Tuesday, June 7, 2011
Love in a time of torture
Invade Syria?
To my surprise that very suggestion was then made (granted obliquely) in the New York Times.
So I am clear -- we have enough "police actions". Another invasion (or whatever it is called) of another Muslim country is not a good idea.
Charges withdrawn this morning in Oshawa against Tammy Marquardt
One is forced to wonder how many other people are wrongfully convicted based on flawed testimony -- where the flaws are never uncovered. Remember, in Canada for ever 100 adults who plead not guilty there are over 96 convictions. The customary result of a criminal trial is a conviction -- that leads to complacency.
Charges have been withdrawn against an Ontario woman who spent 14 years in jail after being convicted of killing her toddler — in part because of evidence from now-disgraced pathologist Dr. Charles Smith.
Tammy Marquardt was convicted of second-degree murder in the death of her two-year-old son Kenneth Wynne in 1995.
But the conviction was based on evidence from pathologist Charles Smith, who was recently stripped of his medical licence for professional misconduct and incompetence. He testified at Marquardt's trial Kenneth was strangled or suffocated, when the toddler had actually died of an epileptic seizure.
Earlier this year, the Court of Appeal for Ontario quashed Marquardt's second-degree murder conviction, calling her a victim of a miscarriage of justice and ordering a new trial.
Marquardt said nothing could be done to compensate for what Smith has done.
"I don't think that anything could vindicate," Marquardt told reporters outside an Oshawa court. "He has to live in his own personal hell and so there's nothing that really that I or anyone else could do.
No presumption of possession because of tenancy or occupancy
R. v. Watson, 2011 ONCA 437 is a very clear statement that there is no presumption of possession because of tenancy or occupancy. Specifically, mere occupation of premises does not lead to a presumption of knowledge of what is in those premises. Now, as a factual, common sense matter, a judge might well conclude someone knew what was in their home; but that is case specific and not a presumption at law. The Court wrote:
[12] However, in several other parts of her reasons, the trial judge said that, because of his tenancy, Watson was legally deemed to have knowledge and be in possession of the drugs and gun unless he could rebut that presumption. Three passages from the trial judge’s reasons — at paras. 6, 22 and 42 — show that she placed the burden on Watson to prove that he was not in possession:
On the issue of whether there is specific significance to be accorded to the fact that one of the individuals is a tenant and the other is not, Bryden’s evidence was that drug traffickers certainly do not hold or reside at a specific address for any length of time. This is significant because certain presumptions, although rebuttable might apply to Watson, who is the tenant, with respect to possession.
…
As the tenant, Watson is legally deemed to be in possession unless, on a thorough review of the evidence, the Court deemed otherwise.
…
Watson is deemed to have knowledge by reason of his tenancy as described above. His evidence does not remove any doubt with respect of his knowledge, possession and control.
[13] These passages reflect a clear error of law. A rebuttable presumption of possession because of tenancy or occupancy does not exist at common law or under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Moreover, this error is not an isolated misstatement. The trial judge repeated the error three times in her reasons. Thus, although the trial judge correctly approached the question of Watson’s possession in some parts of her reasons, this error is evident in other parts of her decision and it taints her finding of possession. As a result, this finding must be set aside.
Monday, June 6, 2011
Syria to deal "decisively" with the deaths of 120 security personnel in the northern town of Jisr al-Shughour
"Later, a statement published on one of the Syrian uprising's main Facebook pages in the name of the people of Jisr al-Shughour denied that they had called for army intervention to protect them from armed gangs.
It condemned the reported deaths of dozens of security personnel in the town and called for an immediate and transparent inquiry.
The statement said the people feared a crime against humanity would be committed if Syrian army tanks moved in to regain control.
More civilians would inevitably be killed and thousands would flee their homes if the tanks come in, it warned.
An Islamist uprising in Jisr al-Shughour in 1980 against the late President Hafez al-Assad was brutally crushed with scores of deaths."
D-Day -- a day to remember
The operation was the largest amphibious invasion in world history, with over 160,000 troops landing on 6 June 1944. 195,700 Allied naval and merchant navy personnel in over 5,000ships were involved. The invasion required the transport of soldiers and material from the
Hassan Diab: Canada allows bomb suspect's extradition
http://www.bbc.co.uk/news/world-us-canada-13671315
Mr Diab, who was arrested in 2008, says he was not in Paris at the time of the attack
Statements compelled under provincial highway legislation are not admissible in a criminal trial
R. v. Soules, 2011 ONCA 429, released this morning, holds that compelled statements are not admissible against their maker in a criminal trial:
[40] In Powers, the majority referred to Orbanski/Elias and held that White was determinative of the issue. That is, statutorily compelled statements were not admissible for any purpose including for the purpose of establishing reasonable grounds: Powers at para. 38. It is this portion of Powers that the Crown contends cannot be correct.
[41] To illustrate its view, the Crown notes that a motorist’s compelled participation in an ASD test is admissible to support an officer’s grounds to make a breath demand: R. v. Thomsen, [1988] 1 S.C.R. 640. Therefore, the Crown argues, it must also be the case that compelled statements made at the scene of a collision are admissible when they are being used for the same limited purpose. The Crown points out that in both cases:
· the evidence emanates from the accused;
· they invoke the same level of concern regarding the potential for self-incrimination;
· it is an offence to fail to participate or cooperate with police; and,
· the evidence cannot be used at trial to prove an element of the offence.
[42] I disagree. The Crown’s reliance on Thomsen and other like cases is misplaced, and for a very noteworthy reason: the questioning by police in those cases does not involve compelled answers. In each of them the motorist can refuse to answer if he or she chooses; they are not forcefully enlisted in aid of their own prosecution. For example, in the case of a breath demand made by a police officer pursuant to s. 254(5) of the Criminal Code, the motorist is legally obligated to comply with the demand; nevertheless, s. 7 continues to furnish him or her with the right to choose whether or not to speak with the police – a choice statutory compulsion clearly eradicates. There is absolutely no legal compulsion to speak or provide information in any of the cases cited.
[43] In the result, Powers was correct to hold that White was determinative of the issue. The statutorily compelled admission from Mr. Soules in our case is not admissible for the purpose of establishing grounds for making either the ASD or the breath demand. Indeed, as Iacobucci J. made clear in White at para. 70:
The protection afforded by the principle against self-incrimination does not vary based upon the relative importance of the self-incriminatory information sought to be used. If s. 7 is engaged by the circumstances surrounding the admission into evidence of a compelled statement, the concern with self-incrimination applies in relation to all of the information transmitted in the compelled statement. Section 7 is violated and that is the end of the analysis, subject to issues relating to s. 24(1) of the Charter.
[44] The Crown’s arguments on this issue rely almost exclusively on jurisprudence such as Orbanski/Elias directed at the s. 10(b) Charter right to counsel exemption in drinking and driving cases. However, despite the strong connection between ss. 7 and 10(b) of the Charter, the two are not mutually exclusive. As I believe the above quote from Whiteillustrates, although it is a well established principle that s.10(b) rights are limited until arresting officers have developed reasonable and probable grounds to effect an arrest, the choice of whether or not to remain silent – and thus prevent self-incrimination – nevertheless remains.
[45] The Crown makes the further argument that the distinctions between the
[46] In my view, both the trial judge and the summary conviction appeal judge in our case came to the correct result on this point. I would begin with the apt comments of Wein J. inR. v. DaCosta (2001), 156 C.C.C. (3d) 520 (
[It cannot] be realistically said, that anything turns on the distinctions between the British Columbia legislation and the Ontario legislation… notwithstanding that the Ontario legislation is far less specific than the B.C. legislation concerning use immunity.
[47] Use immunity created by a provincial statute cannot extend to proceedings under the Criminal Code, because it would be ultra vires the province to restrict the admissibility of evidence in criminal matters: White at para. 35. As Iacobucci J. explains further in para. 72, the purpose of this type of provincial legislation is not to assist the police in the investigation of specific crimes; rather,
The provinces are entitled to inquire into factual circumstances that may involve the commission of a criminal offence, but their jurisdiction does not extend so far as to trench upon the federal power under s. 91(27) of the Constitution Act, 1867 over the criminal law. [Citation omitted.]
[48] Use immunity therefore is limited to the jurisdiction of the provincial legislature and relates to whether or not there has been compliance with the legislated reporting requirement. Thus, although the Ontario Highway Traffic Act does not have similar use immunity provisions, this simply means that in Ontario the statutorily compelled accident report can be used to prove non-compliance as required by the Highway Traffic Act; nothing more.
[49] Iacobucci J. in White at para. 60 explained that the inclusion of use immunity provisions, like those in
[T]he partnership between the individual driver and the state does not encompass the use of the compelled accident report to incriminate the driver. The fact that the statements in this case are sought to be introduced in criminal rather than regulatory proceedings simply serves to accentuate the fact that the Crown seeks to use the statement for a purpose that was never contemplated as being a component of the regulatory regime.
[50] As a result, this argument respecting the difference between the
[51] Before moving to the last argument in this ground of appeal, I will make some brief comments on the Crown’s submission that this interpretation of the law “has the potential to cripple the investigation of drinking and driving offences where a collision has occurred”. The Supreme Court in White essentially disagreed with this concern, Iacobucci J’s observations at para. 64 are instructive:
[T]he possibility is real and serious that permitting the use of compelled accident reports within criminal proceedings might increase the likelihood of abusive conduct by the state. In taking accident reports from drivers, police would have a strong incentive or perhaps an unconscious inclination to overemphasize the extent of the statutory duty to report an accident under the Act, in order to obtain relevant information. The effect of such an overemphasis might be to circumvent or defeat a driver’s s. 7 right to remain silent when under investigation for a criminal offence.
[52] It was accepted in White that the effect of statutory provisions such as those under consideration in this case is to create a logistical difficulty for police. That is, if the desire is to use information acquired from a motorist in criminal proceedings, the information cannot derive from the duty of the motorist mandated by the statutory provisions: para. 65. Iacobucci J. then at para. 80 stressed the importance of the police taking an accident report while simultaneously investigating a crime to describe clearly to the motorist the start and end points of the accident report.
[53] At various places in his reasons Iacobucci J. describes several ways in which police might investigate so as to acquire information independently of the accident report that is subject to use immunity. One, he says, is to inform the driver that they intend to secure the details of the accident report from sources other than the driver, thus terminating the statutory duty to report. Second, they might tell the driver that they will postpone the taking of an accident report until after they have questioned him or her. (See paras. 65 and 80.)
[54] Given the above, I think it is an unfounded argument that use immunity arising from the information mandated by provincial legislation such as that in this case has the “potential to cripple the investigation of drinking and driving offences where a collision has occurred”. I turn then to the last argument advanced by the Crown on this ground of appeal: that even if there is a s. 7 infringement, it is justifiable under s. 1 of the Charter.
[55] The Crown does not develop this argument at all in its factum but simply submits that just as in the case of the ASD test, the infringement of s. 7 in the circumstances of this case represents a reasonable limit on that right. It says that “measures aimed at protecting the public from the carnage caused by impaired drivers serve a pressing and substantial objective”. In addition, this argument does not appear to have been raised nor was it addressed in either the trial court or the summary conviction appeal court.
[56] Given that the issue of justification under s. 1 was not raised below and has only superficially been raised on this appeal, I would give no consideration to this argument. I would, however, note that White holds that the admission of Mr. Soules
Sentence reduced (very slightly) for immigration reasons
R. v. Duhra, 2011 ABCA 165 is another decision in which an appeal court reduced a sentence imposed at the trial level because of the immigration consequences of such sentence. Although no issue was taken with the fitness of sentence at trial, the immigration consequences of the sentence were overlooked and the Court of Appeal varied the sentence to take those into account. Perhaps the best lesson to take from this case, and similar cases, is to ensure the immigration status of an accused is known at sentencing and the effect of a sentence is raised before the sentencing judge.
The Court held:
[1] The appellant was born in
[2] At the time the sentence was imposed, no one raised with the sentencing judge the implications under those circumstances of the Immigration and Refugee Protection Act (IRPA). The appellant, since sentencing, has been notified that he faces an initial hearing to determine if he is a person “described in paragraph 36(1)(a)” of IRPA. By operation of IRPA, a person convicted of an offence of “serious criminality” under sections 36 and 64 of IRPA becomes subject to deportation on grounds of inadmissibility.
[3] Under section 64 of IRPA, if the prison sentence imposed is “at least two years”, the person is not given any right to appeal to the Immigration Appeal Division. As pointed out in Medovarski v Canada, 2005 SCC 51 (CanLII), 2005 SCC 51 at paras 43 to 48, 2005 SCC 51 (CanLII), [2005] 2 SCR 539, the serious criminality provision therefore has a significant impact on the individual affected as it is, let alone when coupled with elimination of any right to appeal to the Immigration Appeal Division. Nonetheless, as pointed out by the Crown in reliance on Medovarski, the individual does not have an absolute legal right to remain in
…
[9] We recognize the illogic of reducing a sentence for an offender either to a disproportionately low sentence or to a lower sentence than a citizen might receive reasonably for the same crime in order to assist an offender guilty of serious criminality towards a lighter burden under section 64 of IRPA: see R v Belenky, 2010 ABCA 98 (CanLII), 2010 ABCA 98, 477 AR 354, (2010) 253 CCC (3rd) 344; R v Morgan, 2008 NWTCA 12 (CanLII), 2008 NWTCA 12, (2008) 239 CCC (3rd) 187. With all due respect to a few appeal panels in
[10] But the present case is not at all like that. In sum, the appellant is seeking the same fit sentence which he, his counsel and Crown counsel thought was being imposed. He is a long-term resident of
[11] We are persuaded that the justice of this case, as well as the proportionality principle and relevant considerations and recommendations, lead to the conclusion that the appeal should be allowed and the prison sentence cut to an effective term of two years less one day. All of the other elements of the sentence are affirmed.
Mootness
R. v. K.G.S., 2011 NUCA 01 deals with a situation where a custodial sentence was appealed but the matter came before the Court only after the sentence was served. The Court found the matter was moot and declined to determine the issue. The Court held:
[6] Borowski v.
Sunday, June 5, 2011
The NDP were probably better at fiscal management
"Hard spending decisions have never been a hallmark of Mr. Harper's governments, which have cut taxes, dramatically increased the number of civil servants, driven up spending, eliminated the surplus and produced big deficits, but will now be preaching restraint and cutbacks."
Brigette DePape was wrong
But there is a time and a place for protest -- and such time and place is determined by what is effective.
The dreadful recent protest of a young man who burned himself alive in North Africa was terribly effective (one thinks of the monks in Vietnam). DePape however did nothing that in any way changed anyone's mind except insofar as it hardened the resolve of the Conservatives.
Now is the time to put aside big gestures and to focus on details. We can move things (slightly) in a progressive way but only by looking at details.
Small steps.
Grandstanding won't work:
Globe.ca
A high-profile American activist has become a cheerleader of the Senate page who lost her job for her stunning protest against Prime Minister Stephen Harper.
Michael Moore has posted a giant photo on his website of 21-year-old Brigette DePape holding up a "Stop Harper" sign in the Senate chamber during Friday's throne speech.
The documentary filmmaker makes a call on his website for people to support DePape.
DePape told The Canadian Press she's excited her protest has attracted attention from a high-profile activist like Moore.
The University of Ottawa graduate was fired from her job for the move and was criticized by many Parliamentarians who suggested it was disrespectful.
But DePape says she's convinced the best way to stop the Harper government is through protests like the one she staged.
DePape stood in the Senate chamber for about 20 seconds holding the sign on Friday before she was ushered out by security.
Corbett applications should usually be allowed
[3] The appellant had three prior convictions for break and enter and theft. Those convictions occurred between 12 and 14 years prior to his conviction on the within offence and took place when the appellant was a youth. The appellant had four more recent convictions, three for assault and one for uttering threats.
[4] In his Corbett ruling, the trial judge reviewed the appropriate authorities. However, in para. 23 of his ruling, he made what we view to be two errors. First, he determined that the record should be admitted because "he [the appellant] was well aware of aggressive behaviour. He was not a neophyte person who was confronted with a violent situation for the first or second time." As we read this reason, the trial judge was saying that the record of previous assaults should be admitted because it showed that the appellant had a disposition to violence. That was an error.
[5] Second, the trial judge said that it would be improper to exclude the appellant's record because the jury would not have a balanced view of the complainant in comparison to the appellant. However, the appellant had not cross-examined the complainant with respect to her character. He only challenged her version of the events giving rise to the charge. He was answering the charge, nothing more. This was not a case where the trial judge needed to admit the record in order to paint a balanced picture of the respective characters of the complainant and the accused.
It's the steady, quiet, plodding ones who win in the lifelong race.
Global warming and Canadian cities
http://www.theglobeandmail.com/news/politics/hot-enough-for-you-preparing-for-canadas-100-year-heat-wave/article2047055/
"The long-range forecast for Canadian cities is hot. And we're talking for the next 100 years or so."
Saturday, June 4, 2011
Retiring Liberal MPP Bruce Crozier dead
Premier Dalton McGuinty announced Crozier's passing early Saturday. He died Friday night of an aortic aneurysm in a Windsor hospital.
The affable Essex MPP was known for his bow ties and, as deputy speaker, his devotion to parliamentary procedure.
A member since winning a 1993 by-election, Crozier announced last November he would not be running in the Oct. 6 election.
How does a Hague Convention claim for the return of a child to her country of origin, when the child had been accepted in Canada as a Convention refugee, apply (especially in the context of parental abuse)?
A.M.R.I. v. K.E.R., 2011 ONCA 417 raises the important question of the rights of affected parties on an application under the Hague Convention for the return of a child to her country of origin, when the child had been accepted in Canada as a Convention refugee by reason of abuse by her mother.
The Court holds that, properly interpreted, there is no conflict between the Hague Convention and refugee status an exception to the Convention applies where there is danger to harm.
In the instant case, the failure to consider the exception, and the failure to allow the child to address the issue, rendered the return improper. The Court held:
(d) Conclusion
[87] To conclude on this issue, the case for conflict between s. 115 of the IRPA and s. 46 of the CLRA fails and the doctrine of federal paramountcy does not arise. A finding of refugee status accorded by the IRB to a child affected by a Hague Convention application gives rise to a rebuttable presumption that the removal of the child from
(3) Did the Application Judge Err in Ordering the Child’s Return to
[88] A Hague application judge’s decision attracts considerable deference from this court. As the mother’s counsel stressed during oral argument, appellate review of a Hague decision is not a hearing de novo or an invitation to relitigate the matters determined on the application: Katsigiannis at para. 30; Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (
[89] In this case, the one-sided nature of the Hearing undoubtedly hampered the application judge’s task. With no involved responding party, he was confronted with less than a comprehensive ‘paper’ record, submissions from only one party to the dispute and the obligation to determine the issue of the child’s return promptly. Further, as is frequently the case on a summary Hague application, the child whose return was sought was not before the court. However, a Hague application judge has the authority to arrange for the child to be brought before the court to express his or her views and preferences regarding the return request and, in exceptional cases, to require viva voce testimony from witnesses:
[90] It is against this backdrop that we consider the father’s and the OCL’s claim that the Hearing was fatally flawed and that the application judge made several errors justifying this court’s intervention.
(a) Failing to consider the child’s refugee status
[91] The application judge was aware of the IRB’s decision granting the child refugee status. Nonetheless, the Hearing transcript provides no comfort that he accorded any real weight to the child’s refugee status or to her entitlement to protection from refoulement. These were essential considerations on the inquiry as to whether the grave risk of harm and fundamental freedoms exceptions to return were triggered. We discuss this issue further in the next section of our reasons.
(b) Failing to consider exceptions to mandatory return
[92] The father and the OCL submit that the application judge erred by failing to consider the exceptions to mandatory return set out under the Hague Convention. We agree with this submission.
[93] The transcript of the Hearing reveals that the application judge was alive to some of the relevant issues under
Grave risk of harm and fundamental freedoms exceptions
[94] As we have indicated, the child’s refugee status gave rise to a rebuttable presumption that her return to
[95] Further, the record before the application judge included affidavit materials that, on their face, called into question some of the exceptions to return including, particularly, art. 13(b). It also indicated that the IRB had found the child to be a credible witness, accepted her refugee claim on the basis of abuse by her mother, and concluded that she had rebutted the strong presumption of
[96] This risk assessment was not undertaken. Indeed, the transcript contains no reference to arts. 13(b) or 20 at all. Instead, having recognized that the Refugee Convention was in play, the application judge appears to have simply accepted, without further inquiry, the mother’s bald denial of any abuse and counsel’s representations that the child’s abuse claims were “highly incredibl[e]” and inconsistent with the mother’s evidence regarding her relationship with the child.
[97] Moreover, by virtue of her status as a Convention refugee, the child’s s. 7 Charter rights to life, liberty and security of the person were engaged on the Hague application. In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 210, the Supreme Court held, in respect of refugee claimants, that due to the severe consequences of the denial of refugee status for those persons with a “well-founded fear of persecution”, it is “unthinkable that [s. 7 of] the Charter would not apply to entitle them to fundamental justice in the adjudication of their status”. The Supreme Court has also recognized that s. 7 Charter rights are implicated when it is sought to detain a permanent resident or foreign national on national security grounds or to remove a Canadian citizen or a Convention refugee from Canada under the IRPA and extradition processes: see Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9, at paras. 2-4; Németh at para. 70;
[98] There is no principled reason why a refugee child’s s. 7 Charter rights are not similarly engaged where the child’s involuntary removal under the Hague Convention from
[99] It follows that, on an application for the return of a refugee child under the Hague Convention, the child’s s. 7 Charter rights also mandate that a risk assessment be performed regarding the existence and extent of any persisting risk of persecution to be faced by the child on return from Canada to another country.
[100] This conclusion is buttressed by existing authorities regarding the circumstances in which an assessment of the risk of persecution must be undertaken: see Németh at para. 114 (in the context of a removal pursuant to the power of surrender under the Extradition Act); Ragupathy v.
[101] We therefore conclude that the application judge’s failure to conduct the risk assessment mandated by the child’s refugee status, the evidentiary record and the child’s s. 7 Charter rights is fatal to the order of return.
…
(c) Failing to ensure the child’s participation at the Hearing
[118] The father and certain interveners also argue that, because her s. 7 Charter rights were engaged, the child had a right to participate in the Hearing. In Suresh, at para. 113, the Supreme Court held that the same principles underlying the common law duty of procedural fairness underlie the procedural protections required by s. 7 of the Charter and that those protections must be applied “in a manner sensitive to the context of specific factual situations”. In Németh, at para. 70, the court held that these protections “generally [include] adequate disclosure of the case against the person sought, a reasonable opportunity to respond to it and a reasonable opportunity to state his or her own case” (citations omitted): see also Suresh at paras. 121-26; Charkaoui at para. 61.
[119] Based on this clear and consistent direction from the Supreme Court, we conclude that the same procedural protections apply to a refugee child whose return from
[120] An order of return under the Hague Convention has a profound and often searing impact on the affected child. Where the proposed return engages the child’s s. 7 Charter rights, as in this case, meaningful procedural protections must be afforded to the child. In our view, these include the right to: (1) receive notice of the application; (2) receive adequate disclosure of the case for an order of return; (3) a reasonable opportunity to respond to that case: (4) a reasonable opportunity to have his or her views on the merits of the application considered in accordance with the child’s age and level of maturity; and (5) the right to representation.
[121] In addition, at this point in the development of the law, there can be no serious debate that the affected parties, including the refugee child, are entitled to reasons for the Hague application judge’s decision: see R. v. Sheppard, [2002] 1 S.C.R. 869, at paras. 24 and 55; Young v. Young (2003), 63 O.R. (3d) 112 (
[122] In this case, the child received no notice of the Hague application or of the return date for the Hearing. Her views and preferences were not sought or obtained at the Hearing, nor, despite her aunts’ efforts, was she represented by counsel at the Hearing. In these circumstances, we have no hesitation in concluding that the child was denied procedural fairness and that her s. 7 Charter rights were infringed.
Friday, June 3, 2011
Once a claim abandoned relief based thereon improper
[1] The appellant's position rests on the trial judge's findings that he made a number of fraudulent misrepresentations that induced the respondent to enter into the contract.
[2] The statement of claim, as we read it, does plead fraud. However, as the appellant points out, the respondent's counsel stated at the outset of the trial that he was not making a claim of fraud.
[3] We agree that in these circumstances the trial judge could not grant a remedy based on fraud. We do not agree, however, that the trial judge was limited in how she could characterize the appellant's conduct, as long as the remedy she gave rested on causes of action that were pleaded and claimed, and supported by her findings.
Omnibus Crime Bill
Accordingly, the best thing to do now is to read the legislation as proposed and to make suggestions to make it work as well as it can.
For example, it seems pretty clear that significant mandatory sentences are going to be imposed on people growing marijuana. The idea is that this will deter drug dealers. The legislation will pass but perhaps careful review and comment can ensure it only affects those commercially growing.
Similarly, police are going to get the right to read otherwise private emails. Since the main focus of this is supposed to be terrorism and child pornography (both dreadful offences worthy of investigation) perhaps comment and review might lead to a limit so that police can use the power to review emails only if they have some grounds to think such crimes are involved.
Good faith discussion and review can help and it's all that can be done. Preserving Canadians' liberty is a worthy goal.
So, when the proposals come out, let's all read them carefully and see how they can be narrowed, focused and improved.
http://bit.ly/kfNunx
Tories to move quickly on election promise to pass crime bills all at once
GLORIA GALLOWAY
OTTAWA - Globe and Mail Update
The majority Conservative government is promising to move quickly to implement the slate of law-and-order legislation that died when the election was called in March.
...
There were at least 10 bills addressing justice and public-safety issues that the government had introduced but not managed pass into law before the writ was dropped. Some of them were in their second and third incarnations after dying during earlier prorogations and the 2008 election called by Prime Minister Stephen Harper.
Mr. Harper promised during the election campaign that those bills would be bundled into one piece of omnibus legislation that would become law within 100 sitting days of Parliament.
It is unknown which of the unpassed bills will be included. They are a varied lot with wide-ranging ambitions.
One would impose mandatory minimum sentences for a slate of drug crimes, one would prevent judged from imposing house arrest for a number of serious property and personal crimes, three would increase the ability of police to conduct electronic surveillance. One would allow Canadian victims of terrorism to sue terrorists and the foreign states that harbour them.
Some of them are controversial for the number of increased number of people they would put behind bars at a time when crime rates are dropping. The government acknowledges that billions of dollars of prison expansion will be needed to house all of the additional convicts.
MPs should represent people, not geography
There is some merit in saying Canada needs to ensure minimum local representation even if that means some seats are elected on small voter bases.
So, for example, there needs to be (and is) an MP from Nunavut even though the population would not justify it in, say, southern Ontario. The Maritimes may well have a similar justification for more MPs than their population would otherwise suggest.
Similarly, Quebec needs to have a significant voice in Parliament.
But under the reforms as they appear now (and yes details are important) Quebec still has a legitimate voice and the North and Maritimes are not marginalized.
Broadly speaking there should be one Member of Parliament for 110,000 people.
Variations from that are needed in unusual circumstances (see Nunavut) and variations will arise where populations shift (see, for example, the rapid growth in Oshawa).
But overall, there should be MPs to represent people - not MPs to represent geography. So long as the newly created Ridings are set up in a non-political way they are totally appropriate.
The Globe writes:
"The Harper government's plan to enlarge the House of Commons has touched a raw nerve with Jean Charest's Quebec government, even as Western premiers praise the idea.
...
The premiers are reacting to news that the Conservative government plans to introduce legislation this fall to increase the number of MPs from Ontario, British Columbia and Alberta, so that their growing populations are properly reflected in the House of Commons.
...
Enough of that, said Alberta Premier Ed Stelmach on Thursday.
"Our representation should reflect the size of our growing population – just as it should in any province," he said in a statement. "To not allow this is to tell Albertans they are not equal to other Canadian voters."
...
But the new legislation could see Quebec's share of the total seats in the House of Commons drop below its current level of 24 per cent, which is slightly above the 23 per cent that is province's share of the national population.
"We are opposed to any decrease in Quebec's weight in federal institutions including the House of Commons," Intergovernmental Affairs Minister Pierre Moreau told The Globe and Mail Thursday night.
...
Mr. Moreau said Premier Jean Charest recently reiterated Quebec's position to Prime Minister Harper and was baffled by Ottawa's insistence on moving to revamp Parliament against Quebec's will.
...
Veteran NDP MP Joe Comartin argued that any redistribution must ensure that Quebec receives a minimum 25 per cent of the seats in that House, its traditional share. The NDP is now the dominant party in Quebec at the federal level.
National Post: Canada’s utterly failed drug policy
"And yet, shockingly, a Conservative Canadian government, which purports to understand capitalism, proposes to re-introduce legislation that would impose mandatory minimum sentences for small-scale marijuana growers. This ridiculous policy seems designed to keep the trade in the hands of criminal lowlifes, who police can then pursue and hopefully catch and prosecute — if there's room in a courtroom and a judge is free some time in the next seven years, that is."
Causation in negligence -- a useful British Columbia decision
Ediger v. Johnston, 2011 BCCA 253 is a good source for the current law on causation.
In this sad case a child was tragically injured during delivery. The defendant obstetrician was negligent in failing to have a back-up surgical team “immediately available”.
That said, the negligence was not the cause of the injury – the failure to have back-up team immediately available did not, in itself, lead to any harm. Accordingly the negligence claim failed.
The Court holds:
[67] Causation in negligence is determined by the “but for” test. The test requires the plaintiff to prove, on a balance of probabilities, that “the injury would not have occurred but for the negligence of the defendant”: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 15.
[68] There are two aspects to the causation inquiry. The first requires the plaintiff to identify the specific acts of negligence by the defendant that caused the specific harm to the plaintiff. This is sometimes referred to as the cause-in-fact (i.e., factual causation) of the plaintiff’s injuries and requires a substantial connection between the defendant’s negligent act and the harm to the plaintiff. The second aspect of the inquiry requires the plaintiff to establish the proximate cause between the defendant’s negligent conduct and the plaintiff’s loss or harm. This is sometimes referred to as the cause-in-law (i.e., legal causation) and requires the loss or harm caused by the negligent conduct to fall “within the range of that for which it is just to make the defendant responsible” (W.V.H. Rogers, Winfield and Jolowicz on Tort, 17th ed. (
[69] The interplay between factual and legal causation is described in Winfield and Jolowicz on Tort at 6-3:
... “Causation in Fact”, is concerned with a question which arises (at least in theory) in every case, that is to say, whether the defendant’s act (or omission) should be excluded from the events which contributed to the occurrence of the claimant’s loss. If it is so excluded, that is the end of the case, for if there is no connection between the defendant’s act and the loss there is no reason for a private law system of liability to operate with regard to him. ... If we conclude that it was, we move on to consider whether it was a sufficiently legally effective cause among the complex of other causes (and there may be many) to justify imposing tort liability on the defendant.
[70] Thus, if the plaintiff cannot establish factual causation that ends the inquiry: without cause-in-fact, there can be no cause-in-law.
[71] The “but for” test has given rise to two theories of causation. The strict theory of causation requires that the defendant’s negligent act must fall “within the risk” (in Winfield and Jolowicz on Tort it is described as “within the range”) or be the “real causa causans” of the plaintiff’s harm or loss. In other words, the loss or harm “must result from the type of risk to which plaintiffs expose themselves, not from a totally different hazard”: Allen M. Linden in Canadian Tort Law, 8th ed. (LexisNexis Butterworths, 2006) at 490.
[72] The source of the less stringent theory of causation was McGhee v. National Coal Board, [1923] All E.R. 1008, 1 W.L.R. 1 (H.L.). In that case, the Court found that causation was established if the defendant’s negligent act merely created a risk of harm or a “mere causa sine qua non” without which the plaintiff would not have suffered his or her loss or harm. In other words, the plaintiff was only required to prove that his or her injuries fell within the ambit of the risk of harm created by the defendant’s negligent act.
[73] While proof of causation in medical malpractice cases can be challenging, in Snell v. Farrell, [1990] 2 S.C.R. 311 the Supreme Court of Canada rejected the less stringent approach from McGhee and adopted the strict theory of causation. For the Court, Mr. Justice Sopinka reasoned as follows:
[26] ... Is the requirement that the plaintiff prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury too onerous? Is some lesser relationship sufficient to justify compensation? I have examined the alternatives arising out of the McGhee case. They were that the plaintiff simply prove that the defendant created a risk that the injury which occurred would occur. Or, what amounts to the same thing, that the defendant has the burden of disproving causation. If I were convinced that defendants who have a substantial connection to the injury were escaping liability because plaintiffs cannot prove causation under currently applied principles, I would not hesitate to adopt one of these alternatives. In my opinion, however, properly applied, the principles relating to causation are adequate to the task. Adoption of either of the proposed alternatives would have the effect of compensating plaintiffs where a substantial connection between the injury and the defendant’s conduct is absent.
[74] In Snell, the plaintiff lost her eyesight after cataract surgery. An anaesthetizing injection caused bleeding behind the plaintiff’s eye. The ophthalmologist surgeon was found negligent in failing to detect the bleed during the surgery and discontinue the operation. There were two possible causes for the resulting atrophy to the optic nerve: the undetected bleed during the surgery or natural causes. Neither of the medical experts at trial could state with any certainty which of these events caused the injury to the optic nerve and consequential loss of the plaintiff’s eyesight.
[75] The trial judge ruled out natural causes. He held that the defendant doctor’s negligence had increased the risk of damage to the plaintiff’s eye, and that the loss of the plaintiff’s eyesight fell within the scope of that risk (which utilized the now rejected test in McGhee). The decision was upheld on appeal. On further appeal to the Supreme Court, the decision was upheld, although the McGhee reasoning was rejected. Instead, the Court concluded that where the defendant was in a better position to observe and interpret what occurred, and it was impossible for anyone else to detect the precise cause of the injury, the plaintiff could rely on a common sense inference that the bleed during the surgery caused the injury.
[76] The Supreme Court of Canada confirmed its adoption of the strict theory of causation in St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491. On the issue of the scope of the risk of harm necessary to find causation, the Court stated:
[116] The Court of Appeal appropriately said that it is insufficient to show that the defendant created a risk of harm and that the harm subsequently occurred within the ambit of the risk created. To the extent that such a notion is a separate means of proof with a less stringent standard to satisfy, Snell, supra, and definitely [Laferriere v. Lawson, [1991] 1 S.C.R. 541] should have put an end to such attempts at circumventing the traditional rules of proof on the balance of probabilities.
[77] More recently, in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, Chief Justice McLachlin, for the Court, explained the requirement of a substantial connection between the defendant’s negligent conduct and the plaintiff’s injuries in order to meet the burden of the “but for” test:
[23] The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J. [Emphasis added.]
[78] In Resurface, the Court rejected the notion that the material contribution test could be a substitute for the “but for” test and reiterated the default test of cause-in-fact as set in Snell, Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 14, Walker Estate v.
[79] In Athey, the Court observed that “the courts have recognized that causation is established where the defendant’s negligence ‘materially contributed’ to the occurrence of the injury” (para. 15). However, the phrase “material contribution” in this statement from Athey is not synonymous with the “material contribution test” referred to in Resurface. The distinction between the two was explained by Mr. Justice Smith, for the majority, in Sam v. Wilson, 2007 BCCA 622:
[109] “Material contribution”, as that phrase was used in Athey v. Leonati, is synonymous with “substantial connection”, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke. This causal yardstick should not be confused with the “material contribution test”. As McLachlin C.J.C. explained in Resurfice Corp. v. Hanke, at paras 24-29, the “material contribution test” applies as an exception to the “but for” test of causation when it is impossible for the plaintiff to prove that the defendant’s negligent conduct caused the plaintiff’s injury using the “but for” test, where it is clear that the defendant breached a duty of care owed the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and where the plaintiff’s injury falls within the ambit of the risk.
[80] In this particular case, the material contribution test was not applicable because it was not impossible for the respondent to prove that the appellant’s negligent conduct caused Cassidy’s injuries. The “but for” test of causation required the respondent to establish, on a balance of probabilities, a substantial connection between the risk of harm caused by the appellant’s negligent acts (the breach of the “immediately available” standard of care and/or failure to obtain Mrs. Ediger’s informed consent) and the resulting injuries to the respondent. In other words, in order to succeed, the respondent had to demonstrate that Cassidy’s injuries fell within the type of risk to which Mrs. Ediger was exposed, i.e., the forceps procedure, and that the appellant’s negligent conduct was the cause-in-fact or a “real causa causans” of Cassidy’s injuries
