the daily snivel

Brad Sucks, the blog of the website of the one man band. Brad is an Ottawa musician, and you can download his great album for free from his website as well. Quoth Brad on the topic of selling out:

It’s official Brad policy to not be against selling out. I certainly have lines I won’t cross, but for the most part I support the idea of making money. But to slap some ads on my site for some free Twix bars is scraping the bottom of the barrel, even for me. Baseball tickets in another country don’t interest me much either unless they come with plane tickets.

But then I thought: “Whoah, he said tons of Twix bars”. What could I do with a stupid amount of Twix bars? Why, I could have the most chocolatey live show ever! Just think how they’d pile into the club if the sign said “Brad Sucks Live Tonight + FREE ALL YOU CAN EAT TWIX BARS”.

So I wrote back: “How many free Twix bars are we talking about here?” No reply so far. I hope that’s not the last time in my life I get to ask that question.

I already had a link to Brad's website in my links section, but I just couldn't resist posting this as well. I'd like to expand my list of local and eclectic blog links to include more than just those covering political issues (and I'm not yet ready to provide a link back to a certain ex-girlfriend's blog, despite my secret, shameful interest in reading it), and Brad is a terrific writer. Please share and enjoy. 

And this is George, so named because that's the way the Humane Society called him. This little guy right here is the reason I get up early every morning and work till 9:00 almost every night. Just lookit that face with those irresistible "come hither" eyes. Poor little fella needs to be kept in high-priced non-allergenic specialty duck-based organic cat food, or he vomits twice daily because he has inflammatory bowel syndrome. $30 a bag.

Hey, you try saying no to him. 

I'd like to return briefly to the topic of the criminal trial I won recently, and offer a few thoughts that either you'll find useful or I'll be glad to turn to on some future occasion when I need a word of encouragement.

When that trial date was first set just over two months ago, I was nervous but excited. Normally, trials end up being scheduled from between six to eight months from the date you enter court to request a trial. Suddenly, I was expected to appear in court in two months, fully prepared for a trial set to last for three quarters of a day, and knowledgable about one of the most technical and complicated offences known to the Canadian Criminal Justice System. There was certainly a period of time when I wondered what I'd done to deserve that.

I thought about it, though, and committed myself to being ready. I was being handed one of the biggest challenges I've ever faced, and I realized that my only option was to work like a bastard and whip myself into shape so that I could do a good job for my client. We were his only hope if he were to avoid a criminal record, and the loss of his driver's licence and his business, and even then we had to admit it was likely he would be convicted. After that, it was clear that if I was going to lose this case, it wasn't going to be because I hadn't done everything possible to marshal a zealous defence, or hadn't gone in ready for a hard fight that demanded perseverance and the ability to think quickly. If that meant long days, late nights, and missed weekends, it was simply the price to be paid for being able to say I wasn't going to give up.

It was very hard to leave Toronto this past fall. Even with my serious health concerns, I felt very much like a quitter who could not handle the strain of relocating to a new city and a new career. Coming back to the Clinic and quickly rising to the many new challenges put to me (including being sent out to knock on every door in an apartment building in search of witnesses willing to testify that they had cockroaches, and preparing for and arguing a hearing at the Ontario Rental Housing Tribunal within weeks of starting) helped me overcome that self-doubt, but it still took a lot to come home and admit fallibility.

I imagine the above loss of confidence is a large part of the reason I've gladly accepted every challenge given to me over the past nine months. When a difficult client needed someone to make oral submissions to a skeptical housing board that wanted to evict them, I went out, advocated passionately, and prevailed. When a written appeal to the Information and Privacy Commissioner was needed urgently, I taught myself the law and drafted the winning argument.

I needed to see what I could do, and I needed to know that I can excel even if I'm anxious or worried or even a little afraid about what might come. For instance, it's one thing to argue a hearing or trial when the worst possible outcome is that your client will lose money; it's entirely another when his or her future is at stake. Losing the impaired trial, even though it seemed doomed anyway, would have cost my client his very livelihood. I worried about how horrible it would be if he lost everything over one mistake -- admittedly, a terrible, irresponsible mistake -- and in the face of skimpy, poorly collected evidence. Anxiety and low confidence has always held me back, and I have been learning to control it, rather than allowing it to control me.

At first, I thought the trial preparations were the hardest part -- coming up with valid arguments and defences, as well as proper, probing questions for the Crown witnesses that would expose the weaknesses in the case for the prosecution. I'd argued trials and hearings before, of course, and I was well aware that I would need to be mindful of the unexpected obstacles and disasters that arise on the day of trial that can make all your preparations worthless. It still seemed as though I would be in good shape once I was on my feet.

Then the trial happened. I was up before a very tough judge -- of whom it is said that many lawyers would rather have teeth pulled than appear before. The Crown started off quickly, arguing that my motion to exclude evidence was without any merit and requesting it be dismissed on the spot.

The judge was fair, but critical, and despite his disagreeing with the Crown on the dismissal and agreeing to hear my arguments, I was not given an easy time. My questions and submissions were too long, but I spoke too quickly in my press for brevity. I asked questions of witnesses that he didn't approve of. I acknowledge that my inexperience contributed a great deal to his apparent impatience, but by and large, when I said something he didn't agree with, he told me so. In fact, despite the fact that I won the motion to exclude evidence, he took the time to explain to me why all the other arguments I'd prepared wouldn't have worked and the evidence would have otherwise been admissible.

I won on the exclusion motion late in the afternoon. Earlier, when the court had adjourned for a lunch break, things were looking as grim as they could in a case with a fraction of a chance of success. We had agreed that if the evidence was ruled admissible, we would run the trial so as to preserve our client's right to appeal. I ran back to work over lunch to grab a copy of a case I had cited in support of an argument that a defect in the officer's testimony created a fatal error, and which the judge had wanted to see a copy of. It was a case I'd encountered during my research, but the issue (about the officer's failure to indicate that his demand for breath samples must be complied with forthwith) only arose because his testimony echoed the facts of that case (R. v. Kwok, which I was advised by the Crown, who ran back to check it in his office during lunch as well, is currently under appeal, so keep an eye on it). My client was with me during the trip to the Clinic and back, so I tried to be as upbeat and reassuring as possible, while also being realistic. I basically wanted him to know we were fighting hard, while not emphasizing how discouraged I felt inside.

When I got back to the courthouse, I sat down with a pen and decided this was no time to give up. I was still making closing arguments on my motion and there was still time to win this. I started writing down a few points that came out during the officer's testimony, and outlined what turned out to be the winning argument.

After lunch, the case resumed. The judge ultimately rejected the case I provided as being wrongly decided (I'm curious to see how the appeal of that case turns out). The Crown then made its submissions. In my reply, I returned to the "technicality" that won the day. I'd already brought it up in my arguments, but the judge had dismissed it as being irrelevant. I thought the matter would benefit from clarification.

Here's what it boiled down to. In his examination in chief during the Charter motion to exclude all the breathalyzer evidence, the arresting officer testified he administered the roadside screening device. The roadside screening device is the little box they make you blow into when they pull you over and form a suspicion of the presence of alcohol being in your body. It can give you a "Pass," a "Warn," or a "Fail." If it reads "Fail," they generally have the grounds to arrest you and take you to the station to blow into the breathalyzer to get your actual blood alcohol content. I'm providing a link to a great impaired driving website that summarizes some of the issues here.

[NOTE: None of what you read here is intended as legal advice. I am not yet a lawyer and wouldn't give advice over the internet anyway. This is simply a brief, informal, and generalized description of some issues that arose at a trial in open court, which is now part of the public record, while I was an articling student. If you are charged with the offences of impaired driving or driving while your alcohol level is above the legal limit, contact a local lawyer IMMEDIATELY.]

Part of the evidence that has to come out is what constitutes a "Fail" reading in the mind of the arresting officer. The officer has to testify that he or she had reasonable and probable grounds to make an arrest and provide the information that justified those grounds. Here, the officer conceded (when I cross-examined him) that he wouldn't have had the reasonable and probable grounds to arrest my client without the "Fail" reading. There simply wasn't enough other evidence without it. the officer testified, however, that the device was calibrated to register a "Fail" at a blood alcohol level much lower than the 100 milligrams of alcohol that they are actually calibrated to. The judge wasn't concerned with this error when I brought it up, simply commenting that "there was no evidence before the court about what it should be calibrated to."

But the error was in the fact that, if the device was calibrated as low as the officer believed it was, you could fail while still legal. It didn't matter what it was actually calibrated to, because cases that deal with miscalibrations point out that it is the reasonable belief of the officer that "Fail = X, and X is against the law" that matters. In my reply arguments, I pointed out to the judge that it is only against the law (in Canada) to have a blood alcohol content over 80 milligrams. For the purposes of section 253(b) of the Criminal Code of Canada, 80 and under is perfectly legal, and no one who thinks that a "Fail" that could be triggered when you're under the line imposed by law could have valid grounds to make an arrest in those circumstances.

The judge and the Crown both started flipping through their copies of the Criminal Code. The judge admitted that I had something. Everyone "knows" that the offence is being over 80, but wryly noted that this was such common knowledge that it took turning to the law to confirm that being at 80 milligrams itself wasn't actually an offence. Section 253(b) of the Criminal Code of Canada describes it.

The Crown admitted that if the officer had in fact said the words I indicated, he didn't have enough to make an arrest. Accordingly, the tape of the morning's testimony was played back. The words were repeated to the court. I had won and any evidence obtained after the "Fail" and arrest was excluded. All the observations, all the notes, all the readings.

The trial ran with respect to the second charge (which didn't need exact blood alcohol numbers to prosecute but instead proof of impairment), but there was nothing near enough evidence to make out that offence, and my client was acquitted of both charges.

Preparation got me there, but refusing to give up in the face of intense adversity, pressure, and mounting defeat is what carried the day.

I would urge everyone facing that kind of doubt or fear to instead test themselves. We can, all of us, challenge ourselves to do the things we think we cannot do. While we are only human, and have all-too-human flaws and limitations, the quest to better ourselves is what makes humanity so redeemable.

The risk of failure is terrifying, but giving up or never trying is a far more haunting failure than simply not achieving victory while striving to be more than you are. After all, the effort of doing your best can only lay the foundation for doing even better the next time, and achieves the ultimate goal of self-improvement all the while. 

During a conversation this weekend with the always lovely and charming Celeste, we took a trip down memory lane to number 12, Years Ago Street, when we first met. There was a Lois 'N' Frima's ice cream stand in the Byward Market that used to be run by a friend of mine named Warren. Warren was an odd duck, but generally was a nice and funny guy, and he managed a now-defunct bi-weekly outdoor reading series known as "The Vanilla Reading Series." I got my start in reading short stories and poetry there, and I'd often hang out at the ice cream stand with Warren while downtown on those hot summer days in 1994.

Celeste was another denizen of the Byward Market in those days -- a fourteen-year-old punk rocker with green hair. She ruefully recalled that Warren was the first person to ever really sexualize her breasts, with him commenting on them in a way that still seemed inappropriate, all these years later. On a chance meeting at the ice cream stand that summer, Celeste borrowed my Porno for Pyros cassette, and even returned it some weeks later. I still have that tape, although Warren is now long gone (I hear good things about him both getting settled, and settling down, out west, though) and I don't have much time for reading anything but passionate submissions these days (which isn't to say that my emphatic enunciations in front of an audience haven't helped get over the stage fright of being in court). At least I still have the good friendship of Celeste, notwithstanding the fact that I am a busy and often neglectful friend.

At any rate, another character from those days of old was a young man of notoriety named Rob Nelms. He was something of a larger than life figure, preceded everywhere by bizarre stories about his artistic feats, including the tale of the time he nailed his own penis to the wall. He had stretched earlobes before such things were done, coming to classes with those plastic 35mm film canisters inserted through the massive openings in his earlobes. He was an artist in the most gorgeous and grotesque sense, devoting his time to making Things out of other things, appearing under various pseudonyms (such as "Emily J. Whist"), and coordinating in groups and events (like the Kitten Ling Foundation) so as to bring his works into the public eye. He was in a couple of my philosophy classes in my first year at Carleton University, and I had more than a couple of conversations with him that left a favourable impression on me, but I confess that I lost track of him and then, past about 1998 or so, he simply vanished.

Google is quite equivocal on the subject. I commented to Celeste that it is entirely possible that he is now dead. It is also possible that he became medicated and domesticated and, not unlike myself, is happier being respectable by day and safely anonymous at all other times.

But I put it to you, the people with far more time and knowledge and connections than I have. Does anyone know what happened to Mr. Nelms? 

What is Rob listening to today?

1. Hey Salty [Portastatic]
2. Feeling Yourself Disintegrate [The Flaming Lips]
3. I Can't Wait To Get Off Work (And See My Baby) [Tom Waits]
4. 6 Underground [Sneaker Pimps]
5. Novocaine for the Soul [Eels]
6. You Said Something [PJ Harvey]
7. Our Retired Explorer (Dines With Michel Foucault in Paris, 1961) [The Weakerthans]
8. Better Than Nothing [Jennifer Trynin]
9. Hold Me [Weezer]
10. Monster Hospital [Metric]

 

Microsoft Update interrupted my morning work on the arguments and questions I was preparing for another trial I have coming up on Wednesday, and informed me that I needed to install a number of "High Priority Updates." Among them included:

Windows Genuine Advantage Notification (KB905474)
Download size: 935 KB , less than 1 minute

The Windows Genuine Advantage Notification tool notifies you if your copy of Windows is not genuine. If your system is found to be a non-genuine, the tool will help you obtain a licensed copy of Windows

Gee, thanks, Microsoft! Imagine how many people there were out there who were desperate to know whether their copies of Windows are genuine. They'll all be thrilled to know that their prayers have been answered!

While I appreciate that there is a legitimate interest ensuring that a copy of Windows running on a given computer is not pirated -- namely, the interest of Microsoft as the software publisher itself -- I think it's more than a little disingenuous to pretend that this is simply a handy tool for the concerned user. I rather think that you can instead roughly divide the bulk of the Windows-using public into two groups:

1. The percentage of Windows users who know whether or not their copy of Microsoft Windows is genuine, and don't care.
2. the percentage of WIndows users who don't know whether or not their copy of Microsoft Windows is genuine, and don't care.

Prove me wrong, children. Prove me wrong.

If you're as nerdy enough as I am to follow technological news and opinion in a cursory but interested way, you'll find that a great deal of whinging goes into complaining that Apple is far too "closed." You know: "there's no licensing of the FairPlay DRM mechanism that is used to secure AAC files purchased on the iTunes Music Store." "Mac OS X won't run on any random Intel clone." "iPods won't play music purchased from other music stores." And so on.

Aside from the plain fact that the reverse is just as true in the Windows world, and even open source formats can be idiosyncratic and incompatible, I have to say that I have never been asked once to confirm that my copy of Mac OS X is genuine. I didn't need to go through a rigamarole just to install it, and I didn't need to verify it on-line. I've certainly never been handed a ridiculous 1-megabyte snooper file labeled as a high priority software update.

The Mac OS does nothing to prevent you from installing it on another computer. They simply trust that you won't. There is no CD key. Apple even sells a "Family Pack" which includes five licences (for only $249 Canadian, versus $149 for a single licence), just for those who want a little better karma when they do install on multiple machines.

There are good reasons for using Windows, of course. I have to use it at work, since we use Corel WordPerfect a great deal and also because the University has an exclusive hardware supply arrangement with IBM and will support no other systems. I'm just saying that petty nonsense like the above isn't one of those good reasons, and I have good reasons to avoid that sort of silliness when possible. 

The current layout of the Daily Snivel looks almost exactly as it did a week ago.

Which makes one wonder why I went to the trouble of finally teaching myself proper CSS (Cascading Style Sheet) syntax and proceed to fundamentally change the code behind the blog only to have it look more or less precisely as before.

Well, the changes are subtle, but they are there. I'm making more use of colour and space, for one. More importantly, we're not in 1997 any longer, and with improvements in web standards, tables and <font> tags just don't cut it anymore. I mean, of course tables still have their function, but you can do an elegant split layout just like the one here without them. Recently, I decided it was preferable to have more control over the ultimate look of things, and separate it from the content of the site itself.

A lot of my website was, in fact, designed in 1997, with contemporary coding. I've eschewed silly, gimmicky things like blinking text and animated .gifs, of course, because those things do not belong in the same solar system as good design. This will need to be updated soon if it is to remain pleasing to the eye as well as functional. Indeed, I'm reaching the point where my website needs a fundamental redesign, not only in terms of looks, but also content.

In about a month or so, I will be a lawyer, marketing my professional services under my own name. I will not want to be so easily googled and have every aspect of my life laid out for inspection. Slowly, all traces of my full name are being removed from this site. It's enough that I am Rob. Those who already really know me can find me here easily. I'd prefer that clients and employers not be in such a position.

Due to the fact that I want to continue this site, things will change. I suspect they will change for the better, but you will notice them. I hope that you continue to read and enjoy my writing as this happens, and in the years to come. 

[UPDATED June 14, 2006 with a photograph of my bike from a happier time]

A bit of explanation about the most recent misanthropic philosophy of the week, before I get a lot of e-mail about it.

I am a cyclist, or rather I am a cyclist when my stupid beloved shiny red bicycle is not busted. Which is currently is. And I don't have $200 for a new wheel and new gears right now. But I am nevertheless someone who loves the freedom of riding a bike from the time the frozen city thaws until the frost is on the ground again. I love not having to wait (let alone pay for) the bus, with all the attendant running for the bus as the cackling driver zooms away, being stuck in traffic on a scorching hot day without air conditioning, idiots who don't open the window anyway... etc. You get the point. Simply not having to ride the bus is a joyful enough reason for me to loooove my bike. Plus there's the health benefits, the fresh air, and even (dare we say) the saucy exhibitionism of biking shorts. It's grand. It's brilliant.



So when my boiling rage froths over the side, and spills onto those cyclists who hog up the sidewalks, zipping past pedestrians without any warning, possibly whilst headphones are stuck into their ears, I say it as someone who has been there but knows better.

I mean, OK, I don't think it's possible to always avoid sidewalks -- there are just some streets that even in the best conditions have too much traffic and insane drivers. I understand that. I don't live in Toronto anymore (praise Jeebus), and I do hear some awful things about the cycling in that town. I live in Ottawa's New Edinburgh neighbourhood, with river-side bicycle paths and two good bicycle lanes running each way over the St. Patrick Street bridge on the way into the Byward market or downtown. Even so, part of being a good rider is learning how to get onto the road and deal with traffic.

Here's why: first, it's actually safer to ride on the road. Cyclists are much more likely to have accidents on sidewalks and even bicycle paths, because those routes have lots of other people moving about, almost at random, like the players on an electric football table. I mean, we're talking old people and children here. People walking their dogs. Rollerbladers. Anything could happen. Even though more injuries occur to cyclists from injuries that take place on the roadway, fewer of those injuries involve a collision with a car than another source (30.6% vs. 38%). And more pedestrians are injured by collisions with cyclists (or rollerbladers) than cars. Most accidents take place at intersections, as opposed to the novice fear (in which I have shared) of being overtaken from behind by traffic. But even intersection accidents seem more likely to have occurred because the cyclist is coming off a path onto the road or, more commonly, is on the sidwalk and proceeds through an intersection at a crosswalk.

Second, cycling is most dangerous when cyclists ignore the rules of the road. This necessarily includes being on the sidewalk, but also includes ignoring stop signs, traffic lights, turning signals, and riding on the wrong side of the street. This makes the cyclist very unpredictable for motorists (ie. the "he came out of nowhere!" syndrome) and increases the risk of an accident. Provided here is a great description of the most common and serious cyclist errors resulting in injury or death, and how to avoid them. A frequent cause of these accidents occurs when a cyclist is on the sidewalk, out of the motorist's view, and does something unexpected and possibly against the traffic laws.

It's very jarring to be walking only to have a cyclist whip past without warning. An unexpected move by a pedestrian could result in a collision. At the very least, it's polite to signal your intent to pass with a bell before overtaking a pedestrian on a bicycle path (you shouldn't, again, be on the sidewalk). I've had to defend somebody after he rode on the sidewalk and got into an accident, and you'd be amazed how hard it is to sell even the most brilliant legal defence when it's clear the cyclist had no right to be there, and the victim had a cracked skull.

Finally, take the damn headphones out of your ears when riding. I've written about this before. It's even a significant factor in your Morbid Stupidity Index. I recently tried to be tolerant of this behaviour because someone I was smitten with quite enjoyed doing so, but even soft, naked boobies (and, oh, I still think about those boobies sometimes) can't change the fact that it's egregiously dumb. Dumb dumb dumb. You can't hear anything, the music is distracting, and everybody hates it when their favourite song is interrupted by pain and bleeding.

So knock it off, ya bozos. 

An interesting story on the maddening ordeal of trying to install the "GIMP" image manipulation program (an open source application with features to more or less rival Adobe Photoshop) in Windows XP, with some not unreasonable crabbing about why sometimes it's at least as sensible to pay for software that works as it is to spend a lot of time trying to monkey with free software that doesn't. That said, a good friend of mine is a big fan of the GIMP, and she recently endorsed "Gimpshop" (a release modeled to resemble the menu commands of Photoshop for users familiar with that program) as a much more pleasing implementation, and certainly it's a hardy, capable program that can get a lot done at the end of the day and, hey, it's free.

Me, I have a, er, uh, perfectly legitimate installation of Photoshop on my iBook at home (and in any case GIMP is far better suited to its native Linux environment, or with X11 on a Mac), but I installed Gimpshop on my Windows XP computer at work for those times I need to edit an image for our website or a brochure and I've found it quite handy, as much as there are still times I want to wield my hammer of +1 usability and bash a less confusing interface into it. On the othe hand, we can all be thankful that at least it wasn't designed by those monsters of modern design, Microsoft. The menus in Gimpshop are still a little unnatural as it is; I'd hate to imagine how much worse it would be if they were those dreadful "expanding" menus you get by default in Word.

None of which is to say that I do not abound with love and respect for those who give their hours to open source software. Or that the author of the above-linked article doesn't. Like pro bono legal work (in a much, much, much, much less meaningful way than pro bono legal work, of course), giving your time to a project you are fascinated with for the public benefit is an ideal to aspire to. But I don't think anyone is kidding themselves in thinking that GIMP or OpenOffice.org can simply be the substitute for Photoshop or Microsoft Office for all people at all times. Or that Linux (snerk) will ever fully replace Microsoft Windows or (bias alert) the Mac OS. Ease of use, predictable, ever-expanding features, and a good, clean, intuitive interface are all features that should be part and parcel with the very creation of the software, but rarely are, and even though the big companies often get things wrong too, people are still largely willing to pay for the privilege of not having to indicate both the amount and the units of measurement of space to allocate to the "tile cache" on installation. 

Associate profile, Anonymous Law Firm LLP:

Best Experience at the Firm
"I got to leave at 6:00 once. There was a power outage in the office. They had no choice but to let us go."

Worst Experience at the Firm
"Definitely the time the partner urinated on me."

Advice to Law Students
"Definitely go somewhere cool after the Bar Exam, because once you start your job at the Firm, you won't have any time to take any trips, not even little ones, like to the bathroom, except with permission, and they don't always give you permission."

Anonymous Law Firm LLP is the compendious website of a hypothetical large, soulless law firm seeking fresh blood for the salt mines endless pursuit of more billable hours. It really does tell you everything you ought to know before you worry about articling on Bay Street. 

... we won!

Both charges dismissed after a trial that ran from 10:00 am until about 3:45 pm. My client is walking on air -- he even made me call his mother to tell her the good news -- as it was my assistance that saved both his future and his business (since he needs a driver's licence to do his work).

I have every confidence he'll never need me again in a professional capacity, which is the even more important part. My client knew he'd made an awful, terrible mistake, and has been anxious and remorseful every day for the past year. I know that this is one person who is really going to turn things around and never go near a set of keys when he's had any beer at all again.

I'm like anyone else who has to walk, cycle and drive -- I agree that drunk driving is dangerous. My supervisor refers to cases like these as triggering "The Peter Parker Principle." That is: what if after winning a trial and clearing your client of the charges, he (or she) goes out and kills your Uncle Ben? But it's a dilemma that pales in comparison with the risk to us all if people can be wrongfully convicted, or convicted after a piss poor job was done by the authorities who are trained, and mandated, to do things The Right Way. In this case, with these facts, with the testimony that came out, it feels right to say that no one deserves to be convicted of a criminal offence on anything so thin. Meanwhile, I also did a good job. And that means something on the verge of my becoming a lawyer.

So my first major criminal trial is a major success. I won't win them all, and I will definitely lose some I thought had strong defences, but I've learned a lot here that will make me an even better advocate in the future, and I can honestly say I did my client and the Clinic a good service today.