Supreme Court of Canada Refuses to Hear Lawyers Who Argue “Gonzo Logic”

GeorgiaLeeLang025While President Trump’s opponent are having a large-scale melt-down over his recent appointments, perhaps the most consequential of these appointments is his nomination of Justice  Neil Grosuch to replace the late Justice Scalia on the United States Supreme Court.

But lest you think that Canada’s judicial appointments lack the intensity and angst of our American friends, you need only refer back to Prime Minister Stephen Harper’s appointment of Federal Court of Appeal Justice Marc Nadon to the Supreme Court of Canada in 2013.

You may also recall that Ontario lawyer, Rocco Galati, challenged Mr. Harper’s appointment by filing a lawsuit against Mr. Harper, the Governor-General, Justice Nadon, the Attorney-General, and the Minister of Justice, which undoubtedly prompted the government’s prompt action to have the Supreme Court of Canada issue a ruling on Justice Nadon’s eligibility for our highest court, this after he had already been appointed.

The argument against his appointment was that Mr. Justice Nadon, as a  Federal Court judge, was not qualified to represent Quebec on the Supreme Court of Canada, despite his long tenure as a lawyer in Quebec.

The eventual outcome confirmed Mr. Galati’s position that Judge Nadon was not eligible, a surprise to the Harper government who had contrary opinions from two retired Supreme Court of Canada justices and several constitutional experts.

Most of this has been long forgotten by Canadians, but Mr. Galati’s 2016 application to the Federal Court of Appeal to be paid $800.00 per hour by Canadian taxpayers for his legal work in bringing this challenge has brought this case back to media scrutiny, particularly in light of the Supreme Court of Canada’s decision this week to refuse to hear the case.

Mr. Galati claimed the sum of $51,706.00 and his co-counsel, Paul Slansky, wished to be paid $16,769.oo, again at a rate of $800.00 per hour.

Both counsel admitted that this is not the hourly rate they normally charge, but this amount reflects their years at the bar and their expertise, a proposition that was soundly rejected by the Federal Court of Appeal in their Reasons.

The Court found that Mr. Galati’s and Mr. Slansky’s request for full indemnity for their legal services, called “special costs” was unwarranted for a variety of sensible reasons. For starters, their litigation did not decide the outcome of the Nadon issue, as shortly after they filed their action, the Supreme Court of Canada stepped in, thus ousting their private action. They were not successful litigants.

As well, “special costs”are only awarded when the opposing litigant’s behaviour has been egregious, even outrageous. Short of that, a costs tariff comes into play, a tariff that is far from reimbursement for all legal costs. Additionally, Mr. Galati and his colleague were representing themselves and were actually in-person litigants, not entitled to costs.

The Federal Court also remarked that experienced counsel would know that if costs were to be awarded, the tariff rules would govern. But the court’s ire was raised in response to Mr. Galati’s argument that the constitution supported his request for special costs and that to deny his claim was to be evidence that the Federal Court was “in bed” with the federal government.  To this audacious statement the court replied:

“It is therefore unnecessary for me to deal with the argument as to constitutional entitlement as it does not arise on these facts. That said, it sometimes occurs that a party makes an argument that is so scandalous that it deserves to be condemned, whether it arises on the facts of the case or not. This is such a case.”

The Court found that Mr. Galati’s  allegation of collusion between the court and the government was “reminiscent of the Gonzo logic of the Vietnam War era, where entire villages were destroyed to save them from the enemy…this argument deserves to be condemned without reservation.”

Regrettably, it is cases like this that lower the reputation of lawyers to right-thinking members of the Canadian public. But “gonzo” aptly describes arguments that are “weird, eccentric and crazy”.

Lawdiva aka Georgialee Lang

 

 

 

 

Bob Dylan: Nobel Prize in Literature and Legal Muse

GeorgiaLeeLang057This past weekend I saw Bob Dylan perform in concert in Indio, California, a musical extravaganza that featured Dylan, Neil Young, the Rolling Stones, The Who, and Paul McCartney, but it was Dylan’s weekend, as he was feted by his fellow artists for his Nobel Prize in Literature. He joins luminaries such as Jean Paul Sartre, Alice Munro, Doris Lessing, John Steinbeck, Albert Camus, Boris Pasternak, Harold Pinter, Toni Morrison, and many others, 113 awarded thus far.

As relevant today as he was in the turbulent 60’s, Dylan’s music and lyrics captured the imagination of a whole generation and became the soundtrack for America’s civil rights and anti-war movements. And his poetry remains as profound today as fifty years ago.

University of Tennessee  Professor Alex Long scoured legal databases for the year 2007 and found that Bob Dylan’s lyrics were cited in Reasons for Judgment 186 times, compared to 74 for the Beatles, 69 for Bruce Springsteen,  Paul Simon, 59; Woody Guthrie, 43; the Rolling Stones, 39; the Grateful Dead, 32; Simon & Garfunkel, 30; Joni Mitchell, 28; and R.E.M., 27.

Several appellate judges in California have said “You don’t need a weatherman to know which way the wind is blowin’ ” from the song “Subterranean Homesick Blues” in reference to the fact that an expert isn’t required to offer an opinion when any layperson could discern the facts.

Even the United State Supreme Court has relied on Dylan’s lyrics to make a point. Chief Justice John Roberts Jr. quoted Dylan’s line “If you ain’t got nothing, you’ve got nothing to lose” from his song “Like a Rolling Stone”.

And the late Justice Antonin Scalia, in a case involving privacy protection for employees that use company email, said “The times they are a-changing’ is a feeble excuse for disregard of duty”.

I wonder if a Judge will ever recite this line from Dylan’s “Hurricane” , Dylan’s ode to wrongfully convicted Rubin “Hurricane” Carter.

“The trial was a pig-circus he never had a chance”

Lawdiva aka Georgialee Lang

Should This Be Stopped? Foreign Mothers Give Birth to Children in Canada to Secure Citizenship

DSC00275_1Canada, the true north strong and free, is the envy of the world and one of its most valuable assets is its citizenship. Before the Harper government left office they made sweeping changes to Canada’s Immigration Act, making it more difficult to qualify for citizenship. Meeting great opposition however, the Conservative government did not tackle  the phenomenon of “birth tourism”, a subject that remains  highly controversial, particularly in Vancouver.

Those who favour birth tourism argue that innocent children, born in Canada to a foreign mother, should not be deprived of the benefits and advantages of  birth citizenship, saying that to ban birth citizenship is a racist response to what is a miniscule practice in Canada.

Kerry Starchuk of Richmond BC, a suburb of Vancouver, is an advocate for a ban on birth tourism. She has organized a petition to raise the issue in the House of Commons this fall. Backed by Conservative Member of Parliament Alice Wong, the petition was posted on-line in mid-June 2016 and quickly acquired more than double the 500 required signatures to be referred to the House of Commons.

The petition favours the elimination of birthright citizenship in Canada unless one of the parents of the child born in Canada is a Canadian citizen or permanent resident of Canada.

Ms. Starchuk’s chief complaint is that her home for 28 years is now bordered by a “maternity motel” for pregnant women from China, one of several such homes in Richmond. Local Chinese newspapers and websites in Vancouver and Asia display advertisements soliciting Mandarin-speaking mothers, and promote the advantages of delivering a baby in Canada, suggesting that having a Canadian child will assist them to obtain citizenship as well.

Services offered include airport shuttles, language translation services, provision of obstetricians, and assistance with birth certificates, child tax benefits, medical coverage,  social insurance numbers, and passport and visa applications. These maternity motels boast of healthy  food prepared by professional chefs and describe  views of the snow-capped north shore mountains from their  facility.

China and Hong Kong are well-versed in the potential exploitation of birth tourism, a phenomenon they struggled with when mainland Chinese mothers travelled to Hong Kong to give birth in order to obtain better health care, Hong Kong residency, and the freedom to dodge China’s one-child policy. Until Hong Kong  passed laws banning birth tourism in 2013, statistics indicate that up to half of all children born in Hong Kong had parents who lived elsewhere.

Immigration lawyer Richard Kurland presents the argument that this isn’t really a  Canadian problem, citing the huge number of foreign workers and long-term visitors to Canada of over a million people per year, compared to 232 births attributed to birth tourism.

I predict that Ms. Starchuk’s petition will languish just like similar proposals to rid Canada of birth tourism.

Interestingly, Canada and the United States are the only G7 countries that permit babies born on their soil to obtain citizenship.

Lawdiva aka Georgialee Lang

 

 

 

 

 

 

 

 

 

Missouri Politicians Vote in Favour of Equal Parenting

GeorgiaLeeLang025The State of Missouri can truly boast of their “enlightened” political representation as state legislators took a bold step this week and passed legislation to engrain the concept of shared parenting into their family laws. The next step is for Governor Jay Nixon to sign the bill into law.

You may ask: Is this another one of those “watered-down” efforts we have seen before, where the change does not remedy the age-old “dad can’t be an equal participant in parenting” philosophy?  Not at all.

The changes contemplated in the new law are exciting for Missouri fathers who have for too long been marginalized by antiquated twentieth century traditions of stay-at-home moms and working dads, operating to advance a maternal preference for parenting after separation. The old way of parenting was shored up by untested psychological theories about mothers and fathers that unwittingly led to a template of a “visiting” parent, usually relegated to every second weekend for a total of four nights of access per month.

The primary caregiver model became the default position without consideration of the quality of parenting, the psychological functioning of each parent, or the history and nature of the parent/child relationship.

Good parents were lumped together with dysfunctional parents because judges relied on precedent, a straightjacket that we now know has hurt generations of children and needlessly disempowered parents, usually fathers.

The proposed Missouri law challenges those outdated assumptions by injecting language that directly addresses the inequality that has reigned for decades in North America.

For example, the definition of joint custody will read:

” Joint physical custody means an order awarding each of the parents approximate and reasonably equal periods of time during which a child resides with or is under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure the child of substantial, frequent, continuing, and meaningful contact with both parents;”

The bill also includes the following passage:

” In determining the allocation of periods of physical custody, the court shall presume that a parenting plan that equalizes to the highest degree the amount of time the child may spend with each parent is in the best interest of the child. The state courts administrator shall modify the Form 68-A Parenting Plan, also known as “Schedule J”, to reflect the provisions of this subdivision and to include that the default parenting plan shall include alternating weeks with each parent, unless the parents submit an alternative parenting plan.”

It is encouraging to see politicians embrace the most up-to-date research which overwhelmingly supports parents as equal partners in parenting after separation. Hopefully, other jurisdictions will wake up and recognize that conflict during divorce should not be used to eliminate what hundreds of social scientists say is the best outcome for children. Shared parenting. It’s good for kids and parents.

Lawdiva aka Georgialee Lang

Victims of Family Justice System Mount Legal Challenge on Parents’ Day

BarristerAn American group who call themselves “Constitutional Association of Parental Rights Activists” (CAPRA) intend to take steps this summer to publicize and take action regarding the plight of parents who have been denied a full parental role in their children’s upbringing. The basic principles underlying their campaign stem from the United States Federal Code (36 US Code 135) that provides for Parents’ Day. The law reads:

“(a) The fourth Sunday in July is Parents’ Day.
 (b) All private citizens, organizations, and Federal, State, and local governmental and legislative entities are encouraged to recognize Parents’ Day through proclamations, activities, and educational efforts in furtherance of recognizing, uplifting, and supporting the role of parents in bringing up their children.”
Planning is well underway to launch a class action lawsuit against all 50 states of the union on Parents’ Day 2016.  Their strategy is to leverage this official federal holiday as a starting point and take advantage of both the Republican and Democratic Presidential Conventions to bring pressure on both political parties to recognize the importance of both parents in raising children. The GOP convention is one week before Parents’ Day, while the Democrats will meet a week after the holiday.
Their primary goal is to shutdown and radically reform America’s family court system

 

Commencing July 4th, 2016, some 50,000 CAPRA Members will begin exploiting a variety of media forums to spread the word.  They reason that based on the language of the Parents’ Day law every candidate must support the official Parents Day law, and therefore, must support their class action suit. For more information go to parentalrightsclassaction.com.

Lawdiva aka Georgialee Lang

 

T’was The Night Before Christmas: Legal Version

GeorgiaLeeLang025Whereas, on or about the night prior to Christmas, there did occur at a
certain improved piece of real property (hereinafter “the House”) a general
lack of stirring by all creatures therein, including, but not limited to a
mouse.

A variety of foot apparel, e.g. stocking, socks, etc., had been affixed by
and around the chimney in said House in the hope and/or belief that St. Nick
a/k/a/ St. Nicholas a/k/a/ Santa Claus (hereinafter “Claus”) would arrive at House
sometime thereafter.

The minor residents, i.e. the children, of the aforementioned House were
located in their individual beds and were engaged in nocturnal
hallucinations, i.e. dreams, wherein visions of confectionery treats,
including, but not limited to, candies, nuts and/or sugar plums, did dance,
cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as
“I”), being the joint-owner in fee simple of the House with the party of the
second part (hereinafter “Mamma”), and said Mamma had retired for a
sustained period of sleep. (At such time, the parties were clad in various
forms of headgear, e.g. kerchief and cap.)

Suddenly, and without prior notice or warning, there did occur upon the
unimproved real property adjacent and appurtenant to said House, i.e. the
lawn, a certain disruption of unknown nature, cause and/or circumstance. The
party of the first part did immediately rush to a window in the House to
investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of
wonder and/or disbelief, a miniature sleigh (hereinafter “the Vehicle”)
being pulled and/or drawn very rapidly through the air by approximately
eight (8) reindeer. The driver of the Vehicle appeared to be and in fact
was, the previously referenced Claus.

Said Claus was providing specific direction, instruction and guidance to the
approximately eight (8) reindeer and specifically indentified the animal
co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid,
Donner and Blitzen (hereinafter “the Deer”). (Upon information and belief,
it is further asserted an additional co-conspirator named “Rudolph” may have
been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer
intentionally and willfully trespass upon the roofs of several residences
located adjacent to and in the vicinity of the House, and noted that the
Vehicle was heavily laden with packages, toys and other items of unknown
origin or nature. Suddenly, without prior invitation or permission, either
express or implied, the Vehicle arrived at the House, and Claus entered said
House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with
residue from the chimney, and he carried a large sack containing a portion
of the aforementioned packages, toys, and other unknown items. He was
smoking what appeared to be tobacco in a small pipe in blatant violation of
local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor
children, which hung adjacent to the chimney, with toys and other small
gifts. (Said items did not, however, constitute “gifts” to said minor
pursuant to the applicable provisions of the U.S. Tax Code.)

Upon completion of such task, Claus touched the side of his nose and flew,
rose and/or ascended up the chimney of the House to the roof where the
Vehicle and Deer waited and/or served as “lookouts.” Claus immediately
departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said
House, the party of the first part did hear Claus state and/or exclaim:

“Merry Christmas to all and to all a good night!” Or words to that effect.

MERRY CHRISTMAS TO YOU!

Merry Christmas Disclaimer

GeorgiaLeeLang009

 

PLEASE ACCEPT without obligation, express or implied, these best wishes for an

environmentally safe, socially responsible, low stress, non addictive, and gender

neutral celebration of the winter solstice holiday as practiced within the most

enjoyable traditions of the religious persuasion of your choice (but with respect

for the religious or secular persuasions and/or traditions of others or for their

choice not to practice religious or secular traditions at all):

AND FURTHER for a fiscally successful, personal fulfilling, and

medically uncomplicated onset of the generally accepted calendar year

(including, but not limited to, the Christian calendar, but not

without due respect for the calendars of choice or of other cultures).

THE PROCEEDING wishes are extended without regard to the race, creed,

colour, age, physical ability, religious faith, choice of computer platform, or

sexual preference of the wishee.

 

Lawdiva aka Georgialee Lang