Friday, November 30, 2007

Law Student Sues: Suspended for Pat Robertson Photo on Facebook

Some televangelists just don't get law student humour.

Associated Press reports that Adam Key, a law student attending Regent University, a private University founded by 700 Club host Pat Robertson, is suing the school after he was suspended for posting a picture on his Facebook profile that depicted Robertson in a rather embarrassing pose:

HOUSTON — A law student who was suspended after posting on the Internet an unflattering photo of televangelist and school founder Pat Robertson sued the religious leader on Thursday, claiming violations of his rights to freedom of religion and speech.

Adam Key posted a picture in September on his Facebook Web page of Robertson, who is the founder and president of Regent University, a private Christian school in Virginia Beach, Va.

The photo shows Robertson making what appears to be an obscene gesture. The second-year law student copied it from a YouTube video in which Robertson scratches his face with his middle finger. Key said he didn't manipulate the image, which was taken straight from Robertson's long running television show, "The 700 Club."

Key said he was told to take the photo down.

"Clearly the picture was of him scratching his face. That's why it's funny," said Key, who filed his lawsuit in Houston federal court. "Pat Robertson, a public figure who makes ridiculous statements, got caught in a ridiculous position and that was my whole idea of putting it up there."

Key, 23, said he took down the photo but then wrote an academic critique about religious freedom of speech concerning the picture and posted it on a university e-mail discussion group. Key was expelled from the school for violating the school's obscenity policy. His punishment was later changed to a one-year suspension.

Judy Baker, a spokeswoman for Regent University, said neither the school nor Robertson would comment about the lawsuit or Key's case, citing student privacy issues,

A second AP article adds additional background:

The suit, filed in U.S. District Court in Houston, states the university, in Virginia Beach, Va., violated Key's rights guaranteed by the 5th and 14th amendments as well as his freedom of religion, assembly and speech included in the First Amendment.

...The suit, which names Robertson and the university, seeks repayment of tens of thousands of dollars Key paid in school costs during the 18 months he attended the university, said Randall Kallinen, his attorney.

The suit states he had no notice of the suspension and no hearing where he could state his case.

The is yet another example of the many, unforseen legal and cultural implications of Facebook and other social media.

- Garry J. Wise and Annie Noa Kenet, Toronto

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Lawyer's Unique Animal Trust Practice reports on a New Jersey lawyer dedicated to a unique form of animal advocacy:

When trusts and estates lawyer Elenora Benz meets with clients who want her to draw up a will, she asks not only about assets and heirs but also about pets and how they are to be provided for.

A New Jersey law enacted in 2001 lets pet owners set up lifetime or testamentary trusts for care of domestic animals. It even allows a court to appoint a trustee if needed and to make orders and determinations to carry out the intent of the creator and the purpose of the act.

Benz, who drafted the statute, has made use of it to help clients ensure their companion animals will be cared for and has even used it to provide for her own cats, dogs and Icelandic horses.

Pet-trust practice "is not going to make a fortune," says the Newton, N.J., solo, but it is a marketing tool, with some clients seeking her out specifically for that reason.

It's just one way in which a growing cadre of lawyers is melding a love of animals with legal practice as animal-related issues become incorporated in numerous legal areas, such as personal injury, landlord-tenant and family law.

- Annie Noa Kenet, Toronto

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Facebook Users Petition for Facebook Reform on Ads

On November 7, 2007 Facebook announced through its blog that it has added “Social Ads” to the social networking site. According to the blog, Social Ads would bring about the following changes for Facebook users:

  • You now have a way to connect with products, businesses, bands, celebrities and more on Facebook.
  • Ads should be getting more relevant and more meaningful to you
  • you now have the option to share actions you take on other sites with your friends on Facebook
In addition, the blog outlined that the following Facebook features would not change:
  • Facebook will always stay clutter-free and clean.
  • Facebook will never sell any of your information.
  • You will always have control over your information and your Facebook experience.
  • You will not see any more ads than you did before this.
In the spirit of Social Ads, approximately 3 weeks ago, Facebook launched “Beacon”, a program which allowed about 40 sites (including, and to send messages to friends of Facebook users informing them that their “friend” has made a transaction on their site.

As a result of their private transactions being published, some Facebook users began to experience an invasion of privacy and a feeling of loss of control over their information, an area that has always been of concern to Facebook users and one which was promised not to change in the applicable Facebook blog. In response to this growing concern,, a site which offers a “political voice” to concerned citizens” launched the following petition:

Sites like Facebook must respect my privacy. They should not tell my friends what I buy on other sites--or let companies use my name to endorse their products--without my explicit permission.
In the past 10 days, the petition has received over 50,000 signatures prompting a swift response with a promise for change from the Facebook camp. reports that a Facebook customer support representative “expressed facebook’s regrets” respecting the privacy invasion and loss of control that some users have felt. Facebook has further advised that they will implement a feature requiring users to provide explicit consent or an “opt –in” before information from the affiliated sites is passed along to Facebook friends.

No doubt, Facebook’s ongoing attempt to bring advertisement to the social networking site is an effort to bank on Facebook’s profitability which has previously been estimated at 15 billion. Facebook creator Mark Zukerberg and the Facebook team will now have to walk a fine line between nurturing the Facebook its users have grown to love, and making the site as profitable as Zuckerberg claims it is. With the quick growth of the petition, Facebook users have clearly alerted Facebook creators that any shift in the direction of profitability which conflicts with Facebook’s promises to its users will not be tolerated.

- Annie Noa Kenet, Toronto

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Ontario Appeal Court Puts Hold on Schreiber Extradition

The Court of Appeals for Ontario today approved an agreement permitting Karlheinz Schreiber to remain in Canada, pending his Application to the Supreme Court of Canada for leave to appeal his deportation from Canada.

According to press reports, Schreiber intends to seek bail, to permit his release from incarceration in the interim.

National Post reports:

TORONTO - Karlheinz Schreiber has been granted a temporary reprieve to remain in Canada.

An Ontario Court of Appeal judge signed off on an agreement reached between the German-Canadian businessman's lawyers and the Department of Justice.

Mr. Schreiber's lawyers have until Jan. 15 to file their materials seeking leave to appeal to the Supreme Court of Canada and the Justice Department has until Jan. 29 to respond, which will keep him here well into the winter.

"The bottom line is Mr. Schreiber will no longer be subject to removal by the minister of justice deciding to kick him out, he's here until the Supreme Court of Canada decides it. And so, if he gets bail, then everything will be the same as it has been for eight years and three months," Mr. Schreiber's lawyer Eddie Greenspan told reporters on Friday morning.

Mr. Greenspan said he will ask the Justice Department to consent to a bail request and, if it doesn't, then he will have to argue it in the courts. Mr. Greenspan said "there is no reason" for the government not to grant the request.

"As far as I am concerned, the Department of Justice, if they were to act reasonably, would agree and consent to bail pending a determination by the Supreme Court of Canada," Mr. Greenspan said. "He's been on bail for eight years and three months. Everybody, including the ethics committee yesterday, agrees that he's not a flight risk, everybody agrees that he's not going to commit any further offences.

For additional coverage of the decision, see:

- Garry J. Wise, Toronto

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Alberta, Ontario Courts Disagree on Pre-Employment Drug Testing

BLG's Brian D. Portas has a short article at Mondaq canvassing conflicting decisions by Courts in Alberta and Ontario as to whether Human Rights Code protections are available to individuals who are summarily declined employment as a result of pre-employment drug testing that discloses marijuana use:

The court in Chornyj indicated that the Chiasson case decided earlier in Alberta was similar in many respects to the facts in Chornyj but the Ontario court reached a different conclusion. It distinguished the Chiasson decision on the fact that there was evidence that Kellogg, Root & Brown (Canada) Co.’s representatives subjectively believed that Mr. Chiasson was drug dependent and the automatic dismissal of the employee after a positive drug test indicated that the employer subjectively believed that any person testing positive was a substance abuser. The Alberta Court of Queen’s Bench decision in Chiasson has been described by some as extending human rights protection to self-avowed recreational drug users. This is in stark contrast to the contention of most employers that human rights legislation should not apply to these individuals who freely admit that they do not suffer from any sort of disability.

- Garry J. Wise, Toronto

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Thursday, November 29, 2007

Toronto Case Management Pilot Project Coming to an End in May 2008?

Concerned about serious delays in the civil justice system in Toronto, a three-year pilot project was implemented effective January 1st 2005, with an objective to reduce delay and cost in civil cases. A Practice Direction in this regard was issued by the Regional Senior Justice, Honourable W. K. Winkler on November 22, 2004.

Until the Practice Direction came into effect, all civil actions commenced in Toronto, with a few exceptions, were assigned to Case Management under Rule 77 of the Rules of Civil Procedure.

Because of the large number of cases in Toronto Region, this automatic application of the Rule 77 was ultimately problematic due to the sheer volume of cases to be managed. Under the new Practice Direction, for the duration of the pilot project, cases were no longer automatically assigned to Case Management.

Rather, a need-based, targeted case management system was implemented, whereby cases could be assigned to Case Management by the Regional Senior Judge where the need for court’s intervention was demonstrated. Under this Practice Direction the parties are expected to assume greater responsibility for managing actions, thereby freeing up court resources.

The Practice Direction was incorporated into a new rule (Rule 78), which came into effect on May 6th 2005 and will be revoked effective May 6th 2008.


One of the important implications of the new Rule was the way Rule 24.1 (Mandatory Mediation) applied to civil actions commenced in Toronto.

Before the coming into effect of Rule 78, Rule 24.1 applied only to actions governed by Rule 77. It also applied in actions governed by Rule 76 (Simplified Procedure), but only if they had been assigned to mandatory mediation by the Regional Senior Judge.

(Ontario's Simplified Procedure rules apply in cases where the amount claimed is not greater than $50,000.00. In these matters, a streamlined process is available to litgants to expedite trials and reduce the expense of court proceedings).

With the implementation of Rule 78, mediation became mandatory for all cases, including wrongful dismissal cases governed by Simplified Procedures, but the timelines changed.

A new sub-rule ( was incorporated in Rule 24.1, which applied only to actions governed by Rule 78. Mandatory mediation applicable to cases that are subject to Rule 78 is more flexible than was the case under Rule 77 Case Management regime.

Under Rule 78 parties are encouraged to mediate at the earliest stage of the proceeding at which it is likely to be effective In any event, mediation must be conducted within 90 days of setting the action down for trial and before the pre-trial. For wrongful dismissal and simplified procedure cases parties must engage in mediation within 150 days after the close of pleadings.

The downside of the flexible approach adopted under the special mandatory mediation rule for Rule 78 actions is that it is easy for a party to delay by not agreeing to a mediator in a timely fashion. Under the mandatory mediation rule applicable to non-rule 78 cases, if the parties do not select a mediator within a specified period of time, a mediator is assigned by the mediation coordinator of the Court. This acted as a serious disincentive against delaying the proceeding, because generally parties want to go to a mediator who they feel confident about, and do not like to have a mediator imposed by a third party.

While parties can still approach the mediation coordinator to assign a mediator, this is usually seen as the last resort and by the time a party approaches the mediation coordinator for assistance, by that point, much time may already have been wasted. This is a serious drawback in the mandatory mediation regime established under Rule 78 - it may in some cases cause the very delays it sought to remove.

This special mandatory mediation rule applicable to Rule 78 actions also comes to an end on May 6th 2008. Thereafter, the pre December 31st 2004 regime of mandatory mediation is expected to revive, unless the Pilot is extended or a new Practice Direction issued.

The Pilot Project will be evaluated at the end of its term in May 2008.

- Shashi K. Raina, Toronto

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Schreiber Refuses to Testify

Claiming he requires the opportunity to review documents located in Toronto, Ottawa and Switzerland before testifying, Karlheinz Schreiber has refused to speak at today's Parliamentary ethics committee hearing.

The Committee has defeated a motion to postpone the hearing to this evening or tomorrow to permit him to have access to such documents.

Schreiber has chosen to provide occasional responses to very general enquiries. As well, he did specifically deny ever having met with Prime Minister Stephen Harper or having ever donated to the new Conservative Party.

Beyond that, he continues to refuse most substantive questions.

Schreiber has responded by simply stating "defer," or "I have nothing to say." Reiterating the contents of a statement he read at the outset of the hearing, he stated, "I rest on my statement. I will not answer these questions and I have nothing to say at this time."

The questioning, nonetheless, continues. The Committee has virtually no effective remedy or leverage with Schreiber, and as a practical matter will have to proceed on Mr. Schreiber's own terms.

Claiming a desire to avoid even inadvertent perjury, Schreiber insisted on the need to review his documentation. "I was born ugly, not stupid," he told the Committee.

- Garry J. Wise, Toronto

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Ontario to Phase in Full Day Kindergarten Program by 2010

The National Post reports:

Ontario moved yesterday to expand learning programs for four-and-five-year old children, becoming the latest province to engage in the heated issue of full-day kindergarten.

Dalton McGuinty, Ontario's Premier, said the province would phase in full-day learning programs starting in 2010 and appointed an advisor to develop the programs.
The program is expected to cost 500 million over 2 years for approximately 250,000 children in the applicable 4-5 age range.

Currently, Nova Scotia, New Brunswick and Quebec are the only Canadian Provinces that have mandated full-day kindergarten programs.

- Annie Noa Kenet, Toronto

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Republican YouTube Debate

Andrew Sullivan hits the nail on the head with Running for Pastor, his comment on a video question asked in last night's CNN-YouTube debate. Candidates were asked if they believe each and every word in the Bible to be true:

With the Biblical literalist question, you see what Bush and Rove have achieved: the suspension of secular politics in the Republican party, and, by inference, the country as a whole. This has become, thanks to Bush and Rove, a religious contest. And that's why, in today's GOP, Huckabee is the proper leader. It's a church; and he's a minister. It's a match made in heaven.

For more debate coverage, see:

- Garry J. Wise, Toronto

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Schreiber News Watch

In anticipation of Karlheinz Schreiber's expected testimony today before a Parliamentary ethics committee at Ottawa, there is a veritable feast of news coverage.

The story to watch comes from CBC and foreshadows a growing scandal around influence-peddling in the Conservative party:

Other related reports:

We'll update as the proceedings unfold....

- Garry J. Wise, Toronto

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Wednesday, November 28, 2007

"Reluctant" Schreiber to Testify Thursday at 11 a.m.

The legal wrangling over Karlheinz Schreiber's pending testimony to a Parliamentary ethics committee took a decisive turn yesterday, with the rare issuance of a Speaker's Warrant, compelling his attendance.

CTV reports that Schreiber has in fact has "left the Toronto West Detention Centre and is on his way to Ottawa where he has been called to testify before the parliamentary ethics committee."

CBC reports:

There are no further legal obstacles blocking Karlheinz Schreiber from appearing on Parliament Hill Thursday to discuss his dealings with former prime minister Brian Mulroney, says the vice-chair of the federal ethics committee.

Speaking to CBC News on Wednesday, Pat Martin said a rare Speaker's warrant, issued Tuesday, overrides Schreiber's extradition order and compels him to travel to Ottawa to testify in front of the committee.

...Ontario Provincial Police will take Schreiber to Ottawa from a Toronto jail, where he has been waiting to be extradited to Germany as early as Saturday to face fraud charges. He could be in the nation's capital later Wednesday or early Thursday, said Martin

...Martin said the committee has "vetoed the minister's right" to deport Schreiber until its finished with him.

"It's our belief our Speaker's warrant has primacy over the extradition warrant. "We believe that trumps the extradition order," he said."If the minister of justice tried to execute it, he'd be in contempt of Parliament."

A Speaker's warrant is similar to a subpoena and ignoring it could bring a jail sentence.

On Tuesday, Justice Minister Rob Nicholson said he doesn't have the authority to delay Schreiber's extradition.

Ethics committee chair Paul Szabo and parliamentary legal counsel Rob Walsh disagreed with the minister, saying he has the authority to amend the deportation order.

In an e-mail to CBC News on Tuesday, Schreiber's lawyer Edward Greenspan accused the justice minister of working against his client.

"The minister of justice is doing everything in his power to have him removed (from Canada) as soon as possible," he wrote.

"It appears to me that the prime minister is speaking out of one side of the government's mouth and the minister of justice is speaking out of the other."

The "every-playful" Schreiber, however, hints that he may no longer be so anxious to tell his story, after all:

We don't know of any other barriers that could get in the way, except, it's been hinted at today, Mr. Schreiber might not be willing to talk under these circumstances," said Martin.

.....Schreiber, who must change back into the prison garb after he's finished testifying, will stay at the Ottawa-Carleton Detention Centre until the committee has completed its questioning, said Martin.

"These are terms he's not exactly thrilled about," he said. "He doesn't have any choice about whether he's coming and that is happening. Whether he's a hostile witness remains to be seen."

Also see:

- Garry J. Wise, Toronto

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Inquiry into Conduct of Judge Ted Matlow

Canada News Wire has an update on an ongoing inquiry into the conduct of Ontario Superior Court Justice Ted Matlow:

The Inquiry Committee into the conduct of Justice Theodore Matlow, of the Ontario Superior Court of Justice, has completed a pre-hearing conference in Toronto on 19 November 2007... The Inquiry Committee will conduct a full hearing into this matter beginning 8 January 2008.

A complete transcript of the pre-hearing is available on the Council's website, and is a fascinating read. The Inquiry is chaired by former Newfoundland Premier Clyde Wells, who now serves as that Province's Chief Justice.

Lawyers Weekly set out the background of this highly political matter in an April, 2007 article, Judge defends right to speak out in public :

An Ontario Superior Court judge who risks losing his job after fighting a proposed real estate development near his home contends that he and other judges have the constitutional right to speak out as citizens, and to associate with their fellow citizens in non-partisan activities, in order to defend their personal interests.

After Toronto city solicitor Anna Kinastowski filed a complaint against Justice Ted Matlow in January 2006, the Canadian Judicial Council demanded that the supernumerary judge account for his high-profile opposition, together with some of his neighbours, to the building of a condo and retail complex on his small residential street in Toronto’s Forest Hill Village, and to explain his consequent clashes with the City of Toronto’s legal department.

... A five-person inquiry committee, which likely won’t proceed before next fall, will be empowered to recommend Justice Matlow’s removal to the full Council if it concludes he is no longer fit for the Bench. If the inquiry finds against him, the 39-judge Council would then decide whether or not to recommend his removal to the federal Minister of Justice. Removal of a superior court judge, which has never occurred, requires the approval of both the Senate and House of Commons.

Such a drastic and disproportionate move would have an unwarranted chilling effect on judges’ participation in their communities, argues Justice Matlow’s counsel Paul Cavalluzzo of Toronto’s Cavalluzzo Hayes Shilton McIntyre & Cornish LLP.

“Contemporary values and mores suggest that judges are members of the broader community and should be entitled to participate in the local community,” he told The Lawyers Weekly. “I would venture to say that Justice Matlow’s neighbours, rather than feeling that the judiciary is brought into disrepute [by his actions], respected what he contributed as a fellow citizen and neighbour. He is a real person. He is not some kind of monk who after work goes into his house and stays there and doesn’t associate with anybody.”

In their written arguments opposing a formal inquiry, Cavalluzzo and co-counsel Fay Faraday stressed “this is not a capital case. This is rather a matter which explores the important question of the boundaries of acceptable free speech and association by judges in their capacity as private citizens. While the conduct at issue may warrant reprimand or counselling, it is not such as warrants Justice Matlow’s removal from judicial office.”

Yet the CJC panel, which unanimously recommended that an inquiry be struck, concluded his “actions may constitute judicial misconduct or failure in the due execution of his office, or may have placed him in a position incompatible with the due execution of that office.”

A litany of actions were impugned by the panel members: ...

“The panel finds that Justice Matlow participated in controversial political discussions, inappropriately used the privileged platform of judicial office, publicly offered legal advice and criticism, took a role in litigation that was likely to come before his court, communicated with the press in the course of advancing a specific point of view in a legal and political dispute against a party that was imminently to appear before him in litigation, and failed to ensure that his actions and the extent of his involvement in the dispute with that party were disclosed to his co-panelists [on Divisional Court] and to the parties,” said the panel.

Justice Matlow commented on the matter, in a interview by the Toronto Star in February,:

"The most important issue arising out of this is to what extent a judge, as a private citizen, is entitled to speak out and advance his or her own personal interests without being labelled political," Justice Ted Matlow of the Superior Court of Justice said in an interview yesterday.

..."I still stand by what I did and what I said," Matlow told the Toronto Star yesterday. "I believe I was entitled to do everything I did and I'm hopeful, that as the facts are revealed in the future, that this will become apparent to anyone."

I note this is not the first time Mr. Justice Matlow's public advocacy of a personal interest in a controversy has attracted criticism from a higher court.

- Garry J. Wise, Toronto

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Tuesday, November 27, 2007

Canadian Lawyers' March for Pakistani Lawyers and Judges

From a report by Michel-Adrien Sheppard on last Sunday's march in Ottawa by Canadian lawyers in support of the lawyers and judges of Pakistan:

This morning in Ottawa, some 150 lawyers marched to the steps of the Supreme Court of Canada building to support the lawyers and judges of Pakistan and to demand the restoration of the rule of law in that country.

In early November, Pakistani president General Pervez Musharraf suspended his country's constitution and purged its Supreme Court. Thousands of Pakistani lawyers and others marched in protest against the imposition of a state of emergency and the attack against fundamental democratic principles. Hundreds were beaten by riot police and jailed.

The Ottawa march, organized by the Canadian Bar Association (CBA) and the County of Carleton Law Association, was led by CBA president Bernard Amyot.

(Photo via the Canadian Bar Association)

- Garry J. Wise, Toronto

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Schreiber Testimony Thursday?

From CityNews - Ottawa Braces For Explosive And Scandalous Testimony In Mulroney-Schreiber Affair:

Those on the committee won't say how they'll get the soon-to-depart Schreiber there in time for Thursday's testimony - he's currently locked up in Toronto and is supposed to be on a plane Friday. But if he does go before the panel, he won't go unrebutted for long. Mulroney - who insists he's absolutely innocent of any wrongdoing - will follow him next week. And all of it before the official inquiry even gets underway.

- Garry J. Wise, Toronto

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The Legacy of Antonio Lamer

Osgoode Hall Law School's Professor James Stribopolous has a strong article in The Court today regarding the Supreme Court of Canada's former Chief Justice, Antonio Lamer, who died on the weekend.

See The Legacy of the Right Honourable Antonio Lamer: A Model of Judicial Independence:

He was a jurist who was truly committed to the idea that it was the role of judges to decide cases based on what they believed to be right. To act on principle and with conviction, even if that meant doing what was very unpopular.

...As he explained to Macleans during a 1998 interview:

"Let’s not forget there are no jobs in the world that enjoy our tenure of office. You can’t fire a judge. He can’t be terminated except by both houses of Parliament. The sole justification for that is to make it possible for him to do the unpopular thing, without fear of losing his job, when it’s the right thing to do. You don’t usually need judges to do the popular thing - politicians do it for them."

Beyond his judgments, the great legacy left by Antonio Lamer is the model of judicial independence that he provides for all judges.


Prime Minister Stephen Harper also issued a statement Sunday on Justice Lamer's passing:

From his first days at the bar, through his years with the Law Reform Commission, and finally as a judge of the Supreme Court of Canada, Antonio Lamer brought his views on due process to bear on the reshaping of Canada's justice system. He tackled the great challenges of law reform without fear or hesitation. His rulings expanded the right to counsel, the law of search and seizure, and the scope of judicial review. His most important decisions, such as the Re Remuneration of Judges, even shifted the fundamental balance of judicial and legislative power in Canada.The legacy of Justice Antonio Lamer is felt across the Canadian legal system today.

I offer my sympathies to the Lamer family and the late Justice's friends and colleagues.


Update - November 30, 2007.

Coverage of Mr. Justice Lamer's funeral:

- Garry J. Wise, Toronto

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Canadian Lawyer looks at Social Networking

I was interviewed for Heather Capannelli article on social networking in the current issue of Canadian Lawyer magazine's Legal Report: Labour & Employment.

See her story, Marketing tool or time waster?

On a related note, Facebook has apparently overtaken Myspace in Web traffic

- Garry J. Wise, Toronto

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Sunday, November 25, 2007

Antonio Lamer, 1933 - 2007 - Former Chief Justice, Supreme Court of Canada

Antonio Lamer, former Chief Justice of the Supreme Court of Canada, has died in Ottawa at age 74.

Lamer was appointed to the Supreme Court of Canada on March 28, 1980 and became Chief Justice on July 1, 1990. Lamer retired from the Court in January 2000.

According to CBC:

Lamer died Saturday, peacefully and surrounded by family members, said Eugene Meehan, a former aide and longtime friend. He had been in and out of hospital several times in recent years suffering from recurring heart problems.

For additional press coverage, see:

- Garry J. Wise, Toronto

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Saturday, November 24, 2007

Another B.C. Taser Victim Dies in Hospital

CBC News reports:

Subdued with Taser, pepper spray and baton, B.C. man dies in hospital

A 36-year-old British Columbia man has died in hospital more than four days after being subdued by RCMP officers with a Taser and almost every other available weapon short of firearms.

...Robert Knipstrom of Chilliwack, who died early Saturday in Surrey Memorial Hospital, was arrested Monday at a Chilliwack equipment rental store after an epic struggle with Mounties.

- Garry J. Wise, Toronto

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Quote of the Day

Adam Dodek and Lorne Sossin:

In Canada, judicial independence is the collective constitutional capital that we frequently draw against to help bail us out of messy problems; we should not take it for granted.

... While governments represent the will of the Canadian majority, judges guarantee the rights of all, even (and perhaps especially) minority groups. This balance, between the legitimate interests of elected governments and the fundamental rights of individuals, is the essence of a healthy democracy. Where judges are vulnerable to the influence, manipulation or control of government, this balance is thrown off-kilter and democracy inevitably falters.

From the Globe and Mail: Why judicial independence matters

- Garry J. Wise, Toronto

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For fascinating cross-talk between two seasoned mediators on finding the "silver bullet" in difficult negotiations where money seems to be the only issue, see:

- Garry J. Wise, Toronto

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John Howard: Another Bush Crony Goes Down To Defeat

First it was the U.K.'s Tony Blair.

Now, Australian voters have sent Prime Minister John Howard packing, giving a majority government to Labor Party leader Kevin Rudd.

Will Canada complete the hat trick by bidding adieu to Stephen Harper in 2008?

- Garry J. Wise, Toronto

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A Closer Look at Courtoom 'Experts'

An excellent article today from Toronto Star writer Tracey Tyler, Trouble with authority? Au contraire, canvasses the prominence - and fallibility - of expert testimony in the courtroom:

Tall and dashingly attired – with a fresh red carnation in his lapel – the 37-year-old forensic pathologist delivered his testimony with supreme confidence and a strategy for disarming skeptics.

Challenged on his findings by the trial judge, Spilsbury produced his microscope and invited jurors to an adjoining room to examine a cross-section of the victim's scar tissue.

The dramatic episode at the Old Bailey in October 1910 cemented his connection with the jury and elevated Spilsbury to superstar status. Author Colin Evans, who describes the scene in The Father of Forensics, a recent book about Spilsbury's cases, argues there was perhaps no figure of the 20th century who wielded such enormous courtroom power.

Tyler's exploration of the role of expert evidence in Canada's courtrooms occurs against the backdrop of an ongoing public inquiry by Mr. Justice Stephen Goudge into Pediatric Forensic Pathology in Ontario .

The inquiry is focussed on errors made by Dr. Charles Smith, the former head of the forensic pathology unit at Toronto's Hospital for Sick Children. He has been described as "a controversial pathologist involved in several prominent cases where innocent parents were charged with killing their children."

The inquiry was prompted by concerns regarding the accuracy of Smith's "expert" findings on the causes of twenty infant deaths. Ten additional cases of concern have been been revealed at the inquiry.

- Garry J. Wise, Toronto

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Happy Saturday

Via Canada's answer to Perez Hilton (as if we needed one...), who caused quite a stir last week with unmentionable pics of a certain professional hockey player in Toronto.

- Garry J. Wise, Toronto

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Friday, November 23, 2007

Ontario Government to Introduce Amended Adoption Disclosure Law

On September 17, 2007, Ontario's Adoption Information Disclosure Act came in to force. As we reported on September 19, Ontario's Superior Court struck down the new law two days later.

The Act, as originally drafted, would have permitted adoptees to obtain records including their birth names and the names of their birth parents from previously sealed government records. Birth parents would also have been permitted to obtain information from their birth children’s records and adoption orders.

While the original Act provided that both adoptive children and birth parents could register notice that after such disclosure, they did not wish to be contacted by the other (which, if violated, could result in a fine of $50,000), the Act's retroactivity caused serious privacy concerns for persons who had long believed that their personal information would always be maintained by the government on a confidential basis in accordance with prior legislation, long in effect.

Four people, two of whom remain unidentified, launched an action against the Attorney General of Ontario and the Coalition for Open Adoption Records, claiming the Act was unconstitutional.

The matter was heard by Mr. Justice Edward Belaboba in June 2007. In concluding the Act infringed Section 7 of the Charter of Rights and Freedoms, his Judgment focused on two substantive concerns:

  1. the retroactivity of the law; and
  2. the law did not require the consent of both parties to the release of information.

On November 14, 2007, CBC News reported:

The McGuinty Liberals are taking another run at opening up past adoption records after deciding not to appeal a judge's decision quashing their adoption law.

The revised legislation, which is expected to be introduced imminently, will address Justice Belobaba's ruling by including a provision permitting either party to veto disclosure of personal information to the other.

Information about current rights of adoptees and birth parents is available online from the Ministry of Community and Social Services.

- Annie Noa Kenet, Toronto

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Hillary Clinton Condemns Saudi Gang Rape Sentence

According to BBC News, a 19-year-old Saudi woman, who is the victim of a gang rape, has had her sentence increased to 200 lashes and a six-month prison term.

The woman was travelling in a car with a male friend last year, when the car was attacked by a gang of seven men who raped both of them.

The rape victim was punished for violating Saudi Arabia's laws on segregation that forbid unrelated men and women from associating with each other. She was initially sentenced to 90 lashes for being in the car of a strange man. On appeal, the punishment was not reduced but increased to 200 lashes and a six-month prison sentence.

Hillary Clinton, the frontrunner for the Democratic nomination in the US presidential elections, has condemned the sentence and urged President Bush to call on King Abdullah to cancel the ruling and drop all charges against the woman. She said “As president I will once again make human rights an American priority around the world.”

- Shashi K. Raina, Toronto

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Enforcement of Foreign Support Order under Interjurisdictional Support Orders Act 2002: Registration of Foreign Support Order set aside

In a decision released on November 6th 2007, Mr. Justice Stanley B. Sherr of the Ontario Superior Court of Justice set aside the registration of a child support order made by the District Court of the Republic of Poland. This order provided that the respondent father pay child support to the applicant in the sum of $222 per month, plus $2,300 for retroactive child support. This order was registered in Ontario Superior Court of Justice pursuant to the provisions of Interjurisdictional Support Orders Act, 2002 (ISO Act).

The parties met in Poland in June 2002 and entered into an arranged civil marriage one week after meeting. The respondent husband returned to Canada two days after the wedding and planned to sponsor the wife and the child of the wife from an earlier relationship to come to Canada. The husband returned to Poland for 10 days in October of 2002 and had a church wedding with the applicant wife. He returned to Canada without the applicant and the child and the parties did not see each other since then.

The support order was in respect of the wife’s child from an earlier relationship and the husband never stood in the place of a parent to the child. Although the husband had notice of the proceeding in Poland, he could not afford to go there, and the lawyer he had contacted in Poland to deal with the matter did not attend court.

The court observed that it is unrealistic to expect that persons of modest means, such as the respondent in this case, have the financial resources to litigate child support cases in jurisdictions as far away as Poland. Because of the distance and cost involved, the respondent was unable to appear in court to ensure that counsel properly communicated his position. The court further observed that the comprehensive procedure to make support claims against payors residing in foreign jurisdictions, set out in the ISO Act was created to address these issues and to establish a fair process for support payors.

In the court’s view, because Poland is a reciprocating jurisdiction under the ISO Act, the wife should have used the procedures in the legislation. According to the proper procedure the application for support should have been sent by the designated authority in Poland to the designated authority in Ontario and served on the respondent. The respondent would then have had the opportunity of responding to the application in the Ontario court. By not following the proper procedure, the wife risked the possibility that her order would not be enforceable, which was the case here.

On the husband’s successful motion to expunge registration of the Order, the court ruled that the Applicant wife pursued her support claim outside ambit of ISO Act and the order that she obtained could not be enforced in Ontario because the husband did not have reasonable opportunity to be heard.

The court also set aside the registration of the order on the ground of being against public policy in Ontario because there was evidence that it was obtained through misrepresentation. The applicant wife had used an amended birth certificate, for a purpose not agreed to by the respondent husband, to misrepresent to the Polish court that the husband was the child’s parent.

The court however clarified that a foreign court order that imposes a child support obligation on a resident of Ontario that is not sanctioned by the law of this province is not necessarily against public policy.

For full text see: Waszczyn v. Waszczyn

- Shashi K. Raina, Toronto

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B.C. Lawsuit Challenges Canadian Health Care System

The Globe and Mail reports on yet another lawsuit financed by the apparently deep pockets of Rick Baker, president of Timely Medical Alternatives, challenging Canada's universal health care system.

Those behind this B.C. court action and other, similarly funded cases throughout Canada seek to leverage these lawsuits to "open the door to more private health care in Canada."

From The Globe report:

The lawsuit, if it goes ahead, may be financed by the Canadian Constitution Foundation, which has been speaking with Mr. Baker. "We're strongly interested," said foundation executive director John Carpay, but added that interest is "subject to finding the appropriate lawyer to take on the case."

The foundation is financing similar cases in Ontario and Alberta. The Ontario lawsuit is in the name of Lindsay McCreith, who was also a client of Mr. Baker at Timely Medical Alternatives. Mr. Carpay expects these cases will not come to court until 2008 at the earliest.

If any of these suits is successful, it could open the door to more private health care in Canada.

"All it's going to take is in one of these suits, for the plaintiff to prevail," Mr. Baker said. "And I think the Canada Health Act will come tumbling down. It cannot be shown to be supported by the Charter of Rights."

We've previously discussed these Court challenges and their backers' ties to American conservatives alligned with the U.S. health insurance industry.

- Garry J. Wise, Toronto

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