Tuesday, February 12, 2008

Why Obama Trumps Clinton in a Debate with McCain

Prescient, eh? As you said, we'll see.

But here's a recap of my arguments on the optics of a Clinton-McCain debate vs. an Obama-McCain one.

The problem I foresee comes on the issue of national security which, while it is dropping south of the economy as Americans' prime concern, is still a hot button. More to the point, it is the main issue for Republicans.

Karl Rove laid out the strategy for the Bushites two elections ago - Americans trust Republicans with national security over Democrats every time so keep voters afraid. On top of that, gerrymander election boundaries and suppress Democratic voters.

So, in a Clinton-McCain match what happens?

Hillary will fight McCain in her wonkish way by arguing she has better policies. But TV debates are an emotional game and by fighting on McCain's Republican ground - who's better for national security - she loses.

While McCain may not win the general election under any circumstances - given that 2/3 of Americans think their country is on the wrong path - Hillary will have a tougher time for these reasons and the simple fact as I noted before, that she is not well liked or trusted even by many Democrats. That's why her primary support is always low outside her power base.

Match up Obama with McCain and the scene is quite different. You've got Lincoln-esque tall, lean Obama, whose height and thus appearance of stature is at least equal to McCain's.

If Obama is smart he will strategize his debate around McCain's notorious temper. While McCain is unlikely to let a woman knock him off balance in a TV debate, if Obama throwns a few well-placed jabs, McCain might just blow his cool.

If McCain reveals himself that way, he is toast. More to the point, Obama’s presence as a man who is fresh, serious-minded, but strong - strong in generosity and mind and spirit too - will show up and whither the bombastic, 71-year old ex-POW.

On a historical note, the tallest candidate wins about 80 percent of U.S. elections because the taller guy seems stronger.

And Barak, at 6’ 1-1/2” towers over McC (5’7”) and Mrs. C (5’ 8-1/2”). This won't hurt.

Everyone says Obama’s supporters want “change.” For years, pollsters have told us 2/3 of Americans are unhappy with the direction of their country. Does this mean 2/3 want change or a return to what they think of as a better time before the current change? Maybe they don’t want change, they want a direction that is less of a change than Bush’s radicalism. They agree to the word change because that’s what they are asked.

Ironically, I could argue that O’s supporters don’t want change, they want stability and an end to the White House Robespierre and his gang of radicals.

Another problem with Mrs. C as a political sell is that she is comes off as someone who is pandering. Remember, this is the team (Mr & Mrs C) that made a religion of triangulation - defeating your political enemies through divide and conquer strategies among interest groups.

The result was Mr. C's slashing support programs for the poor and deregulating the financial industry which opened the door for the current subprime mortgage chaos. So when Hillary says she wakes up every morning thinking of how she can help people, how does that jive with her several years as a Senator - saying nothing about stopping torture, warrantless arrests and wiretapping, the on-going disgrace of Louisiana, caging protesters in free speech zones, the swelling of the US prison population with non-violent and poor offenders, the mass privatizing or elimination of community-oriented government services and so on?

Even though she is memorably quoted (in About.com) as supporting voting rights, she has not stood up - to my knowledge - against the various voting frauds and legal disenfranchisement efforts that have taken place during her time as a Senator. She may be a good person but I think she defines political good as whatever is expedient and furthers her ambitions. Sort of like the Bushes when they don't count Iraqi dead, think Katrina's devastation of poor people's homes is an opportunity for them to move upmarket, and speak as if only Americans died on 9/11.

Rather than stand upon and be remembered for principle, Mrs. C didn't want to rock the boat on Iraq or other corruptions of the Bush Administration for fear of appearing weak or -in every wishy Dem's favorite excuse - giving the Republicans ammunition, like they need it, when her time came to try for the presidency.

Further, her central strategy of claiming leadership experience is somewhat farcical. Without commenting on her experience as First Lady, she showed arrogance and rigidity in her effort to reform medical care in the U.S. Her lack of leadership skills in both legislative vision and the people skills necessary to push visionary legislation through Congress and public opinion do not seem to have improved.

Like Bush, she blames others for mistakes she has made and doesn’t listen to those who disagree with her, as evidence in her dumping her campaign manager for following her queenly dictates.

So what experience is she talking about? Or have we defined-down experience to mean simply showing up for work, going to Congresional hearings on "important issues" and having a business card that says First Lady or Senator? On marketing experience vs change, Americans know there is little a president can actually do without assuming dictatorial powers as Bush has with so-called signing statements he says lets him ignore laws, the Constitution, morality etc.

Americans want a leader who can give the tired, worn down, war-weary and agitated American public a sense of hope for the future and let them get down to it. Someone who is willing to try something other than bombs, wars, threats, ignorance, sadism, lies and tax cuts for the rich that have characterized Bush's monotone psychosis.

On this point, Mr. O is like the coming of Motown in the 60s, while Mrs. C sounds like the latest retread for the disco dance floor. It may be catchy but it has no soul.

- Barry Brown, Toronto

.......

Barry Brown is a journalist and Pulitzer prize nominee with writing credits for the Washington Times, New York Times, Globe & Mail, among other publications. While he gladly offers unsolicited advice, he is not a lawyer. The views expressed are those of the guest blogger, and do not necessarily reflect the views of Wise Law Blog and its authors.

......

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BREAKING: NHL Trade Deadline: JFJ to TSN!

My friend, Pseudonym, at Canada, Eh! sums up what most of us are thinking about today's announcement that TSN has added former Leaf GM John Ferguson Jr. to its roster of commentators for the February 26 NHL trade deadline:

I don't want to sound cruel but hiring JFJ as analyst on NHL trades is like hiring Britney Spears as a parenting expert.

- Garry J. Wise, Toronto

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Travel Advisory: US Customs May Copy Laptop Data

This travel alert from Raw Story should be of specific concern to lawyers and other professionals who store privileged information on their laptop and wireless devices:

Customs agents have the prerogative to examine and even copy data from travelling citizens' laptops they search, CNN's American Morning reports.

"A new alert for travellers: be careful what you store on your laptop or your BlackBerry when entering the United States," warns CNN's John Roberts. "Customs agents can examine your computer and even keep your private information."

CNN reporter Jeanne Meserve adds ominously, "Your banking records, your music choices, your emails, your business contacts -- all can be examined, copied and stored by the government when you enter the country, if they're in an electronic device."

One Pakistani-American IT consultant says that U.S. agents searched his computer on five occasions upon returning from overseas trips, even forcing him to give them access to confidential corporate information.

CNN reports on pending US litigation, seeking clarification of customs officials' authority:

Situations for travelers... are at issue in a lawsuit filed last week by the Electronic Frontier Foundation and Asian Law Caucus in U.S. District Court for the Northern District of California. The suit accuses customs agents of "lengthy questioning and intrusive searches" and seeks clarification on the law that allows such searches.

The San Francisco, California-based foundation, which works to defend people's rights in the digital world, says it knows of more than a dozen cases in which electronic devices such as cell phones, BlackBerries, MP3 players and laptops have been searched by customs agents. In some cases, they have been confiscated and never returned.

"Plaintiffs seek agency records in order to determine what policies and procedures exist governing CBP's questioning and searches of individuals at the nation's ports of entry," the suit says.

The Customs and Border Protection defends the searches, saying the agency does not need to show probable cause to look inside suitcases or laptops. "We have broad search authority at the borders to determine admissibility and look for anything that may be in violation of criminal law," says agency spokeswoman Lynn Hollinger.

Hollinger says electronic devices could contain evidence of possible ties to terrorism, narcotics smuggling, child pornography and other criminal activities.

- Garry J. Wise, Toronto

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The Paperless Courtroom?

Law.com's C.C. Holland on the increasing use of audio-visual presentations in trial courts:

Using visual aids to introduce information can make it more persuasive, says Noelle Nelson, a clinical psychologist and trial consultant based in Malibu, Calif. "People believe what they see to a far greater extent than what they hear," she says.

...Many judges, too, are embracing or even expecting the use of computer demonstrations and multimedia aids during a trial. They offer clear benefits over traditional presentation methodologies by providing more clarity, allowing easier searching for specific data among exhibits -- which can be done with a few keystrokes rather than sifting through piles of paper -- and speeding up the trial process. "Judges are telling us they really enjoy the electronic trials because it makes the case go a lot quicker," says Rick Kraemer, president of Executive Presentations, a trial consulting firm in Los Angeles. "Some judges are saying they'll soon no longer allow paper into their courtrooms -- everything must be scanned and presented electronically."

Ready to jump on the multimedia bandwagon? Marching into court with a grainy video and an amateurish PowerPoint won't be enough. "The juries have expectations of good production value," says [John J. Ammann, a clinical professor and director of the Legal Clinic at St. Louis University School of Law].

- Garry J. Wise, Toronto

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Newmarket Trial: Criminal Charges Over Facebook Threats

National Post reports on a trial at Newmarket, Ontario where a 26 year old man faces charges over threats allegedly made on Facebook against Children's Aid workers who had apprehended his child.

The man had started a Facebook group that included a petition against the CAS.

His lawyer suggests the accused had no criminal intent:

Facebook is an outlet to "blow off steam" and there was no intent by D.S. to threaten anyone, said the lawyer. "People use Facebook today like the way people used to use diaries. They are expressing their personal thoughts or opinions, not an intention to act," suggested Goldstein.

Goldstein explained that even if other people could read what was allegedly posted by D.S., there is still a requirement for the Crown to prove he intended to threaten...

....

Speaking of Facebook, New York Times reports today on the difficulties encountered by those attempting to delete their data from the site. See How Sticky Is Membership on Facebook? Just Try Breaking Free.

According to the Times, Facebook users "can check out any time they like, but they can never leave..."

- Garry J. Wise, Toronto

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The Most Annoying Person in the Blogosphere Award...

... goes to Andrew Sullivan, of course:

Did Bill Kill Hill?

Not so crazy a theory. I've long believed that Bill Clinton is torn between two impulses - a desire to embellish his own record by seeing his wife get the presidency and a desire to embellish his own record by seeing his wife not get the presidency. He is certainly psychologically damaged and complex enough to torpedo his wife's ambitions and equally damaged enough not even to be aware of it. Which makes it all the more Shakespearian. One huge reason not to put the Clintons back in the Oval Office is the lesson of the Bush years. Never under-estimate family rivalry. It f@cks things up.

You have to give the guy credit for creative writing, if nothing else.

Who else could write six or eight hatchet pieces a day against Hillary Clinton for weeks on end without ever repeating himself?

We get it, already, Andrew - you don't like the Clintons.

Perhaps you could return to those picturesque "window view" posts for a while, as you consider whether there is, in fact, any other topic to write about.

- Garry J. Wise, Toronto

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JFK's "Canadian Love Child"

Oh my...

From the Globe and Mail (of all places):

The man who American journalists are investigating as the possible illegitimate son of John F. Kennedy lives in British Columbia and bears a striking resemblance to the 35th president of the United States.

So much so, that people will sometimes stop him on the street.

...He is asking that the DNA samples be sent to David Friend, the Vanity Fair journalist who has been working on the story. "I think their prudence is warranted," Jack said of Mr. Friend and Vanity Fair editor Graydon Carter, who is from Ottawa. He described them as "top-notch journalists" and "people of integrity."

Jack is tall, slim, with a freckled complexion, hazel eyes, and thick reddish-brown hair, parted on the left, swept across his forehead. He has perfectly straight teeth - Kennedy teeth one might be tempted to say. Sitting across from him, the term "boyish" comes to mind.

- Garry J. Wise, Toronto

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Wolcott on "Squeaky Polls"

Vanity Fair's James Wolcott:

I've never bought the national polls showing Obama would be a stronger adversary for McCain than Clinton--I think those polls are as squeaky as the ones that showed Giuliani as the frontrunner all those months. I think Obama would probably beat McCain, but I know Hillary would because the Clintons have been through the thresher before and reflexively know how to judo flip Republican tactics and media attacks, not simply be reactive after taking a shot to the chin the way Gore and Kerry too often did. For better or worse for our democracy, the Clintons "get" the gestalt, know how to read a blitz.

- Garry J. Wise, Toronto

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War: "Not a Day at the Beach"


- Garry J. Wise, Toronto

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McCain in '08

John McCain: Anticipated year of U.S. withdrawal from Iraq: 12,008.

(A fitting parody of the Obama Yes We Can video)

- Garry J. Wise, Toronto

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Idaho: Mandatory Drug Sentencing Reviewed

Minimum drug-sentencing requirements are under review in Idaho, where a bill providing for greater judicial discretion and alternative sentencing is now before the State's House Judiciary Rules and Administration Committee.

From Associated Press:

Idaho now has 7,400 people behind bars. More than half of them are there due to drug-related offenses. The state has shipped about 500 people to other states because there's no more room in prisons in Idaho.

Under the bill, judges could opt for shorter, treatment-focused sentences for addicts convicted of drug-dealing crimes, on the presumption that if they get clean they're less likely to re-offend. Currently, Idaho has mandatory sentences for a range of drug-trafficking offenses that give judges little or no discretion. Many sentences entail at least three to five years in prison.

The bill "ain't a bad idea," Rep. Dick Harwood, R-St. Maries, told The Associated Press. "Our prisons are pumped full. It would be nice to give judges discretion about whether to send somebody to prison or to some other treatment program. In reality, they're the ones that are sitting on the front lines, not the legislators who are making the laws."

The bill was co-sponsored by one Democratic legislator and three Republicans.

(Is that a pendulum I hear swinging back toward sanity?)

- Garry J. Wise, Toronto

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Law 21 and Articling for Law Grads in Ontario

Jordan Furlong, lawyer and editor-in-chief of the Canadian Bar Association's National magazine has a new blog, Law21, that came to my attention via Connie Crosby.

How can he miss, with a provocative profile teaser like this?

In the 21st century, the practice of law is shaking loose from its traditional moorings and heading out into uncharted territory. Opportunities abound, but so do pitfalls. Most of the old rules won’t apply anymore, while some will matter more than ever.

Welcome to the new legal profession, powered by collaboration, innovation, and client service. This is your front-row seat.

Mr. Furlong's comprehensive analysis of the Law Society of Upper Canada's current task force review of Ontario's bar admision and articling processes is a must read (Part 2 is here).

On the topic of articling, I'll quickly opine that it is nothing short of nutty to propose an abolition of the articling requirement for law school graduates.

If the primary issue is that articling jobs are hard to find, surely the Law Society brain trust can bang heads with the Attorney-General's office, Ontario's private law firms, the Legal Aid Plan and the various, cash-starved community legal assistance clinics throughout the Province to create numerically unlimited, supervised articling placements (pro-bono or subsidized) that will actually do something about the chronic access to justice difficulties in this Province.

I personally can't imagine where I would have been on day one of my law practice in 1986 absent the benefit of the mentorship I received during my own articles from Douglas Lissaman, Gordon Atlin and Richard Belsito. Twenty-plus years later, I am still influenced by their lessons and very different philosophies.

The practical apprenticeship component of legal training in this Province is not just an anachronistic throwback to a kinder, gentler era - it is a necessary step in preparing new professionals for practice in the real world.

- Garry J. Wise, Toronto

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Carville And Frist Do Super Bowl Sunday



If you missed them first time around, the 2008 Super Bowl commercials are now online.

- Garry J. Wise, Toronto

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Monday, February 11, 2008

Journalist Barry Brown: Expect Obama Coronation

When I met Barry Brown a few months ago, I wasn’t too sure about him.

He was working on a story for the Washington Times on Mark Steyn and Canada’s human rights legislation, and called one morning to interview me on the law and the various blog posts I had recently written on the topic.

As far as journalists go, it was clear he was particularly knowledgeable. He was also relentless, meeting my every comment with a very precise and challenging follow-up.

In fact, like Chris Matthews in his heyday, Mr. Brown just kept coming at me as we debated the pros and cons of hate laws, Canada’s legislative approach and the then-heated controversy over Macleans Magazine’s publication of an excerpt from Steyn’s book, America Alone: The End of the World as We Know It.

In short, Mr. Brown’s sharp intellect and very fair pursuit beyond my own pat answers was as challenging as it was invigourating. He was tough - but sometimes, tough is good. He made me think.

By the end of our discussion, my own position was far better honed - and I was curious about who the man on the other end of the phone line was.

It turns out Mr. Brown is a Pulitzer prize nominee, with 15 years experience as journalist, editor and copywriter, and writing credits for the Globe & Mail, Washington Times and New York Times, among others.

Now, I generally like journalists. I admire their craft, and am at least a bit envious of those who have the good fortune to build careers pursuing the exploration of public affairs.

So I was pleased that Mr. Brown and I have stayed in contact. We ultimately met face to face in January, for what proved to be a much extended lunch and debate. At that point, our dialogue moved to the U.S. presidential primaries and the rather fascinating, ongoing contest for the Democratic nomination.

As regular Wise Law Blog readers will know, Hillary Clinton is my choice. Mr. Brown, however, is apparently an Obama believer.

We’ve been bantering back and forth by email for the last few weeks. Since Mr. Brown may well be on to something in his good-spirited, if nearly cocky predictions of an Obama victory, I thought I’d share a few of his more "prescient" comments since last week’s Super Tuesday contests:

February 10, 2008

Re: hate to say i told you so…

Hmm, Barack wins three more and Hillary's campaign manager is stepping down.

..the pundits will now reverse course from “convention fight” to “Barack coronation.”

…………

February 7, 2008

Re: the race is on

Asked about torture and waterboarding and whether they would do it in a ticking time bomb scenario, the three current front runners answered (this is from The Ticking Time Bomb Thought-Experiment at CommonDreams.org):

McCain: “Should [an interrogator use torture] and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation he confronted.”

Hillary Clinton: “Those are very rare, but if they occur, there has to be some lawful authority for pursuing it ….[If] we have sufficient basis to believe that there is something imminent, yeah, but then we’ve got to have a check and balance on that.”

Obama: "The secret authorization of brutal interrogations is an outrageous betrayal of our core values, and a grave danger to our security …torture is not a part of the answer - it is a fundamental part of the problem …. Torture is how you create enemies, not how you defeat them. Torture is how you get bad information, not good intelligence … When I am president America will …[stand] up to these deplorable tactics. When I am president we won’t work in secret to avoid honoring our laws and Constitution, we will be straight with the American people and true to our values.”

………………

February 6, 2008

Re: the race is on

By the way, it won't go down to the wire. The race is over. Hillary just hasn't been buried yet. The sharper pols and backers see the writing on the wall as I do and Hillary will start tumbling like the stock market. Obama will then crush McCain in a landslide.

…………………

February 6, 2008

Re: the race is on

Garry: I see my boy Obama is inching forward in the race. White males are coming to him. And if you noticed the results, for me the most interesting numbers were in the popular vote.

Hillary tops out at 70 percent in her home state of Arkansas and bottoms out at 17 percent in Idaho of all places. She loses in several midwest states with only 20-30 percent support among Democrats! Even her wins are shaky. After Arkansas her best support was in her adopted NY with 57 percent. Her other wins hovered in the mid-low 50s except NH where she won with 39 percent.

Barack by contrast hit lows of 27 percent in Clinton's home state of Arkansas, 31 in Oklahoma and 33 in Florida. But his highs were 80 percent in Idaho, followed by 74 in Alaska and Kansas, 67 in Colorado and Minnesota, 66 in Georgia and then 65 in Obama's home state of Illinois and 61 in ND. In all these states, Obama won by bigger margins than Hillary did in her adopted home state.

That tells you something, doesn't it?

…………

Time will tell, Mr. Brown.

Hillary Clinton has been written off more times in the last decade than virtually any other woman in America. I do not think it is over for her - not by a long shot.

We’ll see the numbers after voters in Texas and Ohio (March 4), and Pennsylvania (April 22) have spoken.

At that point, we will revisit who shall be entitled to say “I told you so.”

For now, Mr. Obama is ahead.

Enjoy it while you can...

- Garry J. Wise, Toronto

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Sunday, February 10, 2008

Hillary or Obama?

Ah, the burden of potential...

While the choice between Hillary Clinton and Barack Obama for Democratic Presidential candidate is a slam-dunk for some, it remains daunting for many.

They are both strong, potent and inspiring candidates. Each promises a tomorrow that truly represents a new day for America. I suspect there are few Democrats who will be deeply upset, irrespective of the ultimate outcome.

I am convinced that each of these candidates is equally poised to seize the moment. Yet on balance, my vote, if I had one, would remain with Hillary Clinton.

Why?

Hillary Clinton is ready. She has fought the battles with her Conservative adversaries before, and she is still standing. She has earned her international stature and credibility.

While either candidate would likely succeed in a general election against John McCain, it is my view Hillary Clinton's experience and balance will best neutralize the presumpive Republican nominee's limited assets.

But it is Hillary Clinton's steady hand under fire - throughout her husband's presidency, her tenure as Senator from New York, and during this extensive primary season - that convinces me that it is her time.

An endorsement of Hillary Clinton is by no means a rejection of Barack Obama. He is a fresh and exciting voice on the American political landscape. I would welcome a 'dream team' ticket on which he is Vice-Presidential nominee.

I do think Obama's time will come. I simply cannot overcome my reservation that as good a candidate as he is today, he will be even better eight years down the road, with a bit more seasoning and a lot more experience on the front lines.

Either way, history will be made.

In the best of all possible worlds, however, a Clinton-Obama ticket in 2008 will not only make history - it will change America's global and domestic face forever.

And for that, it most assuredly is time.

- Garry J. Wise, Toronto

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Saturday, February 09, 2008

Law Society May Abolish Articling Requirement

The Law Society of Upper Canada is looking at options to address the increasing shortage of articling placements, including abolishing the articling requirement. As part of its ongoing reform of the Licensisng Process, the Law Society is also considering a complete discontinuance of the "Skills & Professional Responsibility" program of the Licensing Process.

According to a Law Society news report:

The Licensing and Accreditation Task Force received approval to consult lawyers on its proposals for the skills and articling components of the Licensing Process. The Task Force will seek lawyers' comments on its proposal to discontinue the Law Society's skills and professional responsibility program. The Task Force recommendation is based on a number of factors including research illustrating that law school skills programs cover most of the content of the Law Society program and that there are other more effective means to address gaps.

The Task Force is also proposing to consult on a number of options to address concerns with the current articling program, particularly the increasing shortage of articling placements. Options for
consultation include:

  1. Continue the current program with clear communications that not all candidates will be able to secure an articling position and will therefore not be called to the bar;
  2. Develop an alternative stream for candidates unable to find a placement;
  3. Abolish the articling requirement.

The Task Force will also invite those consulted to offer any other options
they consider appropriate.

- Shashi K. Raina, Toronto

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Thursday, February 07, 2008

Legal Aid Spending Down

National Post reports that the legal aid spending was down 4% in 2006-2007 from the 2005-2006 spending level.

Apart from a drop in the overall number of applications for Legal Aid, the number of lawyers taking on Legal Aid cases also dropped by 9% over the previous year.

According to Statistics Canada, Legal Aid cost every Canadian $20 last year.

- Shashi K. Raina, Toronto

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Wednesday, February 06, 2008

Yes We Can

I'm back after a bit of a holiday break, and while I limber up my typing fingers (both of them), here's Yes We Can, an inspired video that captures the essence of the Obama campaign:


- Garry J. Wise, Toronto

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Super Tuesday: Super Close for Democrats

Results of yesterday’s Super Tuesday establish Senator Barack Obama and Senator Clinton are in a tight race for the White House. Of the 2,025 delegates required to win the Democratic Party’s nomination, CNN results indicate that as of this morning, Obama has 709 delegates and Clinton has 783. While Super Tuesday usually establishes a party’s front runner, yesterday’s results force the Democratic Party to hold off on determining their nominee until further results emerge from upcoming races.

CNN reports:

With Sens. Barack Obama and Hillary Clinton almost even in delegate counts, the two Democratic presidential candidates will focus on several weekend contests and then a trio of primaries in the Washington area next Tuesday.

Super Tuesday delivered a split decision for the Democrats. CNN estimates showed Clinton earned a handful more delegates than Obama, who surprised observers by taking states where the senator from New York had large polling leads until recently.


The latest estimate gave Clinton 582 of the 1,681 delegates at stake Tuesday, compared with 562 for Obama. It will take time to determine the final distribution because of complicated formulas.

And on the other side, Senator John McCain established a significant lead in yesterday's Super Tuesday over former Governors Mitt Romney and Mike Huckabee. CNN results indicate that as of this morning McCain has 544 delegates, Romney has 177 delegates and Huckabee has 122 delegates. 1,191 delegates are required to win the Republican Party’s nomination.

CNN reports:
Sen. John McCain awoke Wednesday with a commanding lead in the race for Republican delegates while former Massachusetts Gov. Mitt Romney plans to meet with aides after a disappointing Super Tuesday showing.

"Although I've never minded the role of the underdog and have relished as much as anyone come-from-behind wins, tonight I think we must get used to the idea that we are the Republican Party front-runner," McCain said Tuesday night in his home state of Arizona. "And I don't really mind it one bit."
In their speeches delivered last night, both Romney and Huckabee vowed to continue their campaigns to the white house.

- Annie Noa Kenet, Toronto

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Tuesday, February 05, 2008

Ontario Judge Rejects Impaired Driver's Blackberry Defence

The Globe and Mail reports:

When Curtis Fee was arrested for drunk driving after a police officer spotted him weaving across Highway 401 near Toronto, he came up with a novel argument: the BlackBerry defence.

Mr. Fee said "there probably was a good chance" he was weaving across the freeway, but it wasn't because he was impaired, it was because he was sending messages on his BlackBerry. He used his knee to steady the steering wheel while he sent and received messages on the device, according to documents filed in court.

...Mr. Fee lost at trial in the Ontario Court when the judge ruled that using a BlackBerry while driving on the 401 constituted "sufficient evidence of the impairment of the faculty of judgment needed to safely operate a motor vehicle."

In addition to that, the judge ruled, Mr. Fee's blood-alcohol level was over the legal limit, he smelled of alcohol when he was arrested and he had a hard time staying awake en route to the police station.

Mr. Fee wouldn't give up. He appealed, arguing that "the judge concluded erroneously that because [Mr. Fee] stated that he drove with a raised knee on the steering wheel and was sending e-mails with his BlackBerry, that fact, 'standing alone,' showed impaired judgment."

To be convicted of impaired driving under the Criminal Code, he argued, the ability to drive must be impaired by alcohol or a drug, not a BlackBerry.

In a recent ruling on the appeal, Mr. Justice Bryan Shaughnessy of the Ontario Superior Court threw out Mr. Fee's argument. In his decision, Judge Shaughnessy said the trial judge correctly based his ruling on the overall evidence and not just on Mr. Fee's BlackBerry use.

- Annie Noa Kenet, Toronto

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An Update on the Shortage of Judges in Ontario Family Court

We have previously commented on “chaos days” in the Newmarket family court as a result of the shortage of judges in Ontario family courts, and as an update, the County and District Law Presidents Association (CDLPA) will soon be releasing the results of surveys completed by various practitioners across Ontario “on the issue of judicial resources in family, civil and criminal law” to both levels of government. The conclusion of the information gathered by these surveys is abundantly clear: more Ontario family law judges are required now.

Law Times reports:

CDLPA says since it carried out a survey in 2005 — which found, in one-third of counties, wait times for case conferences averaged at least two months, and as many as five or six months in Essex — the delays experienced in Essex have been significantly reduced.

However, the association notes, “The situation has deteriorated in Peel, Algoma, and Sudbury, where delays of four to five months on average to secure a case conference are being reported.” CDLPA says its position is that a reasonable time frame for scheduling such conferences should average no more than three to four weeks.


“The County and District Law Presidents Association has been troubled by the increase in the past few years of anecdotal indications of delays in the family courts stemming in whole or in part from a lack of judicial resources,” says the association.
The family law section of the Ontario Bar Association has been trying to lobby both the federal and provincial governments to deal with the issue of judicial resources, says section chair Tom Dart, as those within the section sense that the commitment to the family court has either “disappeared or been put on a back burner somewhere.

...Ontario Attorney General Chris Bentley tells Law Times both he and former attorney general Michael Bryant have asked the federal government for 12 additional family court judges to be appointed, as well as additional Superior Court judges, as the unified family court does not cover the whole province. He said Bryant had been asking for four years.


The fact that the family court is split between different levels of court in the province, which can be a challenge for members of the public, is also something that Bentley says he would like to be able to address with the federal government in the not-too-distant future.


While he’s touring the province, meeting with members of the bar with regard to the recently released Civil Justice Reform Project report, Bentley notes that he is also hearing from lawyers about issues related to family and criminal law, on which he is looking forward to input, he says.
“In the meantime, [there is] something the federal government could do to make a substantial difference in many regions of this province, and that’s by appointing more judges as quickly as possible,” he says.

...As an example, Dart says there is currently a five-month delay in processing uncontested divorces and case conferences are being booked four months in advance.


CDLPA notes comments from its latest survey continue to indicate that “where judges are limited in the available time to conduct conferences due to other commitments, the quality of the conferences is adversely affected.”

Almost all responses CDLPA received indicate child-protection matters aren’t completed within time frames required under Family Law Rules, says the association.
I repeat and emphasize Garry’s previous comment on this matter: “It is time for action by the federal government”.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Monday, February 04, 2008

Giant Upset in 42nd Superbowl

For those of you who watched the 42nd Superbowl yesterday, you may have spent the first 3 ½ quarters as I did, more interested in the assortment of snacks available than in the game. However, the last 10 minutes of the New York Giants and New England Patriots game was nail- biting excitement.

SI.com reports:

This was one of those Super Bowls that didn't require my attendance to interpret. The Eli Manning story is marvelous, and a great example of why you never give up on a top quarterback prospect too soon. He led one of the great drives a quarterback can lead to put the winning touchdown on the board. The game, though, was won by the Giants' defensive front seven. In holding the Patriots to a season-low 14 points -- their lowest offensive output in 24 games -- New York did exactly what teams have been trying to do to Tom Brady for years. They pestered him. They knocked him to the ground 23 times. They made him rush. That was the recipe to beating New England, but we doubted the Giants could pull it off.
In a final score of 17-14, the Giants denied the Patriots an undefeated season. The Giants' quarterback Eli Manning was named MVP.

In a somewhat related story, citing NFL copyright infringement, the National Football League has put a stop to the tradition of Church gatherings for the purpose of watching the Superbowl on big screens.

The Washington Post reports:
The Super Bowl, the most secular of American holidays, has long been popular among churches. With parties, prayer and Christian DVDs replacing the occasionally racy halftime shows, churches use the event as a way to reach members, and potential new members, in a non-churchlike atmosphere.

"It takes people who are not coming frequently, or who have fallen away, and shows them that the church can still have some fun," said the Rev. Thomas Omholt, senior pastor of St. Paul's Lutheran Church in the District. Omholt has hosted a Super Bowl party for young adults in his home for 20 years. "We can be a little less formal."


The NFL said, however, that the copyright law on its games is long-standing and the language read at the end of each game is well known: "This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited."


The league bans public exhibitions of its games on TV sets or screens larger than 55 inches because smaller sets limit the audience size. The section of federal copyright law giving the NFL protection over the content of its programming exempts sports bars, NFL spokesman Brian McCarthy said.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Dr. Horror believed to be in Canada

According to a National Post news report, Dr. Amit Kumar, nick-named "Dr. Horror" by the Indian media, who allegedly operated an underground organ trafficking ring in New Delhi, India, is believed to be hiding in Brampton, Ontario.

Interpol has issued a rarely used "red notice" for Dr. Kumar's arrest, after he fled India late last year before the Indian Police broke up his kidney trafficking ring.

Read the full report here.

- Shashi K. Raina, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Sunday, February 03, 2008

Pets were Treated Better than the Maid: said U.S. District Court Judge

According to a National Post News Report a former vice president of legal affairs at Sony Pictures, James Jackson and his wife, Elizabeth were convicted last Monday by a Los Angeles court of forced labour involving their Filipina maid, who was an illegal immigrant in the U.S.

James got 200 hours of community service and a $5,000 fine while Liz got a three year prison sentence. U.S. Distirct Judge, Dale Fisher said the following about Liz,

“It seems she treated her dog much better than she treated her victim,”

Read the full story here.

- Shashi K. Raina, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Saturday, February 02, 2008

Spring is on its way

After yesterday's snow storm, there is some good weather news. The majority of the groundhogs has predicted an early spring.

The first to make this prediction was Shubenacadie Sam of Nove Scotia.

National Post Reports:

Canada's first rodent of winter predictions, Shubenacadie Sam, emerged from his pen Saturday at 7 a.m. ET to the sound of bagpipes and a town crier but no shadow, just rain and a crowd of around 50 people who began to celebrate the coming spring. "It is raining cats and dogs and groundhogs and he did not see his shadow," said Sue Penney, spokeswoman for Shubenacadie Provincial Wildlife Park, which sits about 35 kilometres north of Halifax. "We are celebrating that winter will be over early." Because of Nova Scotia's time zone, Sam made the first groundhog prediction in Canada.

Read the full story here.

This prediction was confirmed by the so called "dean of Canadian forecasters", Wairton Wille.

680 News has this Report:


Wiarton Willie says the winter that ravaged most regions of Canada this year will give way to an early spring. The country's most famous weather predicting groundhog did not see his shadow when he woke up from his slumber Saturday. Folklore says if a groundhog sees his shadow on Groundhog Day, he'll flee to his burrow, heralding six more weeks of winter - if he doesn't, it means an early spring. The origins of the tradition aren't clear, but it's likely related to the fact that Groundhog Day falls midway between the start of winter and the beginning of spring.

The dissent was by Pennsylvania's Punxsutawney Phil, who saw his shadow.

CBC has this in depth story about Groundhog day.

- Shashi K. Raina, Toronto



Visit our Toronto Law Firm website: www.wiselaw.net

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Friday, February 01, 2008

Lawyer Fined for Conduct Unbecoming while Student Member of the Law Society

In 2005, the Osgoode tribunal found a former student, Shane Smith, guilty of academic dishonesty for selling papers to another student while a law student, and a student-at-law. Following the decision from the Osgoode Tribunal, the Law Society of Upper Canada commenced an investigation into the conduct of Smith while a student member of the Law Society, and has recently fined the now-lawyer for conduct unbecoming.

Law Times reports:

Shane Smith was reprimanded by a law society hearing panel last month for conduct unbecoming a student licensee. He was given one year to pay the fine and an additional $1,000 in costs.

According to an agreed statement of facts, Smith acted contrary to parts of the Law Society Act when, while he was an articling student, he “provided and sold papers, which he and another student member had researched and written, to M, who was then a student in the MBA program at York University’s graduate school of business, with the knowledge that the papers would be submitted to the graduate school of business as M’s work.”


The student who received the course work is not named in the statement of facts.

Smith, 31, who currently works for IBM Canada Ltd., was called to the bar in July 2004.

But while the LSUC decision pertains to Smith’s activities while he was articling and M was an MBA student, documents obtained by Law Times show the scandal reached back to their law school days.
Articling students, now referred to as student licensees, are bound to the same Rules of Professional Conduct as lawyers called to the Ontario bar.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

University of Manitoba Disciplines Students for Facbook Bullying

CBC news reports:

Nearly three dozen students at the University of Manitoba have been disciplined for a cyber-bullying incident last year on the social networking website Facebook.

University spokesman John Danakis says 34 students have been disciplined for taking part in a Facebook group designed to bully a fellow student in 2007.

Most of the students were in the faculty of management.

Danakis can't say how the students have been disciplined because the university wants to protect their privacy and identities.

But he does say the sanctions include an educational component, and are in accordance with the university's respectful work and learning environment policy and the student discipline bylaw.

He says this is the first time the University of Manitoba has dealt with an incident involving Facebook.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Complaints Launched Against Ontario Judge Insisting HIV Positive Witness Wear Mask

Several groups including the HIV & AIDS Legal Clinic and the HIV/AIDS Legal Network have launched complaints to the Ontario Judicial Counsel respecting the conduct of Justice Jon-Jo Douglas of the Ontario Court of Justice during a criminal hearing he presided over in Barrie in November 2007.

After finding out that the Crown's witness was positive for both HIV and hepatitis C, Justice Douglas insisted that the witness wear a mask while providing testimony on the stand, failing which he would refuse to continue the trial.

The Toronto Star Reports:

The judge refused to accept Crown counsel Karen McCleave's entreaties there was no need for such measures.

"The HIV virus will live in a dried state for year after year after year and only needs moisture to reactivate itself," Douglas insisted, according to a transcript of the Nov. 23 trial proceedings.


"This is outlandish," Bluma Brenner, an assistant professor at the McGill AIDS Clinic at McGill University in Montreal, said yesterday. A drop of human immunodeficiency virus drying on the floor "would be inactivated within 20 minutes," Brenner said in an interview.


But Douglas, a former Crown attorney appointed to the Ontario Court of Justice 10 years ago, was not prepared to continue the trial until he was satisfied "the safety and integrity of this courtroom" was protected.


"I mean, he speaks within two feet of me with two serious infectious diseases," Douglas told McCleave. "Either you mask your witness and/or move us to another courtroom or we do not proceed."


At one point, court staff returned after a recess wearing rubber gloves and placed documents touched by the witness in plastic bags.

The Crown Attorney applied for a mistrial, which was denied by Justice Douglas. The Crown Attorney then applied to the Superior Court of Justice to have Justice Douglas removed from the case, which was also denied for reasons that Justice Douglas was "within his jurisdiction".

Eventually, Justice Douglas voluntarily removed himself from the case. A new trial, with a new judge is set to begin later this month.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Snow Storm Hits G.T.A

All those on vacation picked a good week to leave the Province. As all of you waking up in Ontario know, it’s nasty outside, really really nasty.

The OPP are encouraging drivers to stay off the roads due to slippery road conditions and near zero visibility. Hundreds of flights in and out of Pearson airport have been cancelled, and most students, from elementary school to University, can enjoy a day off making snowmen and snow angels as a result of closures.

The National Post provides a useful list of links to stay updated on closures, delays and traffic conditions here.

...and the snow is expected to keep on coming throughout the day for those in the G.T.A.

Stay safe. Stay warm. And if you’re on vacation – make sure to also enjoy it on behalf of those of us back home, watching icicles form outside our windows.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE

Corruption Charges thrown out on Charter Grounds

National Post Reports:

A judge has thrown out corruption charges against six Toronto police officers, citing the 10-year delay in bringing their case to trial and sharply rebuking Crown prosecutors for what he called "the glacial progress of this prosecution."

The officers, all former members of the Toronto police drug squad, were accused of several corruption charges. They were charged in 2004, but the investigation had reportedly started more than ten years back.

Read the full story here.

- Shashi K. Raina, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAWCIVIL LITIGATIONWILLS AND ESTATESFAMILY LAW & DIVORCE