Morton's Musings

Hope - A Polar Bear

2012-02-01T16:53:00.000-05:00

Globe piece panders to worst instincts of 'us' and 'them'

2012-02-01T16:30:00.000-05:00

The Shafias are (and were) Canadian.

Period.

Entitled to the same respect as other Canadians and subject to the same laws as other Canadians.

Saying everyone who is a Muslim (or an Indian or German or Japanese or Jew) acts in a certain way is offensive and, worse, wrong.

The plurality of Canadians who are murders are (nominally) Catholic; I don't look to that as meaning much beyond the fact that a plurality if Canadians are (nominally) Catholic.

Motivation for killing is relevant only insofar as it goes to making the killing more likely and so helps the jury in deciding the matter; beyond assisting in proof, why the victims in the Shafia case were killed is irrelevant.

The jury found they were murdered after careful planning and deliberation. That's all that matters.

Murder is murder.

http://bit.ly/wDGmTi

"There is no "honour" concept in Muslim communities, but there is a long-standing belief that a family's reputation is dependent on the behaviour of all its family members. (This is never articulated openly; the subject is taboo.) A large number of people belonging to South Asian communities in Canada believe that women of Judeo-Christian cultures are the worst role models. They have sexual freedom, they wear indecent clothing, they have children as single mothers, they demand equality in every aspect of life – this is not what these communities desire for their daughters. The rise of South Asian matrimonial dating and marriage websites in the West is not as innocent as it may appear. It all has to do with choosing one kind of woman over another."

Give murderers rope in their jail cells: Senator

2012-02-01T14:44:00.000-05:00

This is an odd story. Perhaps it was a foolish offhand remark of Senator Boisvenu. If so, well, we all say dumb things.

On the other hand if the remark was serious it shows a remarkable lack of insight into punishment. Suicide is usually a tragic end of a mental illness. The death penalty, while highly problematic, is still a punishment within the range of penalties intended to deter crime. Suicide is not punishment.

Encouraging suicide is not justice.

Toronto SUN http://bit.ly/AsV5pD

OTTAWA - A Conservative senator is in hot water for saying Wednesday that murderers should be given a rope in their cell in case they want to hang themselves.

Senator Pierre-Hugues Boisvenu, who sits on the Senate legal committee, made the controversial comments while talking to reporters before the Conservative caucus meeting.

"I think of (Clifford) Olson," he said. "I think of the people who were serial killers who have no chance of rehabilitation. I think, in the end, each murderer should have the right to a rope in his cell. He could decide his fate. But I'm against the death penalty."

Adjournments generally granted even at start of trial

2012-02-01T11:54:00.000-05:00

Graham v. Vandersloot, 2012 ONCA 60 deals with the propriety an adjournment sought on the start of trial. The broad lesson is, generally, such adjournments will be granted. The Court writes:

[5] Adjournment decisions are highly discretionary and appellate courts are rightly reluctant to interfere with them. Laskin J.A. succinctly summarized the operative legal principles in Khimji v. Dhanani (2004), 69 OR. (3d) 790 (C.A.). Although he was in dissent, the majority accepted his articulation of the statement of principles. At paras. 14 and 18 he said:

14. A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening. In my opinion, that is the case here. [Emphasis added.]

18. I begin with the overriding goal of our modern Rules of Civil Procedure: to ensure as far as possible that cases are resolved on their merits. This goal is expressly set out in Rule 2.01(1)(a), which gives a judge power to grant any relief necessary "to secure the just determination of the real matters in dispute". Courts should not be too quick to deprive litigants of a decision on the merits. The trial judge does not appear to have sufficiently taken into account that his order deprived the parties, especially the appellant, of a determination of "the real matters in dispute."

See also Ariston Realty Corp v. Elearim Inc. [2007] O.J. No. 1497 (S.C.J.), at paras. 33, 36 and 38.

...
[10] Finally, while the motion judge was justified in observing that the medical assessments should have been arranged prior to May 2010, she gave undue weight to the appellant's lawyer's failure to do so when all of the foregoing factors are taken into consideration. As Hambly J. noted when granting leave to appeal to the Divisional Court in this matter, "the often applied principle that the sins of the lawyer should not be visited upon the client applies in this case." This principle was enunciated by this Court in Halton Community Credit Union Ltd. v. ICL Computers Canada Ltd. (1985), 8 O.A.C. 369, at para. 11:

Undoubtedly counsel is the agent of the client for many purposes ... but it is a principle of very long standing that the client is not to be placed irrevocably in jeopardy by reason of the neglect or inattention of his solicitor, if relief to the client can be given on terms that protect his innocent adversary as to costs thrown away and as to the security of the legal position he has gained. There may be cases where the plaintiff has so changed his position that this is impossible.

[11] This is such a case, in my opinion. There is nothing to indicate that a further adjournment of six months would have in any way affected "the security of the legal position [the respondents had] gained" or changed their position in any way that could not be compensated for in costs. Mr. Black submitted that it is inaccurate to say the appellant was "placed irrevocably in jeopardy" by reason of the adjournment refusal and the dismissal of the action, because she has other remedies open to her, namely a potential claim against her solicitor. I am not prepared to say that she should be required to resort to such a remedy in the circumstances of this case.

[12] Apart from the understandable frustrations experienced by presiding judicial officials and opposing parties over delays in the processing of civil cases, it is the overall interests of justice that, at the end of the day, must govern. Perell J. expressed this sentiment well in Ariston Realty Corp., at para. 38:

In my opinion, a concern for the principles of natural justice and the appearance of justice being done explains why, perhaps to the chagrin of those opposing adjournments, courts should tend to be generous rather than overly strict in granting indulgences, particularly where the request would promote a decision on the merits. This liberality follows because it is in the public interest that whatever the outcome, a litigant should perceive that he or she had their day in court and a fair chance to make out their case.

[13] Here, at the end of the day, the interests of justice favour the appellant's having her day in court to put forward her claim for damages on the merits.

Is it Friday yet???

2012-02-01T11:52:00.000-05:00

Is the application of a legal test to specific facts a legal or mixed question of fact and law?

2012-02-01T10:50:00.001-05:00

R. v. Hirsekorn, 2012 ABCA 21 deals with whether the application of a legal test to specific facts can give rise to an error of law. The Court holds it can -- an important point for appeal purposes:

[14] I do not agree with the respondent that the second question is one of mixed law and fact. The misapplication of a legal test can raise a question of law, see Canada (Director of Investigation and Research) v Southam Inc, 1997 CanLII 385 (SCC), [1997] 1 SCR 748, 144 DLR (4th) 1 at paras 35 and 39; and Housen v Nikolaisen, 2002 SCC 33 (CanLII), 2002 SCC 33 at para 36, 2002 SCC 33 (CanLII), [2002] 2 SCR 235. Part of the applicant's argument about the misapplication of Powley concerns the summary conviction appeal judge's failure (at para 122) to identify the historic rights-bearing community (the second part of the Powley test). Without such an identification, asserts the applicant, the balance of the test cannot be properly applied. This is a legal argument extricable from the trial judge's fact findings and, based on Southam and Housen, a question of law.

Lohengrin: Act III, 3, "In fernem Land" - Franz Völker (Furtwängler, Bayreuth: 1936)

2012-01-31T17:57:00.000-05:00

http://www.youtube.com/watch?v=7ytIY3CKn_Y&feature=BFa&list=ULyzKIB_wjhkE&lf=mfu_in_order

When is an amendment to a claim a new cause of action?

2012-01-31T12:31:00.000-05:00

Dee Ferraro Limited v. Pellizzari, 2012 ONCA 55 deals with when an amendment to a claim pleads a new cause of action. Basically if the necessary facts are already before the court a claim based on those facts is not a new cause of action. The Court writes:

[5] The distinction between pleading a new cause of action and pleading new or alternative remedies based on the same facts is set out in one of the seminal cases, Canadian Industries Ltd. v. Canadian National Railway Co., [1940] O.J. No. 266 (C.A.), affd. [1941] S.C.R. 591. The plaintiff sued for damages following the destruction of a cargo of sodium cyanide due to a derailment on the defendant’s railway line. He pleaded that the defendant was a common carrier and that the goods had been damaged. The trial judge allowed an amendment, at trial, to plead negligence. Middleton J.A., writing for the court, held at para. 18 that the amendment was properly allowed – it was not the institution of a new cause of action, but simply an alternative claim with respect to the same cause of action: “The amendment relates to the remedy sought upon facts already pleaded.”

Economy unexpectedly declines in November

2012-01-31T10:04:00.002-05:00

OTTAWA — Real gross domestic product unexpectedly edged down 0.1 per cent in November after showing no growth in October, Statistics Canada reported Tuesday.

Lower output in the energy sector accounted for most of the November decline, as oil and gas extraction fell 2.5 per cent. Reduced production of crude petroleum, in part due to maintenance shutdowns, led the sector’s decline.

There were also drops in wholesale trade, finance and insurance, and construction, the federal agency said in its report, which caught analysts by surprise.

Most had expected a 0.2 per cent rise in GDP in November.

Playing in the sun

2012-01-31T07:40:00.002-05:00

Thomas Mulcair discusses Bill C-10 and other criminal justice and immigration issues

2012-01-31T07:28:00.000-05:00

Regardless of your political views you are invited to hear Thomas Mulcair address Bill C-10 and other criminal justice and immigration issues.

He is one of the front runners for the leadership of the NDP and one of the most eloquent voices against this regressive legislation.

He is speaking Feb 10 at 5:00 pm at the Madison Pub, Madison Ave, Toronto, just north of Bloor Street in the Annex.

Does the "faint-hope" clause apply to the Shafia murders? No

2012-01-30T22:41:00.001-05:00

The punishment for first degree murder in Canada is life imprisonment without chance of parole for 25 years. Until recently certain truly reformed offenders could seek release after 15 years.

However, on February 15, 2011 Parliament passed Bill S-6 (Serious Time for the Most Serious Crime Act) which effectively repealed the "faint-hope" clause of the Criminal Code for all future offenders.

The repeal of the "faint-hope" clause means that offenders who commit murder on or after the day the repeal came into force will no longer be able to apply to be eligible for early parole.

Since the Shafia murders took place June 29/30, 2009 the old sentencing regime applies to them and Shafia, Tooba and Hamed could in theory apply for release after 15 years except for s. 745.6 of the Criminal Code which bars multiple murderers from faint hope (I thank @anthonydoran31 for pointing this out). In practice, however, it is virtually inconceivable they would qualify for early release.

Evidence given on voir dire not thereby trial evidence

2012-01-30T15:38:00.000-05:00

R. v. Chaing, 2012 ONCA 59 deals with a case where there was confusion about evidence given on a voir dire and actual testimony. Evidence given on a voir dire is not thereby evidence given in a trial. The distinction is critical to remember; with some many blended voir dire cases special care must be taken. The Court holds:

[4] It is clear from the record that the appellant testified on the Charter voir dire only, and not at the trial proper. This is reflected in the following exchange between the trial judge and defence counsel:

THE COURT: ...you don't plan to call any evidence on the substantive charge?

MR. ANBER: That's correct, Your Honour.

[5] Unfortunately, the trial judge appears to have forgotten this when he turned to his brief oral decision. He said:

THE COURT: ...I can only say on the issue of possession, frankly the evidence is there. The evidence is overwhelming, and I have no difficulty whatsoever in being satisfied beyond a reasonable doubt on all the evidence including his own client's own evidence, that Mr. Chaing had possession, in other words that he had knowledge, and that he had control over the drugs that were found in the trunk.

Who moved my carrots?

2012-01-30T13:06:00.000-05:00

Data mining and politics

2012-01-30T11:27:00.000-05:00

An interesting read about US Political Parties and data mining -- despite some legal issues here (PIPEDA for one) I am sure we'll see this here too:

The Co-op and the Data Trust: The DNC and RNC get into the data mining business. - Slate Magazine:

http://slate.me/ziudYv

Useful passage on the importance of process in litigation

2012-01-30T09:48:00.000-05:00

Shebib v. Victoria (City), 2012 BCCA 42 is a very recent decision dealing with a self-represented litigant who failed to follow the Rules of the British Columbia Court of Appeal. In discussing an application for leave to extend the time to apply for leave to appeal the Court made some observations that may be useful generally in all litigious matters:

[1] This case illustrates the tension that often develops among the aspirations of self-represented parties, the interests of parties who are represented and the responsibilities of the court in overseeing the orderly administration of litigation.

…

[11] Court rules, procedures and provisions governing appeals are designed to achieve an effective appellate process. Their objective is to facilitate, not obstruct, the achievement of a correct legal result. Appellate procedural rules protect and promote the interests of parties, including Mr. Shebib. When rules and procedures are not followed, it is difficult for this Court to administer appeals effectively. Parties who do not follow the appropriate rules and procedures often obscure their legitimate positions, making it hard for this Court to address their concerns. Failure to comply with the appropriate rules and procedures also may unfairly compound the difficulties of the opposing party’s task of presenting its position and resisting the position of the defaulting party.

Monday and off to work!!!

2012-01-30T06:15:00.000-05:00

Shafia verdict prompts debate: Was it an honour killing, or just murder?

2012-01-29T21:37:00.001-05:00

It was, of course, both.

Broadly put, the motivation for murder is irrelevant. The question is not 'why' but 'if'?

The ethnic and religious background here may play well for some as a background trope but the vast majority of murders in Canada are committed by those who are nominally Christians (and most murderers in Egypt are Muslim and in India, or at least certain states, Hindu).

About 15% of Canadian murders are committed by husbands who are motivated by jealousy. These cases are standard fare -- if a woman is murdered the police always look first to the husband or boyfriend. In a strong sense the spousal murders can be seen as 'honour' killings.

Of course, the Shafia case was made for media. It has the battle of the old country immigrant and his children's radical change to meet the new society (as in the Jazz Singer: that said Cantor Rabinowitz doesn't murder his son, he just despairs of him). It has attractive young (and now dead) women of whom there are lots of photos and at least one tragic romance. It has polygamy and a rejected (and humiliated first wife). It has CSI style eavesdropping.

In the end, this was just a sordid case of a tyrannical father, who convinced a second wife and a deluded son to help murder his first wife and some disobedient daughters. Nasty yes. But not very different (except in scale) from spousal murders across Canada:

http://bit.ly/yT7NTm

Die Meistersinger von Nürnberg - 1943 (Furtwängler, Bayreuth)

2012-01-29T18:33:00.001-05:00

A magnificent recording -- now YouTube is allowing long videos there are some wonderful older pieces going up. Four hours and two minutes and worth listening to every second:

http://www.youtube.com/watch?v=MAokG9BrvPo&feature=related

No passion so effectually robs the mind of all its powers of acting and reasoning as fear

2012-01-29T18:08:00.001-05:00

Edmund Burke

A dense fog covering seven city blocks, to a depth of 100 feet, is composed of something less than one glass of water

2012-01-29T13:24:00.002-05:00

I read this on-line (it was part of a motivational blog; "so much confusion from so little a source so don't worry be happy" sort of thing) and thought that doesn't sound right.

Well, I was wrong and it is right (more or less).

A cubic mile of a fog contains, on average, a gallon of water.

Now that doesn't actually motivate me to do anything or worry less, but it is an interesting fact... .

Frobisher Bay around noon

2012-01-29T11:51:00.001-05:00

Arctic Golf

2012-01-29T09:49:00.002-05:00

Shafia deliberations continue

2012-01-28T20:34:00.000-05:00

It's always hard to read a jury but the fact they have taken this long suggests they are giving the defence a close consideration. My guess (prediction is too strong a word) is that we will not see straight convictions on first degree -- we will see second degree or perhaps even an acquittal for some of the accused.

The locusts have no king, yet they go forth

2012-01-28T16:00:00.000-05:00

Proverbs 30:27

Nunavut and especially Iqaluit Hotels

2012-01-28T09:15:00.000-05:00

There are no Marriott Hotels in Nunavut. Indeed, there are no Holiday Inns, Comfort Inns or Motel 6s.

The closest thing to a chain are the Inns of the North, which is a loose association of inns in the hamlets. In truth, when visiting a hamlet you take what you can get. Usually the inns provide a single bed, bathroom and a tv; you get a bed and not a room so you may be given a roommate. If you want a room to yourself you have to say so and pay more; and if there are many guest that may not be available. In the south these inns would be the most basic of roadside motels -- on the other hand, the places are generally very clean and perfectly respectable.

In Iqaluit there is considerable choice although the hotels are often booked so your options may be limited. Iqaluit hotels rent rooms not beds so you never have the issue of an unexpected roommate. I have stayed in four places in Iqaluit: the Frobisher, the Hotel Arctic (formerly the Nova - most people still call it that), the Capital Suites and the Navigator.

The Frobisher is the closest hotel to a southern hotel -- probably on the level of a Holiday Inn. You want to stay on the 5th floor to avoid noise; each room has a flat screen tv with dvd player. There is a business centre with painfully slow computers (all computers are slow - they are running on a satellite feed). The hotel is part of a complex with two movie theatres, a swimming pool, a convenience store and a pub. There is also a hotel dining room. I usually stay here if I can -- the main downside is you are not especially close to anything else and it's a 10 minute walk to downtown (a significant issue in the winter).

The Capital Suites is also good and right downtown. As the name suggests the rooms are suite with a kitchenette and separate bedroom. There is a business centre and laundry but the hotel has no restaurant so you either have to buy food and cook it or go out.

The Hotel Arctic is ok. The rooms are big and have a fridge, microwave and a coffee maker. There is no business centre or laundry. There is a perfectly ok restaurant and a pub -- make sure to get a room far away from the pub if you want to sleep at night. The hotel is a curious mix of shabby and new. It was recently bought by Northern Properties and so may well be upgraded soon; the hotel is right downtown just opposite the legislature. I generally take the Hotel Arctic as my second choice because it has a restaurant.

The Navigator Inn calls itself the Premier Hotel of Iqaluit -- perhaps it is the first hotel here? Some of the rooms have been redone and have king sized beds with whirlpool tubs. That said most of the rooms are tired. But the hotel has a restaurant and free laundry. It is located a little bit away from downtown going towards the airport but this just adds a two minute walk so location is not a problem. It's not my first choice but it's not terrible.

The Discovery Lodge is a little further out of downtown going towards the airport. I haven't stayed here but am told it's fine -- it caters to construction workers largely. I have eaten here and the food was fine -- it has a pretty decent restaurant.

There are a couple of bed and breakfasts. They are quite far from downtown and I can't say much about them. Perhaps in the summer they would be fun?

Pandas Need Chicken Soup

2012-01-27T14:28:00.000-05:00

Everyone needs some chicken soup for the soul - even pandas.

The Wuhan Zoo in central China has been feeding its two pandas home-cooked chicken soup twice in a month to reduce stress and give them a nutritional boost, a zoo official said Friday.

He Zhihua said 3-year-old Xiwang and Weiwei (see photo) - literally meaning "Hope" and "Greatness" - were tired and suffering from a little shock since the start Tuesday of the weeklong National Day holiday, one of the biggest travel seasons of the year.

On Wednesday, up to 30,000 people swarmed the zoo and about 1,000 tourists packed the panda enclosure, shouting to get the animals' attention, He said. The pandas paced restlessly.

"They had been getting less sleep, and they had to run around more," he said. "We felt it would be good to give them the soup because they were fatigued and had a bit of a shock."

Reflecting the Chinese tradition of drinking slow-cooked chicken soup for health, the zookeepers boiled roosters in water overnight and added a pinch of salt to the concentrated stock.

The pandas were served 1 kilogram of soup in giant dishes, in addition to their regular diet of bamboo, milk and buns, He said.

It was a hit.

"They drank it all like they drank their milk. They loved it," he said.

See story here:

http://news.sympatico.msn.ca/UnusualNews/ContentPosting?newsitemid=90122039&feedname=CP-ODDITIES&show=False&number=0&showbyline=True&subtitle=&detect=&abc=abc&date=True

Class actions and preferable procedure

2012-01-27T12:48:00.000-05:00

Fischer v. IG Investment Management Ltd., 2012 ONCA 47 deals with when a class action will be allowed. A class action will not be allowed if there is a preferable process to vindicate class claims. The Court writes:

[43] Turning to the merits of the Divisional Court's preferable procedure analysis, in my view, the error in principle that led to the motion judge's incorrect conclusion on preferability was more fundamental than his alleged failure to recognize that a substantial amount of the monetary damages claimed by investors went uncompensated in the completed OSC proceedings. The question whether the OSC settlements provided investors with all or substantially all of the monetary relief that they seek in the class action is not the proper focus of the preferable procedure inquiry.[4] In other words, the Divisional Court did not ask itself the right question.

[44] The second element of the preferability inquiry described in Hollick requires a comparative analysis as to whether a class action would be preferable to other reasonably available means of resolving the class members' claims.[5] The preferability inquiry must necessarily take into account the central characteristics of the proposed alternative proceeding as a means of resolving the claims. This exercise includes, but is not limited to, considering the following characteristics of the alternative proceeding: the impartiality and independence of the forum; the scope and nature of the alternative forum's jurisdiction and remedial powers; the procedural safeguards that apply in the alternative proceeding, including the right to participate either in person or through counsel and the transparency of the decision-making process; and the accessibility of the alternative proceeding, including such factors as the costs associated with accessing the process and the convenience of doing so.

[45] These characteristics must be considered in relation to the type of liability and damages issues raised by the class members' claims against the defendants in the putative class action and the manner in which they are addressed, if at all, in the alternative proceeding. The court must then compare these characteristics to those of a class proceeding through the lens of the goals of the CPA: judicial economy, access to justice and behaviour modification.

Crown in closing argument

2012-01-27T08:11:00.002-05:00

In closing the Crown should not seek to sway by emotion but by logic and reason. Obviously in any trial there is some emotional response - that's normal. But Crown closing should be focused on facts and logical conclusions, not drama. This is Canada and not a Hollywood TV show:

http://fullcomment.nationalpost.com/2012/01/26/christie-blatchford-evidence-is-overwhelming-shafia-deaths-no-accident-prosecution-tells-jury/

Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.

2012-01-26T18:30:00.000-05:00

Lord Acton

Happiness is ... a new toy!

2012-01-26T16:01:00.000-05:00

Discharging a civil jury

2012-01-26T15:06:00.000-05:00

Placzek v. Green, 2012 ONCA 45 deals with discharging a civil jury.

Put briefly, trial by jury is a substantive right that will not be set aside by the Court unless barred by statute or in the interests of justice. If, however, the trial Court concludes that the complexity of the matter, or the nature of the evidence, is such that a jury will not apprehend it properly then striking the jury is proper. Such striking will not be second guessed by the appeal Court. If the decision to strike is reasonable it will be upheld on appeal.

The Court writes:

THE DECISION TO DISCHARGE THE JURY

[6] As indicated above, the trial judge discharged the jury at the outset of the trial. The decision to discharge a jury is a discretionary one. This court will defer to the exercise of that broad discretion unless it is shown that the discretion was exercised on a wrong principle or that its exercise in the circumstances can properly be characterized as arbitrary, capricious or unreasonable. Clearly, trial courts are given considerable leeway in exercising their discretion on this question: Hunt v. Sutton (2002), 60 O.R. (3d) 665 at para. 52 (C.A.); Cowles v. Balac (2006), 83 O.R. (3d) 680 at paras. 31-46 (C.A.).

[7] The trial judge recognized that the right to trial by jury was a substantive one and that the respondent bore the onus of demonstrating that the justice of the case would be better served by the discharge of the jury. Nor is it argued that the trial judge erred in making her determination prior to the commencement of the evidence.

[8] We had the benefit of a careful and critical review of the trial judge's reasons for discharging the jury. As we read those reasons, paras. 16 through 20 speak to the anticipated complexity of the evidence relevant to the damage assessment. In the trial judge's view, that complexity arose out of several aspects of the evidence. First, there was the respondent's pre-existing medical condition and the need to determine the impact of that condition on the respondent's post-accident medical condition (paras. 16-18). Second, there was competing expert evidence relating to the respondent's loss of income and loss of future income claims. The respondent was a self-employed realtor and there were several factual variables relevant to her lost income claims. Those variables complicated the quantification of that claim (para. 19). Third, there was competing and somewhat complex medical, engineering and biomedical evidence (para. 20).

[9] Based on these evidentiary complexities, the trial judge concluded, at para. 21:

As a result, of all of the foregoing I am satisfied that this case is of sufficient complexity that it is in the interest of justice that the jury notice be struck.

[10] It was open to the trial judge to reach this conclusion. While counsel for the appellant mounted a powerful argument in support of his position that this was not really a complicated case at all, we cannot describe the trial judge's characterization of the evidentiary complexity as arbitrary, capricious or unreasonable. Other judges may have reached a different assessment of the complexity of the evidence and declined to strike the jury. The fact that other judges may have exercised their discretion differently is, of course, not a basis upon which this court can interfere with this trial judge's exercise of her discretion.

Sitting in Yummy Shawarma in Iqaluit, listening to Ice FM

2012-01-26T12:13:00.000-05:00

The North is developing very quickly.

When I first came here the idea of a shawarma place would be laughable. No longer.

Making Nunavut a Territory gave it a self confidence it never had as just the eastern part of the NWT.

I see Iqaluit growing to 25,000 within a decade; the population is growing by leaps and bounds. The Territorial Government, and the population in general, is keen on development provided it benefits the local economy and respects the environment and traditions of Nunavut.

Nunavut has iron, diamonds, gold, fish (so much fish -- currently largely taken by Japan) and resources in abundance.

Now it certainly isn't perfect. Crime is astoundingly bad; I spoke to one lawyer who had twelve (yes 12) murders on the go right now. Prices are absurd -- shawarma plates that go for $6 in Toronto are over $20 here. And it is a wee bit cold in the winter.

And yet,,, there is potential here. Canada is a big big place -- it's more than the few hundred miles hugging the American border.

Small story from Pang

2012-01-26T08:10:00.000-05:00

Fish from ice fishing in Qikiqtarjuaq are coming in about three weeks earlier than usual. That's good locally -- more local jobs -- but a sign of the changing climate.

What is out of sight disturbs more than what is seen

2012-01-25T13:49:00.000-05:00

Julius Caesar

Two charges, which stands?

2012-01-25T13:45:00.000-05:00

A single delict can amount to more than one offence -- so an improper sexual contact with a young person can be both sexual assault and sexual interference.

It is improper to convict for both offences and so, in the event the delict is proven, the court should convict for the more serious charge and stay the lesser offence: R v P, [1989] 2 SCR 3

View from the Nunavut Justice Centre

2012-01-25T11:20:00.000-05:00

Chris Selley: The maddening pace of justice in Canada

2012-01-25T06:13:00.000-05:00

"The fact is, Mr. Mugusera's case speaks to a broader problem with the pace of justice in this country. Governments are beginning to address this, but money is getting tight these days. Simply as a matter of self-respect, we owe it to ourselves to continue raising our expectations and demanding they are met."

http://natpo.st/Ad1k5z

Cold morning

2012-01-25T05:55:00.000-05:00

Solar Storm

2012-01-24T20:01:00.000-05:00

Certainly the internet has been very slow in Nunavut; it totally went down by lunchtime (still - it does that often enough so it may not be related to the sun):

WASHINGTON—The sun is bombarding Earth with radiation from the biggest solar storm in more than six years with more to come from the fast-moving eruption.

The solar flare occurred at about 11 p.m. EST (0400 GMT) Sunday and will hit Earth with three different effects at three different times. The biggest issue is radiation, according to the National Oceanic and Atmospheric Administration’s Space Weather Prediction Center in Colorado.
The radiation is mostly a concern for satellite disruptions and astronauts in space. It can cause communication problems for polar-travelling airplanes, said space weather centre physicist Doug Biesecker.

Radiation from Sunday’s flare arrived at Earth an hour later and will likely continue through Wednesday. Levels are considered strong but other storms have been more severe. There are two higher levels of radiation on NOAA’s storm scale — severe and extreme — Biesecker said. Still, this storm is the strongest for radiation since May 2005.

2012-01-24T16:49:00.000-05:00

Sunshine is delicious, rain is refreshing, wind braces us up, snow is exhilarating; there is really no such thing as bad weather, only different kinds of good weather. ~John Ruskin

I disagree -- a windstorm at 45 below is ... bad weather

Raven near Arctic Inn, Iqaluit

2012-01-24T14:47:00.001-05:00

When can public access to the Court record be restricted? Rarely

2012-01-24T12:31:00.000-05:00

M.E.H. v. Williams, 2012 ONCA 35 deals with the order sealing the entire record in the divorce proceeding of Colonel Williams. The Court disallowed the order and writes:

(ii) The Motion Judge's Reasons

[21] The motion judge appreciated that the order sought was an extraordinary one in that it would compromise the open court principle, which she described (at para. 6), as one of "fundamental importance... to our democratic society". She approached her task using the two-step approach identified in a series of cases from the Supreme Court of Canada involving non-publication orders and/or sealing orders: see Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at para. 26; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, at paras. 45-46; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 32. This approach is commonly referred to as the Dagenais/Mentuck test.

[22] In Mentuck, Iacobucci J. said, at para. 32:

A publication ban should only be ordered when:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.
...

[24] The first branch of the two-part inquiry set out in Mentuck, described as the "necessity" branch, is the focus of this appeal. Before turning to the evidence, I will set out some of the important features of that branch of the test.

(i) There Must be a Public Interest at Stake

[25] Mentuck describes non-publication and sealing orders as potentially justifiable if "necessary in order to prevent a serious risk to the proper administration of justice". A serious risk to public interests other than those that fall under the broad rubric of the "proper administration of justice" can also meet the necessity requirement under the first branch of the Dagenais/Mentuck test: Sierra Club of Canada, at paras. 46-51, 55. The interest jeopardized must, however, have a public component. Purely personal interests cannot justify non-publication or sealing orders. Thus, the personal concerns of a litigant, including concerns about the very real emotional distress and embarrassment that can be occasioned to litigants when justice is done in public, will not, standing alone, satisfy the necessity branch of the test: A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175, at p. 185; Sierra Club of Canada, at para. 55; A.B. v. Bragg Communications Inc., 2011 NSCA 26, 301 N.S.R. (2d) 34, at paras. 73-75.

[26] The respondent framed her claim in terms of her right to gain access to the courts to seek legal redress. I agree with her contention that access to the courts is an essential component of the "proper administration of justice". There is no need to give any further consideration to other interests which may qualify under the first branch of the Dagenais/Mentuck test.

[27] There can be no doubt that an individual's right to seek and obtain appropriate relief in a court proceeding is a matter of significant public interest impacting on the proper administration of justice. The public interest in access to the courts for legal relief is particularly important where that access is required to give legal effect to a decision as integral to personal autonomy as the decision to seek a divorce. If insisting on the openness usually demanded of court proceedings will effectively close the courtroom door to a litigant because of the physical and/or emotional consequences to that litigant of maintaining the openness of the courts, I am satisfied that the first component of the Dagenais/Mentuck test would be made out assuming that there was no reasonable alternative to some limit on the openness of the courts. The court would then have to go on and address the competing interests under the second component of that test before deciding what limit, if any, would be placed on the openness of the courts.

[28] Counsel for the appellants accepted that access to the courts is a matter of public interest that affects the proper administration of justice. He submitted that the public interest is engaged only where it is established that the litigant would not go to court absent the privacy protections afforded by the non-publication and sealing orders.

[29] In my view, it is not necessary that a litigant establish that he or she would not go to court absent the privacy protections requested. Access to the courts should not come at the cost of a substantial risk of serious debilitating emotional or physical harm to the party seeking access. Access to the courts at that cost would be more illusory than real.

[30] The distinction between personal emotional distress and embarrassment, which cannot justify limiting publication of or access to court proceedings and records, and serious debilitating physical or emotional harm that goes to the ability of a litigant to access the court is one of degree. Expert medical opinion firmly planted in reliable evidence of the specific circumstances and the condition of the litigant will usually be crucial in drawing that distinction: see Re: John Doe P.A.B.D. #1, 2005 NLTD 214, at para. 43.

(ii) The Necessity Inquiry Comes First

[31] The necessity branch focuses exclusively on the existence of a serious risk to a public interest that can only be addressed by some form of non-publication or sealing order. The potential benefits of the order are irrelevant at this first stage of the inquiry: Mentuck, at para. 34. Unless a serious risk to a public interest is established, the court does not proceed to the second branch of the inquiry where competing interests must be balanced.

[32] As there is no balancing of competing interests at the first stage, it is wrong at that stage to consider the extent to which the societal interests underlying and furthered by freedom of expression and the open court principle are engaged in that particular case. Even if those values are only marginally engaged (the respondent's submission in this case), restriction on media access to and publication in respect of court proceedings cannot be justified unless it is necessary to prevent a serious risk to a public interest. A court faced with a case like this one where decency suggests some kind of protection for the respondent must avoid the temptation to begin by asking: where is the harm in allowing the respondent to proceed with some degree of anonymity and without her personal information being available to the media? Rather, the court must ask: has the respondent shown that without the protective orders she seeks there is a serious risk to the proper administration of justice?

(iii) Freedom of Expression and the Open Court Principle

[33] In approaching the necessity branch of the inquiry, the high constitutional stakes must be placed at the forefront of the analysis. Freedom of expression, including freedom of the press and other media communications, is a constitutionally protected fundamental freedom. The constitutional right to freedom of expression protects the media's access to and ability to report on court proceedings. The exercise of this fundamental freedom in the context of media coverage of court proceedings is essential to the promotion of the open court principle, a central feature of not only Canadian justice, but Canadian democracy: Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19, at paras. 1-2; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 26; Ottawa Citizen Group Inc. et al. v. R. (2005), 75 O.R. (3d) 590 (C.A.), at paras. 50-55; R. v. Canadian Broadcasting Corporation, 2010 ONCA 726, 102 O.R. (3d) 673, at paras. 22-24.

[34] Limits on freedom of expression, including limits that restrict media access to and publication of court proceedings, can be justified. However, the centrality of freedom of expression and the open court principle to both Canadian democracy and individual freedoms in Canada demands that a party seeking to limit freedom of expression and the openness of the courts carry a significant legal and evidentiary burden. Evidence said to justify non-publication and sealing orders must be "convincing" and "subject to close scrutiny and meet rigorous standards": R. v. Canadian Broadcasting Corp., at para. 40; Toronto Star Newspapers Ltd. v. Ontario (2003), 67 O.R. (3d) 577 (C.A.), at para. 19, aff'd 2005 SCC 41, [2005] 2 S.C.R. 188, at para. 41; see also Ottawa Citizen Group, at para. 54.

Splash!

2012-01-24T11:10:00.000-05:00

Adjournments of criminal matters

2012-01-24T06:21:00.001-05:00

An adjournment is re-scheduling of a court appearance. The granting of an adjournments is at the discretion of the judge, but in practice is a frequent occurrence.

The judge must be guided by the requirements of s. 537 and 803:

537. (1) A justice acting under this Part may

(a) adjourn an inquiry from time to time and change the place of hearing, where it appears to be desirable to do so by reason of the absence of a witness, the inability of a witness who is ill to attend at the place where the justice usually sits or for any other sufficient reason;
...
803. (1) The summary conviction court may, in its discretion, before or during the trial, adjourn the trial to a time and place to be appointed and stated in the presence of the parties or their counsel or agents.

Missing witnesses

In order to adjourn a trial matter on the grounds of missing witnesses the applicant must establish:

that the absent witnesses are material in the case;

that the party applying has not been guilty of laches or neglect in arranging for the attendance of the witnesses; and

that there is a reasonable expectation that the witnesses will attend court on the date sought by the party applying for the adjournment.

The judge may also consider other relevant circumstances.

R. v. LeBlanc 2005 NSCA 37 -- no adjournment for crown in failing to subpoena witnesses.

R. v. Rose (D.A.) (1995), 140 N.S.R.(2d) 151 (SC)

R. v. A.T., 1991 CanLII 6104 (AB Q.B.)

R. v. Shergill 2009 BCCA 55

R. v. MacDonald, 1998 CanLII 18016 (NL C.A.)

Study Raises Doubts About Effect Of Tough Sentences

2012-01-23T19:54:00.000-05:00

A reader asked for some evidence suggesting deterrence is not effective.

There are many such studies -- below is one.

Of course, deterrence isn't the only reason for prison. Separation is another reason (and one I support) as is 'just desserts' (which I don't support).

Keeping, say, Willie Pickton off the streets is a good idea -- putting him in prison because he 'deserves it' seems (at least to me) to trivialize his victims and suggest their pain and anguish can be made up by putting Pickton in prison.

My point is prison is necessary sometimes as a way to protect society -- but as a tool to discourage crime it doesn't work.

[The reader also suggested Stephen Harper was a Marxist -- I have not found any data to support that theory]:

OTTAWA - An internal report by the federal Justice Department raises doubts about the effectiveness of harsher sentences, the linchpin of the Tory government's tough-on-crime policies.

The study examined almost 3,300 people convicted of an impaired-driving offence, and found 57 per cent of them offended again at least once, within five years on average.

And the severity of the first sentence had no impact on the behaviour of repeat offenders.

"There was no evidence to suggest that the imposition of a fine or imprisonment had any effect on the likelihood of whether an offender would re-offend or not," the author concludes.

"This indicates that the severity of the sentence received did not deter offenders in this sample."

"Reconviction rates for all individuals were similar regardless of the sentence received for the initial impaired driving conviction."

The research was delivered in July this year, more than three years after the Conservative government passed a tough law that imposed harsher fines and jail sentences, including mandatory minimums, for impaired-driving convictions.

The Canadian Press obtained a copy of the study, "Recidivism Among Impaired Drivers" by Andre Solecki, under the Access to Information Act. The research covers the period from 1977 to 2006.

The study is among dozens of internal reports on the justice system prepared each year by department researchers but never published or made public.

Baffin Island is larger than the United Kingdom

2012-01-23T18:59:00.000-05:00

And Nunavut makes up 20% of the land mass of Canada. A big place.

Municipal bylaws to be judged on reasonableness standard

2012-01-23T11:51:00.000-05:00

Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 deals with the validity of municipal bylaws.

Municipalities do not have any inherent power; they are purely creatures of statute. Accordingly their bylaws must be confined to the authority given by statute. That said, the review of bylaws is to be determined by the reasonableness standard; the critical question is what factors the court should consider in determining what lies within the range of possible reasonable outcomes. Courts reviewing bylaws for reasonableness must approach the task against the backdrop of the wide variety of factors that elected municipal councillors may legitimately consider in enacting bylaws, including broad social, economic and political issues. Only if the bylaw is one no reasonable body informed by these factors could have taken will the bylaw be set aside.

The Court holds:

[10] It is a fundamental principle of the rule of law that state power must be exercised in accordance with the law. The corollary of this constitutionally protected principle is that superior courts may be called upon to review whether particular exercises of state power fall outside the law. We call this function "judicial review".

[11] Municipalities do not have direct powers under the Constitution. They possess only those powers that provincial legislatures delegate to them. This means that they must act within the legislative constraints the province has imposed on them. If they do not, their decisions or bylaws may be set aside on judicial review.

[12] A municipality's decisions and bylaws, like all administrative acts, may be reviewed in two ways. First, the requirements of procedural fairness and legislative scheme governing a municipality may require that the municipality comply with certain procedural requirements, such as notice or voting requirements. If a municipality fails to abide by these procedures, a decision or bylaw may be invalid. But in addition to meeting these bare legal requirements, municipal acts may be set aside because they fall outside the scope of what the empowering legislative scheme contemplated. This substantive review is premised on the fundamental assumption derived from the rule of law that a legislature does not intend the power it delegates to be exercised unreasonably, or in some cases, incorrectly.

[13] A court conducting substantive review of the exercise of delegated powers must first determine the appropriate standard of review. This depends on a number of factors, including the presence of a privative clause in the enabling statute, the nature of the body to which the power is delegated, and whether the question falls within the body's area of expertise. Two standards are available: reasonableness and correctness. See, generally, Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 55. If the applicable standard of review is correctness, the reviewing court requires, as the label suggests, that the administrative body be correct. If the applicable standard of review is reasonableness, the reviewing court requires that the decision be reasonable, having regard to the processes followed and whether the outcome falls within a reasonable range of alternatives in light of the legislative scheme and contextual factors relevant to the exercise of the power: Dunsmuir, at para. 47.

[14] Against this general background, I come to the issue before us — the substantive judicial review of municipal taxation bylaws. In Thorne's Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106, at p. 115, the Court, referring to delegated legislation, drew a distinction between policy and legality, with the former being unreviewable by the courts:

The Governor in Council quite obviously believed that he had reasonable grounds for passing Order in Council P.C. 1977-2115 extending the boundaries of Saint John Harbour and we cannot enquire into the validity of those beliefs in order to determine the validity of the Order in Council.

(See also pp. 111-13) However, this attempt to maintain a clear distinction between policy and legality has not prevailed. In passing delegated legislation, a municipality must make policy choices that fall reasonably within the scope of the authority the legislature has granted it. Indeed, the parties now agree that the tax bylaw at issue is not exempt from substantive review in this sense.

[15] Unlike Parliament and provincial legislatures which possess inherent legislative power, regulatory bodies can exercise only those legislative powers that were delegated to them by the legislature. Their discretion is not unfettered. The rule of law insists on judicial review to ensure that delegated legislation complies with the rationale and purview of the statutory scheme under which it is adopted. The delegating legislator is presumed to intend that the authority be exercised in a reasonable manner. Numerous cases have accepted that courts can review the substance of bylaws to ensure the lawful exercise of the power conferred on municipal councils and other regulatory bodies: Bell v. The Queen, [1979] 2 S.C.R. 212; O'Flanagan v. Rossland (City), 2009 BCCA 182, 270 B.C.A.C. 40; Westcoast Energy Inc. v. Peace River (Regional District) (1998), 54 B.C.L.R. (3d) 45 (C.A.); Canadian National Railway Co. v. Fraser-Fort George (Regional District) (1996), 26 B.C.L.R. (3d) 81 (C.A.); Hlushak v. Fort McMurray (City) (1982), 37 A.R. 149, Ritholz v. Manitoba Optometric Society (1959), 21 D.L.R. (2d) 542 (Man. C.A.).

[16] This brings us to the standard of review to be applied. The parties agree that the reasonableness standard applies in this case. The question is whether the bylaw at issue is reasonable having regard to process and whether it falls within a range of possible reasonable outcomes: Dunsmuir, at para. 47.

Seen in Nunavut?

2012-01-23T07:56:00.001-05:00

Perhaps not...

The Pickton Inquiry - why was there so little done? You decide

2012-01-23T07:41:00.000-05:00

VANCOUVER • It was April 2000, the height of Robert “Willie” Pickton’s killing spree. Dozens of women were already missing, and 23 more would vanish. The Port Coquitlam pig farmer was trolling for skid row prostitutes, driving them to his farm, murdering them, disposing of their bodies and going back for more. He would continue this horrible pattern for at least another year, and right under the noses of police.

Pickton was by then a prime police suspect. Documents disclosed recently at the Missing Women Commission of Inquiry in Vancouver offer stunning details of what police knew — or thought they knew — and what some officers didn’t seem to want to know.

Major crimes investigators were already aware, for example, that Pickton had a predilection for prostitutes. They knew of his episodic, sadistic violence. They had sources who claimed he was murdering women and chopping them to pieces. And yet investigations launched by both RCMP and the Vancouver Police Department seemed low priorities, the inquiry has heard. Little effort was made to co-ordinate efforts. Promising leads were discounted or dismissed altogether.

Perhaps most telling, on April 25, 2000, RCMP officers were already discussing the possibility that bungled police efforts would lead to a public inquiry.

On that date, a staff sergeant named Brad Zalys had a conversation with a superior officer, RCMP Inspector Earl Moulton. Staff Sgt. Zalys made the following observation in his notebook: “Also discussed Pickton again–>if he turns out to be responsible–>inquiry!–>Deal with that if the time comes!”

What's my goal and what's the most efficient way to achieve it?

2012-01-22T18:23:00.000-05:00

Frustration, hurt feelings, vindictiveness, elation, pride ... they're all irrelevant:

Jeffery Deaver

Better homes, less disease

2012-01-22T16:56:00.000-05:00

The life expectancy for Nunavik, 66.7 years, is worse than for Iraq or Uzbekistan.

NunatsiaqOnline: Better housing, less disease

http://bit.ly/yt1jGL

"This one talks about the relationship between Inuit housing and disease. And that's a big part of the discussion about why Inuit don't live as long as other Canadians.

The Nunavut government's 2011 health indicators report, quietly released this November, reported that if you were born in Nunavut in 2005, you can expect to live 69.8 years. If you were born just about anywhere else in Canada, you can expect to live 80.2 years.

In Nunavik, the state of population health is even worse. This past May, the Conference Board of Canada found the life expectancy for Nunavik, 66.7 years, is worse than for Iraq or Uzbekistan.

This means that to achieve those appalling averages, the people of Canada's Arctic start dying in their 50s, in middle age, a time of life when most people elsewhere in Canada still enjoy robust health.

But until NAHO's report no one has ever attempted to bring together all the available information about overcrowded Arctic housing conditions and link it to all the available information about disease.

And the list of those diseases is breathtaking. They include tuberculosis, from which Inuit suffer the highest infection rates in Canada, as well as asthma, influenza, hepatitis, bacterial ear infections, infant lung infections, and skin diseases.

Most of those infections occur when too many people find themselves sharing too little space. Inside overcrowded houses, the microscopic bugs that produce these diseases spread easily from person to person, especially in the dry air of winter."

Sleep in?

2012-01-22T06:34:00.000-05:00

Four More Years

2012-01-22T06:28:00.000-05:00

"The unspoken victor Saturday is Team Obama, which clearly relishes the prospect of prolonged Republican infighting.

Veteran Democratic analyst James Carville could barely conceal his glee, calling Gingrich's victory an "awesome political achievement."

http://bit.ly/yZeviw

(NB, James Carville is America's Warren Kinsella -- he is absolutely brilliant and assuredly not someone you want on the other side)

Quiet chat

2012-01-21T21:43:00.001-05:00

Give Ron Paul credit

2012-01-21T14:09:00.000-05:00

When he's right he's right. And some of his other policies, such as decriminalizing most narcotics, make sense too. Don't count him out just yet:

Ron Paul Mounts Challenge to Indefinite Detention http://bit.ly/AASvdu

Republican presidential candidate Ron Paul took a break from his campaign to come out in opposition to the bill signed into law by President Barack Obama on New Year's Eve that allows the indefinite detention of any terrorism suspect, including Americans arrested in the U.S.

Speaking from the floor of the U.S. House, Paul lashed out at a provision in the latest defense authorization bill that permits the government to imprison without trial anyone who has "substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States." This would include U.S. citizens arrested anywhere in the world.

According to Paul, the legislation could undermine the right to due process and allow the military to act "as a kind of police force on U.S. soil, apprehending terror suspects, including Americans, and whisking them off to an undisclosed location indefinitely."

When he approved the bill, Obama issued a signing statement claiming that his administration would not allow the military to detain Americans indefinitely. Civil libertarians from both the left and the right were, however, appalled by Obama's "Trust me; I won't do it" position, pointing out that even if Obama kept his promise, there is no guarantee that future presidents won't imprison Americans and others indefinitely without trial or even without charge.

The mind that is anxious about future events is miserable: Seneca

2012-01-21T12:46:00.000-05:00

Latter-day Saints praised

2012-01-21T11:07:00.000-05:00

In the current First Things, a highly influential if somewhat obscure journal of intellectual religious conservatives (generally Roman Catholic), there is a brief Opinion piece entitled "Mormonism Obsessed with Christ".

I had expected the piece to be harsh towards the Church of Jesus Christ of the Latter-day Saints.

It is not -- indeed, while not accepting the theology of the Book of Mormon the Opinion piece suggests Latter-day Saints to be worthy and genuine Christians.

This last point is important because First Things is an opinion leader and the Opinion piece may well (certainly is) driven by the candidacy of Mitt Romney for President.

Two juries for every murder trial?

2012-01-21T10:18:00.000-05:00

Richard Dawkins has a very interesting piece in the current New Statesman.

He says, if trials really require proof beyond reasonable doubt, there would seldom is ever be any question as to the result of a trial. It would be obvious to anyone who heard all the evidence.

Of course there is no certainty of a jury's decision.

So, Dawkins suggests, instead of having one jury of twelve for murder trials, have two juries of six. The two juries would not communicate with each other and a conviction would follow only if both came back with a guilty verdict.

There would be no material change in trial practice -- the only mechanical change would be to keep to two juries separate.

Why don't sea gulls fly over Frobisher Bay?

2012-01-21T08:11:00.001-05:00

Because then they'd be Bagels (Bay Gulls).

Hahahahahahahahaha

A drug addict steals $21,000 a week to feed their habit

2012-01-21T07:51:00.000-05:00

Vancouver Police Chief Jim Chu said drug addicts sell stolen goods for about 10 cents on the dollar; "add up how much they have to steal in order to feed a drug habit" he asks?

Well, let's do that.

A typical crack/heroin addiction costs about $300/day. If funded by stolen goods sold for 10% of their value then an addict has to steal at least $3,000 a day or $21,000 of goods a week.

Think about that!

And drug addiction is a cruel master; even ignoring property crime issues, we need to try to help addicts back to health.

Now, there are two approaches to dealing with this reality -- harsher criminal sanctions or moving the problem from criminal law to medical treatment.

It is clear the problem cannot be ignored.
We've seen how well harsher criminal sanctions work; they don't.

But Portugal has shown that the other way works. It's time we follow Portugal's lead:

Portugal's Drug Policy Pays Off
http://fxn.ws/yypZH9

These days, Casal Ventoso is an ordinary blue-collar community — mothers push baby strollers, men smoke outside cafes, buses chug up and down the cobbled main street.

Ten years ago, the Lisbon neighborhood was a hellhole, a "drug supermarket" where some 5,000 users lined up every day to buy heroin and sneak into a hillside honeycomb of derelict housing to shoot up. In dark, stinking corners, addicts — some with maggots squirming under track marks — staggered between the occasional corpse, scavenging used, bloody needles.

At that time, Portugal, like the junkies of Casal Ventoso, had hit rock bottom: An estimated 100,000 people — an astonishing 1 percent of its population — were addicted to illegal drugs. So, like anyone with little to lose, the Portuguese took a risky leap: They decriminalized the use of all drugs in a groundbreaking law in 2000.

...
Here's what happened between 2000 and 2008:

— There were small increases in illicit drug use among adults, but decreases for adolescents and problem users such as drug addicts and prisoners.

— Drug-related court cases dropped 66 percent.

— Drug-related HIV cases dropped 75 percent. In 2002, 49 percent of people with AIDS were addicts; by 2008 that number fell to 28 percent.

— The number of regular users held steady at less than 3 percent of the population for marijuana and less than 0.3 percent for heroin and cocaine — figures that show decriminalization brought no surge in drug use.

— The number of people treated for drug addiction rose 20 percent from 2001 to 2008.

...
In Portugal today, outreach health workers provide addicts with fresh needles, swabs, little dishes to cook up the injectable mixture, disinfectant and condoms. But anyone caught with even a small amount of drugs is automatically sent to what is known as a Dissuasion Committee for counseling. The committees include legal experts, psychologists and social workers.

...
Health workers also shepherd some addicts off the streets directly into treatment. That's what happened to 33-year-old Tiago, who is struggling to kick heroin at a Lisbon rehab facility.

Tiago, who requested that his first name only be used to protect his privacy, started taking heroin when he was 20. He shot up four or five times a day, sleeping for years in an abandoned car where, with his addicted girlfriend, he fathered a child he has never seen.

At the airy Lisbon treatment center where he now lives, Tiago plays table tennis, surfs the Internet and watches TV. He helps with cleaning and other odd jobs. And he's back to his normal weight after dropping to 50 kilograms (110 pounds) during his addiction.

After almost six months on methadone, each day trimming his intake, he brims with hope about his upcoming move to a home run by the Catholic church where recovered addicts are offered a fresh start.

Deep snow!

2012-01-21T06:31:00.000-05:00

Mitt's problem? Bigotry

2012-01-21T06:05:00.000-05:00

Why is Mitt Romney facing such an uphill battle again GOP candidates who would self-evidently give President Obama a second term?

Bigotry.

Romney was born and remains a Mormon.

His religion (like every other I have ever heard of) had some highly problematic doctrines and behaviors in its development.

But that was then and this is now.

Today members of The Church of Jesus Christ of Latter-day Saints follow a religion that promotes social conservative behavior with charitable works and obedience to the law. Faithful Mormons are admirable citizens and highly productive members of society.

I don't agree with LDS doctrines, but I don't agree with the doctrines of most religions -- and that doesn't mean I would not vote for, say, a Baptist because I disagree with believer's baptism and immersion.

Almost everyone belongs to the religion they were brought up in (or married into). Very few people choose a religion. As a result a person's religion is, like their eye colour, a characteristic inherent in the person. While I have no reason to doubt the sincerity of Romney's faith, if his parents had been, say, Copts he would presumably be a faithful Coptic Christian today.

My point is just this. Romney is being judged on his religion. That's wrong. He should be judged on his behavior or politics.

But he's being judged on religion. And if he is finally found lacking, we'll see a two term President Obama:

World - The Globe and Mail http://bit.ly/A0tZLE

"As for Mr. Romney, Mr. Plonk said he considered him a "very, very honest, upstanding and dependable person." But his religion is a deal-breaker. "As a conservative Christian, we strongly feel the Mormons are misguided in their teachings.""

Conservative MP to his South Asian constituents: Do you speak ‘Indian’?

2012-01-20T17:43:00.000-05:00

Oh dear.

Perhaps he was thinking of Indo-European languages? (The Indo-European languages are a phylum of several hundred related languages including most major current languages of Europe, the Iranian plateau, South Asia and historical Anatolia).

On second thought, no, he wasn't.

Now as for me, I speak European!

Globe and Mail http://bit.ly/wTenTT

Conservative MP Wladyslaw Lizon has raised a little ridicule by sending a survey out in his ethnically diverse riding asking constituents if they speak "Indian."

The problem, of course, is that there is no such language. In India, there are 29 languages each spoken by more than a million people, like Hindi, Bengali, Tamil and Punjabi. English, though the first language of few Indians, often serves as a common tongue.

The gaffe question was sent out in a free MP mailer to constituents in Mr. Lizon's Mississauga East–Cooksville riding, which has a sizable South Asian community.

You must look into other people as well as at them: Lord Chesterfield

2012-01-20T12:48:00.000-05:00

Doctrine of nemo dat quod non habet plays very limited, if any, role under PPSA

2012-01-20T12:15:00.001-05:00

Lisec America, Inc. v. Barber Suffolk Ltd., 2012 ONCA 37 is a good source for the principle that common law title plays little if any role in determining priority rights to personal property under the PPSA. The Court holds:

[40] On this interpretation, there is no need to engage in the debate about whether the common law doctrine of nemo dat quod non habet continues to play a parallel role in the determination of priority disputes involving security interests, or whether it has been ousted by the terms of the PPSA, as counsel have invited us to do. Suffice it to say, as the Supreme Court of Canada has recently noted, in Bank of Montreal v. Innovation Credit Union, 2010 SCC 47, [2010] 3 S.C.R. 3, at para 41, "the PPSA resolves priority disputes through a detailed set of priority rules rather than on the basis of title or the form of a transaction."

[41] To the extent that nemo dat principles would otherwise have been applicable in these circumstances, it seems to me that they have been incorporated into – and are given effect through – the upshot of ss. 9, 39 and 48(2) of the Act, taken together: (i) a security agreement is effective according to its terms against third parties (s. 9); (ii) the rights of a debtor in collateral may be transferred, but no transfer prejudices the rights of the secured party under the security agreement or otherwise (s. 39); and (iii) a registered priority does not become unperfected by an unknown transfer to a third party if the secured party registers a financing change statement within 30 days of learning of the information required to do so (s. 48(2)). Nothing further is required for these purposes.

[42] Nor does anything in this approach conflict with the well-accepted purpose of the PPSA which, as Gonthier J. noted in Royal Bank v. Sparrow Electric Corp., [1997] 1 S.C.R. 411, at p. 436, is "to increase certainty and predictability in secured transactions through the creation of a coherent system of priorities."

[43] It is true that lenders in the position of Roynat are vulnerable in situations such as this case presents. But the legislature has given a clear indication through the operation of s. 48(2) of the PPSA that lenders in the position of Lisec are to prevail. There is no lack of certainty or predictability when the provisions of the Act as a whole are properly applied.

Iran shuts down shops selling Barbie dolls

2012-01-20T08:23:00.001-05:00

What's interesting about this story is that Barbie is seen as empowering girls to be more independent and less governed by what society tells them to do.

Here, in North America, Barbie dolls are sometimes cited as poor role models and seen as imposing subservient stereotypes on girls.

I suppose it's all a matter of where you are -- in Iran Barbie represents a step forward:

http://bit.ly/yQFaIm

TEHRAN, IRAN — Police have closed down dozens of toy shop for selling Barbie dolls, part of a decades-long crackdown on signs of Western culture in Iran, the semi-official Mehr news agency reported Friday.
...
Barbie dolls are sold wearing swimsuits and miniskirts in a society where women must wear head scarves in public, and men and women are not allowed to swim together.
...

Authorities launched a campaign of confiscating Barbie dolls from toy shops in 2002, denouncing what they called the un-Islamic characteristics of the uniquely American doll. The campaign was eventually dropped.

Also in 2002, Iran introduced its own competing dolls — twins Dara and Sara — who were designed to promote traditional values with modest clothing and pro-family stories. But the dolls proved unable to stem the Barbie tide.

Off to Nunavut

2012-01-20T07:25:00.000-05:00

Doubt I'll see many pandas

Remember Bashir Makhtal

2012-01-20T05:42:00.000-05:00

Friday, Jan. 20 is the fifth anniversary of the day the Kenyan government illegally put a Canadian citizen on a plane to Ethiopia. Bashir Makhtal is still in an Ethiopian prison, serving a life sentence for allegedly supporting an armed group. No credible evidence against him has ever come to light. His trial was unfair and he was not allowed access to consular support for more than a year.

more:http://www.ottawacitizen.com/life/Remember+Makhtal/6020863/story.html#ixzz1jzfUwVk8

How much pain have cost us the evils that have never happened: Thomas Jefferson

2012-01-19T19:45:00.000-05:00

Claim for solicitors' negligence limited to client

2012-01-19T12:39:00.000-05:00

Laidar Holdings Ltd. v. Lindt & Sprungli (Canada) Inc., 2012 BCCA 22 deals with a claim against solicitors.

The British Columbia Court of Appeal holds the claim untenable because the duty alleged lies only to the client and not the plaintiff. The decision is important in Ontario because it distinguishes, on the legislation and to some extent the facts, the Ontario cases of Cardar Investments Ltd. v. Thorne Riddell (1989) 71 O.R. (2d) 29 (Div. Ct.) and 478649 Ontario Ltd. v. Corcoran (1994) 118 D.L.R. (4th) 682.

Specifically, a third party applied to join the defendants' solicitors as a fourth party, alleging the solicitors had breached their duty of care to their client, the defendant. The Court held the alleged breach of duty 'belonged to the client' and could not found a right of the third party to claim contribution and indemnity.

Speaking of the Ontario cases the Court held:

[20] Counsel for DTZ in the case at bar, however, referred us to two Ontario cases which distinguished Adams in fairly uncomplicated situations involving professional advisors –Cardar Investments Ltd. v. Thorne Riddell (1989) 71 O.R. (2d) 29 (Div. Ct.) and 478649 Ontario Ltd. Corcoran, supra. In Cardar, the plaintiffs had sued an accounting firm for damages they had allegedly suffered due to negligent advice given to them regarding the amount of scientific research tax credits they needed to buy in order to effect the greatest possible tax savings. The accounting firm in turn sought to join the plaintiffs' solicitors, alleging they had negligently 'failed to make the necessary calculations' or to advise their client to engage someone else to do so, and might therefore be partly responsible for the plaintiff's damages within the meaning of s. 6 of the Negligence Act, R.S.O. 1980, c. 315. It provided:

6. Wherever it appears that a person not already a party to an action is or may be wholly or partly responsible for the damages claimed, such person may be added as a party defendant to the action upon such terms as are considered just or may be made a third party to the action in the manner prescribed by the rules of practice for adding third parties.

[21] The law firm naturally relied on Adams, but the Court concluded that the firm's conduct might not be attributable to its client on agency principles. In the Court's analysis:

... The alleged negligence of the solicitors in failing to calculate the optimum amount of tax credits required by the plaintiffs, can only be attributable to the plaintiffs if the plaintiffs were themselves under an obligation to make such calculation. Whether the plaintiffs were themselves under such an obligation depends on how specific the information was that they gave to the accountant and how specific the advice was that was given by the accountant to the plaintiffs. If, as alleged by the plaintiffs, the accountant advised the plaintiffs that each ought to buy $2,000,000 worth of tax credits, it can scarcely be maintained that the plaintiffs had to satisfy themselves in that regard before acting on it. In any event, since it is at this point uncertain whether the alleged negligence of the solicitors can be attributed to the plaintiffs, the third party notice should issue. [At 33-4; emphasis added.]

[22] Cardar was approved and relied upon by the Ontario Court of Appeal in Corcoran, the facts of which were somewhat similar to those of the instant case. The plaintiff purchaser was suing the vendor of certain real property, and its real estate agents ("Stellar"), for negligent misrepresentation concerning the value of the property, which depended on its potential for development. Stellar in turn issued a third party notice against the plaintiff's solicitor on the ground that he had reviewed the agreement of purchase and sale before it was executed, and failed to give proper advice regarding precautions that could have protected his client. (Like the allegation made against the solicitors in Cardar, this sounds suspiciously like a 'last clear chance' argument.)

[23] Speaking for the Court in Corcoran, Laskin J.A. referred to Adams. He read it as turning on the view that the plaintiffs' obligation to mitigate their damages (which Laskin J.A. saw as the "substance" of the defendant's allegation in Adams) was the plaintiff's alone, and could not be avoided by delegation to their solicitor. This had not been the case in Carder and, he reasoned, was not the case in Corcoran, since in his analysis it was possible a plaintiff could shelter behind his or her choice of a reputable law firm as a defence to attributed responsibility as the firm's principal. In his words:

This may not be a case where the fault alleged against the third party is in fact the fault of the plaintiff, but rather a case where the plaintiff may not be responsible for the negligence alleged against its solicitor. While the plaintiff was, as the motions judge points out, responsible for completing the transaction, what has been put against the solicitor is that he was negligent in failing to give proper advice concerning the agreement of purchase and sale and that his negligence contributed to his client's loss. The plaintiff may be able to say that it acted reasonably in retaining the third party to advise it on the terms of the agreement and accordingly should not be responsible for any negligence on the part of its solicitor. See Salmond and Heuston on The Law of Torts, 20th ed. (1992) at p. 474 ff. and Jackson & Powell on Professional Negligence, 3rd ed. (1992) at p. 363 ff. [At 689; emphasis added.]

Ultimately, since the Court could not say that the third party claim was "certain to fail", the plaintiff's motion to strike out the third party claim was dismissed.

Iqaluit: Gateway to Greenland’s resource riches

2012-01-19T08:32:00.002-05:00

My only concern is that we protect the North and its peoples -- but development and the ability for people to find good work locally is very important too:

http://m.theglobeandmail.com/globe-investor/iqaluit-gateway-to-greenlands-resource-riches/article2307318/?service=mobile

PAUL WALDIE

The Air Greenland service will be co-ordinated with arrivals in Iqaluit from Ottawa and other Canadian cities to ensure smooth connections for business people. (Bob Strong/Reuters)

Air Greenland isn’t exactly among the world’s major airlines. It only has 10 airplanes, 600 employees and one international route – to Iceland.

But when the airline announced Wednesday that it’s starting regular flights from Nuuk to Iqaluit this summer, many in the global mining community took notice. That’s because Greenland has become one of the hottest places in the world for mining and oil exploration.

Global warming, new extraction technologies and a recent move by Denmark to give the island territory autonomy over natural resources has prompted a small stampede of companies rushing to Greenland to tap into its wealth of uranium, iron ore, gold, gemstones, rare earths and offshore oil.

“Over the past few years, we’ve just seen a growing demand for this service,” Christian Keldsen, an Air Greenland spokesman said from Nuuk. “There is a lot of exploration going on.”Iqaluit made sense as the launching point for North America, he added, because it’s relatively close to Greenland and shares cultural and educational ties with Nuuk.

There used to be flights between the two communities back in the 1990s, but they were not sustainable, Mr. Keldsen said. Now, with all the exploration and mining activity under way in Greenland, Air Greenland saw an opportunity – especially since many companies have been chartering aircraft to make the trip.

A powerful bear

2012-01-19T07:12:00.002-05:00

Poll: Liberal support climbing with Bob Rae

2012-01-19T06:14:00.000-05:00

This is encouraging but there's still a long way to go:

http://bit.ly/AA3gfP

Buoyed by high approval ratings for interim leader Bob Rae, support for the federal Liberals is on the rise, according to a new poll.

The Forum Research survey found support for Rae's Liberals at 25 per cent, a four-point increase since the pollster's last survey in mid-December. Prime Minister Stephen Harper's Conservatives received 35 per cent, Nycole Turmel's NDP had 28 per cent, while the Bloc Québécois and Green Party earned 6 per cent and 4 per cent, respectively.

The poll canvassed 1,211 Canadians and had a margin of error of 2.8 percentage points, 19 times out of 20.

While Canadians are still more likely to vote Conservative, Forum president Lorne Bozinoff said the numbers indicate Tory support has slipped since the 2011 federal election, when the party claimed the first majority government in seven years.

Bozinoff suggested the Liberals' popularity increase may be attributed to Rae — the interim leader's net approval rating among Canadian voters was 24 points higher than Harper's, according to Forum.

Be careful that victories do not carry the seed of future defeats

2012-01-18T21:31:00.000-05:00

Ralph W. Sockman (October 1, 1889 - August 29, 1970)

Effect of restrictive bail conditions on sentencing

2012-01-18T20:51:00.000-05:00

An accused is released on bail -- but under very restrictive conditions. In the event of a conviction and sentencing how does the restrictive bail impact on sentence?

R. v. Downes [2006] 79 O.R. (3d) 321 states, "…that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or not credit should be given for pre-sentence house arrest."

The Court goes on to say that "the amount of potential credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity."

The onus will be on the offender on a balance of probabilities to establish the negative impact of the bail conditions.

A modest proposal

2012-01-18T17:28:00.000-05:00

A week or so ago I finished a trial. The matter took two years to come to trial.

Why?

There were many reasons but one of them was a lack of judges.

Ontario Court of Justice judges are famously busy -- and much of their work is involved in taking guilty pleas. The vast majority of criminal cases in the Ontario Court of Justice end in guilty pleas -- and a vast amount of judicial time is taken in plea court. If that task was removed judges would become available to do more trial work and the system overall would be speeded up.

But how can guilty pleas be taken from judges? Someone has to decide sentences and that is a very important decision; it is no trifle to send someone to jail.

Fortunately there is a highly trained cadre of expert judicial officers, Justices of the Peace, who can take most guilty pleas -- and Justices of the Peace are already entitled under law to take guilty pleas; it is merely a practice that they do not currently do so.

In Ontario, Justices of the Peace must have a university degree, or equivalent, and a minimum of 10 years work experience. They are appointed following careful vetting by an arms-length non partisan appointments committee similar in structure to that used for the appointment of Ontario Court of Justice judges.

All new Justices of the Peace undergo a rigorous training cycle. After initial training justices of the peace have a continuing legal education process. They deal daily with highly complex legal matters and are fully experienced in sentencing for provincial offences -- there is no reason they ought not apply these skills to criminal code matters. Having been involved with the ongoing legal education of justices of the peace, I can attest to their professionalism and dedication to knowing the law they apply.

There are approximately 325 justices of the peace in Ontario. They sit across the entire province and are a truly diverse bench. Justices of the peace come from all backgrounds, races and religions and there is close to true gender balance, especially for more recent appointments. Justices of the peace genuinely reflect the people of Ontario; expanding their role slightly to deal with guilty pleas can only speed justice.

Best comment about Rick Perry

2012-01-18T13:55:00.000-05:00

, the Texas Governor:

"America really must be a land of opportunity if this man has managed to become governor"

Right of action for intrusion upon seclusion confirmed

2012-01-18T13:00:00.000-05:00

Jones v. Tsige, 2012 ONCA 32 is an important decision holding that you can sue for an intrusion on seclusion. The Court holds:

[65]         In my view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion. Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.

...
c) Elements

[70]         I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

[71]         The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.

Happy Wednesday!

2012-01-18T08:25:00.000-05:00

Jurors rounded up off streets of London

2012-01-18T07:28:00.001-05:00

Wow! Now this is an odd story!

http://www.thestar.com/news/article/1117245--jurors-rounded-up-off-streets-of-london?bn=1

They were going about their business on a bleak January morning. Hurrying to appointments or perhaps to work.

But in downtown, London, Ont., on Tuesday, 20 people had their plans change suddenly, when they were yanked off the street for jury duty.

A court hearing the trial of three men facing assault and threatening charges had gone through a panel of more than 130 prospective jurors but fell short of the 12 jurors required for the case.With one seat in the jury box left to fill, Superior Court Justice Kelly Anne Gorman exercised her power under the Criminal Code to have police and sheriff’s officers go out onto the streets to scare up prospec

ts.

Every calamity is to be overcome by endurance: Virgil

2012-01-17T18:16:00.000-05:00

Peter Paul & Mary - Blowin in the wind (1966)

2012-01-17T16:05:00.001-05:00

http://www.youtube.com/watch?v=AW6NVcqcRVE&feature=related

No rule that a breaching fiduciary employee must, in all circumstances, be denied compensation in respect of the period of wrongdoing

2012-01-17T13:03:00.000-05:00

Mady v. Rossetto, 2012 ONCA 31 holds that a breach of fiduciary duty does not, in itself, disentitle a fiduciary to payment for employment income including bonuses:

(2) General principles governing fiduciary relief

[18] Fiduciary relief is equitable in nature. The remedies for breach of fiduciary duty are discretionary. They are "dependent on all the facts before the court, and designed to address not only fairness between the parties, but also the public concern about the maintenance of the integrity of fiduciary relationships": McBride, at para. 30.

[19] Fiduciary relief is aimed at two goals: restitution and deterrence. Restitution is aimed at returning a beneficiary to the position he would have been in but for the fiduciary's breach. The goal of deterrence, or as it is sometimes referred to, the prophylactic purpose, is to prevent fiduciaries from benefitting from their wrongdoing and maintain the integrity of the fiduciary relationship. A remedy for breach of fiduciary duty can be aimed at one or both of these purposes. The role each one plays is a function of the particular facts of the case: see for example Hodgkinson v. Simms; 3464920 Canada Inc. v. Strothers, 2007 SCC 24, [2007] 2 S.C.R. 177.

[20] Deterrence is of particular importance where the beneficiary suffers no identifiable loss. Such was the case in 3464920 Canada Inc. v. Strothers. In Strothers, disgorgement of profits gained through a breach of fiduciary duty was ordered not for the purpose of making the beneficiary whole; but rather, to ensure that the fiduciary did not benefit from his wrongdoing, thereby deterring fiduciary faithlessness, and achieving the prophylactic goal.

(3) The jurisprudence does not establish an overriding principle barring compensation for errant fiduciaries during the period of wrongdoing

[21] The effect of the appeal judge's reasoning, and consequently her error, was to elevate the fact-specific result in McBride to an absolute principle disentitling faithless fiduciaries to compensation in the form of bonuses for the period of their wrongdoing.

[22] The cases on which the appeal judge and Mady relied do not establish that a fiduciary employee must, in all circumstances, be denied compensation in respect of the period of his wrongdoing. Rather than establishing an absolute rule, the jurisprudence affirms the well-accepted principle that equitable relief is discretionary and fact specific. The question of entitlement to bonus compensation is therefore fluid and must be determined by reference to the circumstances of the particular case, having regard to the general principles governing fiduciary relief.
...
[30] The fact that the relationship at issue in the present case is one of employer and employee also distinguishes it from McBride, where Abella J.A. expressly recognized that the relationship at issue was one of principal and agent: at para. 26. Citing this court's decision in William R. Barnes Co. v. Mackenzie (1974), 2 O.R. (2d) 659, Mark Ellis in Fiduciary Duties in Canada, loose-leaf (consulted on December 16, 2011) (Toronto: Carswell, 1993), ch. 16 at 16.15 recognizes the distinction between principal-agent and employer-employee relationships and describes the entitlement to compensation in the employment context. He writes:

It is well accepted that a principal will not be required to pay his agent a commission for transactions that are in breach of fiduciary duty. However, an employer is not free to withhold payment of wages due for past performance, even where the past performance may have involved a time when the employee was acting in breach of his fiduciary duty.

Sheila Copps - the Liberal Party needs her

2012-01-17T10:35:00.000-05:00

Sheila brings great energy and experience -- I do hope she sticks around. The new Board will need all hands on deck!

http://bit.ly/ykHg3C

On Tuesday, Ms. Copps said she's done with politics.

"I mean I'm not done with helping but I'm certainly not going to be running. ... I definitely won't be running for anything else," she told The Globe. For the past five years she's been trying to raise money to build a school in Haiti so she will be redoubling her efforts on that this year.

Bear in the distance

2012-01-17T08:24:00.001-05:00

Mother legally entitled to information about fetus including gender

2012-01-16T21:38:00.001-05:00

Dr. Rajendra Kale suggests withholding the gender of a fetus from a mother to avoid a gender selective abortion. As a legal matter, absent legislation, such withholding is not possible -- the patient is entitled to all medical information.

McInerney v. MacDonald [1992] 2 S.C.R. 138 held, in the absence of legislation, a patient is entitled, upon request, to examine and copy all information in her medical records which the physician considered in administering advice or treatment, including records prepared by other doctors that the physician may have received.

The physician-patient relationship is fiduciary in nature and certain duties arise from that special relationship of trust and confidence. These include the duties of the doctor to act with utmost good faith and loyalty, to hold information received from or about a patient in confidence, and to make proper disclosure of information to the patient.

The doctor also has an obligation to grant access to the information used in administering treatment. This fiduciary duty is ultimately grounded in the nature of the patient's interest in the medical records.

Information about oneself revealed to a doctor acting in a professional capacity remains, in a fundamental sense, one's own. While the doctor is the owner of the actual record, the information is held in a fashion somewhat akin to a trust and is to be used by the physician for the benefit of the patient.

The confiding of the information to the physician for medical purposes gives rise to an expectation that the patient's interest in and control of the information will continue. The trust-like "beneficial interest" of the patient in the information indicates that, as a general rule, she should have a right of access to the information and that the physician should have a corresponding obligation to provide it.

More generally, unless the State asserts an interest in the fetus, or the fetus is seen as having legal standing beyond the mother, how is the basis of the mother's choice a relevant consideration in restricting the choice?

That said, the whole situation seems odd.

Health News - The Globe and Mail http://bit.ly/xmQLsE

Always have the situation under control, even if losing. Never betray an inward sense of defeat.

2012-01-16T21:17:00.001-05:00

ARTHUR ASHE

Care must be taken not to encourage jurors to find contrary to facts known but not admissible

2012-01-16T13:34:00.000-05:00

R. v. Butts, 2012 ONCA 24 cites R. v. Clarke (1981), 63 C.C.C. (2d) 224 with approval saying:

I recognize counsel's obligation to comment on nothing but the admissible evidence during closing submissions. But this responsibility should not be inverted to encourage jurors to make findings in conflict with undisputed facts which did not reach their attention simply because of trial safeguards.

Sad news: Strachan Heighington Q C has died

2012-01-16T09:13:00.000-05:00

I just learned today of the passing of a truly learned and honourable man -- he will be missed. One can only hope to live a life as his:

STRACHAN HEIGHINGTON Q. C.
December 17, 1927 to January 9th, 2012

Peacefully at home on Monday, January 9th after a short illness, his loving wife of 60 years Mary (Noble) at his side.

Strachan lived an active, happy life including his recent 84th birthday, then a joyful Christmas surrounded by family. Strachan's life was inspired by his love for Mary, and his passion for law, politics, tennis, poetry, music & family. He was the adored father of Ted (Marilyn De Mara), Douglas, Robert (Ellen Thuringer), Martha (Geoffrey Wilson) and Andrew (Michelle). Much loved 'Ho-Ho', and cherished grandfather to 10 grandchildren: Meredith (Corbin Miller), Jennifer, Geoffrey, Harry, Tillie, Strachan, Harris, Cecily, Palmer & Tristan.

Predeceased by his parents, Wilfrid & Alice Heighington, also by his sisters Patricia (Owen- Irwin) and Cynthia (Dickie). Graduated from Ridley College, University of Toronto & Osgoode Law School. After retiring as a partner at Blakes, Strachan worked in retirement at the Superior Court of Justice as an Assessment Officer.

Strachan also enjoyed his service and friendships as a Major with the 48th Highlanders of Canada. A tribute to Strachan's life will be held at 11:30 a.m. on Wednesday, January 18th, 2012 at CHRIST CHURCH, DEER PARK, 1570 Yonge St. (at Heath St. W.). A private family cremation service will take place at Mt. Pleasant Cemetery.

Strachan hoped your donations could be directed in his name to 'Soldiers Tower Restoration Fund' c/o Hart House, University of Toronto. The family thanks Dr. Gary May of St. Mike's and Dr. Russell Goldman of Mt. Sinai for their care of Strachan.

The new LPC Board

2012-01-16T08:21:00.000-05:00

Yesterday the new Board was announced.

I offer support and congratulations to the Board and best wishes to all who ran and participated in any way.

There is so much to be done -- but I am very confident the new Board is fully up to meet the challenge. They have and will have my fullest support!

So tired!!!!!

2012-01-16T06:07:00.000-05:00

Life is a high wire act!

2012-01-15T08:32:00.001-05:00

Cross-examination critical on summary judgment motions

2012-01-14T13:48:00.000-05:00

Poole v. Whirlpool Corporation, 2011 ONCA 808, is a helpful reminder that cross-examination on contentious issues is necessary in summary judgment matters. Bald allegations are not sufficient -- evidence is needed to oppose summary judgment.
The Court holds:

"The appellants elected not to cross-examine the respondent on his affidavit materials, in which he swore that he never agreed to the precondition and was unaware of any reference to it on the appellants' intranet system."

I've got a great ambition to die of exhaustion rather than boredom

2012-01-14T09:55:00.001-05:00

Thomas Carlyle

Three bears on a beach!

2012-01-14T09:52:00.001-05:00

David Merner backs my platform on micro targeting

2012-01-13T20:59:00.001-05:00

David Merner president of the Liberal Party of Canada (BC) wants to ensure that micro targeting is a top priority for national board. He is totally right and I am delighted that David is supporting my platform for micro targeting.

Drastic remedies ought not to be imposed for minor transgressions

2012-01-13T14:06:00.001-05:00

Royal Bank of Canada v. Hejna, 2012 ONCA 27 is a source for the proposition that drastic remedies ought not to be imposed for minor transgressions. Such principle will apply in the civil, family and, perhaps, criminal context:

"The motions judge failed to consider the proportionality of granting the bank's motion to strike Mr. Hejna's defence for failure to pay $3,000 in costs in an action for almost seven million dollars in fraud which had been allowed to proceed despite Mr. Hejna's bankruptcy."

Got cold suddenly!

2012-01-13T09:42:00.000-05:00

Today there are more Canadian aboriginal children in foster care than were is Residential Schools

2012-01-13T09:30:00.001-05:00

A small factoid but one pointing out a very real problem.