GJA Blog

Below are my miscellaneous ramblings about current events and business, social or consumer encounters that bug me to the point where I have to write about them.

June 22, 2016 – If You Weren’t Cynical About Politics Before … It’s Time to Start

I’m as cynical as they come regarding politics but, a couple of months back, I read an article that just blew my mind about how corrupt the process of getting elected has become: How to Hack an Election (dated March 31, 2016) in Bloomberg Businessweek.

It’s an article about how a cool-looking hacker named Andrés Sepúlveda rigged various elections in several Latin American countries for about 10 years.  

And, when I say cool-looking, I mean like a real cool-looking MoFo.  I couldn’t publish his photo in my Blog but, in the feature picture, this guy has a shaved head, a “handlebars” mustache flowing into a bit of a goatee and is wearing all black.  And, get this: he has two “source code” tattoos which are “</head>” positioned over “<body> at the base of his neck and a third tattoo of a QR Code in the middle of the back of his head.  Apparently, this third tatoo is an encryption key.  You gotta go to the Bloomberg article and check out the pictures for yourself.   

But, before you read this and think, wow, this dude sounds so cool that I’m going to become a hacker, you should know that the article is based on an interview of this guy from … prison.  Yup, he got too involved in his causes and decided to appear in public, at a Columbian TV station, to present some evidence (which was, of course, obtained through his hacking) against a bad political actor in the country.  Well, about a month later, three dozen or so commandos raided his Bogota office and arrested him.  He originally decided to go to trial but, ended up pleading guilty to hacking, espionage and other crimes.  He got a 10-year sentence.  He is now a cooperating “state witness” (i.e. a rat bastard in the vernacular). 

I know, I know … he’s a rat but, before you judge him, let me paint you a picture of how Latin American justice works.  During some of his court appearances, there were surly looking men in the back of the courtroom holding up pictures of his family and making a slashing gesture across their throats or hand-gestures over their mouths, the latter of which is gangster code for keep your mouth shut or else

Can you imagine this ever happening in a Canadian or U.S. Court?  

Well, that wasn’t a totally rhetorical question and I do have to point out a scene from The Godfather, Part II when Frank Pentangeli’s brother was seen sitting beside Michael Corleone at a Senate hearing on the Corleone family’s allegedly criminal activities in New York; but, this was a movie and even then, it was a civilized, implied threat of violence on the witness’s brother.  There was no menacing gesticulating going on and there’s no way that any U.S. or Canadian judge would ever allow that to happen in her or his courtroom.  I have to say – with apologies to my Columbian friends – that it is only in a banana-republic where you can get this close to an actual kangaroo-court setting. 

Now, back to Sepulveda’s ratting.  Look, he was fresh out of options when he was caught and convicted.  His so-called friends in high places in politics disappeared instantly and his decision to rat was, obviously, an existential one.  It is, clearly, his best chance of surviving – because he knows too much about too many powerful people and there’s not a snowball’s chance in Hell of him surviving in the general population of a Columbian prison even if he pledged a vow of silence.  The political gangsters involved just can’t take a chance on him talking to someone, anyone.  In the brief time when he was not in a segregated area in prison, he was attacked and just about killed; he now sleeps under a bullet proof blanket and his cell has bombproof doors.  When he is transported by the feds to provide his cooperation in a computer lab, he is in one of a few unmarked vehicles that speed through city streets, equipped with cell-phone jamming devices to prevent remote activation of road-side bombs. 

His life doesn’t sound so cool now, does it.

But, as happens often in my Blogs, I have digressed a bit from my main point.

The point of this Blog is to say that I now believe that there is no such thing as a fair chance for an ordinary candidate in any political process anywhere in the world – including Western democracies. 

And, although this Bloomberg article is about Latin American politics, I have no doubt that the type of things described in it can happen (or have already happened) in the U.S., Europe and Canada.  The exception may be very local politics – like a mayoral race – but, make no mistake, all it takes is money to have access to services from hackers like Sepulveda.  If you’re thinking that it takes a small fortune for these types of services, think again.  The Bloomberg article points out that for about USD 50K, you can get high-end Russian software that allows you to tap into Apple, BlackBerry, and Android phones.  So much for Tim Cook’s dog-and-pony show about the importance of its encryption features of its phones.

And if you’re not quite there yet – in terms of cynicism about politics – let, me give you some additional highlights from the article.

For all of you idiots out there that believe what you read on the Internet or in trends on social media, Sepulveda kept an “army” of 30,000 Twitter bots on call that he could activate at will to start and maintain trends. 

And, if all it takes is money, doesn’t it scare you that much more that Donald Trump is running for the U.S. Presidency?

Also, think back to all of the data that the NSA has accumulated on all major political actors of all Western democracies and, indeed, on ordinary U.S. citizens.  Where is this data currently and is the NSA still spying on everyone to the extent that it was?  (Unless another Snowden comes along, I guess we will never really know.)

But, I do know this: it is possible that, if and when needed, the NSA’s data could be used against someone who rises up in the political process and challenges the status quo

And, if you think its different in Canada because we are a “nice” nation, think again:  CSIS and the CSE have – arguably – more latitude to spy on Canadians then the NSA does on U.S. citizens; it’s just not that well publicized here.

Most lawyers, at some point in their careers, think about entering politics at some level because they are bored, have made enough money or because … ahem … they want to give back to the political process in their country.  Well, you can count me among the lawyers who have thought about it – for about two minutes – because I realized long ago that winning would not be based on merit or qualifications for the job. 

Twenty-nine years ago, I got into McGill law school on merit, graduated high-enough in my class to get recruited from big Toronto law firms, was one of only a handful of students to be hired back after articling – all without any connections.  In fact, my career and my boutique practice have been built on quality legal work, a few clients at a time.  This is not enough any more. 

I wish that my model – merit and quality work – could be used to have a successful career in politics but, I don’t believe it can.  Over the last few election cycles that I have observed in Canada and the U.S., it has become apparent to me that unless one is from a political dynasty family or has the right connections or has access to a lot of cash to fund one’s election campaign (or, for the unethical types, to hire Sepulveda-type of characters), there is very little chance for the average person on the street to run, successfully, for political office.

December 18, 2015 – How to Survive Internet Shaming: Walk Boldly and Carry a Strong Will

It was about 5 years ago that I first experienced an angry, on-line mob that spewed its hateful and uninformed vitriol against me and threatened me and my family, anonymously, with physical harm – all because I represented 15 kids on a hockey team whose parents and coach were too scared and intimidated by the bully manager (and her player daughter) to do anything about it.  And, as I said five years ago, I would choose a time speak out about it again.  Well, that time has come and I have a message for the cowards that hid in the shadows of the Internet and the ignoramuses in the Toronto media who created a sensational story for their own purposes:  I have survived and thrived despite a brutal period of Internet shaming, some of the remnants of which remain online today.

I also have a message for all victims of undeserved Internet shaming: you too can survive it – and all it takes is a strong-will and confidence in yourself in knowing that you did the right thing in whatever context you did it.  Unfortunately, if you don't have these two traits and cannot evolve and develop them quickly enough, then, I will also tell you that it can be rough and you may need some external help.  Neil Macdonald, a senior reporter with CBC News (whom I read and respect for his reporting and writing) did an excellent piece on this back in March 31, 2015 entitled "Monica Lewinsky, writer Jon Ronson taking on internet shamers. Good luck".  Or, for those so inclined, you may want to check out Ronson's book.  Do whatever it takes because you shouldn't let the Internet cowards win.

In this particular blog, I won't rehash the events that lead to my encounter with the virtual Scarlett-Letter community because you can read about it on an earlier blog: "December 23, 2010 - For the Record Statement re Kayla Watkins Story".  At the end of the day, it's a sad story about a terrible mother and grandmother who wanted and got their 15 minutes of fame but, ended up just where I thought they would end up after it was all over: going back to their dreary lives.  I predicted it in real time and although it gives me no pleasure that it transpired as such, it does make me that much more assured in myself about the importance of standing up and speaking out about whatever wrongs one sees.  Now, let me be clear for the ignoramuses that may seize upon this statement and try to make a meal out of it against me.  In the grand scheme of the more serious events in the world around me, I understand that I wasn't speaking out against world hunger or genocide or terrorism.  But, my point remains on the record and if you haven't gotten it by now, you never will.

Instead, my focus in this blog is about the lessons that victims of Internet shaming should learn and use to emerge from it stronger and more committed to standing up to stupid people with opinions (and they are everywhere, particularly in the business world) or to anonymous bullies – wherever and whenever they are encountered.  Here are three things that you can do to re-empower yourself and move on to better things.

First, own your actions or your statements – assuming that you did the right thing (by demonstrably objective standards) at the time.  In my case, I was asked to represent our hockey-parent group at the time to deal with a very sensitive and difficult issue and I did so in a professional and discrete manner at the appropriate levels.  The fact that the mother and grandmother – and a self-serving Toronto Star journalist (and I use the term loosely in reference to the hack who wrote the story) – turned the issue into a circus side‑show is their problem, not mine.  I never backed down from what I said and did in my particular situation because I knew then (as I know now) that I did nothing wrong.  In fact, I stood-up and spoke out for the 15 other kids on that team whose parents were too meek and timid to do so.  They were content to bitch and gossip behind the manager's and coach's backs (which makes them no better than the anonymous haters on the Internet) while their kids hated coming to games.  I don't operate that way.  I confront situations in the open and I am extremely fair about how I deal with them.  In short, I say what I mean and mean what I say – and I will hold you to the same standard.  Now, to be clear, I will take action or say what I mean in a professional way but, if you insist on maintaining an ignorant position or compound your stupid actions by more of the same, I will call you out and embarrass the crap out of you.

Second, be self-deprecating about it.  I have to say that the moniker douche-bag hockey dad that the Internet haters used to describe me was brilliant – as much as I hate to admit it.  It's one of the things you read and say "Damn, I wish I wrote that…"  This phrase captures so many dads of kids who play minor hockey in Canada but, I know – and the people that know me also know – that I am nothing like that.  I am appropriately hard on my own kid in pushing him to reach his potential in the context of whatever level of hockey he is playing and I don't offer unsolicited advice to the coaching staff about the on-ice operation of the team.  If I am asked, I am not shy to provide my candid thoughts but, I am a respectful father of a son on a hockey team.  I get that it's about the team as a whole and not about any particular individual.  Ironically, in my situation, I was pilloried in the press and on the Internet for standing up for the team.  I know most ignoramuses out there missed that but, that's life and if it happens to you, turn it into your "Moment of Zen".  In my case, I have disarmed my dubious Internet identity by owning it when I speak to an audience in the context of my law practice or even in my materials that I publish for it.  I make a joke of it because the people who hear me speak or read my materials or whom I advise in my law practice say – "Geez, you're not a douche bag after all" – and we have a good laugh about it. It takes guts to talk about it but, trust me, it's the best way to deal with it.

Third, use it as a teaching moment for your kids or people who have suffered the same fate.  Like all normal kids, mine were a bit horrified when my Internet shaming first occurred.  The two older ones were 13 and 12 at the time and their "friends" taunted them about it in school – obviously because their parents told them about it.  I sat down with each of them and explained that in life, it's important to stand up and speak out for the things you believe in – as long as you have done your homework about what it is you want to stand up for or speak out about.  It was an awesome teaching moment and I am proud to say that my kids have developed stronger characters because of what happened to me.  I will take this trade any time.  And, it goes beyond my kids.  People have written to me about their experiences and those who have gotten to know me after the incident have also spoken to me about their personal horror stories involving online haters who lurk anonymously on social media.  I am happy to say that I have helped those people put those incidents behind them.  This is why I don't attempt to remove some of the online blogs about it.  You have to allow and read stupid people's uninformed opinions in a free and democratic society.  And, if you are the type of person who judges others solely on the basis of what you read on the Internet, then, I don't care one iota about you or your opinion.  As I mentioned earlier in this blog, I recommend Jon Ronson's book, "So You've Been Publicly Shamed" if you need to do additional research or reading on this topic. 

And now a final word to the people out there – including the faux friends – who may continue to judge me, anonymously:  go #%$& yourselves.  How's that for speaking out and being politically incorrect when you have to be to make a point.  See, I told you I wasn't shy but, I want to be clear about one thing.  I do not and will not use this type of language towards you unless you choose to use it towards me.  I chose to use it here for literary license purposes and because the online, anonymous haters need to be spoken to like that.  The net-net is that if you choose to judge me because of what you have read about me in the context of the Kayla Watkins story without reading both sides of the issue, then, I feel sad for you because you are a weak character who will get what's coming to you one day.  At that point in your life, you will wish that you had my strength of character, principles and advocacy skills to defend yourself. 

July 19, 2015 - The Greek Debt Crisis: Perspectives from a 1st Generation Canadian-Greek

My dad passed away in late May of this year.  And, while it has been a difficult time for all of us – especially my Mom (after 54 years of marriage) – I take some solace in the fact that my Dad has been spared knowing about the worsening fate of his homeland. 

I know that although he (and my Mom) have never regretted leaving Greece in the late 1950s for a better life – for their kids primarily – I also know that both of them remained attuned to and concerned with what was happening back in their home country.  I recall my Dad fretting about the ever-changing governing parties of Greece (typically left and centre-left) since the mid-1970s that resulted in his relatives not having work – four years at a time – depending on which party was in power. 

And, although I didn't realize it because I was too young at the time, my Dad's explanation to me of how Greece operated was my first exposure to the vagaries of a politically and economically corrupt country.  Fast forward to today and as I – and the whole world – can see, not much has changed in Greece except, of course, that its foreseeable future has been mortgaged by the corruption of successive Greek governments and a collective attitude by Greeks (who live in Greece) that life is for right now, not later.

Look, I know that I am going to attract a lot of hate mail from the apologists for the current Greek situation and that I will be painted as a traitor because of my parents' Greek-origins but, as I have stated in my previous BLOGs, I don't shy away from speaking out about things that bother me. 

Here's the bottom line about the current Greek debt crisis and state of their economy:  the Greeks did this to themselves – despite what they and all of their left-leaning sympathizers (be they intellectuals, economists or politicians) in the world are saying and will continue to say for years to come.  

What gives me the right to say this? 

Well, for starters, I have eyes and a brain and I have not been willfully blind or brainwashed, respectively, to what has been occurring in Greece for the last 40 or so years.  Based on my debates with Greeks of my vintage (late forties) over the years, most are (wilfully) blind and brainwashed about their country.

Second, I witnessed (first-hand) their corruption and attitude during the times that I visited Greece and this was, as it turned out, a microcosm of the country's corruption and attitude at large.  (By the way, I have visited Europe frequently in the last 15 or so years but, since 1995, I have specifically avoided going back to Greece because I refused to contribute my vacation funds to its economy.)  

Finally, as a Canadian-Greek interested in my father's homeland, I have consumed thousands of pages of different perspectives on Greece from an early age – so that I could debate my Dad and our friends and relatives during family gatherings.  The first Greek debt crisis in 2010 reignited my interest in the train-wreck that is Greece and I haven't been able to look away since – because it was one of those "I told you so" moments that vindicated all of my arguments with various Greeks about living on borrowed time.  With the latest crisis, I have had access to private research reports from major European banks and the conclusions are sad but, not surprising – and yet, in my circle of Greek friends, many continue to live in denial and blame the Germans.

In short, all of what I have observed, experienced and read about Greece has borne out what my Dad fretted about for most of his life.

Now, in fairness to the Greeks, I recognize and acknowledge that the EU should not have given Greece so much money the first two times – like a parent who increases his spoiled child's current allowance just because that child overspent last week's allowance.  Instead, that child should have been cut off the first time and forced to budget because that's how lessons are learned.  It should be obvious – even to the village idiot (of which there are plenty in Greece) – that no self-entitled individual would ever to say 'No' to more money.  So, why should a self-entitled country be any different?   

I mean, really, what the #%$& did Greece do with the previous €250 Billion it has received since 2010? 

There is no excuse despite what Varoufakis says.  (By the way, he should stick to theory because he seems to know jack shit about the real world.  That's what you get for appointing an academic to a post that requires action in the real world.)

There is no question that the generous bailouts of the past have contributed to Greece's current situation but, in my view, the root cause of Greece's financial problems is the absence of real, patriotic leadership in the country since the 1970s

What do I mean by that? 

I mean leaders who should have been more interested in forcing Greece (kicking and screaming, if necessary) to become a European power (or influencer) in the 21st century as opposed to lining their pockets (and their cronies' pockets).  I am astonished that not one of these past leaders had the vision – or the balls – to leverage the Greeks' proud history (e.g. the world's first democracy, the first scientific approach to medicine, theatre, math, philosophy, architecture, and the Olympics) and start Greece on a path back to respectability – politically and economically.  Sadly, in contrast, over the last 40 years, it didn't matter whether the Greek government of the time was left, centre-left or centre-right, as they all shared three common traits: cronyism, corruption and kleptocracy.

All of the leaders over this time period – including the recent ones such as the younger Papandreou and Samaras governments – are directly responsible for Greece's decline into a banana-republic-like nation (without the bananas). 

Ironically, it has taken a radical-left politician – current Prime Minister Alexis Tsipras – to take a stand against his own party and rally the Greek parliament to accept a 3rd bailout package which may allow Greece to turn-around its economy – although I would not bet on it. 

Sidebar on Tsipras

I will reserve judgment on Tsipras because of his flip-flops.  Why would he embarrass himself by calling a snap-referendum on rejecting the EU's bailout terms (for release of the last tranche of the bailout funds from the 2013 program) just hours after leaving negotiations in Brussels where he gave his word on those terms?  I will chalk this up to political pressure from the most radical elements of his Syriza party because he doesn't sound that stupid.  I give him credit, though, because after campaigning for a "No" vote with respect to that referendum, he did a complete 180 (again) by taking a stand against his own party and rallying the opposition leaders in the Greek Parliament to accept the 3rdbailout package.  I think he finally got it.  I also give him credit for risking his leadership (because that's what democracy is all about) and, more astonishingly, for humbling himself before the EU leadership.  Now, for those that know Greeks, they will know that it is never easy for a Greek to humble himself.  In Tsipras' case, he went back to Brussels with hat in hand and took a metaphorical beating from his EU counterparts to get some much needed cash to give Greece a chance (albeit a snowball's chance in Hell) of saving its economy and banking system.  (I can just picture Chancellor Merkel and Finance Minister Schaeuble scolding Tsipras like a little boy who went against mom and dad's orders!)

The net-net is that without a leader who is capable of steering Greece away from its political, legal and economic failures over the last 40-years, the release of the latest tranche from the proposed €86 Billion third bailout fund (assuming a deal is actually reached in the next few weeks) will mean nothing if Greece doesn't change its ways

Greece, the nation-state equivalent of a spoiled-child, has to grow-up by changing politically and legally first so that a real economy – subject to real competition in the EU – can emerge for the long-term good of the country.  This will mean lots of interim pain (years, if not decades) and requires a change in the arrogant, self-entitled, party-like-it's-1999 attitude of the average Greek (which has been facilitated by the state and the courts) – starting right now and not αύριο (i.e. tomorrow), as the Greeks like to say.  Otherwise, the EU is likely to say an official and final Άντε γαμήσου to the Greeks in the next few months. 

Again, although I wish he was here, I am somewhat relieved that my Dad won't have to see his homeland descend into a third world nation.

March 29, 2015 – Vancouver Cop Makes My Point About Cowboy Cops Who Need to be Reigned In

The ink on my March 25, 2015 BLOG (The "Take-Down" Arrest of Laura Liscio and Why Lawyers and Laypeople Should Fear the Police) was barely dry when a YouTube video surfaced showing a Vancouver cop (Sergeant Christiansen (Badge # 1363)) smashing a driver's window during a road side stop – just because the driver would not roll his window all the way down when he was commanded to do so. (By the way, the incident occurred in November 2014 but, the video was only released a few days ago.)  The video illustrates, perfectly, my point that most cops today have a cavalier disregard for the rights of the average citizen who questions them about their policing.  I think I'll call this cop Sergeant Cowboy.

We don't yet have all the facts surrounding this particular road-side stop but, it is not unique.  I chose to BLOG about it because the Laura Liscio incident was still fresh in my mind.  In fact, if you search "cop smashes driver's window" (and similar phrases) in YouTube, there are hundreds of videos showing other cowboy cops doing just that.  And, before I delve further into this issue, let me offer some other thoughts on the type of policing evident in the Sergeant Cowboy video.

Something has got to give.  I don't know how long it will take but, we need to keep shining a light on incidents such as this one, every time one occurs.  And, where possible, the victims need to take action against the cops in issue, their departments or the legislators that turn a blind eye to these types of cops (or departments).  The bottom line is that police forces have to become more accountable for the actions of their members.  In Canada, this means we have to lobby both provincial and federal members of parliament, respectively, to make reforms to the legislation that governs police officers.  If our politicians don't listen to us, then, we have to vote-in ones that are prepared to make those reforms.

As I mentioned in my Laura Liscio BLOG, the pendulum has swung too far in favour of police discretion and we are in danger of regressing to a state of policing that is reminiscent of the former Soviet-bloc countries during the Cold War.  In that era, if you were bold enough (or stupid enough, depending on your perspective) to question a police officer who stopped you on the street or in your car, you could disappear – temporarily or permanently.  The draconian consequences imposed on citizens of those states for speaking out were, of course, specifically intended to discourage any form of dissent towards governmental authority, especially the front line of authority closest to the people: the police. 

In Canada (and in the U.S.), we like to think that the police are there for our protection or safety.  Our federal Government tells us so:

"The role of police in Canadian society

Canadian police help keep people safe and make sure they follow the law. You can ask the police for help in all kinds of situations—if there has been an accident, if someone has stolen something from you, if someone has hurt you, if you see a crime taking place or if someone you know has gone missing.

Federal and provincial police forces

In Canada, federal and provincial governments share law enforcement.

The Royal Canadian Mounted Police (RCMP) enforce federal laws across Canada. They also enforce provincial laws in all provinces and territories except Ontario and Quebec. Ontario and Quebec have their own provincial police forces.

Some municipalities in Canada have their own police forces to help enforce provincial laws.

Cooperate with police

In Canada, you are presumed innocent until proven guilty. If for some reason you are questioned by the police or arrested, do not resist. Speak to the police officer as well as you can and look directly at him or her. Be ready to show some kind of identification.

If the police arrest you, you have the right to know why and to have a lawyer and a translator, if you need one. Do no try to bribe police by offering money, gifts or services. Under Canadian law, bribing police is a serious crime.

The police are there to help you. If you are in an emergency, call 911 or 0 on your telephone and ask the operator to contact police for you."

The above excerpt is from a Canadian government website that explains the role of policing to newcomers: http://www.cic.gc.ca/english/newcomers/before-laws-policing.asp.

But, what is astonishing to me is the first highlighted sentence.  It says that if you are questioned by the police, do not resist.  What???

I thought that, in Canada, I have the right to ask the officer who has stopped me – whether the stop occurred in the street or while in a vehicle – the simple question of: "Why have you stopped me?"  In fact, I am quite sure that I learned this in Criminal Law and Procedure 101 at McGill Law School – over two decades ago.  Look, I'm not a criminal lawyer but, I don't remember losing this right somewhere in the last 25 years. 

If this right still exists, therefore, then why is our federal Government telling us do not resist?  (For the Trekkies reading this, doesn't it remind you of Spock's "Resistance is Futile" comment about the Borgs.  And, for my fellow techies, you may recall this slogan from a 1990s tee-shirt bearing Bill Gates's face – as a parody about the impending world domination by Microsoft.) 

Sadly, I think our Government is telling us exactly what I told you in my Laura Liscio BLOG: when the police tells you to do something, just shut up and do it regardless of the rights you have – because the police can hurt you or kill you with impunity.  In my previous BLOG, I told you I was ashamed to give you this advice and with every new incident I read about, I get more offended that I have to fear the police.  Isn't anyone else offended?

The other sentence that floored me in our Government's message is: Be ready to show some kind of identification.  Again, WTF?  But, let me be clear.  I understand that motor vehicle driving legislation in all provinces requires you to produce your driver's license (and registration and insurance) when you are operating a car and a police officer stops you for an alleged driving offense.  That's reasonable and I don't think most drivers have an issue with that because it's a fair trade-off for being allowed to drive.  (By the way, passengers in a car that has been stopped do nothave to produce identification (absent special circumstances) but, if asked, they do have to identify themselves to the officer.)

The issue I have with the Government's advice – be ready to show some kind of identification – is its application to the man (or woman) on the street who is stopped by the police. 

Again, I thought that, in Canada, one is not obliged to produce identification when walking on the street, although one does have to identify himself (or herself) to a police officer, if asked.  This legal distinction was established in the laws of Western democracies to distinguish themselves from the old Communist countries in which one had to possess (at all times) and produce – upon demand by a police officer – his (or her) papers

The fact that we don't have to carry I.D. when we jog, walk our dogs, or take our kids to the park is supposed to be an important legal reminder that we, in the West, don't live in a police state.

Yeah, right!  What a load of bullshit. 

Forgive my cynicism but, even as a lawyer, I fear every potential interaction with the police when I venture out for a drive in my car – because I have a propensity to question authority when I believe that its representatives are trying to intimidate me.  In other words, I have trouble following the advice I gave you in my Laura Liscio BLOG when some idiot with a badge goes-off on a power trip.  But, thankfully, my self-preservation instinct wins the day – in most instances.

Now, let's get back to the Sergeant Cowboy incident.  As I mentioned above, the facts are not fully known yet and until the case gets fully litigated, we won't know the court-determined facts – which are different than actual facts.  Here's what we do know from the video and the charges laid against the driver:

  1. Sergeant Cowboy (and another officer; see the video) stopped a driver for an apparent motor vehicle violation but, refused to tell the driver what violation was committed (when asked by such driver).
  2. Sergeant Cowboy advised the driver that he was under arrest and demanded that the driver open the door but, refused to tell the driver why he was under arrest.
  3. About one minute into the video, the second cop says that he smelled marijuana in the vehicle which then prompted Sergeant Cowboy to advise the driver to roll down the window all the way or he will smash it.
  4. Sergeant Cowboy smashed the window and the two cops arrested, forcibly, the driver.
  5. The driver was charged with possession of a controlled substance (marijuana), possession for the purpose of trafficking (marijuana), and obstructing justice.

In a CBC news article, a B.C. criminal lawyer who specializes in impaired driving offenses explained that – based on the video – it appeared that the driver's rights were violated because Sergeant Cowboy (and his partner) refused to advise him why he was being stopped and why he was under arrest.  He also explained that there is no obligation to roll down your car window completely when stopped by the police but, that you have to open it enough to produce your license.  (You also have to produce your vehicle's registration and proof of insurance.)

Now here is the scary part for this driver: since there were two cops on the scene, I am betting that their notes will be practically identical and will say that they did the following off-camera (i.e. before the driver started recording): they advised the driver of the reason for the traffic stop; they smelled marijuana in his vehicle and advised him that he was under arrest for suspected DUI and/or possession of marijuana; they had no choice but to smash the window and arrest a suspected DUI driver – to get him off the street.  (On the last point, apparently the driver (according to him) passed the breathalyzer and THC saliva tests.) 

Basically, these two cops have probably synced-up their notes to get around what the video shows.  (As I pointed out in my Laura Liscio BLOG, "cam" evidence does not always rule the day when it comes to police action.)  However, since the time line of events will be very important in this case, time logs showing when Sergeant Cowboy made the stop (through GPS in his police car, his call to dispatch about the stop, or the driver's cellular records) may help the driver in this case.

I think the absolute worse for us, as citizens and drivers, will be if the court that hears this case takes the easy way out by just endorsing what the Vancouver Police Department had to say about it, which was: if drivers don't want their windows smashed, they should just co-operate with the police.  

Talk about cavalier. 

And, for those who don't understand the implications of what the cops are saying, let me translate it using the vernacular:  We don't care what rights you have (or think you have) as a driver, when one of our officers says jump, you say "how high" and if you don't, we can hurt or kill you because we have discretion to do so.

I'm sorry, I just can't accept that in Canada – and maybe I'm just too naïve about how much of a police state we actually live in. 

I am truly hoping that the judge who hears this case sees what I saw in the video: that Sergeant Cowboy acted like a bully who wanted to get his way immediately. 

And, I hope that this judge recognizes an opportunity to set a new standard for roadside stops, perhaps to the following effect: smashing the driver's window will be deemed unnecessary and illegal in all cases absent clear and convincing evidence to the contrary or exigent circumstances.  In this case, all the driver did was ask for his rights to be respected – i.e. for the cop to tell him why he was being stopped.

I guess we'll see how this incident plays out in court but, even if this driver beats the three charges, I doubt it will dissuade other cops from behaving like cowboys in future traffic stops – unless the court hearing this case goes the extra mile.  It takes guts to do what this driver did (while alone in his car at the side of a dark highway) and again, I have to recommend against being so bold (for the reasons already explained in my Laura Liscio BLOG). 

I guess this driver is just lucky he did not end up like Rodney King, Eric Garner or Michael Brown or Sammy Yatim.

March 25, 2015 – The "Take-Down" Arrest of Laura Liscio and Why Lawyers and Laypeople Should Fear the Police

Admittedly, my eyes tend to gravitate towards headlines involving lawyers and back in mid-February (the 12th, to be exact) of this year, I noticed a headline to the following effect, as I scrolled through various news services apps on my phone:  Lawyer Arrested in Peel Region Courtroom in Mid-Trial.  

The headline was about the arrest of Laura Liscio, a female, criminal lawyer, while she was in court, gowned, and in mid-trial. 

For the non-Canadian readers of my BLOG, as a general rule in Canada, a lawyer has to be "gowned" to appear in superior and federal courts – based on court dress traditions that we inherited from our British and French roots.  No fancy colours allowed by the way; just basic black.  The gown is an important symbol in court to identify lawyers as officers of the court

In summary, what happened in this case is that Peel Regional Police Officers (a Northwest suburb of Toronto) stormed into a courtroom, handcuffed, arrested and then perp-walked Liscio (in her gown) out of the courtroom and into a waiting police car.   (Apparently, the only thing missing from their "take-down" style arrest was the "with guns a-blazin" part.) 

And, what was the terrible crime did Liscio allegedly commit that demanded her immediate and physical take-down? 

Apparently, on the morning of February 12, 2015, Liscio inadvertently "smuggled" drugs (marijuana) into the Peel courthouse in clothes that she provided to one of her clients for a court appearance.  The clothes, as it turns out, were given to her by her client's friend and she did not check those clothes.  Her "bad", of course, for not checking the clothes but that doesn't mean that she needed to be arrested in the middle of a trial! 

I had to read the allegation a few times to make sure that I understood it correctly.  But, yes, some half-wit Peel cops used this crime as an excuse to exercise their discretion to storm the courtroom and take-down Liscio before she could slip through a secret door in the courtroom leading to a secret tunnel where Lex Luther was waiting to whisk her away to his lair.  (And, just to be clear for the other half-wits in law enforcement who may read this and think that she was actually trying to flee, I am exercising literary hyperbole in my last sentence.  Sorry about the big words.

Liscio was charged with possession of a controlled substance (marijuana), possession (of marijuana) for the purpose of trafficking, obstructing justice, and breach of trust.  The last two charges have been dropped and the possession and trafficking charges are pending (as of the date of this BLOG) but, I am predicting that these will also be dropped at some point before trial – when enough time has passed for the Peel police force to save face. (I will have more to say about the "obstructing justice" charge below because it is a very broad license for any police officer to use to intimidate anyone who interacts with him (or her) in a way that doesn't please the officer.) 

Reaction from fellow lawyers was swift and the consensus is that the manner of the arrest was totally unnecessary and unjustified.  I mean, really, there wasn't anything close to "exigent circumstances" in this case and yet, somehow, the Peel cops in issue felt the need to take down this lawyer in open court, in mid-trial.  I know that various lawyers have weighed in with their concerns and I think that the Toronto Lawyers Association has called for an inquiry.  Well, I want to make sure to add my voice to their concerns by memorializing what happened to Liscio in my BLOG as a lesson for lawyers and laypeople about how they should respect but, also (sadly) fear the police – because one interaction with them can change your life forever, for the worse.  I can only imagine how devastating it must have been for Liscio to be subjected to an arrest that would have been befitting of a known criminal with a history of fleeing.  I was mortified when I read about it and I still feel for her today.

I also want to take the opportunity to say that if we, as lawyers, can be subjected to such arbitrary and capricious actions by police, in a courtroom no less, then, the ordinary citizen doesn't stand a chance in any other interactions with the police, wherever they occur – and that should frighten all of us.

In this case, it is my opinion that the Peel police used the situation to send a message to lawyers – and anyone else who reads the papers – that they can take down anyone, at any time, in any place, and in any manner they see fit.  And, there is nothing that we, as lawyers, can do about it – except after the fact.  I am sure that nothing serious will happen to the half-wit Peel cops who exercised their discretion to take down Liscio in open court.  Most cops probably look at this situation in one way, as follows:  the Peel cops were only doing their duty and physical restraint is standard operating procedure in an arrest.  Well, I'm calling B.S. on both.  There are many situations where a suspect who will be charged is allowed to surrender himself or herself to the police.  And, no matter who you are in this case, you are a fool if you are going to argue that Liscio needed to be arrested on the spot and in the manner executed.  There are several ways in which this situation could have transpired but, I'll give you just a simple one.  The Peel police could have informed the prosecutor's office – which is located in the Peel courthouse – about the circumstances involving the marijuana that was concealed in the clothes that Liscio brought to her client and told the prosecutor in charge that they intended to arrest Liscio.  The prosecutor could have then passed a note to Liscio in the courtroom in which she was litigating to advise her that he needed to speak with her after her trial or during a recess about something urgent.  At that meeting, the prosecutor could have informed her of the situation and arranged for Liscio to "surrender" to the police and be charged – which could have spared her the humiliation of the mid-trial, open-court take-down. 

This is why I maintain that the Peel police were making a statement on the day in question which was: "#%$& the gown" (and, perhaps, all lawyers in general).

And, because nothing will happen to the cops involved, they can and will do it again – and perhaps kill someone in the process.  (Oh wait, this happens all the time – as noted later in this BLOG.) 

The problem is, in my view, that the actions of Peel police are symptomatic of the general culture of all other police forces in the GTA. 

And, for that matter, if you have been paying attention to police practices across Canada and the U.S., a common theme will emerge:  they can do whatever they want – even kill – with immunity, as long as they were exercising reasonable discretion in their capacity as a police officer

I know that this is nothing really new but, the arrest of Liscio made me realize how one's life can change so quickly because of the discretion afforded to police officers and I think that the pendulum has swung too far in their favour.  I hope something will change about it but, I doubt it.

Liscio's arrest also made me think back to my interactions with police officers over the years for simple traffic-related offenses.  By far, the most life-threatening encounter I have ever had was when my friend and I were stopped for speeding in South Carolina on I95 on a drive back from Florida in June 1991. 

My friend was driving my car (a 1985 VW GTI) and we were using a radar detector – and apparently not a good one – because it didn't give us enough lead time about a speed trap ahead of us.  As the state trooper lit-up the cherries and pulled out on the highway to pursue us, I asked my friend to hesitate a bit before pulling over so I could grab the radar detector from the dashboard and hide it under my seat (not realizing that it was legal to use in that state). 

When we pulled over and stopped, the state trooper emerged from his cruiser with his gun drawn and screamed at us to get out of the car, go to the hood, lock our fingers in our hands behind our heads and bend down on the hood.  (I know, I know, you're humming the banjo music from Deliverance right about now but, don't be so dramatic and read on.)   As we complied with his directive to stay bent down on the hood, he came up to us and patted us down with his non-trigger hand.  He then went to the passenger side of the car (with one hand still on his drawn gun) and searched it while poking his head up over the passenger door sill every two seconds to watch us. 

When he found the radar detector under the seat, he lifted it up and screamed "Is this what you were hiding?" I hesitated a bit and then said yes, sheepishly.  He holstered his gun and came to the front and asked us to turn around and face him.  He told us that what I did (i.e. grabbing the detector from the dash and putting it under my seat) looked a lot like the act of hiding a gun from his vantage point as he pursued our car to pull us over. 

He said that we were lucky we were white (I'm not kidding) and also said that we could have easily been shot if we hadn't immediately complied with his directives.  I was a bit insulted that the trooper could tell I was Caucasian through what I thought was a deep and dark Florida tan but, since I was scared shitless, my face was probably ghostly-white at the time.  (I think he took pity on us because he didn't give us a ticket.) 

In retrospect, I think back to what he said: we could have easily been shot – if we hesitated to execute his instructions when he exited the car with his gun drawn. 

So, what's the point of my story? 

Well, there are two points: first, make sure you're white if you are going to speed in South Carolina (again, for the not-so-swift law enforcement types, I'm being sarcastic to make a point) and, second, don't question, in the moment, anyone who can kill you and basically say "Oops, I'm sorry (even though I may do it again)" and get away with it.

Since that scary encounter, I have been stopped a few times for speeding and if I dare to identify myself as a lawyer to the police officer who stopped me and say that I'd like to ask him a few questions on the record about the alleged speeding, his (or her) manner changes immediately.  Invariably, he (or she) becomes aggressive with me and tells me that if I don't hand over my license and registration immediately, I can (and, the implication is, will) be arrested for failure to produce these documents and for "obstructing justice"

Yes, the latter charge is the ubiquitous, cop-favourite, ambiguous, universal tool given to police to threaten you with imminent physical force and confinement if you don't do (immediately) what they tell you to do.  In the case of police-lawyer interactions, it seems to me (based on my experiences) that police relish opportunities to take lawyers down – in whatever context they can. The bottom line is you can't win the moment with a cop without great personal risk

So, if you are alone, in a car, at the side of a highway, at night, don't be a smart ass and give the officer who stopped you any reason to do something stupid – because he (or she) can justify whatever actions he (or she) decided to take – regardless of any dash cams, body cams or any other type of cams. 

As we know from a July 2014 incident in New York City, a phone-cam video showing an illegal choke-hold by a cop on Eric Garner was not enough to charge the officer for Garner's death – even though you can hear Garner gurgling the phrase "I can't breathe" (or something to this effect) as he passed-out.  In Garner's case, he was agitated and did not comply with the immediate directive given to him but, he wasn't being violent.  Nevertheless, the cops swarmed him and choked-him out.  (For those old enough to remember the Rodney King beating by L.A. cops in 1991, it was immediately apparent that police forces haven't changed much in over two decades.)  In this case, the NYC cops involved in Garner's killing didn't have the courtesy to wait-out the situation a bit, let Garner calm down and talk him into coming in with them peacefully.  There is no doubt in my mind that if they just exercised some compassion, understanding and their psychological training in the situation, Garner's life would have been spared.  Instead, they took down an unarmed man – and killed him in the process – because they didn't want to take the time to do realcommunity police work, which is what was called-for in the circumstances.  Garner's death is tragic and it will occur again in today's police culture.  Time Magazine (an online version of it) did an interview with the person who recorded the Garner killing on his phone – which is a must watch for those who want to understand the kill first and justify it later attitude of today's police officers. 

There are so many other recent examples of cops disrespecting human life (that can fill several pages in this BLOG) but, I think I have made my point.  

And, after a lot of debate with my lawyer and non-lawyer friends (and some ex-law enforcement, cop-apologist types), the best advice I can give you for interacting with the police is: be afraid of the police and shut‑up and take their bullshit in the moment so you can live to fight another day, in another venue.  

I am actually a bit ashamed to give you this advice because sometimes it's just not right to allow the police to humiliate you but, as a law professor once told me, the case law is replete with examples of people who were right and dead from the same incident. 

Finally, I know that if this BLOG makes the rounds in cop circles in the GTA, there is no chance in Hell that I am ever going to get a break on another speeding ticket.  I accept that as the price of speaking out - so long as cops don't take any other action to teach me a lesson about calling them out.  If something does happen to me at the hands of a cop, I am hoping that my fellow lawyers speak-out about it.

March 16, 2015 – WIND Mobile "Experiment" Update

Back in August 2014, I wrote a BLOG about my switch from Rogers mobile to WIND mobile – after concluding that BELL or TELUS did not offer a substantially different alternative to Rogers.  And, what I mean by this is that our three major wireless providers seem to have a coincidentally similar pricing model: a similar base-price for Canada-wide voice, text and a set-amount of data service with variable costs for roaming in the U.S. and for long distance calls made to the U.S. and for various other things for which WIND does not charge. 

When I mentioned to friends and business associates that I had switched to WIND, they laughed because it seems to be known as the network of choice for the non one-percenters.  I told them it was my form of protest against the man (or the men, in this case) – for taking advantage of their dominant position in the market.  They gave my experiment less than six months.

Well, I am sad to report that after 10 months on the WIND network, I switched back to one of the majors.  And, I am so disappointed that I gave-up on WIND that I am not going to tell you which cartel member I ran back to (but, it was not Rogers).  What drove me back to the cartel was the current inferiority of the WIND network in terms of poor quality voice calls, slow data speeds (both ways) and the roaming charges when driving outside of the GTA (like to a hockey arena in Woodbridge or friend's boat in Keswick) and when visiting my family in Montreal.  Ironically, all of these issues went away whenever I travelled to the U.S. because of the absolutely no-cost U.S. roaming feature of WIND – which included unlimited data.  (To be clear, the issues went away because WIND's roaming partners – AT&T and T-Mobile – have mature wireless networks in the U.S.)

When I first did my due diligence on WIND in April 2014, I knew there were issues with the service but, I also had faith that Anthony Lacavera (the CEO) would make WIND into a truly viable alternative to the cartel within a year.  Yes, I know that I gave in after only 10 months but, it was just too frustrating to stay with WIND even one day later than when I pulled the trigger (on February 26, 2015).  Just recently, I saw an interview on The Exchange with Amanda Lang (on CBC) between Lacavera and a substitute host and although I was encouraged by the purchase of additional spectrum by WIND, I also realized that it does not seem to have the capital needed to exploit its increased bandwidth in the immediate term (say 3 – 6 months).  (By the way, my conclusion of WIND's capital is only based on Lacavera's dodge of certain questions by the CBC host on the issue of the timeline for the build-out.)  

Using a highway analogy, even though WIND just secured the rights of way to build a super-highway, it doesn't seem to have money left over to build the highway to a point where traffic can traverse it safely and speedily.  Now, if WIND gets there in the next year (or so) and maintains its current pricing model after the build-out, then, I will switch back.  I suspect others will too – unless the cartel matches WIND's pricing.

For now, having switched back to a cartel member, the quality and speed of my current provider is stark when compared to WIND.  But, my monthly mobile cost has doubled - and that's just for service within Canada.  When I travel to the U.S., I have to buy a voice and text package and a separate data package – neither of which are unlimited.  This means that during the months in which I travel to the U.S., my monthly mobile costs can be triple or quadruple of what I was paying with WIND. 

Obviously, the cartel knows that the WIND service in Canada can't compete (yet) and that most business people, regardless of how frequently they travel to the U.S., can't live with the inferior service in Canada.  I am a case-in-point and I suspect that most business people who tried WIND had the same experience as me and switched back.

For now, I say well-played cartel, well-played.

February 25, 2015 - Bearing Witness to Sergei Magnitsky's Fight for the Rule of Law and Justice

Today, I just finished reading a book called Red Notice by Bill Browder, an investment banker and hedge fund manager who was the largest foreign investor in Russia before the Putin regime expelled him in November 2005 as a "threat to national security"- which we now know was a bald-face lie. 

Browder is not your typical i-banker (like they like to call themselves) or, to be more precise, he did not end up as most do: perpetually money-hungry and oblivious to the life of anyone who is not a multi-millionaire.  Browder's fund made and lost and made again hundreds of millions of dollars for his investors (at one point losing $900 million before rebounding to a value of about $4.5 billion) in a span of 10 years in Russia. 

In the process, he has made lifelong enemies of very powerful people in the Putin regime and, it is believed, Putin himself.  (Ominously, Putin actually mentioned Browder by name in a 2012 press conference which, in my mind, means that Browder will have to live the rest of his life looking over his shoulder.)  By Browder's own account, what changed his life and transformed him into a human rights activist was the torture and murder of a Russian tax lawyer named Sergei Magnitsky, who (along with other lawyers) was helping Browder expose a $230 Million tax refund scam perpetrated on the Russian people by members of the Russian Interior Ministry. 

This BLOG is about the importance of bearing witness to Sergei Magnitsky's fight for the Rule of Law and his refusal to bear false witness against Browder, which would have (probably) spared his life.  

When I was in law school at McGill University (1987-1991), I had the honour of being taught constitutional law by a professor named Irwin Cotler.  Professor Cotler was part of an international effort that got Natan Sharansky (a Soviet dissident) freed from a Russian Gulag in 1986.  Sharansky visited McGill as a guest speaker thanks to Cotler, who also got Elie Wiesel to speak at one of our human rights conferences.  Cotler was known at McGill as the disheveled, activist law professor – and he was great for our school.  I didn't know it then but, it is obvious to me now that Cotler, Sharansky and Wiesel were very important in instilling in me the importance of the Rule of Law and bearing witness to injustices.

These are things we take for granted in a country like Canada and certainly, on my part, following graduation, I followed most of my fellow classmates (like a dutiful little sheep) into a corporate practice in Toronto, which has morphed into my tech law practice of today.  And, it has been a relatively good 25 years.  Like most people, I have had my personal and professional ups and downs but, compared to legal heroes like Sergei Magnitsky, I consider myself an abject failure when it comes to honouring my legal education.  Yes, I took an easy route and sometimes, that makes me ashamed.

Oh sure, I do remember instances in the course of my career where the phrase Rule of Law resonated with me and I have, occasionally, remembered to bear witness.  I actually went out of my way (slightly) to visit a historically significant site when I attended and spoke at a conference in Salzburg, Austria in 2002.  My wife and I drove to Munich, Germany because the drive through the Alps was breathtaking and when we got there, I knew that the Dachau Concentration Camp was a short drive from the city center (about 10 or so kilometers).  Out of a sense of obligation to my Jewish friends, I do remember feeling compelled to bear witness to an ugly part of world history by visiting the remnants of the camp.  It is one thing to read about these places but, if you actually go to one, I am sure that it will have a lasting impression on you.  It did on me. 

But, apart from few and far between concerns for the human condition, the vagaries of a corporate legal practice and life itself (marriage, kids, and typical family problems) dulled my senses to causes that seemed so noble and important back in law school.  I suppose that my life is typical of many lawyers in my graduating class of 1991, but, in fairness to my classmates, many did go on to do way more significant things than I did using their legal training – and I am always a bit envious of them when I read about their careers in our alumni magazine.

Every so often, however, something touches you and triggers your moral legal compass to guide you to do something about it.  Look, I am not a totally self-centred lawyer focused on maximizing profits and I have given back to my extended family, friends and my community but, I am not and never will be a Cotler, for example.  It's just not me.  But, in reading about Sergei Magnitsky in Browder's book, I felt compelled to speak out about it.  (Yes, I will keep repeating Sergei's full name until it becomes engrained in the mind of every person who reads this BLOG.)  I like to think I am very much attuned to current events and I am somewhat of a news junkie – especially about political intrigue events around the world – but, I missed this event when it was happening and I am trying to do my part now to make sure that Sergei Magnitsky is never forgotten.

From the accounts of his life that I have read, Sergei Magnitsky was a gentle soul, a good father and husband, and he loved and believed in his country dearly.  He also believed (with the naiveté of a true believer) that the Rule of Law would protect him because he was innocent.  He refused to bear false witness to cover up the $230 Million tax refund fraud perpetrated by members of the bureaucracy of Putin's government – even after being imprisoned, deprived of seeing his family and friends, tortured and eventually beaten to death on November 16, 2009.  In several passages in Browder's book, it describes how adamant Sergei was about not leaving Russia when it was obvious to everyone else around him that Putin's henchmen were going to have him arrested imminently.  (In fact, Browder convinced two other lawyers on his legal team to leave Russia hours before Putin's thugs stormed their homes looking to arrest them and intimidate them into bearing false witness against Browder.) 

Now, I have purposely not inserted any links to Sergei Magnitsky because I want you, the reader, to take the time to look him up and read everything you can about him.  If you are a lawyer in any country of the world, you owe this much to him.  He died for a cause – the Rule of Law – that we don't really understand and can't appreciate until our freedom is at stake.   I did a lot of soul-searching as I read about what Sergei Magnitsky endured and I just don't know whether I would have been as brave or resolute as he was in withstanding the psychological and physical torture described.  I hope I never have to (and again, I feel a bit ashamed just saying that).

When writing this BLOG and deciding to publish it, I wondered (and still wonder) whether I am taking a personal risk in doing so.  Maybe, but I have never been shy about speaking out against wrongs and if Bill Browder, a member of the most ruthless profession of our capitalist system that produces some epic slimebags (think of Richard Fuld) can risk his life by publishing Red Notice and spending a vast amount of his wealth to expose the corruption of the Putin regime for the sake of honouring Sergei Magnitsky, then, surely, I can say a few words in his honour.

And with this BLOG, I am challenging all lawyers everywhere in the world to write your own BLOGs about what Sergei Magnitsky means to you and to post it on your websites. 

Look, it's the least that we, as lawyers, can do for him and honour what he stood for against a Russian regime that history will reveal as more evil than Stalin's.  Yes, it is commonly accepted that Stalin killed an estimated 20 million Russians but, he did so out of a warped sense of communism and not, hubris and greed. 

Browder estimates that prior to the fall of the communist regime in 1991, the wealth disparity ratio between Politburo members (and their cronies) vis-à-vis ordinary Russian citizens was about 6:1.  Under Putin, the ratio is orders of magnitude more disparate (hundreds and maybe thousands to one) and Putin himself, according to Browder, has a stash of about $200 billion – which is an abomination of his public office. 

Knowing what I have learned from Browder's book and being a witness to world events unfold as they have during Putin's regime, I truly believe that we are witnessing the reign of a man that would rather see the destruction of the world than ever admit any sign of weakness or defeat. 

I hope history proves me wrong but, please, in the meantime, take the time to honour Sergei Magnitsky.

August 21, 2014 – Switched to WIND Mobile's $39 Unlimited Plan and Loving It

I was a Rogers wireless customer for 20 years until I recently switched to WIND Mobile, Canada's 4th largest wireless provider (by subscriber) after the 3 majors (as of the date of this BLOG).  More on WIND in a bit but, first, the back story about why I left Rogers.

I still remember the Rogers/Cantel store (as it was then branded) in the concourse level of the TD Centre where I bought my first phone (a Nokia brick) and signed my first wireless contract.  (Ah yes, it was June 1994 and I was thrilled to have a mobile phone that could fit in my suit pocket.  At the time, I worked for Fasken Campbell Godfrey (as it then was) as a newbie associate, not yet jaded and cynical from the practice.  I still remember walking up and down Bay Street talking on my phone – which was very expensive back then.)   For the 20 years that followed, I stuck it out with Rogers, despite crappy customer service more often than not and all the periodic billing surprises.

In recent years, as my kids grew up (three of them), and "demanded" cell phones, we went from two plans to 4 and now 5.  In addition to our Rogers wireless accounts we had, we also have our cable (some fancy VIP Package) and our hi-speed internet with Rogers.  Yes, I was a dream customer for Rogers from a non-business "revenue per customer" perspective – until recently.

In terms of cell phone use, I would say that we – as a family – are moderate users of voice, text and data and we encourage the kids to leverage our home WiFi or public WiFi, where possible.  The latter doesn't always pan out and we have to "suspend" their phones on occasion, to get our point across, when they exceed their data usage limit.  Still, even with our moderate use, our bills in the last few years have been growing.  Because I have had to travel to the U.S. often for my practice, I had and still have to constantly arrange to get a U.S. travel plan.   

Nowadays it's easier but, just a few years ago, you had to call and you were basically at the mercy of a customer service representative who, oftentimes, did not know or could not find the right "package" for you.  At one point a few years ago, after getting a bill for something like $750 following a longish U.S. business trip, I got so fed up that I actually arranged for another Rogers plan where I did not have to worry about roaming in the U.S.  The trade-off: my monthly plan rate was something like $350!  Ridiculous right?  Well, it was better than getting a surprise Rogers cell bill. 

During the last SuperBowl (i.e. in January 2014), however, I noticed an ad by WIND Mobile for an "unlimited" plan for CAD $39 (the "WIND 39 Plan").  I did not think much of it at the time but, it did stay in the back of my mind.  And, it seemed to "pop-up" into my short-term memory bank whenever I got a Rogers wireless bill.  Well, this past May, Rogers' customer service reps pissed me off so much that I decided to investigate the this plan. 

I did most of my research online and anyone with even half-a-brain knows that you can't believe everything you read – especially on the Internet. You have to be careful not to believe false things that are repeated online and then go viral.  Like anything, you just have to do your due diligence.

Side Bar about Nasty Falsehoods on the Internet

Hey, I should know about false, viral BS on the Internet.  I have been the victim of a nasty online smear campaign that people still ask me about, on occasion. 

The people who know me (or who get to know me) realize that the negative press that I received for representing 15 kids on a hockey team that were being cheated out of a good team experience by a corrupt manager and her spoiled-brat daughter was uncalled for. 

Many people ask me why I don't get Google or other search engines to take down some of the vile and false articles written about me.  Well, it's because I believe in a person's right – even an ignoramus' right – to express herself or himself.  My side of the story is set out, point-by-point, in my BLOG.  Intelligent people always investigate both sides of an issue before passing judgment.  And, as for the masses that believe everything they read about a person on the Internet, that group and their opinions do not matter to me.  I believe in doing what's right and, as a lawyer, I sometimes have to take an unpopular standpoint on certain issues and be an advocate for them.  It's what I (and many lawyers) do, I am good at it, and I make no apologies for it.  

If I ever feel that the negative BS online is hurting me in any way, I'll take action.  For now, I prefer to leave this stuff out there as a teaching tool and cautionary tale about the Internet for my kids, nephews, friends, etc.  At the very least, the online stuff about me makes for a great conversation starter!  But, I digress.

Well, after reading through the fine print of the WIND 39 Plan and pages and pages of commentary on WIND Mobile on blogs, forums, and the like (both good and bad), I decided to go to a store and "cross-examine" a sales rep about this plan.

It's quite simple: you get unlimited voice, text and data anywhere on the WIND Mobile network in Canada - and also anywhere in the U.S.  Yes, you heard me right, anywhere in the U.S (and I'll speak more on this below).  All for CAD $39 per month.  I really thought that this was a gimmick and that this plan would lead to the usual "surprise" bill, like the one you get every so often from one of the major wireless players in Canada (i.e. the Rogers-Bell-Telus cartel – and by cartel, I mean a bunch of swell companies that, coincidentally, have substantially similar pricing models for their wireless plans, none of which include an unlimited plan – as at the date of this BLOG).  I should know because I called each one and I asked (begged, practically) each to offer me something reasonably similar to the WIND 39 Plan.  With Rogers, I even said that I was willing to pay a reasonable premium for the (ahem) privilege of staying on its network.  Jokingly, I gave Rogers 60 days to come up with a competitive plan or lose me as a customer.  Well, they didn't and I followed through: as of July 28, 2014, they lost me as a wireless customer.

Anyway, back to WIND.  In May, I signed-up for a new number on the WIND 39 Plan.  (By the way, I use an unlocked iPhone 5S and although WIND does not offer this phone for sale, you get reasonable support from the help desk for set-up and technical issues.)  At this point, I kept my Rogers number and plan – because I wanted to test out the WIND service to see if I could live with some of its limitations (and it does have some, as explained below). 

I tested it briefly in my home area of Thornhill and coverage was OK – not great – but, in fairness to WIND, my signal strength with Rogers in this area absolutely sucks (to use a very technical term)!  But, the real test remained: how would it work in the U.S.  I had a mini-getaway trip to Fort Lauderdale planned and I popped the SIM into my iPhone when I landed at FLL and, within a short delay, there it was: service from AT&T.  (By the way, I think that WIND has roaming deals with two U.S. wireless providers:  AT&T and T-Mobile; so far, these are the only providers that have been displayed on my phone in Florida and New York.)  Reception was great but, I noticed that my data was not working.  I knew there was a technical issue but, it was not something I could solve without support from WIND.

So, while I munched on a Chinese Chicken Salad at the Cheesecake Factory on Las Olas Blvd, I was on the phone with WIND getting the configuration settings for the Cellular Data, MMS and Personal Hotspot fields for my iPhone.  (If you are not technically inclined, you might find this a bit confusing but, it really is a pretty simple step-by-step process and it helps to have a pen and paper handy – to jot down the "code" to enter into those fields, rather than attempt to do it live while on the line with WIND technical support.)  After doing this, my data was online and functioning perfectly.  Actually, it was faster than the actual WIND Mobile network in Canada (and there's a reason for that, which I address below).  While in Fort Lauderdale, I did not hold back.  I purposely watched YouTube videos and CNN and CBC news videos, surfed other sites and called and texted home as often as I could. 

I was fully prepared to return to Canada and "litigate" my next WIND bill – because I was sure that there was something I missed in the contract and that I would end up with a huge bill from my U.S. usage. 

But, to my delight, there were no extra charges. Nothing.  Nada. Just the $39. 

Unbelievable but, there it was in black and white.  Well, at this point, I was sold on porting-over my cell number (which I've had for over a decade) to the WIND 39 Plan.  I also ported-over my oldest son's number on that same plan.  My only regret was not porting-over my spouse's and my other two kids' numbers.  They stayed with Rogers because it was too expensive to cancel their lines at the time; but, as soon as it makes good economic sense, it's a done deal.

Now for some of the bad news.  WIND has some ways to go before its get to the speed of the Rogers (or Telus or Bell) network.  There are some dead zones that I have encountered in and around Thornhill and sometimes my phone indicates "No Service" briefly.  It comes back right away but, it's annoying.  And, I do find that the data download and upload speeds are slower.  The reason is that WIND has a small proprietary network – mainly in Ontario.  (If you are really curious about its network, including the technical aspects – such as the AWS spectrum that it uses – then here is one source: http://en.wikipedia.org/wiki/Wind_Mobile).   The recent press that I have read about WIND is that it needs cash to build out its LTE network.  (I really wish that foreign ownership limits would be relaxed so that a big U.S. or global wireless company could buy WIND outright or a big piece of it.  I bet this would get the cartel's attention.)  The bottom line for me is the following: in my area and in downtown Toronto and practically everywhere in the U.S. (see the U.S. coverage map on WIND's website), it works fine!

Look, if you live in Toronto and travel often to the U.S., you are crazy if you don't switch.  You will save thousands of dollars in the long run and be one of the catalysts that gets Rogers, and Bell and Telus to offer unlimited plans. 

August 17, 2014 - My Post-2013 NHL Lock-Out Prediction About Gary Bettman: I Was Flat Wrong.

During the last NHL lock-out (which ended on January 7, 2013), I published an article about who "won" and what the short-term future held for Gary Bettman, the current NHL Commissioner. 

I believe in self-accountability and so I wanted to say a few words about my prediction.

Now, before dealing with the main issue, let me remind everyone that on the question of who "won" – the players or the league – the jury is still out and my perspective is that, in terms of bringing financial stability to the NHL squads and helping protect the owners from themselves (i.e. from signing stupid contracts like the infamous former contract between Roberto Luongo and the Canucks), we should know by the end of year 5 (January 2018) where the league stands. 

And to Bettman's credit in this regard, he did not rest on signing a 10-year CBA which, alone, was impressive.  He followed that up with a huge Canadian TV deal with SportsNet (a Rogers network) in November 2013 which adds CAD $5.2 B over the next 12-years.  This deal adds a nice-sized, long-term revenue-stream, which should balance the playing-field – assuming the pie is split equitably – between the small‑market teams and their license-to-print-money counterparts in the big hockey markets. 

Still, however, the NHL – despite how much I and most Canadians love hockey – remains well-behind the other three major US‑based sports leagues in terms of league revenues, brand recognition and viewership.  And, as if that weren't bad enough, the MLS (in the wake of the recently-ended FIFA World Cup) may soon pass the NHL in popularity as futbol (or soccer to most North Americans) gains in popularity here and stateside. 

Now, switching back to the main issue, I predicted that Bettman would resign shortly after the lock-out ended because of his extreme unpopularity among players and hockey fans.  I figured that although he had done a good job for the owners over two decades, he had also used up a lot of political capital and was too divisive a personality in the NHL to stay-on too much longer following the signing of the 10-year CBA (signed in January 2013). 

Well, let me say, clearly and unequivocally, that I was flat wrong. Period. End of story. 

I underestimated two things: the old adage that "money talks" and Bettman's enduring political power within the NHL Board of Governors.   

It is now pretty clear that as long as the core markets are making good money, it doesn't really matter if the league shrinks a bit in the next few years to, say, 26 or 24 teams.  I don't think the Board members who matter really care about losing a few teams – although there are probably NHL advertising / sponsorship contracts and rights deals that are dependent on the league maintaining a certain minimum number of teams. (Well, I really hope the NHL lawyers who negotiated the TV deal built in some shrinkage cushion.) 

The net-net is that that Bettman is as powerful as his counterparts in the other three major sports leagues (if not more so) and Bettman will retire when Bettman is good and ready (and not a minute before). 

For those of us who hoped that he would be replaced by a true "hockey guy" who understands and appreciates the Game better – and does not come off as phony when he talks about hockey on TV – I think it's time for a reality check: it's about the cash, stupid (with apologies to President Clinton and James Carville for modifying their famous phrase to make my point.)

And make no mistake, Bettman has proven himself when it comes to making cash for most of the NHL owners – by dramatically increasing league revenues during his tenure.  And, as mentioned before, money totally trumps the perception (or reality, depending on who you talk to) that Bettman has not really done much in terms of the non-financial aspects of the Game. 

Side-Bar on Fighting in the NHL

In terms of not improving the Game, let's look at fighting. 

The fact that fighting is still permitted under current NHL rules evokes utter incredulity whenever I discuss this issue with non-hockey folks.  I quickly counter their disbelief by saying that diving in professional soccer – I mean futbol dammit – is equally as bad, if not worse.  Now, I keep talking but, as my nose starts growing, even before the last the word of my counter-argument leaves my mouth, I lose all credibility. 

By far, the most common question I get from non-hockey folks is whether fighting in hockey is like "American-wrestling".  Although I assure them that the WWE and the NHL are actually not affiliated, they snicker at my seriousness about this topic.  

I then proceed to explain that allowing fighting in hockey serves as an outlet to prevent other forms of violence in the game (like stick-swinging) to which they say "Why don't you just ban players for stick-swinging or kicking or for whatever other egregious fouls they commit – instead of allowing fighting?" 

What??? The gall of these people to suggest such logical nonsense!  

As I continue to defend the pugilistic aspects of the Game by repeating the arguments that I have read and memorized over the years, I can hear a voice of doubt in my head about what I atest.aspxm saying. 

Yeah, it really is hard to keep defending fighting in the modern Game. 

Let's compare it to all the clutching and grabbing that slowed down the Game in the Gretzky and Lemieux eras.  Those tactics made for ugly hockey but, despite complaints by the two greatest players at the time, it was only after they retired that the league changed the rules.   In the last few years, when "inadvertent interference" was also eliminated, the speed and quality of the game improved immensely.  If you don't believe me, then watch video from the last time the Montreal Canadiens won the cup in 1993 (and yes, I am a Habs fan) and the Stanley Cup Finals of the last two or three years.  If you do so, it will be patently obvious to you that speed and skill have flourished under simple but key rule changes. 

Secretly, and although I would never bring this up with Don Cherry if I ever meet him on the street, I think it's high-time for fighting in the NHL to be given a perpetual major penalty.  But, I digress.

Getting back to Bettman, despite all the parodies of him and his struggles to look and sound like he actually likes the Game, he has done a good – arguably great – job as NHL Commissioner over his tenure (21 years as of February 2014 and counting). 

Look, don't take my word for it:  he was named Sportsman of the Year in May 2014 by two sports business journals – so it's pretty clear that the bean-counters have won yet another battle when it comes to professional sports.  Like I said, money talks.

In the meantime, it really sucks to be wrong but, life goes on and I am officially ending my Gary Bettman as NHL Commissioner deathwatch.

January 7, 2013 - End of the 2012 NHL Lockout: Who Won and What Happens to Bettman?

So, who won the 2012 NHL lockout? 

A poll shown on the early edition of TSN's SportsCentre this morning showed that 66% of those polled (no indication of how big the poll was and whether it was scientific) believed that the NHL had won. My only surprise is that this percentage was not 99% (excluding, of course, the village idiot). 

It should be obvious to anyone following the lockout that any changes to the 2005 CBA were going to be seen as a "victory" for the NHL (except, perhaps, for the pension issue) given that the NHLPA had done so well under this agreement (e.g. through loopholes or by the unexpected consequences of the old revenue sharing formula).

But, is this really a victory for the NHL? 

Well, in my view, the most accurate answer at this point is "We'll see in about five years". 

Why do I say five years? Well, consider that the there are some "artificial" tweaks that have been agreed to for the first two years of the new 2013 CBA to smooth-out the effects of the transition between the old and the new deal. This is pretty-normal and expected, which leaves us with about three years to determine how creative the clubs' GM's (and their lawyers) can be regarding finding new loopholes in the letter of the 2013 CBA. By the end of year five, we should have a good indication whether the new regime is good or bad for the NHL – in terms of the long term health of the league. Now, assuming for a moment that we still have the same problems in the league five years from now as we do today – i.e. about 18 teams losing money – at least the two sides will have three years left to think about how to fix the problems before the eight-year off-ramp kicks-in. With this amount of lead time, I am cautiously optimistic that even these two parties will avoid another lockout! 

As we enter the new era of labour peace, you have to keep in mind that the biggest (unstated) issue for Bettman regarding the new 2013 CBA was to try to protect the owners from themselves (again) – by creating artificial contracting limitations – to prevent the "Haves" from exploiting the "Have Nots".  The case in point in professional sports in the US is MLB and the New York Yankees. As we have seen, throwing obscene amounts of money to create a super team is not an absolute guarantee of ultimate success every year but, it's pretty damn close. Even when the Yankees don't win it all, they are competitive and they keep and expand their fan base every year. Internationally, the example is Manchester United of the EPL. And, although this team is carrying too much debt right now, I am sure that the financial advisors to the Glazers know that with a continuing winning brand, they will improve the financial picture in the medium term.

Let's face it, if the NHL had gone with a MLB-style luxury-tax system in 2005, then, there would be just 4 or 5 competitive teams and the owners would have ended-up cannibalizing their league down to about 20-22 teams, which would have resulted in a lot less NHL games to broadcast. The reason why Bettman has struggled to hold on to the magic number of 30 is so that he can maintain a big enough TV deal for the NHL, (which, incidentally, is embarrassingly small in comparison to the other major sports league in the U.S.).

Let's compare. The only reason the MLB's system works is because the "small-market" teams get a big enough share of a gigantic TV-deal that keeps them viable. And, don't forget that "small market" is relative; when you're talking MLB vis-à-vis the NHL, you're talking about a grapefruits (pun intended) to cherries comparison, respectively.   The same can be said of the small market teams in the two other major US-based leagues – the NFL and the NBA. Whether we, as Canadians, want to admit it, hockey is still a fringe sport south of, say, St. Louis – with a notable exception being the L.A. Kings (maybe). The net-net is that the TV deal revenue for a small market team in the NHL (about $6M currently) is a fraction of what the teams in the other major leagues get from their deals. In addition, the small market teams in the MLB, NFL and NBA are way more popular than their NHL counterparts, which means a lot less merchandising revenue for the latter.  (Can you now understand why Bettman and Daly negotiated as they did during this lockout? If not, well, just stick to watching hockey on TV with your beers and nachos close by.)

So, to reiterate my point again, only time will tell if Bettman's legacy will reflect that he finally got the right CBA (after 3 divisive labour disputes) for the long term health and viability of the Game.

This segues nicely into my next question, which is: "What now for Gary?"

Well, as I said in an earlier article, I think it's time for Bettman to "retire" – which would coincide nicely with his 20th anniversary as Commissioner. If the owners cannot recognize the big red flag that is pointing to a need for a change, then, it is clear that they have more money than brains or business-sense. Look, throw him a big party, applaud his financial skills, give him a good transition period (6-12 months) but, get him the hell outta there. 

As I have stated in a prior article, I think Bettman is about 50-50 in terms of the "good" and "bad" things that have happened to the Game on his 20-year watch, notwithstanding the financial results he has reaped for the owners. I said it before and I will say it again: Bettman gets full marks for representing the owners over the last 20-years but, in my humble view, he gets a capital "F" vis-à-vis gaining the respect of the players during his tenure and, finally, a "C" regarding advancing the Game as a whole. If the NHL were just a hedge-fund, then, I would understand that you would stay with the guy but, this is a sports league and you would think that you need someone who has additional skills.

I think that the players absolutely despise Bettman – and, by association, his lieutenant – which I think means that the NHL owners really need to do some soul-searching regarding what the league needs in a Commissioner (and a deputy) at this juncture to restore the damage done to the public-face of the Game. I think it's fair to say that the commissioners of the other major leagues in the U.S. still command the respect of the players in those leagues – notwithstanding some tough stances that those commissioners have had to take from time to time. I just don't think the same can be said of Bettman – even though he seems to be a fine lawyer and individual.

To state the obvious, the next Commissioner is not an easy choice for the NHL. 

Some obvious candidates – Gretzky, Yzerman, Robinson (Larry) and some others that come to my mind immediately – may not have the qualities and qualifications that Bettman and Daly brought to their roles but, the billion dollar question is: Do the owners need a lawyer continuing in this role or do we need a "hockey guy" managing the next 20 years of the Game? 

As I have argued in my past articles (and my legal colleagues will probably hate me for saying this), I think it is high-time for a change to a non-lawyer NHL Commissioner. 

But, make no mistake: this hockey guy cannot be a "puppet" who simply bears the title while the owners pull the strings. It is absolutely necessary that a hockey-guy Commissioner has the same "I'm in charge" persona of Bettman (to keep the larger-ego owners in check) but also, the credibility of someone who has played the Game and been involved in the administration of a hockey club. 

My vote goes for a guy who has been around long enough to have seen the transformation of the league in the last 20 years and who is smart enough to know what he does not know and is willing to surround himself with legal and business experts he needs to deal with the technical and legal aspects of the Game.

This hockey guy will have to straddle the line of being a sound businessman who is prepared to be tough on the players but, at the same time, be an easily-recognizable ambassador of the Game whom the players will respect and empathize with when it is time for balancing the interests of the owners, the players and the Game.

I know that this is an epically difficult decision for the owners but, they have about 3.3 billion reasons to find the right guy.

Yes, the owners face a monumental task in finding the right hockey guy to be the next Commissioner, but, please, for the fans' sake and the long-term viability of the game, let the search begin.

November 1, 2012 - My Perpective on the 2012 NHL Lockout

Why Bettman Will Win and Why He Will Leave Shortly Thereafter

I've been a lawyer for about 20-years (Ontario called) and I negotiate large technology and outsourcing transactions for a living.  I see many similarities in my negotiations and those between the NHL and NHLPA and I want to say a few words about the 2012 NHL Lockout. 

In my time at the table, I have seen many deals – involving several Bettman and Fehr "type" characters – come together or fall apart based on one tipping point: which side has the strongest BATNA – i.e. the best alternative to a negotiated agreement. Quite, simply, the owners have a stronger BATNA than the players and Bettman knows it and will exploit it (again). Let me explain and also tell you what I think is going to happen regarding this latest lockout.

The Players' BATNA

Although I sympathize with the players' central argument that they gave up a "boatload" following the 2004 NHL Lockout and that they have to take a stand against the owners' greedy-grab for even more, their BATNA is weak. Apart from a few stars that can (and have) defected to Russia or Europe, the players, collectively, have no market to sell their services for anything close to the small ransoms that most make in the NHL. And, unless the players can establish, say, in a year or so, an alternative, North American-based pro-hockey market  that is substantially similar to the NHL (or buy-out and transform an existing league), then – sooner or later – they will cave. 

The Owners' BATNA

On the owners' side, although they cannot be happy about giving up a 43% piece of the annual $3B "Hockey Related Revenue" pie, most of the owners have alternative sources of revenue. In addition, the owners perceive the players as chattel - "cattle" actually according to one GM but, I am using the more polite legal term – who are, by definition, replaceable. And, the scary thing is that there are enough young prospects – and some good journeymen from other pro leagues – that the owners could hire to fully staff a "new" NHL. Yes it will take some time and we, the diehard Canadian and north-eastern U.S. hockey fans, will bitch and complain but, in a year or two, we'll be shoving our way back into the arenas (or planting ourselves in front of our big-screens) to watch the "new" NHL. In other words, in pure economic terms, the owners know that they have options to bust the union once and for all. I know that the players seem more resolved this time around but older players with big contracts who have the most to lose will cause a small fissure in the dam which will eventually crumble the whole thing.   The net-net is that the owners have a stronger BATNA than the players – which means that the players will blink first (again).

Count Bettman Will Win Again

Now, let me turn and say a few words about the lawyer-pariah that we know as "Count Bettman" – a moniker that has stuck among the hockey press, courtesy of the Fan 590's Bob McCown.  

As an experienced lawyer who negotiates on most days of his working life, I am extremely jealous of Bettman: he stands at his podium, facing the cameras (with his now-infamous smug smirk) and says: it's my way or the highway. And, the owners – his clients – say nothing. In my negotiations, which get just as tense as what you see on TV, the people who have incentives riding on the deal would sell-out their mother if they sensed that the deal was actually not going to close.   Stated another way, when I say "no" at the table (which is in very limited scenarios), the weak-links in my team are secretly trying to make back-channel concessions to get to closure and get paid. This just doesn't happen to Bettman as the Commish. (I really think that for the last 20 years he is simply acting-out against the players as payback for his prior negotiations when other lawyers kicked sand in his face (speaking metaphorically) during his negotiations.)

For those who think that Count Bettman is just posturing this time, I urge you to revisit what he said during the 2004 NHL Lockout because it sounds remarkably similar to what he is saying now. In that 2004 fight, he proved that he had the staying power – and the confidence of the owners – to break the players' resolve and get the former NHLPA boss, Bob Goodenow, fired.  You can argue all you like and think that "this time is different because only money is at stake" but, you would be wrong.  

There is no doubt in my mind that Bettman will win – again - but, at a cost.   I believe that - this time around – Bettman's "best before" date has expired.   After winning this round, Bettman will have no political capital left vis-à-vis the players, a minority of the owners, the fans and the Game (as Ken Dryden referred to it) at large.  

As such, Bettman will be unable to fulfill an important part of his mandate, which is to progress the Game. The players and the union brass will be so bitter from having Bettman eat their lunch again that they will undermine his every suggestion about the Game. In effect, I think the players will implement a sort of silent "work to rule" campaign – because that's all they can do. This time, the rift will be deep between "labour" and "management" because it will be hard for any self-respecting player to ignore how the owners perceive them.   

And, in such an environment, something will have to give.  Although many of the owners will want to keep Bettman on because – at the end of the day, he is good for them economically – they are too business-savvy to ignore the fact that they need a new face (with a somewhat less smug appearance to it) to say "FU" to the players – uh, I mean, negotiate with them every so often for the next 20 years. 

The NHL Needs a Hockey-Guy as Commissioner for the Next 20 Years

The NHL clearly needs a hockey-guy as Commissioner and one with huge credibility to convince the players that he is speaking the truth when he says to them, at some point in the future, "I know that the course of action that I am advocating is painful (and the owners will share in some of the pain) but, it makes sense for the long term viability of the game"

To be fair, the players are not innocent in this fight either and, as a respectful observer of Fehr's process, I can tell you that there is no better way to piss-off the other side in a negotiation than by ignoring their proposal. There is an unwritten rule in negotiations that the party with less power has to work from the other side's proposal. By ignoring Bettman's latest offer, Fehr is saying, in effect, FU to Bettman. 

As a purely unsolicited comment, I would have been inclined to take the NHL's latest proposal, organize it in a table format, and address each point with a nuance, variance or counter-proposal (see Sidebar: A Basic Tool and Approach for Heated Negotiations). 

By using this technique, you can actually ignore the hell out of the other side's proposal without appearing to do so.  (Yes, it's a stupid-lawyer trick worthy of a Letterman apprearance but, it works.)  Frankly, I am surprised that Fehr did not use this technique and although I admire his chutzpah to say "FU" to Bettman, I think he has ultimately done a disservice to his clients.

A Basic Tool and Approach for Heated Negotiations

With all due respect to both sides who are in the thick of negotiations, I think they have to take a step back – and just "parse" the remaining issues in a very simple matrix. This will expose the differences between the sides – in a side-by-side comparison - and document the baby-steps or giant-leaps needed to get to closure. I have a very simple Negotiation Matrix that I use often and that I will supply to the NHL or NHLPA at no charge.  In fact, I am begging the NHL and NHLPA to start with my matrix – the next time they meet – to simply document where they are, see if there is any common ground at this juncture, and define next steps. Look, they have to start somewhere and the rhetoric just ain't working – so they have nothing to lose by trying this approach. At the very least, it will prevent Bettman from saying that Fehr is ignoring his proposal. And, in return, all I am asking for is the chance to throw a pie in the face of Bettman and Fehr – for which I will pay $1000 to a charity of their choice.

My view is that the NHL needs a new Commissioner who has the vision to anticipate the league's evolution before it happens in the same way that Gretzky saw the entire ice and the play and knew where to be. Bettman never had this credibility and vision (and never will) because he's not a hockey guy; he is an outsider who is about 50-50 (at best) regarding the "good" and "bad" things he has imposed on the Game.

Bettman has always been about maximizing profits and as a capitalist, I get that but, as a die-hard, Canadian hockey fan, I believe that the NHL needs a continuous and less polarizing figure for the next 20 years to reach the stature and stability of the NFL, MLB or NBA.

The bottom line is that Bettman will win, but, he'll have to leave shortly thereafter.

July 19, 2011 - Don't Poison the Atmosphere by Your Negotiating Style

I recently finished a deal for a client in 5 weeks, starting from the time we received the proposed new Master Services Agreement right up to the time it was executed. And, the kicker is that both parties were happy with it. (Any IT counsel reading this will probably recognize that 5-weeks is an extremely short time-frame to do a deal between any two parties, let alone two Fortune 500 companies.  (Obviously, this begs the question of whether I was too efficient, as some of my counterparts at big firms have often chided me about but, that's just me: I don't believe in generating artificial billable hours.)

In previous attempts to put in place an MSA between these parties, they ended up frustrating each other by negotiating too much. Those past negotiations stretched-out over many months and resulted in a legal agreement that both parties used only for very specific work between them. It limited the business that these parties did with each other and both parties hated it.

In the above case, the "bad agreement" was the result of an outside counsel hired by the other side who insisted on grandstanding at the table - with the net result being a lose-lose situation for both parties. Due to this counsel's patently one-sided positions, my client's in-house counsel appeared inflexible because he had to say "NO" to many of these positions.

Look, I have written about this issue in the past - along with several other outsourcing authors - but, some lawyers just can't see the forest for the trees. Well, I won't stop commenting on these situations when I run across them - so that business people learn to distinguish good counsel from bad counsel!

In the case of my negotiation, we did a few things differently. We changed the playing field by insisting on a small group of negotiators for each side - two on ours (my business principal and I) and three for the other side, one of whom was the "boss" of the other two. We also decided, early on, that all of our changes to the client's proposed form of agreement would be "surgical". (For those that negotiate legal agreements for a living, you will know that this is much harder and more time-consuming than substituting your preferred language.)

Now, as mentioned above, we ended up getting the MSA done in 5 weeks - and we are still "talking" to each other.  In fact, we have arranged a celebratory dinner, which included the negotiators (which is a rarity).

In any event, for those who know me, I am not the self-promoting type and I prefer to let my work do the talking.  In this regard, here's the report that a senior executive of my client gave to my instructing in-house counsel about the negotiation:

"In particular, I want to extend a very special thanks to George for the tremendous effort he put in to get this MSA done in exactly 5 weeks (to the day) from when we received it from [the target client]. George worked very hard to be extremely responsive at all times and his style at the negotiation table was excellent. When I met with [the Lead Negotiator] ([the target client's] head of global sourcing); she reports to ([the target client's] general counsel), she couldn't stop saying enough nice things about working with George, his style, his approach to laying out issues, and even his approach to disagreeing with [the Lead Negotiator]! She said George always took the time to explain [my client's] perspectives and he even helped [the Lead Negotiator] at times overcome the concerns she had about language [my client] needed in the agreement."

Again, I have not included this to toot my own horn; rather, I am including it as a "teaching point" to the IT counsel out there - particularly those at big firms - that may believe that size makes right. (As an aside, some of my new clients have been the clients of opposing counsel who have contacted me after the transaction was closed to represent them on future deals.)

The net-net is that there is always a reasonable path to getting an reasonable agreement done and it starts by checking your ego at the door (which is difficult for any "Type A" individual - like me - at any given time) and involves good listening skills and "on the fly" solution generation.

As always, I write these blogs to generate debate – so please ping me or call me with any comments or questions.

May 9, 2011 - Beware of Autobahn Auto Salon (in Vaughan, Ontario)

Here is an e-mail I just sent to TMS about my experience with Autobahn Auto Salon (www.autobahnsalon.com) and, in particular, its owner, FRANK DUARTE.

Dear TMS,

I am writing to you to let you know that one of your selected merchants (Autobahn Auto Salon) who donated a gift certificate for the silent auction - for the TMS 50th Anniversary Gala - has reneged on it.

I thought that you should know about it so that you not associate with this business in the future.

Even if this merchant has a change of mind after you speak with him, there is no way that I would ever trust him with my vehicles – and I will post a BLOG about my experience with him immediately.

Here's what happened:

  1. I purchased the above-noted gift certificate at the Gala and put it away in my physical inbox on my desk. 
  2. This past weekend, I did some spring cleaning of my desk and came across the certificate.
  3. I noticed that it had an expiration date of May 1, 2011 – and I made a note to call first thing today (Monday, May 9) to speak to Autobahn.
  4. I expected that even though the gift certificate was expired (by 9 days), the merchant would honour it since it was a donation for a fund-raising event.
  5. Well, very much to my surprise, I was told - first by the receptionist (who would not give me his name) and then by Frank Duarte, the owner, that it was "tough luck" for me and that because this was a donation to TMS, it was "not his problem".
  6. Sadly, Frank also took the time to berate me for not being a customer for 5 years (I was one of his original customers – when his work was better and he was less arrogant) – and said that maybe if I was a more frequent customer, he would have honoured the certificate.
  7. Look, it's not about the money I paid for this certificate – which I was glad to donate to TMS – but, it is very much about principle.
  8. I cannot believe how low-class Frank Duarte has become such that he would not honour a gift certificate that had expired by 9 days. 
  9. I am a lawyer – and I understand the sanctity of "contracts" but – we are not talking about a million bucks here! 
  10. I would expect an insurance company to deny on a policy claim based on the strict letter of the law but, I just can't believe that a car wash business would operate the same way.
  11. I can just imagine that Frank Duarte and Autobahn got great publicity from the TMS Gala but, in my view, he used TMS' good name to benefit his business and then reneged on his donation. 
  12. This reflects badly on Autobahn and Frank Duarte but, it also reflects badly on TMS.
  13. I would like TMS to write to Frank Duarte and let him know that TMS is aware of this situation and that you fully expect him to make a donation to a worthwhile charity for the value of the gift certificate (i.e. $240)

Would someone please follow-up with me – just to let me know that TMS has spoken to or written to this merchant.

Thanks,

GJA

If this post helps one person avoid a bad experience with Autobahn Auto Salon, then, I will have done my job as a consumer-at-large.

December 23, 2010 - "For the Record" Statement re Kayla Watkins Story

Although it will take some time for this story to run its course, I just want everyone to know that the insults, the threats and the attacks by Internet hackers on my website, will never dissuade me from speaking out about any situation that is wrong.

I came from very humble beginnings and have faced great adversity – including ignorance, prejudice, and pre-judgment – to get where I am today by speaking out and taking action in difficult or unpopular situations.

For those who know all the facts of the situation involving Vanessa, Sheree and Kayla Watkins, they know that I had to act for the sake of the 15 other team members, who, regrettably, have been lost in the media frenzy of "Kayla's story."

And, for those who know me as a person and as a lawyer, they know that I am a direct, fair and principled person - and no "spinning" of my character in the media will ever change that.

Although I am savvy enough to understand that most people form quick-opinions based on what they read in the print media or see on the daily news, I was, nevertheless, surprised by the extent of the ignorance out there. Whatever happened to not judging a person until "you walk a mile in their shoes"? 

In any event, as a lawyer, it is second nature to me to question what I read or see and investigate to get to the facts before passing judgment.   I can assure you, based on what has been written to me and about me, that this is not the case with most people, even so-called professionals - including the talk show hosts on Toronto morning radio programs.

And, even though the "judgments" and commentary about me have been disproportionately harsh and unfounded, I accept both as a by-product of today's media and the Internet community - in a free and democratic society.  I consider this a great lesson in human nature that I can discuss in the years to come with those who are closest to me.

In any event, I would like to make sure to have my side of the story "on the record" (so to speak) now - so that I can look back at this event in my life in the years to come, judge my actions in the situation and revisit the reactions of various critics, the responses of which I have saved as a teaching tool. 

Preliminary Points Before Addressing "The Agenda"

First of all, the issue with Kayla Watkins was one of several agenda items to be discussed at a November 14, 2010 parents meeting regarding the state of our hockey team as of that date.  (I bet no one really picked up on this point from the print, radio or television media.)

Second, the events leading up to the November 14, 2010 meeting had everything to do with a very poor and dishonest team manager in Vanessa Watkins, who, by that time, had managed to alienate most of the parents on the team with her negative attitude towards everything.  That attitude was also evident in Kayla towards her teammates - a fact that was never explored by the media, because it does not make for a good story.

And, despite Kayla's portrayal in the media, I think that her former teammates have a different perspective of her, based on their first-hand experience with her. The net-net regarding this team as of November 14, 2010 was that the environment was so bad that many players did not want to play-out the rest of the season because of one player - another fact "ignored" by the media.  (In my interview with Robert Cribb, the Toronto Star reporter who first reported this "story", I advised him of this fact but, he chose to ignore it because, in my view, he had already decided the slant of the "sensational" story that he wanted to write.)

Third, several parents on the team, including me, had approach the coach, Paul Macchia, with our concerns about the team, including the fact that several did not want to play on it anymore.  We practically begged the coach to address these issues - as coaching matters - but, he did nothing. Unfortunately, Paul's nature is to "do nothing" and this was (and is) a major part of the problem.   And, many think that this should have been the end of the issue – except that "do nothing" in the circumstances was not acceptable. (All Paul had to do was listen to the parents and then say, politely but firmly, that he would make any decisions about Kayla as the coach. The problem is that we got mixed signals: he agreed to shorten the bench on PPs and PKs but, he didn't – which confused the heck out of us.)

As an aside, during several media call-in shows on December 22 & 23, I heard people debate whether parents are entitled to request a meeting in the context of a Canadian "rep hockey" team.    My view is that it all depends on the situation.  In the situation of this team as of November 14, 2010, we most certainly did – because the manager and the coach, to whom we raised concerns and issues about the team prior to the meeting, did nothing and the team was splintering apart.

At the time that the meeting with the coach and the manager was requested, there were about 20 games left in the season, which was plenty of time to salvage it; by the way, this has nothing to do with winning or losing - but, rather, just playing out the season in an environment where the team members actually want to come to the rink, have fun and be together.  

After Kayla's departure - this is exactly what happened. The team, while still struggling in the wins and losses department, is having fun again. (I know that people don't want to hear this but, I am going to say it anyway: the reason the team is having fun now is because the negative elements on the team have left. It's that simple. It's unfortunate that it had to be that way but, yes, it's that simple.)

As another aside, why didn't Robert Cribb "investigate" the other side of the story - Kayla's teammates – before publishing "Kayla's Story".  In my view, it is because it would not have made for an interesting or controversial story!  In fact, Cribb implied to me in my interview with him on December 20, 2010 that he would do a follow-up on both sides of the story and that he was only rushing to interview me because he had a 5 PM deadline on that day.  Well, as everyone knows, the story ran in the Toronto Star on Wednesday, December 22, 2010 - which means that Cribb had time to investigate the complete story but chose not to.  Cribb claims that he intends to do a follow-up now but, who, in their right mind, would trust his integrity now. In any event, I will leave it to the reader and Cribb's peers to ask "why" he chose to publish half a story!

Fourth, the issue with Kayla had nothing to do with my son - or any other member on this team - complaining about ice time to the coach or my "delusions" about whether my son would make the NHL.  (The latter point was particularly funny to me because for those who know me, they know what a realist I am about everything.  So, for the more ignorant people out there, let's be clear that the issue with Kayla has nothing to do with "little Johnny not getting enough ice time or getting to the NHL.")  I am not sure how people drew this conclusion but, it may have been from the coach's cryptic quotes in the Toronto Star article regarding which Paul told me: "I feel what [Cribb] wrote does not reflect the way I said it to him." (Hey Paul, welcome to media interviews and the dissembling that occurs after them!  This is why I tape such interviews.)

Fifth, up to November 14, 2010, the team manager, Vanessa Watkins, had organized two parents' meetings during which there was no agenda, nothing was accomplished and no follow-up actions were identified or taken.  Many parents, including myself, were upset at the time wasted during these meetings and I suggested that a meeting agenda be drafted for the next meeting.  

By this time, it was clear to most parents that the only reason that Vanessa had taken on the role of "Team Manager" was so that Kayla could play on this team - because she was not doing anything that resembled "managing".  

And, contrary to what people have read, Kayla never "made" the team through a proper try-out; she came to the Toronto Ice Dogs from the Downsview Beavers in a deal arranged by certain parents of a player on the team.  (These parents wanted Paul Macchia as the coach because he was easy on their son and and they told me that Paul, Vanessa Watkins and Kayla were a package deal.  And, since they were big financial donors to the team, the rest of us really had no say in the matter.)

At the time, I advised them that this was a mistake and I considered moving Michael but, the Ice Dogs would not release my son, which would have allowed him to move.   I accept the blame for trusting these parents, who were only interested in their son and not the team as a whole.  Ironically, Paul did not choose their son as the Captain or even as an Alternate Captain (because his play and his presence in the dressing room did not merit it), after which they soured on Paul and began their typical, behind-your-back gossip, about him and about the kids who were elected to those positions.

The Agenda

Now, let's turn to my actual agenda that people are "appalled" about. 

Before exploring the specific points on it, there are two things that people should know. First and foremost, it is quite "normal" to draft an agenda to set out the discussion topics for a prospective meeting and to distribute that agenda to meeting participants prior to the meeting.  

It is absolutely bizarre that the media and the masses took issue with this normal-course action - and it made me realize that the vast majority of people who commented about me and wrote to me about this point are truly, ignorant.    (I will discuss the content of the agenda below but, I just can't believe that people were appalled that I actually took the time to draft an agenda for the November 14, 2010 parents' meeting.   So, I have to ask the painfully obvious and rhetorical question: "Why wouldn't I draft and circulate an agenda of the items that I intended to discuss at a meeting?")

OK, now let's look at the content.

The first agenda item was "Interim Budget Report".

This was a budget report request for the period from the beginning of the season to November 2010, which Vanessa Watkins, as team manager, was required to provide. (As parents, we pay a lot of money for our kids to play rep hockey and we are entitled to know where it is being spent.)  I had personally requested this from Vanessa at least twice before the November 14 meeting and she had ignored my requests.  She finally delivered a "report" at the November 14 meeting.  (And, by "report", I mean a piece of paper with numbers written but devoid of any organization, making it useless.  It was, by no means, a typical budget report.)  

Many parents, including myself, asked questions about this "report". In particular, I asked about certain discrepancies between budget revenue and expenditures which Vanessa could not explain at the time of the meeting.  (The major discrepancy is that the report seems to indicate that one player had not paid the team fee as of November 14, 2010. To this day, this discrepancy has not been explained, so please draw your own inferences.)  

We moved on to the second agenda item after Vanessa agreed to follow up.  (By the way, she never did follow up.)

As an aside, Vanessa Watkins, as team manager, had fiduciary responsibilities for the budget and remains responsible to explain any discrepancies in it.  I followed up with Vanessa after the November 14 meeting but, she left the team shortly thereafter and has not, to date, followed-up with me. If there is a real investigative reporter out there, then, why don't you ask parents about Vanessa Watkins' "management" of the Downsview Beavers minor PeeWee team in 2009-2010 and some budget issues experienced in that year with this same manager?  Then again, the budget discrepancies last year and this year are probably just a coincidence, right?  Well, you are entitled to fill in the blanks with the most likely scenario!

The second agenda item was "Hockey Canada Policy Regarding Separate Dressing Rooms for Mixed-Gender Teams Starting at "PeeWee" Level."  

Many of the boys had complained to their parents about several "near misses" in the dressing room where, during the process of taking off their hockey equipment, their boxer shorts had almost come off.  This was embarrassing to many of them and they were very uncomfortable about dressing and undressing in front of Kayla.  

As more parents discussed the matter, a few of us did some quick research and I wrote to the Manager of Hockey Operations of the GTHL about our situation and he advised me about a rule for this exact situation - starting at the PeeWee level.  

The rule is as follows:

HOCKEY CANADA CO-ED DRESSING ROOM POLICY

The following is the policy of Hockey Canada with respect to coed dressing in which the OHF will adhere to:

Hockey Canada firmly believes in accommodating both genders in our great game. We further believe in balancing this goal with the safety, privacy, modesty and wishes of ALL our members without compromising the aspects of camaraderie, social integration and bonding inherent in a team sport. This policy attempts to meet all these goals while providing a safe and respectful environment for our participants.

Hockey Canada stresses the importance of coaches in ensuring both male and female players have equal access to pre and post team sessions and to all team related activities.

Hockey Canada recognizes the physical limitations of some facilities and encourages our members to work with local facility management to ensure that appropriate changing facilities are available to both genders.

Hockey Canada allows co-ed dressing room situations to exist at the Initiation Program, Novice and Atom levels, 5-10 years of age provided participants in a co-ed situation either arrive in full equipment or wear at a minimum gym shorts or long underwear as well as a full t-shirt (no tank tops) all of which must be in good condition and without holes/tears.

At the PeeWee (11 years old) level and above the following conditions will apply in all co-ed team environments:

As a courtesy, I approached Vanessa about this rule before the meeting and she told me that she was aware of the rule but that she chose not to enforce it because of Kayla.  I was surprised and appalled that she already knew about the rule - but consciously chose her daughter's interest over the interests of the 15 other team members. 

I advised her that her decision to hide this rule from the team was wrong and that I would be raising it as a formal agenda item at the next meeting. 

As an aside, you may be starting to understand that Vanessa Watkins is not the person that the media has made her out to be.  Of course, if you do not believe me, then, hire her as your manager and see for yourself.  I am pretty-sure that you'll be calling me about it after your experience is over.

The bottom line for me was that Vanessa Watkins was playing fast and loose with the budget and ignoring the OHF and Hockey Canada rule regarding co-ed dressing rooms - because it suited her daughter's interests. 

As a parent on this team, this did not sit well with me because there were 15 others on the team who were being ignored.  In addition, as a lawyer trained to spot unfair and suspicious actions, Vanessa was a giant red flag to me - in so many ways - and I was not going to ignore her dishonest actions for the rest of the season.

The third agenda item was "Kayla Watkins - Player Ability Limitations & Suggested Options".  

This is the "media darling" of issues that people have seized upon to hurl their insults at and pass judgment on me.

Again, I am OK taking the bullets for the team because that's what I have been trained to do in difficult situations but, for those of you who are interested in why this item was on the agenda, please keep reading.

As a lawyer, drafting of agendas is second nature to me, as is clear, concise and to-the-point drafting.  Obviously, the media has "spun" my agenda to suit its needs but, the agenda was drafted to the minimum length needed to raise the issues slated for discussion - period.  There was no other intent - period.  

Any spinning of the words on that Agenda by anyone has been done consciously and in retrospect in order to sensationalize it.  (That's a risk that all authors take but, that's why you have to question what you read - especially by some reporters in certain publications.  I believe that rational people do question what they read but, many don't and they render "snap-judgments" about the author.) 

The net-net is that the media articles that I saw and the clips on the talk shows that I heard only included the "juicy tidbits" of the agenda that make for a controversial story. What most media articles and the reports left out were the following parts of the agenda:

"I recognize that this item is a very difficult topic to list on this agenda and to discuss as a team; however, I also recognize that team morale (kids and parents) is suffering because this situation has not been addressed to date 

It is now 14 games into the season and we have noticed that Kayla's play has not improved. It is at the point where many of the team members do not want to play on this team if this situation is not addressed.

I believe that this situation must be addressed immediately - in the best interests of team as a whole - so that we can preserve the balance of the season (about 20 or so games)."

The agenda then goes on to suggest two options regarding Kayla that the coach could implement so that the team could accommodate her playing abilities:

Option 1: Move Kayla to forward and play her on a regular shift but, not on any special teams (i.e. on power plays or penalty kills) - until her skating and shooting improves; or

Option 2: Keep Kayla on defense but, play her every other shift but, not on any special teams (i.e. on power plays or penalty kills) - until her skating and shooting improves.

Both of these options were suggested because, in my discussions of the issue with several parents and outsiders (some of whom had coached competitive hockey), they were suggested as acceptable ways to manage a weaker player's abilities. 

Obviously, it was up to the coach to consider these options and decide whether to reject them or implement them but, nevertheless, the above options reflected a consensus view of the then-current situation.

The agenda then went on to say that if Kayla was not amenable to these options, "the coach should find Kayla a new team to play on - commensurate to her skill level - for the balance of the season and the manager should be refunded the pro rata portion of the fees she paid for the entire season."

Unfortunately, at the November 14 meeting, instead of discussing all of the issues at bar in a rational and delicate manner so that the coach could arrive at an action plan, Vanessa Watkins, the team manager, allowed her mother Sheree to attend the meeting and to turn it into a "circus".  

Sheree ranted and raved and called the "boys on the team" (i.e. all of them) "useless".  

Sheree threatened us that she would "spin" this issue into a gender discrimination issue - which she has done - with the help of the media.  

As an aside, has anyone bothered checking with the parents of this team regarding Sheree's comments about the kids on the team (whom she called "useless") and how they felt about Sheree's and Vanessa's behaviour at this meeting?

Therefore, instead of having an adult discussion with the manager and the coach about a difficult and sensitive issue, both allowed the meeting to degenerate into another fiasco.  

To top things off, nothing was done or said by the coach after the meeting.  

Neither the manager nor the coach issued any communication about the meeting; they simply ignored it.  I discussed this with many parents and I said that "I was done" trying to help the situation.  (As the saying goes, the rest is history.)

Kayla's "Public Humiliation"

Now let's turn to the "public humiliation" that Kayla says that she suffered. 

First, this was very much a private team matter.  

The only people that publicized this situation were Kayla's family - and you really have to ask yourself why?  

Why would a mother or a grandmother parade Kayla out to the media?  

To me, the reason is clear: because Vanessa and her mother wanted to try to embarrass me, primarily, and the team, secondarily. (I address the former below.)

For anyone who knows Vanessa Watkins, it should be clear that she wanted a final soapbox on which to stand.  She was exposed as a very poor manager of this team and she did not like this - and particularly me - so she used Kayla as a pawn in a public chess match.  This was a choice Vanessa made, not me.

Second, (and this is really disturbing to me), the media articles that I read suggested that Kayla had "come across" my agenda when going through her mother's e-mail.  Come on, people, even the ignoramuses out there can't be buying that BS.  

What kind of a mother allows her 12-year old daughter to read her e-mail and particularly this particular e-mail?  

Apart from the fact that I am a lawyer and my e-mail communications are highly confidential (and I protect them as such), I also communicate with my wife and teachers (and other professionals) via e-mail (and by other means) on a confidential basis about sensitive topics involving our kids. I may discuss the issue of the e-mail with my children in an appropriate way if it concerns them but, I don't let my children read the e-mails.  

For example, a teacher may call with an issue at school and express concern about a child's behaviour and strategies for dealing with it.  Would you play the voice mail for your child? Or, would you address the issue of that voice mail with your child in an appropriate way?

The fact that Vanessa or Sheree Watkins showed Kayla the e-mail should speak volumes about whether either was looking out for the best interests of the child.

As an aside, I think one person who wrote to me commented that I was "blaming the mother" for Kayla reading the agenda. He is absolutely right: I do blame the mother for showing her daughter the agenda.  The agenda was an adult agenda and if Vanessa Watkins did not understand that fact, then, she has bigger problems as a mother beyond this issue - and I truly feel sorry for her.

Obviously, the point of the agenda item involving Kayla was for Vanessa Watkins, as team manager, and Paul Macchia, as coach, to address the issue directly with Kayla - in an appropriate manner - but only if their intent was to take action.

On the other hand, if they had decided to say to the parents "Thanks very much for your views but, the decision regarding Kayla's play is a coaching issue and we have decided to keep Kayla on the team "as is", that would have been fine too (and they would NOT have had to discuss the situation with Kayla). 

This course of action by Paul and Vanessa would have been OK because it would have allowed us (i.e. the parents) to make decisions about the rest of the season with respect to our children: do we play it out, do we try to move, do we leave, etc. 

The fact is that nothing was done and nothing was said following the November 14, 2010 meeting.  Vanessa and Kayla just didn't show up for the next game and even after that, Paul never addressed the situation in a communication to the team.  

We, as parents, learned, indirectly, that Vanessa and Kayla had moved on and that Kayla was playing on another team and that she was, apparently, happy.  (By the way, all of the parents that I discussed this with are happy for Kayla (as am I) - because we know it was the right decision.)

Lessons Learned

Look, based on what I have read in the media, I understand that it is easy for others to judge me or the agenda itself in isolation to make me the "bad guy" but, the fact is that team morale was at a very low point and many of Kayla's team members did not want to play with her any longer.  She was negative towards them when they tried to help her - because she had an attitude of entitlement as the "manager's daughter". 

In addition, team members and their parents were speaking about Kayla's play behind her back. For those who know me, they know that I don't like to hide from situations; I confront issues and deal with them directly and openly. 

In the context of all of the gossiping that was destroying the team, I did not think it was fair to Kayla - or to the rest of the team - to continue to play out the balance of the season in a dysfunctional environment, which is what this team was up to November 14, 2010.  

And so, we requested a meeting and I was tasked with drafting an agenda of the topics to be discussed at that meeting, including proposals for keeping Kayla on the team. 

The issue with Kayla has never been about gender or about winning or losing and it is regrettable that Vanessa and Sheree Watkins have used this situation – with the help of the media – as a platform to mask the real issue. Their behaviour was not something anyone could control - and they have to live with their actions.

Of course I am sorry if Kayla actually read the agenda or felt "humiliated".  As a child, she could have been spared all of this if Vanessa and Sheree Watkins had made certain decisions and took off their blinders about her qualifications to play for this team.  They are ultimately responsible for Kayla's feelings because one of them chose to share my agenda with Kayla, which neither had permission to do with anyone outside of the team, and especially not with any child. 

As an aside, stop for a moment and think about this.  If your child was the topic of this Agenda, would you share the agenda with him or her or would you manage the situation and explain the situation in a way that would least hurt your child?  I know what I would do but, again, the visceral reaction of the masses is to blame me as the drafter.  I understand; but I don't agree - period.

At the end of the day, as I said above, the people who know me will ask me about the situation given all the media reports and I will answer them directly - as I always do. 

For all the people that wrote vile and disgusting things to me, about me and about my kids, I stand by your right to say these things to me because we live in a free and democratic society. I would ask you, however, to respect the fact that I may disagree with you and debate you regarding the content of your opinions.  

And, I just want everyone (including the media) to know that I am not mad at anyone for their opinions or stories - even the parents on the team (who talked tough behind the coach's and manager's back) but, who have run for cover – like common cowards – during the media frenzy about this story.  

Most people don't have the mental fortitude to withstand the character-assault that I faced over the past week but, I do. 

Already, people who have bothered to look behind the media and internet stories have written back to me and apologized for their initial reactions.  I will publish both the ugly, nasty stuff and the apologies - at the appropriate time.  Right now, I will let Vanessa, Sheree and Kayla have their 15 minutes of notoriety; I truly hope it turns out good for all of them but, I think we all know where they will end up in the long run. 

I know that "Kayla's story" was motivated by retaliation against me by Vanessa and Sheree Watkins but, they can rest assured that my Christmas holidays have not been ruined. As a Christian during this time, it is important to me and for me to be Christian-like in my actions towards and comments about Vanessa and Kayla and all of her family – and I will.

I have dealt with a lot of adversity in life and every instance is a character builder - with this one being in the "top 10".  (I mean, really, did the media need to publish my picture and at the very least, could they not have airbrushed a few pounds off it.  I can only think of four words that I thought of when I saw the picture: "... the horror, the horror".)

In these situations, time is the great equalizer and you can bet that I will be there to speak out at the appropriate time.  It probably won't be a sexy-story for the media but, I have never lived my life seeking external, public validation - and I am not about to start now.  

Any follow-up that I publish will be for the people that I care about and as an example to my family about the value of patience and perseverance.

The only thing that concerns me is that Vanessa Watkins' brother is a Metro Toronto Police officer and I know that cops (and cops' families) tend to stick together.  And, while I cannot prove anything right now and I am not alleging anything, the threats of violence against me and my family that I have received on my home number have come from the same voice. I will be issuing a report to my local police department, York Regional Police, about such threats and I have also taken action to commence my own private investigation but, in the meantime, I would ask people who choose to disagree with me, my agenda, or this whole situation to do so in a respectful manner befitting of this great country.


George J. Atis,
Toronto, Thursday, December 23, 2010 

 

October 19, 2010

Captain's log, Stardate Oct 19, 2010. 

I am almost finished with a recent outsourcing deal out West and I can tell you that it just keeps getting worse out there - in terms of the client-side, outside counsel disorganization. 

For the collective $2000/hour run rate of this outside counsel team on the other side, one would think that it could at least run an orderly negotiation.  It has been just the opposite and it has not gone unnoticed by many of my client's senior people. When my practice slows down, I will get back on the lecture circuit to warn both sides of the table about self-serving counsel and their processes. 

Enough said for my first blog.

George J. Atis
Lawyer - Counsellor - Advocate