Saturday, February 25, 2012
Tories inch away from Bill C-30 as poll shows backlash in heartland
"Angus Reid found that while Bill C-30 isn't exactly beloved anywhere in our fair dominion, the three regions that are most opposed to Bill C-30′s passage are Alberta (66% opposed), Ontario (58% opposed) and the Atlantic provinces (63% opposed). Those are huge numbers, and very significant for this government — if you had to name three areas of the country where the Tories must absolutely be competitive if they intend to continue winning majorities, Alberta, Ontario and the Atlantic provinces are three pretty good places to start."
Vote suppression effort too big to be a single rogue operative
It's regrettable but someone always misses to forest for the trees and, say, pulls down signs or makes phony calls (we saw that in Oshawa in the last campaign -- heck, my signs were coming down faster than we could put em up!).
But here we see a coordinated effort across a large number of ridings using the same technique. And at considerable cost -- I have paid for call centres and robocalls and they aren't cheap.
Someone with money, access to confidential lists and knowledge of national campaign strategy was behind the voter suppression here. It may well not have been the CPC centre (I doubt it was) but it was someone well funded and not far off:
"Elections Canada and police are looking into reports that automated calls in as many as 18 ridings falsely advised voters that the location of their polling stations had changed. In other instances, voters received harassing late-night or early-morning calls that purported to be from an opposition campaign office.
The Tories said they will provide information regarding the incidents to Elections Canada and urged anyone with knowledge of the calls to "come clean immediately."
The Liberals blamed the growing scandal on Mr. Harper, accusing him of fostering a toxic political culture.
"We are entering into a kind of Nixonian moment in our political culture, where all kinds of dirty tricks seem to be possible, all kinds of dirty tricks seem to be encouraged," Mr. Rae said – a reference to tactics used in the early 1970s by Republicans under U.S. president Richard Nixon.
The Conservatives have insisted they ran a "clean and ethical campaign," but the left open the possibility of a rogue operative being involved."
http://bit.ly/ArGgIZ
Friday, February 24, 2012
All too plausible to think the Conservatives are involved in the robocall scandal
"So, no, we do not know for a fact that the calls came from anyone acting on the authority of the Conservative party. But, well, let's say it fits a pattern — if not of outright lawbreaking then certainly of close-to-the-wind tactics and ends-justify-the-means ethics. The "in and out" affair may not have been the scandal many, including Elections Canada, thought it was, but it hardly spoke of a robust commitment to honesty and fair play. The deceptive calls to voters in Irwin Cotler's riding of Mount Royal are a still closer precedent. It is not implausible that somebody connected with the party would have taken their cues as to what was considered appropriate behaviour, and run with it.
But who? It beggars belief that local campaign workers in 18 different ridings could have separately hit upon the same scam, or carried it out without the knowledge of anyone outside the riding. The notion that the whole thing could be put down to one over-zealous young campaign worker, as some are putting about, is even less credible. Whoever did this would not only have to have the capacity to organize and fund a national robocalling operation. They would also have to have the lists of names and phone numbers to call. Such information would be closely held with respect to the party's own supporters. But how many people in the party would have access to lists of Liberal supporters? And how did they get them?
It is hard to overstate how serious this is. It doesn't matter whether the calls had their intended effect. It is sufficient that someone made them. If it were just the circumstances, or just their track record, the Conservatives might be given the benefit of the doubt. But the two together, while they do not prove anyone in the party was involved, make it all too plausible to believe they were. Indeed, it would be more surprising to find they weren't."
Military did damage control in wake of Peter MacKay’s helicopter flight
To use the Forces for partisan purposes is worse than misusing a military helicopter.
The tradition of keeping the Forces separate from politics is critical to Canadian democracy -- it is one of the things that makes us different from, say. Egypt and Syria.
Peter MacKay should be asked to resign.
http://www.thestar.com/mobile/NEWS/article/1136045
OTTAWA—Military personnel were asked to dig up dirt on an opposition MP in the wake of revelations Defence Minister Peter MacKay was picked up in a search-and-rescue helicopter from a 2010 fishing trip, defence department records show.
It first emerged in a television report on Sept. 21, 2011, that MacKay's office ordered a Cormorant helicopter to pick him up from a private lodge on the Gander River in Newfoundland at an estimated cost of $16,000. His destination was the Gander airport, where a Challenger jet was waiting to take him to a government announcement in London, Ont.
The morning of Sept. 22, Royal Canadian Air Force staff — including an officer posted in MacKay's office — were digging through flight logs to find instances where opposition party MPs took rides aboard military aircraft, according to emails obtained by the Toronto Star.
The search fixated on Liberal MP Scott Simms (Bonavista—Gander—Grand Falls—Windsor), whose riding includes the 9 Wing Gander air force base and who was critical of MacKay in the initial CTV report.
By noon that day, the air force officials had found what appeared to be information that might take the edge of Simms' criticisms.
"Found it. Jan. 17, 2011, he (Simms) flew with the Standby crew for almost the whole day," wrote Maj. Byron Johnson in an email to Royal Canadian Air Force headquarters in Ottawa. "Fax is on the way."
That email was sent to a number of individuals in Ottawa, including Maj. James Hawthorne, the military assistant to the Minister of National Defence. Hawthorne then demanded to know who invited Simms on the ride-along, where he flew with the Gander-based search-and-rescue crew, and if he paid any money to reimburse the military for the flight.
Another senior air force official, Maj. Jay Nelles, thanked staff in Newfoundland for retrieving the information so quickly, noting that the urgent request for information gave them "a taste of life in Ottawa!!"
Simms said the emails, which he reviewed Thursday, show the Conservative "counter-attack machine" in action. Instead of ministers holding themselves to a higher standard, they attack other politicians' credibility, he said.
"Obviously the minister's office was looking for something they could peg on me."
The Liberal MP said his tour involved an 8 a.m. briefing and two helicopter rides, totalling more than five hours in the air. In the morning he witnessed two search-and-rescue technicians perform a land search. Later in the day, he flew along as they performed a mock marine rescue. Simms said he gained an appreciation for how much preparatory work goes into planning a mission.
It turned out that MacKay's office had directed the search-and-rescue crews to take on Simms as their guest in response to concerns he had raised about response times to distress calls.
But under questioning in the House of Commons the day after news about MacKay's 2010 helicopter ride, the minister used the information uncovered by air force personnel to justify his own controversial trip.
He maintained that his 30-minute ride from the fishing lodge to the Gander airport was in fact a long-delayed search-and-rescue demonstration. He also noted that a number of other MPs, including NDP MPs Jack Harris and Christine Moore, had also taken Cormorant flights to learn about search-and-rescue operations.
Thursday, February 23, 2012
L'art du politique est de faire en sorte qu'il soit de l'intérêt de chacun d'être vertueux
The art of politics is to make it so that it is in everyone's best interest to be virtuous.
Dirty tricks
Some readers may be old enough to remember President Nixon. He was going to be reelected without any major issue. He didn't need Watergate and the Plumbers.
In a similar way, the attempt to mislead Liberal voters in the last election was (leaving aside the ethics) unnecessary. Despite a brilliant candidate in Oshawa we were not going to win in 2011. There was no need for the Conservatives to play games -- and yet they did.
What does "forthwith" mean?
(2) If a peace officer has reasonable grounds to suspect that a person has alcohol ... in their body and that the person has, within the preceding three hours, operated a motor vehicle ... the peace officer may, by demand, require the person ...
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
Today's decision in R. v. Quansah, 2012 ONCA 123 decides what "forthwith" means:
[45] In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
[46] Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
[47] Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).
[48] Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
[49] Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.
Fraudulent election calls traced to Edmonton firm with Conservative links
"In Guelph, a riding the Conservatives hoped to take from the Liberals, voters received recorded calls pretending to be from Elections Canada, telling them their polling stations had been moved. The calls led to a chaotic scene at one polling station, and likely led some voters to give up on voting."
Wednesday, February 22, 2012
Fresh evidence on appeal
[25] The four-part test for the admission of fresh evidence on appeal is set out in R. v. Palmer, [1980] 1 S.C.R. 759. To be admitted, the appellant must show that the evidence (1) could not have been obtained by due diligence before the trial (though this is not always required in the criminal context); (2) is relevant to a decisive or potentially decisive issue; (3) is reasonably capable of belief; and (4) if believed, could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
Ash Wednesday
According to the canonical gospels of Matthew, Mark and Luke, Jesus spent 40 days fasting in the desert before the beginning of his public ministry, during which he endured temptation by Satan.
Ash Wednesday marks the beginning of this 40-day liturgical period of prayer and fasting.
Tuesday, February 21, 2012
Is an ineffective assistance claim available on appeal from a Consent and Capacity Board capacity decision? Yes
[60] In my opinion, as with an accused whose liberty is at risk in a criminal proceeding, a treatment capacity hearing implicates a patient's fundamental human rights. In a very real sense, an incapacity finding engages a patient's liberty, dignity and right of self-determination with respect to medical treatment. The onus at a Board capacity hearing is on the health practitioner asserting incapacity to demonstrate incapacity on the requisite civil standard of proof by means of strong and unequivocal evidence: Starson, at para. 77; Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal (2005), 76 O.R. (3d) 321, at para. 79, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 428. In that sense, where a patient contests his or her physician's finding of incapacity before the Board, the resulting capacity review hearing must be viewed as an adversarial, adjudicative proceeding where fundamental human rights are engaged.
[61] Seen in this context, the effective assistance of counsel at a Board capacity hearing is no less important than at a criminal trial. Adapting Doherty J.A.'s reasoning in Joanisse, at p. 57, to the mental health context, effective assistance by counsel at such hearings enhances the adjudicative fairness of the process. It ensures that a patient who has been found incapable by his or her physician has a champion who has the same skills as counsel for the health care practitioner who can use those skills to ensure that the patient receives the full benefit of procedural protections available to the patient. Moreover, effective assistance ensures that the case for incapacity is thoroughly and skilfully tested and evidence tending to support capacity is advanced on behalf of the patient.
...
[64] It follows, in my view, that where it is established that counsel at a Board capacity hearing failed to provide effective assistance, thereby occasioning a miscarriage of justice, a patient may appeal an incapacity finding by the Board on the basis of that failure.
Hands free cellphone case: good for drivers but problematic to my mind
The question is, of course, how could there be evidence the cellphone is capable unless the officer uses the phone or directs the accused to make a call?
The decision, at least on my understanding, is problematic (albeit useful as a defence for driving caught talking on their cellphones).
Monday, February 20, 2012
Cotidie damnatur qui semper timet
C-30 thoughts
From 1984, by George Orwell
Thanks to Beryl Wajsman for reminding me of this passage
Saudi Arabia vows to end violence with "iron fist"
""It is the state's right to confront those that confront it first ... and the Saudi Arabian security forces will confront such situations ... with determination and force and with an iron first," the ministry said in a statement."
Intention in Contract
Did the parties enter into binding legal relations?
The law
[34] In Smith v. Hughes (1871), L.R. 6 Q.B. 597, in a widely-cited passage at 607, Blackburn J. formulated the test applicable to the question of whether parties have effectively agreed to enter into binding legal relations:
If whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms.
[35] In G.H.L. Fridman, The Law of Contract in Canada, 5th ed (Toronto: Thomson Canada Limited, 2006), the learned author notes at 15:
Constantly reiterated in the judgments is the idea that the test of agreement for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. The law is concerned not with the parties' intentions but with their manifested intentions. It is not what an individual party believed or understood was the meaning of what the other party said or did ...; it is whether a reasonable [person] in the situation of that party would have believed and understood that the other party was consenting to the identical terms. [Footnotes omitted.]
[36] See also Kernwood Ltd. v. Renegade Capital Corp., 97 O.A.C. 3, [1997] O.J. No. 179 (C.A.) at para. 17; Langley Lo-Cost Builders Ltd. v. 474835 B.C. Ltd., 2000 BCCA 365 (CanLII) <http://www.canlii.org/en/bc/bcca/doc/2000/2000bcca365/2000bcca365.html> , 2000 BCCA 365 at paras. 18-21; Diegel v. Diegel, 2008 ABCA 389 (CanLII) <http://www.canlii.org/en/ab/abca/doc/2008/2008abca389/2008abca389.html> , 2008 ABCA 389 at para. 23.
[37] In Langley at paras. 20-21, McEachern C.J.B.C. stated for the Court:
[20] There is very little authority about the basis upon which intention to contract should be found. In Tilden Rent-A-Car Co. v. Clendenning (1978), 83 D.L.R. (3d) 400 (Ont. C.A.), it was suggested at 405, that a person "who attaches his signature to the contract intends by doing so to acknowledge his acquiescence to its terms, and that the other party entered into the contract upon that belief." In A.G. Guest, ed., Chitty on Contracts, 27th ed. (London: Sweet and Maxwell, 1994), it is noted at 152 that in normal commercial transactions, where the intention to be contractually bound is at issue, the onus of proving that such an intention did not exist "is on the party who asserts that no legal effect is intended, and the onus is a heavy one": Edwards v. Skyways Ltd., [1964] 1 W.L.R. 349. Those, however, were cases where the form of the documentation was clearly contractual. The circumstances in the instant case were far more informal.
[21] Most authorities suggest that the Court is not confined to the four corners of the alleged agreement, but may look at all the circumstances. In Osorio v. Cardona [1984 CanLII 364 (BC SC) <http://www.canlii.org/en/bc/bcsc/doc/1984/1984canlii364/1984canlii364.html> , (1984), 15 D.L.R. (4th) 619], McLachlin J. considered evidence of past agreements involving other parties, the circumstances in which the alleged agreement was made, and future actions and representations by both parties. The investigation is to determine whether a reasonable observer would think that Terry Johnson on behalf of Langley, in signing the faxed document in these circumstances, intended to be contractually bound when he signed and delivered the faxed documents.
[Emphasis added.]
[38] In Langley at para. 76, this Court referred to Bawitko Investments Ltd. v. Kernels Popcorn Ltd. 1991 CanLII 2734 (ON CA) <http://www.canlii.org/en/on/onca/doc/1991/1991canlii2734/1991canlii2734.html> , (1991), 79 D.L.R. (4th) 97 (Ont. C.A.), setting out the following excerpt from 103-104:
As a matter of normal business practice, parties planning to make a formal written document [of] the expression of their agreement, necessarily discuss and negotiate the proposed terms of the agreement before they enter into it. They frequently agree upon all of the terms to be incorporated into the intended written document before it is prepared. Their agreement may be expressed orally or by way of memorandum, by exchange or correspondence, or other informal writings. The parties may "contract to make a contract", that is to say, they may bind themselves to execute at a future date a formal written agreement containing specific terms and conditions. When they agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract.
However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the "contract to make a contract" is not a contract at all. The execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself...
RIM Upgrades
Sunday, February 19, 2012
Exposure to other faiths does not, in itself, amount to an infringement of the free practice of religion
[23] At the stage of establishing an infringement, however, it is not enough for a person to say that his or her rights have been infringed. The person must prove the infringement on a balance of probabilities. This may of course involve any legal form of proof, but it must nonetheless be based on facts that can be established objectively. For example, in Edwards Books, the legislation required retailers who were Saturday observers to close a day more than Sunday observers. In Amselem, the infringement resulted from a prohibition against erecting any structure on the balconies of a building held in co‑ownership, while the appellants believed that their religion required them to dwell in their own succahs.
[24] It follows that when considering an infringement of freedom of religion, the question is not whether the person sincerely believes that a religious practice or belief has been infringed, but whether a religious practice or belief exists that has been infringed. The subjective part of the analysis is limited to establishing that there is a sincere belief that has a nexus with religion, including the belief in an obligation to conform to a religious practice. As with any other right or freedom protected by the Canadian Charter and the Quebec Charter, proving the infringement requires an objective analysis of the rules, events or acts that interfere with the exercise of the freedom. To decide otherwise would allow persons to conclude themselves that their rights had been infringed and thus to supplant the courts in this role.
[25] Furthermore, the following comment of Wilson J. in R. v. Jones, [1986] 2 S.C.R. 284, at p. 314, which Iacobucci J. quoted in Amselem, para. 58, bears repeating: s. 2(a) of the Canadian Charter " does not require the legislature to refrain from imposing any burdens on the practice of religion" (emphasis omitted; see also Edwards Books). "The ultimate protection of any particular Charter right must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises" (Amselem, at para. 62). No right is absolute.
...
[38] The appellants also maintain that exposing children to various religious facts is confusing for them. The confusion or "vacuum" allegedly results from the fact that different beliefs are presented on an equal footing.
[39] In Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710, the Court had an opportunity to consider the cognitive dissonance that may be encountered by children growing up in a diverse society. The Chief Justice made the following comments (paras. 65‑66):
Children encounter [some cognitive dissonance] every day in the public school system as members of a diverse student body. They see their classmates, and perhaps also their teachers, eating foods at lunch that they themselves are not permitted to eat, whether because of their parents' religious strictures or because of other moral beliefs. They see their classmates wearing clothing with features or brand labels which their parents have forbidden them to wear. And they see their classmates engaging in behaviour on the playground that their parents have told them not to engage in. The cognitive dissonance that results from such encounters is simply a part of living in a diverse society. It is also a part of growing up. Through such experiences, children come to realize that not all of their values are shared by others.
Exposure to some cognitive dissonance is arguably necessary if children are to be taught what tolerance itself involves.
[40] Parents are free to pass their personal beliefs on to their children if they so wish. However, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society. The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government's obligations with regard to public education. Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2(a) of the Canadian Charter and of s. 3 of the Quebec Charter.
Vic Toews responds to Vikileaks in letter to his riding
Privacy and the knowledge that you have a zone of autonomy in which you are free to live your life without the world scrutinizing you are necessary parts of a free society. Sometimes people will abuse that freedom to do criminal acts but that is a downside we accept in a free country.
And that's why Bill C-30 is unacceptable.