RSS FeedGovernment makes a submission in the prostitution case
Prostitution laws not irrational, lawyer argues
Tracey Tyler writes for the Toronto Star:
Just because prostitution is illegal in public and commercial venues in Canada but not in hotel rooms and homes doesn’t mean the law is “irrational,” a lawyer for the Ontario government argued today.
Government promises tougher refugee legislation
Canada to take hard line with would-be migrants
Jane Armstrong and John Ibbitson write for the Globe:
Canada’s Immigration Minister has signalled that he intends to play hardball with 76 men believed to be from Sri Lanka who arrived on a rusty boat off Canada’s West Coast, as the government battles the perception of Canada as a soft touch for asylum seekers.
Isn’t it too early to presume these people to be bogus, if they supposedly crossed an ocean to come from a recent war zone?
Another evidence flop in a security certificate case
Judge orders CSIS to hand over file
Bill Curry writes for the Globe:
The Federal Court is ordering Canada’s spy agency to disclose a second human source in the Mohamed Harket case, an exceptional decision taken after finding the Canadian Security Intelligence Service “filtered” evidence and failed to tell the court that a first key source had failed a polygraph test.
Tough-on-crime legislation targets big fraudsters
White-collar criminals face new sentences
Campbell Clark writes for the Globe and Mail:
The federal government will legislate two-year minimum sentences for big-money frauds of more than $1-million, seeking to assuage an outcry over a series of Ponzi schemes and rip-offs that came to light as financial markets tanked.
Canada’s own version of SEC to be vetted by Supreme Court
Ottawa to seek top court ruling on single securities regulator
Unlike the US, Canada doesn’t have a national securities regulator. Canadian constitution is somewhat equivocal in its division of powers between provinces and Ottawa. It sounds like a good idea for the federal government to refer its plans to the Supreme Court before spending money and influencing securities markets. Especially, since one province is not happy about these plans at all.
Les Whittington writes for the Toronto Star:
[Flaherty] has been supported by the province of Ontario and many other provinces. But the province of Quebec is against a single regulator, which it considers an infringement on its political autonomy under the constitution.
SCC: Quebec school laws for immigrants “excessive”
According to The Globe and Mail:
A group of Quebec immigrants has succeeded in striking down a controversial law that barred their children from entering English-language elementary schools.
In a 7-0 ruling today, the Supreme Court of Canada said Quebec must pass a less “excessive” provision within a year if it intends to replace the dead prohibition.
Within minutes, Quebec’s minister responsible for language, Christine St-Pierre, touched off what promised to be a day of political discord in the province by saying that she was “disappointed and angry” at the ruling. The ruling upheld a 2007 Quebec Court of Appeal decision that struck down the law, which prevented a child from attending a non-subsidized English-language elementary school for a year or less and then transferring into the English public school system.
Read the full decision in Nguyen v. Quebec (Education, Recreation and Sports), 2009 SCC 47
I have yet to get through the full decision (exams are creeping up), but please share your thoughts.
Impact of a Global Temperature Rise of 4ºC
The UK government has published an interactive map to help illustrate the potential effects of climate change.
Act on Copenhagen is the official website in preparation for the successor to the Kyoto Protocol, where governments will meet in December 2009 during the United Nations Climate Change Conference.
Meanwhile, developing nations have walked out on Canada’s position on Kyoto in Thailand earlier this month.
Indefeasibility of title? Not that indefeasible in Kenya?
First posted on Commercial Law International on Oct 15, 2009.
By Charles Wanguhu
The caveat emptor rule dictates that an individual seeking to purchase land should ensure that he is dealing with the rightful owner. Therefore upon inspection of the register kept at the ministry of lands, an individual seeking to ensure the ownership of land would request the registrar for an official confirmation of search, the advantage of the official search is that it is given priority registration over all other transactions for a period of 14 days from the issue of the search.
However in the Mau forest in Kenya the government aims to evict thousands of families who are said to be on forest land. This is despite the fact that some of the settlers have valid title for the property which was a result of excision of forest land by the previous administration. A similar operation in 2005 resulted in thousands of people being displaced and claims of human rights violations by the evicting forces.
The new administration however views the issuance of the titles as void as in their view they were illegally obtained from the former administration. However, under the Principle of Indefeasibility the title of an innocent Purchaser cannot be set aside, even by the claims of a previous rightful owner. This is so, because the Register of Titles is conclusive evidence of the Purchaser’s rightful ownership of the land.
In the case of Maathai & 2 others v City Council of Nairobi & 2 other 1994 a case in which the Nobela laureate Waangari Maathai sought to stop the sale of a piece of land by the city council the court in its deliberations held that:
Registration of Titles Act Cap 201 of the laws of Kenya which provides inter alia, that the certificate of Title issued by the Registrar to a purchaser of land upon a transfer shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the indefeasible owner thereof …. and the title to that proprietor shall not be subject to challenge.”
The Kenyan government while well intentioned in conservation of forests has opened a pandoras box and thereby creating uncertainty in dealings in land. By ignoring the indefeasibility of first registration land transactions have become a gamble. A commission of inquiry into illegal/irregular allocation of public land revealed that a number of foreign embassy and consulates are actually built on former public land. It would be interesting to see whether the government would take similar measures against these missions as they are attempting to do with the families in the Mau forest.
An AFRICOG report available here looks at some of the recommendations of the Commission of inquiry and looks at the possibility or impossibility in implementing the recommendations.
Tension between Bronx communities leads to violence
The New York Times recently reported on tensions between African-American and African immigrant communities in the Bronx area of New York City. Already, two violent attacks on African immigrants have been determined to be hate crimes.
The article frames the issue largely in terms of religious and cultural “clash” (and indeed, the comments of the residents interviewed reflect this).
As New York City faces increasing gentrification, and poor communities of colour feel the squeeze, there is an opportunity for crucial cross-cultural dialogue and community-building here. At least one writer posits that the Bronx could become a model for “development without gentrification”.
Aspiring law student possible victim of a hate crime?
In the early hours of October 18, an openly gay man named Christopher Skinner was brutally murdered. After reportedly being attacked by a group of young men, he was run over by an SUV and left to die.
Friends with Christopher the night he was murdered believe that he was targeted as a result of his sexuality. At this time, police say they have no evidence to support that theory. Evidence is still being combed at this point.
It has been reported that Christopher had recently written the LSAT and had plans to attend law school.
EDGE Boston notes that, “But the ferocity of the assault is consistent with the ‘overkill’ that is often part of anti-gay bias crimes.”
In the UK, a new report points to a rise in anti-gay attacks in London.
This tragic murder of Christopher Skinner comes on the heels of recently reported gay-bashings in the province, in London and Thunder Bay.
Hate crimes laws have often proved controversial. Currently, U.S. lawmakers, politicians, and others are awaiting a Senate decision on a bill that would extend hate crime protections to gay individuals.
Italy has recently voted down similar legislation.
Gavin Holder’s “Back to School”
Sometimes it takes a midterm to realize we’re back in school.
This creative video comes to you from Gavin Holder, a 3L at Windsor Law.
Jane/Finch Fatalities, By Car Not Gun…
On Sunday October 18th I woke up as I usually do, turning to the news to see what I missed while I was dreaming of something I would undoubtedly not remember… I recall rolling my eyes when I heard of another death in the Jane/Finch area, an area I visited on occasion in a past career and hear of often while watching the news. Then the pictures flashed across the screen. A BMW. A Honda Odessey. A seat. Engine. Bodies (yes that is PLURAL!). All strewn across a street that normally attracts attention for shell casings, and knife blades. I have seen fatal car accidents, dead bodies, but none of that amounted to the carnage inflicted to that minivan.
Then as first heard from CP24, and confirmed in this CBC article, the BMW, which police allege rocketed into the Honda at approximately 200 km/h, was being operated by a man who was being investigated for “driving related offences.” When I first saw the newscast, it was saying that 21 year-old Roman Luskin, was known to police for previous impaired driving offences (the CBC article makes mention of this also). Again???!!!
I do not want to make this article about drinking and driving and its effects. We all know what the result is.
I want to discuss the legal ramifications of impaired driving causing death in Canada, and how those being convicted of such offences are getting away with murder.
This is the latest in a series of high profile cases that has outraged the public with relation to impaired driving cause death. The most recent, and an open wound here in Southwestern Ontario is the death of the “Pie Ladies.” When these four ladies were killed by convicted impaired driver, Wladyslaw Bilski, only those seasoned in impaired driving cases would be able to predict that he would get off so easily with, a 4 year sentence. Justice Abbey’s sentence, unfortunately, is in the realm of available sentences for this type of offence. The problem is, why?
Impaired Operation of a Motor Vehicle:
253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the per- son’s blood exceeds eighty milligrams of al- cohol in one hundred millilitres of blood.
255. (1) Every one who commits an offence under section 253 or 254 is guilty of an indicta- ble offence or an offence punishable on sum- mary conviction and is liable,
(a) whether the offence is prosecuted by in- dictment or punishable on summary convic- tion, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 30 days, and
(iii) for each subsequent offence, to im- prisonment for not less than 120 days;
(b) where the offence is prosecuted by in- dictment, to imprisonment for a term not ex- ceeding five years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.
…
Impaired Operation of a Motor Vehicle Cause Death:
255. (3) Everyone who commits an offence under paragraph 253(1)(a) and causes the death of an- other person as a result is guilty of an indictable offence and liable to imprisonment for life.
Life. Now how many people do you need to kill to get life? Is an older person’s life less valuable than a young child’s? If he had killed 4 infants or school-aged children, would Justice Abbey have seen that as a more aggravating factor in determining sentence?
When will Canadian courts stand up and take notice and actually digest the fact that criminal driving fatalities are the LEADING cause of criminal death in Canada, and punish the offenders accordingly.
I do, however, applaud the inclusion of s.752 of the Criminal Code which now excludes conditional sentencing as an option for “serious person injury offences.” This December 2007 legislation should now certainly guarantee anybody convicted of impaired cause death of jail.
Prior to this legislation, it was the norm for a conditional sentence to be given to somebody convicted under s. 255. Good deal for them. Kill somebody, be held criminally culpable, yet serve your sentence from home. This is what happened in this case:
YORK REGIONAL POLICE – MEDIA RELEASE
SENTENCING IN 2006 FATAL MOTOR VEHICLE COLLISION
A 55-year-old Vaughan man has received a conditional sentence in connection with a 2006 fatal motor vehicle collision that claimed the life of a 34-year-old woman in the City of Vaughan.
On Thursday, November 13, 2008, the Honourable Mr. Justice A. Stong sentenced David CLARK to house arrest for a period of two years less a day. He will then be placed on two years probation that includes 240 hours of community service. He has also received a three-year driving prohibition.
In April, 2008, David CLARK pleaded guilty to Impaired Driving Causing Death and Impaired Driving Causing Bodily Harm.
On Tuesday, May 16, 2006, a silver Nissan Maxima operated by Mr. CLARK was southbound on Huntington Road south of Major MacKenzie Drive. A blue Honda Civic being operated by a 30-year- old man from Vaughan was northbound on Huntington Road when it was struck by the southbound motor vehicle. The passenger in the Honda Civic, a 34-year-old woman from Vaughan, was killed in this collision.
Impaired driving remains the number one criminal cause of death in Canada. When you drink and drive you not only risk your life and those of your passengers, but the lives of every other driver and pedestrian on the road.
—
The unfortunate part of this is that I was part of this incident. I saw the victim’s lifeless body. I saw the paramedics try to save her. I smelled the booze coming from the suspect. I arrested Mr. Clark for impaired cause death. And I was bitterly disappointed to learn of his sentence.
I do understand how sentencing takes part, and I’m learning more and more about the mechanics behind it every day that I attend in law school. I also understand the adversarial system in our courts and how it is absolutely necessary for a defendant to be able to be provided the best possible defence they can receive.
But what I do not understand is why the Canadian government, whether under Liberal or Conservative authority, has yet to pass stricter legislation that provides for adequate sentencing for Canada’s most deadly form of criminal death. Guns kill, that’s a given, but let us stop debating the gun registry, or handgun ban for a moment, and tally up the numbers. What I did learn from my first year criminal law class, is that “there is a strong correlation with deterrence and high conviction appears to show that deterrence will be effective in reducing crime.”
Since impaired driving is such a technical offence with numerous requirements to satisfy the courts, perhaps this is not possible. I recall from my early days as a police officer that a charge was withdrawn because the breath technician said “the suspect had 80 millilitres of alcohol per 100 millilitres of blood.” What he should have said was “the suspect had 80 milligrams of alcohol per 100 millilitres of blood.” I think only the judge and I noticed the difference in the testimony, because as soon as the Crown went forward to the next line of questioning, they withdrew the charge because one of the two required tests under law had not met the specifications as outlined by law. I know I was shocked, and had I realized, I would have said something.
But it is this form of adversary that provides for justice to be done. Had this little mistake been overlooked, and the suspect been convicted, it has the potential to open the floodgates. But I digress into another area…
Consequently, it is not that I want harsher sentences because of any of a number of reasons. I just feel that in this specific offence there is a HUGE disconnect between the offence and sentence. One of the principles of criminal law sentencing is deterrence, and I do not believe that the current sentences for Canada’s leading criminal cause of death is being satisfied.
Let us hope that should Mr. Luskin be found guilty of what he is accused of, that the disconnect mentioned has be repaired.
Awards
Partners
sLaw- The Court
- British Columbia (Ministry of Education) v. Moore: Comparing Approaches to Comparator Groups in the Context of Anti-Discrimination Legislation
- So You Got Punched By a Cop: Disciplinary Action or Civil Suit? Issue Estoppel in Penner v. Niagara (Police Services Board), 2010 ONCA 616
- The ‘Return to Unanimity’ in Insite and Division of Powers Jurisprudence: Chief Justice McLachlin’s ‘Oversight’
- UofT
- UofC
- UofA
- LexMonitor
- blawg