Sunday, November 29, 2009

Elliott Abrams's Powerful Essay--Placards not People

People Not Placards The real cost of Obama-style -diplomacy. by Elliott Abrams 12/07/2009, Volume 015, Issue 12

...The Obama approach to world politics--engage, apologize, avoid friction, be humble, reach out to previously scorned tyrannical regimes--is being criticized nowadays on pragmatic grounds. A record of 10 months shows this modest approach has brought modest if any returns. Low costs, the president's defenders argue, and low risks, so it has been worth trying, even if the gains have been small.

But the Obama approach has a moral cost that is usually overlooked and that is very high for our country and for embattled fighters for human rights everywhere. It is true that we live in a Westphalian state system, but time--decades of human rights activism--has undermined the view that what a state does inside its own borders, to its own citizens, is no one else's business. Yet this administration appears devoted to that older view, and its lack of enthusiasm for human rights policy is already quite clear. One could not escape the whiff of disappointment, even annoyance, emerging from administration ranks when Iranians took to the streets after the June election there was stolen. It seemed the administration was actually irritated that those shenanigans might interfere with starting a new diplomatic track.

On his Asia trip the president consorted, at the ASEAN meeting, with the prime minister of the repressive regime in Burma, General Thein Sein, just as he had met at an OAS meeting with Venezuela's Hugo Chávez. Under a policy of promoting human rights and democracy, the United States should be focusing its policies toward such countries on what goes on within them, on supporting democracy activists and promoting the expansion of freedom, on opposing repressive regimes and working when we can to undermine them. But the approach Obama is taking is the almost inevitable product of elevating multilateral diplomacy, for you don't conduct diplomacy with demonstrators and bloggers, much less with political prisoners. You conduct it with the guy across the table, behind the placard that reads "Iran" or "Myanmar" or "Egypt."

True, it ought to read something like "Ayatollah's regime, hated by Iranian people," or "Representative of vicious Venezuelan dictator," but that won't happen outside political cartoons satirizing the United Nations. Multilateral diplomacy means small talk with torturers, tea with dictators, negotiations with regimes that survive through sheer brutal repression--and it means putting such unpleasant facts aside to gather U.N. votes and seek consensus.

That's the path the Obama administration has chosen, and the real societies that those placards supposedly represent are too often forgotten. A great nation like the United States has many and varied interests, and we need both to do business with tyrants and to engage constantly in multilateral diplomacy. But we need to remember that the people who really own those nameplates that say "Syria" or "Myanmar" are absent--the best of them sometimes in prison. We need to recall that multilateral diplomacy is not morally cost-free. The Obama administration's disengagement from human rights advocacy and its embrace of multilateralism are already proving that.

America's relations with complex Middle Eastern states such as Egypt are often difficult. Egypt is a combination of republican forms (a presidency, a parliament, political parties, a judiciary) and authoritarian reality where the security forces, the ruling party, and above all President Mubarak dominate the state and decide who gets what. For the United States, which values Egypt as a peace partner of Israel and as the reliable operator of the Suez Canal, Egypt's internal problems can create tensions we might otherwise wish to avoid. But we cannot, if we mean to understand what is really happening in that country: How popular or unpopular is the government and the ruling party, what would happen if there were free elections, does any of the new foreign investment trickle down below the super-rich, what will happen when the octogenarian Mubarak is gone?

During most of the Bush administration, human rights and democracy in Egypt were on the front burner. The administration was concerned that instead of laying the foundation for a stable democratic future, Mubarak was in effect building a two-party system that consisted of his ruling party and a single alternative, the Muslim Brotherhood, which might gain power when he was gone. Thus came the American pressure for a democratic opening, so as to begin preparing for Egypt after Mubarak.

But as the Bush administration undertook the Annapolis Conference and began to press for an Israeli-Palestinian peace deal during our final year in office, the "real" Egypt disappeared. No longer did we concentrate on poverty, or illiteracy, or oppression in that land of 80 million. Instead we saw only the Egypt that attended conferences and engaged in diplomacy--the Egypt of cabinet ministers and official spokesmen. "Egypt" became a placard behind which diplomats sat, not a real country. It became a U.N. vote instead of a society--to the great relief of its rulers and the disappointment of democratic activists there.

Given President Bush's lack of enthusiasm for the U.N. and his deep devotion to democracy, this pattern was an exception. But whenever rounds of multilateral diplomacy erupted, the risk of countries becoming placards arose as well. Nowadays, with the Obama administration's dedication to multilateralism, real countries are in danger of disappearing altogether.

Take President Obama's trip to China, where he saw no "real" Chinese at all--just a handpicked audience of party loyalists. No dissenters, no religious organizers, no democratic activists, all of whom we would wish to support if we cared about the real Chinese society more than the voice and vote of China's rulers. In fact, many such Chinese citizens were detained or muzzled during the president's visit, making his trip a real setback for democracy in China. In the case of Egypt, the Obama administration welcomed Mubarak (who had avoided Washington during most of the Bush years), but has cut funding for democracy and human rights programs helping real Egyptians. And as to Iran, funding for key programs to help the Iranian people free themselves has been cut while the administration seeks out talks with the country's increasingly despised rulers.

Syria is another excellent case. President Bush was disgusted by the Assad regime's oppression of the Syrian people as well as its support for terrorism, interference in Lebanon, and encouragement of jihadist attacks on Americans in Iraq. But George Mitchell, President Obama's Middle East peace negotiator, has visited there twice already, and other high-ranking officials have visited as well. Why? Because the real Syria doesn't matter right now; all that matters is Syria's role in the "peace process," which is what Mitchell was there to discuss. Small matters like the fate of political prisoners are not on the agenda when multilateral diplomacy beckons.

We do not have the luxury to deal only with democracies, of course, but the record of the Reagan administration provides a lesson in how to deal with dictatorships. Reagan met with every Soviet leader who survived long enough for a summit. Negotiations were constant--on strategic issues, regional issues, trade, and everything else. But simultaneously Reagan stated his moral judgments loudly and clearly: that the Soviet Union was an "evil empire" that would end on the "ash heap of history." So a man like Anatoly Sharansky, in a cell in the Gulag, understood fully not only Reagan's heart, but also his political analysis and his ultimate objectives.

Dealing with dictators was accepted as a necessity of world politics in the Reagan and George W. Bush years, and there was plenty of it, but exactly for that reason both presidents felt it critical to make our moral position clear. Those regimes were the ones who needed to apologize, not the United States; the end of those regimes was something we desired, because of our belief in peace and freedom; and the promotion of democracy was our moral duty and our political strategy.

We sat across the table time after time from those foreign ministers and generals representing tyrannical regimes, but we never forgot that they did not speak for their own populations. The placards said they represented the USSR or China or military regimes in Latin America or Asia, but we never forgot that behind those placards lay real societies where millions were seeking freedom--and looking to the United States for moral and practical support.

The costs of the Obama approach cannot be measured, then, only by his failure to get agreements over Iran sanctions or economic coordination or assistance in Afghanistan. They must be measured as well by the substantial abandonment of American support for human rights and democracy, a casualty of the "multilateral engagement" policy. Next time the president looks across a negotiating table, he should use his imagination--and see past the tyrant with the placard, to the people being oppressed. The president may not be able to free them, but he can avoid the terrible spectacle of appearing to forget them...

A Must See and Listen To: Dershowitz on Goldstone

Noah Pollack comments:

Dershowitz, for the Opposition

"...A week and a half ago, Alan Dershowitz took the stage in a packed auditorium at Fordham Law School in Manhattan. He was supposed to debate Richard Goldstone, the author of the Goldstone Report. But the august international jurist refused, telling the organizers that Dershowitz had “demeaned” him. So Dershowitz stood a copy of the Goldstone Report on the table in the author’s place. And then he demolished the report and eviscerated its author with remarkable clarity, passion, and brilliance. A truly memorable performance..."

Tuesday, November 24, 2009

Krauthammer on KSM's Federal Case and Hence Obama

Travesty in New York

By Charles KrauthammerFriday, November 20, 2009

For late-19th-century anarchists, terrorism was the "propaganda of the deed." And the most successful propaganda-by-deed in history was 9/11 -- not just the most destructive, but the most spectacular and telegenic.

And now its self-proclaimed architect, Khalid Sheik Mohammed, has been given by the Obama administration a civilian trial in New York. Just as the memory fades, 9/11 has been granted a second life -- and KSM, a second act: "9/11, The Director's Cut," narration by KSM.

September 11, 2001 had to speak for itself. A decade later, the deed will be given voice. KSM has gratuitously been presented with the greatest propaganda platform imaginable -- a civilian trial in the media capital of the world -- from which to proclaim the glory of jihad and the criminality of infidel America.

So why is Attorney General Eric Holder doing this? Ostensibly, to demonstrate to the world the superiority of our system, where the rule of law and the fair trial reign.

Really? What happens if KSM (and his co-defendants) "do not get convicted," asked Senate Judiciary Committee member Herb Kohl. "Failure is not an option," replied Holder. Not an option? Doesn't the presumption of innocence, er, presume that prosecutorial failure -- acquittal, hung jury -- is an option? By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place.

Moreover, everyone knows that whatever the outcome of the trial, KSM will never walk free. He will spend the rest of his natural life in U.S. custody. Which makes the proceedings a farcical show trial from the very beginning.

Apart from the fact that any such trial will be a security nightmare and a terror threat to New York -- what better propaganda-by-deed than blowing up the courtroom, making KSM a martyr and turning the judge, jury and spectators into fresh victims? -- it will endanger U.S. security. Civilian courts with broad rights of cross-examination and discovery give terrorists access to crucial information about intelligence sources and methods.

That's precisely what happened during the civilian New York trial of the 1993 World Trade Center bombers. The prosecution was forced to turn over to the defense a list of 200 unindicted co-conspirators, including the name Osama bin Laden. "Within 10 days, a copy of that list reached bin Laden in Khartoum," wrote former attorney general Michael Mukasey, the presiding judge at that trial, "letting him know that his connection to that case had been discovered."

Finally, there's the moral logic. It's not as if Holder opposes military commissions on principle. On the same day he sent KSM to a civilian trial in New York, Holder announced he was sending Abd al-Rahim al-Nashiri, (accused) mastermind of the attack on the USS Cole, to a military tribunal.

By what logic? In his congressional testimony Wednesday, Holder was utterly incoherent in trying to explain. In his Nov. 13 news conference, he seemed to be saying that if you attack a civilian target, as in 9/11, you get a civilian trial; a military target like the Cole, and you get a military tribunal.

What a perverse moral calculus. Which is the war crime -- an attack on defenseless civilians or an attack on a military target such as a warship, an accepted act of war that the United States itself has engaged in countless times?

By what possible moral reasoning, then, does KSM, who perpetrates the obvious and egregious war crime, receive the special protections and constitutional niceties of a civilian courtroom, while he who attacked a warship is relegated to a military tribunal?

Moreover, the incentive offered any jihadist is as irresistible as it is perverse: Kill as many civilians as possible on American soil and Holder will give you Miranda rights, a lawyer, a propaganda platform -- everything but your own blog.

Alternatively, Holder tried to make the case that he chose a civilian New York trial as a more likely venue for securing a conviction. An absurdity: By the time Barack Obama came to office, KSM was ready to go before a military commission, plead guilty and be executed. It's Obama who blocked a process that would have yielded the swiftest and most certain justice.

Indeed, the perfect justice. Whenever a jihadist volunteers for martyrdom, we should grant his wish. Instead, this one, the most murderous and unrepentant of all, gets to dance and declaim at the scene of his crime.

Holder himself told The Post that the coming New York trial will be "the trial of the century." The last such was the trial of O.J. Simpson

What is a Tolling Agreement?

A tolling agreement is an agreement to waive a right to claim that litigation should be dismissed due to the expiration of a statute of limitations.

Its purpose is typically to allow a party additional time to assess and determine the legitimacy and viability of their claims and/or the amount of their damages without the necessity of filing an action.

During this period, the parties waive any defence by way of any statute of limitations which would otherwise arise during such period.

Varying Limitation Periods by Contract Made After October 16, 2006

....Bill 14, rhe Acces to Justice Act, 2006 (Ontario) received [loyal Assent on October 19, 2006 and is now in effect.

Among other things, Bill 14 makes important changes to the no contracting our rule in the Limitations Act, 2002(Ontario) (Act).

What follows is a summary of how the amended Act affects the variation of limitation periods by contract (including tolling agreements)

For the basic two year limitation period:

Business agreements can be extended or suspended for example by way of a tolling agreement.

Consumer agreements can be extended or suspended for examle by way of tolling agreement but cannot be shortened.

For the ultimate 15 years period:

Business agreements can be extended or suspended only if relevant claim has been discovered--ie tolling agreements only. They can be shortened regardless of whether relevant claim has been discovered.

Consumer agreements can be extended or suspended only if relevant claim has been discovered--ie only tollig agreements. Thet cannot be shortened.


1 . No statutory restrictions on contracting out of limitation periods apply to agreements entered into before January 1, 2004.

2. After December 31, 2004 but before October 19, 2006, the Act prohibits contracting out of any limitation Period

3. A “consumer agreement” is every agreement other than a “business agreement”.

4. A “business agreement” is an agreement made by the parties none of whom is a “consumer” as defined in the Consumer Protection Act, 2002.

5. The basic 2-year limitation period runs from day on which the claim is discovered (or was discoverable).

6. The ultimate 15-year limitation period runs from the day on which the act or omission on which the claim is based took place.

7 . Tolling agreements are now permitted in all circumstances (business and consumer agreements) and for all limitation periods (basic and ultimate) regardless of whether the parties agree to have an independent third party (mediator or arbitrator) assist in resolving the claim....

(Written by Wayne D. Gray)

Court's Power to Extend Limitation Period

Court of Appeal

Published March 25, 2008
Giles v Rhind and Another (No 2)

Before Lord Justice Buxton, Lord Justice Sedley and Lady Justice Arden

Judgment February 28, 2008

The court had power to extend the limitation period where a party, allegedly in breach of duty, had entered into a transaction defrauding creditors.

The Court of Appeal so held when dismissing an appeal by the second defendant, Caroline Rhind, from Mr Justice David Richards ([2007] Bus LR 1470) who had granted permission to Edward John Giles to amend his particulars of claim in an action concerning a transaction which allegedly fell within section 423 of the Insolvency Act 1986, and where, for the purposes of the Limitation Act 1980, there was alleged to have been a deliberate concealment of relevant facts.

The second defendant asserted that the claim was statute-barred since the relevant transaction was entered into outside the relevant limitation period.

Mr Giles and the first defendant, Roderick Middleton Rhind, had been the directors and principal shareholders of a company. By a shareholders’ agreement in 1980, Mr Rhind owed Mr Giles an express duty of confidence in relation to the company’s affairs.

Following Mr Rhind’s resignation as director and the sale of his shares he agreed with Mr Giles the claimant personally not to breach his obligation of confidence: ( The Times October 23, 2002) Mr Giles challenged the allocation of the proceeds of sale of the property, governed by a deed, apparently dated 1992, as between the defendants. He contended, inter alia, that the deed was a transaction in fraud of creditors to which section 423 applied.

Ms Georgia Bedworth for Mrs Rhind; Mr Richard O’Dair, by the direct access scheme, for Mr Giles; Mr Rhind did not appear and was not represented.

LADY JUSTICE ARDEN said the expression “breach of duty” in section 32(2) in the 1980 Act included a claim under section 423 of the 1986 Act.

Section 32(2) was enacted pursuant to the recommendations of the Law Reform Committee’s Final Report on Limitation of Actions (1977) (Cmnd 6923) and the court could look at that report to see the mischief to which section 32(2) was directed. The committee did not recommend that the new provision should be limited only to some causes of action.

Her Ladyship could not think of any reason why Parliament should wish to restrict section 32(2) to only some of the causes of action within section 32(1): namely actions for breach of trust, breach of contract or tort.

The limitation period applicable to actions for recovery of land was capable of extension under the concealed fraud provision in the Real Property Limitation Act 1833, which postponed the limitation period until the claimant for rent or possession could reasonably have known that he had been deprived of possession by fraud.

Furthermore, a transaction under section 423 was a type of transaction of which there was likely to be concealment and thus there would be a heightened policy reason for application of section 32(2) to claims under that section.

Her Ladyship would reject the proposition that because section 423 was so widely drafted and could have applied to events occurring over a considerable period of time, section 32(2) should not be interpreted to extend beyond breaches of duty in the narrow sense.

If Parliament created a cause of action which applied over a long period of time and a large variety of transactions, it would be wrong for the court to impose an indirect restriction on section 423 by excluding it from section 32(2) if that provision would otherwise on its natural meaning apply to it.

Lord Justice Sedley and Lord Justice Tuckey agreed.
Solicitors: Hewitsons.

Case Comment on Special Circumstances and Limitation Periods

Out with the Old: The Doctrine of Special Circumstances and the Limitations Act, 2002

By: Linda Rondinelli, B.A., LL.B.Project Manager, TVA The Legal Outsourcing Network

...Until the Ontario Court of Appeal’s recent decision in Joseph v. Paramount Canada’s Wonderland (2008), 90 O.R. (3d) 401 (C.A.), many lawyers in Ontario thought they could still rely on the common law doctrine of special circumstances, which gave the Court the discretion to extend a limitation period after its expiration, if special circumstances existed.

The doctrine, which originated with the Supreme Court of Canada’s 1972 decision in Basarsky v. Quinlan, [1972] S.C.R. 380 came to be increasingly applied to motions to add parties (Rule 5.04) and to amend pleadings (Rule 26.01). This allowed parties to argue on a motion that special circumstances existed which should allow the Courts to allow the amendments, add a party, or add a cause of action after the expiry of a limitation period where special circumstances existed, unless prejudice would result that could not be compensated for by costs or an adjournment.
The Court of Appeal in Joseph has unequivocally pronounced that the doctrine no longer applies under the new Limitations Act, 2002 S.O. 2002, c. 24, Sch. B.

The facts in Joseph are enough to send chills down the spine of any civil litigator. The plaintiff, Innez Joseph was injured at Canada’s Wonderland on September 5, 2004. There was no question that the limitation period began to run on that date, and there was also no question that the two year limitation period prescribed by the Limitations Act, 2002 applied. The defendant was notified of the claim less than 3 weeks after the incident, and also received several medical documents regarding the plaintiff’s injuries well within the two year period.

Mr. Joseph’s lawyer properly entered the matter in a “tickler” system, drafted the claim, and instructed his assistant to have the claim issued before September 5, 2006. The assistant was scheduled for vacation the week of September 4, 2006 and, believing the six-year period still applied, left for her vacation without issuing the claim.

When the plaintiff’s lawyer learned of the error, he sent the draft claim to the defendant on October 31, 2006, and issued the claim the same day. He sent a copy of the issued claim on November 28, 2006 and formally served it on January 30, 2007.

All told, the limitation period was missed by less then 2 months. The defendant moved under Rule 21.01 for a ruling on whether the action was statute-barred. The motions judge held that he had the discretion under the doctrine of special circumstances to extend the time to commence the action. The motions judge held that special circumstances existed, as there was inadvertence on the part of the lawyer and no prejudice to the defendant.

The defendant successfully appealed to the Court of Appeal, which held that the action was statute-barred.

The Court of Appeal interpreted the new Limitations Act strictly, and held that there no longer exists the common law discretion to extend limitation periods by applying the doctrine of special circumstances. Section 4 of the Act makes it clear that there is a two-year limitation period unless the Act provides otherwise. Thus, the Court held, it is bound strictly by the wording of the Act. The legislation could have incorporated the common law doctrine of special circumstances in the same way that it codified the discoverability principle, but it did not.

In a concurrent decision released the same day, the Court of Appeal held in Meady v. Greyhound Canada Transportation Corp. (2008), 90 O.R. (3d) 774 (C.A.) that the Courts do retain discretion under the transition provisions of the new Act to extend the former limitation period by applying the common law doctrine of special circumstances.

Master Glustein was the first to apply and follow the Joseph and Meady decisions in Thompson v. Zeldin [2008] O.J. No. 3591, a judgment released on September 17, 2008. In Thompson, the plaintiff’s counsel sought leave to amend the Claim to plead that the defendant failed to obtain informed consent prior to performing surgery, and as such committed battery.

Counsel for the plaintiff submitted that the court did not have to follow Joseph because in Joseph, the claim was brought after the expiry of the two-year limitation period under section 4 of the Limitations Act, whereas in the present case, Thompson sought to add a new claim to an existing action. Secondly, Thompson's counsel submitted that the Court of Appeal in Joseph suggested that the doctrine of special circumstances could apply when a party seeks to amend an existing claim.

Master Glustein rejected both arguments, holding that Joseph stands for the proposition that a new cause of action is to be governed by its own limitation period, and if that new cause of action is subject to the new Limitations Act, the doctrine of special circumstances cannot apply. Thus, the first question that must be answered when an amendment is sought is whether that amendment in fact raises a new cause of action. If it does, then the two-year limitation applies and, following Joseph, the doctrine of special circumstances cannot apply.

These decisions (Joseph in particular) are important for two reasons. Firstly, and most obvious, they are important because they have eliminated in most circumstances the application of a long-recognized and often crucial common law doctrine that has been applied consistently for over 30 years. Secondly, they remind us of the importance of communicating with all members of the firm, including non-lawyers, regarding important limitation periods and other changes in the law that could have an effect on how files are managed internally....

Created: October, 2008

Cases Citing Guerin

405 results


Fraud and Limitation Period

Guerin v. Canada, 1984 CanLII 25 (S.C.C.), [1984] 2 S.C.R. 335 at 390, Justice Dickson

...It is well established that where there has been a fraudulent concealment of the existence of a cause of action, the limitation period will not start to run until the plaintiff discovers the fraud, or until the time when, with reasonable diligence, he ought to have discovered it.

The fraudulent concealment necessary to toll or suspend the operation of the statute need not amount to deceit or common law fraud. Equitable fraud, defined in Kitchen v. Royal Air Force Association, [1958] 1 W.L.R. 563, as "conduct which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other", is sufficient. I agree with the trial judge that the conduct of the Indian Affairs Branch toward the Band amounted to equitable fraud.

Although the Branch officials did not act dishonestly or for improper motives in concealing the terms of the lease from the Band, in my view their conduct was nevertheless unconscionable, having regard to the fiduciary relationship between the Branch and the Band. The limitations period did not therefore start to run until March 1970. The action was thus timely when filed on December 22, 1975....

Good Overview of Limitation Periods in Ontario by Bruce McNeely

Limitations Law in Ontario

By Bruce McNeely

On January 1, 2004, Ontario's Limitations Act, 2002 (the "Limitations Act 2002") came into force. The Limitations Act 2002 limits the period of time during which a person may initiate court proceedings in Ontario in respect of a claim. For purposes of the Limitations Act 2002, a "claim" is one to remedy an injury, loss or damage from an act or omission. The Limitations Act 2002 was amended in 2006 to permit parties to a business agreement entered into at any time on or after October 19, 2006 to vary, that is, extend, shorten or suspend the application of the basic limitation period fixed by the Limitations Act 2002.

A business agreement is one in which neither party is a consumer as defined in the Consumer Protection Act (Ontario).

In addition, the ultimate 15-year limitation period (see below) may be suspended or extended, provided the claim in question has been discovered at the time the agreement to suspend or extend is made. Parties to a business agreement cannot vary the ultimate limitation period before any claim is known to exist. For example, it is not possible to provide in an Ontario contract that one party will have the right to make an indemnity at any time in the future, without limitation.

The following is a brief description of an area of the law.

The Two-Year Basic Limitation Period

The new basic limitation period (the time during which an action may be commenced in Ontario) is two years from the earlier of the day on which the essential elements (act or omission by a known person resulting in damages to the claimant) of the claim are known to the claimant and the day on which they are discoverable. There is a rebuttable presumption that a claimant discovered all the essential elements of the claim on the day on which the act or omission giving rise to the subject loss or damage occurred (see below). The foregoing represents a codification of the existing common law rules.

There are a number of exceptions to the basic two-year rule. Where the two-year rule applies, it represents a significant reduction from the general six-year limitation period for contract and tort claims in effect in Ontario until December 31, 2003, and it represents an increase in certain other limitation periods. For example, the period during which a claim for unpaid wages may be prosecuted against corporate directors will increase from six months to two years. However, it does mean that a number of limitation periods of varying lengths have been eliminated. There are circumstances where the running of a limitation period will be suspended (see below).

The 15-Year Ultimate Limitation Period

In addition to the basic limitation period, there is an ultimate limitation period of 15 years from the day on which the act or omission takes place, regardless of whether the essential elements of the claim become known to the claimant or were discoverable during the 15-year period and whether any other limitation period has not run. The only exceptions to this rule are (i) where at any time after October 19, 2006, the parties to a business agreement become aware of a claim and thereafter agree to suspend the operation of the ultimate limitation period; and (ii) where the claim in question is for conversion against a bona fide purchaser of personal property, in which case, the ultimate limitation period is fixed at two years from the date of the sale of the property to the purchaser.

Certain Claims Subject to No Limitation Periods

There are claims that are not subject to any limitation period, for example, a proceeding:
for a declaration where no consequential relief is sought;

to enforce an order;
to obtain support under the Family Law Act;
to enforce an award under the Arbitration Act, 1991;
by a debtor in possession of collateral to redeem it;
by a creditor in possession of collateral to realize against it;
by the Crown to recover fines, taxes, penalties and interest;
to recover student loans, awards, social assistance recoveries and grants; and
for an environmental claim that has not been discovered.

Certain Existing Statutory Limitation Periods Unchanged

There is a lengthy list of specific statutory limitation period provisions, referenced in a schedule to the Limitations Act 2002, that will be left unchanged. The list includes provisions under the following Ontario statutes involving court applications:

Bulk Sales Act (six-month limitation period for setting aside sales retained)
Construction Lien Act (45-day limitation period and sheltering concepts retained)
Insurance Act (one-year period retained)
Libel and Slander Act (three-month limitation period retained)
Mortgages Act (a proceeding to recover under a building mortgage still must be commenced within one year of the mortgage's maturity date)
Reciprocal Enforcement of Judgments Act (six-year limitation period following original judgment retained)
Remedies for Organized Crime and Other Unlawful Activities Act, 2001 (15-year limitation period retained)
Securities Act (the 90-day rescission period under section 135 and the 180-day/three-year limitation period under section 138 retained)
Trustee Act (action under section 38 still may not be brought after two years from the date of the death of the deceased)
Judicial Review Procedure Act (proceedings and appeals unaffected)
Provincial Offences Act (proceedings unaffected)
Constitution Act, 1982 (aboriginal claims against the Crown continue to be governed by section 35)

Part 1 of the Limitations Act 2002, was renamed as the Real Property Limitations Act (real estate limitation periods in effect as at January 2004 unchanged).

Statutory Notice Periods Unaffected

Do not confuse the two-year basic limitation period during which a claimant can prosecute a claim in the courts with an obligation imposed by statute that a claimant in a specified period of time give a written notice of claim (e.g., to a governmental body or insurer) as a pre-condition to a claim. The Limitations Act 2002 has not changed any notice provisions in any Ontario statutes.

No Exception for Equitable Remedies

Actions for equitable remedies such as detrimental reliance and unjust enrichment are subject to the new rules.

The Meaning of Discoverable

A claim is discoverable on the earlier of the day on which:

The person with the claim first knew each of the following: (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by an act or omission by the person against whom the claim is made, and (iii) that a proceeding would be an appropriate means to seek a remedy. Unless the claimant can prove otherwise, the claimant is presumed to know all of the foregoing on the day on which the act or omission took place;


A reasonable person with the abilities of the claimant and in the circumstances of the claimant first ought to have known each of the elements of the claim set out above.

Running of Limitation Periods Suspended in Certain Circumstances

The running of the basic limitation period is suspended for minors or incapable persons unless and until a litigation guardian has been appointed for such person. Everyone is presumed to be capable of initiating a proceeding unless the contrary is proven. A claimant may apply to the courts for the appointment of a litigation guardian for a potential defendant and may give a written notice of claim to a potential defendant containing statements regarding each of the elements of the claim. The notice of claim can be considered by a court in determining when the defendant discovered the claim in question.

The running of both the basic and the ultimate limitation periods is suspended where the claimant and the prospective defendant have agreed to engage an independent third party to resolve the claim or assist in its resolution until the earliest of (i) the date on which the claim is resolved, (ii) the date on which the attempted resolution terminates, and (iii) the date on which one of the parties withdraws from the agreement.

Contracting Out of the Limitations Act 2002

Unless one of the following circumstances apply, any limitation period established by the Limitations Act 2004 applies despite an agreement to vary or exclude it.

The exceptions to this general rule are as follows:

(i) The basic (2 year) limitation period and the ultimate limitation period (15 years) may be varied or excluded by an agreement made prior to January 1, 2004.

(ii) The basic limitation period may be suspended or extended by agreement made at any time from and after October 19, 2006.

(iii) The ultimate (15 year) limitation period may be suspended or extended by agreement made at any time from and after October 19, 2006 but only if the relevant claim has been discovered at the time of such agreement.

(iv) For "business agreements" (that is, an agreement made by parties none of whom is a consumer as defined in the Consumer Protection Act, 2002), the basic limitation period may be varied or excluded by an agreement made from and after October 19, 2006.

(v) Finally, for business agreements, the ultimate limitation period may be suspended or extended by agreement made at any time from and after October 19, 2006 but only if the relevant claim has been discovered at the time of such agreement.

Prior to enactment of the Limitations Act 2002, it had been a common practice in Ontario for litigants to enter into an agreement to suspend the running of the 6-year limitation period under the prior Act for extended or indefinite periods (commonly referred to as a "tolling agreement"). Prior to the October 2006 amendment, section 22 of the Limitations Act 2002 this practice was prohibited from and after January 1, 2004. Tolling agreements are now permitted to the extent summarized in the exceptions described above.

Debt Obligations that Are Due on Demand

Hare v. Hare, a December 2006 decision of the Ontario Court of Appeal, has important implications for the use of demand promissory notes generally and, in particular in tax planning. Legal and tax planners should be aware that standard drafting language used in promissory notes may bring about unintended consequences.

In Hare, the taxpayer loaned a sum of money to her son and secured the loan with a promissory note. Although some interest payments were made under the note, the son did not respond to a demand for payment of the loan and the taxpayer brought an action for recovery.
At trial and on appeal, the defendant claimed the action was barred because it was made after the statutory limitation period had expired. The issue was whether the two-year basic limitation period under the Limitations Act 2002 had started to run at the time the note was issued, or on the demand for payment under the note. If the former, the action was statute-barred; if the latter, the action could proceed.

The Limitations Act 2002 provides that the two-year limitation period begins to run on the discovery of the claim. The Court of Appeal emphasized that the law that a creditor has the right to immediate repayment of a demand loan is well-settled. As the creditor under a demand note has the right to immediate payment, there is nothing to be discovered by the creditor before he or she becomes aware of their claim, which is established immediately on receipt of the demand promissory note. The Court of Appeal, therefore, found that the discovery of the claim occurred at the time the note was issued, as the creditor was in a position to enforce the note as of that date. The action was, therefore, statute-barred because it was commenced more than two years after discovery of the claim.

Payments and Acknowledgements

The practical outcome of the decision is that the limitation period for ordinary demand promissory notes will start to run on the execution and delivery of the promissory note by the debtor.

Under the Limitations Act 2002, each payment of interest or principal, if made within two years of the later of

(i) the date the note is made;

and (ii) the last such payment, will restart the limitation period. Similarly, a written acknowledgement of the debtor made within the basic limitation period will restart the limitation period under the Limitations Act 2002.

If the said two-year limitation period expires before demand is made and a statement of claim issued by the holder, the holder is prevented by law from enforcing a claim against the debtor by court proceedings. Although this may not necessarily invalidate the promissory note as an obligation per se, for all practical purposes the note then has no value. It is commonplace to use demand promissory notes in many situations, and the expiration of collection rights under such notes two years after the later of the date the note is made and the date of the last payment would have grave consequences.

Therefore, as a result of this decision,

it would be prudent to add language to demand promissory notes used for business purposes to the effect that:

the promissory note is made for business purposes and is a business agreement as defined in the Limitations Act 2002; and

to the extent permitted by law, each limitation period provided for in the Limitations Act 2002 applicable to the promissory note is hereby suspended.

Nullity Exception to Limitation Periods (American Case Note)

See below for authorship of this case comment

Nullity Exception Can Be Raised within Limitation Period Notwithstanding Performance
March 10 2009


In a decision dated December 4 2008 the Second Civil Division of the Court of Cassation has clarified the conditions under which insurers can assert the nullity exception to an insurance contract. The court held that nullity based on Article L113-8 of the Insurance Code can be raised as an exception within the two-year limitation period notwithstanding contractual performance by the insurer. This pragmatic decision clarifies the court's previous case law and is seemingly grounded on equity and policy considerations.


The company Ben's Garage du stade had subscribed to an AXA France comprehensive insurance policy. After a fire caused by arson, the insured made a claim against its insurer which, as compensation, made a provisional payment pursuant to the insurance contract. The insurer later denied the insured full coverage for the claim, asserting that it had resulted from a wilful misrepresentation, and further requested the reimbursement of the provisional payment. The insured sued the insurer, asserting payment of the claim by the insurer. The insurer used nullity of the contract as a defence.

The court of appeal denied the claim and ordered that the insurer be reimbursed with the amounts it had paid pursuant to the insurance contract.

The insured appealed, contending that the nullity exception can be raised to avoid performance of a contract only if the contract has not yet been fully or partially performed. The company further asserted that the court of appeal had breached Article L113-8 by granting the nullity exception even though the insurer had already made several payments under the insurance policy, with the effect that the insurance contract had been partially performed.


The Court of Cassation rejected the appeal and affirmed the court of appeal's decision, stating that:

"The nullity deriving from Article L113-8 of the Insurance Code can be raised as an exception within the two-year limitation period notwithstanding performance of the insurance contract."


According to the general principles of contract law, the nullity exception is perpetual.
In practice, this means that - unlike a nullity action, which must be brought within a certain limitation period - the nullity exception can be used at any time. A defendant can raise the defence that a contract is void without regard to a limitation period, even after a nullity action would be time-barred.

The purpose of this perpetuity is to prevent parties from waiting until the nullity action is time-barred in order to ask the court for enforcement of a void contract, without the defendant being able to oppose on the grounds of nullity.

However, this principle is subject to the condition that the contract has not yet been performed, whether fully or partially. Performance, or the beginning of performance, of a contract is considered to be an implicit confirmation of the contract even if it was otherwise void.

Case law has traditionally followed the same logic regarding insurance contracts, including the nullity grounded on Article L113-8, which provides that the insurance contract will be void in case of wilful misrepresentation on the part of the insured and falls within the two-year limitation period of Article L114-1.

According to the case law of the First Civil Division of the Court of Cassation, an insurer that has not yet performed a contract and has been aware of the insured's wilful misrepresentation for more than two years without denouncing the contract through a nullity action can still assert it by raising an exception in the course of any proceedings initiated by the insured. The right to assert the nullity of an insurance contract by way of an exception is therefore perpetual, subject to the condition that the contract has not yet been performed fully or partially.(1)

In another case(2) a court of appeal had granted an insurer's nullity exception, reimbursing the sums it had paid under a void contract and finding that the two-year limitation period provided for by Article L114-1 could not be used against an insurer that raised the nullity of the contract by way of an exception, notwithstanding that the insurer had voluntarily performed the contract before the insured sued for compensation under the insurance policy.

The Second Civil Division of the Court of Cassation quashed the court of appeal's decision, finding that "the nullity exception can be raised only to challenge the performance of a contract that has not yet been performed, whether fully or partially".

In light of these precedents, the insurer in this case should have been unable to raise the nullity exception as it had already partially performed the void insurance contract by making several payments to the insured pursuant to the contract.

However, the facts of that case were different from those in this case, as the nullity exception had been raised after the two-year limitation period. In this case, the exception was raised within the limitation period.

So the court has granted defendants a non-perpetual nullity exception which can be successfully raised even if a contract has already been partially performed, as long as it is raised within the two-year limitation period provided for in Article L114-1. The starting point of the limitation period is not expressly formulated in this decision, but it can be assumed that it starts to run from the moment the insurer is aware of the condition which affects the contract's validity.
Any alternative ruling would be inequitable and legally illogical as it would prevent the insurer from asserting the contract's nullity only because it did not initiate court proceedings. If a nullity action can be brought by an insurer that has partially performed an insurance contract, as long as it is exercised within the two-year limitation period, there seems to be no reason why the nullity could not be raised within the same limitation period by the same insurer as an exception in the course of proceedings initiated by the insured in order to recover payments under the void insurance contract.

Therefore, the decision cannot be considered to overrule previous case law. It clarifies it and provides a safer and more predictable legal environment for insurers, which now know that they will be able to recover payments made under a void insurance contract pursuant to Article L113-8, notwithstanding partial performance of the contract, provided that the exception is raised within two years of the insurer's discovery of the insured's wilful misrepresentation.

For further information on this topic please contact Carole Sportes at BOPS (SCP Bouckaert Ormen Passemard Sportes) by telephone (+33 1 70 37 39 00) or by fax (+33 1 70 37 39 01) or by email ( The BOPS website can be accessed at

(1) Cass Civ 1st, June 23 1993.
(2) Cass Civ 2nd, October 19 2006.

Exceptions to Limitation Periods

A missed limitation period may not be fatal to a claim against an insurer.

The Saskatchewan Court of Appeal overturned the chambers judge's decision that although proposed amendments to the statement of claim were outside the limitation period, they should nonetheless be allowed pursuant to section 20 of Saskatchewan’s Limitation Act which provides an exception to the normal limitation periods.

Cameco Corp. v. Insurance Co. of the State of Pennsylvania, [2008] S.J. No. 244, April 18, 2008, Saskatchewan Court of Appeal, G.R. Jackson, R.G. Richards and D.C. Hunter JJ.A.

The plaintiff incurred potential liability to the victims of a helicopter crash in 1995. The families of the victims filed actions in Saskatchewan and British Columbia. One of the plaintiff’s insurers, Associated Aviation Underwriters Inc., now Global aerospace Inc. (“Global”) assumed the plaintiff’s defence in those actions. The plaintiff then filed an action against its other insurers in 1999, claiming that they “had neglected or refused to pay legal, defence, investigation, negotiation and settlement costs as required by their respective policies of insurance” (the “Underlying Action”). Global was a third party to the Underlying Action. in 2005, Global settled all the claims against the plaintiff arising from the helicopter crash and in 2007, Global filed a notice of motion in the Underlying Action to vary the plaintiff’s pleadings. The variations sought would effectively substitute Global as a plaintiff by substituting its claim for contribution in place of the plaintiff’s claim for indemnification. The application asked for “radical changes to [the plaintiff’s] statement of claim”.

The chambers judge held that although Global’s proposed amendments were outside the limitation period, they should nonetheless be allowed pursuant to section 20 of Saskatchewan’s Limitation Act, which provides an exception to the normal limitation periods, holding:
Notwithstanding the expiry of a limitation period after the commencement of a proceeding, a judge may allow an amendment to the pleadings that asserts a new claim or adds or substitutes parties if:

(a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and

(b) the judge is satisfied that no party will suffer actual prejudice as a result of the amendment.
The defendants appealed the decision of the chambers judge. The Court of Appeal held that the chambers judge erred in allowing the proposed amendments. The Court held that provisions like s. 20 “provide for exceptions to limitation periods but should not be allowed to become a means for their wholesale avoidance”, and that the sought amendments were too dramatic to fall within the scope of s. 20.

This case was originally summarized by W. Jay Havelaar and originally edited by David D. Pilley.

Hitchens's Excoriation of Wright

Multicultural Masochism

The "war on terrorism" didn't cause the Fort Hood shootings.By Christopher HitchensPosted Monday, Nov. 23, 2009, at 1:37 PM ET

It's both amusing and educational to observe a consensus when it suddenly starts to give way at all points without yielding an inch. A couple of weeks ago, the consoling view was that Maj. Nidal Malik Hasan was a man more to be pitied than feared, a full-blown officer in the U.S. armed forces who was too shaken up by the stories of returned veterans to be able to function properly, and a physician too stressed-out to bear in mind that there was such a thing as a Hippocratic oath.

Why, even the FBI had interpreted his e-mails to Anwar al-Awlaki as quite "consistent with research being conducted by Maj. Hasan in his position as a psychiatrist at the Walter Reed Medical Center."

That latter finding does not stack up very well with the disclosure that the major was imploring Awlaki's spiritual advice some time before the online imam issued a finding of his own to the effect that bullets discharged at American soldiers were fired in a holy cause. The Washington Post and ABC News, which drew well ahead of the consensus in their reporting, also unearthed e-mails from Hasan to the Yemen-based preacher, asking when jihad tactics might be justified, what were the circumstances that would license the killing of innocent bystanders, and expressing the hope that the e-mailer and his respondent might one day be united in paradise.

Since Awlaki was only in Yemen in the first place because he'd found the United States an inconvenient domicile (after having had direct contact with three of the 19 air pirates and mass murderers of Sept. 11, 2001, or "9/11 hijackers" as they are now euphemistically termed), we can apparently congratulate ourselves on paying for an FBI that lacks the nasty and suspicious mind that spoils so much police work in "the community."

Very well, then; the case for Maj. Hasan the overburdened caseworker seems to have evaporated. Robert Wright, among others, is big enough to admit as much. Wright, now emerging as the leading liberal apologist for the faith-based (see his intriguing new book The Evolution of God), now proposes an alternative theory of Maj. Hasan's eagerness to commit mass murder. "The Fort Hood shooting," says Wright, "is an example of Islamist terrorism being spread partly by the war on terrorism—or, actually, by two wars on terrorism, in Iraq and Afghanistan." I know that contributors to the New York Times op-ed page are not necessarily responsible for the headlines that appear over their work, but the title of this one—"Who Created Major Hasan?"—really does demand an answer, and the only one to be located anywhere in the ensuing text is "We did."

Everything in me revolts at this conclusion, which is echoed and underlined in another paragraph of the article. Why, six months ago, did "a 24-year-old-American named Abdulhakim Mujahid Muhammad—Carlos Bledsoe before his teenage conversion to Islam—fatally shoot a soldier outside a recruiting station in Little Rock, Ark.? ABC News reported, "It was not known what path Muhammad … had followed to radicalization." Well, here's a clue: After being arrested he started babbling to the police about the killing of Muslims in Iraq and Afghanistan." Wright describes this clue-based deduction of his as an illustration of the way that "an isolated incident can put you on a slippery slope." Though I can't find much beauty in his prose there, I want to agree with him.

For a start, did Hasan or Muhammad ever say what "killing" of which "Muslims in Iraq and Afghanistan" they had in mind? There isn't a day goes by without the brutal slaughter of Muslims in both countries by al-Qaida or the Taliban. And that's not just because most (though not all) civilians in both countries happen to be of the Islamic faith. The terrorists do not pause before deliberately blowing up the mosques and religious processions of those whose Muslim beliefs they deem insufficiently devout. Most of those now being tortured and raped and executed by the Islamic Republic of Iran are Muslim. All the women being scarred with acid and threatened with murder for the crime of going to school in Pakistan are Muslim. Many of those killed in London, Madrid, and New York were Muslim, and almost all the victims callously destroyed in similar atrocities in Istanbul, Cairo, Casablanca, and Algiers in the recent past were Muslim, too.

It takes a true intellectual to survey this appalling picture and to say, as Wright does, that we invite attacks on our off-duty soldiers because "the hawkish war-on-terrorism strategy—a global anti-jihad that creates nonstop imagery of Americans killing Muslims—is so dubious." Dubious? The only thing dubious here is his command of language. When did the U.S. Army ever do what the jihadists do every day: deliberately murder Muslim civilians and brag on video about the fact? For shame. The slippery slope—actually the slimy slope—is the one down which Wright is skidding.

It is he, who I am taking as representative of a larger mentality here, who uses equally inert lingo to suggest that Maj. Hasan was "pushed over the edge by his perception of the Iraq and Afghanistan wars." That's a nice and shady use of the word "perception." Might it not be equally true to say that Hasan was all-too-easily pulled over the edge, having already signaled his devout eagerness for the dive, by a cleric who makes a living by justifying murder of Muslims and non-Muslims alike?

In many recent reports of this controversy one has seen reporters from respectable papers referring not just to generic, uniform "Muslims" but even to the places where they live as "Muslim lands." If you would object to seeing the absurd term "Christendom" in your newspaper as a description of Europe, let alone to reading about "Jewish land" on the West Bank, then please have the fortitude to complain next time violent theocracy is smuggled into the discourse under the increasingly feeble disguise of multicultural masochism.

In Fact, What the Hammer Wrote

Medicalizing mass murder: The novel, politically-correct theories of why Nidal Hasan snapped

Charles Krauthammer

Friday, November 13th 2009, 4:00 AM

What a surprise - that someone who shouts "Allahu Akbar" (the "God is great" jihadist battle cry) as he is shooting up a room of American soldiers might have Islamist motives. It certainly was a surprise to the mainstream media, which spent the weekend after the Fort Hood massacre downplaying Nidal Hasan's religious beliefs.

"I cringe that he's a Muslim. . . . I think he's probably just a nut case," said Newsweek's Evan Thomas. Some were more adamant. Time's Joe Klein decried "odious attempts by Jewish extremists . . . to argue that the massacre perpetrated by Nidal Hasan was somehow a direct consequence of his Islamic beliefs." While none could match Klein's peculiar cherchez-le-juif motif, the popular story line was of an Army psychiatrist driven over the edge by terrible stories he had heard from soldiers returning from Iraq and Afghanistan.

They suffered. He listened. He snapped.

Really? What about the doctors and nurses, the counselors and physical therapists at Walter Reed Army Medical Center who every day hear and live with the pain and suffering of returning soldiers? How many of them then picked up a gun and shot dozens of innocents?

It's been decades since I practiced psychiatry. Perhaps I missed the epidemic.
But, of course, if the shooter is named Nidal Hasan, whom National Public Radio reported had been trying to proselytize doctors and patients, then something must be found. Presto! Secondary posttraumatic stress disorder, a handy invention to allow one to ignore the obvious.
And the perfect moral finesse. Medicalizing mass murder not only exonerates. It turns the murderer into a victim. After all, secondary PTSD, for those who believe in it, is known as "compassion fatigue." The poor man - pushed over the edge by an excess of sensitivity.
Have we totally lost our moral bearings? Nidal Hasan (allegedly) cold-bloodedly killed 13 innocent people. In such cases, political correctness is not just an abomination. It's a danger, clear and present.

Consider the Army's treatment of Hasan's previous behavior. NPR's Daniel Zwerdling interviewed a Hasan colleague at Walter Reed about a hair-raising Grand Rounds that Hasan had apparently given. Grand Rounds are the most serious academic event at a teaching hospital - attending physicians, residents and students gather for a lecture on an instructive case history or therapeutic finding.

I've been to dozens of these. In fact, I gave one on posttraumatic retrograde amnesia - as you can see, these lectures are fairly technical. Not Hasan's. His was an hour-long disquisition on what he called the Koranic view of military service, jihad and war. It included an allegedly authoritative elaboration of the punishments visited upon nonbelievers - consignment to hell, decapitation, having hot oil poured down your throat. This "really freaked a lot of doctors out," reported NPR.
Nor was this the only incident. "The psychiatrist," reported Zwerdling, "said that he was the kind of guy who the staff actually stood around in the hallway saying: Do you think he's a terrorist, or is he just weird?"

Was anything done about this potential danger? Of course not. Who wants to be accused of Islamophobia and prejudice against a colleague's religion?

One must not speak of such things. Not even now. Not even after we know that Hasan was in communication with a notorious Yemen-based jihad propagandist. As late as Tuesday, The New York Times was running a story on how returning soldiers at Fort Hood had a high level of violence.

What does such violence have to do with Hasan? He was not a returning soldier. And the soldiers who returned home and shot their wives or fellow soldiers didn't cry "Allahu Akbar" as they squeezed the trigger.

The delicacy about the religion in question - condescending, politically correct and deadly - is nothing new. A week after the first (1993) World Trade Center attack, the same New York Times ran the following front page headline about the arrest of one Mohammed Salameh: "Jersey City Man Is Charged in Bombing of Trade Center."

Ah yes, those Jersey men - so resentful of New York, so prone to violence.

Speaking of Robert Wright, He Wrote this as to What Moved Hasan

Who Created Major Hasan?


Princeton, N.J.

(I say: something only an "intellectual" could have written.)

IN the case of Maj. Nidal Malik Hasan and the Fort Hood massacre, the verdict has come in. The liberal news media have been found guilty — by the conservative news media — of coddling Major Hasan’s religion, Islam.

Liberals, according to the columnist Charles Krauthammer, wanted to medicalize Major Hasan’s crime — call it an act of insanity rather than of terrorism. They worked overtime, Mr. Krauthammer said on Fox News, to “avoid any implication that there was any connection between his Islamist beliefs ... and his actions.” The columnist Jonah Goldberg agrees. Admit it, he wrote in The Los Angeles Times, Major Hasan is “a Muslim fanatic, motivated by other Muslim fanatics.”

The good news for Mr. Krauthammer and Mr. Goldberg is that there is truth in their indictment. The bad news is that their case against the left-wing news media is the case against right-wing foreign policy. Seeing the Fort Hood shooting as an act of Islamist terrorism is the first step toward seeing how misguided a hawkish approach to fighting terrorism has been.

The American right and left reacted to 9/11 differently. Their respective responses were, to oversimplify a bit: “kill the terrorists” and “kill the terrorism meme.”

Conservatives backed war in Iraq, and they’re now backing an escalation of the war in Afghanistan. Liberals (at least, dovish liberals) have warned in both cases that killing terrorists is counterproductive if in the process you create even more terrorists; the object of the game isn’t to wipe out every last Islamist radical but rather to contain the virus of Islamist radicalism.
One reason killing terrorists can spread terrorism is that various technologies — notably the Internet and increasingly pervasive video — help emotionally powerful messages reach receptive audiences. When American wars kill lots of Muslims, inevitably including some civilians, incendiary images magically find their way to the people who will be most inflamed by them.

This calls into question our nearly obsessive focus on Al Qaeda — the deployment of whole armies to uproot the organization and to finally harpoon America’s white whale, Osama bin Laden. If you’re a Muslim teetering toward radicalism and you have a modem, it doesn’t take Mr. bin Laden to push you over the edge. All it takes is selected battlefield footage and a little ad hoc encouragement: a jihadist chat group here, a radical imam there — whether in your local mosque or on a Web site in your local computer.

This, at least, is the view from the left.

Exhibit A in this argument is Nidal Hasan. By all accounts he was pushed over the edge by his perception of the Iraq and Afghanistan wars. He also drew inspiration from a radical imam, Anwar al-Awlaki. Notably, it had been eight years since Major Hasan actually saw Mr. Awlaki, who moved from America to Yemen after 9/11. And for most of those years the two men don’t seem to have communicated at all. But as Major Hasan got more radicalized by two American wars and God knows what else, the Internet made it easy to reconnect via e-mail.

The Fort Hood shooting, then, is an example of Islamist terrorism being spread partly by the war on terrorism — or, actually, by two wars on terrorism, in Iraq and Afghanistan. And Fort Hood is the biggest data point we have — the most lethal Islamist terrorist attack on American soil since 9/11. It’s only one piece of evidence, but it’s a salient piece, and it supports the liberal, not the conservative, war-on-terrorism paradigm.

When the argument is framed like this, don’t be surprised if conservatives, having insisted that we not medicalize Major Hasan’s crime by calling him crazy, start underscoring his craziness. The Iraq and Afghanistan wars, they’ll note, aren’t wars against Islam or against Muslims; Major Hasan must have been deluded to think that they are! Surely we can’t give veto power over our foreign policy to a crazy ... well, not crazy, but, you know, not-entirely-sane person like Major Hasan.

It’s true that Major Hasan was unbalanced and alienated — and, by my lights, crazy. But what kind of people did conservatives think were susceptible to the terrorism meme? Like all viruses, terrorism infects people with low resistance. And surely Major Hasan isn’t the only American Muslim who, for reasons of personal history, has become unbalanced and thus vulnerable. Any religious or ethnic group includes people like that, and the post-9/11 environment hasn’t made it easier for American Muslims to keep their balance. That’s why the hawkish war-on-terrorism strategy — a global anti-jihad that creates nonstop imagery of Americans killing Muslims — is so dubious.

Central to the debate over Afghanistan is the question of whether terrorists need a “safe haven” from which to threaten America. If so, it is said, then we must work to keep every acre of Afghanistan (and Pakistan, Somalia, Sudan, etc.) out of the hands of groups like the Taliban. If not — if terrorists can orchestrate a 9/11 about as easily from apartments in Germany as from camps in Afghanistan — then maybe never-ending war isn’t essential.

However you come out on that argument, the case of Nidal Hasan shows one thing for sure: Homegrown American terrorists don’t need a safe haven. All they need is a place to buy a gun.
Concerns about homegrown terrorism may sound like wild extrapolation from limited data. After all, in the eight years since 9/11, none of America’s several million Muslims had committed violence on this scale.

That’s a reminder that, contrary to right-wing stereotype, Islam isn’t an intrinsically belligerent religion. Still, this sort of stereotyping won’t go away, and it’s among the factors that could make homegrown terrorism a slowly growing epidemic. The more Americans denigrate Islam and view Muslims in the workplace with suspicion, the more likely the virus is to spread — and each appearance of the virus in turn tempts more people to denigrate Islam and view Muslims with suspicion. Whenever you have a positive feedback system like this, an isolated incident can put you on a slippery slope.

And the Fort Hood shooting wasn’t the only recent step along that slope. Six months ago a 24-year-old American named Abdulhakim Mujahid Muhammad — Carlos Bledsoe before his teenage conversion to Islam — fatally shot a soldier outside a recruiting station in Little Rock, Ark. ABC News reported, “It was not known what path Muhammad ... had followed to radicalization.” Well, here’s a clue: After being arrested he started babbling to the police about the killing of Muslims in Iraq and Afghanistan.

Both the Afghanistan and Iraq wars were supposed to reduce the number of anti-American terrorists abroad. It’s hardly clear that they’ve succeeded, and they may have had the opposite effect. Meanwhile, on the other side of the ledger, they’ve inspired homegrown terrorism — a small-scale incident in June, a larger-scale incident this month. That’s only two data points, but I don’t like the slope of the line connecting them.

Sept. 11, 2001, though a success for Osama bin Laden, was in the scheme of things only a small tactical triumph; his grandiose aspirations go well beyond the killing of a few thousand people and the destruction of some buildings. Maybe he feels that our descent into the carnage of Iraq and Afghanistan has moved him a bit closer to his goal. But if he succeeds in tearing our country apart along religious and ethnic lines, he will truly be able to declare victory.

Interesting Exchange between Robert Wright and Steven Pinker

Monday, November 9, 2009

Superb Note on the Fall of the Wall

The Fall of One Wall

Peter Wehner

It is an anniversary that should rank among the greatest we recognize: the fall of the Berlin Wall and, with it, the end of Soviet Communism and a successful conclusion to the Cold War. And yet it passes with very little attention, as almost an afterthought. It is an astonishing oversight on our part.

There are many things to take away from the meaning of what unfolded at the Berlin Wall two decades ago — one of which is that the West has many more inherent strengths many of us often forget. As a reference point, think back to the early-to-mid 1980s. One of the influential books of that time was How Democracies Perish by the distinguished French philosopher and journalist Jean-Francois Revel. The first sentence of Mr. Revel's book reads this way: "Perhaps in history democracy will have been an accident, a brief parenthesis which comes to a close before our very eyes." The aim of the book, Revel wrote, "is to describe in detail the implacable democracy-killing machine this world of ours has become. There may be some satisfaction in understanding how it works, even if we are powerless to stop it."

What is even more noteworthy is the theory underpinning Mr. Revel's conclusion. Structural weaknesses enervate democracies. Democratic societies, we were told, are inwardly oriented and self-hating. It was said that we were in denial about the threats we faced and the nature of totalitarian regimes. And there was the failure of Western nerve and courage. Faced with a ruthless, determined, patient enemy, democracies -- including the United States -- were acquiescing in their own defeat. Mr. Revel's bottom line was this: "Communism is a better machine for world conquest than democracy, and this is what will decide the final outcome of their struggle."

Six years after Revel's influential book was published, Soviet Communism was dead and democracy has rarely been more dominant. What are we to make of this?

Perhaps the first thing to recognize is that it has long been said that America and the West face an inherent disadvantage when compared to the discipline, efficiency, and brutality of totalitarian regimes. Freedom leads to softness, decadence and the loss of moral courage. We had become too comfortable and cosseted to endure hardships and the burdens of war. But here is what Winston Churchill said in the aftermath of Pearl Harbor, in response to those claims:

Silly people -- and there were many, not only in enemy countries -- might discount the force of the United States. Some said they were soft, others that they would never be united. They would fool around at a distance. They would never come to grips. They would never stand blood-letting. Their democracy and system of recurrent elections would paralyze their war effort. They would be just a vague blur on the horizon to friend and foe. Now we should see the weakness of this numerous but remote, wealthy and talkative people. But I had studied the American Civil War, fought out to the last desperate inch. American blood flowed in my veins. I thought of a remark which Edward Grey had made to me more than thirty years before -- that the United States is like 'a gigantic boiler. Once the fire is lighted under it there is no limit to the power it can generate.'

It turns out that in the contest between freedom and totalitarianism, freedom does pretty well. Whittaker Chambers, without even knowing it, joined the winning side. There are a number of explanations for this, including the fact that Western democracies are usually technologically superior to, and richer than, their enemies. And democratic regimes are inherently self-correcting; fascist ones are not. But what is striking to me is less that leading Western thinkers (and non-Western thinkers; see Aleksandr Solzhenitsyn's 1978 commencement address at Harvard University) did not recognize that Communism's intrinsic failures would lead to its demise. What is worth noting, rather, is that many defenders of democracy did not fully appreciate the inherent strengths of human liberty.

There are certain human realities that have led to the rise of the democratic idea. Because liberty conforms to human nature, it often leads to human excellence and human flourishing. Freedom leads to advancements not merely in science, art, and literature; it also encourages acts of compassion and valor, and deepens the bonds of loyalty to one's country and affection for one's countrymen. The joyless conformity of totalitarianism eats away at the human spirit; the iron discipline and fanaticism of closed societies masks a hollowness at the core.

This does not mean we are at the end of history, or that democracies are without flaws, or that the success of democratic self-government is foreordained. Liberty can slip into license. Progress that has been made can be lost -- and it is worth remembering that democracies remain a rarity in history.

It's also important to bear in mind that the idea of freedom is alone insufficient; it needs to be backed up by the sword and the shield. "It is a piece of idle sentimentality that truth, merely as truth, has any inherent power denied to error of prevailing against the dungeon and the stake," John Stuart Mill, a great champion of liberty, wrote a century and a half ago. The same point holds true for freedom in its struggle against oppression. It is certainly not inevitable that freedom prevail; it requires will and courage -- and sometimes it requires force of arms.

With those caveats in place, though, there is something about the nature of human beings and our relationship to freedom that is vital and can help us better understand what occurred 20 years ago.

For all the challenges we face, we live in a relatively hopeful time in human history. And it is instructive to look back only a few decades ago, when it was thought by the intellectual class and even among some of our political leaders that the West was in decline and Spenglerian pessimism was in order. A few admirable and prescient leaders -- including John Kennedy, Daniel Patrick Moynihan, and, above all, Ronald Reagan -- would have none of it. They understood that, in Kennedy’s words:

it is clear that the forces of diversity are at work inside the Communist camp, despite all the iron disciplines of regimentation and all the iron dogmatisms of ideology. Marx is proven wrong once again: for it is the closed Communist societies, not the free and open societies which carry within themselves the seeds of internal disintegration. The disarray of the Communist empire has been heightened by two other formidable forces. One is the historical force of nationalism -- and the yearning of all men to be free. The other is the gross inefficiency of their economies. For a closed society is not open to ideas of progress--and a police state finds that it cannot command the grain to grow.

Twenty years ago the Wall came tumbling down. A sadistic, soul-killing police state came to an end. And the United States -- in confronting Soviet Communism, in supporting the forces of liberty across the globe, and in refusing to grow weary in doing good -- added another remarkable and estimable chapter to its record of achievement. That, I think, is in large part the meaning of this anniversary.

Sunday, November 8, 2009

Criminal Law Made Easy Part 3

Pages in category "Elements of crime"

The following 14 pages are in this category, out of 14 total. This list may not reflect recent changes (learn more).
Actus reus
Causation (law)
Criminal negligence
Element (criminal law)
Ignorantia juris non excusat
Intention (criminal law)
Mens rea
Omission (criminal law)
Reasonable person
Recklessness (law)
Strict liability (criminal)
Vicarious liability (criminal)

Criminal Law Made Easy Part 2

Actus reus: the prohibited act.

For example, in Canada's Criminal Code, at s. 322, the actus reus of theft is defined as follows:
"Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted."

Usually, but not always, the actus reus is defined as an act but an omission can constitute one as well, such as at s. 215, failing "to provide necessaries of life for a child under the age of sixteen years".

During the normal course of a criminal trial, a prosecutor proves actus reus and mens rea beyond a reasonable doubt and barring a successful defence, conviction follows.

The term was judicially considered in R v Théroux 1993 2 SCR 5 where Justice McLachlin, in reference to the actus reus of fraud:

"The offence has two elements: dishonest act and deprivation. The dishonest act is established by proof of deceit, falsehood or 'other fraudulent means'. The the element of deprivation is established by proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim, caused by the dishonest act."

Criminal Law Made Easy Part 1

Mens rea: Latin for "guilty mind"; guilty knowledge or intention to commit a prohibited act.
Also: "a particular state of mind such as the intent to cause, or some foresight of, the results of the act or the state of affairs." (R v Daviault 1994 3 SCR 63 at para. 74)

Many serious crimes require the proof of mens rea before a person can be convicted.
In other words, the prosecution must prove not only that the accused committed the offence (actus reus) but that he (or she) did it knowing that it was prohibited; that their act (or omission) was done with an intent to commit the crime.

A maxim rich in tradition and well known to law students is actus non facit reum, nisi mens sit rea or "a person cannot be convicted and punished in a proceeding of a criminal nature unless it can be shown that he had a guilty mind".

Not all offences require proof of mens rea such as many statutory or regulatory offences.

Friday, November 6, 2009

Basman on Walzer, Margalit, Yadlin and Kasher

I read Walzer's essay--—and I liked it very much.

It’s illuminating to compare and contrast this essay with his essay co-authored with Avishai Margalit-- I think the essays can be read together and complement each other, the former, as I say, illuminating the latter.

In the latter essay the issue is:

"What priority should be given to the duty to minimize casualties among the combatants of the state when they are engaged in combat...against terror?"

in the context of terrorists who embed themselves amongst civilians.

They cite the argument of Asa Kasher and Amos Yadlin that:

"Where the state does not have effective control of the vicinity, it does not have to shoulder responsibility for the fact that persons who are involved in terror operate in the vicinity of persons who are not."

Margalit and Walzer restate the argument after jettisoning any distinctions between terrorists and combatants (by assimilating both to the stipulation that the war is just) thusly:
"Kasher and Yadlin are simply assuming that the war against the enemy is a just war. Their claim, crudely put, is that in such a war the safety of 'our' soldiers takes precedence over the safety of 'their' civilians."

They attack this reframed claim on a number of grounds. Here are some of them:

1. It elides differences between combatants and non combatants—crucial to just war theory;

2. It erodes therefore the limits set by just war theory even in the context of a just war on the distinction between a just war and its just or unjust conduct;

3. Doing so is the imitation of terrorism even when terrorists are the enemy;

4. Hamas and Hezbollah are accountable when they make civilians the primary targets of their attack—and also when they deliberately use civilians as human shields. But neither of these crimes allows their enemies to give up their own obligation to avoid or minimize civilian injuries and deaths.

5. An understandable but morally misguided sentiment creeps into the Kasher-Yadlin paper when they write: "A combatant is a citizen in uniform"—so as to convince us that we should not ask our soldiers to take risks to save the lives of noncombatants on the other side.

6. Israel is morally required to behave towards non combatants in all those cases the way it would behave in the when—according to an example they construct— its citizens are held by Hezbollah in a “mixed vicinity”. Which is to say, as they say: “Whatever Israel deems acceptable as ‘collateral damage’ when its own captured citizens are at risk—that should be the moral limit in the other cases too.”

7. “Israel’s soldiers must, by contrast with its enemies, intend not to kill civilians, and that active intention can be made manifest only through the risks the soldiers themselves accept in order to reduce the risks to civilians.”

Walzer and Margalit quote Yadlin and Kasher as saying, “…that ‘jeopardizing combatants rather than bystanders during a military act against a terrorist would mean shouldering responsibility for the mixed nature of the vicinity for *no reason* at all.’” Their rejoinder to this argument is that “no reason” obviates the moral and legal requirement carefully to attempt to minimize civilian casualties in the circumstances, a point stressed emphatically by Walzer in his essay on “Proportionality and Responsibility”. It’s been a while since I considered the translated essay by Yadlin and Kasher, but if memory serves me correctly, Margalit and Walzer are overstating the others’ argument. For surely this is hyperbole:

“If there is "no reason" for responsibility of this sort, if the lives of "our" soldiers really take priority over "their" civilians, then why couldn't the soldiers use those civilians as shields? Since they have not created the "mixed vicinity," why can't they in turn take advantage of it? We don't see how Kasher and Yadlin can avoid providing justification for a practice that Israel officially condemns and that we believe they believe is despicable: the use of noncombatants as human shields for combatants.”

I’d suggest, contrary to Margalit and Walzer, that Yadlin’s and Kasher’s argument is in fact consistent with the claim in Walzer’s proportionality essay that the stricture in just war theory against killing civilians cannot morph into a functional equivalent to pacifism. It is inconceivable that Kasher and Yadlin are arguing for the unmeasured killing of civilians in order to save the lives of Israeli soldiers.

Rather they are addressing, I’d argue, the inevitable fact of civilian death in “mixed vicinities” controlled by the terrorists and arguing for a functional limit on Israeli soldiers’ deaths in such vicinities even if that means increased collateral damage. A clear example of this would be aerial bombardment as against boots on the ground in certain situations and under certain conditions.

My contention, is on this reading of Yadlin and Kasher, is that they are consistent with in principle with the Walzer of the proportionality essay. (A corollary of this is that if Walzer is consistent in both of his essays, then they are all ad idem in principle throughout.) In a nutshell, Yadlin and Kasher are exploring the requirements and contours of the carefulness and responsibility that Walzer argues for in his own essay—to repeat, the necessary weighing of the extent to which Israeli soldiers must sacrifice their lives to protect civilians in mixed vicinities that they do not control.

For as Walzer writes in his own essay:

“It is a central principle of just war theory that the self-defense of a people or a country cannot be made morally impossible, and so the more successful Hezbollah and Hamas are in hiding among civilians, the less useful the proportionality argument is—or,to be more precise, the less limiting it is.”