Monday, November 30, 2009

Like Winning The Lottery

N.Y. Judge Cancels $525K in Mortgage Debt, Blasts Bank’s ‘Shocking and Repulsive’ Acts

- Garry J. Wise, Toronto

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Rachel's Bits and Briefs

University Enrollment is on the Rise

According to the Association of Universities and Colleges of Canada, Canada's economic downturn has led to a 38,000 student increase in full-time university enrollment this fall:
The economic downturn is one of the key factors driving a 4.1 percent growth in undergraduates programs and a 7.2 percent increase in graduate programs. By continuing to enhance their skills and talents in bachelors, professional and graduate degree programs, these students will be well prepared when the economy begins to recover and they will be able to put their creative and innovative talents to use, both for personal benefit and to help drive economic growth across Canada.

The Trial of Radovan Karadzic Delayed

The Telegraph reports that the trial of accused war criminal and former Bosnian President Radovan Karadzic will be delayed until March 2010.

Radovan Karadzic will have a defence lawyer imposed on him after United Nations judges ruled that he had 'substantially and persistently obstructed' his trial for genocide and war crimes.

Proceedings against the former Bosnian Serb leader will now be delayed until next March 2010 to give the court-appointed counsel time to study the case.

"The trial chamber hereby determines that the overall interests of justice are best met by the appointment of counsel," said a written ruling issued on Thursday by the International Criminal Tribunal for the former Yugoslavia.

UN judges in The Hague took the decision after Mr Karadzic boycotted the beginning of his trial, which began on Oct 26, claiming he had not been given enough time to prepare his own defence.

"The accused's conduct has effectively brought the trial to a halt, which is evidently his purpose. Furthermore, he has made it clear that he wishes to control when the trial will resume, rather than the chamber. These are blatant examples of deliberately obstructive conduct," said the judges.

The 64-year-old former president of the Bosnian Republica Srpska was also warned he "will forfeit his right to self-representation" if he continued to obstruct the trial.The Bosnian War took place from 1992 to 1995, leaving more than 100,000 people dead.

Public Outcry Saves Neighbourhood Post Office

Joe Florito of the Toronto Star reported last month on a bit of a good news story.

Junction Gardeners Postal, a Toronto variety store and post office that recently faced closure by Canada Post, has succeeded in negotiating a new five-year contract, after 4,500 patrons of the store petitioned Canada Post to keep the neighbourhood postal outlet open.

U.S. Law Prof Advocates 'Strategic' Walkaways from Underwater Mortgages

An L.A. Times article questions the ethics of commentary by University of Arizona law school professor, Brent T. White, on his recent paper, Underwater and Not Walking Away: Shame, Fear and the Social Management of the Housing Crisis:
"Homeowners should be walking away in droves," White said. "But they aren't. And it's not because the financial costs of foreclosure outweigh the benefits."

Sure, credit scores get whacked when you walk away, he acknowledges. But as long as you stay current with other creditors, "one can have a good credit rating again -- meaning above 660 -- within two years after a foreclosure."

Better yet, homeowners can default "strategically": Buy all the major items they'll need for the next couple of years -- a new car, even a new house -- just before they pull the plug on their current mortgage lender.

"Most individuals should be able to plan in advance for a few years of limited credit," White said, with minimal disruptions to their lifestyles.

What kind of law school professorial advice is this? Aren't mortgages legal contracts? In so-called anti-deficiency states such as California and Arizona, mortgage lenders have limited or no legal rights to pursue defaulting homeowners' assets beyond the house itself, White said. In other states, lenders may decide that it is not worth the legal expense to pursue walkaways, or consumers may be able to find flaws in the mortgage documents, disclosures or underwriting to challenge the original contract

- Garry J. Wise, Toronto

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Sunday, November 29, 2009

Quotable: Mr. Justice Marc Rosenberg

Ontario Court of Appeal Justice Marc Rosenberg, speaking to the Ontario Criminal Lawyers Association, where he was awarded the G. Arthur Martin medal for outstanding contributions in the field of criminal law:
Another danger is that the Charter could become a "Trojan horse," he said. While it gives Canadians the security their rights will be protected, it could also be a barrier to ensuring they have the best criminal justice system possible, with politicians and bureaucrats conditioned to think they just have to do the minimum necessary to meet Charter standards.
"When does the Charter minimum become the policy maximum?" Rosenberg asked.

Saturday, November 28, 2009

Stunt Driving, Street Justice?

There's an interesting tidbit in this article from the Welland Tribune, calling for a halt to prosecutions under Ontario's street racing law, pending government appeals of two recent Ontario court decisions holding the law to be unconstitutional.

Did you know that over 10,000 people have been charged under this law since it came into effect in 2007? In fact, according to a CBC interview with Inspector Dave Ross of the Ontario Provincial Police, charges to date have actually numbered more than 15,000.

That's an awful lot of so-called "street racing" going on. So much so, I suspect, that many Ontarians might find these statistics rather stretching of credulity.

In his November 19, 2009 ruling in R. v. Drutz, 2009 ONCJ 537, Mr. Justice Peter West was clearly disinclined to legitimize the new statutory approach to gross speeding.

Noting the striking similarities in language between "the usual" speeding offences and the new stunt driving offence, he concluded the new law created an absolute liability offence. Such offenses allow for no defence to be raised.

In view of the very significant penalties applicable under the section, Mr. Justice West ruled the provision unconstitutional:

[33] It is my opinion that the subject matter of the legislation in issue is undoubtedly speeding, which the Court of Appeal has defined as an absolute liability offence. I am bound by that characterization. Further, it is my view that calling the conduct “stunt” driving does not change its characterization – it is still a speeding offence albeit by a different name. There is nothing about the manner of driving 50 or more kilometres above the speed limit in section 3(7) of the Regulations that elevates or differentiates the conduct from the conduct set out in section 128 (a speeding offence).

[47] However, in my view, the combination of section 172 of the HTA and section 3(7) of O. Reg. 455/07 is only open to one interpretation and having regard to my assessment that the conduct described by section 3(7) is an absolute liability offence, the possibility of the imposition of up to six months imprisonment thereby renders this section unconstitutional.
[53] Consequently, section 3(7) of O. Reg. 455/07 is unconstitutional and is of no force and effect. Applying the doctrine of severance, only that subsection need be severed from the Regulations. The charge against Ms.Drutz is therefore dismissed.
For background, here are the relevant extracts from Section 172 of Ontario's the Highway Traffic Act:

Racing, stunts, etc., prohibited

172. (1) No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager. 2007, c. 13, s. 21.


(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $2,000 and not more than $10,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her driver’s licence may be suspended,

(a) on a first conviction under this section, for not more than two years; or

(b) on a subsequent conviction under this section, for not more than 10 years. 2007, c. 13, s. 21.

.. Police to require surrender of licence, detention of vehicle

(5) Where a police officer believes on reasonable and probable grounds that a person is driving, or has driven, a motor vehicle on a highway in contravention of subsection (1), the officer shall,

(a) request that the person surrender his or her driver’s licence; and

(b) detain the motor vehicle that was being driven by the person until it is impounded under clause (7) (b). 2007, c. 13, s. 21.

Administrative seven-day licence suspension

(6) Upon a request being made under clause (5) (a), the person to whom the request is made shall forthwith surrender his or her driver’s licence to the police officer and, whether or not the person is unable or fails to surrender the licence to the police officer, his or her driver’s licence is suspended for a period of seven days from the time the request is made. 2007, c. 13, s. 21.

Administrative seven-day vehicle impoundment

(7) Upon a motor vehicle being detained under clause (5) (b), the motor vehicle shall, at the cost of and risk to its owner,

(a) be removed to an impound facility as directed by a police officer; and

(b) be impounded for seven days from the time it was detained under clause (5) (b). 2007, c. 13, s. 21.

...No appeal or hearing

(13) There is no appeal from, or right to be heard before, a vehicle detention, driver’s licence suspension or vehicle impoundment under subsection (5), (6) or (7), but this subsection does not affect the taking of any proceeding in court. 2007, c. 13, s. 21.

Lien for storage costs

(14) The costs incurred by the person who operates the impound facility where a motor vehicle is impounded under this section are a lien on the motor vehicle that may be enforced under the Repair and Storage Liens Act. 2007, c. 13, s. 21.

Costs to be paid before release of vehicle

(15) The person who operates the impound facility where a motor vehicle is impounded under subsection (7) is not required to release the motor vehicle until the removal and impound costs for the vehicle have been paid. 2007, c. 13, s. 21.

...Intent of suspension and impoundment

(18) The suspension of a driver’s licence and the impoundment of a motor vehicle under this section are intended to promote compliance with this Act and to thereby safeguard the public and do not constitute an alternative to any proceeding or penalty arising from the same circumstances or around the same time. 2007, c. 13, s. 21.

Regulations enacted several months after Section 172 was passed, however, broadly expanded the definition of "stunt" under the provision. This significantly extended the new law's reach, to include cases where there was no underlying connection to stunts or racing, at all.

Take a look at subparagraphs 7 and 8, below:

Definition, “stunt”

3. For the purposes of section 172 of the Act, “stunt” includes any activity where one or more persons engage in any of the following driving behaviours:

1. Driving a motor vehicle in a manner that indicates an intention to lift some or all of its tires from the surface of the highway, including driving a motorcycle with only one wheel in contact with the ground, but not including the use of lift axles on commercial motor vehicles.

2. Driving a motor vehicle in a manner that indicates an intention to cause some or all of its tires to lose traction with the surface of the highway while turning.

3. Driving a motor vehicle in a manner that indicates an intention to spin it or cause it to circle, without maintaining control over it.

4. Driving two or more motor vehicles side by side or in proximity to each other, where one of the motor vehicles occupies a lane of traffic or other portion of the highway intended for use by oncoming traffic for a period of time that is longer than is reasonably required to pass another motor vehicle.

5. Driving a motor vehicle with a person in the trunk of the motor vehicle.

6. Driving a motor vehicle while the driver is not sitting in the driver’s seat.

7. Driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit.

8. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,

i. driving a motor vehicle in a manner that indicates an intention to prevent another vehicle from passing,

ii. stopping or slowing down a motor vehicle in a manner that indicates the driver’s sole intention in stopping or slowing down is to interfere with the movement of another vehicle by cutting off its passage on the highway or to cause another vehicle to stop or slow down in circumstances where the other vehicle would not ordinarily do so,

iii. driving a motor vehicle in a manner that indicates an intention to drive, without justification, as close as possible to another vehicle, pedestrian or fixed object on or near the highway, or

iv. making a left turn where,

(A) the driver is stopped at an intersection controlled by a traffic control signal system in response to a circular red indication;

(B) at least one vehicle facing the opposite direction is similarly stopped in response to a circular red indication; and

(C) the driver executes the left turn immediately before or after the system shows only a circular green indication in both directions and in a manner that indicates an intention to complete or attempt to complete the left turn before the vehicle facing the opposite direction is able to proceed straight through the intersection in response to the circular green indication facing that vehicle. O. Reg. 455/07, s. 3.

Was this anti-racing statute really intended to target people who momentarily speed up to pass large trucks on the highway? That appears to be how the law has been interpreted and enforced by Ontario's police forces.

More from the Tribune on this:
Only two months ago, a Belleville judge threw out a 62-year-old grandmother's conviction on stunt driving charges for the same reason. The woman was clocked at 51 km/h over the limit but she had been trying to pass a large transport as quickly as possible because she was afraid of being trapped in the trucker's blind spot.
But no excuses are allowed under a law that's supposed to curb street racing but somewhere along the way morphed into something else altogether. The government's regulations added after the original legislation was voted on have changed the intent.
It's being applied to all cases of excessive speeding regardless of whether you really were racing or whether you were momentarily thoughtless or just trying to pass a truck. They'd probably charge you even if you had a stuck accelerator.
Clearly, this law was enacted with important and legitimate public interests in mind. Justice West's ruling simply returns the law toward its original intent by imposing reasonable constitutional limits on its scope.

Note that the ruling does not strike Ontario's entire stunt driving law. Rather, it simply severs the gross speeding provision from the regulation, while leaving the balance of Section 172 and the regulations wholly intact.

Thou Who Killeth Not the Beast Shall Be Charged With Cruelty

More from CBC today on the ridiculous turf war waged against the Toronto Humane Society by the Ontario Society for the Prevention of Cruelty to Animals. This week's cruelty charges against five top Humane Society officials are summarized as follows:
“The animals are left to catch horrible diseases, die in their crates based on the euthanasia policy and refusing to let the veterinarians who work here to do their jobs,” Christopher Avery, lawyer for the OSPCA, charged.*
(*Translation for the uninitiatiated - "do their jobs" = kill animals)

The Toronto Humane Society's reluctance to "euthanize" is apparently considered cruelty by some in the animal welfare business.

I am glad these well-meaning folks don't have police powers in our hospitals.

What a sorry spectacle.

Thursday, November 26, 2009

Palin Tells Canada to Ditch Public Health Care

Oh my...

Sarah Palin inadvertently stepped into Canadian politics earlier this week when she told the crew of a CBC comedy show that America's northern neighbor should "reform its health care system and let the private sector take over" the country's medical services.

Comedian Mary Walsh of the comedy show This Hour Has 22 Minutes, a sort of Canadian Daily Show, stormed a recent Palin book-signing in Columbus, Ohio, and said to the former Alaska governor: "I just wanted to ask you if you have any words of encouragement for Canadian conservatives who have worked so hard to try to diminish the kind of socialized medicine we have up there."

- Garry J. Wise, Toronto

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Sunday, November 22, 2009

The Mediation Mindset

Victoria Pynchon's always-insightful Settle it Now Mediation Blog takes a close look today at the alternate mindset necessary for resolution of conflict through mediation, as opposed to litigation.

She argues that the litigation process necessarily adopts our collective inclination toward "good vs evil" narratives, while mediation, by contrast, emphasizes "interest-based, consensus building, collaborative, problem solving [and] negotiated resolution."

To succeed in mediation, she suggests, the litigation narrative must be dislodged.

She excerpts from Client Counseling, Mediation and Alternative Narratives of Dispute Resolution (Spring 2004) 10 Clinical L. Rev 833, by Law Professor Robert Rubinson, to underline this central point:
The meta-narrative of litigation maps these "strivings" and "vanquishings" onto the struggle of one party against another and enlists the aid of the court to vindicate justice on behalf of the wronged party. In contrast, the meta-narrative of mediation seeks to map these "strivings" and "vanquishings" onto a collaborative struggle to resolve conflict. This narrative casts all participants as players in a process - collaboration - that is focused on reaching the common goal of successfully resolving or transforming a dispute. This story has moral entailments because collaboration is accepted as a social and moral good. Unlike litigation, however, this story does not generate a binary moral universe that divides the good from the bad, but, rather, a universe that values collaborative striving to achieve common ground and resolution.

Needless to say, lawyers attending with clients at mediation play a major role in setting and maintaining the tone of the dialogue that ensues. While I'd argue that there is no one-size-fits-all-cases "mediation mindset," and there are indeed occasions where a "big stick" is warranted - even at mediation - Ms. Pynchon's analysis and comments are sound and largely on the mark.

Mediation works best when legal warriors lay down their swords (if only for the day).

- Garry J. Wise, Toronto

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Friday, November 20, 2009

Workplace Harassment and Bill 168 - A New Remedy for an Old Problem

Workplace bullying is a serious problem for thousands of Canadians at work. It can degrade one’s self worth and create serious health problems for workers and their families.

There has often been very little that could be done to stop the workplace bully in his or her tracks. But, in Ontario, there is now hope around the corner.

This month, Ontario’s Standing Committee on Social Policy will wrap up public hearings regarding Ontario's Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace. The Bill, which will place heavier obligations on employers to prevent and manage workplace violence and harassment, has already been given second reading in the Legislature, and will likely become law sometime next year.

The new law defines "workplace harassment" and "workplace violence" in the following manner:

"Workplace harassment" means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.

"Workplace violence" means:

a. the exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker,

b. an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.

This type of legislative initiative should be welcomed. Many employees live with the often horrific reality that the workplace can be a war zone from which there is no shelter.

Researchers Charlotte Rayner, Helge Hoel and Cary L. Cooper have contributed to our understanding of what may constitute workplace bullying.

In their book, Workplace Bullying: What We Know, Who is to Blame, and What We Can Do, they suggest that bullying may include:

  • Threat to professional status (e.g., damaging the person's reputation, humiliating the person in public or accusing him or her of lack of effort).
  • Threat to personal standing (e.g., calling the person names; insulting, teasing or intimidating him or her; or devaluing the person based on age).
  • Isolation (e.g., preventing access to opportunities, deliberately withholding important information or isolating the person physically or socially).
  • Overwork (e.g., imposing undue pressure to produce work, setting impossible deadlines or making consistent and unnecessary disruptions).
  • Destabilization (e.g., failing to give credit where it is due, assigning meaningless tasks, removing responsibility or setting the person up for failure).
Certainly the costs of workplace violence and harassment can be profound for victims. Bill 168 is a welcome step in the right direction.


Tort Remedies for Harassment

The Ontario Superior Court's December 2009 ruling in Piresferreira v. Ayotte and Bell Mobility Inc., [2008] O.J. No. 518, provides a dramatic example of the civil remedies available in Ontario in extreme cases of harassment and bullying.

In that case, an employee was abused by a manager who frequently yelled and swore at her, and berated her in front of other employees. The culminating incident occurred when the manager became frustrated with the employee and pushed her aside, and the employee (who was 60 years old) lost her balance and fell back against a filing cabinet. Soon thereafter, the employee was presented with a performance improvement plan prepared by the manager. The employee was diagnosed with post-traumatic stress disorder, and left her employment permanently.

The court awarded the employee $45,000 in damages for assault, battery, intentional and negligent infliction of emotional distress, mental suffering and psycho-traumatic disability; $450,832 for loss of past and future income; and $5,123 for special damages.

Garry has also addressed this ruling in a previous post.

- Stephen Ellis, Toronto

Stephen Ellis is a Toronto lawyer practicing in association with Wise Law Office, Toronto

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Wednesday, November 18, 2009

Minnesota Chiropractor Attacks Canadian Health Care

Meet Larry the Plumber.

- Garry J. Wise, Toronto

Tuesday, November 17, 2009

The "Cell Phone Energy Diet"

I mucho like this:

About the size of your average flashlight, the PEG takes the kinetic energy humans develop through physical activity and uses it to recharge small, electronic devices such as your phone, camera, or iPod.

...Place it in your bag or on your hip, attach it to the device that you need to charge using a standard USB cord, and the PEG does the rest. With each step you take, magnets inside the generator bounce back and forth off the springs inside it, creating electricity.

- Garry J. Wise, Toronto

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Monday, November 16, 2009

Parental Access Visits by Skype?

Access visitation with far-away children via Skpe - is it good enough, or not?

National Post reports on conflicting decisions in child mobility applications by Canada's family courts on yet another, new issue of the digital age:
Daily contact by video conference over the Internet is not sufficient access between a father and his children, a judge in British Columbia has ruled in turning down a mother's request to move to Australia.

The decision issued by B.C. Supreme Court Justice Hope Hyslop last week is the latest in an increasing number of family law disputes where one of the parents has proposed using online software such as Skype when seeking to move with their children a great distance from their former spouse. In at least four other cases in the past year, judges in B.C., Alberta and Ontario have cited Skype as one of the reasons that a parent was permitted to separate a child from the other parent.

"Electronic communication is not as desirable as in-person access, but it does allow for the child to keep in touch with her dad every day if she so wishes," said B.C. Supreme Court Justice Deborah Satanove in a recent decision.

The Future of Wallace Damages in Ontario Employment Law

Law Times has a good analysis today on the future of Wallace damages in Ontario wrongful dismissal proceedings. These damages have typically been granted where an employer has acted in bad faith in the termination of employment.

With the Ontario Court of Appeal's June 25, 2009 ruling in Slepenkova v. Ivanov, it is now clear that the nearly-universal pronouncements by management lawyers as to the death of this head of damages after Honda and Keays may have been a bit premature.

In Slepenkova, the Ontario appellate court upheld a two-month notice extension for an employer's bad faith termination, even though no evidence was led at trial as to the specific damages the employee directly incurred as a result of the bad faith. This appeared to place the trial Judge's decision at odds with the new Wallace test set out in Honda.

One employers' counsel, quoted in the article, sums up management's employment law litigation equation as follows:
“Employers always have to ask themselves whether it’s worth going to trial in employment cases...And you can never tell what the judge is going to do because employment cases are always crapshoots where sympathetic judges have enough leeway to fit the facts around the law.
See the full Law Times article: Wallace Damages are not Dead

Prior to Honda, the Wallace damages claim had become a virtually "boilerplate" feature in employment law litigation, rearing itself in a very significant percentage of employees' wrongful dismissal claims.

In our view, Slepenkova simply demonstrates that the Honda decision merely moderated, rather than eliminated Wallace claims.

Wallace damages are now likely reserved for the out-of-the ordinary cases where an employer's excessive, inflammatory or detrimental actions at the time of termination cause observable distress or damage to an employee that is beyond the norm.

Perhaps they always were.

Wallace claims may no longer be "boilerplate," but they remain as a significant response where an employee has suffered demonstrated harm due to excessiveness or callousness at the time employment is actually being terminated.

Friday, November 13, 2009

The Trial of KSM

With the Obama administration's decision today to try Khalid Sheikh Mohammed and other "enemy combatants" in public trials to be held at New York City, the torture debate is about to find its way into open court in America.

If I was Dick Cheney, I'd be very, very worried.

(Another brilliant chess move by Obama?)

- Garry J. Wise, Toronto

Update - November 16, 2009

A similar take at C&L, in response to Liz Cheney's stated objections on the Sunday talk show circuit to the New York criminal proceedings:

What she's worried about are her father's pesky war crimes coming to light.


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Thursday, November 12, 2009

Digital Alibi

Introducing the Facebook defence:
Bradford and witnesses insisted he was innocent. They said he was at his father's Harlem apartment when the crime occurred.
..Prosecutors dropped the charges after Facebook verified the words had been typed from a computer at his father's building.

- Garry J. Wise, Toronto

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"'How Can You Represent a Mass Murderer?"

Colonel John Gallagher (Ret.), a civilian lawyer who represents Malik Nidal Hasan, the accused shooter in last week's brazen attack at Fort Hood Army Base in Texas, explains due process to CNN's Wolf Blitzer:

Wednesday, November 11, 2009


Vanity Fair's James Wolcott:
"Don't let the soaring market fool you," cautioned [Neil] Cavuto at the start of his 6 pm show.
....To address this crisis of rising portfolio value, Cavuto introduced his first guest, that financial oracle, that investment wizard, that translucent orb that burns by night: John Bolton, Sheriff of Nottingham.
It takes more than a market rally to pull the wool over Bolton's mustache. He perceived the rise as a function of a falling dollar, which is a thumbs down on America's declining status and crumbling balance sheet. Following Bolton on Cavuto's show was fellow C-lister Dick Morris, who never gets anything right, so who cares what the thinks about anything?
See, what peeved Cavuto and Fox Biz was that Wall Street refused to follow the doctrinaire script. After the House narrowly passed health reform over the weekend, the market was supposed to go down on Monday as a damning verdict on the socialist overreach of the Obama administration. Here are Glenn Beck, Stewart Varney, that twerp on Fox Biz's "Happy Hour" who keeps crying fascist!, and the jingoistic Capitalist Pig, and the other hobgoblinizers spouting and shouting themselves hoarse that Obama (and Pelosi) are bad for business, profits, and individual investors, and in 2009 the markets have had the indecent gall to go up, daring to contradict them.

- Garry J. Wise, Toronto

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Saturday, November 07, 2009

Video: The Great American Health Care "Debate"

A taste of the "debate," now before the House:

Celebrity Burglaries

Soon, they will be lining up to secure the movie rights to this tawdry story.