Breaking: Charges Withdrawn Against Michael Bryant

According to CTV News:

TORONTO — The Crown has withdrawn charges against former Ontario attorney general Michael Bryant in death of a cyclist.

Bryant was charged last August with criminal negligence causing death and dangerous driving in the death of bike courier Darcy Allan Sheppard.

Police alleged Sheppard, 33, died after grabbing onto a car in downtown Toronto following an altercation with the driver.

Sheppard death's led to an outcry from the city's cycling community and raised questions about Bryant receiving preferential treatment.

To avoid a conflict of interest, Vancouver lawyer Richard Peck was been brought in as prosecutor in the case.

Peck withdrew the charges today, saying there's no reasonable prospect for conviction.

CBC's report is here.

Our original September 2, 2009 post on this incident is here: Michael Bryant: Did the Police Rush to Judgment?

- Garry J. Wise, Toronto

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Hardly a Hiatus

Sorry for the reduced postings of late.

Truth is, the lawyering part of my job does make occasional demands on my time that require blogging to take a back seat, at least for brief periods.

We'll be back to full speed, soon enough. In the meanwhile, check our Twitter updates for the latest legal developments.

- Garry J. Wise, Toronto

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On Facebook and Privacy:

Quotable:

"Facebook needs to have a few very simple high-level controls" so users can keep data private, said Peter Eckersley, senior staff technologist at the Electronic Frontier Foundation. The company, he said, should stop acting as if "they have a mission to make all of our private lives public."

- Garry J. Wise, Toronto

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Alberta Tribunal Addresses the "Great Prima Facie Debate" on Family Status Workplace Accomodation

Donna Seale (as always) has a comprehensive report at Human Rights in the Workplace on an Alberta human rights ruling that requires working parents to reasonably exhaust alternative child care options before an employer will be required to accommodate child care requirements affected by new night shift assignments.

Such alternatives include having other family members stay in the home with the children, or having the children stay overnight with family members, including non-custodial parents.

It is interesting that in family law, the paramount consideration of Canadian courts that determine parental requests for such overnight stays is "the best interests of the children," with concerns regarding predictability, stability and disruption to the children, however trifling, often limiting the weeknight residential time allowed a non-custodial parent.

It is unclear whether the "best interests" test has found, or will ever find its way into human rights jurisprudence, or whether it should. Still, it is worth noting that family courts are far less inclined to permit children to ping-pong between their parents' homes on weeknights than the Alberta Board suggests may be mandatory where night shift duty is assigned.

The case cited by Ms. Seale is a February 2010 decision of the Alberta Arbitration Board in Alberta (Solicitor General Department) v. Alberta Union of Provincial Employees, 2010 CarswellAlta 742.

See: Employee fails to show “absence of reasonable alternatives” for child care, must work night shift

- Garry J. Wise, Toronto

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Open Book: Site Searches Unsecured Facebook Posts

A new search service, Open Book, demonstrates the privacy threat arising when Facebook users fail to carefully adjust their security settings. Among other concerns, their status updates become publicly searchable.

While the Open Book search for "toronto lawyer" doesn't yield too much embarrassing personal detail, other searches certainly do.

(Bottom line: if you feel the need to broadcast that your boss isn't so grand, ensure your privacy controls are adjusted to limit who might view your epic prose)

New York Daily News has just published a good, step-by step guide to changing Facebook privacy and security levels. Social media users take note.

- Garry J. Wise, Toronto

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McClatchy: Criminal Charges Likely In Gulf Oil Catastrophe

Marisa Taylor of McClatchy Newspapers:

WASHINGTON — Federal investigators are likely to file criminal charges against at least one of the companies involved in the Gulf of Mexico spill, raising the prospects of significantly higher penalties than a current $75 million cap on civil liability, legal experts say.

...Such a likelihood has broad legal implications for BP and the two other companies involved — not the least of which is the amount of money any responsible party could be required to pay. The White House is asking Congress to lift the current $75 million cap on liability under the Oil Pollution Act of 1990, but there's no cap on criminal penalties. In fact, prosecutors in such cases can seek twice the cost of environmental and economic damages resulting from the spill.

- Garry J. Wise, Toronto

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The Slippery Slope

Or not...

(via Andrew Sullivan)

- Garry J. Wise, Toronto

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Video: BP Oil Slick

An aerial view of the BP oil slick, ground zero.

More on the underlying political causes of this disaster from Sex, Lies and Oil Spills, by Robert F. Kennedy Jr:

..The absence of an acoustical regulator -- a remotely triggered dead man's switch that might have closed off BP's gushing pipe at its sea floor wellhead when the manual switch failed (the fire and explosion on the drilling platform may have prevented the dying workers from pushing the button) -- was directly attributable to industry pandering by the Bush team. Acoustic switches are required by law for all offshore rigs off Brazil and in Norway's North Sea operations. BP uses the device voluntarily in Britain's North Sea and elsewhere in the world as do other big players like Holland's Shell and France's Total. In 2000, the Minerals Management Service while weighing a comprehensive rulemaking for drilling safety, deemed the acoustic mechanism "essential" and proposed to mandate the mechanism on all gulf rigs.

Then, between January and March of 2001, incoming Vice President Dick Cheney conducted secret meetings with over 100 oil industry officials allowing them to draft a wish list of industry demands to be implemented by the oil friendly administration. Cheney also used that time to re-staff the Minerals Management Service with oil industry toadies including a cabal of his Wyoming carbon cronies. In 2003, newly reconstituted Minerals Management Service genuflected to the oil cartel by recommending the removal of the proposed requirement for acoustic switches. The Minerals Management Service's 2003 study concluded that "acoustic systems are not recommended because they tend to be very costly."

The acoustic trigger costs about $500,000. Estimated costs of the oil spill to Gulf Coast residents are now upward of $14 billion to gulf state communities. Bush's 2005 energy bill officially dropped the requirement for the acoustic switch off devices explaining that the industry's existing practices are "failsafe."

- Garry J. Wise, Toronto

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Kagan: Is She or Isn't She?

Yawn.

(Which pretty much sums up my reaction to the entire debate on this nomination)

- Garry J. Wise, Toronto

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Happy Mother's Day (With Loggins and Messina)

Who knew? Kenny Loggins and Jim Messina are back together, after 30 years. Here's one for all the Moms out there:

- Garry J. Wise, Toronto

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Video: David Frum - "This is What Success in the War on Terror Looks Like"

Video: Should Accused Terrorists Be Permitted to "Lawyer Up?"

New York Times writer David Brooks argues, "sometimes you just need to trust the people in authority to make the decisions." As Digby put it, "I think this says something fairly alarming about the current state of our politics."

- Garry J. Wise, Toronto

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Former SCC Justice John Major Speaks Out Against Bilingual Court Bill

Former Supreme Court of Canada Justice John Major spoke out earlier this week against Bill C-232, legislation now before the Senate that would require that all future appointees to the Supreme Court be functionally bilingual.

As reported by the Ottawa Citizen:

The issue, which has quietly simmered for about two years, has erupted into fierce debate in legal and language-rights circles, with retired Supreme Court judge John Major leading the charge against the pending legislation.

"The stakes are so high in some cases you just want the best people you can get," said Major, a unilingual Calgarian.

"If the test is the most competent versus the most competent who is somewhat bilingual, my own opinion is that I want the most competent judge.

"It's the same as surgery. I want the best doctor, I don't want the linguist."

Major predicted that the bill, if it becomes law, will be impossible to implement in Western Canada, where the vast majority of lawyers and judges do not speak French.

"The chances are the most competent judge will have spent a lifetime in English."

"You'd have to go quite a way down the line to find the bilingual one, which most of the time, in this part of the world, means compromising legal ability," Major said.

Mr. Justice John C. Major served on the Supreme Court of Canada from 1992 to 2005. His Supreme Court of Canada biography is here.

- Garry J. Wise, Toronto

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Thoughts on the Facebook "Like" Button (And Rats)

I described my first take on the Facebook "Like" button, which we installed at Wise Law Blog last weekend, in a discussion over coffee this week with Omar Ha-Redeye.*

Lo and behold, as if to echo my very words, Slaw's Simon Fodden (in a wholly different context) has paraphased my conclusions far better than I ever could have:

[T]agging is the practice that some people have of making their distinctive mark on public objects — a pathetic human version, perhaps, of a pet’s urge to pee on lampposts and the like.

Ultimately, Facebook "Like's" primary innovation may be that it has - at long last - enabled humans to leave our digital pee trails online - wherever our hearts (and presumably, our primal, inner wagging tails) may desire.

Now that's progress!

There are many who argue that leveraging this new, "Like" technology will be a key component in law firm SEO strategies for the future, and they may well be right.

Time will tell. But, what's the point of it all?

To address that question, we might want to consider the behavioural traits of yet another mammal, often studied in modern science's quest to understand we homo sapiens**:

Urine marking -- the deposit of small drops or smears of urine on the ground, objects, and other rats -- is a form of chemical communication. One rat generates the chemical signal (a drop of urine), and another rat identifies, integrates, and responds to that signal either behaviorally or physiologically.

Urine contains a lot of information about the rat who produced it: its species, sex, age, reproductive status, sexual availability, social status, individual identity, and current stress level, as well as the age of the scent mark itself.

And wouldn't access to that kind of information be a social media marketing strategist's dream come true?

Welcome to the Facebook "Like" universe.

.....

Notes:

* Congratulations are in order for Omar, Canada's foremost law student blawger, on the completion of his J.D. studies. And by the way, Editions 1 and 2 of OMG! Law Talk, featuring Omar, Michael Carabash and I, are posted on our sidebar, so have a look.

** Did you know that homo sapiens translates from Latin as "wise man?"

- Garry J. Wise, Toronto

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James Morton: Ontario Litigation Has Become an "Elaborate Game of Chicken"

James C. Morton, a Toronto litigator, law professor and author of Morton's Musings law blog, on delays in Ontario civil proceedings, from an op-ed in today's Toronto Star:

[T]he real problem leading to delay is the uncertainty and hazard of trial. The costs of going to trial have vastly outpaced inflation. Despite judicial caution, judgments have increased in uncertainty and in amount out of proportion to the judgments of the 1960s. Moreover, trials have become very uncertain. Fifty years ago, principles of law changed slowly; today there is great unpredictability in what a court will do. The result of losing a case is commonly utter ruin and yet predicting the outcome of a case is almost impossible. As a result, litigation, rather than being a process designed to lead to trial, has become an elaborate game of chicken.

Neither side can risk losing a trial. As a result, cases tend to drag on as parties avoid trial. Attempts to settle, normally a good thing, become reasons to delay the actual hearing of the case. Lawyers unused to doing trials become even more risk-averse and look for all options other than going to trial. Thomas Jefferson’s aside, “delay is preferable to error,” is elevated into a principle of law and cases linger.

Read more: Fear of trial delays civil cases

- Garry J. Wise, Toronto

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The Argument for a Bilingual Supreme Court of Canada

Jean Leclair, professor of constitutional law at the Université de Montréal, delivers a forceful argument in today's Montreal Gazette in favour of legislation, currently before the Senate, requiring that future Supreme Court of Canada appointees be functionally bilingual:

Bilingualism for Supreme Court justices is necessary not just from a symbolic standpoint; it is an issue of competence.

Not only does a unilingual English judge lack direct access to scholarship or decisions written in French, but more importantly, the Constitution itself expressly states that both the French and English versions of federal legislation have official status. As a consequence, to interpret an ambiguous federal provision, judges must be knowledgeable in both languages since "a principle of bilingual statutory interpretation holds that where one version is ambiguous and the other is clear and unequivocal, the common meaning of the two versions would a-priori be preferred" (Daoust, 2004 SCC 6).

...If unilingual anglophones are to be appointed to the Supreme Court, cut the competence nonsense. Just tell us that French is not an important asset for potential appointees. This would come as no surprise to Quebec jurists as Canada is the only multilingual federation where one - outside Quebec - can be hired to teach constitutional law without being able to read, let alone understand, the literature written in both official languages.

While Professor Leclair's flippant dismissal of the "compentency argument" as nonsense is not particularly convincing, the balance of his position provides a strong articulatation of the statutory interpretation aspect of the pro-bilingualism argument.

I am not sure, however, how frequently the Court's determination of a matter will depend on resolving the kinds of linguistic ambiguities Professor Leclair cites as decisive in this debate.

It would be a significant stretch, in my view, to elevate that occasional interpretive chore to the level of deal-breaker, at the expense of all other considerations, in selection of the most qualified judges for Canada's highest court.

- Garry J. Wise, Toronto

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140Law - May 6, 2010 Edition

It has been quite a while - last New Year's Eve, to be exact -since our last installment of 140Law (formerly Legally Tweeting), a recurring feature on this blog, revisiting our recent Twitter postings.

This is largely because we now feature our live Twitter stream right here on our main page, and I certainly would like to avoid being redundant.

It occurs to me, however, that the live-tweets rotate off our site pretty quickly, and increasingly, many of our readers never make it to this site, preferring to catch up with us elsewhere, via RSS, Facebook, or the assorted blog aggregators that pick up our feeds.

With this in mind, perhaps it's time for our first 140Law of 2010, serving up a tempting taste of our timely tweets over the last ten days or so. So, here we go:

• Comedian Wins Defamation Suit Over Mother-in-Law Jokes http://bit.ly/9I67nn
• Third Wrongful-Death Suit Filed Over Oil Rig Explosion http://bit.ly/a7WD2p
• Judge: Michigan militia members can leave jail until trial http://bit.ly/98Tusr
• Federal Judge Bars 'Sexting' Prosecution of Pa. Girls http://bit.ly/b0Uuau
• Charges stayed against Toronto pot club staff, volunteers - Toronto Star http://bit.ly/99j8x8
• 74-year old Canadian woman extradited to U.S. on 30-year-old pot charge http://bit.ly/cmrfzY
• Alabama AG tells BP to stop circulating settlement agreements, releases to coastal Alabamians http://tiny.cc/rbsxy
• Europe Parliament VP calls for continent-wide burqa ban http://bit.ly/cKK63b
• Suntanned women to be arrested under Islamic dress code (Telegraph) http://bit.ly/98HkiQ
• Watch Your Emails. Your Boss Is. - Wall Street Journal http://bit.ly/bi3oas
• 'Greeter' becomes face of fight vs. Wal-Mart http://bit.ly/cvdlYH
• When Judges Google http://bit.ly/dqk8oE
• Just say NO - Iraq demands return of "its" Jewish archive (Wash. Post) http://tiny.cc/syeus
• Lawyers Take Another Shot at Fruit Claims in Cereals http://bit.ly/c0QKZJ
• Tory logo on cheques goes too far: ethics chief http://bit.ly/dANstv
• Senior judge says 'torrent of legislation' made legal system incomprehensible http://bit.ly/cVxn5F
• Hulk Hogan sues car insurance company over son’s crash http://bit.ly/d0L0rj
• Obama warns of a `conservative' judicial activism http://bit.ly/cKFJNE
• Overtime and the salaried employee in Ontario: a disaster waiting to happen - Lexology http://bit.ly/cWJZjC
• Bill 168 - countdown to compliance and the new obligations for Ontario employers http://bit.ly/aUaI6Y
• Will BC libel suit by climate scientist force newspapers to police the web for stories picked up on blogs, Twitter? http://tiny.cc/d84z3
• Firing Squad for man guilty of Murdering Lawyer During Botched Utah Courthouse Escape (ABA Journal) http://tiny.cc/fas8k
• Legal Post - 60% of young lawyers in Ontario are women -http://tiny.cc/4ebxt
• Hockey helmet maker sued for brain injury (CBC)http://tiny.cc/0jnp2

And don't forget... follow us at Twitter for up-to-the-moment legal updates, breaking news, and occasional flashes of nonsense.

Or if you prefer, come on back, y'all, and see it streaming live here at Wise Law Blog.

- Garry J. Wise, Toronto

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Karlheinz Schreiber Sentenced in Germany

The former lobbyist, arms dealer and Mulroney crony gets eight years in prison for tax evasion:

"It was notable that the accused sought refuge in red herrings and was consistently silent on the really decisive questions," Judge Rudolph Weigell of the Augsberg state court said in handing down the sentence.

- Garry J. Wise, Toronto

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A Victory for Free Speech?

A Washington State jury finds that First Amendment protections shield a high school newspaper that published intimate details of four current students' sexual histories - and named names.

- Garry J. Wise, Toronto

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Warman and Fournier: Divisional Court Protects Online Anonymity, Overturns Motion Court Ruling

Ontario's Divisional Court has overturned a March 25, 2009 motions court ruling in Warman v. Fournier that threatened to weaken the ability of Canadian writers and activists to maintain a cloak of online anonymity.

At the 2009 motion, the Plaintiff in a defamation suit obtained an Order requiring website operators to disclose the email addresses and distinct ip addresses of certain anonymous writers who had posted allegedly defamatory comments at their website.

The Plaintiff sought this information to assist him to identify the incognito posters.

The owners of the site are named Defendants and responded to the motion. The anonymous posters are named as "John Doe" defendants in the action.

The appeal ruling, while not providing an absolute shield from identity disclosure to anonymous online writers, established a four-point threshold that must be met before such disclosure may ordered in defamation proceedings.

Defamation Law Blog summarizes the ruling, as follows:

After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules:

• whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
• whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;
• whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and
• whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

The disclosure motion itself was not decided. It will be subsequently be re-heard before a different judge, who will be bound to apply these considerations.

As I noted following last year's motion ruling:

While I understand the freedominion authors to be an extremely tempting target to many..., little solace should be taken from this ruling.

An order for disclosure may have been justifiable if the statements made by the anonymous posters were, on their face, apparently actionable.

The Court's disinclination, however, to engage in any factual analysis of the alleged defamation or the necessary balancing of competing interests has created a dangerous precedent that should not be allowed to stand.

Based on Warman ruling, the mere commencement of a court proceeding may now give rise to an automatic entitlement to this form of disclosure.

This is an unacceptably broad entitlement to disclosure that unnecessarily threatens the reasonable expectation of online anonymity that many have come to take for granted.

An appropriate balancing of these important interests has now been mandated by the appeal decision.

More Reading:

• The Divisional Court's May 3, 2010 ruling: Warman v. Wilkins-Fournier, 2009 CanLII 14054 (ON S.C.).
• The original motion court's ruling is here.
• Our March 26, 2009 post: Warman and Fournier - Online Anonymity Threatened in Ontario

- Garry J. Wise, Toronto

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Ontario Paralegals Withdraw Law Society Motion?

Apparently so, according to a Law Society of Upper Canada bulletin, emailed to members early Tuesday morning. The notice is strangely veiled as to the nature of the motion itself:

The members who filed a motion to be made at the Law Society's Annual General Meeting on May 5, 2010 (published in the April 16, 2010 edition of the Ontario Reports) have advised the Law Society that the motion will not be moved at the Annual General Meeting.

Pursuant to the by-laws, the motion will therefore not be on the agenda of the Annual General Meeting.

There must be an interesting story here...

For background, see our post last week, Ontario Paralegals and Family Court Representation

- Garry J. Wise, Toronto

Update:

The Toronto Star adds this brief snippet:

The motion, however, has been withdrawn. Toronto paralegal Marshall Yarmus said they have decided instead to allow the law society’s paralegal standing committee to study, on its own timetable, the issue of expanding the scope of practice for paralegals.

The law society has regulated paralegals since 2007. How that development has affected paralegals and the public will be the subject of a review to be submitted to Ontario’s attorney general in 2012.

- GJW

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Ontario A.G. Launches New "Legal Forms Assistant"

Ontario's Attorney General has launched a new online "Legal Forms Assistant" to assist unrepresented litigants to complete family law and small claims court forms.

According to a news release from the A.G.'s office:

"We're making our family courts more affordable and less complicated. This new tool simplifies the process and we are also making progress in providing the information upfront to help families reach informed decisions."

- Chris Bentley, Attorney General

The online programme uses an interactive question-and-answer format to walk individuals through the information required to complete these forms.

It does appear to represent a significant improvement on the stand-alone, locked-format Family Law Rules Forms that are also available online.

Cudos to the A.G. on its continuing efforts to upgrade and modernize Ontario Courts' interface with public.

We can only hope that e-filing of court forms in the Province will be just around the corner...

- Garry J. Wise, Toronto

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