FTA Lawyer

Tell someone who has had their identity stolen and used repeatedly for fraudulent purposes that non-violent offences are "victimless crimes". Or how about a single mom barely getting by who gets her car stolen and can't drive to work and loses her job. Or maybe the family who has thier son or daughter killed in a car accident where the other driver was criminally negligent and fell asleep because he'd been driving for 36 hours with no rest. Seriously, you made a big blunder with that comment...if I were you I'd actually post a retraction. As for the rest of your post it makes equally little sense. You complain about the notion of being found guilty of being guilty where a 3rd-time violent or sexual offender gets slapped with an onerous special punishment...but then you turn around and basically say that every offender should get the onerous and special punishment from the outset. If "each case should be considered seperately and judged accordingly" as you say, then how does that reconcile with the opinion that [all] "violent offenders should receive a duration of natural life sentence..."?!? Either sentences should be individualized to deal with the particular circumstances of the offence and the offender...including early parole for those who demonstrate they deserve it (as is currently our practice) or everyone who commits an offence gets thrown in jail for the rest of their life...with no parole regardless of how much they rehabilitate in jail. You can't have it both ways. FTA

Indeed. Perhaps this suggestion should be limited to physical offences? As I read the article, this new three-strikes law would apply only to persons convicted of three sexual or violent crimes, so the worry about property offenders getting caught up in this should be non-existent. I'll have to wait to see the bill before I'll weigh in on whether or not I think it's Charter-compliant. However, I will say that if the article is accurate that a person will "automatically" be a D.O. and then they have to argue their way out of it, this may be problematic. While it seems like a subtle distinction, in my view, the legislation would have to stop at a presumption in favour of the designation. The Crown would still carry the overall burden of establishing the person to be a D.O., but they would get a head start so to speak with the presumption based on the third conviction. This would mean there would still need to be a full hearing and the Crown would have to win it...not just sit back and watch the offender flail at trying to displace the automatic designation. Overall, if done right and with sufficient procedural fairness, I can't see why such a law couldn't pass Charter scrutiny. We do have reverse onus in particular situations for bail applications (including where an offender allegedly commits a crime while already on bail) We'll wait and see what the proposed law looks like I guess... FTA

The SCC has routinely refused to interpret legislation absent a "live dispute". The concept of "mootness" is centuries-old in our system. Without a factual foundation on which the legislation can be tested, the SCC would have to try to invent all of the possible scenarios that could arise in order to make some kind of decision about the constitutionality of the law. Furthermore, what of the little guy (or the independently wealthy for that matter) who comes across a situation in real-life that wasn't contemplated by the SCC in its 'pre-authorization" of the law? He would have no choice but to convince the SCC to hear his case because all the lower courts of the land could do is say..."we're bound by the SCC and the SCC has already said this law is good." As we have it today, a lowly Provincial Court judge can strike Federal legislation if it is contrary to the Charter. If the Government appeals cases on the basis of issues of national importance which go beyond the original dispute, it is common place for them to pay the costs of the little guy who is forced to be a respondent. So, in other words, for a $200.00 filing fee, some time of your own and possibly paying a lawyer a couple thousand, anyone in this country can ask a court to strike a bad law...that's pretty damn good access to justice at first instance. Yes, appeals get expensive, but we also have a remarkable Legal Aid system for most matters as they move up toward the SCC. The current status quo is far better than the notion of SCC pre-approval of every law. As already mentioned above, we'd need to have a few more than 9 justices for such a system (I'd peg it at about 75...I mean, don't you realize that there are already dozens of lawyers employed by every prov. and fed. gov't. whose sole job it is to evaluate legislation for constitutional compliance?!) This is a really bad idea. FTA

I have a client charged with breach of probation for failing to complete a course that he is required to do as part of his probation. Our defence at trial? His probation isn't over until March of 2007...he still has time to complete the course. I'll let you know when he's acquitted. FTA

Funny thing about nine judges arbitrarily deciding people's fate is that they are always wrong depending on if you agree with them or not. Even funnier is when you get a 5-4 split decision...meaning the persons' fates are able to turn completely full circle on nothing more than the whim of a single judge. This is why I have argued in the past that there should need to be a weighted majority for Supreme Court decisions. As to the question of the thread, I find it really difficult to see how a decision declaring abortion to be constituionally illegal could stand up to scrutiny. That being said, I don't profess to have the answers when it comes to the U.S. Constitution...which is very different in many respects to the Canadian version. FTA

In my line of work we call this a "media stunt"...to further a personal agenda likely due to a pointless butting of heads between mom and some teacher or school board official who don't like each other. The reality is that every little thing that happens will lead to a complaint to the School Board...because some parent will consider their child aggreived by any decision that somehow acommodates another child. So, the doctor's note is an ass-covering step for the Board...we allowed the dog becuase it is medically necessary. And the doctor's note is no hoop or obstacle whatsoever to the kid or his mom...one phone call to the kid's doc leads to an immediate fax to the school and presto...crisis averted. This story is a non-story...something else is going on behind the scenes between mom and someone on the other side. FTA

Criticising someone for a friendly fire incident (or for their record of such incidents) is one of the worst examples of kicking someone while they are down as part of an overall punishment for being heroic so that you and I don't have to be. While we get force-fed a diet of nicely cropped and queued videos of smart-bomb detonations we very quickly forget that the operators of the billion-dollar war machinery are all still people...humans who make mistakes. Personally, I don't see much difference in a friendly-fire accidental bombing from an historical order to go "over the top". The fact of the matter is that in any war, each side will kill its own soldiers...not by design, but by the nature of the exercise. "War is hell" (and I can only speak from things I read or hear...not experience) and all of us who would like to play "armchair General"...particularly in 20/20 hindsight over friendly fire...ought to either enlist or kindly shut up. FTA

I'm confused by Charles' and Augusts' posts criticising government involvement in private markets and denouncing Soviet-Union like economic situations in a thread calling the Klein gov't incompetent... Klein has suffered some of his biggest fire-storms of public outcry because he got out of telecommunications (privatising Alberta Government Telephones...now known as Telus) deregulated electricity (leaving it to private market forces to dictate the price) privatized most secondary "government services" like vital stats & motor vehicle registries, has built many public projects through "P3 Partnerships" which effectively have the government share costs with private corporations who ultimately become landlords or other interested stakeholders, refused to bow to a huge lobby looking for government auto insurance, opened the way for private surgical and diagnostic imaging facilities, lowered corporate tax rates and attracted an unprecedented wave of corporate head offices moving to Alberta etc. etc. I'm not sure what info. the Sun columnist relies on for his portrayal of Alberta as having an out of control ballooning government (because he cites no such info...a la top-notch Sun journalism standards) and I'm not sure what government interefernce with private enterprise Charles and August are pointing to...but I'm pretty sure that if not for Klein's favour toward private enterprise instead of governments doing business, we would have far more government departments, employees, and interference with the marketplace than we do today in Alberta. FTA

Relax, I'm not saying you were against it. It just doesn't seem like the kind of thing that one would take frequently. And your repeated use of the word "constantly" leads me to beleive that the only people who take this are irrespopnsible sluts who screw like bunnies pop these pills like Pez. In other words, you might not be against it, but your definitely judging anyone who would need it. As for the cost issue: mistakes happen and I'd rather pay for that than cover the social costs of an unwanted kid. Have a limit like any insurance plan would... you get it twice a year, more than that, and you do hard labour for it? Shouldn't be my money funding people's irresponsibility. PLEASE tell me this pun is intended...LMAO!!!!! FTA

I'd be lying if I said that nobody intentionally delays their guilty plea so that they can build up time at 2 for 1 rather than straight time once sentenced. This is ususally guys who have committed relatively minor crimes who are looking at relatively short jail sentences (most often less than 6 months). Actual prison time post sentence is significantly easier time to do than remand time pre-trial so most guys who are looking at a few years try to get sentenced as soon as possible. As to the incentive for judges or prosecutors to expedite cases...I'm not sure how the 2 for 1 rule makes any difference to them one way or the other...and I guess maybe that's all you are saying. Where the incentive exists for prosecutors and judges is in the Charter right to a trial within a reasonable time. On my website, I wrote a blurb about the Askov decision noting that where cases drag on too long, they get tossed out completely...and in the Askov case it was some 50,000 cases all at once! Believe me, Crowns and the Court are keenly aware every time an adjournment request is made that each bit of delay might ultimately lead to the case being tossed...so they watch such delays pretty closely in most cases. FTA

You ask a good question. I have a better one.Why do we give double time served ??? The two issues go hand in hand. Cutting the time served provides some semblance of an incentive on the part of prosecutor to mete out justice promptly. How else would YOU have it?? We have regulations as to how long it should take for a case to get to court and courts have set precedence as to what is fair. So as long as that time frame has not been breached then it should be one for one day. Do double time served after that until the subsequent court appearance when the clock would restart. Any time the defense is the cause for the delay it should be day for day. 2 for 1 credit is based almost solely on the fact that pre-trial custody is part of your total sentence...when you are sentenced, you are entitled, by law, to earned remission. That is, provided you behave well you will have your total sentence reduced as an incentive. During the time you are in pre-trial custody you are not getting earned remission because you are not yet sentenced...therefore, in order to account for that, the convention is to give 2 for 1 credit for pre-trial custody. Other factors are also included in the analysis, like that on a Remand unit you can't get access to programs or services like you can once sentenced and you are often on 23 1/2 hour lock-up so the time in pre-trial custody is significantly "harder" than once sentenced. On the issue of giving 2 for 1 credit or not, I've written a couple of posts about it a couple of months back: Calgary Criminal Lawyers' Weekly As to typical trial times... A murder case would have a preliminary inquiry followed by the trial. There are often lots of obstacles to getting all of the evidence organized for trial so it takes time. In Alberta, the Court of Appeal recently re-stated the acceptable time limits as being 3 to 5 months to complete the pre-lim. and another 3 to 5 months to complete the trial where the accused is in custody. Absent extraordinary circumstances, or delay caused by the accused longer than that to get to trial will mean the case will be thrown out as a violation of the accused's Charter rights to trial within a reasonable time. FTA

I am not sure I buy the fraud on the part of the crown argument. This letter from the Governor to the Six Nations chiefs on the 15th Jan 1841 gives a lot of insight into the politics surrounding the transaction. This final deal required all of the Six Nations people to agree to move from settlements scattered all over the Grand River lands onto a concentrated reservation (probably something close to the current reservation). This transaction could not have completed without the complete co-operation of Six Nations people at the time. Even without the complete set of signatures couldn't the fact that all Six Nations chiefs co-operated with the terms of the transaction be used to argue that it was a legimate transaction? Sure, actions of acquiescence can effectively preclude someone from later arguing a legal defect in a contract...and I certainly don't know how the whole thing would play out. When I advise a client about whether or not to go to trial it is a risk / reward assessment...and in this case, my advice is settle out of court if possible. The risk is too high for both parties really. And as for reading too much into the written documents, be careful. The oral history tradition of aboriginals has been acknowledged by current common law so again, whether we like it or not, we cannot characterize the events and negotiations of the day simply by referring to letters written by one side (especially when the other side didn't write letters). Don't get me wrong, as a lawyer it is very difficult to accept "oral history". Our whole system is built around not accepting such heresay evidence as it is unreliable. I have seen people tell a story on the witness stand about an event that happened only a year ago and tell a remarkably different version than what they themselves wrote down at the time the event occurred! That being said, to come into a land where no one writes (and even if they did it wasn't English!) and then write a whole bunch of letters outlining the relationship between two groups and rely on those letters as total proof of the parameters of the relationship seems a bit like self-serving "bootstrapping". Especially if the non-writing party is all the while verbally shouting that they don't agree with what is being written... There are fair solutions that can be worked out here...meaning both sides are going to have to give (or take) something that they don't want to. Nobody can reliably tell us what was intended by conversations / ambiguous documents from hundreds of years ago...we can make good educated guesses, but in the end, we are all left guessing. The bottom line for me is that the Six Nations people have very likely been given an unfair short end of the stick. Even the letter you post above shows the Crown agents telling the "Indians" that's its really best for them if they surrender their lands to the Crown. Did the "Indians" have some different view that was just ignored? We'll never know. That being said, none of the current landowners were the ones who screwed the Six Nations people so screwing them now would be wrong. Six Nations should get a monetary settlement (possibly including some other available lands) which is reasonably workable, an acknowledgement that hundreds of years ago some representatives of the Crown probably failed to truly protect their interests, and all of this should in large part be contingent on them ending their occupation of the lands and respecting the laws of Canada and the orders of Canadian Courts. Every day that Six Nations continues in its lawless behaviour gets Canada one day closer to Canada walking away from the treaty and its sense of obligation to try to right an historical wrong. FTA

There is no short answer to your question. In a Torrens land title system like we have in Alberta, the certificate of title reigns supreme with respect to actual ownership of the land. The government guarantees that anyone who has been screwed somehow out of their property will get a payout from the public purse, but the title holder is the owner and no one can legally "go behind" the title. In some Eastern Provinces (at least when I was in law school) there still existed a system where lawyers or notaries had to actually research the title, finding all of the paperwork stored in peoples shoeboxes etc. to prove the chain of title lawfully passing...and if your lawyer screwed up, someone could come along and prove better title than you and actually get the property. Unfortunately, I can't tell you off the top of my head what the status is of any of the provinces other than Alberta. Further, the concept of land ownership for aboriginals has never been the same as ours, so like it or not it will always be treated somewhat differently. Furthermore, the Six Nations situation seems to be particularly unique due to the proclamations of the land in question being very much different than a standard setting aside of some reserve lands as part of a more typical treaty. Add in the possibilities of fraud by Crown agents and my gut feeling is that the Confederacy claim is likely the best one out there. I don't really think that they will walk away with the land (out from under the current residents) or with a trillion dollars, but I really would not want this one decided by a judge...negotiation is the key...it will be the best chance of both sides going away partial winners rather than finding an outright winner and an outright loser. As for your hypothetical, the law would absolutely distinguish between a scenario where the gov't. was duped by fraudsters just as much as the Six Nations as opposed to one where the gov't. conspired with the fraudsters to screw the natives out of their land. Again though, probably just amounts to an increase in quantum of a "fair settlement" at this stage, and not any meaningful difference in the form of settlement. FTA

The law has never been able to force someone to be a good parent... FTA

I can't believe the keyboards we're wearing out on this one! Want the bottom line? Is Harper being up North an excuse to miss the conference? You bet it is. Is it a better excuse than Cretien had being on a fishing trip? You bet it is. Does it look good for a leader to personally attend something like this? Probably. Does it actually serve any useful purpose? Not really. Does Harper deserve some bad press for not going? Probably. Would Harper have got any good press if he came? Nope. Best political move he could have made is exactly what he's doing. Stay away from the hostile environment, but actually be doing legitimate work. Really, no one, not even the NDP will bring this up in the next election campaign. It's a tempest in a teapot. FTA

FTA, I as well have spent hours reading the history and have not come to the same conclusion as you mention. I would be curious to read some of your research that indicates that the Plank Road Lands, which Douglas Creek Estates is part of (1/2 mile on either side of the Plank Road for 6 miles on either side of the Grand River), were not part of a valid land surrender. If you could forward any links that support that position, it would be appreciated...as I have not found a lot in my quest for both sides of the issue... Here are a couple of sources of information that I have read (FYI)... http://www.citizensofcaledonia.ca/PDFDocum...imResearch2.pdf (someone's listing of a bunch of Google links) http://www.citizensofcaledonia.ca/PDFDocum...FileNo40695.pdf (a review of the Six Nations claims and the government's Statement of Defence to those claims) I didn't collect / record the links of the sites I researched...but I might be able to find a few of them on my other computer...if I can I'll post them. One of the more interesting things that I came across was with respect to the "lawful surrender" of much of the disputed lands. The article I read described how basically any where from 15 to 50 Six Nations representatives were signatories on almost every document they've ever signed with the Crown, and on the lawful surrender docs. only 6 signed. The writer of the article posed the rhetorical question of why on likely the most important land transaction to date would only 6 people sign and then it turns out that the authority of those 6 people is in question? Sometimes things don't pass the "smell test"... FTA

Sorry...maybe I missed it...there are so many threads on this issue that I can't keep track! FTA

Bluejay, Sorry, I'm unilingual, so all I can say is Welcome... I take some exception with Charm's opening remarks. I'll grant that a number of "non-natives" are demonstrating some level of ignorance and consequently what comes across as prejudice...but racism is unfair for most. Being racist in the context suggested imports intent and as you can imagine if someone is ignorant (i.e. uninformed) they may present as prejudiced in spite of the fact that they hold no racist beleifs. My criticism is that a number of the "natives" repreatedly shout ignorance...and make no attempt to inform. I hope that you will take the approach of strongly advancing your views, but actually helping people who don't know the facts or nuances of an issue to learn them...not just tell them over and over that they are ignorant. I jumped into the various Six Nations threads by saying that I spent hours reading up on the history of the dispute and stating that in my view Canada should not be fighting this fight as I saw considerable merit in the Confederacy's claim to the lands in question as well as considerable merit for the proposition that they were allies and not subjects of the Crown. The response I got from one native poster was basically to be told that he didn't ask for my opinion, didn't want to hear what I had to say and indeed told me I had no idea what I was talking about and that the natives had plenty of lawyers far better than me so I should mind my own business. When I expressed surprise and dismay at this response...not a single other "native" poster bothered to even comment. Given that I was supporting their position I was completely dumbfounded. All I ask is that you have the same open mind that you hope to find here and I'll be glad to have you around. FTA

One of the biggest problems with what you suggest is that there continues to be a inexplicable lack of evidence that jail time actually works as a deterrent...in first instance or to prevent recidivisim. In a situation where this guy is an otherwise law-abiding first offender it is difficult to support the argument that jailing him is going to lead to a better outcome in the end. You need to be mindful that on a 12-15 month jail sentence as the Crown was seeking, this guy would have access to little or no counselling / treatment, AND, he would be kept on a unit with all of the other sex offenders left to discuss amongst themselves how to behave in society once they get out. Jail for criminals often makes the public at large feel better, but it is only because in their minds the sentence is the conclusion of the matter. For the virtually all first offenders, their sentence is just the beginning of who and what they will become to society once they get out. If this guy shows promise to put his abhorrent actions behind him (that is, to rehabilitate and never commit another crime) then making him live with pedophiles and rapists for a year is hardly better for society than putting him on a CSO (but don't forget, I still think the CSO he was put on was too light on conditions). FTA

The "Justice System" includes appeal courts all the way up to the SCC. It is not fair to call the justice system broken every time there is an error made. The sentence seems light to me...but not necessarily because it is a Conditional Sentence Order (CSO). I could accept a CSO is appropriate, but there certainly ought to have been alcohol and anger management counselling along with community service hours etc. That being said, for every case that seems to be an affront to justice (which are the only ones we hear about) I can show you 100 where the right outcome occurs. Don't go shouting the sky is falling because some reporter trying to sell papers has told you that it is. FTA

Canada is NOT a sovereign state. Six nations is. And the Crown's sovereignty is limited by the Royal proclamation and the Haldimand Proclamation. The Crown never held sovereignty over these lands by their own declarations! The fact that Canada refuses to recognize Six Nations' sovereign right becomes irrelevent since the Crown does and even prescribes that those rights exceed the right of Canada in the Charter of Rights and Freedoms. We are a sovereign and independent state. You neighbour doesn't have and land. He's actually standing on my land and try to asser t I have no right to it. O:nen Okay, I'll bite...explain to me how Canada is not a sovereign state. And while you're at it, explain how the Crown could pledge land to your people via the Royal and Haldimand Proclamations if, as you claim, the Crown never held sovereignty over said land. Oh, and why don't you address the actual point from my last post... You said the U.N. would never accuse Six Nations that their attempt to assert sovereignty was unlawful. I pointed out how both the League of Nations and the U.N. have refused to recognize the Six Nations purported sovereignty. You responded by telling me that Canada (who, I dare say is generally accepted by the UN to be a soverign nation) has no sovereignty and Six Nations does. Sounds like you are invoking the compelling "I know you are, but, what am I" method of argument... FTA

Well, actually........ Here's the full paper: The Six Nations: A Neglected Aspect of Canadian Legal History I can stand in my neighbour's yard and declare it my sovereign territory...doesn't make it so... FTA

Nope. We're demanding equity (not equality - we're not interested in joining your society or your corporate business you call Canada). O:nen It is very interesting indeed that you would describe what you seek with reference to a term that not only can be defined as "natural justice", but shares its name with the ancient British legal doctrine of legal fairness. It is equally interesting that it further supports my previous posts about following the treaty if you want to enforce it. One of the legal principles of equity is known as the "clean hands doctrine". As defined by Black's: The principle that a party cannot seek equitable relief or assert an equitable defense if that party has violated an equitable principle...such a party is described as having 'unclean hands'. International law will not look to grant the Six Nations equitable relief if they continue to conduct themselves with outright defiance to civility and the rule of law. FTA

I think if you read the links more closely, you will find that there was a comittment to do no harm to one another and to work together. There was also a committment to fight back the more radical claims of the Oneida Wisconsin. I'm sure if you read the agreements between out two nations you'll find we are called your "friends and allies"! Who stopped being friends and allies with who? I can't say I've ever met a member of the Confederacy so it belies an argument that anyone now living (other than the current rogues of Caledonia...on both sides) has done anything to breach the historical treaties. In my view, it serves no useful purpose to try and assign the blame that rightfully belongs to an ignorant British Royal from 300 years ago to the current "non-native" citizens of Canada. There is a big difference between present-day Canada being responsible for its past wrongs and present-day Canadians being accountable as the perpetrators of those wrongs. Your statement underscores the point I have made earlier about the need to honour the spirit of the treaty if you want to rely on the treaty. The old adage is that two wrongs don't make a right (the dual meaning of the phrase in this context is scintiliating!). I am prepared to accept that Canada is clearly in breach of its obligations to Six Nations under the Haldimand Proclamation (and Simcoe and any other subsequent pledges). Six Nations would like to enforce their rights as set out in that treaty...which I again accept. BUT...the treaty does impart an acknowledgment of two nations working as "friends and allies" as you have noted above. You cannot seek to uphold only the terms of the treaty that you like while simultaneously breaking the treaty yourself. What about the current Six Nations actions in Caledonia speaks of treating Canada like a "friend and ally"? I actually meant what I said before that Canada may very well need Six Nations to continue its lawless occupation and contempt of "our" court because if both sides by conduct can be shown to have repudiated the treaty then neither will be bound by it anymore. I hate to use an analogy that suggests violence is where this dispute is going, but you didn't hear the Japanese attempting to enforce its agreement not to go to war with the U.S. after they bombed Pearl Harbour nor did the U.S. talk about enforcing the same agreement after nuking the island. The behaviour of both parties in repudiating the agreement meant that it was voided and that a new negotiated settlement had to be reached. I recognize that the lawsuit process has been long and drawn out and I will even go so far as to say that I understand Six Nations feeling they needed to get the government bureaucracy to get off its metaphorical ass to actually resolve the issue. Mission accomplished...now end the fiasco, comply with Canadian laws and court orders and move off of the muddy field and into the boardroom and get your entitlement. If the government bull-shits around again, they can't say they didn't have fair warning about what you'd do (i.e. re-occupy the territory) Start acting like friends and allies again (in spite of the fact that Canada has not done a very good job of doing so for the last 200 years) or you risk losing not only a moral but a legal claim to rely on the treaties that establish your entitlements. FTA

Why not try to explain to those who don't appear to have their facts straight how your situation is different from a number of other aboriginal groups across Canada. That is, many treaty status indians in our country receive regular payments from the federal government (the infamous "treaty cheque") have their health, university etc. etc. fully paid for by taxpayers, and are tax exempt themselves for a number of otherwise taxable items. If this is not the case for you and other Six Nations members...just explain that...I expect that a number of the posters here will then change their tunes. The purpose of intelligent dialogue should be to inform and educate, not ridicule and offend by calling people stupid half-brained discriminatory rascists...really how does that help you get your message / position understood and accepted? FTA