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 Discussion on answer by ohwilleke: In…

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xngtng
Feb 6, 2024 20:58
@HelloDarkWorld By logic, law and evidence (and skill of persuasion)? You seem to think a trial depends on a gotcha moment. It is not (at least, not designed to be). Each side is entitled to prepare and make a full argument.
 

 Discussion on question by bdsl: Why a…

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xngtng
Oct 11, 2023 12:04
Because beyond reasonable doubt is not threshold of probability. A mathematical approach would also not work with the civil standard of proof, even if commonly described by "50%" in various contexts.
 

 Discussion between xngtng and Jaredo …

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xngtng
Sep 30, 2023 17:28
I will disengage now, since the reference to Canada Evidence Act is just bizarre.
xngtng
Sep 30, 2023 17:27
If you are truly interested in the development of British constitutional norms, the Law of the Constitution by Dicey and the Constitutional History of England by Maitland may be interesting to you.
xngtng
Sep 30, 2023 17:23
The whole government, everywhere in the world, runs on the collective "opinion" that the government is legitimate. There is no evidence that the so called Parliament of Canada legally has the sovereignty over the part of land in North America that is commonly known as Canada, except the fact that overwhelmingly most of people are doctrinated to believe in its claim.
xngtng
Sep 30, 2023 17:22
We can only say what the constitutional convention is. The only evidence necessary is that all relevant actors believe in it and act on it.
xngtng
Sep 30, 2023 17:20
No, British constitutional arrangements, being evolved historically with great continuity, are not logically "designed". How is that logical that a British MP cannot resign but a legal fiction of being appointed office of Crown be necessary? How is it logical that the same does not apply in Canada? If you want purely legal logic, there is none and you will never be satisfied.
xngtng
Sep 30, 2023 17:19
Because the Monarch wants to keep a fiction that it has the ultimate power, and the practical justification give is that there are circumstances where a Cabinet without the House's confidence may exist and it is that flexibility that Canada's constitutional monarchy supposedly allows.
xngtng
Sep 30, 2023 13:11
The principle of a Cabinet government was already a settled issue in Britain by 1867. The Canadian constitution explicitly calls for an interpretation similar in principle to the the notoriously unwritten UK constitution.
xngtng
Sep 30, 2023 13:08
In the 18th century, the office of Prime Minister emerged and eventually had the exclusive control over the cabient composition in the UK. Even before the Colonies had responsible government and until the Statute of Westminster following King-Byng affair, the Governors ruled on behalf of the British government (with advice from the Cabinet), not the Monarch personally.
xngtng
Sep 30, 2023 13:03
The Cabinet, at its origin, described the members of the (British) Privy Council who conferred privately (cabinet = private room) with the Sovereign to give advice. The development of the doctrine of parliamentary sovereignty gradually meant the exclusion of non-parliamentary members from the Cabinet, a process which gradually began from the late 17th century and had some interruptions. That's when Cabinet started to make the whole PC ceremonial in mother Britain.
xngtng
Sep 30, 2023 12:51
I am not sure if any more argument can ever convince you. The Sovereign cannot act alone or take advice from whomever they want when there is an elected government.
xngtng
Sep 30, 2023 12:45
This has been true before the Confederation ever since the responsible government became a concept in British North America (first achieved in Nova Scotia). William Young, the premier of NS, gave the LG the advice to appoint himself as the chief justice.
xngtng
Sep 30, 2023 12:45
I feel everything that could be said has been said. The Governor General, when exercising any power is obliged by constitutional convention to only take and act on advice from a Cabinet having the confidence of the House, whenever such Cabinet exists.
xngtng
Sep 28, 2023 21:49
Cabinet ministers are members of the Privy Council for the explicit purpose to be able to advise GG. Yes, that is a goal seeking move, if you want to call it, the goal being to establish a democratic government in Canada run by elected representatives.
xngtng
Sep 28, 2023 21:39
So if your only remaining concern is that if GG is able to act without the Cabinet's advice, the answer is technically yes. But whenever there is a Cabinet with confidence of the House, the GG must by constitutional convention act on that advice.
xngtng
Sep 28, 2023 21:37
Indeed, the King may reject the advice of a Cabinet that no longer holds the confidence, and may instead appoint a government that holds or appears to be able to hold or should be given a chance to hold the confidence. This is what Lt.-Gov. Guichon did when she rejected Christy Clark's advice and invited John Horgan to form a government, on the constitutional understanding that the NDP-Green govt must demonstrate its holding of confidence ASAP.
xngtng
Sep 28, 2023 21:26
FC judge appointments, generally, are not an urgent matter, unless perhaps some catastrophic events destroy or incapacitate the entire federal judiciary. In that case, just like a lame duck cabinet must nonetheless have the ability to react to emergencies (e.g. if Covid or a terrorist attack happened during the elections), the GG in any case would do what is necessary for the good functioning of the Canadian state. But the premise of responsible government remains.
xngtng
Sep 28, 2023 21:25
The GG indeed has the reserved powers to appoint without the advice of a Cabinet holding the confidence of the House, but they should only do it if the exercise of that power cannot be reasonably delayed until the formation of a responsible government.
xngtng
Sep 28, 2023 21:21
Whenever there is a responsible Cabinet holding the confidence of the House, the GG is constitutionally bound by the advice of the Cabinet. If not, then the GG does what is necessary to form a responsible Cabinet, the first step being the elections of a new House.
xngtng
Sep 28, 2023 21:16
The constitutional convention of responsible government means fundamentally that the King or his representative must appoint a government having the confidence of the people (through the House of Commons) or, as part of reserved powers, does what is necessary or conducive so that a responsible government is formed (e.g. through new elections).
xngtng
Sep 28, 2023 17:41
Any four or more Privy Councillors summoned may then act as a committee of the PC and advise the Governor in Council.
xngtng
Sep 28, 2023 17:33
The Sovereign or their representative would then only summon (on the advice of PM, most often) the current Ministers.
xngtng
Sep 28, 2023 17:33
Responsible government means the Sovereign will follow only the advice of people who have the confidence of the House, which are the PM and the Ministers they assemble, whether when appointing judges or making statutory regulations or otherwise exercising the executive power.
xngtng
Sep 28, 2023 17:33
Judicial appointments are made by order in Council as a collective advice of the Cabinet, not the Minister. The Minister of Justice being responsible to recommend potential nominees are simply how the government and Parliament (DoJ Act) chooses to divide its duties.
xngtng
Sep 28, 2023 17:33
The Cabinet is the committee of Privy Coucil responsible for advising the responsible government since it consists of the members answering to the Parliament.
xngtng
Sep 28, 2023 17:33
When different actors of the state interprets the conventions differently, constitutional crisis may result with various degrees of repercussions or improvements.
xngtng
Sep 28, 2023 17:33
So you are right, but you should recognize how it practically works is part of the foundation of the Canadian state, and not observing how it practically works (or even disagreeing what the conventions mean) may have important consequences. Past that stage, the courts or the "law" alone cannot resolve the crisis.
xngtng
Sep 28, 2023 17:33
You will quickly find without recognizing constitutional conventions nothing in Canada has a "legal" basis, which, of course, is still a position you may hold. But no law is law without you recognizing the sovereign (what law is there to give the British Parliament the power to modify and patriate Canada's constitution?); and for many people, not recognizing the doctrine of responsible government is zero steps (or for majority of people, a couple more steps) away from not recognizing the Queen.
 

 Discussion on answer by Harper - Rein…

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xngtng
Aug 23, 2023 17:09
While I may agree analogous practices in other situations could be somewhat unethical, for as long as airlines can literally sell seats they do not have I cannot consider skiplegging unethical...
 

 Discussion on answer by Johns-305: Wh…

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xngtng
Aug 23, 2023 16:13
Booking a ticket without intent to fly any or all parts of the itinerary is not deception. It can make the contract invalid, but it likely does not rise to deception under law, as no airlines I've checked so far ask the client to affirm their intention to travel, even if they "prohibit" avoidance of fares of the real itinerary in CoC. They may be able to ask for civil compensation, but the rules on the compensation may need to be sufficiently clear (how Lufthansa lost the case in Berlin)
 

 Discussion on question by KFK: Visito…

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xngtng
Jul 21, 2023 08:08
Additionally, the nationality is still relevant, as well as the domain of study. You may need an ATAS certificate before commencing your research activities in the UK, and the process is unfortunately more complicated for people coming from countries the West don't like (for just or unjust reasons).
xngtng
Jul 21, 2023 08:08
The UK university couldn't provide you a letter confirming "you’ve been accepted by a UK higher education institution to take part in research that’s relevant to the course you’re studying overseas"? Even for academic route you will need to show your invitation and reasons for visit.
 

 Discussion on question by Timmy: What…

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xngtng
Apr 20, 2023 17:05
@Nobody I don't disagree that the question belongs here. But there are a lot of seasonal workers. Some solutions are the same (annualized budgeting, finding other works to do etc.), some are different (eligibility for unemployment, availability and suitability of other jobs etc.).
 

 Discussion on question by Nzall: What…

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xngtng
Apr 3, 2023 08:19
The grammatical question would be better asked on French. As far as my understanding goes, single adjective signs are often in the default masculine form, similar to the generic demonstrative form "c'est occupé", although it is not wrong to use the feminine form, as in "la toilette est occupée".
xngtng
Apr 3, 2023 08:19
Or there may simply be a do-not-enter symbol or other red coloured indications...
 

 Discussion on answer by Dale M: Admit…

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xngtng
Feb 24, 2023 20:36
@Heinzi "we know...": "we" don't since the accused did not provide enough notice such that the prosecution may contest the claims (e.g. finding rebuttal witnesses) and by their own omission the accused forfeits the right to claim the defence at the trial. Of course, there are exceptional circumstances (e.g. a witness or the existence of video tapes only comes out later), and most court rules allow the judge the discretion to admit such evidence and/or allow necessary continuances for investigation. Post-conviction relief for factual innocence is also possible (notably habeas corpus).
 

 Discussion on answer by Tor-Einar Jar…

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xngtng
Oct 31, 2022 21:24
@Tor-EinarJarnbjo While non-binding, the European Commission's guide book on visa code does cite flight schedule change as an example of force majeure. In practice, I know both Swiss and Italian authorities giving concessions in such cases. Of course, it's possible that Germany takes a rather extreme interpretation of the European and its own laws.
xngtng
Oct 31, 2022 21:24
Any penalty the OP should be prepared to contest. If the airlines have to delay or cancel the flight at the airport, it is a force majeure that under Visa Code the authority shall issue a visa extension free of charge. 11(6) AufenthG also mentions cases when the foreigner is prevented from leaving without fault.
 

 Discussion on question by user131096:…

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xngtng
Sep 29, 2022 15:08
You cannot access Twitter without VPN in China.
xngtng
Sep 29, 2022 15:08
It is extremely unlikely that they can obtain name from a foreign ISP (at least for a trivial tweet). The non essential travel ban is still in place since May. Have you contacted the Chinese consulate or your local police in China regarding the reason? If it is political reason they will likely avoid answering directly, otherwise they will tell you at least the general reason. It is also possible someone may have reported your passport number as lost or damaged mistakenly.
xngtng
Sep 29, 2022 15:08
I'm sorry to hear about your situation. Did you post the tweet from an account with your real name? When did you leave China? If it is within the past 6 months or so, what did you tell exit immigration as your purpose of visit? They might have cancelled it if they discovered you exited China for a non-essential purpose. You may be eligible for secondary protection for political reasons, but not necessarily for violating pandemic controls (however unreasonable their measures may be).
 

 Discussion on answer by PMF: Is there…

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xngtng
Sep 27, 2022 18:58
@Greendrake bger.ch/ext/eurospider/live/fr/php/aza/http/… (para. 4) In my extremely limited experience with Swiss law, the interpretation tends not to follow the line of reasoning in your argument (not saying it's wrong). There are many strong social assumptions that are judicially noticed and given a lot of weights. Earning extra money is literally not a legitimate interest of an employee in this context; the law expressly forbids deliberately exchanging vacation time for money (329d al. 2).
xngtng
Sep 27, 2022 18:58
@Greendrake Paid work in itself indeed does not necessitate a finding of infringing legitimate interests. But anything done primarily for the reason of monetary gain, to the detriment of relaxation and rest, necessarily infringes legitimate interests of the employer (Federal Supreme Court decision 4C.68/1999). Of course, in many cases, the employee can justify certain activities as for purpose other than monetary gain (e.g. self-discovery etc.). But if an employee works 100% or even 80% during the holiday, there is a strong assumption that the objective of relaxation and rest is harmed.
 

 Discussion on answer by ohwilleke: On…

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xngtng
Jul 17, 2022 07:28
@KarlKnechtel You could compare with the case laws concerning the right to privacy under the Quebec Charter, which if literally translated from French, means the right to private life.
xngtng
Jul 17, 2022 07:28
@KarlKnechtel "Liberty" is not in conflict with "privacy". Privacy is the liberty to make private choices: personal autonomy is privacy. The first definition Google gives for privacy is "the state or condition of being free from being observed or disturbed by other people" (in this case, the government), even if nowadays privacy is used more in the data protection sense than its original ordinary sense.
 

 Discussion on question by DrMaga: Is …

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xngtng
Jul 7, 2022 19:01
"at the same time" I'm pretty sure one booking page was opened earlier than another. In any case, technical glitches happen.
 

 Discussion on question by user1353635…

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xngtng
Jul 6, 2022 21:19
Note that since the refugee crisis and Covid measures, passport checks on certain bus and rail routes became a lot more common than before.
xngtng
Jul 6, 2022 21:19
Does this answer your question? Can I enter other Schengen countries with EU residence permit but without passport?
 

 Discussion on answer by Nate Eldredge…

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xngtng
Jul 3, 2022 16:54
@vsz The burden of proof lies with the prosecution, but in many if not most cases prima facie intent is not hard to establish. Failure to exit the roundabout once it becomes obvious that a public inconvenience exists can be constructed as intention for the obstruction to continue, then it is up to the accused to justify against this presumption.