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Law Times • may 4, 2009 ewly minted legisla- tion at Queen's Park is going to have an immediate impact on the legal profession — but not in ways you might think. Bill 118, which received N Legislating common sense Inside Queen's Park third reading April 22 and now wends it way to proc- lamation before becoming law, amends the Highway Traffic Act to "prohibit the use of devices with display screens and hand-held communication and entertainment devices and to amend the Pub- lic Vehicles Act with respect to carpool vehicles." There are doubtlessly a few practitioners out there who might see this as an opportunity to garner more clients resulting from them being charged with yakking on their mobiles while driving. But I reckon there are a few lawyers who are going to be en- By Ian Harvey snared in this legislation before the message really sinks in. We all know that billables happen any time, anywhere, these days, regardless of whether you're sitting behind your desk, on your feet in a courtroom, or driving to work. So it's no surprise many practitio- ners are welded to their cellphones while commuting, either dictat- ing notes, answering calls from clients and colleagues, or setting up the next day — or that night's activities — while driving. If this is you, I have two words: hands free. In another life I spend my time playing with technology, rumi- nating on the benefits of Bluetooth 2.0 and WiMAX and arguing the long-term savings of virtualization and Software-as-a-Service, so I know something about this stuff. It will soon be an offence to drive and "hold" a mobile whether it is in use or not. And that includes checking your e-mail and text messages — let alone answering texts or e-mails. There are some exceptions: for one, a global positioning system navigation device — though it strangely does not specify the device should be in "audio" mode for turn-by-turn directions while being used. Having one myself I find it not just distracting but dangerous to follow the graphics to provide navigation information so always just follow the audio directions. Other exceptions include commercial tracking devices, collision avoidance systems, and basic vehicle information displays. "I think we all recognize that new technologies have created some tremendous conveniences, but they need to be used with caution," noted Transportation Minister Jim Bradley in the House in presenting the bill for third reading. "I don't think there is a per- son anywhere who hasn't texted, e-mailed, or talked on the phone while driving, even though we know it is dangerous to do so. Re- search shows that a person who uses a cellphone while driving is four times more likely to be involved in a collision than if that person were simply focused on the task of driving." He said Transport Canada estimates that driver distraction is a contributing factor in approximately 20 per cent of collisions. "There should be no doubt that those people who do not focus on the task of driving, should in fact not be driving," he said. Indeed, having been nearly clipped by a madman engrossed the Sudan. In 2003, Sudanese officials, at the request of Canadian national security agen- cies, arrested him while he was visiting his ailing mother; he has not been able to return to Canada for approxi- mately six years. Abdel- razik indicates that he was tortured while in a Sudanese prison and has spent the last year living in virtual isolation at the Canadian Embassy in Khartoum. The Conserva- tive government has refused to grant Abdelrazik travel documents to return home to Canada on the claim that he represents a national security threat. Recent reports indicate that allegations against Abdelrazik can be traced to information extracted from Abu Zubaydah, a man relentlessly tortured at Guantanamo Bay before the Amer- icans decided that he was of little use to them. Several months ago, former Supreme Court A Abdelrazik is a dual citizen of Canada and COMMENT Diffusing the ticking time bomb BY REEM BAHDI & JASMINKA KALAJDZIC For Law Times bousfian Abdelrazik's saga once again raises doubt about Canada's relation- ship with torture. Speaker's Corner justice Frank Iacobucci released his report into the actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abou El Maati, and Muayyed Nureddin. He found that Canadian officials were deficient both in labelling the three men as Islamic extremists and in their information sharing with foreign states. These deficiencies contributed to the torture of the men in Syria. Despite these findings, Canada has not lodged an official protest with Syria, no apologies have been made, and no one has been held accountable. Official indifference to torture, it seems, continues. Recent weeks have confirmed that the in- need. It also assumes that torture is the best way to get at truth. But, seasoned interrogators hold that non-coercive techniques are more efficient and effective than torture. Also, information extracted under torture proves notoriously un- reliable in part because innocent people will confess to anything if tortured. Torture's political and social costs ultim- ately outweigh any professed intelligence gains. Torturing states and those who work with them lose their credibility and reputa- tions. Torture also undermines the humanity of all involved and erodes fundamental social values like equality and security of the person. Experi- ence across jurisdictions that countenance torture reveals the futility of con- taining torture to exceptional circumstances once the Pandora's box is opened. It too easily becomes routine rather than exceptional. Torture also erodes the rule of law. Tor- PAGE 7 ture inverts the trial. While the trial studies evidence to determine if punishment is war- ranted, torture punishes to generate evidence. "If they are not guilty, beat them until they are" is torture's simple and warped logic. While CSIS officials engage in hypothetical ticking time bomb scenarios to justify breach- es of international law and our own Criminal Code, the reality of torture is all too appar- ent for several Canadian citizens. Their stor- ies chronicle the weakness of the ticking time bomb hypothetical. Associate Chief Justice Dennis O'Connor of with a cellphone while speeding along Kingston Road a couple of Sundays ago, and almost killed by the lady on the phone who pulled out in front of my motorcycle on Dufferin Street and caused me to swerve into the oncoming lane which was thankfully empty, I'd have to say, it's a sensible piece of legislation. From here on in, you'll need a hands-free device such as a headset or a wireless headset which operates on Bluetooth. They're relatively cheap and easy to configure and use. If you feel silly looking like a refu- gee from Star Trek with a high-tech device in your ear, a la Lt. Uhura, another option is a Bluetooth speakerphone arrangement which clips on your visor. If you're that addicted to e-mail or text, you'll also need to subscribe to a service like iLane which will convert your e-mail to voice and allow you to dictate responses — hands free, of course. Or, you could just buy a Ford SYNC system which uses Bluetooth to turn the car's interior into a hands-free phone system. It will recognize voice commands such as "call the office" and will even play songs on command pulled from your smartphone's memory if you're so inclined. In the absence of such hands-free technology, your options are to pull over to the side of the road or park before you dial. There are some other exceptions if you're stuck in traffic and not moving or if you're calling 911 for emergency assistance. Calling 411 doesn't count, by the way. Unfortunately, it doesn't specify some of the other madness we've seen such as application of lipstick and mascara on the 401 westbound, reading the morning newspaper on the Don Valley Parkway southbound, the strange and growing practice of having a lap dog — not laptop — occupy the driver's lap and hang out the window, and other such automobile anomalies. The scary thing, of course, is that we're forced into legislating what should be common sense. LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. ternal culture of our national security agencies has not changed despite two commissions of inquiry. The Canadian Security Intelligence Service recently revealed its view of torture in hearings before the Standing Committee on Public Safety and National Security, called to examine the 21 outstanding recommenda- tions of the Arar report. On March 5, Security Intelligence Review Committee representative Susan Pollak ac- knowledged before the House Committee that "yes, CSIS does use information that was ob- tained through torture." CSIS lawyer Geoffrey O'Brien confirmed that the agency will use torture confessions. Shortly thereafter, CSIS director Jim Judd backtracked, claiming that "our policies and practices" have changed. What is going on within CSIS? At best, there is a debate about the efficacy of torture. At worst, there is an attempt to cover up ongoing illegal and immoral practices. Both scenarios are unset- tling because the prohibition against torture can- not be clearer: direct or indirect involvement in the torture of another human being is against the law. The Criminal Code explicitly prohibits tor- ture. No exceptional circumstances — not war, threat of war, or any other public emergency — justify it. International law is just as clear. Those who accept the efficacy of torture invoke the "ticking time bomb" scenario as rationalization. O'Brien did that the end of March. On this logic, torture is justifiable if it leads interrogators to a ticking time bomb that is about to kill innocent people. While the ticking time bomb scenario seems convincing in the abstract, it crumbles under scrutiny. The scenario rests on a number of improbable assumptions including that security agencies do not make mistakes and interrogators somehow know in advance that they have the right per- son who possesses exactly the information they www.lawtimesnews.com the Court of Appeal for Ontario revealed the serious errors in judgment that led Canadian of- ficials to falsely label Maher Arar an Islamic ex- tremist; these 'mistakes' caused Arar's detention and torture. Similarly, Iacobucci confirmed that Canadian misconduct contributed to the torture of Almalki, El Maati, and Nureddin. For ex- ample, Canadian officials sent questions to Syria despite the likelihood that interrogators would torture Almalki when they put those questions to him. Iacobucci found that such Canadian ac- tion "resulted indirectly in mistreatment of Al- malki," and that this "mistreatment" amounted to torture. Canadian officials also used Ahmad El Maati's confession of an impending terrorist attack upon Ottawa to obtain a search warrant though they knew that the confession was prob- ably the result of torture. Why? Because Can- adian officials had labelled Ahmad El Maati and Abdullah Almalki "imminent threats." It turns out, however, that with respect to both men the label was, in the words of Iacobucci, "inflamma- tory" and "lacking investigative foundation." These experiences illustrate the problems with ticking time bomb justifications for tor- ture. National security agencies define who is an imminent threat and they countenance torture on the basis of that label. But, national security agencies can be wrong in their assess- ment of who poses a threat, let alone an im- minent one. The torture of our citizens was real. The threat assessments used to justify complicity with torture and the information obtained from torture were not. Yet, our agen- cies and politicians fail to take responsibility for the enduring suffering they have helped heap on Canadian citizens and our agencies continue to justify torture to Canadians. So much for the ticking time bomb. LT Jasminka Kalajdzic teaches access to justice at the University of Windsor, was lawyer to Abdullah Almalki before the Iacobucci inquiry, and can be contacted at kalajj@uwindsor.ca. Reem Bahdi teaches access to justice, tort law, a course about torture and national security at the University of Windsor, and can be contacted at rbahdi@ uwindsor.ca.