7 days ago

James Morton Law

Legal interpretation

Legal language in statutes is sometimes hard to figure out. That’s because a statute has to write down a general rule that applies to all cases and that is more difficult than you might expect.

Consider for example a criminal law against cutting people with knives. That seems pretty straightforward – just say “it is a crime to cut someone else with a knife”. But then what about a surgeon who is going to perform an operation? A simple traffic rule that says you must stop at a stop sign seems hard to misunderstand but does it apply to bicycles? Snow machines? Pedestrians? Children on rollerblades?

All this means that when a judge has to apply a law the judge has to figure out what the law means and what conduct it covers.

The principles of statutory interpretation are complex and extensive – when I went to law school the course on statutory interpretation lasted a full semester. That said the basic idea is straightforward.

Judges have to interpret statutes to make them effective in dealing with the issues the legislature was trying to deal with. The purpose of the legislation is what governs. So legislation combating gang fights with knives ought not to cover surgeons. Legislation trying to stop car crashes at intersections ought not to cover pedestrians.

In 1998 the Supreme Court wrote:

"Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."

Of course it’s not always obvious what the legislative purpose is but that’s why we have judges – to make difficult decisions. See MoreSee Less

2 weeks ago

James Morton Law

Does the judge have to accept a plea deal?

Plea deals are a central part of criminal law. For better or worse – and there are reasonable arguments saying plea deals are not a good idea – our criminal justice system is based on the fact that the vast majority of cases are resolved without a trial. If that were not the case the number of additional courts, judges and lawyers required would be enormous.

All that said, in Canada the final decision on any plea deal is made by a judge. The lawyers can agree on any kind of arrangement they choose but the sentence is always imposed by the judge and it is the judge’s sentence and not that of the lawyers.

But judges are (almost never) part of plea deal negotiations so how does the idea of making a deal fit with the judge being the one imposing the sentence?

The Supreme Court of Canada addressed the issue and held that a plea deal should be accepted by a judge unless “the proposed sentence would bring the administration of justice into disrepute, or would otherwise be contrary to the public interest”. Basically a judge must review any proposed sentence and see if it is justified and reasonable.

This means two things. First the proposed plea deal must be in the range of what is reasonable – neither too lenient nor too harsh. Second, the judge has to be given enough information about the case so as to assess it properly. This means the lawyers have to be able to explain the sentence and show it is consistent with other cases with similar facts. Usually this poses no real problem. Almost all plea deals involve a guilty plea and that shows remorse by an accused – this usually justifies some leniency. What’s more Crown and defence lawyers have a pretty good idea what is and is not “in the range” and seldom make deals outside the range.

This means that an accused who agrees to a plea resolution can be reasonably confident that resolution will be accepted by the Court.

That said, on occasion a proposed joint resolution is not accepted and the judge imposes a different sentence. That happened recently in Pond Inlet where the judge heard a joint submission on a break in and breach of probation for one month in jail. The judge ruled that sentence was not appropriate and gave the accused a seven month jail term. The judge commented: “And the law is clear — judges retain the final responsibility to ensure that sentences are appropriate and lawful.” Cases where a joint sentence submission are rejected are rare but, as you can see, they do happen and this puts a duty on lawyers to ensure in making joint submissions that they can be justified. See MoreSee Less

3 weeks ago

James Morton Law

More snow in Iqaluit See MoreSee Less

More snow in Iqaluit

3 weeks ago

James Morton Law

I got hit by a puck at a hockey game – can I sue?

Maybe not!

Almost any time you go into any sports or recreational activity you have to sign a waiver – you know, the sort of thing written in fancy language which is hard to follow in detail but which amounts to a statement that no matter what happens you can’t sue anyone for anything.

The idea is to protect the operators of various activities from crushing liability if there is an accident and someone is injured or killed. So if I am, say, at a hockey game and get hit by a puck the waiver may stop me from suing for my injuries. Which is reasonable enough – if I don’t want to run the risk of being hit by a puck I don’t have to go to the game. (And that also means if I am just walking by a baseball game, and so saw no waiver, and get hit by a ball I haven’t given up any right to sue).

These waivers tend to be binding on their own terms assuming the patron has a reasonable chance to see the waiver and the waiver is not on its face unreasonable or unconscionable. A waiver and release of liability, properly drafted and brought to the attention of the patron, will usually release an operator from liability.

That’s important to remember. Usually waivers are binding. I’ve often heard people say something like “a waiver isn’t worth the paper it’s written on” – I’ve even heard lawyers say that. That idea is exactly backwards; in general if you sign a waiver you are bound by it.

The Courts have considered whether a waiver of liability is binding and have applied a three step analysis:

1. Did the patron knew what they were signing? Was the waiver brought to the patron’s attention? Did the operator take reasonable steps to bring the waiver to the attention of the signatory?
2. What is the scope of the waiver and is it worded broadly enough to cover the conduct of the operator? This is important because even if a waiver is binding if it doesn’t waive the conduct of the operator it’s irrelevant. It’s important to read the waiver closely to see if it clearly covers the situation; and in the case of any ambiguous language the waiver will be interpreted against the operator.
3. Finally should the waiver should not be enforced because it is unconscionable? Unconscionably is hard to define but broadly put it is an agreement so extremely unjust, or overwhelmingly one-sided, that it is contrary to good conscience. Typically, an unconscionable contract is held to be unenforceable because no reasonable or informed person would otherwise agree to it.

As you can see holding a waiver unconscionable requires a very high standard and in general waivers will be binding. See MoreSee Less

1 month ago

James Morton Law

Joining the RCMP

There is no more responsible or important job than being a police officer. Society, rightly, gives special powers to police officers to enforce law and make sure the community is protected and safe. And the work of the RCMP is not limited to law enforcement – the RCMP is a part of the larger community and helps the community with all sorts of community activities. Being a member of the RCMP is something to be proud of.
That said, not everyone is qualified to join the RCMP; that said, many people have the qualifications and applications from Nunavut would certainly be welcome.

To become a member of the RCMP you must:

• Be a Canadian citizen or permanent resident in Canada. Individuals with permanent resident status must have lived in Canada for the last 10 consecutive years;
• Be at least 19 years of age;
• Speak, read and write English and/or French
• Possess a valid, unrestricted driver’s licence
• Have a Canadian high school diploma or equivalent. If you do not have a high school diploma you must obtain an equivalency assessment to show you have a sufficient educational background.
• Meet the health and psychological standards including vision and hearing standards. You will need to achieve a necessary level of physical abilities. Basically, if you are a healthy person without significant mental issues you would qualify.

Lastly, police officers must be of good character. Members of the RCMP have to maintain high ethical standards both on and off-duty. Generally speaking a criminal record, or a criminal matter pending before the courts, will bar you from the joining the RCMP. That said, if you have a pardon/records suspension for any criminal activity you may be able to join the RCMP. A challenging past will not necessarily block you from becoming a police office.

According to the RCMP Official Website, for all past actions, some of the things considered in determining suitability are:
• How serious was it?
• How often did you behave this way?
• What were the circumstances?
• What was your intent?
• Do you regret it?
• How much time has passed since this behaviour occurred, or when the offence was committed?
• How old were you at the time?
• How have you behaved since that time, or since the time of the last incident?

No matter how well qualified, an individual who cannot be trusted to carry out their tasks honestly and reliably will not be hired.

All that said, if you are in good health and do not have past or pending criminal convictions the RCMP may be a good place to look to a career. See MoreSee Less


Comment on Facebook

Now a days police are useless in the communities instead of ripping families apart and try and safe all the frigging dealers and bootleggers for their actions and if we do a self defence they are more likely to try and cover the drug dealers asses