Thursday, December 31, 2009

140Law - December 31, 2009 Edition

recently tweetedWith the 'tens upon us in but a few short hours, allow me to thank all of our readers, RSS subscribers, Facebook friends, LinkedIn contacts and Twitter followers and list-makers for being with us here in 2009.

To those who've been kind enough to retweet and link to our articles this year, many thanks. Special greetings, as well to our fellow bloggers and many friends who receive our feeds via Progressive Bloggers, Liblogs, Blogging Canadians, Canada's Best Political Blogs and LiberalsOnline.

Your readership, comments and encouragement continue to make this fun.

My thanks, as always, to Rachel, Bill, Shashi, Stephen, Nicole, Ashallie, Saqib and Sami for in a great year at Wise Law Office.

What more to say in this, our final post of 2009 (barring something unforeseen)?

Happy new year to all.

To send off 2009 in style, here's a peek at the leading legal headlines we've posted at Twitter in the last few weeks:
And finally, a nod to mediation blogger Victoria Pynchon's Ten New Year's (Dispute) Resolutions for 2010.

That's all folks. See you next year.

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Posted by @wiselaw on Thursday, December 31, 2009 0 comments

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And the Award Goes To ...

The 2009 CLawBies are now online.

We are honoured that Wise Law Blog was named as a runner up for Best Canadian Law Blog.

I'm also particularly pleased to see the mentions received by my OMG! Law Talk compadres, Michael Carabash and Omar Ha-Redeye, in the Legal Culture Award category.

Congratulations to all the winners and nominees.

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Posted by @wiselaw on Thursday, December 31, 2009 0 comments

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The Obama Response to Cheney: 'We Don't Need to Beat Our Chests'

Dan Pfeiffer, White House Communications Director, at The White House Blog:
To put it simply: this President is not interested in bellicose rhetoric, he is focused on action. Seven years of bellicose rhetoric failed to reduce the threat from al Qaeda and succeeded in dividing this country. And it seems strangely off-key now, at a time when our country is under attack, for the architect of those policies to be attacking the President....
President Obama doesn’t need to beat his chest to prove it, and – unlike the last Administration – we are not at war with a tactic (“terrorism”), we at war with something that is tangible: al Qaeda and its violent extremist allies.

Politico has Mr. Cheney's words of wisdom here.

And meanwhile, William and the Neocons clamour for a good, old-fashioned waterboarding:

This last question is key. In light of the reporting that Abdulmutallab has clammed up on the advice of his lawyers, will Obama now at least consider designating him an enemy combatant?

- Garry J. Wise, Toronto

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Posted by @wiselaw on Thursday, December 31, 2009 0 comments

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The 'Israelification' of Airports

The Toronto Star contrasts Israeli and North American airport security:
"Do you know why Israelis are so calm? We have brutal terror attacks on our civilians and still, life in Israel is pretty good. The reason is that people trust their defence forces, their police, their response teams and the security agencies. They know they're doing a good job. You can't say the same thing about Americans and Canadians. They don't trust anybody," Sela said. "But they say, 'So far, so good'. Then if something happens, all hell breaks loose and you've spent eight hours in an airport. Which is ridiculous. Not justifiable.

- Garry J. Wise, Toronto

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Posted by @wiselaw on Thursday, December 31, 2009 0 comments

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On Succession Planning and Discrimination

William Neuman of New York Times looks today at the retirement of McDonald's President and Chief Operating Officer, Ralph Alvarez, largely for medical reasons, after only three years as second-in-command at the international burger giant.

An 'expert' cited in the article, At McDonald’s, a Retirement Stirs Questions, is quite perturbed, apparently, by the company's succession planning processes:
Nell Minow, a founder of the Corporate Library, which rates the performance of boards, said “high turnover at the sub-C.E.O. level is always a risk factor.”

... But she also said that Mr. Alvarez’s chronic health condition, although not life-threatening, should have made the board wary of promoting him to such a position in the first place, given McDonald’s recent history.

“It’s an important part of the C.E.O. succession planning process that you have to have a very frank conversation about health issues,” Ms. Minow said. “Somebody was not asking the right questions there.

In other words, Ms. Minow is critical of the McDonald's board for the company's non-discriminatory promotion of Mr. Alvarez.

In Canada, those "right questions" about health and disability may well be unlawful to even ask.

Is Ms. Minow actually advocating a corporate culture in which potentially-disabled people simply need not apply for promotion to high executive positions?

(If so, I suppose we shouldn't even talk about women of child-rearing age).

What nonsense.

Once again, thank goodness for our Canadian human rights codes and tribunals.

- Garry J. Wise, Toronto

Update: January 1, 2010

Ms. Minow has responded with a comment to this post:

I appreciate the post, but you misunderstood my comment. I have disabled family members and my family has worked for and written about the rights of the disabled. This is not about disability; it is about the obligation of boards of directors to have a frank and candid conversation about elements related to succession planning for key corporate officers. I understand why that distinction may not have been clear from the brief excerpt of my comments included in the article, but before you assume the worst you might want to consider looking a bit further.

I'm not sure how responsive this comment is to the concerns raised in the initial post, but we very much appreciate the feedback.

- GJW

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Posted by @wiselaw on Thursday, December 31, 2009 1 comments

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Wednesday, December 30, 2009

Countdown's "Cacaphony of Crazy"

MSNBC's Keith Olbermann reviews the year of Palin:

And for those following the Palin grandchild custody shenanigans currently playing out in Alaska, pleadings filed by Levi Johnston in support of his successful motion to open the process are here.

- Garry J. Wise, Toronto

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Posted by @wiselaw on Wednesday, December 30, 2009 1 comments

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U.S. Appeal Court: Limits On Police Taser Use

McClatchy reports:

A federal appeals court on Monday issued one of the most comprehensive rulings yet limiting police use of Tasers against low-level offenders who seem to pose little threat and may be mentally ill.

In a case out of San Diego County, the 9th U.S. Circuit Court of Appeals criticized an officer who, without warning, shot an emotionally troubled man with a Taser when he was unarmed, yards away, and neither fleeing nor advancing on the officer.

...A three-judge panel of the 9th Circuit affirmed the trial judge's ruling on Monday, concluding that the level of force used by the officer was excessive.

McPherson could have waited for backup or tried to talk the man down, the judges said. If Bryan was mentally ill, as the officer contended, then there was even more reason to use "less intrusive means," the judges said.

"Officer McPherson's desire to quickly and decisively end an unusual and tense situation is understandable," Judge Kim McLane Wardlaw wrote for the court. "His chosen method for doing so violated Bryan's constitutional right to be free from excessive force."

- Garry J. Wise, Toronto

Update: December 31, 2009

Orin Kerr at Volokh walks readers through the appellate court's opinion, and not surprisingly, is critical. See Thoughts on Bryan v. McPherson, the New Ninth Circuit Taser Case

- G.J.W.

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Posted by @wiselaw on Wednesday, December 30, 2009 0 comments

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Tuesday, December 29, 2009

Sinead's Hand

This Irish offering on same-sex civil marriage is one of Andrew Sullivan's picks for ad of the year:

- Garry J. Wise, Toronto

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Posted by @wiselaw on Tuesday, December 29, 2009 0 comments

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A Dog's Bylaw

Too funny (via Cy S.).

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Posted by @wiselaw on Tuesday, December 29, 2009 0 comments

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Sunday, December 27, 2009

2009 Canada Blawg Awards

It's law blog award season, once more.

Amazing, isn't it, that this time of year is upon us again, so soon?

The good folks at the ClawBies have asked that we narrow our nominees down to three, but, this year, I will resist that temptation (which would require that I overlook too many), and simply name my personal picks for Canada's best law blogs in the categories below.

Hopefully, the ClawBie crew will be able to sort through these selections, too:






  • Knowledge Management Blog Award - tie: Connie Crosby, Canada's "information diva," and Michel-Adrien Sheppard's Library Boy

  • Student Blawgers to Watch Award - All the contributors at Law is Cool

  • Excellence in Legal Marketing Award - Steve Matthews of Stem Legal for numerous contributions, including the ClawBie Awards

  • Policy and Influence Award - Jason Cherniak for Liblogs - not a law blog, per se (although it features many law blogs, including Wise Law Blog*), the Liblogs aggregator is a significant achievement by a Canadian lawyer in social media that is highly worthy of mention.


  • Lifetime Blawger Achievement Award - Professor Simon Fodden for Slaw


  • Canada's Law Blog of the Year - Slaw


Job well done, to all.

As I said in Adrian Lurssen's recent year-end piece at JD Supra:

2009 was the year the legal profession began to truly "get" what social media is all about. An interesting (and largely unanticipated) spin-off of this trend has been the increasing prominence of law bloggers as presenters in accredited CLE programs. In this sense, blawging truly came of age in the last twelve months.

With this in mind, my quick tip for my fellow advocates in 2010: do not underestimate social media as a legitimate springboard for professional opportunity, broadened horizons - and much resulting personal satisfaction.

I've had the pleasure of meeting and collaborating with a number of talented and prolific law bloggers over the last year, including David Canton, Dan Pinnington, Omar Ha-Redeye, Michael Carabash of Dynamic Lawyers Blog, PSW Blog's Pei-Shing Wang, and David Bilinsky, whom I'd like to thank once again for his steady guidance through my own, inaugural CLE.*

It is particularly gratifying to see the gradual development of the Canadian law blog community into a cohesive, and ever-expanding voice in our profession.

There is a wealth of information (not to mention stimulation) to be found at our nation's law blogs.

I hope our readers - within the legal profession and the general public, alike - will take the opportunity to explore some of the excellent writers we've highlighted.

Happy reading.

And, finally, many thanks to my colleagues who were kind enough to include Wise Law Blog in their own lists of year-end mentions.

*("full disclosure")

- Garry J. Wise, Toronto

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Posted by @wiselaw on Sunday, December 27, 2009 3 comments

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Hack Calls Kettle...

Oh, Jonah - Fire Napolitano:
If the White House wants to assure people that it takes the war on terror seriously (a term Robert Gibbs used this morning by the way), they could start by firing this patenly unqualified hack.
Hacktacularity in action at The Corner.

Let the politicization begin...

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Posted by @wiselaw on Sunday, December 27, 2009 0 comments

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Air Canada Travel Advisory: Delays at Airports

An Air Canada security advisory cautions travellers to be prepared for delays:

MONTREAL December 26, 2009 -- Air Canada advises passengers travelling to the U.S. that due to enhanced government security measures air travellers should arrive early at airports to allow extra time to clear security screening. Passengers should also expect flight delays, cancellations and missed connections, and limit themselves to a single piece of carry-on baggage.

Air Canada recommends passengers travelling to the U.S. to arrive early at the airport for their flight in order to allow adequate time for additional personal searches. Under new rules enacted by Transport Canada and the U.S. Transportation Security Administration, passengers and their carry-on baggage will be subject to full searches both at airport screening points and prior to boarding at the aircraft gate area.

As a result of the added security precautions, passengers should also expect delayed and cancelled flights as well as missed connections. Air Canada will endeavour to transport passengers to their destination as quickly as possible and rebook passengers who miss their connections at no charge.
While these measures directly affect only flights from Canada to the United States, domestic and international flights may also experience delays due to airport congestion and delayed aircraft. For information on a flight's status please consult www.aircanada.com.

In addition, new rules imposed by Transport Canada will limit the amount of carry-on baggage to one item per person travelling on flights from Canada to the United States. Existing checked baggage rules remain in effect. For details on checked baggage allowances, please consult http://www.aircanada.com/en/travelinfo/airport/baggage/index.html.

...New rules imposed by the U.S. Transportation Security Administration also limit on-board activities by customers and crew in U.S. airspace that may adversely impact on-board service. Among other things, during the final hour of flight customers must remain seated, will not be allowed to access carry-on baggage, or have personal belongings or other items on their laps.

According to CBC, the anticipated delays have been significant:

U.S.-bound passengers at Toronto's Pearson International Airport were experiencing significant delays Sunday as a result of new security measures implemented following an attempted attack Friday on a flight into Detroit.

Sunday morning's first volley of flights to Washington, Atlanta and Houston departed nearly two hours late, on average. An early-morning flight to Chicago left four hours late, and one to New York was six hours behind. By noon, some flights originally slated to depart at 8 a.m. still hadn't taken off.

...Upward of 10 per cent of depatures had been nixed as of mid-afternoon, well above the usual rate of one to two per cent. The vast majority of the cancellations were of flights to the U.S.

Jonathan Adler at Volokh gets to the heart of the matter - Enhanced Security or Just Increased Annoyance?

Airport security is already more show than substance. It’s an exercise of political theater that is supposed to make travelers feel more secure. I am unconvinced it even does that very well anymore, and from what I’ve heard thus far, the new measures are only going to make things worse.

- Garry J. Wise, Toronto

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Posted by @wiselaw on Sunday, December 27, 2009 0 comments

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The Criminal Complaint Against Umar Farouk Abdulmutallab

More reading:

- Garry J. Wise, Toronto

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Posted by @wiselaw on Sunday, December 27, 2009 0 comments

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Friday, December 25, 2009

Flight 253: Which Version Shall We Believe?

Is this just a matter of nuance?

The writers' spin in these two articles is so diametrically opposed, I had to double-check to confirm these reports relate to the same flight and incident (they do):

Passenger tried to blow up U.S. flight: Officials (Toronto Star)

A Northwest Airlines passenger landing in Detroit on Friday tried to blow up the flight but the explosive device failed, two U.S. national security officials said.
Passenger Sets Off Firecrackers on Flight to Detroit (New York Times)

A passenger aboard a plane at Detroit Metropolitan Airport set off firecrackers Friday, causing a commotion and some minor injuries, a Delta official said.

It's almost as if these two, early reports on this troubling incident were written by dueling speechwriters from the Bush and Obama administrations.

Who to believe?

- Garry J. Wise, Toronto

Update:

The Times report has been changed. Associated Press now reports:

ROMULUS, Mich. – A Nigerian man who said he was an agent for al-Qaida tried to blow up a Northwest Airlines plane Friday as it was preparing to land in Detroit, but travelers who smelled smoke and heard what sounded like firecrackers rushed to subdue him, the passengers and federal officials said.

Flight 253 with 278 passengers and 11 crew members aboard was about 20 minutes from the airport when passengers heard popping noises, witnesses said. At least one person climbed over others and jumped on the man. Shortly afterward, the suspect was taken to the front of the plane with his pants cut off and his legs burned, a passenger said.

One U.S. intelligence official said the explosive device was a mix of powder and liquid. It failed when the passenger tried to detonate it.

"It sounded like a firecracker in a pillowcase," said Peter Smith, a traveler from the Netherlands. "First there was a pop, and then (there) was smoke."

- GJW

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Posted by @wiselaw on Friday, December 25, 2009 5 comments

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Blogging Christmas in Music

A quick look at Christmas tunes being featured on the intertubes today.

First, a collection of (arguably) the best:



(via Kos)

And then, there's this:


Oy vey, ho ho ho. It's a full blown, Santa Klezmer happy hora extravaganza - from Bob Dylan, no less!

As my friend Jingles might put it, simintov and mistletoe to you all.

For commentary, see Rolling Stone.

(via Digby)

- Garry J. Wise, Toronto

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Posted by @wiselaw on Friday, December 25, 2009 0 comments

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Looking Ahead to "The Tens"

In Lawyers & Legal Professionals Looking Ahead to 2010, Adrian Lurssen of JD Supra compiles a good sampling of thoughts from lawyers and leading legal marketers on the year that was and the path ahead for the legal profession.

You'll find comments from a strong Canuck contingent that includes Erik Magraken, Jordan Furlong, Steve Matthews and myself.

Not surprisingly, almost everyone agrees that:
  • technology was the star of 2009;
  • innovation will continue to be a necessity for the foreseeable future;
  • 2010 may be a watershed year for the profession.
Also worth mention were these comments from litigator Dan Cummins that, perhaps, can guide us all:
In 2010, never underestimate the power of just being nice. It can disarm, and even befuddle, your opponents like no other means.
Yes, that too. Be nice.
- Garry J. Wise, Toronto

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Posted by @wiselaw on Friday, December 25, 2009 0 comments

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Merry Christmas...

... joyeux Noël, feliz Navidad, miilaad majiid, feliz Natal, shèng dàn kuài lè, buon Natale, and a hearty Christmas sameach, to all who are celebrating.

Happy holidays to all of you, from all of us at Wise Law Office and Wise Law Blog.

A special shout out to my blawger and blogger friends.

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Posted by @wiselaw on Friday, December 25, 2009 0 comments

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Wednesday, December 23, 2009

N.B. Judge Orders MVA Plaintiff to Disclose Facebook Records

CBC reports on yet another Canadian Facebook disclosure decision - this time by a New Brunswick court:

Court of Queen's Bench Justice Fred Ferguson... wrote in his decision there's a low threshold for disclosing evidence and it met the "semblance of relevance" test required when deciding if information will be turned over during discovery.

"It does so, by possibly providing a window into what physical capacity the plaintiff has to keyboard, access the internet and communicate with family friends and associates on Facebook and thus what capacity she may have to work. In that sense: 'It may lead to the discovery of admissible evidence,' the threshold required for the evidence to be produced," the judge's decision said.

"Incidentally, it must not be forgotten that this legal action was commenced by the plaintiff and in launching it she has implicitly accepted certain intrusions into what otherwise might be private information, the disclosure of which would ordinarily be left to her own personal judgment."

At some point, there must be a more considered balancing by our Courts of privacy interests and the increasingly onerous digital disclosure requirements in civil lawsuits.

One must wonder if the recent spate of Canadian rulings that have required injured Plaintiffs to disclose personally-sensitive online materials may ultimately cause a litigation chill that could have potential Plaintiffs thinking twice before commencing proceedings?

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Posted by @wiselaw on Wednesday, December 23, 2009 0 comments

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Supreme Court of Canada To Bloggers: Act Responsibly

The Supreme Court of Canada explicitly addressed bloggers in two companion decisions yesterday that may well have revolutionized Canada's libel law landscape by adopting a new "responsible journalism" defence into Canada's common law.

Chief Justice McLachlin articulated the new rules of the road - for bloggers and traditional journalists, alike - in Grant v. Torstar Corp., 2009 SCC 61 (CanLII), 2009 SCC 6:
[62 ...The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause. A defence based on responsible conduct reflects the social concern that the media should be held accountable through the law of defamation. As Kirby P. stated in Ballina Shire Council v. Ringland (1994), 33 N.S.W.L.R. 680 (C.A.), at p. 700: “The law of defamation is one of the comparatively few checks upon [the media’s] great power”. The requirement that the publisher of defamatory material act responsibly provides accountability and comports with the reasonable expectations of those whose conduct brings them within the sphere of public interest. People in public life are entitled to expect that the media and other reporters will act responsibly in protecting them from false accusations and innuendo. They are not, however, entitled to demand perfection and the inevitable silencing of critical comment that a standard of perfection would impose. (emphasis added)
This appears to be the first time the Court has directly addressed Canada's bloggers, although a CanLII search did disclose one previous reference to blogs by the court. See its June 2008 ruling in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420:
[73] This is all the more true in an age when the public is exposed to an astounding quantity and variety of commentaries on issues of public interest, ranging from political debate in the House of Commons, to newspaper editorials, to comedians’ satire, to a high school student’s blog. It would quite simply be wrong to assume that the public always takes statements of opinion at face value. Rather, members of the public must be presumed to evaluate comments in accordance with their own knowledge and opinions about the speaker and the subject of the comments. (emphasis added)

Thus, it appears that from the vantage point of the Supreme Court, Canada's archetypal blogger has now, finally and gratefully, moved beyond high school.

Happy graduation.

- Garry J. Wise, Toronto

Update:

Also see James Morton and Warren Kinsella on these SCC rulings.

- GJW

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Posted by @wiselaw on Wednesday, December 23, 2009 0 comments

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