us to balance the budget while making strategic, critical investments that will give Canadians the tools to build our future.
During Canada at 150, we focused on the future, and on the kind of Canada we want in 2017, when we celebrate our 150th birthday. Daunting challenges stand between us and that milestone. But if we act now, and act together, Canada will lead the world again. I am confident that we will.
Michael Ignatieff is Leader of the Opposition, Leader of the Liberal Party of Canada, and Member of Parliament for Etobicoke Lakeshore.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
More seats in Parliament
This change won't likely be in place until after the next election but it may well make a difference to who forms the government after the next government. As for the GTA being Liberal, there's some truth there but, especially in the 905 (or suburban region) not as much as once was the case. The suburban seats are certainly not assured to be Liberal.
Ontario to get 18 more seats in House of Commons
Susan Delacourt
Ottawa Bureau
OTTAWA – Prime Minister Stephen Harper's government has given Ontario two surprise gifts – 18 additional members of Parliament and an admission that the province was badly treated in previous attempts to overhaul the Commons.
Many of the new MPs will likely be in the GTA, particularly in the suburbs, where Conservatives have been keen to form a strong base in Ontario.
In legislation unveiled on Thursday by Steven Fletcher, Minister of State of Democratic Reform, Ontario was given 18 additional seats – nearly double the 10 that were offered the last time the federal government tried to adjust representation in the Commons.
"Canadians living in Ontario were saying they were being treated differently than Canadians in other faster-growing provinces," Fletcher said. "We reflected on that and it turns out that there was a case to be made."
British Columbia has been given seven new seats and Alberta five additional MPs, in further recognition of the need for the fastest-growing provinces to be better served in Parliament.
Good Friday
Matthew 27:45-54 (King James Version):
45Now from the sixth hour there was darkness over all the land unto the ninth hour.
46And about the ninth hour Jesus cried with a loud voice, saying, Eli, Eli, lama sabachthani? that is to say, My God, my God, why hast thou forsaken me?
47Some of them that stood there, when they heard that, said, This man calleth for Elias.
48And straightway one of them ran, and took a spunge, and filled it with vinegar, and put it on a reed, and gave him to drink.
49The rest said, Let be, let us see whether Elias will come to save him.
50Jesus, when he had cried again with a loud voice, yielded up the ghost.
51And, behold, the veil of the temple was rent in twain from the top to the bottom; and the earth did quake, and the rocks rent;
52And the graves were opened; and many bodies of the saints which slept arose,
53And came out of the graves after his resurrection, and went into the holy city, and appeared unto many.
54Now when the centurion, and they that were with him, watching Jesus, saw the earthquake, and those things that were done, they feared greatly, saying, Truly this was the Son of God.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
Thursday, April 1, 2010
Reference process
As a result of the action, the Lieutenant Governor brought a reference to the Prince Edward Island Court of Appeal based upon an Agreed Statement of Facts asking the court for its opinion about whether the Province had certain duties toward children who had allegedly been abused while residing in the Home.
The Court found, generally, there was no liability on the Province. In doing so the Court considered the use of the reference process where the reference was based on an agreed statement of facts.
The Court noted that the limited record put forward in this case, namely a very brief statement of facts and a compendium of legislation, impeded the Court of Appeal in making definitive pronouncements on the issues raised in the reference. The utility of the reference procedure may be called into question where the factual basis for the reference is quite limited.
The Court said:
[4] In an attempt to clarify the role and responsibilities of the Province in relation to the Home and its residents, the Lieutenant Governor in Council referred 21 questions to the Prince Edward Island Court of Appeal. This reference procedure, at the relevant time provided for by the Supreme Court Act, R.S.P.E.I. 1988, c. S-10, s. 18, permitted the executive branch to seek an advisory opinion from the appellate court of the Province (P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at p. 8-16). The relevant parts of the section provided:
18. (1) The Lieutenant Governor in Council may refer any question to the Appeal Division for hearing and consideration.
(2) The Appeal Division shall certify its opinion to the Lieutenant Governor in Council, accompanied by a statement of the reasons therefor, and any judge who differs from the opinion may in like manner certify his opinion and reasons.
. . .
(7) The opinion of the court upon a question is deemed a judgment of the court, and an appeal shall lie therefrom as from a judgment in an action.
[5] The reference asked the Court of Appeal for its opinion as to whether the relevant legislation and other factors gave rise to various duties and responsibilities on the part of the Province in relation to the residents of the Home. In brief, the Court of Appeal was asked whether the Province: owed a general duty of care to the children placed in the Home; had any statutory duty to supervise the operation of the Home; was vicariously liable for the acts or omissions of the Board of Trustees, who were entrusted to operate the Home, or the volunteers or staff at the Home; owed a fiduciary duty to the residents of the Home; or had a non-delegable duty in respect of the care given to the residents of the Home. This proceeding did not address directly the rights of or the harm inflicted on the alleged victims, or the Province's liability for the alleged abuse; it simply sought the opinion of the Court of Appeal concerning the Province's duties, if any, to the children resident in the Home at the relevant times, based on the Agreed Statement of Facts and the legislation. The complete text of the 21 questions and the statement of agreed facts referred to the Court of Appeal are set out in an appendix to my reasons.
[6] I underline the point that the factual basis for the reference is quite limited. The record consists of a very brief statement of facts and a compendium of legislation. In light of this limitation, the opinion of the court is and must be understood to be based on the record provided to the court: B. L. Strayer, The Canadian Constitution and the Courts (3rd ed. 1988), at pp. 331-32. Moreover, the court has discretion to give qualified answers to, or to decline to answer, the reference questions if the record does not permit a definitive response: Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698, at para. 10; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 545; Reference re Objection by Quebec to a Resolution to Amend the Constitution, [1982] 2 S.C.R. 793, at p. 806; and Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 26-30.
[7] The very limited factual basis for the reference impedes the Court in making definitive pronouncements about the issues raised to the point of putting the utility of the reference process in question. The Court of Appeal appropriately found that it had to limit the scope of its answers. It thus added two important qualifications to its general conclusion that the duties for which the appellants contend did not arise. The reference relates to the situation of the plaintiffs who, as noted, were residents of the Home between 1928 and 1976 and who were taken there primarily by their parents, family members, guardians or charities (Agreed Fact #6). The Court of Appeal found it necessary, however, to make distinctions among this group and these distinctions led the court to add the two qualifications to which I have just referred (paras. 85-93).
[8] First, 14 of the plaintiffs were placed in the guardianship of the Province between 1956 and 1964 while still resident in the Home (Agreed Fact #9). The Court of Appeal concluded that the Province owed a duty of care to those specific children for the period of the wardship (paras. 29-31, 89-93, and 138). The Province also owed these 14 children a fiduciary duty as wards during the period of the wardship (paras. 120-22, and 142). Second, between 1958 and 1962, 10 of the 14 plaintiffs just described were proposed for placement in the Home by a provincial employee, before they were accepted as residents (Agreed Fact #8). The Court of Appeal ultimately declined to give an opinion concerning a duty to these children. It reasoned the potential liability of the Province in connection with negligent placement of children was not before the court, as the reference questions and the Agreed Statement of Facts focussed on the duties of the Province to children as residents of the Home, rather than because of their placement by the Province in the Home (paras. 33, 85 and 137).
[9] These qualifications were not challenged in this appeal and what follows is subject to them.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
Partial summary judgment
Partial summary judgment and severability
[33] The appellants contend that the motion judge erred in granting partial summary judgment in circumstances where the issue before him was not severable from the remaining liability issues in the main action and counterclaim, both of which must go to trial.
[34] The issue determined by the motion judge was that the "Air-Supported Structure" was not completed by September 30, 2007, as required by the lease and, therefore, the respondents were entitled to terminate the lease pursuant to s. 3(a)(ii)(A). The appellants submit that this is the crucial, albeit not the only, issue in both the respondents' action and the appellants' counterclaim and that its resolution on a motion for summary judgment improperly precludes consideration of the issue at trial.
[35] Specifically, the appellants say that the balance of the respondents' claim for lost profits under the lease will require the trial court to determine whether WWK breached the lease. Similarly, the liability determination on WWK's counterclaim against the respondents will require a determination of whether it was the respondents who breached the lease. Given that this will require the trial court to determine whether the "Air-Supported Structure" was completed by September 30, 2007, the appellants argue that the motion judge improperly severed these issues by resolving them on the motion for summary judgment.
[36] I do not accept this submission. Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, specifically authorizes partial summary judgment:
20.01(1) A plaintiff may … move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim. [Emphasis added.]
[37] In Ford Motor Co. of Canada Ltd. v. Ontario Municipal Employees Retirement Board (1997), 36 O.R. (3d) 384 (C.A.), Osborne J.A. identified three categories of cases in which a motion for partial summary judgment is appropriate. He described the first category in this fashion at pp. 394-95:
The cases in which summary judgment has been granted for "part of" a claim seem to me to fall into three groups:
(a) actions where the evidence establishes that there is no genuine issue for trial in respect of a discrete claim. These partial summary judgment cases require no further comment except to say the result of summary judgment for "part of" a claim is consistent with the purpose of Rule 20; the partial summary judgment removes a discrete issue from the issues to be tried and thus shortens the trial. This is consistent with "procedural justice" concerns referred to by Morden A.C.J.O. in Irving Ungerman and with the purpose of Rule 20 as referred to in Jockey Club... .
James Morton
1100-5255 Yonge Street
Toronto, Ontario
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416 225 2777
www.jmortonmusings.blogspot.com
The origin of the word "company"
Merchants would meet and discuss their business plans over dinner ("with bread") and eventually their ventures were named for the dinner meetings.
A book on Google from 1872 called "An English grammar and reading book for lower forms in classical schools" (http://tinyurl.com/ygutlbr) lists two words in its glossary that come from "cum panis":
companion: a sharer of food, a comrade, fellow-traveller, partner
company: association, a number of partners
Sentencing for refusal to testify
R. v. Yegin, 2010 ONCA 238, released late yesterday, deals with sentencing for refusal to testify. In light of the recent mistrial in Manners the importance of ensuring that witnesses testify fully and truthfully is specially to be emphasized:
[2] The justice system depends on witnesses who testify as required. The justice system’s response to those who prefer to remain aligned with their criminal cohorts rather than do their duty as citizens must be firm and direct – significant jail terms above and beyond whatever other period of incarceration the individual is, or might be, facing for his own participation in the relevant events must be imposed.
April Fool's Day History
Communication traveled slowly in those days and some people were only informed of the change several years later. Still others, who were more rebellious refused to acknowledge the change and continued to celebrate on the last day of the former celebration, April 1.
These people were labeled "fools" by the general populace, were subject to ridicule and sent on "fool errands," sent invitations to nonexistent parties and had other practical jokes played upon them. The butts of these pranks became known as a "poisson d'avril" or "April fish" because a young naive fish is easily caught.
New poll results
An EKOS survey, commissioned for the CBC and released Thursday, asked the following question: "If a federal election were held tomorrow, which party would you vote for?"
The responses suggest 32.2 per cent would choose the Conservatives, while 27 per cent would vote for the Liberals.
According to the poll, the NDP garnered 16 per cent of overall support, while the Green Party had 12.7 per cent. The Bloc Québécois followed with 9 per cent.
The results are little changed from those published a week earlier, which showed support for the Conservatives at 33.1 per cent.
http://tinyurl.com/yfql5pa
Conservative Bloc Alliance?

Gilles Duceppe will join Cabinet as a senior Minister, likely replacing Peter MacKay as Minister of National Defence. Mr. MacKay is slated to replace Helena C. Guergis as Minister of State (Status of Women). Two other BQ members will join Cabinet. A number of BQ Senate appointments are anticipated.
With this alliance the Conservative government will achieve a functional majority. In a confidential speech to his caucus last night, BQ leader Gilles Duceppe claimed to have achieved his objectives, adding, "with the Bloc Québécois tonight, Mr. Harper has formed a majority government".
A Bloc spokesman, speaking off the record, said “Ils ne parlent pas français. Ils ne sauront pas ce que nous faisons de toute façon.” A Conservative Party spokesman, also speaking off the record, said that “many of our members would be happy with a less top down federalism and that’s not all that different from sovereignty association”.
A press release from the Wildrose Alliance, commenting on the impending alliance, stated “many in Alberta would be glad to see an independent Quebec. Perhaps an independent union of the former Upper and Lower Canada should be considered?”








