richambrosio

richambrosio

20p

11 comments posted · 0 followers · following 0

13 years ago @ Allison McNeely - Thank you · 1 reply · +1 points

Sweatpants, couch, beer and TV; it's how Socrates got all his inspiration as well. Fact.

13 years ago @ Allison McNeely - Why writing about your... · 0 replies · 0 points

The eternal blogging quandary. For me, I found myself constantly strafing far too much into what was inappropriate. For what it's worth, what you had up already was well-articulated - and certainly nothing too objectionable! - but I can understand the sense that when you write something, it may not be quite up to your own personal standards, especially for the topic.

13 years ago @ http://www.themarknews... - The U.K. is Powerless ... · 0 replies · +1 points

@Larry Gordon

I'm not familiar with any studies on the impact of AV in Canada. But for what it's worth, British reports have shown that AV, while far short of the proportionality of systems like STV (the Lib Dem's -- and my -- favoured system), would still be more proportional than FPTP in the context of their country.

Similar ad-hoc studies in other small commonwealth and UK overseas territories countries suggest something similar. In fact it seems that in 2 party systems, the result of AV is that it distributes seats fairly accurately (the recent Australian election demonstrates this quite nicely).

Where AV does run into serious problems is that it has a crippling effect on smaller parties outside of that top2-3 party mainstream. While FPTP also normally squeezes out smaller parties, regional-based parties -- such as in Quebec or Scotland/Ireland in the UK -- can do quite well. AV would likely kill off some of this non-mainstream representation completely. I'm fairly confident if Canada adopted AV, the Bloc's dominance would be wiped out in Quebec as federalist voters would coalesce around each other in marginal Bloc seats. Some folks would think that brilliant while others, well, wouldn't.

Regardless though, I can safely say that I'm going to vote yes in that referendum when it does come around. AV is less than ideal but still an improvement. And it's a stepping stone to STV since the mechanics of electing (ie ranking on a ballot) are basically the same in both systems.

13 years ago @ Allison McNeely - You (should) probably ... · 0 replies · +1 points

Oh sorry. I have a tendency to babble incoherently at times.

I'm just referencing the defendant's right to have every substantive stage of judicial proceedings he or she is involved in to be held in public, enshrined the common law and section 11 of the Charter.

Implied in the general progressive/feminist critique of proceedings involving sexual abuse, vulnerable witnesses, or any kind of trial that some feminists have cause for concern, is the idea that the wider public interest would be served with judicial proceedings behind closed doors, because more often than not, the media can't be trusted to exercise any kind of self-control when it comes to publishing lurid details.

Defence lawyers fight this sort of thing all the time because unfortunately, courts, judges, prosecutors and police officers have a terrible record whenever things are done away from the public's glare. Juries are usually a good check on this sort of behaviour but things like preliminary hearings, legal arguments, voir dires on evidence, and sentencing are done without the jury.

There is, of course, a wider public interest to having trial proceedings fully aired. The public needs to know that criminals are being locked up and punished properly and that their fellow citizens aren’t being shipped off to the gallows needlessly.

To illustrate all this, let’s say a defendant pleads guilty to serious assault where a victim is wounded, but sentencing is done behind closed doors together with certain reporting restrictions, where breached, can land the offending party up to 3 years in prison for contempt of court.

Using the UK sentencing guidelines (since I’m familiar with them!!), the maximum is theoretically life imprisonment, but where the victim suffers minor injuries, this can be as little as 3 years in prison. If a judge imposes something like 15 years for reasons unclear to the public, confidence in the justice system is undermined. If the full factual basis for this extraordinary departure is unknown, nothing would assuage the legitimate concern that the sentence may have been imposed arbitrarily. Of course, judges are also obliged to provide reasons for what they do. But this isn’t always a sufficient safeguard.

The rule of law also requires citizens to have a reasonable expectation that if they embark on a criminal enterprise with facts similar to those of our hypothetical defendant, they will be punished similarly. Not more. Nor less.

ANYWHO ... the relevance of all this is that progressives normally agree with these sorts of safeguards (in contrast to Tory 'law-and-order' types who want to lock every one up), but in situations such as the above, many progressives find themselves in genuine conflict because, on the one hand, they believe in open justice, but on the other, they would tend to agree with their feminist compatriots.

This is all a complete tangent on your argument, but I think it's something that those who do criticise things being done in such an open manner should be mindful of.

Any, lots of incoherent rambling of a tired, tired person … it’s Friday night, I’m still in chambers, and I’m waiting for my fellow pupils to get done so we can to a pub!

13 years ago @ http://www.themarknews... - The U.K. is Powerless ... · 0 replies · +1 points

Also, while there is some Canadian jurisprudence that puports to uphold the implied bill of rights theory which rests upon acceptance of the force of the BNA's preambulatory statement re: a similar constitution the UK, British Courts in general give short shrift to what is contained in preambles to any UK Act.

13 years ago @ http://www.themarknews... - The U.K. is Powerless ... · 0 replies · +2 points

Can the UK change our constitution? This is an interesting question, and I remember having a ridiculous debate with my British const law professor on this very question.

As a matter of British constitutional law - yes it can. Parliamentary will is supreme in the UK. Their Parliament cannot legislate for Canada because it voluntarily gave its power over Canada away through the UK's version of the Canada Act 1982. By the doctrine of implied repeal, if Parliament decided to legislate for Canada in a manner that was inconsistent with the Canada Act, British Courts would be obliged to interpret it as void to the extent of any inconsistency with the later Act (see Vauxhall Estates, Limited v Liverpool Corporation [1932] 1 K.B. 733).

Alternatively, if British Courts were to regard the Canada Act as a 'Constitutional Act', according to the analysis in Thoburn v Sunderland City Council [2003] Q.B. 151, then this would entrench it further and prevent the doctrine of implied repeal from operating. In this case, the UK Parliament would have to repeal the Canada Act by express language. But it is still possible.

Of course, this would absolutely never happen. There are some political realities that simply exist beyond the niceties of the law. For example, that Parliament is supreme is itself only recognised as such because actors in society have agreed to this on the back of centuries of institutional strife with the Crown. No court would ever attempt to toy with this balance. Even recent encroaching on Parliament's supremacy via EU law and the European Convention on Human Rights is maintained by way of domestic anchoring legislation. The only alternative would be revolution.

In all likliehood, if some rogue future Parliament were to tinker with the Canada Act, I trust that British Courts would stop it in its tracks, taking due regard to both the reality of Canada's place on the international stage as an equal to Britain, and Canada's own jurisprudence on the constitutional realities of modern Canada. If not, I'm sure Canada would just tell the Brits where to go.

13 years ago @ Allison McNeely - You (should) probably ... · 0 replies · +1 points

Your critiques are spot on.

It's interesting though to note that the 'progressives' took that particular approach. Another 'progressive' strand would be that open justice is absolutely vital. Not only is it consistent with the fundamental idea that justice must be seen to be done in addition to actually being done, more prosaically and importantly, even though the Colonel plead guilty, the circumstances of his crimes impact upon ultimate sentence.

Though I admit, this second strand is probably only shared by defence lawyers like me.

13 years ago @ Macleans.ca - On the perils of proro... · 0 replies · +3 points

Not only is it not frightening, it's perfectly legitimate and consistent with our British/Canadian constitutional tradition. The GG is the guardian of that tradition. And central to it is the idea of Parliamentary sovereignty. Parliament are the watchmen on the Crown and the keepers of the public purse - jobs made easier by 'a speedy return' and 'a budget'. All she was doing with such concessions was to protect the role of Parliament and to reduce her office's constitutional footprint as much as possible, by not allowing the executive to run roughshod over the wishes of the legislature. These 'dignified' institutions are the closest thing we have to proper checks and balances within the system. Without the concessions, the PM and Cabinet could have idly kept going and not bothered with Parliamentary accountability for a considerable amount of time - something that, any serious student of British political history could tell you (and Andrew is one such person, making his comments a bit surprising) is a bit of a no-no, having led to civil wars, regal decapitations and glorious revolutions.

For what it's worth, in cases of constitutional uncertainty, without the benefit of precedent, there is some jurisprudence and academic opinion in Britain stating that the decision of the monarch is right and proper by virtue of it being the decision of the monarch. Having drawn out such concessions in a way that ennobles Parliament, such a course of action is arguably now part of Canada's constitutional tapestry, sure to act as a precedent for generations to come.

13 years ago @ Allison McNeely - 6 months · 0 replies · +1 points

Whodda thunk it.

13 years ago @ Allison McNeely - The Honour Killing Ame... · 0 replies · +1 points

I take all of your comments re: the law not being enough. But I'm curious as to what these 'amendments' would actually look like. A 1st degree murder conviction will automatically carry a mandatory minimum of 25 years before parole, while 2nd degree murder is 10 years (which, I have to say, I found surprising - in England, there's only one class of murder and its minimum is 15 years).

Most causes of honour killing I would imagine fall under the first category since in many of these cases, it would be easy to prove intention, planning and premeditation. So these perpetrators are already en route to getting the maximum amount of time possible. Conceivably, their sentence could go higher but I don't know how feasible that would be. I don't think even terrorism cases carry a higher minimum. They could consider removing the right to parole period, regardless of the actual sentence. But such courses of action would undoubtedly be subject to a Charter challenge.

For me, the government has 3 options if it really wanted to legislate on the matter:

(1) It could consider making the circumstances of honour-killing a triggering mechanism that automatically qualifies any offence as 1st degree murder (eg like killing an officer), thus carrying the 25 year minimum instead of 10.

(2) It could legislate that any religious or cultural motivations be removed as mitigating factors at sentencing - essentially ensuring that most perpetrators would get a few more years more than the mandatory minimum.

(3) It could create a separate form of homicide which would have a lower threshold of culpability required. A lower threshold would also mean more lenient sentences, but it would be a safety valve in case evidence is lacking to fully convict on murder. Perhaps with a mandatory minimum of 5 years?