Morton's Musings

Mandatory minimum for possession of loaded forearm struck down

2012-02-13T22:13:00.001-05:00

The mandatory minimum sentence for a first offence of possession of a loaded firearm was struck down by Justice Molloy today in R v Smickle 2012 ONSC 602. I have a copy of the decision and reasons should anyone need it.

There is hardly a political question in the United States which doesn't sooner or later turn into a judicial one.

2012-02-13T14:15:00.000-05:00

Alexis De Tocqueville; true of modern Canada too

Judge allows testimony from bullying victim who killed himself

2012-02-13T12:42:00.000-05:00

This is not very surprising. Hearsay evidence that is necessary (here the witness is dead and so cannot speak) and reliable (here the police took a formal statement) may be admitted into evidence:

http://bit.ly/xIQVGO

Mitchell Wilson's voice will be heard at trial.

A judge has made the legal exception to common rules of court evidence.

The 11-year-old – despondent over his physical deterioration from muscular dystrophy and weary of constant bullying at school – committed suicide last September.
...

Both on the day of the attack and later that week, Mitchell gave statements about the incident to police officers. Further, he identified one of the two suspects after brushing past him in the principal's office at the school they both attended.

Failure to obtain ILA will not always render a client's mortgage for legal fees invalid

2012-02-13T12:24:00.000-05:00

Hillsburg Stables Inc. v. Gardiner Roberts LLP, 2012 ONCA 95 deals with a case where counsel obtained a mortgage for fees but did not recommend ILA. Such was an error but did not, on the specific facts, render the mortgage invalid. The Court holds:

No legal requirement for independent legal advice

[28] Hillsburgh submits that in the circumstances of this case, there was a legal requirement that Hillsburgh receive independent legal advice in relation to the security transaction pursuant to rule 2.06(2.1) of the Law Society of Upper Canada, Rules of Professional Conduct, which provides as follows:

When a client intends to pay for legal services by transferring to his, her or its lawyer a share, participation or other interest in property or in an enterprise, other than a non-material interest in a publicly traded enterprise, the lawyer shall recommend but need not require that the client receive independent legal advice before accepting a retainer.

[29] The application judge referred to rule 2.06(2.1) and confirmed that it applied not only to the acceptance of a retainer but also to the circumstances of this case. I agree.

[30] It is conceded by Gardiner Roberts that it did not comply with rule 2.06(2.1). According to the record, Gardiner Roberts failed to recommend that Elliott and Hillsburgh receive independent legal advice. As a result, Gardiner Roberts breached rule 2.06(2.1).

[31] The rule however only requires that a lawyer recommend that a client seek independent legal advice before providing the lawyer with an interest in property. It does not require that a client actually receive such advice. As noted by the application judge, there is no requirement for actual receipt of independent legal advice pursuant to the rule but rather a requirement that such advice be recommended.

[32] Despite this breach, for the reasons that follow, I have concluded that the security remains nonetheless enforceable as there was no disadvantage resulting from the lack of independent legal advice and the transaction was fair.

(b) Security transaction was fair despite the lack of independent legal advice

[33] Hillsburgh submits that once it is established that a lawyer obtained security from his or her client for the payment of accounts, without recommending that the client seek independent legal advice, the lawyer bears the onus of showing that there was no disadvantage to the client.

[34] In light of the fiduciary relationship that exists between the lawyer and his or her client, Hillsburgh also maintains that it will be very difficult for the lawyer to show that there was no disadvantage to the client. As explained by Megarry J. in Spector v. Ageda, [1973] Ch. 30, at p. 47:

[T]he solicitor must be remarkable indeed if he can feel assured of holding the scales evenly between himself and his client. Even if in fact he can and does, to demonstrate to conviction that he has done so will usually be beyond possibility in a case where anything to his client's detriment has occurred. Not only must his duty be discharged, but it must manifestly and undoubtedly be seen to have been discharged.

[35] In Hillsburgh's submission, the application judge either misunderstood the high onus resting on Gardiner Roberts or misapplied it on the facts of this case. I would not give effect to this ground of appeal.

[36] As previously discussed, although Gardiner Roberts breached rule 2.06(2.1) by not recommending that Elliott and Hillsburgh receive independent legal advice, it does not automatically follow that the security becomes unenforceable.

[37] The application judge identified and considered the correct legal principles applicable to the determination of disadvantage or unfairness in relation to the enforceability of a security transaction. Specifically, the lawyer must show that "no advantage was taken of the client; that the transaction was fair; that the client was fully informed; and that the client had competent legal advice or was not disadvantaged by its absence": Paul M. Perell, Conflicts of Interest in the Legal Profession (Markham, Ont.: Butterworths Canada, 1995), at p. 105.

[38] Applying these legal principles to the record, the application judge found that: (1) Gardiner Roberts did not take advantage of Hillsburgh and Elliott; (2) the security transaction was not unconscionable and there was no duress; (3) Elliott was fully informed in that he was most familiar with security transactions and proposed same; and (4) Elliott and Hillsburgh did not suffer a disadvantage as a result of not having received independent legal advice.

[39] These findings are entitled to deference by this court. In the circumstances of this case, there is a sufficient factual basis for these findings.

Purpose of written legal argument

2012-02-13T12:03:00.001-05:00

Chief Mountain v. Canada (A.G.), 2012 BCCA 69 deals with an application to submit a lengthy factum (written legal argument). In giving judgment the British Columbia Court of Appeal explained the purpose of written legal argument:

[10] The main purpose of the factum is to provide the court and the opposing party with an outline of the arguments that will be advanced, and a list of the authorities to be cited. The factum need not set out every nuance of the argument, nor need it comprehensively quote passages of relevant cases. Counsel should be aware, as well, that the members of the division hearing the case will have read, in addition to the factums, the judgment or judgments appealed from, as well as portions of other filed material. The factum should certainly refer to that material, but need not be repetitive of it.

Yawn, another week!!!

2012-02-13T07:42:00.001-05:00

Cromwell and the re admission of Jews to England

2012-02-12T17:09:00.001-05:00

Jews were expelled from England in 1290 by Edward I. Most people, myself included, though Cromwell allowed their re admission as part of his policy toward Jews generally. In fact this is not the case (Cromwell did favour Jews being allowed to reside in England).

Jews were allowed legal status in England as a result of litigation and a judgment.

A Jewish merchant (Antonio Rodrigues Robles) who was already living in London was accused of being Spanish and his goods were confiscated as England was then at war with Spain. He sued for the goods and was awarded judgment against their confiscation and, as a side matter, had his residency regularised.

As a result Jews were allowed to stay and reside in England.

http://bit.ly/w92Ulk

First it was Michael Jackson, then Amy Winehouse, now, the magnificent Whitney Houston. I’d like every person in this room to campaign to legalize drugs

2012-02-12T14:28:00.000-05:00

"One of the most powerful moments came at the very start, when Tony Bennett — a longtime supporter of Houston — took the microphone and used her passing to launch into a plea for the legalization of drugs.

"First it was Michael Jackson, then Amy Winehouse, now, the magnificent Whitney Houston. I'd like every person in this room to campaign to legalize drugs.

"Let's legalize drugs like they did in Amsterdam. No one's hiding or sneaking around corners to get it. They go to a doctor to get it.""

http://bit.ly/xR6Ws7

Test for testimonial competence of adults with mental disabilities

2012-02-12T10:52:00.001-05:00

R. v. D.A.I., 2012 SCC 5 deals with the requirements of s. 16 of the Canada Evidence Act for the testimonial competence of persons of 14 years of age or older (adults) with mental disabilities. While dealing with the federal act only, the analysis of course has suasive influence when dealing with provincial legislation.

Section 16(3) imposes two requirements for the testimonial competence of an adult with mental disabilities: (1) the ability to communicate the evidence; and (2) a promise to tell the truth. It is unnecessary and indeed undesirable to conduct abstract inquiries into whether the witness understands the difference between truth and falsity, the obligation to give true evidence in court, and what makes a promise binding. The plain words of s. 16(3) focus on the concrete acts of communicating and promising. Judges should not add other elements to the dual requirements imposed by s. 16(3). This approach does not transform the promise into an empty gesture. Adults with mental disabilities may have a practical understanding of the difference between the truth and a lie and know they should tell the truth without being able to explain what telling the truth means in abstract terms. When such a witness promises to tell the truth, the seriousness of the occasion and the need to say what really happened is reinforced.

When applying s. 16(3) in the context of the Canada Evidence Act, eight considerations are appropriate. First, the voir dire on the competence of a proposed witness is an independent inquiry: it may not be combined with a voir dire on other issues. Second, the voir dire should be brief, but not hasty. It is preferable to hear all available relevant evidence that can be reasonably considered before preventing a witness to testify. Third, the primary source of evidence for a witness’s competence is the witness herself. Her examination should be permitted. Questioning an adult with mental disabilities requires consideration and accommodation for her particular needs; questions should be phrased patiently in a clear, simple manner. Fourth, persons familiar with the proposed witness in her everyday situation understand her best. They may be called as fact witnesses to provide evidence on her development. Fifth, expert evidence may be adduced if it meets the criteria for admissibility, but preference should always be given to expert witnesses who have had personal and regular contact with the proposed witness. Sixth, the trial judge must make two inquiries during the voir dire on competence: (a) does the proposed witness understand the nature of an oath or affirmation, and (b) can she communicate the evidence? Seventh, the second inquiry into the witness’s ability to communicate the evidence requires the trial judge to explore in a general way whether she can relate concrete events by understanding and responding to questions. It may be useful to ask if she can differentiate between true and false everyday factual statements. Finally, the witness testifies under oath or affirmation if she passes both parts of the test, and on promising to tell the truth if she passes the second part only.

The Court holds:

Summary of the Section 16(3) Test

[74] To recap, s. 16(3) of the Canada Evidence Act imposes two conditions for the testimonial competence of adults with mental disabilities:

(1) the witness must be able to communicate the evidence; and

(2) the witness must promise to tell the truth.

Inquiries into the witness’ understanding of the nature of the obligation this promise imposes are neither necessary nor appropriate. It is appropriate to question the witness on her ability to tell the truth in concrete factual circumstances, in order to determine if she can communicate the evidence. It is also appropriate to ask the witness whether she in fact promises to tell the truth. However, s. 16(3) does not require that an adult with mental disabilities demonstrate an understanding of the nature of the truth in abstracto, or an appreciation of the moral and religious concepts associated with truth telling.

[75] The following observations may be useful when applying s. 16(3) in the context of s. 16 of the Canada Evidence Act.

[76] First, the voir dire on the competence of a proposed witness is an independent inquiry: it may not be combined with a voir dire on other issues, such as the admissibility of the proposed witness’s out-of-court statements.

[77] Second, although the voir dire should be brief, it is preferable to hear all available relevant evidence that can be reasonably considered before preventing a witness to testify. A witness should not be found incompetent too hastily.

[78] Third, the primary source of evidence for a witness’s competence is the witness herself. Her examination should be permitted. Questioning an adult with mental disabilities requires consideration and accommodation for her particular needs; questions should be phrased patiently in a clear, simple manner.

[79] Fourth, the members of the proposed witness’s surrounding who are personally familiar with her are those who best understand her everyday situation. They may be called as fact witnesses to provide evidence on her development.

[80] Fifth, expert evidence may be adduced if it meets the criteria for admissibility, but preference should always be given to expert witnesses who have had personal and regular contact with the proposed witness.

[81] Sixth, the trial judge must make two inquiries during the voir dire on competence: (a) does the proposed witness understand the nature of an oath or affirmation, and (b) can she communicate the evidence?

[82] Seventh, the second inquiry into the witness’s ability to communicate the evidence requires the trial judge to explore in a general way whether she can relate concrete events by understanding and responding to questions. It may be useful to ask if she can differentiate between true and false everyday factual statements.

[83] Finally, the witness testifies under oath or affirmation if she passes both parts of the test, and on promising to tell the truth if she passes the second part only.

Looking around

2012-02-12T10:13:00.001-05:00

Cold, tired and bored!!!

2012-02-11T09:46:00.000-05:00

What noted Ontario judge played in Love Story (1970)?

2012-02-10T15:53:00.001-05:00

Justice Durno.

He played a goalie.

Tribunal review

2012-02-10T12:16:00.001-05:00

Saikaley (Re), 2012 ONCA 92 deals, among other things, with the standard of review of a tribunal or administrative tribunal. The Court holds:

[36] Deference will generally be accorded to a tribunal's interpretation of its home statute or statutes that are "closely connected to its function", and may also be warranted where a tribunal has developed expertise in applying a general rule of common or civil law in specific statutory contexts: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 54. Correctness is the appropriate standard of review for constitutional questions, particularly questions of Charter interpretation: see Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476, at para. 66 and United Food and Commercial Workers, Local 1518 (U.F.C.W.) v. KMart Canada Ltd., [1999] 2 S.C.R. 1083, at paras. 69-70. However, where the question is one of discretion, deference usually applies automatically: see Dunsmuir, at para. 53. The determination of an appropriate s. 24(1) Charter remedy generally involves an exercise of discretion: R. v. Carosella, [1997] 1 S.C.R. 80, at para. 48.

Just looking around

2012-02-10T09:45:00.000-05:00

Rabbi Gunther Plaut

2012-02-09T21:51:00.001-05:00

http://bit.ly/wS9jNC

Rabbi W. Gunther Plaut was once described as the unspoken leader of Canada's Jewish community. He was considered a titan of human rights and a leader in the Reform Judaism movement. Plaut died Wednesday night at the age of 99 after a long battle with Alzheimer's disease.

Born in Munster, Germany in 1912, Plaut grew up in an orphanage managed by his parents amidst the seething antipathy and tension that was nascent Nazi Germany. Prejudice, anti-Semitism and hatred were things Plaut faced from a young age and spent his life combating.

"He was a defender of human and civil rights at a time when many didn't even know its meaning. We stand on the shoulders of such men," said Bernie Farber, former head of the Canadian Jewish Congress.

Plaut graduated from law school at the University of Berlin in 1934 and moved to America the next year. He came to Toronto in 1961 after serving as a U.S. Army Chaplain during the war and a rabbi in Chicago and St. Paul in the United States. He was rabbi at the Holy Blossom Temple on Bathurst St. until 1977.

"Rabbi Plaut held a particularly preeminent place in Canada's Jewish community, for which his leadership will be missed," said David Koschitzky, Chair of the Centre for Israel and Jewish Affairs.

Underwater Bear

2012-02-09T15:56:00.001-05:00

New Criminal Proceedings Rules (Rules) for the Superior Court of Justice (Ontario)

2012-02-09T15:30:00.000-05:00

There are pending changes to the
Criminal Proceedings Rules (Rules) for the Superior Court of Justice (Ontario). The new Rules will be published in the Canada Gazette on February 29, 2012, coming into effect on March 1, 2012, and the existing Rules will be repealed on that date.

Although not yet in force, the English and French versions of the new Rules are currently available on the Criminal Proceedings page of the Superior Court's website:

www.ontariocourts.ca/scj/en/about/criminal.html.

Internet service providers not broadcasting

2012-02-09T12:37:00.000-05:00

IN THE MATTER OF the Broadcasting Act, S.C. 1991, c. 11, 2012 SCC 4 holds the terms "broadcasting" and "broadcasting undertaking", interpreted in the context of the language and purposes of the Broadcasting Act, are not meant to capture entities which merely provide the mode of transmission. The Broadcasting Act makes it clear that "broadcasting undertakings" are assumed to have some measure of control over programming.

The Court holds:

[3] We agree with Noël J.A., for the reasons he gave, that the terms "broadcasting" and "broadcasting undertaking", interpreted in the context of the language and purposes of the Broadcasting Act, are not meant to capture entities which merely provide the mode of transmission.

[4] Section 2 of the Broadcasting Act defines "broadcasting" as "any transmission of programs … by radio waves or other means of telecommunication for reception by the public". The Act makes it clear that "broadcasting undertakings" are assumed to have some measure of control over programming. Section 2(3) states that the Act "shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings". Further, the policy objectives listed under s. 3(1) of the Act focus on content, such as the cultural enrichment of Canada, the promotion of Canadian content, establishing a high standard for original programming, and ensuring that programming is diverse.

[5] An ISP does not engage with these policy objectives when it is merely providing the mode of transmission. ISPs provide Internet access to end-users. When providing access to the Internet, which is the only function of ISPs placed in issue by the reference question, they take no part in the selection, origination, or packaging of content. We agree with Noël J.A. that the term "broadcasting undertaking" does not contemplate an entity with no role to play in contributing to the Broadcasting Act's policy objectives.

Up a tree

2012-02-09T08:24:00.000-05:00

Brahms: Ein deutsches Requiem, 2. Denn alles Fleisch, es ist wie

2012-02-09T07:19:00.003-05:00

http://www.youtube.com/watch?v=VBAtf5o9er8

Denn alles Fleisch, es ist wie Gras:
Ein deutsches Requiem, 2nd movement
Johannes Brahms (1869)

Otto Klemperer, Philharmonia Orchestra, 1961

It's over for Rob Ford

2012-02-08T22:23:00.001-05:00

Yes, Rob Ford is still Mayor of Toronto but from tonight on we might as well start calling him pro tem.

Councillor Karen Stintz has put together a solid 25 vote block and she is now the de facto Mayor. What she says, so long as her block is solid, goes.

The Mayor has appointment power, scheduling power and a bully pulpit but the Mayor has one vote the same as any other councillor. Tonight, by defeating Rob Ford on one of his key initiatives Karen Stintz showed the wizard was not all powerful -- indeed, the wizard has almost no power at all:

http://bit.ly/y31I0v

Notice must be served against individual who communicated a defamation to a media outlet

2012-02-08T12:04:00.003-05:00

Notice under the Libel and Slander Act must be given for a claim for libel in a newspaper or broadcast. What if the defamation comes from a non-media individual who communicates the defamation to the media? Must a notice be given for a claim against the individual? According to TPG Technology Consulting Ltd. v. Canada (Industry Canada), 2012 ONCA 87 such notice must be given:

[26] As I have already noted, the amended statement of claim alleges that the respondents provided the media with false and defamatory information about them which formed the basis of several media articles. Several of the publications in which the allegedly defamatory statements appeared are Ontario publications. In response to a request to admit, the appellants admitted that they did not provide notice of their claim pursuant to s. 5 (1) of the Libel and Slander Act, R.S.O. 1990, c. L-12, which states: Notice of action [27] (1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.

[28] As the motion judge struck the entire defamation claim, he did not deal with this issue.

[29] The appellants argue that no notice was required on the ground that their claim is for slander for transmitting words to the media rather than for the publication of the words by the media.

[30] I am unable to accept that submission.

[31] In my view, it is clear from the amended statement of claim that the appellants did not plead a claim for slander. That claim would necessarily be limited to damages flowing from the communication and not include damages flowing from the publications that followed. Rather, the appellants are alleging that the respondents were the source of the allegedly defamatory information that was published by the media and which, they say, caused damage to their reputation. As framed, the claim for defamation is based on the fact that the information was published “in a newspaper or in a broadcast” and the notice requirement imposed by s. 5(1) therefore applies.

[32] As explained by Brown on Defamation, at pp. 7-30 to 7-31, a person who communicates a defamatory remark to a newspaper will be held responsible for libel, rather than slander, as though he or she published it him- or herself:

Thus, it has been said by the Supreme Court of Canada that a person who communicates a defamatory remark to a newspaper reporter will be deemed to have authorized that reporter to publish the remark in the newspaper and will be held responsible as though he published it himself. […] If the defamation is published in the newspaper, the liability will sound in libel rather than slander even if the defendant communicated it orally to the reporter

[33] The rationale behind s. 5(1) “is to give a defendant an opportunity to correct, retract, justify, apologize for, or otherwise consider what mitigating steps are appropriate” : Siddiqui v. Canadian Broadcasting Corporation (2000), 50 O.R. (3d) 607 (C.A.) at para. 16. The section and the rationale have been applied to non-media defendants by several decisions of this court: Janssen-Ortho Inc. v. Amgen Inc. (2005), 256 D.L.R. (4th) 407 (Ont. C.A.); Watson v. Southam Inc. (2000), 189 D.L.R. (4th) 695 (Ont. C.A.); DeHeus v. Niagara Regional Police Services Board [2001] O.J. No. 4201 (C.A.); Weiss v. Sawyer (2002), 61 O.R. (3d) 526 (C.A.). In Watson v. Southam Inc.,Weiler J.A. noted that the application of the section to non-media defendants had been criticized, but concluded that the parties had not made out a case for overruling it. The same observation applies to this case.

Bao Bao in Berlin

2012-02-08T11:59:00.002-05:00

At 35 perhaps the oldest Panda living today:

What one has, one ought to use: and whatever one does one should do with all one's might: Cicero

2012-02-08T10:26:00.001-05:00

The Toronto census metropolitan area grew to 5,583,064 residents

2012-02-08T10:13:00.000-05:00

Wow. I remember Toronto being less than a million:

http://bit.ly/AF6XzB

Toronto's new cub

2012-02-08T07:31:00.000-05:00

Costs of Crime Report

2012-02-07T22:08:00.001-05:00

The 2008 report was recently released from the Department of Justice. No other years appear to have been reported. Note, these figures will be very significantly impacted by the recent crime bills.

Total Prosecution Costs: $528,249,551

Total Criminal Court Costs: $672,392,760

Total Correction Costs: $4,836,224,546

Total Police Expenditures: $11,448,937,000

Total Legal Aid Expenditures (criminal matters):$380,855,000

You can read it here:

http://www.justice.gc.ca/eng/pi/rs/rep-rap/2011/rr10_5/a.html

You miss 100 percent of the shots you never take: Wayne Gretzky

2012-02-07T18:27:00.001-05:00

Information from torture can be used

2012-02-07T13:48:00.000-05:00

The federal government has directed Canada's spy agency to use information that may have been extracted through torture in cases where public safety is at stake.

The order represents a reversal of policy for the Conservative government, which once insisted the Canadian Security Intelligence Service would discard information if there was any inkling it might be tainted.

A Dec. 2010 directive obtained by The Canadian Press under access to information reveals Public Safety Minister Vic Toews, shown here during Friday's question period, has quietly reversed the Canadian government's policy on using intelligence derived from torture or mistreatment. (Sean Kilpatrick/Canadian Press)

Public Safety Minister Vic Toews has quietly told CSIS the government now expects the spy service to "make the protection of life and property its overriding priority."

A copy of the two-page December 2010 directive was obtained by The Canadian Press under the Access to Information Act.

http://www.cbc.ca/news/politics/story/2012/02/07/pol-cp-torture-csis.html

Should lawyers acting on contingency by obliged to post security for costs for their impecunious clients? Generally no

2012-02-07T13:01:00.001-05:00

Indcondo Building Corporation v. Sloan, 2012 ONCA 83 holds that, generally, lawyers acting for impecunious clients are not obliged to post security for costs for their clients even if acting on contingency:

[5] The respondents argue that lawyers who act on a contingency basis and who have accepted the risk of bearing the plaintiff’s costs of litigation should be treated no differently than the plaintiff would be treated when it comes to the costs obligations to a successful defendant.

[6] With respect, I disagree. The issue does not appear to have been previously addressed by this court. Counsel were unable to cite any authority from this court on point. However, the issue was addressed squarely by Nordheimer J. of the Superior Court of Justice in Intellibox Concepts Inc. v. Intermec Technologies Canada Ltd. (2005), 14 C.P.C. (6th) 339 at para. 12:

As I have noted, the logical extension of ordering security for costs to be posted by an impecunious corporate plaintiff by reason of the fact that its solicitors are operating on a contingency fee basis is, in effect, to require those solicitors to provide the security. Solicitors who make legal services available based on contingency fee arrangements with clients, who could not otherwise afford to litigate a claim, assume the risk that they may not be paid for their work unless a favourable result is achieved. To require those solicitors to assume the additional burden of posting security for costs, with the concomitant risk of losing those funds (in addition to going unpaid for their own services), would impose a significant disincentive to contingency fee arrangements and would run contrary to the very rationale by which they are permitted. In my view, it would be incongruous to interpret the Rules of Civil Procedure in such a fashion.

[7] I agree with Nordheimer J. In my view, as a matter of principle, the lawyer who acts on a contingency fee basis is already carrying the significant risk of not being paid and, as in this case, being stuck with the costs of paying the disbursements. To add the additional burden of posting security for costs would no doubt have a chilling effect on those lawyers who might otherwise make their services available on a contingency basis – thus creating another problem for access to justice.

Canadian SuperStar Almost Unknown in Canada

2012-02-07T09:55:00.002-05:00

Dashan (Chinese: 大山; pinyin: Dàshān; literally "Big Mountain") is the Chinese stage name adopted by Canadian Mark Henry Rowswell,CM (born May 23, 1965 in Ottawa, Ontario) who works as a freelance performer in People's Republic of China. Relatively unknown in the West, Dashan is the most famous Western personality in China's media industry.

http://www.thestar.com/news/article/1127382--harper-in-china-a-goodwill-gesture-as-pm-arrives-in-beijing?bn=1

Sunny day

2012-02-07T04:36:00.000-05:00

Change to Summary Judgment Rule without Meaning?

2012-02-06T17:47:00.001-05:00

Estates Associates Inc. v. 1645112 Ontario Ltd., 2012 ONCA 75 is another summary judgment case arising under the amended Rule 20.

Once again, a weak case was held to be sufficient to avoid summary judgment. Indeed, the Court of Appeal appears to have searched the record for evidence helpful to the respondent even where such evidence was not drawn to the motion judge's attention.

This comment is not a criticism of the Court's ruling; rather, counsel should be aware that the change in the R 20 test seems to have been a change without material effect. Summary judgment will only be granted in the clearest cases.

The Court holds:

[8] While the appellant may have failed to identify the relevant evidence before the motion judge, the record does contain evidence that McCowan made representations to Iqbal as to the value of the mortgaged properties. In addition, there is evidence in the record that could support a finding that McCowan's conduct constitutes a representation as to the value of the mortgaged properties. The test applied by the motion judge recognizes that false representations can be by conduct.

Really tired for some reason...

2012-02-06T15:33:00.002-05:00

Tackling Violent Crime Act makes no material difference in dangerous offender finding

2012-02-06T14:01:00.000-05:00

R. v. Lewis, 2012 ONCA 78 deals with an appeal from a finding the accused was a dangerous offender. In so finding the Court held that, at least here, the difference between the law before and after the Tackling Violent Crime Act came into force in 2008 is unimportant:

(2)      Application of the post-July 2008 amendments

[3]              The sentencing judge applied the law that was in effect at the time the appellant committed the predicate offence. In July 2008, the Tackling Violent Crime Act came into effect. As the title of the Act might suggest, these amendments were intended to streamline the dangerous offender process and make proof of dangerous offender status easier, especially for an offender like this appellant who had two prior convictions for primary designated offences. The amendments also removed the discretion not to find a person a dangerous offender if the offender met the criteria set out in s. 753 of the Criminal Code. However, the amendments also gave the judge the discretion to impose a long term supervision order on a dangerous offender, instead of the indeterminate sentence. Under either scheme, the route to the long term supervision order is similar. Under the old regime a long-term offender order could be made if there was a reasonable possibility of eventual control of the risk in the community. The new regime speaks of a reasonable expectation that a lesser measure (i.e. a long term supervision order following a determinate sentence) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[4]              In the appellant's circumstances there is no meaningful practical distinction between the two regimes. The risk under either regime for this appellant is of committing a serious personal inquiry offence. Given the expert evidence the test of "reasonable expectation" and "reasonable possibility" were both met, assuming they contemplate different levels of risk; an issue we need not decide in this case.

Totality principle

2012-02-06T11:06:00.000-05:00

R. v. Hutchings, 2012 NLCA 2 is an important and careful decision considering the totality principle in the context of multiple offences.

The principle applies to ensure the overall sentence is fit and not unduly harsh. Totality involves "one last look" (R. v. Reader (M.), 2008 MBCA 42 at para. 26) or "a final look" (R. v. Adams, 2010 NSCA 42 at para. 23) at the overall sentence to determine whether the total punishment is "just and appropriate" and "not excessive"(R. v. English (E.) (1994), 122 Nfld. & P.E.I.R. 15 (Nfld.C.A.) at, respectively, paras. 30 and 36) and is reflective of the overall culpability of the offender.

The entire decision is worth a close review. The Court's direction on totality follows:

[84] The foregoing analysis, as well as the fact that the Ruby formulation which was referred to in M.(C.A.), pre-dated ss. 718.1 and 718.2(c), requires a restatement of the applicable approach. I would state the following as guidelines for the analytical approach to be taken henceforth:

1. When sentencing for multiple offences, the sentencing judge should commence by identifying a proper sentence for each offence, applying proper sentencing principles.

2. The judge should then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that they constitute a single criminal adventure, without consideration of the totality principle at this stage.

3. Whenever, following the determinations in steps 1 and 2, the imposition of two or more sentences, to be served consecutively, is indicated, the application of the totality principle is potentially engaged. The sentencing judge must therefore turn his or her mind to its application.

4. The approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender.

5. In determining whether the combined sentence is unduly long or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender, the sentencing court should, to the extent of their relevance in the particular circumstances of the case, take into account, and balance, the following factors:

(a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved;

(b) the number and gravity of the offences involved;

(d) the impact of the combined sentence on the offender's prospects for rehabilitation, in the sense that it may be harsh or crushing;

(e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender's degree of responsibility.

6. Where the sentencing judge concludes, in light of the application of those factors identified in Step 5 that are deemed to be relevant, that the combined sentence is unduly long or harsh and not proportionate to the gravity of the offences and the offender's degree of responsibility, the judge should proceed to determine the extent to which the combined sentence should be reduced to achieve a proper totality. If, on the other hand, the judge concludes that the combined sentence is not unduly long or harsh, the sentence must stand.

7. Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been.

8. In imposing individual sentences adjusted for totality, the judge should be careful to identify:

(a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality;

(b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and

(c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced.

9. Finally, the sentencing judge should indicate whether one or more of the resulting sentences should be further reduced to reflect any credit for pre-trial custody and if so, by how much.

Sixty Years Queen of Canada

2012-02-06T10:34:00.003-05:00

Most of us have no memory of anyone other than Elizabeth being Queen. And in truth she has been a dedicated and model Monarch:

http://news.nationalpost.com/2012/02/06/queen-elizabeth-ii-marks-60-years-on-the-throne/

KING’S LYNN, United Kingdom — Queen Elizabeth II renewed her vow to serve on Monday as she made a low-key start to five months of diamond jubilee celebrations marking her 60 years on the throne.

Six decades after the death of her father King George VI on February 6, 1952 made the young princess a queen overnight, the monarch said in a message to her subjects she wanted to, “Dedicate myself anew to your service.”

The 85-year-old also thanked the nation for “the wonderful support and encouragement that you have given to me and Prince Philip over these years,” a reference to her husband of 64 years, who recently underwent heart surgery.

Monday - grumpy!!!

2012-02-06T08:27:00.000-05:00

"PM announces by-election for March 12, 2012" in Toronto-Danforth

2012-02-05T14:41:00.001-05:00

bit.ly/wPHVCk

Toronto Zoo's new polar bear cub

2012-02-05T12:11:00.000-05:00

Bill C-10 will hit Nunavut hard, Shewchuk tells senators

2012-02-05T12:07:00.001-05:00

This is a comment from a prison guard:

"We all want safe streets and safe communities.

But in the short term, the only way to implement bill C-10 in Nunavut is to declare Nunavut to be a prison. Then take away the travel documents of those who are convicted so they can’t leave the prison until their sentence has been served."

http://www.nunatsiaqonline.ca/stories/article/65674bill_c-10_will_hit_nunavut_hard_shewchuk_tells_senators/

Dan Shewchuk, the Nunavut justice minister, told the Senate legal affairs committee Feb. 2 that Bill C-10, the Conservative government’s omnibus crime bill, will create big costs and other problems for Nunavut’s justice and correctional systems.

Bill C-10, known as the Safe Streets and Communities Act, would amend the Criminal Code, the Youth Criminal Justice Act and other federal laws to limit the use of conditional sentencing, create more mandatory minimum sentences and make the youth justice law more tough.

Why did Caterpillar buy a plant only to destroy it?

2012-02-05T09:36:00.000-05:00

http://bit.ly/wNcPwC

"So the first lesson of the London massacre: Ottawa must be vigilant about vetting foreign investment and retaining jobs, but also mindful of valuing — and anchoring — our homegrown intellectual property. Why underwrite our companies if we willingly sell off our embedded brainpower to foreign bidders who leave Canada cash-rich, patent poor and jobless?"

Polar Bear Tonja

2012-02-04T14:28:00.000-05:00

http://www.youtube.com/watch?v=L5pd_aBS514&feature=player_embedded

Lead up to intervention in Syria?

2012-02-04T10:29:00.000-05:00

French Foreign Minister Alain Juppe called the killings in Homs a "massacre" and a "crime against humanity." In remarks clearly aimed at Moscow, he said any country that blocked U.N. action would bear a "heavy responsibility in history."

Mental illness and sentencing

2012-02-04T10:12:00.002-05:00

R. v. Prioriello, 2012 ONCA 63 deals with when mental illness is a mitigating factor in sentencing. The Court holds:

[11]. In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct: R. v. Robinson, [1974] O.J. No. 585 (C.A.).

When can a consent order be appealed?

2012-02-04T10:01:00.002-05:00

Ruffudeen-Coutts v. Coutts, 2012 ONCA 65 deals with when leave to appeal a consent order will be granted. Under s. 133(a) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, a consent judgment may be appealed only with leave; the case law regarding when leave is available is limited. The Court holds:
[59]         A review of the limited jurisprudence respecting leave to appeal consent orders, in Ontario and elsewhere in Canada, reveals that no clear test has emerged for granting leave in consent matters. However, what is clear is the resistance to allowing a review of issues that the parties have represented to the court as having been resolved. The expression of this resistance dates back to 1876, in the English case of Holt v. Jesse, 3 Ch.D. 177, at p. 184:
That is tantamount to giving a 'general license to parties to come to this Court and deliberately to give their consent, and afterwards at their will and pleasure come and undo what they did inside the court, because on a future day they find they do not like it.'
[60]         See also Nguyen v. Nguyen, 1999 CarswellOnt 2668 (S.C.); Fott v. Fott, 2001 ABQB 327, at paras. 4, 22, and 33.
[61]         Some assistance in determining when leave to appeal a consent order should be granted can be found in Donald Brown's Civil Appeals, looseleaf (Toronto: Canvasback Publishing, 2009) at p. 4-60:
In all jurisdictions, leave to appeal is required from an order made on consent, in some instances to be given by the judge or court making the consent judgment. The underlying rationale for requiring leave would appear to be that a consent order is a contract of the most formal nature, made in the context of adversarial judicial proceedings. Accordingly, apart from orders dealing with the custody of child (such as a consent adoption order), the same principles applicable to contracts are applied, and leave to appeal is unlikely to be granted unless the consent judgment was obtained by fraud, duress, mistake, or some other vitiating circumstance. [Citations omitted.]
[62]         In this passage, the author makes two points that are relevant to this case.
[63]         First, he observes that consent orders have their foundation in contract. It follows that they may be appealed on the basis that the circumstances surrounding the consent were such that there was no enforceable agreement. This engages standard contract principles: see Rick v. Brandsema, 2009 SCC 10, 1 S.C.R. 295, at para. 64; McCowan v. McCowan (1995), 24 O.R. No. 2245, at p. 712.
[64]         It follows that in cases where the issue relates to the validity of consent, leave to appeal should not be granted unless the evidence before the court on the leave application demonstrates that there is an arguable case that, at the time the agreement that formed the basis of the consent order was entered into, the moving party could not or did not consent. Such evidence may relate to factors that may undermine the enforceability of contracts, such as fraud, duress, or undue influence.
[65]         The second point Brown makes is that matters involving children fall into a special category.
[66]         The distinction is clearly based on the court's obligation to give priority to the best interests of the child: see Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 19 and 24; Family Law Act, R.S.O. 1990, c. F.3, s. 56; Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(8); see also M.A. v. C.P., 2010 ONSC 5481, 98 R.F.L. (6th) 434.
[67]         This priority is reflected in the general statutory provisions listed above. In addition, s. 21(2) of the Children's Law Reform Act requires a judge, before granting a consent order involving custody or access, to receive a parenting affidavit that includes the party's proposed plan for the child's care and upbringing, information respecting the person's involvement in other family proceedings or any criminal proceedings, and "any other information known to the person that is relevant to the factors to be considered by the court under subsection 24 (2), (3) and (4) in determining the best interests of the child". Further, s. 67.(1) of the Children's Law Reform Act requires the court to bear in mind the best interests of the child in making an order on consent.  And both s. 37 of the Family Law Act and s. 15.1(7) of the Divorce Act provide that in the face of the parties' consent, a court may only award an amount for child support that departs from the child support guidelines if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. A judge who is satisfied of the applicable requirements is entitled to endorse the parties' consent through formal court order.
[68]         Before articulating the test that applies for granting leave to appeal that, in my view, applies to consent orders involving children, I make the following three observations.
[69]         First, while consent orders are not ordinarily accompanied by reasons, in cases involving children, the statutory requirements I have referred to above demonstrate that the judge's determination should attract deference.
[70]         Second, finality itself has been recognized as being in the best interests of the child, as was emphasized by the Supreme Court in Van de Perre v. Edwards, 2001 SCC 60, 2 S.C.R. 1014, at para. 13:
[F]inality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge's decision.
[71]         Third, family law practice and procedure encourages parties to come to an agreement on as many issues as possible. As a consequence, consent orders are regularly granted. Routinely allowing such orders to be appealed simply because they deal with issues pertaining to children would have the wholly undesirable effect of providing yet another route to prolonged litigation in family law matters.
[72]         Accordingly, while cases in which leave to appeal consent orders involving children must be treated differently, the threshold for obtaining leave is still high.
[73]         In my view, leave to appeal consent orders in family law cases involving children should not be granted unless, bearing in mind the deference I have identified, the record demonstrates an arguable case that the order, at the time it was made, was not in the child(ren)'s best interests.

Air Kisses

2012-02-04T07:09:00.000-05:00

Bears are not companions of men, but children of God, and His charity is broad enough for both...

2012-02-03T21:34:00.000-05:00

We seek to establish a narrow line between ourselves and the feathery zeros we dare to call angels, but ask a partition barrier of infinite width to show the rest of creation its proper place. Yet bears are made of the same dust as we, and breathe the same winds and drink of the same waters. A bear's days are warmed by the same sun, his dwellings are overdomed by the same blue sky, and his life turns and ebbs with heart-pulsings like ours and was poured from the same fountain.

- John Muir

What is the appropriate remedy where a trial judge has misapprehended the evidence?

2012-02-03T14:05:00.001-05:00

R. v. B.W., 2012 NSCA 13 deals with the appropriate remedy where a trial judge has misapprehended the evidence. The Court holds that where there is evidence that could reasonably result in a finding of guilt, the appropriate remedy is a new trial; hardly a surprising result. The Court holds:

[19] The traditional test is well known. The function of a court of appeal, under s. 613(1)(a)(i) of the Criminal Code, goes beyond merely finding that there is evidence to support a conviction. The court must determine on the whole of the evidence whether the verdict is one that a properly instructed judge or jury, acting judicially, could reasonably have rendered. The court of appeal must not merely substitute its view for that of the trial judge or jury, but to apply the test the court must re-examine and to some extent reweigh and consider the effect of the evidence (see R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381).

[20] An expanded scope to review a verdict under s. 613(1)(a) by a trial judge for reasonableness was first articulated by the dissenting reasons of Fish J. in R. v. Beaudry, 2007 SCC 5. The existence of such a scope was recently confirmed by the Supreme Court of Canada in R. v. Sinclair, 2011 SCC 40. In a nut shell, illogical or irrational reasoning can also render verdicts unreasonable under s. 686(1)(a)(i) of the Code, but the remedy may well be different. If a verdict is unreasonable on the basis that a reasonable trier, properly instructed and acting reasonably could not have reached it, an acquittal is entered. If an appellate court finds a trial judge’s verdict to be unreasonable on the Beaudry criteria, the remedy is a new trial if there is evidence reasonably capable of supporting a conviction (Sinclair, para. 23)

The judge didn't find the accused was remorseful

2012-02-03T12:18:00.000-05:00

The judge wrote:

"[96] Mr. Kaziuk would rip-off the wings of all the angels in heaven and sell them to the devil for his own gain if he could."

R. v. Kaziuk, 2012 ONCJ 34

The accused got ten years jail for fraud and theft.

When it is appropriate to assign counsel for an individual who is party to an appeal in a criminal matter

2012-02-03T07:50:00.000-05:00

R. v. Hoskins, 2012 BCCA 51 considers when it is appropriate to assign counsel for an individual who is party to an appeal in a criminal matter. The test is two-fold: the part must be both indigent and the position of the individual of some merit and unlikely to be put fully to the court without counsel. The Court writes:

[29] In R. v. Donald, 2008 BCCA 316, Madam Justice Saunders, in chambers, described the test under s. 684 as follows:

[10] Section 684(1) provides:

684(1) A court of appeal or a judge of that court may … assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.

[11] It is clear from the material that Mr. Donald lacks the means to obtain assistance of counsel and he has been denied legal aid. The question is whether it is in the interests of justice that he should have legal assistance on either of his appeals.

[12] The purpose of s. 684 was described by Madam Justice Ryan in R. v. Barton, 2001 BCCA 477 at para. 7:

One of the fundamental principles upon which our legal system operates is the right of each side in a legal dispute to be heard … The Court is impressed with the duty to fully hear and consider both sides and to render a considered judgment as to the proper disposition of the case. A hearing will not be fair if either of the two sides cannot be properly heard … A person is properly imprisoned when he is serving a sentence that he truly deserves having had the opportunity to put his position before the Court.

[13] Madam Justice Southin, in R. v. Mills, 1999 BCCA 269 at para. 13, 122 B.C.A.C. 157, observed that:

“Interests of justice”, as that phrase is used in s. 684, is not a term which admits of closed categories.

[14] The factors often considered in determining whether the interests of justice favour the application include factors such as the points to be argued on appeal; the complexity of the case; the level of education of the accused and his competency to advance his appeal; whether the assistance of counsel is necessary in order to marshal the evidence and make the argument; the nature and extent of the penalty imposed; and the merits of the appeal: R. v. Aiwekhoe, 2000 BCCA 287, 139 B.C.A.C. 158; R. v. Madrusan, 2004 BCCA 194.

[15] As to the merits of the proposed appeal, I adopt the observation of Madam Justice Rowles in R. v. Butler, 2006 BCCA 476, 231 B.C.A.C. 303, that the factors the court considers when determining whether counsel ought to be appointed, are not the same criteria the Legal Services Society applies under its statutory mandate. The merits on an appeal are not always able to be discerned with clarity at the time of an application for the appointment of counsel. However, as set out by Doherty J.A. in R. v. Bernardo (1997), 105 O.A.C. 244,121 C.C.C. (3d) 123 at para. 22, the merits inquiry need not go any further than determining whether the appeal is an arguable one. Given the nature of the issues raised and the volume of the materials before me, I cannot conclude that the appeal is not arguable.

Big Yawn!!!

2012-02-03T07:41:00.000-05:00

As I grow older, I pay less attention to what men say. I just watch what they do

2012-02-02T20:12:00.000-05:00

Andrew Carnegie

Jury verdicts to be set aside rarely

2012-02-02T12:05:00.000-05:00

Gutbir v. University Health Network, 2012 ONCA 66 is a sad case about medical negligence. As part of the decision the Court ruled on the standard to met setting aside a jury verdict:

[5] It is well-established that a jury verdict may be set aside only if the verdict is "so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it": McCannell v. McLean, [1937] S.C.R. 341, at p. 343. Where there is some evidence to support the verdict, a jury will be accorded a high degree of deference.

Wagner - Parsifal - Furtwängler (1938)

2012-02-02T08:48:00.002-05:00

A pretty clean recording with some fine illustrations:

http://www.youtube.com/watch?v=GlIbqzSeIeE

Wiarton Willie sees early spring ahead

2012-02-02T08:42:00.001-05:00

Early Spring? We never had a Winter!!!

From the Star:

Wiarton Willie sees early spring ahead.

Canada’s best-known furry forecaster is calling for an early spring.

Ontario’s Wiarton Willie failed to see his shadow in the annual Groundhog Day ritual this morning.

Willie’s prediction agrees with Nova Scotia’s prognosticating rodent Shubenacadie Sam.

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