Sunday, August 7, 2011
Bob Rae and NDP Leader Nycole Turmel
Interesting piece in the Star about Bob Rae and NDP Leader Nycole Turmel.
But the most interesting passage is not the most obvious:
"Friday, Rae aimed at Harper over his cuts to government services.
Curiously, during a walkabout in her riding earlier in the week, Turmel refused to comment when asked about them."
Perhaps no one knew Turmel's separatist leanings because she kept quiet about them? Regardless, a reticent Leader of the Opposition is almost a contradiction in terms.
My Alma mater
Saint Thomas was an important councillor to Henry VIII of England and, for three years toward the end of his life, Lord Chancellor. He is recognised as a saint within the Catholic Church and is commemorated by the Church of England as a 'Reformation martyr'. He was an opponent of the Protestant Reformation and in particular of Martin Luther, and William Tyndale.
Oddly I went to the same primary school as Saint Thomas (albeit a few years later). I knew the school was old -- what I didn't realize was the school was established in 1440. Maybe that's why I'm old-fashioned about some things???
Death of an appellant and mootness
Simon Fraser University v. Noble, 2011 BCCA 334 deals with the death of a party to litigation and mootness. Professor David Noble was involved in freedom of information litigation with Simon Fraser. He had appealed a decision against production to the British Columbia Court of Appeal. While the appeal was pending Professor Noble died; an application was brought to substitute others form Professor Noble so the legal issue could be resolved. The Court held that was not appropriate and the matter was moot:
[1] These appeals arise from a request made by the late David Noble, pursuant to ss. 4 and 5 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, [FIPPA], for copies of documents said to be in the custody or under the control of Simon Fraser University (“SFU”). A delegate of the Information and Privacy Commissioner held that those documents are in the control of SFU, but her decision was set aside by a judge of the Supreme Court of British Columbia on judicial review. Two appeals were taken from the judge’s order. Professor Noble died prior to the hearing of those appeals and, as a result, applications were brought to substitute two persons to take his place as an appellant. However, this Court dismissed those applications and the appeals as moot, all with reasons to follow. As SFU did not seek costs of the appeals, this Court made no order as to costs.
…
[16] It is clear from R. v. Smith, 2004 SCC 14 (CanLII), 2004 SCC 14, [2004] 1 S.C.R. 385, that when an appeal has been rendered moot by the death of the appellant, an appellate court has the discretion to substitute a “live” appellant and resolve the matters in dispute. However, as stated by Mr. Justice Binnie (in para. 4):
[T]he discretion to hear the appeal of an individual who dies pending the hearing of his or her appeal should be exercised only in exceptional circumstances where the death of the appellant is survived by a continuing controversy which, notwithstanding the death of the individual most directly affected by the appeal, requires resolution in the interests of justice.
[17] In discussing the approach an appellate court should take in deciding to substitute a “live” appellant and carry on with an appeal, Binnie J. stated:
[50] In summary, when an appellate court is considering whether to proceed with an appeal rendered moot by the death of the appellant (or, in a Crown appeal, the respondent), the general test is whether there exists special circumstances that make it “in the interests of justice” to proceed. That question may be approached by reference to the following factors, which are intended to be helpful rather than exhaustive. Not all factors will necessarily be present in a particular case, and their strength will vary according to the circumstances:
1. whether the appeal will proceed in a proper adversarial context;
2. the strength of the grounds of the appeal;
3. whether there are special circumstances that transcend the death of the individual appellant/respondent, including:
(a) a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;
(b) a systemic issue related to the administration of justice;
(c) collateral consequences to the family of the deceased or to other interested persons or to the public;
4. whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal;
5. whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing, legislative-type pronouncements more properly left to the legislature itself.
[51] What is necessary is that, at the end of the day, the court weigh up the different factors relevant to a particular appeal, some of which may favour continuation and others not, to determine whether in the particular case, notwithstanding the general rule favouring abatement, it is in the interests of justice to proceed.
[18] In British Columbia (Securities Commission) v. Eilers, 2010 BCCA 134 (CanLII), 2010 BCCA 134, 317 D.L.R. (4th) 407, this Court declined to allow the husband of a deceased appellant to carry on with her appeal from a finding by the British Columbia Securities Commission that she had violated the Securities Act, R.S.B.C. 1985, c. 418. In reaching that conclusion, Mr. Justice Chiasson stated:
[35] The Supreme Court of Canada has made it very clear that moot appeals should be continued only in “rare and exceptional” circumstances. In Smith the Court was alive to the desire of the deceased’s family to clear the deceased’s name. This must be true in many cases like the present, but more is required. There must be evidence of some effect on the estate of the deceased or on others. That is lacking in this case.
Honour Killings and Domestic Violence
The Shahdady murder at first seemed to be a typical, if especially brutal, instance of domestic violence.
Shahdady emigrated to Canada from Pakistan with her family as a baby. She was sent back to Pakistan to study at 13, and at 18 was married to Rustam, a cousin six years her senior.
The circumstances of her death are especially concerning. Tarek Fatah, a founder of the Muslim Canadian Congress, says she was killed because Rustam couldn't tolerate his wife's failure to wear a head-to-toe veil and because she associated with other men on Facebook.
Fatah says the death was an honour killing; if so the Shahdady case raises some very troubling issues.
From the standpoint of Shaher Shahdady it doesn't make much difference why she was killed; she is dead and nothing will change that. But from a societal standpoint why she died matters a great deal.
Honour killing is rare. There have been slightly more than a dozen or so honour killings in Canada in the last decade. That compares to over forty domestic violence killings in Ontario every year. A woman murdered by her partner is very unlikely to have died in an honour killing. But mere numbers do not reveal the nature of the problem.
Very few people are killed by terrorist acts in North America and Europe. But those rare deaths have had the effect of changing the behaviour of society in profound ways. The free movement of people and goods has been imperiled and friendly relations among people of different faiths and backgrounds questioned. And yet these changes have been brought about by a very few incidents. It is not so much the fact of terrorism as the threat of terrorism that is important.
It is the same thing with honour killings.
Honour killings are directed at forbidding women from living their lives as they see fit. The women killed are the victims of the murders but the crimes are directed at a much larger audience.
Recently a graduate student from the University of British Columbia was blinded and maimed, apparently at the hands of her husband, while visiting her family in Bangladesh. The apparent motive for the crime was her decision to go ahead with higher education. Although only one individual was attacked the lesson was directed at all women both here and in Bangladesh. The lesson was that women do not have the right to chose how to live. Women must be subservient to their fathers, brothers and husbands.
Ordinary domestic violence usually arises in the context of a dysfunctional power relationship. While wrong and immoral the purpose of the violence is to attack the immediate victim being the spouse. While usually domestic violence involves an attack on a woman, there are numerous cases of men being assaulted and gender roles are not invariably involved in the violence.
Honour killings (or honour violence more generally) involves an attack for the purpose of showing that the actions of the victim, who is almost always a woman, are such as to deserve punishment. The lesson is that stepping out of line can lead to death or maiming. The immediate victim is somewhat irrelevant as the goal is deterrence of other women who may be considering such conduct. As the conduct almost always involves the exercise of a life choice by a woman the deterrence is an attempt to limit rights of women.
As a result honour killings have a broader effect on society and need close scrutiny. Domestic violence is wrong and must be curtailed -- honour killing takes domestic violence to a new height and needs to be rejected even more strongly. That does not mean we need another statute but it does mean that community leaders, and judges at sentencing, have to recognize honour killing for what it is, a form of domestic terrorism.
Saturday, August 6, 2011
Domestic violence or honour killing?
From the standpoint of the deceased it doesn't make much difference. But from a societal standpoint it matters.
Domestic violence is an attack on a spouse and is intended to punish the spouse or to vent anger against the spouse. Such violence arises in the context of a dysfunction power relationship. The key, though, is the purpose of the violence is to attack the immediate victim being the spouse.
Honour killings (or honour violence more generally) involves an attack for the purpose of showing that the actions of the victim are such as to generate punishment. The immediate victim is somewhat irrelevant as the goal is deterrence of others who may be considering such conduct. As the conduct almost always involves the exercise of choice by a woman the deterrence is an attempt to limit rights of women.
As a result honour killings have a broader effect on society and need close scrutiny. Domestic violence is wrong and must be curtailed -- honour killing takes domestic violence to a new height and needs to be rejected even more strongly.
Friday, August 5, 2011
"Progressive policies follow from progressive values. Get clear on your values and use the language of values. Drop the language of policy wonks"
A very helpful book about how language defines debate and ultimately decides who wins elections.
Worth reading.
"Ms. Turmel publicly reaffirmed her commitment to federalism this week by promising to not renew her membership in another separatist party, Quebec Solidaire, when it expires."
My concern is not so much with Ms. Turmel's former membership in the Bloc as her current membership in Quebec Solidaire.
Apart from the fact the Leader of the NDP remains a member of a separatist party (that concerns me) is the type of separatist party. Quebec Solidaire is a very far left group -- the sort that organizes boycott rallies outside shoe stores selling Israeli sandals. The idea of an evolved NDP as plausible government in waiting does not sit well with Quebec Solidaire.
Domain name is "personal property"
The attributes of property for purposes of rule 17.02(a)
[56] The term "personal property" is not defined in the Rules of Civil Procedure. The fact that this term is not defined leads me to the common law attributes of property.
[57] There is no agreed list of required attributes of "property" at common law. One academic author, Professor Ziff, in Principles of Property Law, 5th ed. (Toronto: Carswell, 2010), describes property in this way at p. 2:
From an intuitive perspective the idea of property is perfectly straightforward: the term refers to those things one can own. Although it is both sensible and common to use such language, the law offers a different slant, one that tends to dwell more on the owning element. Property is sometimes referred to as a bundle of rights. That characterization means that property is not in fact a thing, but rather a right, or better, a collection of rights (over things) enforceable against others. Likewise, it has been said that "[t]he concept of ownership is no more than a convenient global description of different collections of rights held by persons over physical and other things". Explained another way, the term property signifies a set of relationships among people that concern claims to tangible and intangible items.
[58] The version of this passage that appeared in the third edition of Professor Ziff's book was cited with approval by Sharlow J.A. in Manrell v. Canada, [2003] F.C. 727 (C.A.), at para. 24. From this passage, Sharlow J.A. concluded at para. 25 that "[i]t is implicit in this notion of 'property' that 'property' must have or entail some exclusive right to make a claim against someone else. A general right to do something that anyone can do, or a right that belongs to everyone, is not the 'property' of anyone."
[59] Another well-respected academic author, J.W. Harris, in Property and Justice (Oxford: Clarendon Press, 1996) states at p. 139:
'Property' designates those items which are points of reference within … the rules of a property institution, viz., trespassory, property-limitation, expropriation and appropriation rules. Such items are either the subject of direct trespassory protection or else separately assignable as parts of private wealth.
Therefore, 'property' comprises (1) ownership and quasi-ownership interests in things (tangible or ideational); (2) other rights over such things which are enforceable against all-comers (non-ownership proprietary interests); (3) money; and (4) cashable rights. That is what 'property' is.
[60] Ziff summarizes his description of property as signifying, "a set of relationships among people that concern claims to tangible and intangible items". Harris refers to property as comprising an ownership interest in something that is "ideational", which I understand to mean something intangible that has been conceived by the mind. Of note, Harris and Ziff both emphasize that property is a collection of rights over things that can be enforced against others. Such a concept can be seen in the jurisprudence as well. In Saulnier v. Royal Bank of Canada, [2008] 3 S.C.R. 166, Binnie J. considered whether a fishing licence constituted "property" under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 ("BIA"), and the Nova Scotia Personal Property and Security Act, S.N.S. 1995-96, c. 13 ("PPSA"). He concluded that while a simple licence was likely not property at common law, the bundle of rights attached to the fishing licence was sufficient to qualify it as property for the purposes of the BIA and the PPSA. In particular, the holder of such a licence had a right to engage in an exclusive fishery under the conditions imposed by the licence, and a proprietary right in the fish harvested and the earnings from their sale. Binnie J. further commented that the licence unlocked the value in the fisherman's other marine assets. The subject matter of the licence, coupled with a proprietary interest in the fish caught pursuant to its terms, bore a reasonable analogy to a common law profit ŕ prendre which was undeniably a property right: see paras. 14, 16, 23, 28, 34 and 43.
[61] In giving a purposive interpretation to the legislation in issue in Saulnier, Binnie J. rejected the traditional common law approach that was followed in Re National Trust Co. and Bouckhuyt (1987), 61 O.R. (2d) 640 (C.A.). In Bouckhuyt, Cory J.A. held at p. 648: "The notion of 'property' imports the right to exclude others from the enjoyment of, interference with or appropriation of a specific legal right. This is distinct from a revocable licence, which simply enables a person to do lawfully what he could not otherwise do". Cory J. went on to hold that the tobacco quota in issue did not qualify as "intangible personal property" under Ontario's Personal Property Security Act, R.S.O. 1990, c. P.10, as renewal of the quota was subject to the "unfettered discretion" of the Tobacco Board and the quota itself was "transitory and ephemeral".
[62] The bundle of rights associated with the domain name <renner.com> that Tucows has (as purchaser and registrant) satisfies the attributes of property as described by Harris and Ziff in that at present Tucows can enforce those rights against all others.
[63] As in Saulnier, Tucows derives income from being the holder of the rights in the domain name <renner.com>.[9] It has fourteen clients who subscribe to personal e-mail services using the domain name. If the domain name were to be transferred to Renner, it would undoubtedly assist in unlocking the value of Renner's business. The registered owner of the domain name has the right to exclusively direct traffic to the domain name's corresponding website and to exclude anyone else from using the same name. The ability to exclude others from the enjoyment of, interference with or appropriation of a specific legal right was held by Cory J. in Bouckhuyt, as a necessary incident of property. Unlike the situation of the tobacco quota in Bouckhuyt, renewal of the registration of a domain name at the end of any term for which it has been licensed is not subject to an unfettered discretion but to the UDRP and the UDRP Rules.
[64] While the decisions in Kremner, Saulnier, and Bouckhuyt and the academic commentators all emphasize exclusivity of a right as an essential aspect of property, other judicial decisions, such as National Provincial Bank Ltd. v. Ainsworth, [1965] A.C. 1175 (H.L.), hold that other requirements must also be met. In National Provincial Bank, Lord Wilberforce stated at pp. 1247-48 that, "[b]efore a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability." A domain name also satisfies this definition of property.
[65] I have already discussed what a domain name is. To summarize, a domain name is an intangible or ideational thing consisting of two parts, one being numerical and the other being a distinctive readable address, that enables an internet user to access a web page. The rights that Tucows has in the domain name <renner.com> have been identified by Renner. Before the WIPO tribunal, Renner sought to have Tucows's registration set aside and to assume it. Tucows's ownership of the domain name has a degree of permanency; it has owned the domain name since 2006.
[66] Thus, based on the above definitions from Canadian and other common law jurisprudence, Tucows has a bundle of rights in the domain name <renner.com> that constitutes "personal property" within the meaning of rule 17.02(a).
John Oakley Show
One interesting question that came up was should judges be elected? I say they should not be but what do readers think?
$250M overtime suit against Scotia can proceed
The
When a class action is certified, a single lawsuit can be brought on behalf of a group of people who are seeking relief in cases that raise common issues. It is much more cost effective for individuals and the courts if multiple, similar claims can be disposed of in a single trial.
Once the courts permit a class action to proceed, the vast majority are settled before trial and the damages agreed upon are divided up among the members of the class, after legal fees. Therefore, the key battleground is the early application for certification.
Expanding the meaning of 'dangerous offender'
Thursday, August 4, 2011
Treat the police with respect and caution
Any time you are dealing with the police always be polite. Address the officer as "Officer". Never lie to the police; you can decline to answer questions but you must never lie.
Never take any action that might be seen as hostile. If you need to, for example, get your wallet say "Officer, may I take out my wallet" and, on being given permission, slowly take out your wallet. You do not want the police to think you are reaching for a weapon.
Never be emotional in front of police. Do not yell or cry or act as if panicked. Even if you are upset, act as calmly as you can.
If arrested do not struggle -- just acquiesce.
On arrest you do have a right to remain silent and the right to consult a lawyer. Exercise those rights -- do not answer any questions beyond identifying yourself (legally you don't even have to do that but it's imprudent not to).
(If you are driving a car you have to produce a licence, insurance and ownership when pulled over).
Police do not a have a right to search you, your car or house or office without cause and, in most cases, a warrant. They can ask to "look around" and you can consent. You do not need to consent. You may politely refuse.
The key is to be polite. Treat the police with respect and caution.
Mother devastated after death of disabled son
Allison Cross
Staff Reporter
Frantic that she may have torn up one of her photos of her dead son in a haze of grief, Ann McGillivary rifled through one her drawers on Thursday morning looking for it.
"I don't think I have it," she said, sighing and shaking her head from side to side. "And I don't have nothing right now, because he's dead."
Ann's son, Charles McGillivary, collapsed and died while being arrested by police at the corner of Christie and Bloor Sts. on Monday night.
Because of a childhood accident, he couldn't speak.
...
On Monday, McGillivary walked several paces ahead of Ann, as he often did, unsmiling, with his arms held flat against his body. Ann didn't see the police initiate the arrest.
"I asked (the police), 'Why is Charlie on the ground?'" Ann said. "I told them he can't answer you. He's mentally retarded. He can't speak. He can't answer you. He uses signs."
The police told her to "shut up" and back away from the scene, Ann said.
She said she saw McGillivary's face turn blue. She believes he went into cardiac arrest.
He was taken to Toronto Western Hospital, where he died.
When Ann pleaded with police for a ride to the hospital, police told her to get a cab, she said.
Although she was eventually offered a spot in the ambulance, a friend drove her to the hospital, where they waited for news about her son's condition. But Ann already knew he was dead.
Although the most acute judges of the witches and even the witches themselves, were convinced of the guilt of witchery, the guilt nevertheless was non-existent. It is thus with all guilt. Friedrich Nietzsche
But if we have a choice, and even a constrained choice, then guilt may have a reality.
Of course, the relationship of guilt to crime is not as obvious as some suggest. And much crime is driven by circumstance.
That said, Nietzsche's point is worth thinking over even if best ultimately rejected.
Lengthy delay in granting reasons may be basis for an appeal
[26] On May 4, 2011, the date on which the appeal had been originally scheduled to be heard, the trial judge distributed via e-mail her written reasons for her April 8, 2009 ruling. No explanation was offered for the two-year delay in the release of her reasons.
[27] The reasons fill 42 single-spaced pages. They contain a detailed summary of all of the evidence. In the reasons, the trial judge thoroughly examined, compared and parsed the conflicting evidence of the various witnesses. Her reasons focused particularly on the evidence of the two main police witnesses. She summarized and analyzed that evidence at length. The trial judge found that those two officers had perjured themselves in an attempt to create a legal justification for the stop of the vehicle and the search of Mr. Cunningham and Mr. Matthews. In respect of their testimony concerning the decision to stop the vehicle, the trial judge said, at para. 166:
In the end, no matter what the motive or motives may have been for the decision to follow and then stop the defendants, I had no doubt that these officers concocted the version of events upon which they later relied in order to be able to support the constitutionality of the detention and the admission of the evidence at trial.
[28] The trial judge reached an equally damning conclusion in respect of the officers' contention that they searched Cunningham and Matthews out of legitimate safety concerns. She said, at para. 176:
Because of the officers' decision to lie about the circumstances, there was no reliable or credible evidence before me to support an inference that a constellation of facts led to a reasonable concern for the presence of weapons or that the pat-down search was justified by the constellation of facts and the additional information regarding Mr. Matthews.
[29] The thrust and tone of the trial judge's findings in respect of the officers' conduct is found in para. 194:
I was satisfied that the police flagrantly and intentionally violated the defendants' rights under both sections 8 and 9 of the Charter. They then egregiously supported their actions by providing a false account of the events leading up to it. All of this occurred during a time when one of the officers was involved in the completion of the novice officer's training. In the particular circumstances, the evidence obtained by their actions simply could not be admitted.
...
[30] Like Teskey, this is not a case about the adequacy of the trial judge's reasons. It is common ground that the oral comments made by the trial judge on April 8, 2009 do not provide adequate reasons, but that the written reasons released by her on May 4, 2011, if properly considered, are sufficient. However, before turning to the question on which this appeal turns, it is helpful to reiterate the purposes served by reasons for judgment in a criminal case and the various constituencies those reasons serve. In Sheppard Binnie J. observed, at para. 15:
Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render. The courts frequently say that justice must not only be done but must be seen to be done, but critics respond that it is difficult to see how justice can be seen to be done if judges fail to articulate the reasons for their actions. Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts.
[31] Later, Binnie J. added the following, at paras. 24-25:
In my opinion, the requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.
The issue before us presupposes that the decision has been appealed. In that context the purpose, in my view, is to preserve and enhance meaningful appellate review of the correctness of the decision...
[32] In this case, the accused had important constitutional rights at stake. At least two of the police officers had their professional reputations on the line. In addition, the facts gave rise to at least two matters of important public concern, the proliferation of handguns in the city of Toronto and the use of racial profiling by the police. The public, the accused, and the police officer witnesses were entitled to reasons that truly set out the path taken by the trial judge through the conflicting evidence to the result announced in court. The Crown, as the losing party, was also entitled to reasons so that it could properly exercise its rights of appeal.
[33] Teskey instructs the appellate court to look for the requisite link between the decision and the reasons. That search begins from the "presumption of integrity" that reasons provided by the trial judge truly reflect the reasoning process leading to the decision: Teskey at paras. 2-19, 20. That presumption rests on the long and strong tradition of judicial independence and impartiality in Canada: Teskey, per Abella J. in dissent, at para. 33.
[34] The presumption of integrity can only be displaced by "cogent" evidence that would lead a reasonable person to apprehend that the written reasons are not the road map to the decision, but are instead an after-the-fact justification for the decision. That distinction can be hard to discern. Decisions are naturally made before the reasons are fully formulated much less articulated.
[35] Like the apprehension of bias inquiry, the determination of whether the presumption of integrity has been rebutted turns on the perception of the reasonable observer, considering the totality of the circumstances. This approach avoids the impossible task of deciding whether a particular set of reasons in reality describes the actual reasoning path taken by a judge: Teskey at para. 23.
[36] There are several features of this case that convince me that a reasonable observer would not see the written reasons as reflective of the actual reasoning path taken to the decision announced two years earlier. They are:
i. The length of time (25 months) between the ruling and the release of reasons.
ii. The trial judge's responses to the inquiries of counsel concerning the reasons.
iii. The comments made by the trial judge in the course of her ruling.
iv. The trial judge's knowledge that the Crown had launched an appeal and the grounds for that appeal.
v. The nature of the central issues in this case, namely, questions of credibility and findings of fact.
[37] I begin with the length of time between the decision and the reasons. There is no time limit on the delivery of reasons. However, the longer the passage of time between the decision and the reasons for the decision, the greater the concern that the requisite link between the two does not exist. Twenty-five months is a very long time – much longer than the eleven months in Teskey or the eighteen months in R. v. Port Chevrolet Oldsmobile Ltd. (2009), 246 C.C.C. (3d) 355 (B.C.C.A.), the authority primarily relied on by the respondent.
[38] The trial judge's responses to the repeated requests for the reasons also undermine the presumption of integrity. She offers no explanation for the two-year delay save the indication in October 2009 that "unanticipated and extenuating circumstances" had delayed the release of her reasons. In the same correspondence, she indicates they will be available at the end of the week. In fact, they were not available for over a year and a half.
[39] The trial judge not only offered no explanation for the delay, but also repeatedly, personally and through her assistant, advised counsel that the reasons would be available within a few days. While the failure to produce reasons within "a few days" as promised could be excused as undue judicial optimism, that explanation wears thin after the third or fourth time that the reasons are not forthcoming as promised. The inescapable reality is that the counsel received inaccurate information several times as to the availability of the reasons for judgment. Counsel were led to believe throughout the entire two-year time period that the reasons were only a matter of hours or days away.
[40] The comments made by the trial judge at the time she rendered her decision in April 2009 are also pertinent to the reasonable observer's determination of whether the written reasons eventually provided were linked to the decision made. From one perspective, the trial judge's comments in April 2009 support the existence of that link. Those comments provide a clear statement of the trial judge's "bottom line" on the various issues raised on the voir dire. There is no reason to doubt that her "bottom line" assessment was anything other than the product of a careful and honest consideration of the evidence and arguments. It is implicit in that "bottom line" that the trial judge rejected the police officers' evidence and that she regarded their conduct as sufficiently blameworthy to justify the exclusion of reliable and crucial evidence in a serious criminal case.
[41] Although one can readily infer in broad terms the essential credibility findings made by the trial judge from her oral comments, those comments offer no insight as to the basis upon which she reached those findings. This is not a case where the subsequent written reasons can be seen as supplementary to the briefer oral reasons given at the time the decision was announced. The absence of any analysis in the brief oral comments makes it more difficult to draw any connection between the decision and the ultimate reasons.
[42] A further aspect of the trial judge's oral comments is significant in considering whether the subsequent written reasons can be considered as proper reasons for judgment. In her brief oral comments, the trial judge indicated that her written reasons were complete as of the announcement of her decision and would be available that same day. Those comments cannot reasonably be read as indicating, as the trial judge suggested in her written reasons two years later (at para. 195), that the reasons would follow in the future. The trial judge's comments could only reasonably be understood as a representation that the reasons for judgment existed as of the time she gave her decision.
[43] In so holding, I would reject the suggestion that her comments could be understood as an indication that the reasons were substantially prepared, but needed some final finishing touches. Certainly, the two-year passage of time before the reasons were available, the language used in the reasons (see, for example, para. 195) and the absence of any explanation for the long delay support the inference that the written reasons were crafted entirely sometime after, and probably some considerable time after, the announcement of the decision. Reasons that are produced entirely after the fact can be the product, albeit subconsciously, of a result-driven reasoning process aimed at defending the decision announced rather than explaining the process that led to the decision: Teskey at para. 18.
[44] In the absence of any explanation, and having regard to the subsequent events chronicled above, I think a reasonable person would conclude that one of two things happened in this case. Either the trial judge inaccurately represented the existence of the reasons on April 9, 2009; or the reasons existed, but for some unknown reason the trial judge did not release those reasons, but eventually prepared a new set of reasons that were released two years later. Either possibility goes a long way to undermining the presumption of integrity described in Teskey.
[45] The trial judge's knowledge that the Crown had appealed her decision and was alleging that her oral reasons were inadequate is also an important factor in determining whether a reasonable observer would see the necessary link between the decision and reasons. The risk that reasons delivered long after a decision are more in the nature of an after-the-fact defence of that decision than a description of the path taken to it is particularly acute where, to the judge's knowledge, an appeal has been launched in which the adequacy of the reasons is challenged.
[46] The trial judge was aware of the Crown appeal shortly after it was launched. More significantly, she knew in February 2011 that the Crown appeal was going forward on the basis that her brief oral comments did not constitute reasons for judgment and that the appeal should be allowed on that ground. Within three months of receiving that information and on the very day the appeal had been scheduled to be heard, the trial judge delivered her lengthy detailed reasons which, if properly taken into account, fully answered the Crown's appeal.
[47] The mere fact that a trial judge is aware that an appeal has been launched when he or she delivers reasons for judgment does not mean that those reasons cannot be considered. As with other considerations, the existence of an appeal and the trial judge's knowledge of that appeal are but factors to be taken into account. In my view, however, a reasonable observer would, in the circumstances of this case, see the lengthy reasons delivered by the trial judge as motivated, at least in part, by the very natural desire to defend her decision against the specific challenge made by the Crown on appeal. That motivation, even if it operated entirely on a subconscious level, would lead to reasons that sought to justify the decision challenged on appeal rather than reveal the reasoning that led to the decision.
[48] Finally, the nature of the issues that had to be resolved on this Charter motion provides a further reason to doubt whether the written reasons are truly reflective of the trial judge's reasoning process. The Charter motion turned on findings of fact. Those findings required difficult credibility assessments that could only be made after a careful appraisal of conflicting, confusing and voluminous evidence. Proper reasons for judgment had to demonstrate a full appreciation and consideration of that evidence. It is very difficult for reasons prepared and delivered long after the decision to properly perform that function. Setting aside the ability to recall, months or years after-the-fact, features of the evidence that were relevant to credibility assessments, there is a real danger that, having publicly announced one's "bottom line" with respect to credibility assessments, the reasons will be written with a view to defending that conclusion rather than explaining the process that led to it: Teskey at para. 23.
[49] This is not a case like R. v. Port Chevrolet Oldsmobile Ltd. where the facts were not in dispute and the case turned on the application of legal principles to those facts: see paras. 59-60. In that kind of case, the risk that reasons delivered long after the fact do not reflect the reasoning process is significantly reduced.
[50] Though none of the factors discussed above is determinative, in combination they rebut the presumption that the written reasons truly reflect the reasoning process that led to the decision on the Charter motion. A reasonable observer would in the words of Teskey "apprehend that the written reasons are in effect an after-the-fact justification for the verdicts rather than an articulation of the reasoning that led to the decision": para. 23.
Wednesday, August 3, 2011
NDP vows to wean Ontario off nuclear power
http://bit.ly/qGDTuC
An NDP government would make retrofitting homes a priority over refurbishing nuclear reactors, says party leader Andrea Horwath.
...
Nuclear power currently accounts for about half of Ontario's electricity generation, but Howarth insisted that energy-saving measures and increased use of renewable power can make up for some of that.
Assessments of the credibility or reliability of exculpatory evidence in a criminal case
R. v. Bucik, 2011 ONCA 546, released on-line today, highlights the need for great caution when applying the test from R. v. W. (D.), [1991] 1 S.C.R. 742.
Spirit Bear from British Columbia
Disclosure of victim impact statements
R. v. Lonegren, 2011 BCCA 329 is a source for saying a victim impact statement, if in the Crown’s hands before trial, ought to be disclosed.
At a preliminary hearing, counsel for the accused noticed a victim impact statement in Crown counsel’s file. Crown counsel refused production on the basis that the statement was not relevant and opposed a defence application to the presiding
[32] In his ruling on the mistrial application, the trial judge found that the Crown was obliged to disclose the victim impact statement prior to trial. On appeal, the Crown takes no exception to this finding. The Crown was in breach of its disclosure obligations as explained in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.
Tuesday, August 2, 2011
Québec Solidaire
Raccoon Nation
NDP credibility under attack after Turmel’s Bloc ties revealed
I'm not sure how significant this is -- candidly I think we should be glad that people are leaving the Bloc and joining federalist parties.
That said, one thing did catch my attention -- Ms. Turnel's comment that she was a member of the Bloc and the NDP at the same time. Perhaps the NDP is different but my understanding of the Conservatives (and I know for a fact for the Liberals) is that you are not allowed to be a member of any other Federal Party at the same time you are a Conservative or a Liberal.
http://bit.ly/nh64Cj
The Conservatives are using new revelations about Nycole Turmel’s recent ties with the Bloc Québécois to attack the NDP’s credibility as a government-in-waiting.
Ms. Turmel became the interim leader of the NDP last week, while Jack Layton takes time off for health reasons. The rookie MP confirmed on Tuesday that she was a member of the Bloc from 2006 until January of this year, when she decided to run for the NDP in the spring election. She added that she had also been a member of the NDP for the last two decades.
IM records leading to a conviction
The defendant was a young high school teacher. The trial judge found that he and the complainant – then a 15-year old grade 10 student – carried on a sexual relationship between December 2006 and September 2007. Critical to the finding was records of instant messaging. The Court held:
[3] The evidence also included a series of MSN chat logs/emails extending over a lengthy period of time, as well as notes exchanged between the appellant and the complainant during classes that he supervised at the school. The MSN messages and notes were salacious and graphic in their description of sexual activities between the two, both past and intended. One final MSN chat/email occurred after the disclosure of the relationship; in it the appellant pleads for the complainant to lie about the relationship to save him and his job and to tell people she made it all up. The complainant declined to do so. The trial judge accurately characterized this MSN chat as "darkly compelling".
Acquisition of Easements by Prescription
IV. LAW & ANALYSIS
The Applicable Principles Methods of Acquisition of Easements by Prescription
[20] In law, there are three ways in which an easement may be acquired by prescription:
a) prescription at common law;
b) prescription by the doctrine of lost modern grant; and
c) prescription by statute (Real Property Limitations Act).
[21] Prescription at common law is no longer relevant. It requires use of the disputed right since "time immemorial." Time immemorial, for purposes of the period of legal memory is defined as the year 1189, the beginning of the reign of King Richard I. Obviously, a prescriptive right at common law is somewhat difficult to prove in modern times, particularly in Canada . It has been said that prescription by common law cannot exist here because there is no legal memory on which to found it: see A.H. Oosterhoff & W.B. Rayner, 2d ed. Anger and Honsberger: Law of Real Property, vol. 2 (Aurora, Ont.: Canada Law Book Inc., 1985), at p. 936, citing Abell v. Village of Woodbridge and County of York (1917), 39 O.L.R. 382 (H.C.), rev'd on other grounds 45 O.L.R. 79 (S.C. App. Div.).
[22] The doctrine of lost modern grant, on the other hand, "is alive" and – as Cory J.A. noted, drily, in Henderson v. Volk (1982), 35 O.R. (2d) 379 (C.A.), at p. 382 – "if not well is at least surviving in the province of Ontario." This doctrine was developed in common law jurisprudence to overcome the inconvenience of the common law rule (where the right could be defeated if it could be proven that the right claimed did not exist at any point in time within legal memory). Under the doctrine of lost modern grant, the courts will presume that there must have been a grant made sometime, but that the grant had been lost. Uninterrupted user as of right at any point in time will create the prescriptive right under this doctrine, provided it was for at least 20 years.
[23] Cory J.A. described the doctrine of lost modern grant in Henderson v. Volk, at pp. 382-383: The doctrine indicates that where there has been upwards of 20 years uninterrupted enjoyment of an easement and such enjoyment has all the necessary qualities to fulfil the requirements of prescription, then apart from some aspects such as incapacity that might vitiate its operation but which do not concern us here, the law will adopt the legal fiction that such a grant was made despite the absence of any direct evidence that it was in fact made. It should be emphasized that the nature of the enjoyment necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under the Limitations Act. Thus, the claimant must demonstrate a use and enjoyment of the right-of-way under a claim of right which was continuous, uninterrupted, open and peaceful for a period of 20 years. However, in the case of the doctrine of lost modern grant, it does not have to be the 20-year period immediately preceding the bringing of an action. As well, the enjoyment must not be permissive. That is to say, it cannot be a user of the right-of-way enjoyed from time to time at the will and pleasure of the owner of the property over which the easement is sought to be established. [Citations omitted.] See also Rose v. Krieser (In Trust) (2002), 58 O.R. (3d) 641 ( C.A. ).
[24] As the years passed, the doctrine of lost modern grant was found to be more and more unsatisfactory, because it called upon juries to presume the existence of a lost grant as a fact, even where they did not believe it existed. The English Prescription Act 1832, 2 & 3 Will. 4, c. 71, may have been enacted, at least in part, to overcome this problem.
[3] Its preamble states that it was enacted to prevent common law claims from being defeated by evidence of the commencement of user after 1189 (the very rationale for the development of the doctrine of lost modern grant). Sections 31 and 32 of the Ontario Real Property Limitations Act echo the language of the 1832 legislation.
[25] The wording of these sections is tortuous at best.
[4] Stripped to their essentials, for purposes of this appeal, they read as follows:
Right of way, easement, etc.
31. No claim that may be made lawfully at the common law, by … prescription or grant, to any way or other easement … when the way … has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way … was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way … has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. How period to be calculated, and what acts deemed an interruption
32. Each of the respective periods of years mentioned in [section] 31 shall be deemed and taken to be the period next before some action wherein the claim … to which such period relates was or is brought into question, and no act or other matter shall be deemed an interruption within the meaning of those sections, unless the same has been submitted to or acquiesced in for one year after the person interrupted has had notice thereof, and of the person making or authorizing the same to be made.
[26] Sections 31 and 32 do not displace the right to establish a prescriptive easement based on the doctrine of lost modern grant, which continues to exist in this province: Henderson v. Volk, at p. 382; MacRae v. Levy (2005), 28 R.P.R. (4th) 291 (Ont. S.C.), at para. 59; Graeme Mew, The Law of Limitations, 2d ed. (Markham, Ont.: LexisNexis Canada Inc., 2004), at p. 237. Moreover, the nature of the enjoyment necessary to establish a prescriptive easement under the doctrine of lost modern grant is precisely the same as that required for a prescriptive easement under the statute: Henderson v. Volk.
Characteristics of Prescriptive Easements
[27] To establish a prescriptive easement of either kind, the user must first meet the four essential characteristics of an easement at common law, namely:
a) there must be a dominant and servient tenement;
b) an easement must accommodate the dominant tenement;
c) the dominant and servient owners must be different persons; and d) a right must be capable of forming the subject matter of a grant.
[28] In addition, for an easement to be created by prescription, the user of the alleged right (for the applicable time period) must be shown to have been (i) continuous, and (ii) "as of right".
[29] Here, there is no real issue that the proclaimed easement meets the four essential criteria of an easement at common law, or that the use of the driveway by Mr. Kaminskas and his predecessors was continuous. The appeal hinges on whether the user was "as of right".
[30] User "as of right" means that the use has been uninterrupted, open, peaceful and without permission for the relevant period of time. It is often described using the Latin maxim nec vi, nec clam, nec precario (i.e., without force, without secrecy, and without "precario"). "Precario" in this sense is taken to mean "[t]hat which depends not on right, but on the will of another person": Burrows v. Lang, [1901] 2 Ch. 502, at p. 510, cited in Jonathan Gaunt Q.C. & Paul Morgan Q.C., Gale on Easements, 17th ed. (London: Sweet & Maxwell Ltd., 2002), at para. 4-82. Nec precario, therefore, means "without permission." Differences between Prescriptive Easements under Statute and Lost Modern Grant
[31] There are three important differences between a prescriptive easement arising by statute and a prescriptive easement arising by lost modern grant, however. First, in order to establish a prescriptive right by statute, it is necessary for the user to have been continuous, uninterrupted, open, peaceful and without permission for a period of 20 or 40 years immediately preceding the commencement of the action or assertion of the claim – in the language of s. 32, during the 20 or 40-year "period next before some action wherein the claim … to which such period relates was or is brought into question" (emphasis added). For the right to accrue under the doctrine of lost modern grant, however, the requisite user need not be for the period "next before" the action, but may exist during any uninterrupted 20-year period or longer.
[32] While the "next before" requirement may give rise to unfairness in some circumstances, there are policy reasons founded in the need to promote certainty and stability in conveyancing law that support its existence. As the authors of a leading text, Robert Megarry & William Wade, The Law of Real Property, 6th ed. by Charles Harpum (London: Sweet & Maxwell Ltd., 2000), observe, at p. 1138, footnote 76: It should be noted that, for all its shortcomings, prescription under the Prescription Act 1832 is, from a conveyancing point of view, preferable to prescription by lost modern grant. Because it has to be exercised without interruption "next before some suit or action", it may be easier for any purchaser of the servient tenement to discover. If an easement has been acquired by lost modern grant … [a] purchaser may be bound by it even though he could not have discovered its existence.
[33] In addition, the "next before" requirement under the legislation confines the courts review to a relatively recent period of time, when the evidence will be easier to obtain and evaluate, and therefore may be preferable to the lost modern grant regime for that reason: see U.K., "Easements, Covenants and Profits à Prendre", The Law Commission Consultation Paper No. 186, (2008), at p. 80, para. 4.213.
[34] Secondly, a statutory claim to a prescriptive easement based on 40-years' user can be defeated by permission only where that permission was given in writing. This is established by the closing words of s. 31, which, for convenience, I repeat: [W]here the way … has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.
[35] Under the statute, a 40-year right will not be considered permissive ("precario") unless it is enjoyed by written permission. However, claims to a prescriptive right based on the doctrine of lost modern grant (or with respect to the statutory right based on 20 years' user) can be defeated by consent or permission, whether written or oral.
[36] Finally, it is noteworthy that the 40-year concept is a creature of the statutory prescriptive right. It has no application to the doctrine of lost modern grant, which requires only an appropriate user of 20 years or more without permission.
New International ordered IT firm to delete emails
thestar.com mobile: article http://bit.ly/nDbUsH
LONDON—News International asked to delete a large number of emails from its system on nine different occasions in the past 15 months, a technology firm told British lawmakers probing phone hacking allegations on Monday.
India-based HCL Technologies said that it noticed nothing "abnormal or untoward" about the requests by News International, the British newspaper arm of Rupert Murdoch's News Corp. embroiled in a widening phone hacking scandal.
The requests, which were made between April 2010 and July, included wiping more than 200,000 delivery failure messages, HCL told a parliamentary committee. They also included pruning old emails from the archives to stop the system crashing, and deleting duplicate emails after users were moved to a new version of software.
Monday, August 1, 2011
Driving a wedge between the police and the public
There is a long fictional tradition of police planting evidence to ensure a conviction; the police know who the criminal is but don't have quite enough evidence to prove it. The 1958 film Touch of Evil has a marvelous scene where a police captain is asked how many people he framed and he replies, "Nobody that wasn't guilty". In fiction such acts are usually seen as morally justified if somewhat unfortunate. It's not ideal, everyone would agree, but it's better to bend the rules and put the bad guy away than act with total honour and let a thug back out onto the streets.
But the real world is very different. Canada's police are respected around the world for their incorruptibility. The image of Canadian police as stoic, polite and honest champions of the law remains strong. And yet the Robert Dziekański incident (where RCMP killed a man and then lied about it), the G20 kettling in Toronto and the apparent assault in custody of Stacy Bonds by Ottawa police (an assault widely seen on YouTube, and not the only such charge to be made against the Ottawa police) has markedly undercut Canadian confidence in police behaviour.
That is a serious problem.