I missed the champagne spraying. We were out, invited to eat dinner in a hotel restaurant – the sort of thing I rarely do. But we have a grand time and when we got home the Sox were winning and Papelbon put it to bed – and the Yanks were up 9-6 against Baltimore. So I didn’t pay any more attention. But then…the Yankees…decided to suck:

The Orioles, who are finishing their 10th consecutive losing season, battered Mussina for 6 runs and 11 hits in five innings. They still stood to lose because of Rodriguez, who reached 1,500 R.B.I. and 1,500 runs scored in the same game. But Rivera, who had allowed only one earned run over 15 1/3 innings in his last 15 games, allowed a leadoff single to Nick Markakis and hit Kevin Millar with one out in the ninth.

After Melvin Mora flied to right, Ramón Hernández singled to load the bases for Payton. In Game 2 of the 2000 World Series, when he played for the Mets, Payton sliced a ninth-inning homer against Rivera over the right-field fence at Yankee Stadium. This time, he lashed a triple to the wall in right center, clearing the bases to tie the score. “I just went out to get some work; it wasn’t good at all,” Rivera said. “I missed a lot of pitches. But I’m fine. You have to move forward.”

Fabulous. Thank you for sucking, New York. Thank you.

The Asterisk Ball

I like the Baseball Hall of Fame. It’s where it should be, in a small town that has a claim (however tenuous now) to being a place where baseball started. Though no one really believes Abner Doubleday invented the game in the 1840s in Cooperstown, NY, the fact that the myth survived is in itself part of the structure of the idea of baseball – it is a game that inordinately attracts belief.

That is why I love the asterisk ball, the ball that Barry Bonds hit out of the park to beat the home run record of Hank Aaron. It is going to Cooperstown and it is going to have a asterisk, that symbol of a questionable stat, stamped on it.

The baseball from Barry Bonds’s much-debated 756th home run will soon land in the National Baseball Hall of Fame and Museum. When it gets there, it will be branded with an asterisk. Marc Ecko, the fashion designer who bought the ball for $752,467, asked the fans to decide how he should treat the memento. After more than 10 million online votes, 47 percent of voters wanted the ball to be adorned with an asterisk, 34 percent said it should not be changed and 19 percent wanted it to be shot into space. The first two options included the addendum that the ball would be donated to the Hall of Fame.

Why do I like this? It expresses the moment of the home run, the lunacy of the price of memorabilia, the scandal surrounding steroids as well as the humble fragile nature of the ball itself. It also captures the internet era and the dislocation of authority – neither Bonds or the Hall of Fame are controlling the moment.

Up By Three With Five To Go

There is a certain type of jockeying going on to be sure. Joe Torre does not put Kyle Farnsworth in the game the Yanks end up losing in extra innings (best call of the night after the bottom of the ninth, all tied up: “Free Baseball!”) if he is not sure the greater good is being served. But was it? Tampa, which has been inordinately – actually unbelievably – strong since the first of August…won.

Meanwhile, the Sox smoked a disinterested Oakland. Shilling threw a good six innings. Youk is back and Manny is back.

More On Privacy As Exemplified By Adoption Records

The trial decision in the case Cheskes v. Ontario (Attorney General) of Ontario’s recently struck down access to adoption records case is now available on the internet. You can find a copy here. For present purposes, even though I’ve yapped about it before, have an interest in adoption and have, and in the past represented people involved with the system, I am not so much interested in the implications on the case for the parties or those similarly situated as just the court’s statement about the meaning and basis for privacy as a constitutional right.

With the ever over-riding caveat that I am not suggesting I am right, but to get right into it, here is the entire passage in the case setting out how the court says one sort of privacy has come to be a protected right:

[79]Unlike other bills of rights, there is no freestanding right to privacy in the Charter.48 If a right to privacy exists under the Charter, it has to be found in the provisions that touch on matters of individual autonomy. For example, the case law is clear that there is a constitutional basis for the protection of privacy in situations involving unreasonable search and seizure. The Supreme Court has recognized that the primary purpose behind the right set out in s. 8 of the Charter – the right to be secure against unreasonable search and seizure – is the protection of the privacy of the individual.49

[80] The Supreme Court has also indicated in several cases that “certain privacy interests may also inhere in the s. 7 right to life, liberty and security of the person.”50 The Ontario Court of Appeal referred to some of this case law in a recent decision and pronounced what should now be beyond dispute – that the protection of privacy as a fundamental value is “enshrined” not only in s. 8 but also in s. 7 of the Charter.51 In other words, privacy interests are not only protected in search and seizure cases under s. 8, but also in certain circumstances under s. 7. The question, however, is whether any s. 7 privacy interest has been infringed in this case.

[81] The Supreme Court has tended to find the protection of privacy within the s. 7 liberty interest more often than within the security of the person guarantee. There are cases that suggest the latter, but most of the Court’s jurisprudence focuses on the liberty interest. The Court has noted that these privacy interests are at their strongest where aspects of one’s individual identity are at stake.52

[82] The clearest statement that a privacy interest inheres in the right to liberty in s. 7 is probably found in R. v. O’Connor.53 It was here that the Supreme Court stated that “respect for individual privacy is an essential component of what it means to be free” and, as a corollary, that “the infringement of this right undeniably impinges upon an individual’s ‘liberty’ in our free and democratic society.”54 Even more pertinent to this litigation is what the Court said about the disclosure of private information and its impact on a person’s liberty under s. 7 of the Charter:

When a private document or record is revealed and the reasonable expectation of privacy therein is thereby displaced, the invasion is not with respect to the particular document or record in question. Rather, it is an invasion of the dignity and self-worth of the individual, who enjoys the right to privacy as an essential aspect of his or her liberty in a free and democratic society.55

I’ve stuck the footnotes for the footnotey amongst you down below. Here are my initial observations:

  • There is nothing worse for a good and careful lawyer as a judge who does not copy down your best bits in his ruling. I have no doubt that Clayton Ruby, counsel for the appealing parties, had a hundred cases on this point and maybe thirty pages of a factum. But this part of the ruling is both crucial and thin. Four paragraphs to prove what is admitted in the first section – privacy is not an acknowledged part of the constitutional rights Canadians have enjoyed.
  • Further, while the court notes it is protected under section 8 (search and seizure), this case is about section 7. So the first paragraph is a bit of a write off if you were looking for a basis for privacy to be protected as part of the liberty right.
  • One last thing about paragraph 79 – that reference to autonomy. This section of the case is about only one type of privacy – informational privacy. As we’ve discussed, that word “autonomy” has been used in Supreme Court of Canada cases since Godbout for another form of privacy – the right to autonomous decision making. That is also discussed in the case but not in this bit – and it is not the basis for the recognition of privacy the court relies upon.
  • Moving to paragraph 80, the first two paragraph are a very rapid slippery slope moving from the Supreme Court of Canada stating certain privacy right may be protected to the Ontario Court of Appeal holding the principle “enshrined”. Way too fast. It may be the case, but the court has not shown its work.
  • The court goes on to hang its hat in paragraphs 81 and 82 on one case, the twelve year old R. v. O’Connor, a criminal case from which can be read in full here. Check out the head note (the summary up front)and the many splits in this 6-3 ruling. Only two passages are mentioned from that case, paragraphs 114 and 120 (though the second one appears to really be quoted from 119) but the whole passage is about psychological trauma and privacy concerns arising from cases of sexual assault and defamation. The O’Connor ruling references an even earlier case when it states: “privacy, including informational privacy, is “(g)rounded in man’s physical and moral autonomy” and “is essential for the well-being of the individual”.

For me this is all not very satisfactory. Cases on the other class of privacy, autonomous decision making, out of the Supreme Court of Canada, after the date of the O’Connor ruling, take great pains to set out the test being use, displaying the formulation of preceding cases that justify the way the court is thinking. I just don’t think the court has pulled it off. Plus, it has not shown how the test in O’Connor is reasonably applicable – it may be but it is not stated. I do not doubt that all people who are sexually assaulted or defamed experience an attack on their personal psychology related to shame – but are all people to give children up for adoption in a similar position? The others classes include people who are wronged. Are they really comparable? You may think they are and that is fine but has the Court convinced you that it thought they were? If not, why was the O’Connor case picked as the most appropriate statement?

One other point – which may be worth another post. The question was raised as to the relative rights of adopted people and their birth parents. The court found at paragraph 115:

…this is not a case where we have competing Charter-protected rights. The applicants’ right to liberty under s. 7 has been breached. The rights of the searching adoptees or birth parents to the disclosure of confidential adoption information, although important and heart-felt, are not protected by s. 7 or any other provision of the Charter

My problem with this is that it is in this case where the court first accepts the right to privacy a birth parent enjoys in relation to adoption files. It does not go through similar analysis of the rights of the adopted to determine the state of adoptees to the same degree of rigor. In fact, the court goes on to primarily discuss the general relation of a constitutional right to privacy and the general right to information. That is unfortunate.

I don’t know the politics of whether this case will be appealed. It would be interesting to see the principles of informational privacy better enunciated with a more careful description of the grounds being relied upon and, especially, how it is that one record which references critical information in relation to two persons, the birth parent and the adoptee, must defer to the interests in one over the other, the voluntary party over the involuntary one.

But throw your two cents in. I am quite happy to be wrong as we all are most of the time. Just knowing you read a court ruling on a constitutional point is reward enough for me.

Here are the footnotes:

  • [48] Euteneier v. Lee 2005 CanLII 33024 (ON C.A.), (2006), 77 O.R. (3d) 621 (C.A.) at para. 63. The intervener argues that if Parliament had wanted to protect privacy as a free-standing right in the Charter, it could have done so expressly. For example, section 5 of the Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12, enacted in 1975, provides explicitly that “every person has a right to respect for his private life.”
  • [49] Dyment, supra note 35 at para. 26; Duarte, supra note 36 at para. 33: “our right under s. 8 of the Charter extends to a right to be free from unreasonable invasions of our right to privacy.”
  • [50] R. v. Hebert, 1990 CanLII 118 (S.C.C.), [1990] 2 S.C.R. 151 and R. v. Broyles, 1991 CanLII 15 (S.C.C.), [1991] 3 S.C.R. 595, cited in Dagg v. Canada (Minister of Finance), 1997 CanLII 358 (S.C.C.), [1997] 2 S.C.R. 403 at paras. 65-66. See also O’Connor, infra note 53 at para. 110 and M.(A).v.Ryan, 1997 CanLII 403 (S.C.C.), (1997) 4 C.R.(5th) 220 (S.C.C.)
  • [51] Cash Converters Canada Inc. v Oshawa (City), 2007 ONCA 502 (CanLII), 2007 ONCA 502 at para. 29 – 30; also see Euteneier v. Lee, supra note 48.
  • [52] Mills, supra note 34 at para 80.
  • [53] 1995 CanLII 51 (S.C.C.), [1995] 4 S.C.R. 411.
  • [54] Ibid. per L’Heureux-Dube J. at para. 114.
  • [55] Ibid. at para. 120

Group Project: Federal Election 2007

Apparently, the logos were being slapped on buses as we slept thought the night:

The Tories, in fact, reportedly plan to use the two already-equipped buses now being operated by Progressive Conservative Leader John Tory in the Oct. 10 provincial election campaign. Two more Greyhound buses for the federal Tories, it’s said, are also being prepared and “wrapped” with Conservative logos and large photos of Harper.

Why? Because the Bloq says they will not support the throne speech and the NDP says they will not support the throne speech. That means a few things:

  • They will, in the end, support the throne speech.
  • Facing the prospect of the Bloq and the NDP not supporting the throne speech, the Liberals will support the throne speech.
  • We are going to have an election!

I love elections. Except Ontario provincial elections which create about as much excitement and policy debate as the weekly seniors discount day at Shoppers Drug Mart. Polite debates largely built around consensus on the bog points. Bo-ring.

Not that we need a Federal election. The minority government is doing quite fine keeping everyone on a pretty moderate path while also providing good opportunity to expose the weaknesses of everyone involved. What could be better? So, if an election comes:

  • Who do you vote for and why?
  • Does punishing the party that triggers the unnecessary election play a role?
  • What are the issues?
  • What is the popular vote?
  • What is the seat count?

That’s not too hard, is it?

Paying Indirectly Is So Much More Comforting

Not that I can extract myself from the cost of being advertised upon/to/at, the idea that the New York Times has “got it” and is giving away its subscription content misses the point:

“I was surprised by the New York Times’ decision,” Globe and Mail publisher Phillip Crawley said. He would have reservations about converting the Globe’s archives to a free database given the revenue it generates, turning a profit for the paper. “The Globe’s archive, with its long history, is a treasure house of information which remains a valuable asset,” he said.

The Times is hoping to use its new free archive to draw traffic into other parts of the website, Ms. Schiller said. “A certain portion of the people that come in through the archive … are going to get diverted,” Ms. Schiller said. “They’re going to find other portions of our site such as business, technology, health, entertainment – key verticals that you can really monetize.”

Yowch! I just got my key verticles monetized! I wish they would apply a cream before doing that. But by figuring out they can extract more money, by slapping on more ads, your soda pop goes up in price, you car, your whatever you buy. Big deal, you say – but then say big deal to the long tail, the many people making small choices to control the direction of culture. Nope, this is another step in the internet becoming more and more like TV as opposed to whatever what people were wishing for in 2004. Remember 2004? That was so cool.

Tacos Are Easier Than BBQ

I made my own fresh tomato salsa yesterday. Just ripe tomato, lime, onion, cilantro and…was there anything else? In fact I made a whole Canadian-Mexican feed for 12 (even though there were only five of us) in about 45 minutes. This is nutty and may have to be explored more. I don’t know if it was a life filled with Dora and Diego or the Taco Bell ads but one kid insisted we had to have tacos this weekend and I obliged. When they want BBQ, the marinade gets started the night before.

I suppose now I have to spend the winter going through Rick Bayless’s books…or maybe just getting it for free off the interweb.

Update: and they are good for breakfast, too. Reminds me a lot of eating Lebanese food in the 80s care of my pal’s mom teaching us all the way of kibbe, mishi, falafel, babaganoush and tabouli. Heck, I used to make my own Syrian flatbreads. Life before kids. Nothing like a big table spread and time to chow down. We Scots? Innards. Nothing but mammal guts. Quite different thing all together.

While we are at it – fresh figs. Bought a flat from the ever excellent Produce Town, Joe’s Figs of California for $6.99. Joe, sadly, has no website. Figs go with coffee. What other fruit does that? Yet figs are not fruit. You know that, right? In fact, figs and beer are closely related.

Porter Season: Black Irish Plain Porter, Scotch Irish, Ontario

Greg beat me to this review but only because he is in the heart of LCBO-land, Toronto, and it takes some beers weeks to make the two hour trip east. The nuttiness of that is compounded by the fact that beer is brewed by Scotch Irish Brewing (now aka Heritage Brewing) of Carleton Place to the east of me – but centralized authority must have it’s way, you know.

This beer is dandy. The kind of beer that I do not expect to be made by Canadians – an accusation which makes depresses when I make it. But this is confident, a good example of a style, honest in that it is what it says it is and tasty. Sister to the excellent if recently slightly subdued Sgt. Major IPA, this beer pours a deep blackened brown with a light mocha rim and foam. On the sniff, there is cream, dry cocoa and espresso. In the mouth there is more dry cocoa, coffee, plum, date and plenty of drying but not astringent hopping on a reasonable soft water background. At 4.5%, it is moreish and sessionable. Two bucks a stubbie at the government store. Good doggie.

I Never Thought I Would Write This: Syracuse Wins!

I was conscious for most of it and listening intently on the radio when I was awake. At one point, half drifting, I thought that Syracuse had been caught in the second half, that the score was 31-21 Louisville, that the rational universe had imposed itself again. But no, the Orange won 38-35 over a top ten team.

No smart remarks this week, then, just solidification of plans to hit the next US city in a few weeks.

Trying To Recall Cafe Wim

I don’t know why I woke up and asked myself what it was I liked to order at the long shut Cafe Wim on Sussex near the market in Ottawa in the mid-90s. I was awake the best part of an hour involuntarily trying to remember. There are enough references on the internet but I can’t find a picture of the large Dutch flag flapping out front facing the HQ of Revenue Canada. I think it might have just been the pot…no, basin of cafe au lait, open faced sandwishes on rye with thin onion, the college lassies in black and bulky sweaters reading and smoking, pre-wi-fi, the mismatched furniture and the staff who exuded accusations of poserism as they themselves posed. In the back there was the semi-abandoned odd dark split levels of Expo-67-meets-Holland furnishings, beyond that a patio. I was there the weekend before the last Quebec Referendum. It was like this but this is not it. It was a stage on a Saturday afternoon before ending at Irene’s.