No further comment necessary, I hope.
- Garry J. Wise, Toronto
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Hand-held devices prohibited
Wireless communication devices
78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.
Entertainment devices
(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.
(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode.
Exceptions
(4) Subsection (1) does not apply to,
(a) the driver of an ambulance, fire department vehicle or police department vehicle;
(b) any other prescribed person or class of persons;
(c) a person holding or using a device prescribed for the purpose of this subsection; or
(d) a person engaged in a prescribed activity or in prescribed conditions or circumstances.
Same
(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services.
Same
(6) Subsections (1) and (2) do not apply if all of the following conditions are met:
1. The motor vehicle is off the roadway or is lawfully parked on the roadway.
2. The motor vehicle is not in motion.
3. The motor vehicle is not impeding traffic.
- Garry J. Wise, Toronto
UPDATE: October 1, 2009
The provincial government announced yesterday that the Ontario drivers' cell phone ban will come into effect October 26, 2009.Visit our Toronto Law Firm website: www.wiselaw.net
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(h.t - Susan M)
- Garry J. Wise, Toronto
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Ontario's Small Claims Courts, which are the busiest civil courts in the Province, will be getting considerably busier on January 1, 2010.
As we noted in our December 11, 2009 post, the arrival of the new year will bring an increase in the Court’s maximum monetary jurisdiction from $10,000 to $25,000 and a significant influx of new, larger cases is likely to follow.
The increased Claim limit has been under consideration for quite some time. In November 2007, former Associate Chief Justice of Ontario, Coulter Osborne, who headed the Civil Justice Reform project committee, submitted his findings and recommendations to the Ministry of Attorney General, including a recommended increase in the monetary limit in Ontario Small Claims Courts proceedings.
The recommendations were intended to enhance access to justice for Ontario residents by reducing the legal costs of litigation, and simplifying the prosecution of smaller, civil actions in the Province.
The changes ahead will bring Ontario in line with British Columbia, Alberta, the Yukon and Nova Scotia, all of which have a $25,000 Small Claims Court limit. Saskatchewan, too, will soon follow suit.
Ontario's Small Claims Court is a branch of the province's Superior Court of Justice. Examples of typical claims filed in the Small Claims Court include actions related to:
The majority of the cases in Ontario's Small Claims courts are heard by Deputy Judges, who are lawyers appointed to preside, part-time, over hearings conducted at the Court.
The imminent raise in monetary jurisdiction will likely lead to a significant increase in the Court's case loads.
According to the Osborne report, 75,041 new proceedings were commenced in Ontario's Small Claims Court in 2005-2006. By comparison, during the same period, only 63,251 new civil proceedings were commenced the province's Superior Courts.
Of those 63,251 Superior Court cases, 6,555 included claims for amounts between $10,001 and $25,000, and would therefore be typical of cases likely to proceed in the expanded Small Claims Court system.
According to the Osborne Committee, the increased jurisdiction limit is likely to result in a need for additional facilities, court staff and judges.
Toronto, for example, has only one Small Claims Court, housed on one floor in a small office building at 47 Sheppard Avenue East, in the city’s Yonge and Sheppard area. According to a recent Ministry of Attorney General press release, however, a new court house is anticipated to be built in Toronto's west end. Whether the new facility will house a Small Claims Court remains unclear.
No plans have been announced yet for the appointment of additional deputy judges to service the expanded Courts, nor have amendments to the Court's Rules and procedures yet been tabled.
Time is running short for the announcement of such changes.
Potential litigants in these "smaller" $10,000.00 to $25,0000.00 claims already face daunting questions on how to proceed:
With little, specific guidance from the Attorney General's office as to the transition ahead, access to justice is not benefiting from a current paucity of information.
The expansion of the Court will have significant procedural and practical implication that must be addressed by current and future litigants - and legal professionals:
Some concern has additionally been voiced as to whether the Court's contingent of Deputy Judges has adequate judicial expertise and training to address the increased complexity of the higher-value cases that will soon be before the Court.
In a February 2009 article, Sun Media legal columnist Alan Shanoff noted that the new $25,000 monetary limit will likely bring larger and more complicated contract cases, defamation suits, and medical malpractice claims to the Court's docket.
As Mr. Shanoff astutely cautioned, "Certainly, the public deserves a full-time professional roster of judges and proper facilities. Let's not trade one set of problems for another."
- Bill Rogers, Shashi Raina and Garry J. Wise, Toronto
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Not surprisingly, as the facts emerge on the American deployment of "harsh interrogation methods," the Bush Administration's rationale for the use of such tactics appears increasingly thin.
...A former senior U.S. intelligence official familiar with the interrogation issue said that Cheney and former Defense Secretary Donald H. Rumsfeld demanded that intelligence agencies and interrogators find evidence of al Qaida-Iraq collaboration... Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."
It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly — Abu Zubeida at least 83 times in August 2002 and Khalid Sheik Mohammed 183 times in March 2003 — according to a newly released Justice Department document.
..."Cheney's and Rumsfeld's people were told repeatedly, by CIA . . . and by others, that there wasn't any reliable intelligence that pointed to operational ties between bin Laden and Saddam, and that no such ties were likely because the two were fundamentally enemies, not allies."
Senior administration officials, however, "blew that off and kept insisting that we'd overlooked something, that the interrogators weren't pushing hard enough, that there had to be something more we could do to get that information..."
This is getting uglier by the day.
- Garry J. Wise, Toronto
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A Senate Armed Services Committee report, released yesterday, addresses America's abusive treatment of detainees and the resulting harm to American interests:
The abuse of detainees in U.S. custody cannot simply be attributed to the actions of “a few bad apples” acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.
- Garry J. Wise, Toronto
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President Barack Obama "elaborated" Tuesday on his position regarding possible criminal investigations arising from recently-released Bush administration "torture memos:"
OBAMA: The OLC memos that were released reflected in my view us losing our moral bearings. ... For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it's appropriate for them to be prosecuted. With respect to those who formulated those legal decisions, I would say that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that.
Let's just call this a modest, preliminary step in the right direction.
My radar, however, tells me that the Obama Administration may now simply blame the lawyers for this entire torture mess, and suggest that the buck ought to stop there.
It must not.
- Garry J. Wise, Toronto
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Think Progress:
Former Presidents Bill Clinton and George W. Bush will meet for a debate late next month. The event will take place on Friday, May 29th at the Metro Toronto Convention Centre. ThinkProgress has been told the “debate” will occur in the form of a moderated question-and-answer session, rather than a more lively exchange between the two Presidents.
- Garry J. Wise, Toronto
UPDATE: May 30, 2009 - Our full report on this event is now online here.
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Where at law does the President derive this ultimate authority to determine on political grounds who will or will not be prosecuted in America for alleged criminal offences?
"The most serious allegations that arose were that the U.S. Attorneys were removed based on improper political factors, including to affect the way they handled certain voter fraud or public corruption investigations and prosecutions. Our investigation found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys.
...All this despite the facts that, as the report makes clear, the idea of firing U.S. attorney originated in the White House, no one within the Justice Department has been able to provide a persuasive explanation for why several of the names showed up on the firing list, and the White House aides who just might possibly be in a position to resolve the mystery insist on remaining silent.
And while I do not want venture into hyperbole by suggesting any parallel - as there is none at this point - I will at very least make historical reference to an August 1974 legal memorandum to U.S. Special Prosecutor Leon Jawarski on the possible indictment of former President Richard Nixon.
This memorandum adressed allegations of obstruction of justice stemming from Mr. Nixon's role in an alleged conspiracy to cover up illegal activity by his political operatives in order to sheild them from prosecution and to insulate the Nixon Administration from political and legal repercussions:
In our view there is clear evidence that Richard M. Nixon participated in a conspiracy to obstruct justice by concealing the identity of those responsible for the Watergate break-in and other criminal offenses. There is a presumption (which in the past we have operated upon) that Richard M. Nixon, like every citizen, is subject to the rule of law. Accordingly, one begins with the premise that if there is sufficient evidence, Mr. Nixon should be indicted and prosecuted.
As I understood it, U.S. Presidents do not have authority to unilaterally determine whether criminal prosecutions occur in America, nor may they tamper with ongoing investigations to influence prosecutorial determinations on these questions.
Presidents may issue pardons to preclude prosecution, as did President Gerald Ford on September 8, 1974, but absent such pardons, I would suggest they have no lawful role in matters of prosecutorial discretion.
- Garry J. Wise, Toronto
Update: April 22, 2009
Glen Greenwald advanced a similar argument yesterday. See Obama recognizes: whether to prosecute is not his decision.
- GJW
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Their language is the precise bureaucratese favored by dungeon masters throughout history. They detail how to fashion a collar for slamming a prisoner against a wall, exactly how many days he can be kept without sleep (11), and what, specifically, he should be told before being locked in a box with an insect — all to stop just short of having a jury decide that these acts violate the laws against torture and abusive treatment of prisoners.
...These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.
...In the case of detainee abuse, Mr. Obama assured C.I.A. operatives that they would not be prosecuted for actions that their superiors told them were legal. We have never been comfortable with the “only following orders” excuse, especially because Americans still do not know what was actually done or who was giving the orders.
...At least Mr. Obama is not following Mr. Bush’s example of showy trials for the small fry — like Lynndie England of Abu Ghraib notoriety. But he has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution.
That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.
These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.
Also see UN Rapporteur On Torture: Obama’s Pledge Not To Pursue Torture Prosecutions At CIA Is Not Legal from Think Progress
- Garry J. Wise, Toronto
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Star-spangled torture in action: Khalid Sheikh Mohammed was waterboarded 183 times in March 2003 alone.
Abu Zubaydah, by contrast, was waterboarded a mere 83 times in August 2002.
President Obama has ruled out prosecution of the CIA agents who carried out these gruesome interrogations because they received explicit authority and assurance of legal cover by the U.S. Justice Department.
That position is flat-out wrong and legally indefensible.
Just following orders is not an available defence in these matters, nor should it be.
Nuremberg Principle IV spells this out plainly:
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.Leaving that debate aside for the moment, however, I note the President has made no specific statement that expressly rules out investigation and prosecution of the civilian and military leaders who issued or authorized those appallingly un-American torture orders.
- Garry J. Wise, Toronto
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In an editorial today, former Sun Media counsel Alan Shanoff looks at the Canadian Judicial Council, a body of senior Canadian judges designated by Part II of the federal Judges Act to investigate and rule upon complaints of misconduct against federally-appointed judges.
The number of complaints made against judges has increased from 145 in 1998-99 to 189 in 2007-08. There have been about 3,000 complaints since 1971. Remarkably, only seven complaints have resulted in public hearings and only four judges were deemed worthy of being brought before Parliament.
...The real issue for me is who should judge our judges.
While I agree with the CJC decisions I've read, I am uncomfortable in any situation where members of a group judge other members of the group. We are naturally skeptical about any self-regulating or self-investigating body.
It isn't enough for the CJC to consult with outside sources. It's time for some non-judicial members to sit with the CJC.
...when the Council receives a complaint about a judge, a member of the Council’s Judicial Conduct Committee reviews the complaint and decides how the matter should be handled. Handling the complaint may range from asking the judge in question to respond to the complaint, to holding a full inquiry into the matter. It may result in the Inquiry Committee recommending to the Minister of Justice that the judge be removed from office.The Council also maintains an online archive of its Inquiry Proceedings and Reports here.
- Garry J. Wise, Toronto
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The suit filed Friday in federal court in California claims Charles DeVore is using Henley's hit songs "The Boys of Summer" and "All She Wants to Do Is Dance" without authorization.
The suit comes from two campaign videos that DeVore posted on YouTube that used Henley's music, according to the lawsuit.
In one of the videos, DeVore's campaign changed the words of "All She Wants to Do Is Dance" to lyrics that attacked Sen. Barbara Boxer, the lawsuit alleges.
The CNN article quotes Henley's position:
"Don Henley and Mike Campbell brought this action to protect their song, 'The Boys of Summer,' which was taken and used without their permission," Henley's spokesman said. "The infringers have vowed to continue exploiting this and other copyrighted works, as it suits them, to further their own ambitions and agenda. It was necessary to file a lawsuit to stop them."
The Congressman's campaign blog responds:
Rocker Don Henley’s legal threats have shut down our rough cut April Fool’s music video Obama lampoon based on “The Boys of Summer” on both YouTube and on Orange County’s alternative newspaper, the O.C. Weekly. We’re responding with a counter-claim, asserting our First Amendment right to political free speech in parody based on the Supreme Court ruling of Campbell v. Acuff-Rose Music, Inc.
While the legal issues play out, it’s time to up the ante on Mr. Henley’s liberal goon tactics. By popular request, I have penned the words to our new parody song, an expose of Senator Barbara Boxer’s new cap-and-trade energy bill that will operate as a hidden tax that will also enrich a few people.
More on this litigation from the very thorough Copyrights and Campaigns blog - see All he wants to do is .....get himself sued?
The impugned DeVore video has apparently been removed by YouTube, replaced by the site's now-ubiquitous copyright infringement claim notice. TMZ has the details:
Henley demanded that YouTube take the video down and You Tube removed it, but YouTube reposted it after DeVore insisted it go back up. YouTube contacted Henley and said they would take it down only if Henley filed a lawsuit. Hence, the lawsuit.
....
Jackson Browne v. John McCain
In a related story, a U.S. District Court has allowed singer-songwriter Jackson Browne to continue his copyright infringement suit against John McCain over the former Republican Presidential candidate's use of Browne's classic, Running on Empty, in last year's unsuccessful election campaign. Music News reported on the February 2009 ruling:
The US District Court for the Central District of California has denied the motions of Senator John McCain and the Republican National Committee to stop the lawsuit filed by singer/ songwriter Jackson Browne for the unauthorized use of Browne's voice and song Running On Empty in a presidential campaign commercial. ...In a series of rulings on February 20, 2009, Judge Gary Klausner, rejected McCain's/RNC arguments that the First Amendment or copyright's fair use doctrine allows their unauthorized use of Browne's voice and song because the use occurred in a political campaign commercial.
Browne's attorney, Lawrence Iser,said; "The Court's decision is a solid victory for songwriters and performers and reflects an affirmation of their intellectual property rights and their freedom from being conscripted as involuntary endorsers of political candidates and campaign messages. We are happy that the Court recognized that persons and parties running for office are not entitled to violate an individual's intellectual property and publicity rights simply because they are engaged in political campaigns. We look forward to presenting Jackson Browne's case to the jury." You can read the Court’s Orders denying the RNC's motions here, here, here and here.
Also see the Washington Post on the Browne-McCain litigation.
- Garry J. Wise, Toronto
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The Government of Canada went to YouTube last week to announce changes to Canada's citizenship laws:
Under the new law citizenship is restored to:People who:
- became citizens when the first citizenship act took effect on January 1, 1947, including people born in Canada prior to 1947 and war brides. It also applies to other British subjects who had lived in Canada for at least five years before 1947, became citizens on January 1, 1947, and who then lost citizenship.
It also restores citizenship to people who:
- were born in Canada or who became Canadian citizens on or after January 1, 1947, and who then lost their citizenship and
- were born outside Canada, on or after January 1, 1947, in the first generation born abroad, to a Canadian citizen.
The law also gives citizenship to some people who have never been citizens. This includes people who:
- were born outside Canada on or after January 1, 1947
- are in the first generation born abroad and
- were born to a Canadian citizen.
Read more at about who woke up Canadian yesterday at Citizenship and Immigration Canada
- Garry J. Wise, Toronto
P.S.
(Back at you Altavistagoogle)
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George Bush, Paul Wolfowitz and Donald Rumsfeld demand consequences for inhumane treatment of American POW's by the Iraqi Army in March, 2003:
"If there is somebody captured," President George W. Bush told reporters on March 23, 2003, "I expect those people to be treated humanely. If not, the people who mistreat the prisoners will be treated as war criminals."
...That same day, Deputy Defense Secretary Paul Wolfowitz told the BBC, “The Geneva Convention is very clear on the rules for treating prisoners. They're not supposed to be tortured or abused, they're not supposed to be intimidated, they're not supposed to be made public displays of humiliation or insult, and we're going to be in a position to hold those Iraqi officials who are mistreating our prisoners accountable, and they've got to stop.”
On March 25, Defense Secretary Donald Rumsfeld added, “In recent days, the world has witnessed further evidence of their [Iraqi] brutality and their disregard for the laws of war. Their treatment of coalition POWs is a violation of the Geneva Conventions.”
- Garry J. Wise, Toronto
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From the Center for Constututional Rights:
April 17, 2009, New York –The Center for Constitutional Rights (CCR), which represents many of the men detained by the U.S. government at Guantánamo, praised Spanish judge Baltazar Garzon’s decision to pursue a criminal investigation into the actions of six Bush administration lawyers for providing legal cover for torture at the base. His move comes the day after the Spanish attorney General overrode his prosecutors to recommend that the case not go forward. CCR attorneys hailed the decision as an important step in holding these officials and others accountable for their crimes. The case may well lead to investigations of top officials, including Donald Rumsfeld and Dick Cheney.
...CCR Executive Director Vincent Warren said, “It is gravely disappointing that we must rely on European countries like Spain to hold U.S. officials accountable for war crimes. This is a golden moment for the current administration to appoint a special U.S. prosecutor and break with the illegalities of the past.”
CCR Vice President Peter Weiss, an expert in international human rights law, said, “It was the lawyers who flashed the green light for torture with their mendacious made-to-order opinions. They therefore bear the primal guilt for the torture which occurred.”
- Garry J. Wise, Toronto
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Torture - it works, by golly.
Just ask the Fox Friends of Torture:
- Garry J. Wise, Toronto
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Andrew Sullivan hitting the nail on the head on the newly-released torture memos:
No: what is far more important and far graver is the decision after the 2004 re-election, after the original period of panic, to set up a torture program, replete with every professional and bureaucratic nicety. This is why the Bradbury memo of 2005 is so much more chilling in its way. This was long after Abu Ghraib, long after the initial panic, and a pre-meditated attempt to turn the US into a secret torture state. These legal memos construct a form of torture, through various classic torture techniques, used separately and in combination, that were to be used systematically, by a professional torture team along the lines proposed by Charles Krauthammer, and buttressed by a small army of lawyers, psychologists and doctors - especially doctors - to turn the US into a torture state. The legal limits were designed to maximize the torture while minimizing excessive physical damage, to take prisoners to the edge while making sure, by the use of medical professionals, that they did not die and would not have permanent injuries.
...Looked at from a distance, the Bush administration wanted to do two things at once: to declare to the world that freedom is on the march, and human rights are coming to the world with American help, while simultaneously declaring to captives that the US has no interest in the law, human rights, accountability, transparency or humanity. They wanted to give hope to all the oppressed of the planet, while surgically banishing all hope from the prisoners they captured and tortured. And the only way they could pull this off is by the total secrecy they constructed and defended. So we had a public government respectful of the rule of law, and a secret government whose main goal was persuading terror suspects that there was no rule of law at all. It is hard to convey just how dangerous this was and is.
...Read how no one is even close to debating "ticking time bomb" scenarios as they strap people to boards and drown them until they break. Then read how they adjusted the waterboarding, for fear it was too much, for fear that they were actually in danger of suffocating their captives, and then read how they found self-described loopholes in the law to tell themselves that what the US had once prosecuted as torture could not possibly be torture because we're doing it, and we're different from the Viet Cong. We're doing torture right and for the right reasons and with the right motive. Many of the people who did this are mild, kind, courteous, family men and women, who somehow were able to defend slamming human beings against walls in the daytime while watching the Charlie Rose show over a glass of wine at night. We've seen this syndrome before, in other places and at other times. Yes: it can happen here. And imagine how this already functioning torture machine would have operated in the wake of another attack under a president Romney or Giuliani.
- Garry J. Wise, Toronto
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