Saturday, September 10, 2011
Donec eris felix, multos numerabis amicos: Tempora si fuerint nubila, solus eris
Services en français menacés sous Hudak
http://bit.ly/mYrItN
En point de presse avec des médias d'Ottawa, le 8 septembre, le chef du Parti progressiste-conservateur, Tim Hudak, a affirmé que les services en français pourraient faire l'objet de coupures sous un gouvernement bleu.
Dans le Change Book, le PPC prévoit des coupures de 2% dans la bureaucratie et malgré son maigre budget d'opération, évalué à moins d'un million $, le bureau du Commissaire aux services en français pourrait également devoir poursuivre son oeuvre avec moins d'argent.
The taxman cometh... to seize a PC Candidate's home for not paying Stephen Harper's taxes...
Hillier took out a well-respected and long term Conservative -- the least he could have done is given a head's up he had a lien to CRA:
Toronto SUN http://bit.ly/qR3gHZ
"Hudak said he still hasn't spoken to Hillier, a key figure in his caucus, about the nearly $15,000 in liens the Canada Revenue Agency has slapped on his home.
Hudak was unaware of the dispute until the story was broken Thursday by Ottawa CTV.
His party should have got a heads up though from the outspoken libertarian Hillier — MPPs were required to file a disclosure statement in September 2010 on a number of questions including whether they or their wife owe any taxes."
The 9/11 decade
"While there are a lot of things a government might do, there are a few things that only a government can do: protect the people, rescue them when they are in danger, regulate against catastrophic risk and safeguard the full faith and credit of their currency."
First impaired driving
becomes the first person ever arrested for drunk driving after slamming his cab
into a building. Smith later pled guilty and was fined 25 shillings, a significant fine.
Friday, September 9, 2011
Ignoranti, quem portum petat, nullus suus ventus est
That's a rather loose translation -- I'll take the blame or credit for it -- High School Latin is long ago.
But Seneca's quotation makes a good point. We need to determine a goal because absent a goal everything we do will be, at best, reactive.
Is the failure to object to evidence fatal to an appeal based on admission? Perhaps not
Alberta's 'Supporters' -- a good idea and here's why
But I notice the mailings tend to be going to 'Dear James Morton' or even 'To Our Friends at 123 Apple Street'. This reflects the information we have. Now I know that some information is, or can be, segmented so that, for example, there can be a column marked "Salutation" -- that would allow for the mailing to go to, in my case, 'James' or 'Jim' or 'Mr. Morton' as was best. The trouble is the segmentation is patchy at best -- and if I get a letter addressed to 'Dear Morton' I am annoyed rather than keen to send money. (To be clear the information from Liberalist is great but it is far from comprehensive -- it doesn't include everyone who, say, gave in the past or signed in at an event)
My business partners often get mailing from the CPC. Those letters are addressed to correct salutations -- 'Dear Irwin' or 'Dear Ms. Smith' as preferred -- and are often personalized even more to have slightly differing text depending on the needs of the individual. Such narrow casting is very effective.
And we can do the narrow casting if we clean up the input data and put it all to Liberalist. Just a bit more care to make sure the salutation is listed correctly and a notation that, for example, James Morton is interested in criminal justice issues would make a huge impact.
That's one reason why the idea of 'supporter' from Alberta makes such good sense. What does a supporter get -- some connection with the Party, albeit less than membership. But the Party gets the names, email and other contact information of someone who is inclined to the Liberals. That information, if properly entered, is the key to winning an election. We can find our supporters and local opinion makers. Votes count and having a way to tell a voter who cares about, say, immigration, our views on immigration is the way to get a voter to vote Liberal.
Thursday, September 8, 2011
Obama's jobs speech
Put otherwise, if it hasn't worked before why should it work now?
Still, the President can't ignore the American unemployment rate (which will hurt Canada too -- make no mistake) and I don't have any better ideas so all we can do is hope it works:
Obama says U.S. faces 'crisis,' proposes $447B jobs plan http://natpo.st/nCA5Yj
Civil conspiracy claims in family law
Waters v. Michie, 2011 BCCA 364 is an appeal from an order striking the appellant’s plea of conspiracy against her former husband and his current wife in a family law action. It contains a useful statement of the law regarding civil conspiracy and also a caution that the claim is to be used rarely, especially in the family law context. In Frame v. Smith [1987] 2 S.C.R. 99, the Supreme Court of Canada cautioned against extending the tort of conspiracy to the family law context. These comments are authoritative as guidance in considering applications to strike pleadings of conspiracy in family law cases. The appellant’s conspiracy claim raises these policy issues, which guide the Court in considering whether her claim of conspiracy should be struck as raising no reasonable claim. The appellant’s conspiracy claim for injury from frustration of the proper calculation of child support is comprehensively covered by child support legislation, and discloses no reasonable claim. The Court holds:
[22] In Frame v. Smith, the Supreme Court of Canada considered whether a parent had a cause of action against his former spouse and her present husband for interfering with his right of access to the children of the marriage. The chambers judge struck the claim as disclosing no reasonable claim, a decision affirmed by the Ontario Court of Appeal.
[23] In comments with which La Forest J. expressed agreement, Wilson J. indicated that she would have struck the plaintiff’s claim in civil conspiracy on the basis of her view that the tort of conspiracy should not be extended to the family law context. She cited criticism of the tort of conspiracy and suggested that the tort’s application in the family law context would not be consistent with the tort’s rationale, which is to respond to situations where an act undertaken in combination creates a harm that would not exist were the same act undertaken by an individual actor (at 125). Of “paramount concern” to Wilson J. was that extending civil conspiracy into the family law context would not be in the best interests of children. She considered the tort would “do little to encourage the maintenance and development of a relationship between both parents and their children”, and might be abused by a malicious spouse because of its “low threshold of actionability” and because success will tend to turn on issues of credibility. Justice Wilson was also concerned that, if permitted in that case, it might be difficult to restrict the tort to the area of custody and access, noting that acts contributing to marriage breakdown might be actionable in conspiracy (at 126.) Expressing his approval of these comments, La Forest J. added that no pecuniary interest was engaged in that case (at 109).
Bruno Balz
A noted German music writer he spent considerable time during the war under arrest or surveillance by the Gestapo; he was homosexual. He was repeatedly tortured in the Gestapo headquarters in Prinz-Albrecht-Straße but was released because his music was seen as helpful to the war effort. Reformatory proper range of sentence for possession of "small" amount of cocaine for trafficking
(i) The Range of Sentence
[22] The appellant was convicted in respect of 14.87 grams of cocaine and six and a half tablets of ecstasy. The focus of the trial judge's reasons was on the cocaine. Counsel for the appellant submits that a five year sentence for possession for the purpose of trafficking of 14.87 grams of cocaine is far beyond the range that could be justified on the facts of this case. The trial judge relied in particular on this court's decision in R. v. Bajada. The facts in Bajada are significantly different from the case at bar. In that case, the appellant was convicted of possession for the purpose of trafficking of more than one half kilogram of cocaine, which had an estimated value of $62,500. Mr. Bajada was 51 years old with a significant criminal record including conspiracy to traffic in a narcotic and two convictions for trafficking in a narcotic. He also received a three year sentence in respect of a conviction for extortion, which was also related to drug trafficking. In the result, Mr. Bajada's sentence of eight years was reduced to six years.
...
[24] This is not a case for a penitentiary term. A sentence of five years is outside the range for the amount of cocaine in issue. In my view, the appropriate sentence falls within the range of a reformatory term.
(ii) Rehabilitation
[25] In my view, the trial judge erred in concluding that she need not concern herself with the appellant's rehabilitation. The appellant was 29 years old at the time of sentencing. He recognized that he had a drug problem and was regularly attending Narcotics Anonymous. He expressed remorse. He was a trained and licensed welder with prospects for future employment. It seems to me that he needed encouragement to turn his life around in order to continue on a path that he had, at least, started down. A penitentiary term of five years is unlikely to provide such encouragement.
(iii) Proportionality
[26] This sentence does not satisfy the fundamental principle of sentencing articulated in s. 718.1 of the Criminal Code. A sentence of five years in the penitentiary for the small amount of cocaine involved in this case is not proportionate to the gravity of the offence and the degree of responsibility of the appellant.
Voluntary severance for police
http://bit.ly/pmF1pU
In an effort to avoid layoffs, the Toronto police board is considering a voluntary severance package for hundreds of mid-ranking officers, say sources.
This is on top of the 18 packages that were offered to a select number of inspectors and staff superintendents in July.
The exact number is still unclear, but one official said that combined with attrition, the buyout was aimed at “getting to (Chief Bill) Blair’s target” without handing police personnel pink slips.
In a confidential report to the board in July, Blair said as many as 750 uniform officers and 400 civilians would need to be laid off in order to hit Mayor Rob Ford’s 10 per cent budget reduction demand.
...
The Toronto police net operating budget is about $915 million, 85 per cent of which is salary and benefits. The mayor has told Blair to find roughly $90 million in cuts; a task the chief says is impossible without eliminating officers.
The mayor has repeatedly said he does not intend to layoff police officers, yet his administration has held firm on its budget cut demand.
It’s a paradoxical position Ford most recently reiterated Monday, telling CityTV “We’re not cutting libraries or police” but also “We’re asking all the departments for 10 per cent efficiencies” and that it’s “up to the chief” how that’s done.
Garth Drabinsky and Myron Gottlieb - Justice Delayed
On Tuesday the Court of Appeal for Ontario will decide if the pair are to go to jail or are to have a new trial.
That decision will come nearly a decade after charges were laid.
Now, in fairness, fraud cases are among the most difficult to prosecute and defend. They involve complex matters of accounting and, more generally, what the accused understood the accounting issues to be. As a result the Courts have made it clear that the usual timeframes for a trial in due course are extended in fraud cases.
Nevertheless, a decade is a very long time for a case, no matter how complex, to get to its first appeal. By contrast, Conrad Black was charged in November 2005 and following trial, appeals all the way to the US Supreme Court, and two Court of Appeal decisions, went back to jail earlier this month. Should the Drabinsky/Gottlieb case go to the Supreme Court of Canada (and a leave application seems certain) that will add at least a year, more likely two years, to the time to date.
Things used to move faster. As late as 1965, an Ontario capital murder case, R. vs. Black, involved a murder in January, a full jury trial in June and a Court of Appeal decision in November. Less significant cases moved even faster. Records suggest that Magistrate Court matters were often disposed of within a month of the offence. In Toronto, shoplifting cases were sometimes tried the same week.
Today, the situation is completely different. Delay is common and not merely in fraud matters. The opening paragraph of the decision of the Ontario Court of Appeal in a murder case, R. vs. Walizadah, says it all: “The appellant … was tried before [a judge and jury] in Toronto for [a first-degree murder occurring] on December 30, 1999. The trial commenced on November 19, 2002. On April 4, 2003, he was convicted as charged.” The Court of Appeal’s decision was granted July 12, 2007, more than six years after the murder. Note that the trial portion of that time was about five months.
Why is there such a delay?
Today’s trials provide the accused with far more information and give them a far better opportunity to show up weaknesses in the prosecution’s case. But it is not immediately obvious that the trials themselves are necessarily fairer. Rates of conviction have not changed materially since the 1950s, which would suggest that while injustice may be avoided more often in individual cases these days, the overall system is convicting roughly the same sort of people for roughly the same sort of offences — but at greatly increased cost and effort. The problem seems to be that the system itself, in striving for perfection, has hit a point of overload.
There are ways to simplify it. Early fixed trial dates, for one, would motivate lawyers and police to move quickly. Our preliminary inquiry system — for some serious cases, effectively a trial before trial — adds a layer of complexity to many cases for no obvious reason.
Charges are laid for tactical reasons (charging an accused with ten charges when one or two are genuine in the hope that will lead to a plea) and cases are pursed that a generation ago would have been ignored. Discretion has been removed from police and Crown Attorneys – zero tolerance is an expensive proposition.
Disclosure by the Crown has become a legal industry in itself. In the Toronto police corruption cases (granted, a very complex matter) disclosure came in bunches of 65,000 and 80,000 — and even 110,000 — pages. Even minor cases now involve numerous pre-trial attendances — usually to schedule other pre-trial attendances. No viable criminal justice system, no matter how well funded, can function in such an ocean of process. Attempts to streamline the process, Ontario’s Justice on Target for example, are a good first step but they do not get to the root of the problem – trials are not being limited.
To eliminate the delays that now afflict the system, it will be necessary to simplify and limit pre-trial mechanisms, and to shorten and simplify trials. This will be hard, and we must protect the rights of the accused. Still, we have no choice but to reform the current system: The best has become the enemy of the good. The concept of justice delayed being justice denied is not merely a platitude — it is reality.
R. v. Garth Howard Drabinsky and Myron Irwin Gottlieb
Docket: C50830 & C50831
On appeal from the convictions entered on March 25, 2009, and the sentences imposed on August 5, 2009, by Justice Mary Lou Benotto of the Superior Court of Justice, sitting without a jury, written reasons reported at (2009), 242 C.C.C. (3d) 449 and (2009), 246 C.C.C. (3d) 214.
The appellants were charged with two counts of fraud and one count of forgery. They were tried before Justice Benotto of the Superior Court of Justice at a trial lasting 65 days. On March 25, 2009, they were convicted on all counts. The forgery count was subsequently stayed pursuant R. v. Kienapple, [1975] 1 S.C.R. 729. On August 5, 2009, the trial judge sentenced Drabinsky to a term of imprisonment of seven years and Gottlieb to a term of six years.
The appellants appealed both their convictions and their sentences. The appeals were heard on May 2, 3 and 4, 2011 before a court composed of Justices Doherty, Goudge and Armstrong.
The decision of the Court will be released at 11 am on Tuesday, September 13, 2011. The judgment of the court will be posted on the court’s website at that time.
Wednesday, September 7, 2011
Abandonment of employment
The Test for Abandonment
[47] The parties agree that it is an implied term of every employment contract that an employee must attend work. They also agree that when an employee fails to comply with that term he or she will be taken to have abandoned (i.e., repudiated) the contract, entitling the employer to treat the contract as being at an end. Lastly, the parties agree that the trial judge properly stated the test for determining whether an employee had abandoned his or her employment, namely, whether, viewing the circumstances objectively, would a reasonable person have understood from the employee's words and actions, that he or she had abandoned the contract: Assouline v. Ogivar Inc. (1991), 39 C.C.E.L. 100 at 104 (B.C.S.C.); Danroth v. Farrow Holdings Ltd., 2005 BCCA 593, 2005 BCCA 593, 47 B.C.L.R. (4th) 56 at para. 8.
Why we need hard copies of books and printed photographs
I love the blogosphere. My blog -- for better or worse -- has taken thousands of hours of my time to create.
Electronic photographs are great. I have hundreds on my phone and I can share them around the world in a matter of moments.
So why am I whining that we need hard copies of books and printed photographs?
Remember Super 8 movies? Yes? Well, if you still have them, can you play them?
That's the problem.
Today's e-book readers will not be here to read today's e-books for very long. My blog will be off-line and unreadable in a matter of a decade at most. The Blackberry that holds my electronic photographs will be replaced by who knows what and the photos, will be like dust in the wind... .
The point is our e-documents will not last unless we make them into hard copies that need no interface to read.
When must civil applications be tried?
[25] Applications brought pursuant to Rule 14.05 are generally brought when there is no matter in dispute and when the issues to be determined do not go beyond interpretation of a document. When issues of credibility arise, the matter should proceed as an action.
[26] Affidavit evidence on applications is properly confined to statements of fact within the personal knowledge of the deponent or to other evidence that the deponent could offer if testifying as a witness in court. Non-contentious facts may be included in affidavits based on information and belief only.
...
[30] Although the applicant seeks an order of the court directing TKD Canada to call, hold and conduct an annual members meeting to elect directors under section 106 of the Canada Corporations Act, before any such order of this type could be made, the court must make a number of factual findings and legal determinations.
...
[32] The respondent relies upon Collins v. Canada (Attorney General), [2005] O.J. No. 2317 (ON S.C.) in which the court held that the following factors must be considered in determining whether an application should proceed as an action:
(1) whether there are material facts in dispute;
(2) the presence of complex issues requiring expert evidence and a weighing of the evidence;
(3) whether there is a need for the exchange of pleadings and for discoveries; and
(4) the importance and impact of the application and of the relief sought.
[33] It has also been held that it is beyond the proper role of an application judge to determine the credibility of the deponent and to resolve material facts in dispute: Newcastle Recycling Ltd. v. Clarington (Municipality), 2005 CanLII 46384 (ON CA), 2005 CanLII 46384 (ON C.A.).
[34] In order to determine whether any relief is available to the applicant under section 106 of the Canada Corporations Act, it is necessary to make a number of findings of fact which will involve the weighing and assessing of the credibility of several witnesses as to various events that occurred in the period from July 2010 through to the meeting of November 24, 2010 where the present constitution was established.
[35] In my view, there are numerous material facts in dispute which arise from a very voluminous and conflicting evidentiary record. The issues are complex and require oral testimony with full cross-examination so that they may be properly weighed and assessed. There are not simply legal interpretation disputes present but rather, for example, disputes as to who actually was in attendance at particular meetings and whether or not their attendance was required to establish a proper quorum for the conduct of the meeting. In my view, these kinds of complex factual and legal disputes cannot be properly determined on a summary basis on conflicting affidavits.
A sensible economic plan
While there remains much to be done to eliminate unnecessary restrictions on foreign trained professionals working in Ontario, the Dalton McGuinty's proposal to encourage employers to give them a first job is a good first step.
Tuesday, September 6, 2011
Conrad Black -- the Voice of Reason on prison reform?
The Court must exclude inadmissible evidence, even if called by the party injured by the evidence, if justice requires
[3] The appellant's defence also should have been relatively straight-forward. His position was that a business associate had given him the cheque to repay a debt and he believed the cheque was genuine. Regrettably, the appellant, who was not represented by counsel, decided to make the manner in which the case was investigated an issue in the case. Accordingly, he called the officer in charge of the investigation, Detective Redick, as his own witness. He then proceeded to ask him a series of very ill-advised questions as to why the officer arrested him and why he did not conduct certain other investigations. The result was that prejudicial opinion and investigative hearsay was placed before the jury. Further, the trial judge failed to give the jury a limiting instruction as to the use to be made of that evidence and in fact invited the jury to use Detective Redick's opinion and other evidence to support the Crown's allegation that the appellant must have known that the cheque was forged.
[4] Thus, the trial judge instructed the jury, in part, as follows:
The cheque cleared the five-day hold period, and then, as you will see from the account printout, a series of withdrawals started. Detective Redick told you that the withdrawal pattern in Mr. Igbinedion's business account is typical of what occurs when a counterfeit cheque is deposited and a person wants to get the money. That person usually tests the water to see if they will get away with the fraud. They start with small withdrawals, and if there are no problems, the withdrawals will escalate. That is the type of activity that you will see when you look at the account printout.
And
The detective told you that he had investigated the names on the money orders, and his search told him that Wale Phillips was a person involved in another fraud and in possession of property obtained by crime.
[5] Detective Redick's evidence was admissible for a very limited purpose. As the Supreme Court of Canada said in R. v. Van, [2009] 1 S.C.R. 716 at para. 26:
Lower courts have also decided that a trial judge who admits evidence of this kind must provide the jury with a limiting instruction as to its permissible and impermissible uses. The jury must be informed that they can only use evidence of this type for the limited purpose of setting out a narrative of the procedures that were followed in the investigation. They must be cautioned against relying on hearsay and opinion evidence that would be otherwise inadmissible in their determination of the guilt or innocence of the accused (Dhillon, at para. 51; Mallory, at para. 92).
[6] There was no suggestion that Detective Redick's evidence was admissible as expert opinion evidence. His evidence about Wale Phillips was hearsay, highly prejudicial and not admissible for its truth as an item of evidence from which the jury could find that the appellant knew the cheque was forged. The jury should have been directed in the clearest of terms that they could not use Detective Redick's testimony about his investigation as evidence of guilt.
I'm glad to see the Toronto Sun takes a fair and balanced approach to the Liberal platform
There are legitimate issues to raise about the platform -- I think it's a good and sensible platform but reasonable people can legitimately differ.
But the Sun's cover?
Candidly it's such nonsense that whatever it says inside is made meaningless.
Monday, September 5, 2011
McGuinty promises 30 per cent tuition cut, as Liberal platform unveiled
Dalton McGuinty unveiled his long-awaited platform for the Oct. 6 election with a massive new pledge worth up to $1,600 a year for full-time university students.
"We're taking the next step ... to make sure postsecondary education remains accessible and affordable to the middle class," said the Liberal platform, entitled "Forward. Together."
"So we're going to support all middle-class Ontario families with a 30 per cent across-the-board post-secondary tuition grant."
The new measure, which would be directly applied by the universities and colleges when they send out tuition bills, would cost the treasury $423 million annually.
Existing tuition breaks for low income students would remain in place, party officials said.
Sunday, September 4, 2011
Migraines
Most people with migraine headache feel the pain in the temples or behind one eye or ear, although any part of the head can be involved. Besides pain, migraine also can cause nausea and vomiting and sensitivity to light and sound. Some people also may see spots or flashing lights or have a temporary loss of vision.
Migraine can occur any time of the day, though it often starts in the morning. The pain can last a few hours or up to one or two days. Some people get migraines once or twice a week. Others, only once or twice a year.
The exact cause of migraine is not fully understood. Most researchers think that migraine is due to abnormal changes in levels of substances that are naturally produced in the brain. When the levels of these substances increase, they can cause inflammation. This inflammation then causes blood vessels in the brain to swell and press on nearby nerves, causing pain.
There are drugs that can help -- they tend to be very costly. The best treatment, at least that I have found, is to sit or recline in a dark room and just rest.
NDP council must decide — what would Jack want?
Jack Layton was a great leader but he's gone now.
What would work for him will not work for anyone else -- imagine the winner of the election, Stephen Harper, trying to use Jack's 'sunny ways'!
What the NDP council must do is decide what is the best way to pick a successor to Jack. Trying to figure out WWJ do (where 'J' is Jack) is not necessarily the same thing:
http://bit.ly/pVGOjs
September 4, 2011
Tim Harper
National Affairs Columnist
OTTAWA
When it convenes later this week to fire the starting gun on the most important leadership race in party history, the NDP's governing council has never had a tougher task.
First, members must divine Jack Layton's words from the grave as they set the timing and terms of the race to replace the late leader.
You cannot be friends upon any other terms than upon the terms of equality
(of course, Wilson resegregated the US Federal government so perhaps he didn’t want to be friends with any other than white people?)
