Thursday, January 31, 2008

Legal Aid Ontario's Most Difficult Case

The Defence for the terror suspects arrested in summer of 2006 for various terrorism charges is expected to cost the Province of Ontario more than $8 million dollars. With more than 14 accused involved, Legal Aid Ontario has described it as the "most difficult case to manage to date".

Guilty or not, tax payers will have to foot the bill. has the Full Report.

- Shashi K. Raina, Toronto

Visit our Toronto Law Firm website:


Wednesday, January 30, 2008

Toronto Police Solve Crime and Educate Youth Using Facebook and You-Tube

Toronto Police officers are using the social networking site Facebook and video sharing site you- tube to solicit tips on unsolved and ongoing crimes as well as to educate youth about crime prevention.

Posting videos on you-tube that request information from the public to assist in crime solving allows officers to reach a wide audience in a variety of languages with minimal cost. While Facebook can be used for the same purpose, it also has the added advantage of creating a more interactive forum.

The Globe and Mail reports:

We have to use the Internet as a violence-prevention tool, not just to go out there and ask for tips," says Constable Mills, who at age 40 has two small children of his own, and has spent much of his police career working with young people.

"So my Facebook account is for dialogue, to help the kids, and I've got people around the world e-mailing me."

Cybertips bring the same monetary rewards and same guaranteed, court-protected anonymity - custom-made software strips away address communications - as the traditional telephone call to Crime Stoppers.

And by coincidence or not, Toronto's Crime Stoppers operation fielded a record number of tips in 2007, a number that may grow when encryption-protected text messages become part of the landscape later this year.

- Annie Noa Kenet Toronto

Visit our Toronto Law Firm website:


Edwards Drops Out of Presidential Race reports:

Former Sen. John Edwards dropped out of the race for the Democratic presidential nomination on Wednesday.

"It is time for me to step aside so that history can blaze its path," Edwards said in New Orleans, Louisiana

With his wife, Elizabeth, and children at his side, Edwards said he couldn't predict "who will take the final steps to 1600 Pennsylvania Ave.," but he said it would be a Democrat.

"We must do better if we want to live up to the promise of this country we love so much," he said.

Earlier, an Edwards aide said the candidate was not getting the media attention he needed to get his message out and win delegates, especially with races coming up in 22 states next Tuesday...

Edwards has trailed Sens. Hillary Clinton of New York and Barack Obama of Illinois in the early contests, including a third-place finish in Tuesday's Florida primary with 14 percent of the votes. He also came in third in key races in New Hampshire and South Carolina.
He has not yet provided an endorsement for either Barack Obama or Hilary Clinton.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website:


Black Focus School a Realty

Canada's first black-focussed school is set to open in Toronto in fall 2009.

680 News Reports:

Following an emotional public debate on the issue Tuesday night, Toronto District School Board trustees voted in favour of creating a black-focused public school: a school with a curriculum and teaching environment focused on black history and culture.

Twenty-two delegates spoke out on the idea of introducing a black-centred school in Toronto at the Toronto District School Board office on Yonge Street at Sheppard Avenue over two hours. Many parents of black students were present to voice their opinions on the idea of an all-black school in Toronto.

The mother of murdered teen Jordan Manners is one of those who wanted trustees to vote against the recommendation. "Martin Luther King and how many of our fathers fought to come together so blacks and whites could come together, for us to sit in the front of the bus together. I don't think that we should have a black shcool. It's not right," she said. "Let us all come together and be as one." She asked the Toronto community to teach our children to be one with all races, adding that black-focused schools would just bring segregation.

Angela Wilson, a resident in Rexdale area said young people learn in different places and need to have options. "It's not about segregation. It's about self-determination. And we can only have that when we are free to learn and free to think for ourselves," said Wilson.

Most of the delegates carried a mixed reaction on the idea of an all-black school throughout the debate.

- Shashi K. Raina, Toronto

Visit our Toronto Law Firm website:


Tuesday, January 29, 2008

Supreme Court of Canada to Hear Blood Transfusion Case

The Supreme Court of Canada might soon provide some guidance with reference to the ongoing battle between religious freedom and the best interest of the child.

The Manitoba case of Director of Child and Family Services v. A.C. involved a 14-year old girl who suffered from Crohn’s disease rendering her in immediate need of a blood transfusion. In accordance with her Jehova’s Witnesses beliefs, both the child and the parents refused to accept the transfusion. An urgent Application was heard for the purposes of obtaining a Court Order to administer the transfusion in spite of the child and the parents’ refusal. The Court granted the Order and the transfusion was administered. The decision was appealed to the Court of Appeal.

The Manitoba Court of Appeal specifically examined whether a “ …a mature minor ha[s] the right to refuse medical treatment even if that refusal may result in their death or serious harm and is not in their best interests?”

In such examination, the Court assessed whether s.25 of the Child Family Services Act (CFSA), which provides that a Court may Order treatment that is in the best interest of the child, applies only to children under the age of 16 who do not have capacity, and whether in the alternative, such a Court Order violates the Charter rights of a child under 16 who has capacity.

The Court found that the CFSA intends for the Court to make Orders in accordance with the best interest of the child regardless of whether or not the child under 16 has capacity and that in the matter at hand, the child was in urgent need of specific medical treatment as a matter of life or death. The Court further concluded that should such a decision violate the Charter rights of the child, the violation is justified under s.1 of the Charter as a result of the temporary status of the Order, and the paramount importance of the best interest of the child principle.

The Supreme Court of Canada is scheduled to hear this matter in May, and though the case deals with fact-specific legal issues, the Supreme Court may take this opportunity to provide broader guidance with reference the ongoing debate of religious freedom versus a the best interest of the child.

The B.C Supreme Court will also have its say on the matter. VM and CM v. The Director, which is the case of the 4 surviving sextuplets whose parents also refused blood transfusions in accordance with their religious beliefs, is scheduled for closing arguments next month.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website:


3.75 % Increase in Property Taxes for Toronto Homeowners

According to a CBC News Report, Toronto Mayor David Miller has proposed a 3.75 per cent residential property tax increase this year in his "Balanced Budget" introduced yesterday.

For sure living in Toronto is becoming expensive with increased property taxes, new land transfer tax coming into effect on February 1st 2008, vehicle registration tax and a new garbage fee.

- Shashi K. Raina, Toronto

Visit our Toronto Law Firm website:


Monday, January 28, 2008

Kennedys Endorse Obama

Fresh off a big win in the South Carolina primary, Barack Obama has another reason to celebrate. In a New York Times editorial over the weekend, Caroline Kennedy endorsed Barack Obama for President for reasons that are "patriotic, political and personal, and the three are intertwined".

The editorial makes numerous references to her father and parallels the need for chance in leadership in the respective eras. She concludes:

I have never had a president who inspired me the way people tell me that my father inspired them. But for the first time, I believe I have found the man who could be that president — not just for me, but for a new generation of Americans.
Today, Senator Edward Kennedy, joined his niece Caroline at the American University in Washington in endorsing Obama. Aside from the added publicity, Time details reasons why the Senator Kennedy's endorsement is a big deal here.

Hilary Clinton has received some Kennedy support as well. Robert F. Kennedy's daughter, Lt. Gov. Kathleen Kennedy Townsend, as well as her siblings, Bobby and Kerry, have given their support to the Clinton campaign.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website:


Signatures Required on all Ontario Lottery Tickets

The Canadian Press reports:

Starting today, retailers are not allowed to validate Ontario lottery tickets unless customers sign them on the front.

Players are also asked to sign the back of Instant Win tickets until a new signature box is added to the front in the coming months.

The signature requirement is the second new measure added by the Ontario Lottery Corp. in as many weeks to improve security.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website:


Hostage Drama in Pakistan ends quickly

According to a BBC Report the 250 schoolchildren and teachers taken hostage by a group of armed men earlier on Monday in North Western Pakistan have been released unharmed.

- Shashi K. Raina, Toronto

Visit our Toronto Law Firm website:

Sunday, January 27, 2008

A Parabola is a Mathematical Curve and not a Biblical Story – Federal Court Confirms

In a decision released on January 7, 2008, Mr. Justice Leonard Mandamin of the Federal Court of Canada set aside the order of an Immigration and Refugee Board of Canada (IRB) adjudicator denying the refugee claim of a Chinese woman, Pin Xian Xin.

Ms. Xin entered Canada illegally and made a refugee claim, saying she feared persecution in China because of her membership in an underground church and for breaching China's one-child policy.

At the hearing of her claim she was repeatedly asked by an IRB adjudicator about Bible "parabolas." The IRB ruled Ms. Xin could not be a Christian -- partly because she did not know what a "parabola" is and could not answer the question "What is your favourite parabola?"

Justice Mandamin ruled:

"A parabola is a mathematical curve and not a Biblical story……………..the applicant cannot be faulted for the confusion."

Full text of the Judgment: Xin v. Canada (Citizenship and Immigration)

- Shashi K. Raina, Toronto
Visit our Toronto Law Firm website:

Saturday, January 26, 2008


From a comment by Laura S. at Volokh:

Yes. Israel takes a lot of flak for keeping the border with Gaza closed. Ergo, one might reasonably ask why Egypt gets away with keeping its border closed too. Especially in light of the fact that the residents of Gaza have a history of making war against Israel but not Egypt.

I agree. It is an increasingly reasonable question.

Egypt certainly could be playing an important role in alleviating the day-to-day distress and suffering of the Palestinians in Gaza. It may not help bring us closer to a genuine, long-term solution, but it sure wouldn't hurt.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Oregon Appeal: Wishes of Boy, 12, Relevant In Circumcision Decision

Can a custodial father unilaterally decide to have a twelve year-old boy circumcised, over the objection of the child's non-custodial mother?

The Oregon Supreme Court addressed this question in James Boldt v. Lia Boldt, a family law proceeding that has attracted considerable attention from the national press and interest groups.

The Court declined to rule on the merits of circumcision, in spite of amicus briefs filed by numerous intervening organizations, including Doctors Opposing Circumcision (DOC), American Jewish Congress, American Jewish Committee, Anti-Defamation League, and Union of Orthodox Jewish Congregations of America:

Although the parties and amici have presented extensive material regarding circumcision, we do not need to decide in this case which side has presented a more persuasive case regarding the medical risks or benefits of male circumcision. We conclude that, although circumcision is an invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents in the United States. We also conclude that the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs -- medical, religious or otherwise. Were mother's concerns or beliefs regarding circumcision all that were asserted in the affidavits in this case, we would conclude that mother did not carry her initial statutory burden to demonstrate a sufficient change in circumstances demonstrating father's inability to properly care for M.

The appeal court nonetheless remanded the matter to the trial Court, ordering that the lower court ascertain the boy's wishes and views regarding the pending circumcision before deciding the issue:

In our view, at age 12, M's attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of a change of circumstances sufficient to warrant a hearing concerning whether to change custody. That is so because forcing M at age 12 to undergo the circumcision against his will could seriously affect the relationship between M and father, and could have a pronounced effect on father's capability to properly care for M. See Greisamer, 276 Or at 400 (illustrating proposition). Thus, if mother's assertions are verified the trial court would be entitled to reconsider custody. As to that inquiry, however, we think that no decision should be made without some assessment of M's true state of mind. That conclusion dictates the outcome here.

We remand the case to the trial court with instructions to resolve the factual issue whether M agrees or objects to the circumcision. In order to resolve that question, the trial court may choose to determine M's state of mind utilizing means available to it under the relevant provisions of ORS 107.425. (9) If the trial court finds that M agrees to be circumcised, the court shall enter an order denying mother's motions. If, however, the trial court finds that M opposes the circumcision, it must then determine whether M's opposition to the circumcision will affect father's ability to properly care for M. And, if necessary, the trial court then can determine whether it is in M's best interests to retain the existing custody arrangement, whether other conditions should be imposed on father's continued custody of M, or change custody from father to mother.

In other words,when it comes to circumcision of a boy at age 12, don't just ask a doctor or a religious leader - ask the child, too.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Workplace Bullying

Michael Fitzgibbon has a very comprehensive article on the law relating to Workplace Bullying and Harassment in the current edition of the Canadian Bar Association's Addendum.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


A Joke

From Cathy:

The cop got out of his car and the kid who was stopped for speeding rolled down his window.

“I’ve been waiting for you all day,” the cop said.

The kid replied, “Yeah, well I got here as fast as I could.”

When the cop finally stopped laughing, he sent the kid on his way without a ticket.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Frank Zappa and the Conservative Censors

True conservatives believe deeply in free speech. They abhor any law that purports to restrict it. They America's First Amendment.

We know this because, of late, they keep telling us - particularly when Canada's Human Rights Commissions are in the news.

So why, then, would I be posting this video of a 1986 appearance by the late Frank Zappa on CNN's old Crossfire show....?

(h/t AmericaBlog for the video link)

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Friday, January 25, 2008

Ontario Court of Appeal in Hague Convention Motion: Return Child to Florida

Last week the Ontario Court of Appeal ruled that a father taking 8 months to file an application under the Hague Convention for the return of his child to the United States does not constitute his consent to permitting the child to remain outside the Country with his mother.

Diana Ibrahim, a native Ontario resident, and her husband, Imad Girgis, a native Jordanian resident, were residing in Florida under Girgis’ work permit since 2001. The couple married in Florida in July 2004 and had their son Andrew in Florida one year later.

After corresponding with US immigration to obtain permission to both leave and re-enter the United States, Ibrahim took Andrew to Ontario to visit a terminally ill relative on June 11, 2006. They both had return tickets for late September, which Girgis had purchased. As a result of not hearing back from US immigration about her ability to re-enter the United States, and as a result of some conflict which occurred between the couple, Ibrahim chose to remain in Ontario with Andrew.

In January 2007, Ibrahim commenced court proceedings in Ontario to obtain custody of Andrew. In late March, Girgis began court proceedings in Florida respecting both custody of Andrew and a divorce.

As a result of the similar proceedings, Judges from each jurisdiction held a conference call with the parties and concluded that a jurisdictional motion was to be heard in Ontario. A day before the jurisdictional motion was to be heard, Girgis commenced an application under Article 12 of the Hague Convention for the summary return of Andrew to Florida.

Based on Article 13 of the Hague Convention, which reads as follows:

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention
the Trial Judge hearing the Hague motion concluded that the father’s 8 months delay in filing the application under the Convention constituted an “acquiescence” of the father to the removal or retention of his son and accordingly held that Andrew does not need to be returned to Florida.

However, the Court of Appeal found that trial judge erred in interpreting the meaning of “acquiesced” based on the following analysis:

1. The Convention allows a parent 1 year to bring an application, the period is purposely provided for reasons which may include the parties attempt to reconcile, or one parties unawareness of the Convention;

2. The onus to prove acquiescence to the retention or removal of the child is on the party claiming it, which in this case would be Ibrahim, and a delay in application is not enough to satisfy this onus;

3. Even if the father had acquiesced, the Court is not “Bound” to return the child, meaning the decision is at the discretion of the Court, regardless if one of the items listed in Article13 is established; and

4. The Supreme Court of Canada has previously held in Thomson v. Thomson that Article 12 of the Convention "establishes a presumption in favour of the child's summary return"

Accordingly, the Court of Appeal held that Andrew was to be immediately returned to Florida. As a result of Andrew’s young age, and the fact that he had not seen his father in 19 months, the Court also added that it would be “appropriate” for Ibrahim to travel back to Florida with Andrew and make temporary living arrangements there. Girgis agreed to pay both for the flight and the temporary accommodations.

A full text version of Ibrahim v. Girgis can be found here.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website:


Ontario Freeze on Property Tax Assessment Lifted

In 2006, Ontario Premier Dalton McGuinty placed a freeze on property tax assessments in the Province that is now being lifted.

CTV. News reports:

Homeowners are going to be "shocked" when they learn how much their property assessment has soared, Ontario's Opposition Leader John Tory said Thursday.

He said property values have gone up dramatically over the last three years during the time Premier Dalton McGuinty imposed a freeze on property assessments.

"Everybody across the province, when you have three years of pent-up assessment increases that haven't shown up on the papers, everybody is going to be shocked at the numbers and in many cases it will lead to tax increases which people can't afford right now -- plain and simple," he told reporters.
On the other hand, the Toronto Star reports the following:
Apparently, house prices have jumped 20 per cent across Toronto in the last while. So fear-mongers have been warning citizens to expect a 20 per cent jump in property taxes once the freeze is lifted on assessments this summer.

Utter nonsense.

In fact, if your property has gone up less than 20 per cent in value, you'll be getting a tax cut.
If it jumped exactly 20 per cent, you're whistling along, unaffected. And if you're fortunate enough to live in a hot neighbourhood like Riverdale, where prices have jumped 31 per cent, then you are staring at an 11 per cent increase – the difference between the mean increase and your high point.

Yes, double-digit hikes are not pleasant, but even these come with an ameliorative plan. The Ontario government, which created the problem by freezing assessments for two years, says it will phase in the new hikes over four years.

So Riverdalians are facing a rise in property taxes of less than 3 per cent per year – not nearly the apocalyptic scenario circulating this week.
Ontario home owners will be able to decide the impact of the lift for themselves in late summer of this year when the new assessments are scheduled to be sent out.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website:


Thursday, January 24, 2008

SCC Denies Leave to Appeal Adoptive Mom's EI Parental Benefit Denial

The Supreme Court of Canada today refused adoptive mother Patti Tomasson's application for leave to appeal the denial of her claim for EI Parental Benefits.

Eugene Meehan reports:

CHARTER: EQUALITY; MATERNITY AND PARENTAL BENEFITSUnder the federal Employment Insurance Act , a biological mother can combine 15 weeks of maternity benefits with 35 weeks of parental benefits, allowing her to spend a total 50 weeks with her newborn child, while adoptive parents are limited to 35 weeks of parental benefits. After adopting each of her two children, Patti Tomasson applied to the Employment Insurance Commission for maternity benefits and parental benefits and on both occasions she was granted parental benefits but denied maternity benefits. She appealed the Commission’s respective decisions to the Board of Referees which upheld the Commission’s decisions. Ms. Tomasson then challenged the constitutionality of the legislation in an appeal to an umpire, alleging the provisions of the Act discriminated against adoptive mothers within the meaning of s. 15 of the Charter. The umpire appointed under the Act dismissed Ms. Tomasson’s challenge to the legislation on the basis that the decision of the Ontario Court of Appeal in Schafer v. Canada (Attorney General) (1997), 149 D.L.R. (4th) 705 (leave to appeal to the S.C.C. denied January 29, 1998), was binding. The Federal C.A. dismissed Ms. Tomasson’s application for judicial review of the Umpire’s decision.Patti Tomasson v. Attorney General of Canada (Fed. C.A., August 9, 2007)(32298) "with costs."

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Blawg Bits

Quick links to some of the top stories law blogs are following today:

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Wednesday, January 23, 2008

“Wrongful Life” versus “No Life” - Court of Appeal overturns Wrongful Life Decision

In a decision released on January 7th 2008 the Ontario Court of Appeal has ruled that a doctor owed no duty of care to future children not to cause them harm in prescribing a fertility medicine to their mother.

The brief facts of the case giving rise to the law suit and the appeal are that the Respondent, Carolyn Bovingdon, consulted the Appellant, Dr. Hergott, an obstetrician, when she failed to begin ovulating after discontinuing birth control pills. Dr. Hergott prescribed the fertility drug Clomid. After taking the prescribed course of Clomid, Ms. Bovingdon conceived and gave birth to severely disabled premature twins. The Clomid was found to be the first link in a chain of causation that led to the conception of the twins, the premature birth of the twins and the damage caused to them as a result of their premature birth.

The action against Dr. Hergott was based on his failure to provide all the necessary information to allow Ms. Bovingdon to make an informed decision whether to take Clomid, the extent of the increased risk of having twins by taking the drug, the potential for premature birth when carrying twins and the consequent injury this might cause to them.

The jury found the doctor negligent for failing to provide the necessary information to the mother. Following those findings, the trial judge ruled as a matter of law, that the doctor also owed a duty of care to the twins. Because he breached that duty, they as well as their parents were entitled to recover damages. The trial judge concluded that the claim by the twins did not come within the category of action known as “Wrongful Life” (the law in Canada does not recognize a cause of action for “Wrongful Life”) because this was not a case where the doctor’s negligence only caused the twins to be born, the doctor’s negligence also caused their damage.

The trial judge reasoned that the Clomid caused the twinning, the twinning caused the prematurity, and the prematurity caused the damage to the children. Therefore, the Clomid caused the damage and since the doctor had prescribed the Clomid without warning the mother of the risks, the doctor had thereby caused the harm to the children. The judge concluded that the case was therefore not an action for wrongful life, but one where the doctor was responsible for the damage and therefore the twins had a cause of action for damages.

The Court of Appeal upheld the trial court’s ruling of negligence against Dr. Hergott for failing to provide the necessary information to the mother, but reversed its decision on the issue of Wrongful Life and Duty of Care owed to the twins.

Writing for a unanimous bench, Madam Justice Feldman wrote:

The common law world has struggled for the past several decades with the debate over whether a child born with defects or injuries suffered in utero or upon conception can sue a doctor for negligence. In deciding whether to recognize a “wrongful life” claim, the key question is, if a child would not have been born at all without the doctor’s negligence, can such a child sue the doctor for the value of the difference between a life burdened with physical or mental defects and no life at all? How can the child be compensated for being born? How can a court give damages that measure the value of no life versus a damaged life? And from a metaphysical point of view, does it make sense to allow such an action, given that if the child had not been born, he or she would not have been able to bring the action at all?”

The Court of Appeal held:

“Clomid had no pharmacological effect on the children. Dr. Hergott did not cause the damage to the children. Rather, by failing to give Mrs. Bovingdon all the information she needed to decide whether to take the drug to augment her fertility, he caused or contributed to the birth of the twins.”

The court concluded that because the doctor did not cause the harm to the twins, the trial judge erred by finding that this was not a case of Wrongful Life.

Although the court found that the children’s claim against the doctor fell into the category of claims designated as “wrongful life,” and therefore no claim was made out on behalf of the twins, the court left it open by commenting:

“Furthermore it is undecided whether the courts of this province would necessarily dismiss every claim for “wrongful life”.

In any event the court also found that Dr. Hergott owed no duty of care to the twins, who therefore had no cause of action against him. The court held:

“The Appellant had no duty of care to the future children not to cause them harm in prescribing Clomid to the mother. The doctor owed a duty of care only to the mother, which duty consisted of ensuring that she possessed knowledge sufficient to make an informed decision whether to take Clomid. This knowledge included the increased risk of conceiving twins arising from the drug, the increased potential for premature birth in a twin pregnancy, and the possible harm to the children that could result from premature birth.”

Justice Feldman further wrote:

“Because I have concluded that there was no duty of care and therefore no cause of action by the twins, it is not necessary for me to decide whether and in what circumstances the courts of this province may recognize a cause of action for “wrongful life.”

Full text of the decision: Bovingdon v. Hergott

- Shashi K. Raina, Toronto

Visit our Toronto Law Firm website:


Fletcher In, Lawyers Out

With yesterday's firing of Toronto Maple Leaf General Manager John Ferguson Jr., and Cliff Fletcher's return to the club as Interim General Manager, the Leaf franchise has indeed begun a new era.

In fact, for the first time since 1997, when the Toronto Maple Leafs appointed Ken Dryden as President and General Manager, the club has handed hockey control of the organization to a non-lawyer.

Mr. Dryden, a recipient of a degree in Law from McGill University, and now a member of Canada's Parliament, was succeded as General Manager in 1998 by Pat Quinn.

Mr. Quinn obtained his law degree from Widener University, Delaware School of Law.

He was replaced in August 2003 by the Mr. Ferguson, who graduated Cum Laude with the degree of juris doctor from the Suffolk University Law School and was admitted to the Massachusetts State Bar in 1996.

(For the record, I'll note that we were not alone in our prediction last June that Mr. Ferguson would be unlikely to survive in the GM role to the 2008 All-Star break).

Bear in mind this one caveat, however, from sports writer Howard Berger: Nothing Changes Unless Richard Peddie Steps Aside.

Peddie, president and CEO of Maple Leaf Sports and Entertainment (MLSE), has a mere honourary Doctor of Laws.

Yesterday's announcements and press festivites are below:

Maple Leafs Hire Cliff Fletcher- Press Conference - Part 2

Maple Leafs Hire Cliff Fletcher- Press Conference - Part 3

Maple Leafs Hire Cliff Fletcher- Press Conference - Part 4

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Monday, January 21, 2008

Dan Savage Visits South Carolina Republicans

From Bill Maher's Real Time:

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


'Supremacists' March on Jena on MLK Day

Raw Story:

Jena, Louisana, which became a byword for racial tension when six black high school students were charged with beating a white schoolmate after a series of incidents that began when a noose was hunt from a tree at the school, is set to be the scene of fresh confrontations.

A white supremacist group, the Nationalist Movement, plans to demonstrate there on the holiday commemorating Martin Luther King's birthday to demand the elimination of the holiday and of all civil rights laws. Counter-demonstrations are planned by the New Black Panthers and other civil rights groups.

See our previous post regarding this "march:"

December 19, 2007 - White Separatists Sue Town of Jena Over Parade Gun Ban, Route Change

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Adam Dodek's 2007 Supreme Court of Canada Review

Law Times has Osgoode visiting scholar Adam Dodeck's brief wrap-up of the Court's major constitutional decisions of 2007.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Ontario Paralegals Challenge Law Society Regulation

A group of Ontario paralegals has moved in Divisional Court to challenge the constitutionality of legislation empowering the Law Society of Upper Canada to regulate paralegals.

An application for judicial review of the Law Society Act's 2007 paralegal governance regulations has been served upon the Law Society of Upper Canada and Ontario's Attorney-General. The challenged regulations require paralegals to maintain liability insurance, complete mandatory qualifying education, and designate the Law Society as professional regulatory body for the Ontario paralegal industry.

Law Times reports that the Application seeks:

    • an order quashing parts of the Access to Justice Act relating to the regulation of paralegals;
    • an order forcing the law society to stop all activities involving the regulation of paralegals outlined in the act;
    • an order for injunctive relief requiring the law society to hold off on implementation of paralegal regulation until the application is ruled upon;
    • an order of mandamus requiring changes to the act that would make the paralegal standing committee the only body regulating paralegals;
    • an order allowing paralegals to continue acting on behalf of clients in Family Court, and an order preventing the law society from charging paralegals who are granted permission to act in Family Court.
- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Sunday, January 20, 2008


I was interviewed by Toronto Star writer Amy Brown-Bowers for her article, Rommates: Rules of Engagement, which appeared in this week's Saturday Star.

The story focuses on the challenges and considerations involved in roommate and co-tenanting relationships.

The online version of article is here, or if you prefer, click on the photo.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Saturday, January 19, 2008

Belarus Publisher Jailed over 'Prophet' Cartoons

MSNBC reports that the publisher of a now-defunct, independent Belarus newspaper has been jailed three years for publishing the 2005 Danish 'Prophet" cartoons.

The 12 cartoons portraying the founder of Islam, including one showing the prophet with a bomb in his turban, outraged Muslims who saw them as blasphemous. More than 50 people died in protests across the world the following year.

...Editor Alexander Sdvizhkov was sentenced to three years in jail in a closed session of the court for incitement of religious and national hatred.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Friday, January 18, 2008

Ontario Court of Appeal Endorses Spousal Support Guidelines

The Ontario Court of Appeal’s judgment in Fisher v. Fisher, released last week, has important implications for family law in Ontario.

Of immediate interest is the Court's endorsement of the Spousal Support Guidelines, which have had mixed influence with Ontario family courts to date.

In Fisher, the Court of Appeal found that the trial judge erred in not taking the Guidelines into account when they had been argued to the Court:

In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.

Though the judgment also notes the limited applicability of the Guidelines to certain factual scenarios, and expressly states that if Guidelines are in conflict with a relevant authority, the “authority is to prevail”, the Court ultimately incorporated the ranges provided by the Guidelines into its determination of both the quantum and duration of support.

The Court's complete Reasons for Judgment in Fisher v. Fisher, can be found here.

UPDATE: January 22, 2008 - Also see Spousal guidelines accepted as ‘litmus test of reasonableness’ from Lawyers Weekly.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website:


Thursday, January 17, 2008

CTV: Canada Puts Guantanamo on Torture Watch List

CTV News:

CTV News has learned that, as part of a "torture awareness workshop," diplomats are now being told where to watch for abuse.

The goal of the workshop was to teach diplomats who visit Canadians in foreign jails how to tell if they've been tortured. It also listed countries and places with greater risks of torture. The list includes Syria, Iran, Afghanistan, and China. But surprisingly, it also included the United States, Guantanamo Bay, and Israel.

It notes specific "U.S. interrogation techniques," which include "forced nudity, isolation, and sleep deprivation." The U.S. has repeatedly denied allegations by international groups that it tortures prisoners captured in places like Afghanistan and Iraq. However, U.S. officials have refused to comment on the Canadian list.

But international observers say they are heartened by the specificity of the Canadian list. Alex Neve of Amnesty International says he is surprised that Canada would risk offending allies by naming countries that potentially torture prisoners.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Wednesday, January 16, 2008

Good Question:

From a National Post editorial regarding a five-year jail sentence to be served in Canada by Marc Emery on U.S. drug charges, after striking a plea deal with U.S. authorities:

Why then would we even consider arresting a Canadian and prosecute him at the behest of U.S. authorities for a crime we routinely ignore here?

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


The Future is Now

Robert Ambrogi highlights the arrival of a new technology that is about to change everything - live video streaming from your cell-phone to the web:

A new service enables anyone with a 3G mobile video phone to broadcast live video to the Web and archive the video for later viewing. Called ComVu PocketCaster, it works with Windows Mobile and Symbian smartphones (list of supported phones). Literally with the push of one button on your phone, PocketCaster begins streaming video to the Web, either to a ComVu page or to your own blog or other preselected Web page. And with the push of another button, it will send e-mails or text messages to your designated contacts notifying them of the live video stream. Streams are simultaneously archived on ComVu's servers, so that you and others can watch them anytime from their computers or phones.

Mr. Ambrogi focuses on the likely professional applications for this technology, but those aside, imagine what this development is about to for news reporting, citizen journalism and blogging (especially vacation blogging, oh no!).


- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Human Rights Claims Run Amok

Now, this will be a human rights appeal that really monkeys with the legal system.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website:


Monday, January 14, 2008

Ezra's Law - The Levant File

It may have amused certain of his cronies to see good ol' boy Ezra Levant ambush, bully and harangue the very unfortunate woman assigned by the Alberta Human Rights and Citizenship Commission to investigate the complaints advanced against him.

He did not amuse me.

It offended me as a fellow Canadian.

And as a fellow lawyer.

And as a fellow Jew.

Speaking first as a fellow Canadian, I have learned at least something from the racial enmity my own family endured nearly a century ago, upon arriving in Canada.

The host culture will always produce some whose ignorance and fear will cause them to impede and stereotype new immigrants with lofty and heated pronouncements as to all the imagined evils these newcomers bring with them. While their scripts may change over time, the characters remain the same.

I am glad Canada now provides a legal remedy against egregiously discriminatory provocation and insult.

We do, indeed, protect freedom of speech in Canada as one of our fundamental rights.

By Canadian law, however, as opposed to Ezra's Law, we also enshrine the right to be free from religious discrimination and racial harassment - spoken, written, drawn or carved in rocks.

It is quite unfortunate that Mr. Levant has graduated from being the grandson of immigrants who no doubt struggled through such wrongs to someone who now unrepentantly delivers his own bad-tasting medicine to a modern generation of newcomers.

Why would he do so?

As he put it, he did it because he wanted to. Because he can. To make a point. And because he accepts no law to the contrary.

We published those cartoons for the intention and purpose of exercising our inalienable right as freeborn Albertans to publish whatever the hell we want, no matter what the hell you say... the only thing I have to say to the government is that it's my bloody right to do so. It is my right to do so for reasonable purposes or for unreasonable purposes.

I reserve the right to publish the cartoons to do every offensive thing that [the complainants] claim was in my heart... I have the full right to do everything in here that they accuse me of.

That, apparently is Ezra's Law.

Ezra Levant, one nation unto himself. Under Ezra.

There is nothing new about the hard time that has been afforded Muslim immigrants to Canada by these self-appointed "protectors of the nation." Virtually every immigrant group to this nation has been subjected to some variation of it in its early history.

At long last, in this generation we have decided as a matter of law and public policy it is better to just say "welcome," establish legal boundaries against hatred, and see what we can learn from each other.

It is not necessarily a smooth path. But it is the right path.


As a fellow lawyer, I must say that Mr. Levant's conduct before a representative of a statutory legal commission was nothing short of embarrassing.

I understand he was of course, not in the role of counsel in his movie debut.

It is also unclear to me whether he continues to practice law at all.

Nonetheless, after noting Mr. Levant:

I felt it would be useful to review The Law Society of Alberta Code of Professional Conduct.

The Rules below were of interest to me:

Rule 3 A lawyer must not act in a manner that might weaken public respect for the law or justice system or interfere with its fair administration.

Commentary - Rule 3 Society expects that the legal profession will play a leading role in protecting the integrity of the justice system and ensuring that it functions properly. A lawyer's behaviour is incompatible with this role if it encourages
public disdain or disregard for the administration of justice. Examples are deliberate flouting of the law or other flagrant disrespect for an aspect of the justice system; irresponsible or unjustified allegations of corruption or partiality; criticism that is ill-considered or malicious; disrupting judicial or administrative proceedings; and suggesting to a client or other person that evasion of the law is acceptable.

Rule 8. Except under extraordinary circumstances, a lawyer must not record a conversation with anyone, nor enable a third party to hear the conversation, without first obtaining the consent of the person to whom the lawyer is speaking.

Rule 9. A lawyer must not harass any person or discriminate against any person on the basis of race, language, creed, colour, national or ethnic origin, gender, religion, marital status, sexual orientation, age, mental disability or physical disability or otherwise or on the basis of any similar personal attribute.

Commentary: ... Harassment may encompass conduct which:

(a) undermines another person’s dignity by causing embarrassment, discomfort or humiliation;
(b) creates an intimidating or hostile environment for the recipient of the harassment...

...Personal harassment is disrespectful and degrading conduct generally that is not specifically focused within the prohibited grounds. It includes conduct that is rude, insulting, belittling or vindictive (see also Rules #2, #6 and #7 in this chapter and related commentaries). The key in determining whether conduct is harassment is the impact the conduct has had on the complainant, not the intent with which it was done. Harassment is different from offending a person; it involves undermining
another person's personal integrity.

The rule against harassment is a pervasive rule. It applies to lawyers' relations with clients, other lawyers, others who work in the justice system (judges, court officials and staff, the police and prison guards, etc.) and members of the general public.


I was perhaps most offended as a fellow Jew whose community was invoked by Mr. Levant in a bizarre, rambling effort to rationalize his own questionable behaviour as harmless by reference to criminal vandalism against the Edmonton synagogue he claims as his own.

There are people out there who do awful things to our synagogues, Mr. Levant. Do I really need to say that this unfortunate reality does not grant us license or in any way immunize us from the consequences of our own hateful acts?

I do not know any Jewish-Canadians (except the one governed by Ezra's Law), who would even consider proposing such an offensive argument.

A synagogue attack by one Muslim does not justify hatred of all Muslims. It justifies criminal proceedings against the perpetrators.

Do what you must Mr. Levant, but do not purport to drag Canada's Jewish community with you into this.

We are a tolerant people, living in a tolerant country. And want to keep it that way.


Which brings me to back to a remark I left dangling last week.

..let us not confuse who the "good guys" are here

"Who are the good guys, then Mr. Wise?" one commenter asked.

The good guys, of course, are the thousands of hard-working and determined Islamic immigrants who have come to Canada and America to make a better lives for themselves and their children, as did my forebears.

They have come to escape war or oppression or limited opportunity at home. As did my grandparents.

They are the ones who lived quiet, normal, and largely apolitical lives in their neighbourhoods, did their jobs, prayed in their mosques, and communed with their families and friends.

Until September 11, 2001.

The day our world went crazy. The day some among us decided they were all suspects. The day law enforcement was let loose on them.

Some theorists have gone so far as to suggest Islamic immigrants have arrived, armed with a master plan to convert Canada and America into Islamic outposts under Sharia law, without even noting that most Islamic-Canadian immigrants left their host nations precisely to get away from that form of excess.

So who are the good guys?

They are the ordinary people, the Islamic-Canadian citizens who contend daily with the discrimination and harassment that comes with the pervasive, but false notion that they are somehow, by definition, all aligned with the worst of the worst who happen to share their religion.

To put it more bluntly, they are the victims of guilt by association. One will easily note from a review of the video that in Ezra's World, any wrong committed by any individual Muslim quite naturally must lead to unchecked national hatred of all Muslims. It is all their fault, according to Ezra.

In my view, they need legal protection against discrimination and harassment.

I am relieved to be in a Canada that provides it as a matter of law.


Fortunately, the news is not all bad:

Celebrating Canada's multiculturalism

... It is often overlooked that Canada has the highest immigration rate on the planet. However, it was only in the 1960s that Canada abandoned its racist immigration policies and began admitting newcomers according to their skills and qualifications rather than their nations of origin.

...Much has been achieved over time. Once it seemed likely that Canada could never aspire to genuine equality for newcomers, let alone achieve it. How things have changed.

It is noteworthy that 80 per cent of recent immigrants after four years in the country say that if they had to do it again they would make the same decision and come to Canada.

What about Muslims as immigrants? Today they are about 2.5 per cent of the total population, numbering about 850,000. It is the fastest growing religion in the country. The median age of Canadian Muslims is about a decade lower than the median age of the population at large.

Among foreign-born Muslims, about half have come to Canada in the last 10 years. Thirty per cent have been in Canada from 11 to 19 years, and 17 per cent have been in this country for two decades or longer. About 60 per cent of them live in Ontario, 20 per cent in Quebec.

Despite widespread unfavourable comment and some irresponsible alarm, it is clear, says the author, according to his research, that they tend to share important traits with other newcomers to Canada: optimism, enthusiasm for their adopted country, a desire to improve their lives and the wish to be treated fairly.


A tidbit from Toronto history will be illuminating as to how Canadian governments have typically responded to racial provocation.

An elderly uncle of mine still speaks with pride of his role in defending the Jews of Toronto in 1933 by being part of the fabled Christie Pits riots. The event is documented online by the Plaque Project as follow:

In 1933, shortly after Adolph Hitler was elected to power in Germany, newspaper articles reached Toronto bringing with them news of the atrocities the Nazis were carrying out against Jews there. Toronto’s anti-Semites became inspired by what they read, and began adopting the swastika symbol. In July of that year a group of residents from the Beaches neighbourhood formed the Balmy Beach Swastika Club. They complained about the crowding, litter and ‘vulgarity’ at the beach, which they attributed to the large number of ‘obnoxious visitors’ who were riding the street cars out to the beach that summer. Many of these visitors were Jewish, and anti-Semitism seemed to be a cornerstone of the Swastika Club; they wore and posted swastikas and they attempted to have Jews and other ‘foreiners’ banned them from the beach. Even though the beach was a public park Beaches residents including the Swastika Club saw it as very much their own, and private. All of this outraged the Jewish community.

...On August 14th huge crowds gathered at Christie Pits for a baseball game, the first game of a tournament between the St. Peters’ team and the predominately Jewish Harbord Playground team. The game took place in a neighbourhood that Jews had just started moving into, and racial animosities were running high. The Harbord Playground team won the game despite the taunting from the crowd and the flying of a swastika banner. The next morning there was a giant swastika and large lettering that read Heil Hitler painted on the top of the Christie Pits clubhouse. This increased tensions and brought even more people out to the next game on August 16th. During that game a group of St. Peters’ supporters raised a white bed sheet with a swastika painted on it. A group of Jews went to tear it down. This ignited a fight, and soon the thousands of spectators had joined the brawl. The two sides violently clashed, battling each other and fighting for the bed sheet. Many residents in the area who were not involved in the baseball game “ came out of their houses with bats and sticks because they were after the Jews”. One Jewish boy was hit on the head and needed to be rushed to hospital, but rumour spread that he had been killed. As news of the riot hit the Jewish areas many more Jews (along with their Italian allies) headed north to join the massive brawl. Metal pipes and baseball bats were wielded as weapons. Pitch battles continued late into the night and spread to neighbouring streets and alleys as police closed down the park.

Only two days after the riot fears of further violence forced city council to ban the Swastika symbol from Toronto’s streets.

Even in 1933, Canadian sensibilities favoured legislation prohibiting the public display of incendiary symbols, as a measure to avoid the foment of racial discord and violence.

Apparently, it worked then.

I do not note any slippery slope toward totalitarianism that has followed.


The notion that human rights commissions are somehow "liberal" is worthy of passing comment. Alberta has had Progressive Conseratives in power continuously since 1971. Alberta's first human rights legislation was enacted in 1972. Do the math.


America has Skokie. We have Human Rights Commissions.

Either approach works. But I'll stick with ours, thanks.


Finally, I do not see the complaints against Mr. Levant as anywhere near as frivolous as those against Mark Steyn. Mark Steyn may offend some with his theories, but that is clearly not his objective, nor is offense the inevitable result of his work.

Mr. Levant chose, knowingly, to publish and republish deeply offensive cartoons that he was well aware had led to serious upset, outrage and violence after prior publications overseas.

Let us not conflate Mark Steyn and Ezra Levant. These are very different cases.

Mark Steyn is a serious, talented writer. We do not have to agree with his views to at least recognize his highly researched, if controversial, efforts to analyze and address the key issues of our times. I have repeatedly stated my view that the complaints against Mr. Steyn are dubious and unlikely to succeed. His conclusions may be debatable, but his freedom to express them should never be.

By contrast, in the impugned publication, Mr. Levant has created nothing. His "big stand" involved copying and pasting. He published a series of inflammatory comic drawings that most of the Western media wisely saw fit to avoid, after observing the great offense taken to them by the Islamic world.

Mr. Levant knew exactly what he was doing. He cries foul, but his is the cry of one who makes the fatal mistake of pretending to be above the law.

Did Mr. Levant cross a legal line by publishing the offending cartoons, or by republishing them earlier this week? Did any of his comments before the Commission, now published on YouTube for the world to see, cross any lines?

Maybe. Maybe not.

That, as a matter of law, is now up to the Commission, and perhaps, appellate courts to decide.

As always, the Commission will fulfil its legislated mandate. That is its statutory role. Some readers get angry with me for noting that reality, but I will note it again, nonetheless.

Let's be clear - the Commission is not on trial here.

What is on trial is Ezra's Law.


UPDATE: January 17, 2008

I appreciate the many comments to this post, many of which are quite thoughtful. I entirely agree with the many persuasive arguments raised in favour of treading very carefully, indeed, with respect to anything that purports to limit freedom of expression in Canada.

Many of the commenter' arguments raised are largely in line with the Supreme Court of Canada's 1990 decision in Canada (Human Rights Commission) v. Taylor, which, to some extent, defined the balancing of interests necessary in the consideration of these kinds of cases. I will again excerpt from the slim majority's ruling:

58 I find it helpful to address the question of whether s. 13(1) minimally impairs the freedom of expression by examining in turn the arguments marshalled by the appellants and the CCLA in support of striking down the section. One of the strongest of these arguments is the complaint that the phrase "hatred or contempt" used in s. 13(1) is overbroad and excessively vague. Specifically, it is said that the wide range of meanings available for both "hatred" and "contempt" extend the scope of the section to cover expression not causing the harm which Parliament seeks to prevent. Additionally, the appellants contend that the process of determining whether a particular communication is likely to expose persons to "hatred or contempt" is necessarily subjective, leaving open the possibility that in deciding whether a complaint is well-founded the Tribunal will fall into the error of censuring expression simply because it is felt to be offensive.

59 When considering the scope of the phrase "hatred or contempt", it is worthwhile mentioning that the nature of human rights legislation militates against an unduly narrow reading of s. 13(1). As was stated by Lamer J. in Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, at p. 158, a human rights code "is not to be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law". I therefore do not wish to transgress the well-established principle that the rights enumerated in such a code should be given their full recognition and effect through a fair, large and liberal interpretation. At the same time, however, the purposive definition to be given a human rights code cannot extend so far as to permit the limitation of a Charter right or freedom not otherwise justified under s. 1.
60 In my view, there is no conflict between providing a meaningful interpretation of s. 13(1) and protecting the s. 2(b) freedom of expression so long as the interpretation of the words "hatred" and "contempt" is fully informed by an awareness that Parliament's objective is to protect the equality and dignity of all individuals by reducing the incidence of harm-causing expression. Such a perspective was employed by the Human Rights Tribunal in Nealy v. Johnston (1989), 10 C.H.R.R. D/6450, the most recent decision regarding s. 13(1), where it was noted, at p. D/6469, that: In defining "hatred" the Tribunal [in Taylor] applied the definition in the Oxford English Dictionary (1971 ed.) which reads (at p. 28):
active dislike, detestation, enmity, ill-will, malevolence.

The Tribunal drew on the same source for their definition of "contempt". It was characterized as the condition of being condemned or despised; dishonour or disgrace. As there is no definition of "hatred" or "contempt" within the [Canadian Human Rights Act] it is necessary to rely on what might be described as common understandings of the meaning of these terms. Clearly these are terms which have a potentially emotive content and how they are related to particular factual contexts by different individuals will vary. There is nevertheless an important core of meaning in both, which the dictionary definitions capture. With "hatred" the focus is a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one "hates" another means in effect that one finds no redeeming qualities in the latter. It is a term, however, which does not necessarily involve the mental process of "looking down" on another or others. It is quite possible to "hate" someone who one feels is superior to one in intelligence, wealth or power. None of the synonyms used in the dictionary definition for "hatred" give any clues to the motivation for the ill will. "Contempt" is by contrast a term which suggests a mental process of "looking down" upon or treating as inferior the object of one's feelings. This is captured by the dictionary definition relied on in Taylor ... in the use of the terms "despised", "dishonour" or "disgrace". Although the person can be "hated" (i.e. actively disliked) and treated with "contempt" (i.e. looked down upon), the terms are not fully coextensive, because "hatred" is in some instances the product of envy of superior qualities, which "contempt" by definition cannot be. [Emphasis added.]

61 The approach taken in Nealy gives full force and recognition to the purpose of the Canadian Human Rights Act while remaining consistent with the Charter. The reference to "hatred" in the above quotation speaks of "extreme" ill-will and an emotion which allows for "no redeeming qualities" in the person at whom it is directed. "Contempt" appears to be viewed as similarly extreme, though is felt by the Tribunal to describe more appropriately circumstances where the object of one's feelings is looked down upon. According to the reading of the Tribunal, s. 13(1) thus refers to unusually strong and deep-felt emotions of detestation, calumny and vilification, and I do not find this interpretation to be particularly expansive. To the extent that the section may impose a slightly broader limit upon freedom of expression than does s. 319(2) of the Criminal Code, however, I [page929] am of the view that the conciliatory bent of a human rights statute renders such a limit more acceptable than would be the case with a criminal provision. 62 In sum, the language employed in s. 13(1) of the Canadian Human Rights Act extends only to that expression giving rise to the evil sought to be eradicated and provides a standard of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity. Moreover, as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of feeling described in the phrase "hatred or contempt", there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section. (emphasis added)

As I noted in my conclusion to this post, I do not know whether Mr. Levant has crossed any legal line. That will be for the tribunal to decide, if the case proceeds beyond this stage. If nothing else, Mr. Levant wishes to test or challenge this very area of law, and he now has his opportunity.

I also will reiterate my thought that Canada will benefit from further definition from the appellate Courts on how the Supreme Court of Canada's comments are to be interpreted in a modern, internet environment. I have said as much in prior posts:

Having reviewed much of what has been written, including Ezra Levant's summary of recent tribunal decisions in the National Post, my impression, however, is that our human rights tribunals have at times been inconsistent and unduly restrictive in deciding freedom of expression cases.

That is probably as much due to the absence of any genuine guidance from the Supreme Court of Canada since 1990's Canada (Human Rights Commission) v. Taylor, as any other factor.

There is a proper, but narrow role for human rights tribunals in dealing with the strongest and most noxious instances of hate speech, as originally intended. That is the law in Canada, as resolved by Taylor, and as a matter of public policy, I believe it to be a justifiable limit, to be employed in extreme, rare cases.

The human rights commissions' terms of reference badly require clarification by the courts to redefine their functions in a modern, internet-based communications universe. The primacy of the Charter of Rights in freedom of expression cases that come before the tribunals would benefit from judicial restatement.

While much of the ongoing discussion of human rights commissions has been devisive and polarized, I continue to view our Human Rights tribunals and Courts as well able to handle the challenge of striking the appropriate balance.

Finally, it has come to my attention that a few writers have inaccurately characterized my comments in the above post as somehow "calling" for specific professional sanction againt Mr. Levant. My post did not take that position.

My comments did, however, underline my sincere view that there is nothing appropriate about calling a Human Rights Commission investigator a "thug" in the midst of an investigation.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: