Book review – “Tough Crimes: True Cases by Top Canadian Criminal Lawyers” by Christopher D. Evans and Lorene Shyba

[originally posted at Canadian Lawyer]
It’s the question every criminal lawyer has been asked more than any other (after “Why did it cost that much?”): “How can you defend a person you know to be guilty?” And my answer is always that it’s really not that hard, relatively speaking.
If I know or strongly suspect my client is guilty, I still believe the Crown must prove its case beyond a reasonable doubt, without relying on means that violate the Charter of Rights and Freedoms.If a person’s liberty is to be taken away by the state, we’d better be sure the state has made its case. That protects the rights of everyone, not just the accused.

But defending a person whom I believe to be innocent, now, that’s the kind of case that keeps me up at night. The innocent person’s freedom depends largely on my competence as a lawyer, this can be emotionally exhausting.

Marie Henein, a contributor to the absorbing compilation Tough Crimes: True Cases by Top Canadian Criminal Lawyers and who is now in the spotlight as Jian Ghomeshi’s counsel, feels the same way. Recounting her representation of former Ontario attorney general Michael Bryant when he faced a charge of dangerous driving causing death, she notes, “any lawyer will tell you that it is the innocent who are the toughest to defend . . . I can think of no case in which I agonized so much over the strategy.”

Edited by C.D. Evans and Lorene Shyba, Tough Crimes features essays by several eminent Canadian lawyers, discussing the most interesting, notorious, or compelling cases they’ve worked on.  The most noteworthy thing about the book is that it illustrates the emotional toll criminal law can take on the people who practise it.

Vancouver’s Richard Peck, spent more than four years of his life representing Ajaib Singh Bagri, charged — and ultimately acquitted — in the Air India bombing case.

On the Crown side, meanwhile, New Brunswicker Fred Ferguson, discusses his emotionally exhausting participation in the heartbreaking case of John Ryan Turner, a young boy abused, neglected, and killed by his parents. The case reduced this hardened, experienced lawyer to tears.

Even where the client undeniably bears some responsibility for the alleged crime, there are sometimes mitigating circumstances that can make counsel more emotionally invested in the case.

Stan Koebel certainly made mistakes that contributed to the Walkerton contaminated water tragedy, but his lawyer William Trudell recalls his client’s feelings of soul-crushing remorse, and how other parties tried to make Koebel a scapegoat for their own errors and failings. Similarly, the teenager who opened fire on his classmates in Taber, Alta., did indeed pull the trigger, but his horrific act came only after a lifetime of sadistic bullying.

Tough Crimes also offers considerable insight into the idiosyncratic thinking that separates Canada’s top lawyers — the ones deemed worthy of contributing to this volume — from their peers.

Henein, for example, decided it was in her client’s best interests to disclose the evidence compiled for Bryant’s defence to the Crown, in the hopes that prosecutors would decide he was not criminally responsible for killing a pedestrian with his car, and refrain from laying charges in the first place.

Most of us would keep that evidence far away from the Crown, on the basis it’s their job to prove the guilt of the accused, not the job of the accused to prove his innocence. But Henein’s gamble paid off; the evidence very clearly showed Bryant was defending himself from an agitated, unstable, and violent “victim,” and no charges were laid.

The first essay in Tough Crimes is by none other than the recently deceased Edward Greenspan, describing a case in which a jury convicted his client despite absolutely overwhelming evidence he was not guilty. Every dedicated lawyer does everything he or she can for the client, and voluntarily takes on a heavy emotional and intellectual burden in doing so. But as Greenspan’s case illustrates, even the best can’t win ’em all.

Garry Trudeau shows those murder victims who’s boss

Apparently 12 people were killed because of this

The question is, will other Western media outlets show solidarity with Charlie Hebdo by lifting their self-imposed ban on showing images (satirical or otherwise) of the Prophet Mohammed?

Update: not promising: @Yair_Rosenberg notes that The Telegraph is blurring out Charle Hebdo‘s depictions of Mohammed.

I’m wondering which Western news writer will be the first to say Charlie Hebdo brought this upon itself, and how long that person has written for The Guardian.

Flashback: in 2009, Yale University Press published a book about the controversial Mohammed cartoons commissioned by a Danish newspaper – but would not reprint the cartoons in the book. (Via @Will_Antonin)

I distinctly remember The New York Times illustrating  a story about that cartoon controversy with a picture of…Piss-Christ.

There’s no justice like mob justice

Reading the front-page story in today’s Metro, about 13 Dalhousie dental students being suspended from clinical activities for their appallingly sexist Facebook comments, I was struck by this passage near the end:

Florizone said he’s not ruling out the possibility of expulsion, but emphasized university administration must follow a fair and just process to determine the proper course of action.

However, Jennifer Nowoselski, vice president internal of Dalhousie Student Union, believes those policies are outdated, saying it doesn’t protect students from sexual discrimination.

“It’s the base minimum of what the university could do in this situation,” she said.

Yeah, who needs due process, anyway?  It’s not like sexually charged allegations at a university ever turn out to be incorrect, right?

These Facebook comments (some of which “joked” about using chloroform to sexually violate women) were disgusting and grossly inappropriate, and the fact that these idiots would post them online, apparently under their own names, calls into question whether they’re smart enough to perform dentistry in the first place.

Is the university, whose reputation has been seriously damaged, right to investigate this?  Sure.  But the key word is “investigate,” before we destroy people’s lives and careers.

Someday, it could be one of the people demanding immediate expulsion who finds herself in trouble for something she wrote online.  And when that happens, I suspect she’ll be grateful for “a fair and just process to determine the proper course of action.”

Book review: “The Lynching of Peter Wheeler” by Debra Komar

[Originally posted, with a few editorial changes, at Canadian Lawyer]

A common argument from supporters of capital punishment is that it should only be imposed when we’re absolutely certain that the condemned person indeed committed the horrible crimes of which he was accused.  And if there were indeed a way to be 100% sure that a person found guilty of murder was indeed guilty, I might be more sympathetic to this argument.  I do believe there are some crimes so ghastly that the penalty of death is justifiable.

However, in any criminal case, the prosecution bears the burden of proving the accused person’s guilt beyond a reasonable doubt.  This standard becomes even more strict when the alleged crime is particularly serious, and the punishment particularly severe.  If a person has been found guilty of murder following a trial, by definition we are “100% sure” he indeed did it.

And yet, we know all too well that this isn’t the case.  Donald Marshall and Guy-Paul Morin were found guilty of murder, only to be exonerated.  More troubling, this has happened in jurisdictions where capital punishment is still imposed.  In the United States, the Death Penalty Information Center lists 147 people who were sentenced to death, only to be acquitted or have their charges dismissed or pardoned.

In practice, the death penalty has been disproportionately used against minorities and the poor, and innocent people have almost certainly had their lives taken by the state.  In the 1890s, it happened in Nova Scotia.

Debra Komar’s The Lynching of Peter Wheeler makes a strong case that, at the very least, there was reasonable doubt as to whether Wheeler really killed fourteen-year-old Annie Kempton of Bear River, Nova Scotia. But he was hanged anyway, following a botched and biased police investigation, a smear campaign by the media, and a dubious trial.

Indeed, the most startling thing about The Lynching of Peter Wheeler is finding out what passed for “journalism” in Nova Scotia just before the turn of the 20th century.  Whatever sins are committed by websites and 24-hour news channels today pale in comparison to the blatant speculation and outright fabrication by tabloid papers based in places like Digby and Annapolis Royal.  It turns out that even smaller communities had daily or weekly papers at the time, and people were hungry for news about the scandalous murder of young Annie Kempton.  With a few noble exceptions, these reporters were going to give it to them, facts be damned.

They probably couldn’t have invented a “villain” like Wheeler, who had the misfortune of being foreign-born, of questionable ethnic origin, single, lower-class and (though deeply spiritual and well-versed in the Holy Bible) not a regular churchgoer.  Throw in the fact that he rented a room from a single woman to whom he seemed very close, and the fact that he was at least acquainted with the victim (though he couldn’t possibly have been at her residence when she was murdered, a fact the authorities sort of waved off) and you had the perfect scoundrel.

Few people come out of The Lynching of Peter Wheeler with their reputations intact, but Halifax detective Nicholas Power probably looks worst of all.  A shameless self-promoter who kept nominating himself for the King’s Police Medal until they finally gave in and awarded it to him, Power was tasked with finding out who killed Annie Kempton – or, more accurately, confirming that the suspicious Peter Wheeler did it.  Evidence which may have raised doubts about his guilt was ignored, and damning information was regularly whispered to the papers.  Even though the trial was moved from Digby to Kentville, the outcome was never in doubt.  And in the end, the execution was botched so badly by the local sheriff (who insisted on carrying out the procedure himself, even though Canada’s national executioner was in town) that Wheeler was slowly and painfully strangled to death.

Komar’s well-researched book reads like a novel, but she is unable to answer the ultimate question, which the prosecutor used as his key argument before the jury: if Peter Wheeler didn’t kill Annie Kempton, then who did it?  A few possible culprits are named, but there wasn’t nearly enough evidence to link them conclusively to the murder.  This unanswered question might have swayed the jury that condemned Peter Wheeler, but it wasn’t the question they had to answer.

The only issue that mattered was whether his guilt be proved beyond a reasonable doubt?  In retrospect, Komar establishes that it couldn’t.  But it’s far too late for Peter Wheeler.

Slow justice is no justice

A New Brunswick judge has been “mildly chastised” by the Canadian Judicial Council for taking so long to render her decisions:

Court of Queen’s Bench Justice Paulette Garnett was the subject of a complaint by an unknown person to the judicial council last spring, a year after CBC News reported on several of her overdue decisions.

But she will face no disciplinary action for bogging down the judicial system, according to a decision released on Tuesday.

“The judge had been very late in issuing reasons in a number of cases,” the council said in a press release.

“Undue delays in rendering decisions can lessen public confidence in our justice system. … The judge has acknowledged that she needs to do better in future, She is working to ensure that this situation does not happen again.”

Garnett was appointed in 1998 and almost immediately began violating judicial council guidelines, which call for delivering judgments within six months of the conclusion of a hearing.

One of her first cases, a claim for back rent at the Bathurst Supermall made in August of 1998 wasn’t decided on for nearly 13 months.

That became a familiar pattern to lawyers and parties in her courtroom for years to come.

In 2005, she presided over a one-day hearing between Fredericton’s old Elm City Chrysler dealership, its owners and their bank to resolve questionable transactions. She delivered a decision two years and two months later.

In 2012, she took so long to decide whether employees of Fredericton’s Jones Masonry had properly unionized, Gordon Petrie, the company’s lawyer, eventually died.

That’ll show her.

(via @BobTarantino)

John Grisham is (partly) right

I still remember John Grisham’s hypocritical moral crusade against Oliver Stone’s last good movie, so I can’t deny feeling some shadenfreude watching him squirm over comments he made in an interview with The Telegraph:

“We have prisons now filled with guys my age. Sixty-year-old white men in prison who’ve never harmed anybody, would never touch a child,” he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week.

“But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn.”

The author of legal thrillers such as The Firm and A Time to Kill who has sold more than 275m books during his 25-year career, cited the case of a “good buddy from law school” who was caught up in a Canadian child porn sting operation a decade ago as an example of excessive sentencing.

“His drinking was out of control, and he went to a website. It was labelled ‘sixteen year old wannabee hookers or something like that’. And it said ’16-year-old girls’. So he went there. Downloaded some stuff – it was 16 year old girls who looked 30.

“He shouldn’t ’a done it. It was stupid, but it wasn’t 10-year-old boys. He didn’t touch anything. And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people – sex offenders – and he went to prison for three years.”

“There’s so many of them now. There’s so many ‘sex offenders’ – that’s what they’re called – that they put them in the same prison. Like they’re a bunch of perverts, or something; thousands of ’em. We’ve gone nuts with this incarceration,” he added in his loft-office in Charlottesville, Virginia.

Asked about the argument that viewing child pornography fuelled the industry of abuse needed to create the pictures, Mr Grisham said that current sentencing policies failed to draw a distinction between real-world abusers and those who downloaded content, accidentally or otherwise.

The thing is, Grisham has a point.  Not so much about child pornography (I don’t care how drunk you are or how much your life is falling apart, you there is no excuse for looking at this stuff) but about America’s addiction to incarceration.

The United States has by far the highest incarceration rate on earth, a phenomenon that really began in the 1980s.  And many of the people in American jails are not violent offenders – or, at least, they weren’t before they were locked up.

Grisham makes a fair point, that people who access child pornography are in many cases being punished more severely than people who actually abuse children. But by and large, the incarceration explosion is because of the unworkable, destructive “War on Drugs”:

The prison population across the U.S. starts off relatively low in the late 1970s, with most states having about 130 to 260 prisoners per 100,000 people.

By the late 1990s, incarceration rates have risen to more than 600 prisoners per 100,000 people in some states, including Texas, Louisiana, and Oklahoma. By the 2000s, every state in America had seen its imprisonment rate rise significantly.

The prisoners included in the statistics are under state or federal jurisdiction and have a sentence of more than one year.

The War on Drugs, which led to long prison sentences for drug offenders, is largely considered a massive failure that led to prison overcrowding without significantly changing U.S. drug abuse rates.

Fareed Zakaria writes for TIME:

“Drug convictions went from 15 inmates per 100,000 adults in 1980 to 148 in 1996, an almost tenfold increase. More than half of America’s federal inmates today are in prison on drug convictions. In 2009 alone, 1.66 million Americans were arrested on drug charges, more than were arrested on assault or larceny charges. And 4 of 5 of those arrests were simply for possession.”

That’s what Grisham really should have focused on. When the full interview is published on Saturday, we’ll see if he did.

Update: much more from the great Radley Balko, including an acknowledgement of Grisham’s laudable work for criminal justice reform, and a response to his “progressive” critics.

Book review: “Freedom From Speech” by Greg Lukianoff

[originally posted at Canadian Lawyer]

It used to be that people waited until they were actually offended to take action against something that offended them, but Carleton University student Arun Smith has no time for such details. When a “free-speech wall” upon which anyone could write any opinion was erected at his school last year, Smith promptly tore it down. When the wall went back up, he did it again.
Smith was unapologetic about his actions, declaring on his Twitter feed that, “Not every opinion is valid, nor deserving of expression.” When CBC journalist Kady O’Malley argued that this isn’t his call to make, Smith responded, “just watch me.”

Greg Lukianoff’s Freedom From Speech, an entry in the “Broadside” series issued by the conservative publisher Encounter Books, shows how this attitude is depressingly common on American college campuses, with implications for the world outside of the university — including the legal system.  As the Smith case illustrates, this attitude is depressingly common in Canadian schools as well.

Lukianoff is a representative of the Foundation for Individual Rights in Education, which monitors and takes legal action against censorship and suppression of speech in American post-secondary institutions.

Unfortunately, his organization has been particularly busy in recent years, as restrictive “speech codes” proliferate and students mobilize against speakers whose views are apparently so repugnant that no one should be allowed to hear them.

Conservative personalities initially made up most “disinvitation season” targets, but as these things are wont to do, before long more liberal (but insufficiently liberal) speakers were hounded off campus, assuming they weren’t disinvited beforehand. Off campus, meanwhile, the likes of celebrity chef Paula Deen, MSNBC host Martin Bashir, and Mozilla Firefox designer Brendan Eich saw their careers torpedoed by the outrage patrol, sometimes for incidents or comments made years beforehand.

As Lukianoff acknowledges, where governmental agencies or institutions aren’t involved, these aren’t constitutional violations as defined by the First Amendment. People do, of course, have every right to express their distaste with someone’s remarks or actions, and refuse to patronize businesses which employ that person.

But the attitude implicit in these campaigns — that people have a “right” to be protected from material that may offend them — seems to be spreading and it has serious implications for the legal system and our system of government.

In some European jurisdictions, for example, a “right to be forgotten”  — mandating the removal of information about certain people from the Internet — is being awkwardly implemented. And much of the world is seeing a revival of laws against anti-religious “blasphemy,” with potentially disastrous consequences.

Lukianoff convincingly argues that the “right” to be free from offence is a pernicious concept that universities — institutions supposedly dedicated to the pursuit of truth, freewheeling debate, and challenging of old assumptions —- should be fighting against. Instead, they’re the incubators.

Interestingly, Lukianoff also points to a “problem of comfort” largely brought about, paradoxically, by the abundance of media outlets available on the Internet and cable television. If you’re a political conservative, you can get all your news from right-leaning outlets like Fox or the Daily Caller, rarely having their fundamental beliefs challenged. (For left-wingers, replace Fox or the Daily Caller with MSNBC and And when you get most of your news from one perspective, you’ll have that much harder a time handling news from another, opposed point of view.

How much of this is applicable to Canada? Well, with a handful of exceptions like the little-watched Sun News channel, our homegrown media outlets aren’t as politically polarized as those in the U.S.; on the other hand, in Canada, freedom of expression is culturally and constitutionally less sacrosanct. Either way, Arun Smith isn’t alone.

Film Review: “The Hunt”

[originally posted, with a few editorial changes, at Canadian Lawyer]
A curious anomaly in our justice system; the offence with the most severe penalty under law is not the crime toward which most people feel the most personal revulsion.
Maybe most of us will concede a situation, however remote the possibility, where we would take the life of another person. Taking away the innocence of a child, however, seems uniquely evil and incomprehensible. One who sexually abuses a child may not spend the rest of his life in prison, but the stigma that accompanies the offence is unparalleled.

Now, imagine being falsely accused of this unspeakable crime, especially when your livelihood depends on working with children.  That’s what happens to the main character in the Danish film Jagten (The Hunt), a nominee for Best Foreign Language Film at the most recent Academy Awards.

Lucas, played by Mads Mikkelsen, is a kindergarten teacher accused of molestation by one of his students. In reality, the little girl — who had latched onto her trusted teacher while her parents constantly fought — was upset about a perceived slight by Lucas, but in reality had been briefly shown a pornographic picture from the Internet by her older brother and his friend. But in a moment of anger, she told her principal that Lucas had shown her what she saw in the photo.

Little Klara (portrayed by then-seven-year-old Annika Wedderkopp, who had never acted before but proved to be a natural) subsequently admits she made it up, but the damage is done. School officials ask her leading questions about what “really” happened, and soon the allegations spread throughout this small Danish community. Then other children, perhaps pushed by hysterical parents and officials, come up with their own horror stories.

Lucas is forced from his job, ostracized by his community, and hauled into court. I had hoped that The Hunt would show us more about how the Danish justice system works, but the film is really about the effect these allegations can have upon a trusting community, and how a false allegation can destroy a life.

I presume you’re innocent until proven guilty in Denmark, but that’s certainly not how Lucas’ colleagues and neighbours feel.  Without giving too much away, I will say that the The Hunt’s startling final scene shows how the accused is forever guilty to the general public, even if the authorities say otherwise.

Directed by Thomas Vinterberg (who made another brilliant drama centering on allegations of sexual abuse, 1998’s The Celebration), The Hunt is a somewhat low-key, deliberately paced film that fans of Lifetime network movies about this subject may find dull. But Mikkelson’s performance as a man trying to keep it together while subjected to a Kafkaesque witch-hunt is a revelation — so much so NBC subsequently hired him to play the title role of the most famous serial killer in all of fiction in its series Hannibal.

The thing is, far more often than we like to admit, for this kind of thing there really are witches out there. Americans and Britons are still reeling from the revelations about beloved football coach Jerry Sandusky and entertainer Jimmy Savile, respectively. I grew up in Newfoundland when the unspeakable horrors at Mount Cashel Orphanage came to light, and I’ve never forgotten what these poor kids went through.

Child sexual abuse must be taken seriously, but that must be balanced with ensuring that those accused of such offences receive every legal protection to which they are entitled.  (In New Zealand, the conservative government and Labour opposition are falling over themselves to stack the deck in favour of prosecutors in sexual assault cases. Maybe they should be forced to watch The Hunt.)

Of course, as the film shows, legal protections are one thing. Social stigma is another. How does the wrongly accused defendant get his reputation back? That’s a question The Hunt can’t answer, and I’m not sure anyone can.