Wednesday, October 31, 2007

Brian Mulroney Releases Statement: Alleges Vendetta By CBC's The Fifth Estate

In a statement just released, former Canadian Prime Minister Brian Mulroney has lambasted CBC and its the fifth estate television program for an alleged 15 year "vendetta" and "continuing campaign to discredit him."

The Mulroney statement was issued in response to the airing Thursday of "The Unwritten Chapter," a the fifth estate episode that explored Mulroney's relationship with Karlheinz Schreiber, a German national who is currently facing extradition to Germany. The segment is described on the CBC's the fifth estate website as follows:

The launch of Brian Mulroney’s volume of memoirs, from his boyhood in Baie Comeau, through his years in power as Prime Minister, was the publishing event of this year.

But, in more than 1,000 comprehensive pages of anecdote and information there is one notable name missing--Karlheinz Schreiber—the German dealmaker at the center of the darkest chapter of Mr. Mulroney’s life.

In Brian Mulroney: The Unauthorized Chapter, Linden MacIntyre and a fifth estate team report new revelations about the relationship between the two men as well as details about the attempt to cover the trail of the $300,000 the former Prime Minister received from Schreiber.

Karlheinz Schreiber goes on the record to talk about a story from inside the world of Canadian politics.

Mulroney's statement is reproduced in full, below:

Statement by former Prime Minister Brian Mulroney/


MONTREAL, Oct. 31 /CNW Telbec/ - For almost 15 years, the CBC's Fifth Estate program has carried on a vendetta against former Prime Minister Brian Mulroney, designed to suggest illegal behavior by him in relation to the Airbus matter. Despite its failure to establish such behavior and despite the RCMP having stated - after a lengthy investigation at home and abroad - that it had no evidence to substantiate such suggestions, the Fifth Estate persists in continuing its efforts to tarnish Mr. Mulroney's name. Tonight, it resumed the attack, airing a program based essentially on the unreliable and uncorroborated statements of Karlheinz Schreiber, held at present in a Toronto jail after unsuccessful attempts to have the Supreme Court of Canada reverse an order for his extradition to Germany to face serious criminal charges.

Mr. Mulroney and Mr. Schreiber are engaged at the present time in litigation before the Supreme Court of Ontario dealing with issues directly involving their relationship. Mr. Mulroney will not comment publicly on Mr. Schreiber's statements while this litigation is pending, as it would be inappropriate for him to do so.

Mr. Mulroney emphatically rejects as unfounded this renewed attack made rresponsibly and maliciously by the Fifth Estate in its continuing campaign to discredit him.

I did not see the episode, but the CBC website indicates it will be available online shortly. (UPDATE - November 2, 2007 - The episode is now available here)

In the meanwhile, I love the "not for dissemination to the US" notice on The Statement (OMG, what if Katie Couric finds out about this....).

I guess the former P.M. hasn't heard about the internets, yet.

UPDATE - November 1, 2007 - Liberals demand inquiry into Mulroney revelations, but Harper government says "case closed."

- Garry J. Wise, Toronto

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Is Saku Koivu a Threat to the French Language?

I believe the appropriate response to this kind of silliness is "stick a puck in it..."

CBC has the story:

The Montreal Canadiens are defending team captain Saku Koivu after his poor French was criticized at a "reasonable accommodation" commission hearing.

In his testimony at the Bouchard-Taylor commission hearings in Quebec City Tuesday, lawyer Guy Bertrand used Koivu as an example of how Quebec is forced to make "unacceptable" linguistic accommodations that threaten French.

When called to speak in front of fans at the Bell Centre, Koivu speaks English, even though Quebec's Bill 101 enshrines the right of Quebecers to be spoken to in French, Bertrand said.

... Parti Québécois Leader Pauline Marois suggested Tuesday that Canadians players who don't speak French should perhaps take lessons to learn.

I would be surprised if attacking the beloved Habs makes for good politics in Quebec.

On the other hand, here in Toronto, it might score a few points.

But definitely not on this issue.

- Garry J. Wise, Toronto

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Chris Bentley Named Ontario's New Attorney General

In a cabinet shuffle announced yesterday, Premier Dalton McGuinty named Chris Bentley as Ontario's new Attorney General.

First elected in 2003, Bentley is MPP for London West.

He previously served as Minister of Training, Colleges and Universities from June, 2005. He was Minister of Labour from 2003 through 2005.

Prior to his election to the Legislature, Bentley practiced criminal and labour law with the London firm, Bentley & LeRoy LLP.

According to his official biography:

He is a graduate of Sir Frederick Banting Secondary School. He attended the University of Western Ontario and received his law degree from the University of Toronto Law School in 1979. He was called to the Ontario Bar in 1981 and later obtained a one-year Masters level degree from Cambridge University, England.

Chris practised criminal and labour law before his election as MPP for London West. He represented clients at trial, on appeal, and before various boards and tribunals.
Chris has taught part-time at the University of Western Ontario Law School since 1992. He helped to establish the Law School Careers Office and has lectured at various continuing education courses for judges, crowns, the police, and defence counsel. He is the author of a book on criminal law.

Chris is active in the London community. He was on the organizing committee and was the first chairperson of Neighbourhood Legal Services London & Middlesex, a legal clinic established in London in 1985 to assist low-income clients. He runs and has been a regular participant in the 24-hour relay to raise funds for London's hospitals. Chris has also completed three Boston marathons.

UPDATE: November 2, 2007

Less-than-flattering words on the new Attorney General from Julius Melnitzer at Legal Post.

Behind the quiesence was a singular sense of purpose, a keen interest in politics but disturbingly, also a sense that whatever Chris wanted, Chris got. Always your buddy but definitely not a buddy in bad times.

Much too smart to make the mistake that Michael Bryant, his predecessor, made. You'll never see him upstaging the premier or making his ambitions obvious. Rather, he'll just quietly go about being extremely competent and collecting kudos without acknowledging them. Has the knack of fading into the woodwork but always remaining part of the wall.

Excellent at staying on the good side of the media. Will feed lots of off-the-record information. When he has collected sufficient credits and the time is right, he'll dump anyone who's a liability and make his play for the leadership.

- Garry J. Wise, Toronto

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Radio Nowhere

Is it 'cause he's too old?

Or maybe, just a bit too... political?

Whatever they may have been thinking, Clear Channel has tried to silence The Boss.

(Like that's even possible!)

Blogger Howie Klein comments:

Republican radio network Clear Channel, a monopoly in many cities and a dominant player in most of the rest, isn't interested. Is it because Springsteen has been an outspoken campaigner for Democrats and progressives? Clear Channel has taken a political stand with its programming in the past. Just think back to their boycott of the Dixie Chicks.

,,,Of course, Clear Channel hasn't publicly said they are boycotting Springsteen's music. But they are. Fox News, hardly a hotbed of liberal alarmists, reports that "Clear Channel has sent an edict to its classic rock stations not to play tracks from Magic... no new songs by Springsteen..

I guess the music will have just have to do the talking - this is Bruce Springsteen's Radio Nowhere:

(h/t - Dave Johnson at Seeing the Forest)

- Garry J. Wise, Toronto

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Max Blumenthal's New Video

Max Blumenthal is a young American filmmaker who is developing a bit of a reputation for crashing conservative and evangelical functions to document the festivities.

He introduces his latest film, Theocracy Now: In Search of Values at the 2007 Value Voters Summit, in a piece at Huffington Post:

On October 20 and 21st, I attended the Value Voters Summit, a massive gathering hosted by the Colorado-based Christian right mega-ministry, Focus on the Family, and its Washington lobbying arm, the Family Research Council. With the pro-choice Rudy Giuliani leading in the race for the Republican nomination and the threat of another Clinton presidency looming, the stakes for the Christian right were high.

Click on the pic below to see the movie at HuffPo:

We wrote on the so-called Values Voters Summit in this October 22 post.

- Garry J. Wise, Toronto

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Tuesday, October 30, 2007

Hillary Clinton

If there was ever any doubt about which of the Democratic Presidential candidates is best suited to lead America, tonight's debate should go a long way toward eliminating it.

Hillary Clinton, poised, prepared and confident, dramatically outshone all competitors once again, in a debate largely characterized by her opponents' awkward attempts to shake her from her frontrunner's perch.

Barack Obama looked unsteady and off his game throughout the evening. John Edwards seems increasingly transparent and staged as the campaign wears on.

Joe Biden (as noted in a prior post) provided the best comedy of the evening, but is not contending.

Finally, Governer Bill Richardson, who made a valiant defence of Senator Clinton against the attacks of Edwards and Obama, appeared to make his first public salvo for the Vice-Presidential nod.

But tonight, it was all Hillary.

- Garry J. Wise, Toronto

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Quote of the Day

Delaware Senator Joseph Biden, at tonight's Democratic Presidential candidates debate:

Rudy Giuliani - he's the least qualified person to run for President since George Bush. There are only three things in a Rudy Giuliani sentence - a noun, a verb and 9-11.

- Garry J. Wise, Toronto

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Monday, October 29, 2007

Leafus Patheticus

I was lucky enough to be invited to the Toronto Maple Leaf game tonight.

While it was an enjoyable time, there was nothing enjoyable about the version of the blue and white that took the ice at Air Canada Centre this evening.

The Leafs were blown out 7-1 by the Washington Capitals and star left-winger, Alexander Ovechkin, who led the Caps with a strong, two-goal performance.

Awful goaltending from both Vesa Toskala and Andrew Raycroft, non-existent defence and total disorganization on the ice were but the high points of the Leaf game.

This is a badly comprised, inadequately-coached team.

As I have said elsewhere, let the firings begin.

UPDATE: October 30, 2007

Howard Berger at Hockey Buzz makes the point that blowouts like last night's have not been altogether unusual for the Leafs over the last two years. He lists the following home ice debacles:

  • 8-0 loss to Ottawa, Oct. 29, 2005
  • 5-1 loss to Boston, Nov. 23, 2005
  • 8-4 loss to Buffalo, Jan. 26, 2006
  • 6-2 loss to Ottawa, Oct. 24, 2006
  • 5-2 loss to Atlanta, Dec. 5, 2006
  • 7-3 loss to Florida, Dec. 19, 2006
  • 6-1 loss to Vancouver, Jan. 13, 2007
  • 6-1 loss to Buffalo, Feb. 27, 2007
  • 7-1 loss to Carolina, Oct. 9, 2007
  • 6-4 loss to Chicago, Oct. 20, 2007
  • 7-1 loss to Washington, Oct. 29, 2007

- Garry J. Wise, Toronto

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Is the Soaring Loonie Good News?

While it certainly tickles Canadian pride to see our dollar hit 1.0501 US this afternoon, inching toward its postwar high of $1.0614 US, let's be clear.

The rising loonie is more about the continued tanking of the US dollar than the strength of our economy. This is not cause for celebration.

Canadian exporters have been killed by the rising dollar, while Canadian consumers have enjoyed virtually no benefit from the loonie's ascent.

Today, the US dollar fell to record lows as against the Euro. The American economy looks like it is heading for big trouble.

I'm no economist, but that can't be good for Canada.

- Garry J. Wise, Toronto

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Study: Frequency of Father-Child Contact in Early Months after Separation Predicts Strength of Long-Term Relationship

The findings of this study will come as no surprise to family law practitioners.

CBC reports:

The amount of contact fathers have with their children in the months following a parental separation is crucial for determining how often they will see each other in the years to come, a study released Monday suggests.

Those dads who stay in close touch with their children in the first few months have a greater chance of remaining in frequent contact later, said the study, conducted through Statistics Canada's Research Data Centre program and recently published in the Journal of Family Issues.

The study used Statistics Canada data from 1994 to 1997 that followed non-resident fathers and their children over two-year periods. All children were age 11 or under and living with their mother.

- Garry J. Wise, Toronto

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Kansas Sperm Donor Denied Parental Rights

This outcome would be highly unlikely in an Ontario court.

Topeka Capital Journal reports on a contoversial decision of the Kansas Supreme Court:

The Kansas Supreme Court ruled Friday that a sperm donor who wants to have parental rights with any subsequent children must have a written agreement with the mother.

The 4-2 decision upholding constitutionality of Kansas' current donor law was the first of its kind in the nation.

The ruling was the offspring of lawsuits involving Samantha Harrington, who conceived twins with sperm donated by Daryl Hendrix. The mother and the donor, both of Topeka, disagreed on whether they had entered into an oral agreement giving parental rights to the donor. They also disagreed on whether certain documents constituted a written agreement.

Court testimony shows Harrington, 34, a lawyer, had solicited Hendrix to donate sperm.

Hendrix, a Josten's employee, Reece & Nichols Homes marketing director and home decorator, said they orally agreed to co-parent the children together.

Based on this news report, it seems clear that the Court came to its decision only reluctantly:

...[Justice Carole A]. Beier authored the opinion for the majority, holding the law's requirement of a written agreement constitutional under both state and federal due process and equal protection provisions.

"All that is constitutional is not necessarily wise," she wrote. "We are mindful of, and moved by, advocacy for public policy to maximize the chance of the availability of two parents — and two parents' resources — to Kansas children. We are also aware of continued evolution in regulation of artificial insemination in this and other countries.

However, weighing of the interests of all involved in these procedures, as well as the public policies that are furthered by favoring one or another in certain circumstances, is the charge of the Kansas Legislature, not of this court."

McFarland said the provision requiring written agreement "appears to be aimed at protecting both parties from unwanted duties and/or obligations being imposed without their consent in the very limited factual situation to which it applies."

In dissent, Caplinger said she would have found the law unconstitutional because the donor had a fundamental right to parent and the law's requirement of a written agreement resulted in a passive waiver of that right.

"Therein lies the constitutional problem," she said. "Fundamental rights must be actively waived, rather than passively lost to inaction."

(via ABA Journal)

- Garry J. Wise, Toronto

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And Now, A Word from the President...

A fantastic impressionist (as in Little, not Monet) is born...

(h/t: Dave)

- Garry J. Wise, Toronto

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Saturday, October 27, 2007

The World's Hottest Chili

... has been discovered in India.

It's hot. Scorching hot. Guinness World Records hot.

Researchers at New Mexico State University have discovered the world’s hottest chili pepper. It's called the Bhut Jolokia, a variety originating in Assam, India.

In tests that yield Scoville heat units (SHUs), the Bhut Jolokia reached 1 million SHUs, almost double the SHUs of former hotshot Red Savina (a type of habanero pepper), which measured a mere 577,000. The result was announced today by the American Society for Horticultural Science.

I'm salivating and sweating and getting all red in the face, just thinking about it.


UPDATE - October 30 -

Here's an interesting twist. Capsaicin, the active ingredient in hot peppers, may become the painkiller of the future:

Bite a hot pepper, and after the burn your tongue goes numb. The hope is that bathing surgically exposed nerves in a high enough dose will numb them for weeks, so that patients suffer less pain and require fewer narcotic painkillers as they heal.

"We wanted to exploit this numbness," is how Dr. Eske Aasvang, a pain specialist in Denmark who is testing the substance, puts it.

....And at the National Institutes of Health, scientists hope early next year to begin testing in advanced cancer patients a capsaicin cousin that is 1,000 times more potent, to see if it can zap their intractable pain.

Nerve cells that sense a type of long-term throbbing pain bear a receptor, or gate, called TRPV1. Capsaicin binds to that receptor and opens it to enter only those pain fibers — and not other nerves responsible for other kinds of pain or other functions such as movement.

These so-called C neurons also sense heat; thus capsaicin's burn. But when TRPV1 opens, it lets extra calcium inside the cells until the nerves become overloaded and shut down. That's the numbness.

"It just required a new outlook about ... stimulation of this receptor" to turn those cellular discoveries into a therapy hunt, says NIH's Dr. Michael Iadarola.

- Garry J. Wise, Toronto

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Supreme Court of Canada Drives Home New Causation Test in Ontario Motor Vehicle Accident Claims

The courts have paved a rocky road for Ontario's motor vehicle insurers over recent years.

In separate decisions last week, however, the Supreme Court of Canada found in favour of insurance companies to clarify and limit the circumstances in which car insurance coverage will be available to injured persons.

The Court rolled back two leading Judgments of the Court of Appeal for Ontario, and thereby put the brakes on two claims for accident insurance coverage in situations that only peripherally had involved use of motor vehicles by the at-fault parties.

By way of background, car insurance has always been intended to provide coverage only for collisions and injuries arising in connection with the use and operation of motor vehicles.

In 1990, this coverage was apparently broadened by an amendment to section 239 (1) of the Ontario Insurance Act, which added the word "indirectly" to the following provision:

239. Subject to section 240, every contract evidenced by an owner's policy insures the person named therein...for loss or damage,

(a) arising from the ownership or directly or indirectly from the use or operation of any such automobile; and

(b) resulting from bodily injury to or the death of any person and damage to property.

Since that time, Courts have offered differing opinions on how broadly this provision was to be interpreted - what exactly is meant by indirect use of a motor vehicle?

Until recently, Amos v. Insurance Corp of British Columbia was the leading authority in the matter.

Decided by the Supreme Court of Canada in 1995, it established the following test to assist in the interpretation of this insurance legislation:

  1. Did the accident result from the ordinary and well known activities to which automobiles are put; (purpose test) and

  2. Is there some nexus or causal relationship (not necessarily direct or proximate causal relationship) between the appellant's injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental and fortuitous. (causation test)

In Amos, the Plaintiff was driving his van and came to a stop at an intersection where six people attacked him. He suffered a gun shot wound to the spine from one of the attackers while he attempted to steer the van away from the unfortunate situation.

In analyzing his no fault benefits claim, the Supreme Court applied the above two-part test and concluded that this set of facts satisfied both the purpose and causation test and accordingly found in favour of the Plaintiff.

The Supreme Court summarized its decision by stating:

Generally speaking, where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the Plaintiff is entitled to coverage.

Arguably, rather eccentric case law arose thereafter based on the Amos test, including the Court of Appeal for Ontario decisions in Herbison v. Lumbermens Mutual Casualty Co. and Vytlingam v. Farmer.

In each case, the Plaintiff sought insurance coverage for injuries suffered. The question to be determined in both matters was whether the injuries that were suffered arose indirectly from the use or operation of a motor vehicle.

As you will see, the facts of each case are highly unusual, and arguably, required considerable stretch by the Court to establish any duty to provide insurance coverage.

In Herbison, a member of a yearly deer hunting party was driving to a hunting stand when he believed he spotted a deer. Because it was night time, the hunter used the headlights of his car to spot and shoot what he believed was a deer. In fact, he shot the Plaintiff, who was another member of the hunting party, causing serious injury.

Based on the Amos holding, the Court of Appeal ruled in favour of the Plaintiff, and found that he was entitled to indemnity and compensation from motor vehicle insurance for his injuries.

A similar determination was made in Vytlingam wherein the Plaintiffs were catastrophically injured while driving when their vehicle was hit by rocks that had intentionally been dropped onto the road from an overpass above.

The insurers appealed both decisions to the Supreme Court of Canada.

On October 19, 2007 the Supreme Court released its decisions, denying insurance coverage and overruling the Court of Appeal in both Herbison and Vytlingam.

The Court distinguished each case from Amos in two, significant ways:

  1. The Amos case was concerned with a no- fault benefits scheme while Lumbermens and Vytlingam each related to third-party indemnity claims; and,

  2. In Amos the acts that caused the injury were committed within the Plaintiff's vehicle while in Lumbermens and Vytlingam, they were not.

The Supreme Court of Canada then established the following two part test to determine whether there was a causal connection between the injury and the ownership, use and operation of a vehicle:

  1. Whether the claim is in respect of a tort committed by an at-fault party while using a motor vehicle as a motor vehicle and not for some other purpose; and

  2. Whether there is an unbroken chain of causation linking the injuries to the use and operation of the vehicle.

Applying this new analysis, the Supreme Court allowed both appeals, finding that each scenario lacked adequate causal connection to the use of a motor vehicle, with the injuries in each arising as a result of an unrelated, intervening event.

Specifically, the Court held that the shooting of the rifle in Lumbermens and the criminal act of dropping rocks off a bridge in Vytlingam were inadequately connected to the ordinary operation of motor vehicles to bring them within the ambit of motor vehicle insurance coverage in Ontario.

The Court's holding in Vitlingham is summarized in its headnote:

The claim did not arise from the ownership or directly or indirectly from the use or operation of a motor vehicle. Although the use of F’s vehicle (e.g. transporting rocks) fell within the scope of the ordinary activities to which automobiles are put, the word “indirectly” is not sufficient to overcome the requirement for an unbroken chain of causation linking the conduct of the tortfeasor as a motorist to the injuries in respect of which the claim is made. In this case, the relevant tort consisted of dropping the rocks from a highway overpass, not transporting rocks across the countryside. F was not at fault as a motorist. The tort was an independent act which broke the chain of causation. It was an intervening event severable from the use and operation of F’s vehicle.

Similarly, in Herbison:

The insurance in this case is automobile insurance, and s. 239(1) of the Insurance Act requires that the victim demonstrate that the liability imposed by law upon the insured is for loss or damage arising from the ownership or directly or indirectly from the use or operation of the automobile.

The questions are, firstly, whether the claim is in respect of a tort committed while using a motor vehicle as a motor vehicle and not for some other purpose, and secondly, whether there is an unbroken chain of causation linking the injuries to the use and operation of the vehicle. While the addition of “directly or indirectly” to s. 239(1) relaxed the causation requirement, it did not eliminate the requirement of an unbroken chain of causation. An intervening act may not necessarily break the chain of causation if it arises “in the ordinary course of things” but, even under the relaxed rule, merely fortuitous or “but for” causation is not sufficient. [10] [12-14]

In this case, W was using his vehicle for transportation, which is its ordinary use. However, in an act independent of the ownership, use or operation of his truck, W interrupted his motoring to start hunting thereby breaking the chain of causation. The injury cannot be said to have arisen “directly or indirectly from the use or operation” of the insured truck within the meaning of s. 239(1). W’s truck merely created an opportunity in time and space for the damage to be inflicted, without any causal connection, direct or indirect, to the legal basis of W’s tortious liability. The “but for” approach taken by the majority of the Court of Appeal did not give adequate weight to W’s separate, distinct and intervening act of negligence.

As a result of these two judgments, a narrower approach has been established to determine whether insurance coverage will be available, based on whether there is adequate causal connection between an injury and the ownership and use of a motor vehicle by the at-fault party.

Some might argue that with these decisions, common sense has ultimately prevailed.

For full text of the two Supreme Court of Canada decisions see:

Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46 (CanLII)

Lumbermens Mutual Casualty Co. v. Herbison, 2007 SCC 47 (CanLII)

For press coverage of the decisions see:

Toronto Star: Top court slams brakes on auto insurance claim

Globe and Mail: Top court rejects two claims against insurers

- Annie Noa Kenet and Garry J. Wise, Toronto

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Supreme Court of Canada Soon to Make Litigants' Filings Available Online

Simon Fodden of Slaw, reports:

I’m blogging from the LexUM conference Conférence Internet pour le droit / Law Via the Internet Conference, live. At the moment, Justice Bastarache is telling us that the Supreme Court of Canada is planning to make factums available online next year, at least in some measure. He is explaining all of the issues that the Court is currently considering, as it struggles to develop a workable policy concerning the electronic publication of these documents. The Court has not yet decided whether and how to “clean” the files of sensitive business or personal information; they are still consulting, but a decision on these various matters is “imminent.” The Court, then, is convinced that the values of openness and access to justice must outweigh all other interests in principle, at least.

As an aside, Professor Fodden taught my first year Property class at Osgoode (Pierson v. Post and foxes and finders, oh my....).

The Court's move toward open, documentary access online will clearly be welcomed by the press, counsel, litigants and lower courts throughout Canada.

Currently, lawyers who act on cases with legal issues similar to those pending before the SCC have great difficulty obtaining details of the specific arguments to be considered. On one recent occasion, we had to make calls across Canada to obtain some of this information from friendly counsel.

It will be of real benefit once these court filings are readily available online.

Slowly, but surely, Canada's court system appears to be moving into the 21st century.

- Garry J. Wise, Toronto

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Giuliani on Whether Waterboarding is Tortune: "It Depends On Who Does It"

From The Caucus, a New York Times political blog:

Linda Gustitus, who is the president of a group called the National Religious Campaign Against Torture, began her question by saying that President Bush’s nominee for attorney general, Michael B. Mukasey (who happens to be an old friend of Mr. Giuliani’s) had “fudged” on the question of whether waterboarding is toture.

“I wanted to ask you two questions,’’ she said. “One, do you think waterboarding is torture? And two, do you think the president can order something like waterboarding even though it’s against U.S. and international law?’’

Mr. Giuliani responded: “O.K. First of all, I don’t believe the attorney general designate in any way was unclear on torture. I think Democrats said that; I don’t think he was.’’

Ms. Gustitus said: “He said he didn’t know if waterboarding is torture.”

Mr. Giuliani said: “Well, I’m not sure it is either. I’m not sure it is either. It depends on how it’s done. It depends on the circumstances. It depends on who does it."

Did he really say that?

Yes, it appears he did.

Video of the carnage is available at the Caucus link.

- Garry J. Wise, Toronto

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Dick Cheney's "Cousin Barack"

Vice President Dick Cheney comments on his common ancestry with Democratic Presidential candidate, Barack Obama:

- Garry J. Wise, Toronto

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On Purple Fingers and Bare-Faced Racism

Stephen Harper's federal government has introduced legislation that will require veiled Muslim women to reveal their faces prior to voting.

Dave at Galloping Beaver calls it bare-faced racism. I agree.

Not so long ago, on January 20, 2005, the women of Iraq turned out for a historic vote, many veiled, all purple-fingered. It was hailed by conservatives at the time as a monumental victory for democracy and women's rights in the Middle East.

Purple fingers and heady moments, indeed.

Apparently those are long forgotten, as this proposed legislation gives Canadian Muslim women the proverbial middle finger.

Once again, a solution without a problem.

Pandering to xenophobia is not the Canadian way.

Stephane Dion should delay this bill. And then defeat it.

CBC has the story:

The Conservative government introduced legislation Friday to force all voters — including veiled Muslim women — to show their faces for identification before being allowed to vote in federal elections.

Conservative House leader Peter Van Loan introduced the proposed amendment to the Canada Elections Act, which was promised in the Tories' Oct. 16 throne speech.
The proposed amendment makes a limited exception for any voter whose face is swathed in bandages due to surgery or some other medical reason.

The Tories were furious over a decision by Elections Canada to allow Muslim women to vote with their faces covered by burkas or niqabs during three Quebec byelections in September.

"During the recent byelections in Quebec, the government made it clear that we disagreed with the decision by Elections Canada to allow people to vote while concealing their face," Van Loan said.

"That is why … we committed to introducing legislation to confirm the visual identification of voters."

- Garry J. Wise, Toronto

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Friday, October 26, 2007

Snakes and Ladders and Rights and Freedoms?

The Toronto Star reports on rather astonishing remarks by Mr. Justice David Doherty, the longest serving Justice of the Court of Appeal for Ontario:

When guilty people go free because their constitutional rights have been violated, there's a danger the public will begin to see the Charter of Rights and Freedoms as little more than "a game of snakes and ladders," a judge of the Ontario Court of Appeal says.

The criminal justice system has to face up to this problem or it runs the risk that Canadians will stop embracing the Charter as a statement of national principles and start treating it as a "lawyer's technical manifesto," Justice David Doherty told a legal conference in Toronto Friday.

It seems to me if you get to the point where there's a perception the Charter has, in fact, become a game of snakes and ladders, where criminal trial results depend on things that have nothing to do with the merits of the case, the public perception will be these rights are not really rights that are important to us," he said.

Speaking at the annual conference of the Criminal Lawyers' Association in Toronto, Doherty pointed to the United States as an example.

Despite an astonishing array of legal rights, its citizens are reaching the point where few genuinely believe in those rights and don't expect them to be enforced, he contended.

And when legal rights are seen as "technicalities" that enable criminals to get away with crime, it becomes all too easy to forgive a police officer who fabricates evidence to convict a suspect, Doherty said.

In Canada, courts themselves are to blame for the problem, he said. They have done an inadequate job of explaining the principles underlying decisions to exclude evidence or acquit people on Charter grounds - such as why it's important to restrict how far police can go during their investigations, Doherty suggested.

I'd be interested in the Learned Judge's source of information suggesting the American public has ceased believing in Constitutional rights and no longer expects them to be enforced.

While that sentiment may arguably find some sympathy in the White House and among its 25-30% electoral hardcore, I suspect the balance, and overwhelming majority of Americans, would beg to differ. Loudly.

Public relations should not enter in any judicial equation concerning protection of Charter freedoms. The Courts' job is to apply the law, not to lobby the public or enter into controversial debate.

Judges do critical work in the criminal justice context as the key pillar of our society mandated to limit governmental abuses and to protect constitutionally guaranteed individual rights and freedoms. In Canada, our Courts have historically done so with rational analysis and thorough reasoning - and not with an eye to political fallout.

When judges regrettably frame important discussions about Charter protection with simplistic and limited references to criminals who walk due to so-called technicalities, they invite the remainder of the debate to be limited to those issues.

That contributes to the dumbing down of public discourse.

In the American experience, this has become the problem, rather than a part of the solution.


UPDATE: The Globe and Mail also covers Justice Doherty's remarks - see Uneven abilities led to erratic Charter decisions, judge says:

The early years of the Charter of Rights were marked by erratic decisions rendered by judges with uneven intellectual abilities, the Ontario Court of Appeal's most senior judge said yesterday.

“The Charter had given constitutional jurisdiction to every mutt in the country,” Mr. Justice David Doherty told the Criminal Lawyers Association annual conference. “The first thing that had to be recognized is there was going to be a huge spectrum of intellectual ability addressing these very important questions.

“The results were consequently going to be all over the place,” said Judge Doherty, a senior prosecutor in Ontario's Crown Law Office when the Charter came into being in 1982.

- Garry J. Wise, Toronto

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Thursday, October 25, 2007

Teen Speed, GPS and Police Radar

The Global Positioning System (GPS) is yet another modern technology that is finding its way into the Courts to challenge conventional evidentiary wisdom.

AP has this interesting story on a contested speeding ticket in Colorado:

A retired sheriff's deputy nevertheless hopes to beat the long odds of the law by setting the performance of a police officer's radar gun against the accuracy of the GPS tracking device he installed in his teenage stepson's car.

...Rude encouraged him to fight the ticket after the log he downloaded using software provided by the GPS unit's Colorado-based supplier showed Shaun was going the speed limit within 100 feet of where a Petaluma officer clocked him speeding.

"I'm not trying to get a guilty kid off," Rude said. "I've always had faith in our justice system. I would like to see the truth prevail and I would like Shaun to see that the system works."

... While winning a case this way is far from a sure thing, GPS-generated evidence could at least inject an element of doubt into typically one-sided proceedings, said Jim Baxter, president of the National Motorists Association.

A Sonoma County traffic commissioner is expected to rule within the next two weeks whether to dismiss Shaun's ticket based on Rude's written argument that the motorcycle officer's radar gun was either improperly calibrated or thrown off by another speeding car.

"Radar is a pretty good tool, but it's not an infallible tool," said Rude, who spent 31 years in law enforcement. "With the GPS tracker, there is no doubt about it. There is no human interference."

The device in Shaun's car, originally designed for trucking companies, rental car agencies and other businesses with fleets, sends a signal every 30 seconds that records his whereabouts and travel speed.

His parents signed up to be automatically notified by e-mail whenever he exceeded 70 mph, and the one time he did he lost his driving privileges for 10 days.

While it's hardly on the scale of DNA evidence superseding blood-type testing, this case does illustrate again that technical evidence, whether police-generated, medical or other, is only as good as the science behind it.

As the science improves, the fallibilities of old systems and assumptions emerge rather quickly.

That is called progress, I believe.

Subject to the usual, rigourous tests of reliability and relevance, Courts should embrace these new tools.

- Garry J. Wise, Toronto

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Faceboom: More on Microsoft and Facebook

Following up on Annie Noa Kenet's earlier post today, the business and tech communities are certainly buzzing with analysis of the Facebook-Microsoft deal.

Here is a sampling of insights on the acquisition and what lies ahead:

WebPro News:

Shelling out $240 million for a 1.6 percent stake in Facebook may be Microsoft's way of keeping Google away from the social networking site, but the deal may not be worth the money unless Microsoft can get Live Search into the service.

It could be a bargain, if they can do what Greg Sterling expects them to do: place Live Search for web searching on Facebook. For some reason, the respective representatives of Facebook and Microsoft played a little coy when asked about search.

Microsoft didn't value Facebook at $15 billion just to own a piece of a possible IPO. Microsoft wants search advertising to be a big part of its business model in the coming years. That youthful demographic of students on Facebook makes marketers drool with the desire to put ads in front of them.

As Sterling noted, anyone who wants to do a web search has to leave Facebook to start one. If people are going to leave, it makes sense for the web search to start at Facebook, with Live Search, and hope people exit through the contextual ads alongside the search results.


Microsoft said it would be the exclusive third-party advertising platform for Facebook, which has more than 49 million Internet users. That extends a previous deal into Facebook sites outside the United States.

Google and Microsoft, now rivals for Internet-based audiences and applications, each expressed interest in a minority stake in Facebook for its growing user base and advertising potential.

The rivals have butted heads before for Internet properties. Google beat Microsoft with a $US1.65 billion acquisition of online video sharing site YouTube last year.

Forrester Research analyst Charlene Li said that Microsoft was a better strategic fit for Facebook, since it knew how to work with software developers and build computing environments – such as its Windows operating system.

"Microsoft is a company that knows how to build platforms, knows how to develop relationships with developers.

Microsoft developed the network that is the biggest, most vibrant one out there," she said. "Frankly, Google didn't bring as much to the deal."

Google Co-founder Sergey Brin told a meeting with Wall Street analysts at the company's Silicon Valley headquarters that his company could partner with important Web sites.

"We don't feel, at a higher level, that we need to own every successful company on the Internet," he said.

Shares of Microsoft rose slightly to $US31.47 from a Nasdaq close of $US31.25, while Google ticked down to $US675 from a close of $US675.82.

Seattle Times:

"Inventory" is the word I kept hearing when Microsoft and Facebook announced their deal Wednesday.

Kevin Johnson, president of the Platforms and Services Division, twice mentioned how much inventory the deal was providing for Microsoft's AdCenter business: "This deal brings more inventory and more value to that ad platform. At the same time it enables both parties to collaborate as Facebook looks to develop new ad type as it relates to the social experience."

By inventory he was referring to space where Microsoft can place ads for clients. It may seem like there's an infinite number of Web pages, but there's actually limited premium real estate for companies to hang their billboards.People are quick to write off Microsoft's ad business because Google seems to have it all. But Facebook helps Microsoft's inventory build critical mass, and it's a great place for Microsoft to develop and show off its new post-search ad technologies.

For a cheekier take, see Microsoft-Facebook: Welcome to the Hotel California from Chris Williams at the Register:

Facebook claims about 50 million users. By our reckoning, that rates them at $300 a piece..

The hyperbole surrounding the favourite uncle dance-off between Steve Ballmer and the Google lads to slip Mark Zuckerberg a few quid so he can buy some more servers has been surreal to watch. Two combs fighting over a bald man, if you will.

Despite the fact the deal is financially insignificant to Redmond, and will likely have no impact on Facebook's strategy, in a broader sense it could mark a watershed for the web 2.0 hypesters. Microsoft's status in mainstream public consciousness means that more people will understand what social networking is about

Perhaps they'll realise that web 2.0 is not there to "connect you with the people around you" and not about some pseudo-academic "social graph". That's the bait. The switch is the big data centre pumping adverts based on your age, where you live, who you're friends with, what you like doing for fun, your politics and your grandmother's shoe size.

...Yeah, man. Targeted marketing will free us all! How could a rich, Harvard-educated white American male do this to us? Oh, wait...

Our view is that this is clearly a major defeat for Google.

We looked at Facebook's longer term plans in our post last July, Will Facebook Overtake Google? By choosing Microsoft as a strategic partner, it is clear that Facebook has greatly strengthened its positioning (and chances) as an up-and-coming, direct rival to Google.

And with this acquisition, Microsoft has nicely leveraged Facebook's growing user base to gain huge ground in its determined efforts to challenge Google's dominance of the lucrative Internet search and advertising markets.

This alliance may well have been sealed by the glue of a common adversary - both companies now have Google squarely in their cross hairs.

The Facebook acquisition dovetails nicely with Microsoft's recent Live Search upgrades and launch of Office Live Workspace, its online Office suite. Cumulatively, these moves signal Microsoft's aggressive return to direct hand-to-hand combat with Google.

Facebook is an ideal platform for these new services to be accessed and highlighted.

Microsoft, however, also gains the added benefit of re-invigorating its brand through a very public alliance with a young, cool upstart that has had no shortage of hype and spotlight. While Microsoft has obviously continued to lead in the software marketplace, it has been quite some time since the company was perceived as offering anything truly fresh online. The Facebook alliance may change that.

The deal may well mark the beginning of a serious challenge to Google's standing as the online world's leading technological innovator.

It seems to be a marriage made in heaven for Bill Gates and Mark Zuckerberg.

And it may turn out to be a real headache for Google.

- Garry J. Wise, Toronto

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Law Blogs: Influence Increasing

Findlaw has an interesting commentary today on the growing impact of law blogs.

See William Gratsch's The State of Legal Blogs: A Report From the Frontlines:

"You can find quality blogs on virtually any legal topic," says Sara Skiff, editor of BlawgWorld 2007, a free eBook that showcases some of the best legal blog posts of the year. "This variety and quality speaks volumes about how quickly this new [weblog] publishing platform has attained maturity." By offering free, well-written content, often filling gaps in general legal news coverage and/or expanded analysis of important cases or regulations of the day, subject matter specific weblogs continue to grow in importance and value.

... Legal weblogs and the legal blogosphere they combine to form have arrived. Slowly, but surely, they have grown in number and breadth, increasingly impacting the legal landscape.

Looking ahead, it likely remains early in an evolutionary process. The lines between weblogs and other news and information mediums will continue to merge to the point where they are indistinguishable. Networking tools, multimedia content and community-focused technologies will also continue to be integrated into weblogs and the legal blogosphere, further complicating efforts to delineate one form of online communication from another.

Gratsch is "resident blogger"at

- Garry J. Wise, Toronto

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