A court explains minute differences

A man, reaching for a water bottle,  drove his car "some 20 metres" over a bike lane and onto a sidewalk killing a pedestrian in East Toronto.  He was charged with dangerous operation of a motor vehicle causing death. The Ontario judge set him free explaining, "We cannot hold drivers to a standard of ideal decision-making when making split-second decisions." He found the defendant had made an "imprudent but reflexive decision."

Thus the court differentiates between a split-second decision and a reflexive decision.

Following the reasoning of the Supreme Court of Canada in 2008, the judge acknowledged that taking his eyes off the road was a "departure from what a reasonable prudent driver" would do in the situation, but it was not "a marked departure" from that standard.

Thus the court differentiates between a reasonable departure and a marked departure.

The learned judge went on to explain the difference. The provable period of inattention by the driver was between 0.74 and 1.18 seconds.  The court allowed that this "minuscule period of inattention" qualifies as a "momentary lapse of attention" and therefore not criminal.

Thus the court differentiates between "a minuscule period of inattention" and "a momentary lapse of attention."

How thin can our courts slice legal baloney?

In all this, the trial court accepted the uncorroborated statements of the defendant. He may have been doing something else besides, or in addition to, reaching for a water bottle.

"To kill the Indian in the child" -- never uttered

I recently criticized the Toronto Star for its editorial use of the odious expression "to kill the Indian in the child."  The basis of my objection was the Star's placing these words in quotation marks and failing to attribute them to some actual person.

This occurred in the midst of the vacuous debate of whether the Indian residential schools constituted cultural genocide. The Chief Justice of the Supreme Court of Canada, Beverley McLachlin, waded in thereby shedding her robes of judicial impartiality and exposing the legal activist.

Toronto Star apologist Cathy English replied with an excerpt from a speech by Stephen Harper where he used phrase again in quotation marks, again without attribution. On occasion the expression was attributed to the poet Duncan Campbell Scott, long-time Superintendent of Indian Affairs responsible for the residential schools.. Worse still, one correspondent claimed it appears in Canadian legislation.

Statements in quotation marks must be the exact words uttered by an attributable source. Neither the Star nor the Prime Minister followed this essential rule.

For the record, an excerpt from Conversations with a Dead Man; the legacy of Duncan Campbell Scott by Mark Abley:

"But the offending phrase is not Scott's. He never used those words. Neither did any other Canadian official. The quotation can be traced back to a somewhat different statement uttered by a high-ranking officer in the U.S. Army, Richard Henry Pratt, the nineteenth-century superintendent of a residential school in Pennsylvania: 'All the Indian there is in the race should be dead. Kill the Indian in him and save the man'."

Human rights commissions for fun and profit

Published in the Toronto Star:

Only history with show the correctness or otherwise of the Supreme Court's recent decision against Saguenay's recitation of a prayer before city council meetings. 

Salient in this issue is the role of the Quebec Human Rights Commission. The objector to the council prayer appealed to the commission and demanded $100,000. He was awarded $30,000 in compensatory and punitive damages.

Human rights commissions have become cash cows for the aggrieved, imagined or actual, a situation now endorsed by the Supreme Court. There are those who earn income conjuring up or creating causes of action before these tribunals, the complainant's costs borne by taxpayers. The accused must hire his own defence. 

Were there no pot of gold at the end of the rainbow, one wonders how many complaints would be made to such tribunals. 

Supreme Court Okays Death on Demand

On February 7, 2015, the Supreme Court of Canada jolted downwards the quality of health care in Canada. It approved death on demand. Doctors capable of aborting healthy babies would not hesitate to sign death warrants for the terminally ill, the chronically ill, the mentally ill and the disabled.

Then we have the intervention of human rights commissions and their authority to override Supreme Court decisions and parliamentary restrictions. Spurts in the floodgates are already evident in some European countries where there is currently a demand for lethal injection from a clinically depressed teenager and a healthy prisoner serving a life sentence.

Would denial violate constitutional and charter rights to equality before the law?  Restrictions were once in place against abortion on demand. Remember what our Supreme Court did in that case and what Parliament failed to do. Members of the highest court in the land are out of touch with reality (not for the first time) if they believe restrictions can work.

The Law versus Public Interest

We, "the great unwashed outside the law" continue to marvel at the "entanglements of the law".

The current case in point concerns a company that polluted the ground, and then vacated the site. A court said the the public must pay the estimated $50-100 million to repair the corporation's damage to the environment.

In its decision, seven of the nine Supreme Court of Canada Justices bowed to the legal mumbo-jumbo that lets corporations hide behind the law, regardless of public interest.

The Court majority ruled that the province of Newfoundland and Labrador must get in line with other creditors, and share in whatever may be left in the coffers of insolvent AbitibiBowater Inc. In other words, public interest -- the taxpayer -- has no more status than corporate debtors.

One of the Justices wrote, "[T]he province's position would result not only in a super-priority, but in the acceptance of a 'third party pay' principle".  Absolutely correct, and that would be a good thing.

The law must be reformed to establish a common sense hierarchy for the droppings of fugitive corporations. The first claim on the remaining assets belongs to workers, regardless, whether in the form of wages, pensions or other entitlements. Next in line is the tax-paying public as represented by the government. After that, the banks and other corporate lenders. At the end of the line are shareholders.

Note. "The great unwashed outside of the law" was how a law school dean once described to me his opinion of the  general public. "Entanglements of the law" was Winston Churchill's description of the law process.

Feb. 2, 2013.  In the unrelated case of Indalex Ltd., the Ontario Court of Appeal ruled that the pensions of the firm's retirees were entitled to a share of the the remaining assets.This, because the company had breached its duties to its retirees by failing to keep its pension plans fully funded, and failing to give proper notice that it was seeking bankruptcy protection.

The Supreme Court of Canada (SCC) did not like that decision, and reversed it on the grounds of hardship for the company to re-define itself. While some lawyers cheered this socially immoral decision, another described it as "leaving more room for potential abuse of the bankruptcy system."  A former Indalex executive, whose pension was cut in half by the SCC claimed, "To allow this pension plan to be underfunded  is an indictment of the whole system."

The same might be said of former employees of the late Nortel Networks Corp. who were left with little after the firm went bankrupt due to corporate malfeasance for which no one was punished except employees and shareholders.