Via Gawker: ‘Samurai’ Turns Out to be Blind Man with White Cane; Police Tase Him Anyway. (h/t Ed. at Blawg Review):
Archive for the ‘Uncategorized’ Category
Today is the third anniversary of The Trial Warrior Blog.
I am thankful to my readers and fellow blawgers who have taken the time to stop by and visit and share their thoughts and ideas.
I don’t have much to report in the way of milestones, except getting sued along with the rest of the Internet and having a bogus Law Society complaint for my Twitter meanderings dismissed.
Lately, the blawging muse has been fickle and my output has been less than Greenfieldian in its prodigiousness.
Blawgin’ ain’t easy.
Time is the enemy: it saps inspiration, it blinds insight, and it betrays dedication.
Balancing professional and family commitments, while trying to find the time to write something of substantive value, remains a challenge. Without sounding forlorn or cynical, I am finding less and less to blog about. Most of what was relevant, interesting or contentious in the Canadian blawging community has been swallowed up by a proliferation of law firm blogs churning out quasi-electronic newsletters, with the obligatory commendations of legal tech gadgetry and the clarion call of social media marketing.
That any of my posts have garnered interest has — unsurprisingly and unremittingly — everything to do with my fellow blawgers and readers who have generously linked and shared them. For this alone, I am grateful beyond words.
The Supreme Court of Canada in Canada v. Craig, 2012 SCC 43 reminds lower courts how the principle of “stare decisis‘ works:
 There is no doubt that Dickson J.’s interpretation of s. 13(1) in Moldowan, is a precedent binding on the Federal Court of Appeal and the Tax Court of Canada. While Gunn agreed with much of what Dickson J. wrote in Moldowan, on the crucial question of whether farming as a source of income could be subordinate to another source and still avoid the loss deduction limitation of s. 31(1), Gunn departed from Moldowan, a precedent binding on the Federal Court of Appeal.
 One of the fallouts from Gunn is that it left the Tax Court of Canada and the Federal Court of Appeal itself in the difficult position of facing two inconsistent precedents and having to decide which one to follow. The uncertainty which the application of precedent is intended to preclude is seen in the decisions since Gunn, in which the Tax Court has acknowledged Moldowan as the leading case while also feeling bound to follow Gunn: Stackhouse v. R., 2007 TCC 146,  3 C.T.C. 2402, Falkener v. R., 2007 TCC 514,  2 C.T.C. 2231, Loyens v. R., 2008 TCC 486,  1 C.T.C. 2547, Johnson v. The Queen, 2009 TCC 383, 2009 D.T.C. 1245, Scharfe v. The Queen, 2010 TCC 39, 2010 D.T.C. 1078, and Turbide v. The Queen, 2011 TCC 371, 2011 D.T.C. 1347. And of course the Federal Court of Appeal followed Gunn in the instant case.
 It may be that Gunn departed from Moldowan because of the extensive criticism of Moldowan. Indeed, Dickson J. himself acknowledged that the section was “an awkwardly worded and intractable section and the source of much debate”. Further, that provision had not come before the Supreme Court for review in the three decades since Moldowan was decided.
 But regardless of the explanation, what the court in this case ought to have done was to have written reasons as to why Moldowan was problematic, in the way that the reasons in Gunn did, rather than purporting to overrule it.
 The Federal Court of Appeal, on the basis of its prior decision in Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149, in which that court reaffirmed the rule that it would normally be bound by its own previous decisions, followed Gunn, and not Moldowan. The application of Miller and the question of whether the Federal Court of Appeal should have followed Gunn simply did not arise, in view of the Moldowan Supreme Court precedent.
 The Federal Court of Appeal’s purported overruling of Moldowan does not, however, affect the merits of this appeal or the core question of whether Moldowan should in fact be overruled. [emphasis added]