Tuesday, September 7, 2010

Dion in hospital with food poisoning

"Former federal Liberal leader Stephane Dion is in a Mexican hospital with a severe case of food poisoning.

Local media in Mexico report that Dion was attending a climate conference at a university in suburban Mexico City on Monday when he started to feel ill.

The event, scheduled in the lead up to November's climate change conference in Cancun, was cancelled after Dion was rushed to hospital."

President Obama's Rosh Hashana greeting: http://bit.ly/anBplc

Chris Selley: Do we want refugees or don’t we?

The obvious point is that the policy is to be seen as welcoming refugees without the difficulty of actually accepting them:

http://bit.ly/b9yKTI

"Public Safety Minister Vic Toews says he doesn't want "to stop legitimate refugee claimants." But then how does one square the casual shooing away of Sri Lankans afloat with the the fact that the Immigration and Refugee Board continues to buy their claims of persecution at an 85% clip? The only conceivable takeaway messages there are that (a) the IRB is making the wrong decisions, in which case addressing that should be a shrieking policy priority, or (b) or we just flat-out don't want refugee claimants from Sri Lanka, or any other country whose citizens need visas to come to Canada. In which case we'd be left with a system that, in the first six months of this year, accepted as refugees 39 Israelis, 12 South Koreans, 12 Czechs, eight Bulgarians, six Brazilians, three Italians, two Americans and a German, but that wouldn't even hear Sri Lankans out. You can call that success if you want. I sure wouldn't"

Where did the summer go???


Long gun registry vote

The vote to kill the long-gun registry later this month is shaping up to be a squeaker with yet another NDP MP pulling out his support for the Conservative private member’s bill.

“We think it is going to be a nail biter quite frankly,” Liberal MP Frank Valeriote (Guelph) told a news conference Tuesday launching a campaign to embarrass NDP Leader Jack Layton into whipping his caucus to vote against the Conservative effort to scrap the registry.

The Liberals figure that four of seven undecided NDP MPs would have to support the bill in order for it to pass.

 

Gun registry

As a supporter of the long gun registry I would phrase it differently, but Matt Gurney in today's Post hits the mark when he says opposition to the registry is based on the view that it targets gun owners as likely criminals.

The fact that the registry does no such thing is quite irrelevant to the politics.

Support for or against the registry is a political test case based on perception and fears. Without recognizing this reality arguments about effectiveness, for example, are simply wasted effort.

Monday, September 6, 2010

I am a Canadian

"... free to speak without fear, free to worship in my own way, free to stand for what I think right, free to oppose what I believe wrong, or free to choose those who shall govern my country. This heritage of freedom I pledge to uphold for myself and all mankind."

John Diefenbaker

Some of Diefenbaker's policies were, at least to my mind, wrongheaded (his foreign policy for starters) -- but he did stand for freedom of the individual and he tried, in vain, to establish a viable Bill of Rights.

Sex, swingers' sites and judges

Last week the scandal about judges being appointed was whether judgeships were for sale in Quebec.

This week it's about interracial bondage on swingers' sites.

What a difference a week makes!!!

Readers may remember I suggested a judge who bought his/her spot had to go. What about about swingers's site etc?

Standing alone, there isn't much to it. Swingers' sites are legal and interracial bondage, while perhaps a minority taste, is also lawful. Posting pictures online doesn't show much prudence but it's no sufficient cause to remove a sitting judge.

What complicates this case is the assertion one of the swingers was a client (former or otherwise) who was paid money in return for silence (how did that work out?).

And that's where the problem is. A judge who pays hush money cannot be seen as being "above suspicion". If such is the case -- and remember these are allegations only -- I don't see how the judge can stay.

Sunday, September 5, 2010

Europe and Canada

Entering Europe by plane requires a brief wait in line followed by free access to almost every country.

Canada?

Well the line at immigration at Pearson is vast and slow. And crossing to Buffalo ain't no great pleasure.

Still, I'm home and very glad of it.

Our border system needs work - on many levels - but Canada is the best place to be.

I guess that's why so many people want to get in!

Sitting in an airport in Iceland

The land outside looks much like Nunavut -- perhaps a bit more lush... .

Friday, September 3, 2010

Intentional interference in economic relations

Barber v. Molson Sport & Entertainment Inc., 2010 ONCA 570 sets out the elements of the tort of intentional interference in economic relations:

[47]          To establish the tort of intentional interference with economic relations, the plaintiff must prove that: (i) the defendant intended to injure the plaintiff; (ii) the defendant interfered with the plaintiff's economic interests by illegal or unlawful means; and (iii) as a result of that interference, the plaintiff suffered economic loss: Reach M.D. Inc. v. Pharmaceutical Manufacturers Assn. of Canada (2003), 65 O.R. (3d) 30 (C.A.), at para. 44.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

www.jmortonmusings.blogspot.com

Tort damages limited to those caused by the tortfeasor

Rollin v. Baker, 2010 ONCA 569 reminds us that tort damages are limited to the harm caused by the tortfeasor and do not necessarily include all the harm suffered by the plaintiff.

Here a plaintiff broke her wrist and was given inadequate treatment. Her damages for medical malpractice were limited to the harm caused by the poor treatment and did not include the damages caused by the broken wrist.

The Court holds:

[82]          In assessing non-pecuniary damages at $90,000, Dr. Baker submits that the trial judge improperly awarded Ms. Rollin damages for all of the pain and suffering associated with her broken wrist rather than for that resulting from the delayed detection of the displacement during the healing process.

[83]          The trial judge's reasons contain only the following sentence with respect to non-pecuniary damages.  "After reviewing all of the evidence, it is my view that the appropriate amount under this head of damages would be $90,000."  While that single sentence does not explain the basis of the amount, the trial judge's unqualified review of how Ms. Rollin's injured wrist has affected her life, plus her identification, in para. 14 of her reasons, of one of the issues before her as "the damages that Carole Rollin sustained as a result of the Colles' fracture of her left wrist", strongly suggest that the trial judge did assess damages as though Dr. Baker was responsible for all of the injuries his patient suffered as a result of the fall.  Furthermore, as I will discuss below, $90,000 is several times the usual quantum awarded for non-pecuniary damages in the case of a defendant fixed with full responsibility for a broken wrist, however severe the after-affects.  Given the lack of reasons for assessing the damages at this amount and the strong suggestion of an error, this aspect of the judgment is not entitled to deference.

[84]          It is therefore up to this court, if the record is sufficient, to determine Ms. Rollin's general damages on the appropriate basis.

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

416 225 2777

www.jmortonmusings.blogspot.com

Armageddon was yesterday -- today we have a serious problem

Seen on a tee shirt

Internet voting

A major issue at all levels of government is voter engagement.

In some cases the failure to vote is intentional -- sort of an expression of dislike for "all of the above". In other cases it is the reverse -- something akin to "they're all fine - you choose".

But often the failure to vote comes from the difficulty of voting. It may seem easy enough for some but for, say, a working parent with young children, getting to work, daycare, home and then free time to vote is not so easy. That's probably why retired people vote at a much higher rate -- they have the time to vote.

That's why the idea of internet voting, one of several concepts raised by Rocco Rossi this week, is so exciting. The objection of security is groundless in the world of secure e-commerce. Let's try it at the municipal level and then expand to Provincial and then Federal levels.

Wednesday, September 1, 2010

Rocco Rossi gains momentum

Even from Russia I can see the change in the tone of the election. From a strong National Post piece to some top new members of the campaign team, the Rossi campaign is gathering steam for the final few miles. Rocco is the viable, sensible alternative!

What if someone threatens to sue someone for testfying falsely?

R. v. Pare, 2010 ONCA 563 deals with the surprising common situation where someone threats to sue a potential witness for testifying. Does that amount to an attempt to obstruct justice?

This case turns on the meaning to be attached to s. 139(3)(a) of the Criminal Code, which provides that every one who, in a judicial proceeding, "dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence" shall be deemed to wilfully attempt to obstruct the course of justice.  The gist of the offence is the use of corrupt means to influence a witness. 

Attempting to persuade a witness to change their testimony, even to change the testimony to what the accused believes is the truth, is an offence where the means of persuasion is corrupt. 

Offering money to a complainant in a criminal case to change her testimony is a classic example of corrupt means.  See R. v. Kotch (1990), 61 C.C.C. (3d) 132 (Alta. C.A.) at 136.

The Court holds such a threat may or may not be improper depending on the intent:


[12]          It was somewhat clearer that the respondent had instructed Mr. Harcus to tell Ms. Z that if she persisted in her false complaint he would sue her.  The more difficult question is whether the respondent had the specific intent to threaten Ms. Z.  In other words was this an improper attempt to intimidate the witness by corrupt means or merely an attempt at persuasion?  In some circumstances a threat to exercise legal rights by instituting a civil suit could amount to a corrupt means depending upon the accused's intent.

A Liberal "hidden agenda"

The irony here, of course, that the Conservative government has been a coalition of the unwilling since the beginning. Both the Conservatives and the Liberals want a majority -- and the only viable government in waiting alternative to the Conservatives is the Liberals:

OTTAWA — Prime Minister Stephen Harper, intent on shaping the ballot box question for the next election, is adopting a strategy to gradually persuade voters they have a "stark choice" in the next campaign: a "stable" majority Conservative government, or a "coalition" government of Liberals, New Democrats and Quebec separatists.

The theme has emerged in recent speeches to the party faithful, and Mr. Harper is expected to ramp up the message as Parliament resumes later this month.

But why has Mr. Harper decided to directly ask for a majority after avoiding the word in past years? And why will he try to convince Canadians that his political rivals are bound to form a coalition?

Experts say the answer is simple.

"It's called framing the ballot question," University of Calgary political scientist Tom Flanagan said in an interview Tuesday. "I'm sure that's what he's doing."

Mr. Flanagan, a former Harper aide who managed his campaigns, said Harper's appeal for a majority is a clear shift in strategy and could carry a political risk. In the 2004 election, when Mr. Harper broached the subject of getting a majority, the Liberals insisted he would pursue a "hidden agenda" with such unchallenged power and his popularity dropped. Mr. Harper stayed away from talk of a majority in the 2006 and 2008 campaigns that delivered him a minority government.

"Any time you change strategies it's a gamble because you don't know if it will work," said Mr. Flanagan.

"He has had success ... saying he'd be happy to accept whatever the voters give him. So the gamble is that after four years of being in power Canadians would be more open to considering a majority government. It's kind of like you've been on probation for four years. It's a gamble. There's no question about it."

At the same time, it appears the Conservatives believe they are on strong footing as they try to persuade Canadians a vote for the Liberals is actually a vote for a coalition. They remember how support for Harper's Tories spiked to unprecedented levels in December 2008 when the Liberals and NDP attempted to form a coalition government with the parliamentary support of the Bloc Quebecois.

"You've got to persuade people that you can't take the Liberals at face value." said Mr. Flanagan. "There's a big payoff there. Of course, if you're going to do that, it's smart to start early."

The odds of a fall election appear low, and the next likely time for a campaign would be next spring. In two speeches this month, Mr. Harper began outlining his theme.

On Aug. 17 in Ajax, Ont., the prime minister said the Conservatives aren't seeking an election, but added: "The next election will be a choice between a coalition government of the Liberal, NDP and Bloc Quebecois, or a stable Conservative majority government for this country."

A week later, Mr. Harper delivered the same message in Whitehorse.

"We as Conservatives are not focused on an election," he said. "But, friends, when an election does come, Canadians are going to face a pretty stark choice. The next election will be a choice between a Parliament with a majority made up of a Liberal-NDP-Bloc Quebecois coalition, or it will be a stable majority for our Conservative government."

Pollster Darrell Bricker, president of Ipsos Reid, said on Tuesday that Mr. Harper realizes he has to find a different message than the ones he used in previous campaigns (getting rid of government corruption, managing the agenda well and providing solid leadership."

"Even though the last time he was up against the weakest Liberal leader probably ever (Stephane Dion), he wasn't able to get a majority. So he has to try something different."

The Tories' answer is to convince voters a coalition is in the works. It doesn't matter that Liberal Leader Michael Ignatieff reluctantly followed Mr. Dion's lead in the plan to form a coalition in 2008, or that the Liberals now deny they want a merger.

Mr. Bricker said the Tories will be happy merely if Mr. Ignatieff is forced to talk about the issue.

"They want him denying. They want him to engage in that debate, because it's better than talking about the census, or the gun registry or whatever story of the day is. It's smart strategy. These guys, if anything, are smart and ruthless about how they campaign."

Nelson Wiseman, associate professor of political science at the University of Toronto, said Tuesday that he thinks a majority is within Mr. Harper's grasp.

"They know that their best card is playing the coalition. The strategy is to trap the other parties on that hook. You don't have to convince the whole electorate. What you have to do is swing over maybe one out of 20 voters."

Hom

Cold War chess

Despite all the ideological differences between the Soviet Bloc and the West, at base we agreed on quite a lot. Equality of men and women, a comfortable life, preservation of history -- perhaps these ideals were never achieved, and I don't suggest Stalin was less than a monster, but they were the ideals we hold to in the West. And that's why mutual assured destruction, crazy though it sounds, worked. We were playing the same game.