what i should do is call them tomorrow and ask about whether i can fax this.

i might have to mail it.

and, if i have to mail it, i'll have to ask for an extension.

strictly speaking, i should probably file a motion to reject the factum.

it's twice as long as it should be. and, it's introducing a completely different argument.

but, let's remember what i filed - i filed a request for certiorari due to the incompetence of the oiprd. and, they're arguing that the court doesn't have jurisdiction for that, but that's what certiorari is - it's a rule that the higher court has jurisdiction to pull the file. they're essentially denying the basis of certiorari, on what i don't know, but it's particularly weird in context, because it's actually statutorily enshrined. i'd be perfectly happy to argue that certiorari is an unwritten constitutional convention, but i don't have to - it's stated explicitly in the judicial review act. so, this idea that there's no statutory power is wrong, too.

so, i'd rather address these arguments than reject them. this is what the case is about, so let's address the issues rather than ignore them.

to put it another way, had they done this right in the first place, my original factum would have looked a lot like the reply factum that i'm going to file.

so, i'll point that out.  but, i feel the need to take this on head first.

so, they initially tried to justify the arrest under 495(1) by citing storrey, which was wrong.

now, they're trying to argue that the interpretation act overpowers 495(2), which is still wrong, regardless of how i'm interpreting the interpretation act. 495(2) provides a set of limitations that apply to all hybrid offences, regardless of whether the police wish to interpret the charges as indictable in other contexts, and regardless of how the crown elects to proceed, in the end.

and, i can find some references for that point.

no.

no.

that's a can of worms that seems unnecessary for right now.

i should be able to find more than enough scholarship and precedent to back up the supremacy of 495(2) over the interpretation act, and i should leave it at that.

but, if you read the act strictly literally, which you need to do with stuff like this...literalism is the right angle, here....

my concern is regarding the difficulty of winning this argument just right now. it's too much, and not necessary.

and, you know what?

i'm going to challenge the standard interpretation of the interpretation act. i think the precedent is wrong. this is what the statute says:

Indictable and summary conviction offences

34 (1) Where an enactment creates an offence,

(a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment;

(b) the offence is deemed to be one for which the offender is punishable on summary conviction if there is nothing in the context to indicate that the offence is an indictable offence; and

(c) if the offence is one for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, no person shall be considered to have been convicted of an indictable offence by reason only of having been convicted of the offence on summary conviction.

Criminal Code to apply

(2) All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of that Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides.

to me, it seems obvious that this part of the code is meant to state that the machinery of indictable offense should only be applied to strictly indictable offences, and that anything that isn't strictly indictable should be interpreted as summary. that would appear to be the purpose of the subsection (2).

i've read enough case law to know that judges often actually aren't that bright, and sometimes apparently on purpose.

how did we get here? did somebody misunderstand this? let me understand this.

it shouldn't matter, logically speaking. 495(2) of the criminal code should supersede the interpretation act first, because it is explicit; the interpretation act should only kick in after 495(2) has been contemplated. but, it seems to me as though we've misinterpreted the interpretation act. or, that's my interpretation, anyways - i think this says the exact opposite of what the scholarship argues it does.

to be clear on the logic around 495(2) and the interpretation act, which everybody seems to find so confusing.

- s. 495 (1) governs the rules of arrests for indictable offences.

- s. 495 (2) governs the rules of arrests for hybrid offences.

and, s. 495(2) is very clear in it's wording:

A peace officer shall not arrest a person without warrant for
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or
in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence,
may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

lawyer after lawyer and cop after cop wants to ignore this, but the statute is crystal fucking clear - this is the law you have to apply, first and foremost, because it explicitly states that you can't arrest somebody on a specifically hybrid offence if these conditions apply.

now, it might be true that you can treat a hybrid offence like an indictable offence in a variety of circumstances, but you can't just ignore this clause like everybody wants to. this is the appropriate rule. this is what the cops have to follow.

it's only once they've decided that you actually are a flight risk, or they actually caught you in the act, or they need to identify your identity, that the machinery of indictable offences can be brought in.

they have to get through this first! but, they often gloss over it. and, this is a major civil rights problem that i'm more than happy to drag to the supreme court in order to get fixed.

the case may very well reduce to the primacy of s. 495(2) and the logic underlying it. that might be the precise debate that drags on. and, that's fine, if it is, because the cops need their powers of arrest reduced, clearly.

so, what i should do is sort through this and figure out precisely what i want to respond to.

Moving party reply factum

The moving party may serve a reply factum to address any new issues raised in the responding party's factum. The factum shall contain consecutively numbered paragraphs setting out the moving party's position on the issue, followed by a concise statement of the law and authorities relating to it.

The moving party shall file three (3) copies of the reply factum with proof of service within ten (10) days after the service of the responding party's factum.

===========

so, i can only respond to new issues raised in the factum.

and there are quite a few, actually - they essentially filed a report. if there was ever a time for a reply factum, this is it.

yeah, i have to essentially ask the judge to accept the reply.

there's a form. and a process.

let's get to it...

you can imagine i'm chomping at the bit to respond. i'm deathtokoalas, bitch. this is what i do.

i do have the ability to file something called a 'reply factum', and you can imagine that it won't take me long to do it. i just need to get the rules straight, because it seems to be invoking a set of more exotic rules that i don't fully grasp, yet.

i feel like i can win this. it seems like i've caught them off guard on a number of points; i think their factum is full of reaching arguments and awkward precedents, but what exactly i can do in the reply factum isn't clear, yet. i don't want to do this wrong; i need to get the plot right.

but, there are some deep ideological and philosophical faultlines here as well, for example around the function of certiorari, and how fundamental it is, where deference lies and even the definition of harassment. i'm unabashedly liberal on these issues, and not afraid to make arguments that might be considered unfashionable.

so, that's actually what i'm doing tonight, now. 

yeah, i'm sorting through that case and it actually upholds my argument, not theirs, as the case makes it clear that a stalking charge requires there to be an objective concept of fear.

i was applying for housing, something i have an explicit right to do under ontario's human rights code. the premise that i was stalking her is preposterous. in fact, i thought i was applying to a guy named ryan - i hadn't the slightest clue of the identity of the property owner, and i actually still don't. the only thing there's any evidence of is that she was suffering from some kind of schizophrenic fantasy.

but, i know as a matter of fact that this issue has been dealt with more recently and the supreme court has explicitly ruled on the question: being annoying is not harassment under the law.

so, they're admitting that there should have been an investigation into the legality of the arrest, and then essentially submitting a review to the court, in the absence of the one i rejected. that's why the factum is so long - it essentially has the review i asked for in the first place in it.

they're doing some weird things.

they're citing a case from 1979 to argue that the arrest was legal. the law i'm citing was written in 1985 and would overpower the precedent by means of parliamentary supremacy. it is exceedingly unusual to see pre-charter cases cited as precedent in canada, so this is kind of an admittance of defeat. they're just going through the motions, pardon the pun.

they're also citing a case from 1999 on the question of whether being annoyed is enough to be harassed, and i know i can defeat that on appeal with newer precedents, if i have to. i don't expect the judge to fall for that.

so, there's an argument here, but it's not a very good one, and we'll have to let the judge work it out.

this is going to the next level...

i just got a 53 page factum from the oiprd.

the statutory limit is 20 pages.

they're taking me seriously. that's good. 

i think i got the motion faxed. i'll need to double check in the morning.

and, the coordinator at the divisional court appears to be a complete idiot, but i need to work through it. we're playing phone tag. that's fine. she's telling me that i need to canvas, and i get it, but she hasn't given me any dates to canvas with. this is what she sent me:

(1) the hearing will likely be scheduled during the week of apr-may-jun
(2) the second panel sits in the week of mar 23rd

what the fuck is the week of apr-may-jun? that is incoherent. and, if it's likely to be scheduled between april and june, of what relevance is the date in march?

so, i can't canvas until they give me some useful dates to canvas around, and the woman appears to be too stupid to realize that she needs to do it, despite explaining it to her at least five times, now.

i have to keep trying. but, fuck. how do these people get these jobs? i often wonder this. you walk around the city, and you see phd students serving coffee, and people working $60,000/yr government jobs that can barely tie their own shoes.

i will need to read this stuff tonight.

so, i was hoping i could get through to the scheduling people today before i got to work on inri015, but i call and call and call and there's just no answer...

i'm going to type up that motion, first, and keep calling every few minutes.

it seems like the democrats want to frame everything in terms of morality nowadays, regardless of what it is, and it just makes them look dumb when they do it.

climate change, debt forgiveness, healthcare...there's all these great arguments to use, but democrats want to throw them all away and reframe everything in these lowest common denominator religious terms.

so, universal healthcare isn't the most efficient way to deliver healthcare. rather, healthcare is a human right! meh. i'd rather talk about efficiency...

climate change has become a religious conviction, rather than an empirical issue. and, debt forgiveness is a religious debate about usury, rather than a question of deadweight loss on the economy.

how does an educated person interface with all of this nonsense? i'm looking for a smart candidate with smart policies, and even the supposed "right side" of the debate just wants to frame everything in these backwards terms.

is the problem in america too deep to really resolve? is the culture fundamentally unsalvageable? i wonder, sometimes.

the democrats repeatedly remind me that they are actually the conservative party, and the idea of framing debt as a moral issue is just another reminder of it. as a leftist, that strikes me as crazy talk. but, the other option is the nihilists in the republican party. and, when the spectrum is conservative v nihilist, rather than left v right, everything gets very weird....

i just want to remind people that the issue of student loan forgiveness wasn't initially presented as a moral issue, and that these contradictions that arise from approaching it as such are....you've all lost the plot.

there is a student loan bubble that is threatening to tear down the economy. and, debt repayment is this massive deadweight loss on the economy that siphons wealth upwards at no benefit to the vast majority of people.

so, there is apparently a substantive backlash to this idea of debt forgiveness, because they feel it's unfair to good fiscal planners that did the "right thing" in saving. this is just another example of why you should avoid framing things in moral terms - that is a dumb argument, through and through, and any debate stemming from it would be dumb.

and, it's why democrats are increasingly looking more and more like the dumb party. they've been taken over by these "progressive" moral zealots that want to govern out of the back of a bible, or the footnotes of a koran.

the issue is economic, not moral. and, i'd really like to see the debate reframed in scientific terms, and these uneducated country bumpkin arguments about the moral ramifications of debt left on the side of the road where they belong....

this gets the right idea across, but i think what he's ultimately trying to say and not really saying is that polling is only accurate up to a reasonable margin, an error that media cannot correct itself on.

they want to tell you that a 3% bump in the polls is a headline, and you should buy their paper or click their links to learn more about it - which is nonsense. that is noise. and, most of what we've seen is noise.

so, when the polls have three or four candidates - and i think it's three now, in iowa - in a (15,25) percent interval, 95% of the time, they really don't say anything more specific than that there's a 95% chance that each of the candidates will fall in that range. 

a 10% range is very large, and so long as each of the candidates end up in that range, the polling will have been correct. people expecting more from the polling than that are really abusing the notation...

further, it's iowa in february. the weather and exams are both huge turnout factors that are very hard to predict with polling - that is what that extra 5% is about.

that said, i think there's three likely narratives.

1) the actual party gets the vote out, and biden wins via machinery politics. i'd guess this is the most likely outcome.

2) everybody knows that sanders has a dedicated base and that they do better in caucuses because they're so dedicated. he has a benefit in what has sometimes been called the "enthusiasm gap". but, i'm a little skeptical about how enthusiastic they still are. i know my own enthusiasm for sanders has waned rather considerably, as i've heard him speak on more topics. it is still possible that sanders' base could dominate, but i actually think that his pivot towards a more mainstream voting base is going to undermine his ability to do well in these kinds of caucuses, and that key aspects of his coalition will feel marginalized and not show up.

3) there are compelling, if shallow, reasons for buttigieg to do well on the floor. age is a real consideration. and, the religious thing can work as a browbeating in a caucus scenario in buttfuck, iowa.

4) i think that warren has fallen out of contention, maybe a little later than i thought, but reasonably, anyways. and, i don't think klobuchar ever really had a serious chance.

but, the sterile, quantitative analysis is that we don't actually know what's going to happen - that either sanders or biden or buttigieg could win, and that the polling will not be "wrong", regardless of the outcome.

if yang or steyer wins, the polling will have been wrong.

https://fivethirtyeight.com/features/the-iowa-caucuses-are-in-4-days-almost-anything-could-still-happen/?ex_cid=2020-tracker

i don't always agree with mehdi hassan, but he is often refreshingly smart.

he tends to ask great questions.

the world isn't a fair place, and lots of bad things happen in it. so, i tend to react in sort of bewilderment when i see people try to argue for palestinian policy positions by producing appeals to morality, as though god herself is going to come down and set things straight if we whine and complain about it long enough.

it's not fair, and that's too fucking bad.

but, what palestine needs right now, more than ever, is to focus on a civil rights movement. i know - it's hard. the israelis are mean, and they're worse than mean sometimes, too. people are going to get hurt. but they have to do it.....

if there was some passing pretension towards the application of international law in the region in years past, what's happened over the last few days is that this has come to a close. that all got thrown out the window, and there's a new set of rules on the table, now.

there needs to be a change in the laws in israel to ensure that palestinians are treated as human beings. that's not going to be easy, but if they insist that it's too hard then they're just signing their own death warrant. it has to be the focus. and, they're going to fail over and over before they succeed, but they have to keep trying.

palestine will never have a state.

palestinians need to adjust and move on and refocus towards fighting a different battle.

i need to stop to eat & shower.

& i need to find some way to get a hold of the coordinator at the divisional court, in the morning.

inri029 updated and tested

https://jasonparent.bandcamp.com/album/warning

inri028 updated and tested

https://jasonparent.bandcamp.com/album/pop-music-a-tribute-to-carbon-dioxide

inri027 updated and tested

two more.

https://jasonparent.bandcamp.com/album/gene-os-a-soundtrack-for-an-italian-breakfast-cereal

inri016 updated and tested

https://jasonparent.bandcamp.com/album/eat-my-fuck