Dean of law

It happens to every lawyer: you find yourself in an argument with an Honours graduate of the Facebook College of Law – sometimes your own client, sometimes a self-represented litigant – who clings to an incorrect legal argument because he saw it on TV or on Twitter or something.  No matter what you tell him, it’s a lost cause – he just will not be moved, no matter how clearly you try to inform him otherwise.  (As Ed Koch allegedly said, “I can explain this to you. I can’t understand it for you.”)

Why, hello there, failed 2004 Presidential candidate Howard Dean. We were just talking about you:








If Dean was saying the First Amendment shouldn’t protect “hate speech,” or that freedom of expression isn’t so uncompromised in most other countries (including Canada) that would be one thing.

But that’s not what he’s doing. Regardless of what American lawyers and American courts actually say, he’s insisting that his interpretation of the First Amendment is correct, and he won’t hear otherwise.

The way he’s clinging to this reminds me of former London mayor Ken Livingstone’s insistence on taking every opportunity to argue that Hitler was a Zionist.  But, hey, at least the blinkered Dean never became President. Can you imagine if the most powerful man on earth were an ignoramus who absolutely refused to ever admit his mistakes or listen to people who actually know what they’re doing?

The mind boggles.

The Le Pen legacy

The great Claire Berlinski has produced a masterful account of French wartime complicity with the Nazis, the rise of the Front National, the bizarre family drama behind the scenes, and why Marine Le Pen – supposedly more moderate than her Jew-baiting, Holocuast-denying father, who founded the FN in 1972 – is so dangerous:

The Vélodrome d’Hiver, or Winter Velodrome — the Vel d’Hiv — was an indoor stadium on the rue Nélaton near the Eiffel Tower. On July 16, 1942, 4,500 French police and gendarmes, acting on the orders of the French administration, began carrying out plans to arrest 30,000 foreign adult Jews. This operation was given the codename “Spring Breeze.”

The arrests began at 4:00 a.m., but the initial results were disappointing. Many of the Jews on the list for detention, having been warned by the Resistance or hidden by neighbors, could not be found. The police, therefore, decided to detain 4,000 Jewish children instead. The Nazis had not asked for these children. Most had been born in France. The order was given by Maréchal Pétain’s minister, Pierre Laval. It was a wholly French innovation.

Some families were sent to internment camps near Paris, where the children, mostly aged between two and twelve, were separated from their families by the French police, drenched in water, and bludgeoned. Their parents were sent directly to Auschwitz.

Others were taken to the Vel d’Hiv. The few lavatories there were sealed, lest children escape through the windows. The children were left, alone, for five days in the unbearable heat, with only the scarce rations of food and water brought to them by the Quakers and the Red Cross.

From there, they were sent to the internment camps of Drancy, Beaune-la-Rolande and Pithiviers. Then in August, the children were sent, alone — on French rail cars, by the French government — to Auschwitz. The youngest child sent to Auschwitz, under Laval’s orders, was only 18 months old. Laval, according to the historian Julian Jackson, told an American diplomat that he was “happy” to get rid of them.

Not one returned. All were exterminated.

There is no dispute about this. It is as well-documented a historical event as exists, confirmed by the records of the Préfecture de Police, countless eyewitnesses, and in particular, by the past four decades of historical research, which have comprehensively documented the eager collaboration of the wartime French government. Police Chief René Bousquet, who organized the roundup, impressed his German counterparts with his energy. France “did not have a knife at its throat,” writes the historian Philippe Burrin of these events in his authoritative history, La France à l’Heure Allemande. “Without the help of the [French] police, the SS was paralyzed.” The American historian Robert Paxton notes that France was the only country in Western Europe to use its own police force to round up Jews in territory that was not occupied by the Germans.

Everyone in France knew it then. Everyone in France knows it now…


…There were two weeks to go before the first round. Marine Le Pen was not on the verge of victory, but she was on the verge, astonishingly, of an outside chance. Then on Sunday, the ninth of April — the eve of Passover, 5777 — she found herself on the LCI television channel’s weekly show. It had been a chaotic day. The moderator of the show — you remember his name — was Olivier Mazerolle. The fatigue of the campaign was obvious in her eyes. Mazerolle tossed her an easy question (or he broadsided her, depending on your perspective). “Was Jacques Chirac wrong,” he asked, “to make his speech about the Vél d’Hiv?”

Now, it should have been a reflex, for a de-demonized Le Pen. The right answer, the only answer in France, for more than twenty years, has been: “Of course he wasn’t wrong, it is a matter of great pride that we are a France that squarely confronts its past.” In fact, this generation in France really has no idea there has ever been any other answer.

But the Devil got her tongue.

Instead:I don’t think France is responsible for the Vel d’Hiv,” she said, as viewers’ jaws fell agape throughout France and its territories. “I consider that France and the Republic were based in London during the occupation. The Vichy regime was not France. I think that generally speaking, if there are people responsible, it’s those who were in power at the time. It’s not France.”

She tried to find firmer footing: France had “taught our children that they have all the reasons to criticize and to only see, perhaps, the darkest aspects of our history,” she added. “So, I want them to be proud of being French again.”

She realized, almost immediately, what she had done, quickly saying that this in no way exonerated those who participated in “the vile roundup of Vel d’Hiv and all the atrocities committed during that period.” But it was too late. The program had barely ended when a press release went out from her campaign headquarters to clarify her position. This is rare for the National Front, which usually holds there is no reason, a posteriori, to issue a communiqué explaining the president’s speech; their philosophy — usually — is that she means what she said and she said what she meant, and their leader is faithful, one hundred percent. The very fact of the press release indicated the recognition of an error, a grave misstep. By Monday morning, she was expressing regret. “If Olivier Mazerolle hadn’t asked me the question,” she said, “you can well imagine I wouldn’t have spoken of it.” (That sentence has two meanings. I’ll let you think about them.)

Unfortunately, this didn’t keep Le Pen from a second-place finish in yesterday’s first round of French Presidential voting, but she has no realistic chance of winning.  Early polls put her more than twenty points behind centrist Emmanuel Macron:

But she will almost certainly do far better than her father’s performance in 2002.  Jean-Marie Le Pen couldn’t break 18% of the vote in the second round; Marine has a realistic chance of doubling that.

The reaction of far-left candidate Jean-Luc Mélenchon (who won almost 20% of the first-round vote in his own right) is telling:

“I cannot say or do more at this time,” he added, notably declining to endorse a candidate in the second-round showdown between independent centrist Emmanuel Macron and far-right National Front leader Marine Le Pen.

His silence marked a departure from his vocal stance in 2002, when he urged his compatriots to turn out to vote for Jacques Chirac against National Front founder Jean-Marie Le Pen after the latter unexpectedly advanced to the second round, shocking France’s political establishment to its core.

Just as Jill Stein insisted that Hillary Clinton was every bit as bad as Donald Trump, the great anti-fascist crusader Mélenchon refuses to take a stand against the actual fascist who has a realistic chance of leading his country.  More evidence, as if any were needed, that the far left and far right are united against the center, even if they’d never admit it.

Child abuse for fun and profit

A Maryland couple is being investigated for the contents of their YouTube channel, which featured high-larious “pranks” at the expense of their young children:

…Mike Martin, the father who operates under the channel “DaddyOFive,” responded Wednesday morning in a video with his wife, Heather, titled “Family Destroyed Over False Aquisations,” [sic] in which he claimed that many of the pranks are scripted and his children’s ideas.

“The videos are fake. They’re fake. They’re over exaggerated. Some videos are scripted. They’re played out. The kids’ ideas, we act them out … We just wanted to make videos for you guys,” said Martin, who lists a Damascus P.O. Box address in his YouTube descriptions.

As of Thursday afternoon, all of Martin’s videos except the explanation video had been deleted.


The viral outrage began after the parents posted a video titled “Invisible Ink Prank,” in which Heather spilled invisible ink on the carpet. She and her husband profusely blamed the sons, screaming profanities, as the boys dissolved into tears and swore over and over that they didn’t do it. The parents begin laughing before Martin tells them, “It’s just a prank, bruh.”

I hadn’t heard of “DaddyOFive”, his channel nor his 200+ videos before today, and I was so much happier then.  Another YouTuber put together this compilation, and I dare anyone to finish it without wanting to hug their own kids.  Or run mommy and daddy through a wood chipper.

Either the kids in these “scripted” videos are the best child actors since Anna Paquin in The Piano, or their lives are being destroyed by their own parents.  As a parent I know what it looks like when kids are upset, and I say there’s absolutely no way these kids (especially the youngest, who appears to take most of the abuse) are faking it.

Even the “taken out of context” card can’t really be played here, because some of these videos clearly show the children being physically hit.

Online witch-hunts flare up every few weeks, whether it’s against someone making a joke about AIDS before flying to Africa or shooting a lion on safari.  Usually, I try to say we should wait for all the facts and resist the anger of the mob.

I still feel that way about “DaddyOFive.”  Maybe there’s more than we’re being told, the kids are safe, and this is all a great misunderstanding.

But this time, it sure looks like there really is a witch.

(via Jim Treacher)

Who catches the Creep Catchers?

Thanks to some self-appointed internet vigilantes, a mentally disabled young man in British Columbia will never again be able to bother the beer league hockey players for whom he kept score:

Jaxson Jacoe is 21 going on 13.

The Burnaby man doesn’t just look young. His father says he has attention deficit hyperactivity disorder (ADHD) that’s left him developmentally delayed and mentally challenged, with a pre-teen’s understanding of the world.

His family is now speaking up, saying Jacoe was humiliated and lost a job he loved after being caught up in a sting orchestrated by online groups aiming to catch sexual predators.

In late February, Jacoe decided he wanted his first girlfriend. A buddy recommended he use a dating app.

Almost immediately, Jacoe was approached online by a woman going by the name Ashley. Her posted age was 19.

“She messaged me first, saying I was cute and I want to ask you out on date,” recalls Jacoe. “And I responded back saying ‘Thank you.'”

But Ashley had a surprise. A short time later she revealed she was actually 14.

Jacoe said that was OK.


On Feb. 20, Jacoe was ambushed outside his workplace. The confrontation was caught on camera by two men who had posed as Ashley online.

“They were harassing me, they were bullying me”, he says, his voice shaking.

“They just approached me and started videotaping me and I had no idea what was going on.”

In the video, one man identifies himself as a member of the White Rock Creep Catchers.

The other says he’s Cody Hunter of the Langley Creep Busters.

They immediately challenge Jacoe.

“I’m Ashley,” says the White Rock Creep Catcher.

“You want to explain to the world, who by the way is going to see this, why you would consider a 14-year-old girl and bring her to your work of all places?” asks Hunter. “You don’t see anything wrong with that, do you?”

It’s apparent Jacoe is confused.

“Well, I didn’t know it was a guy,” he offers.

“Oh no, but that’s not the fact, it’s not that it was a guy, it was a 14-year-old child, you wanted to make her your girlfriend, right?” asks Hunter.

Hunter persists.

“Can you take me to your manager right now? Because we’re going to them whether you take us or not.”

The Creep Catcher chimes in, saying: “You work in a place full of little girls and children. It’s children, man. You’re preying on them.”

Jacoe tries to explain he doesn’t deal with children. “I’m score-keeping men’s beer league hockey,” he says.

The vigilantes are undeterred. “It doesn’t matter. There’s children here…you’re going after little girls.”

As responsible citizens, the “Creep Catchers” then took this information to the police posted the video on Facebook, with high-fives all around.  (“Did he pee his pants?” asked one fan.)  Jacoe was fired, and the vigilantes are unrepentant:

CBC News wanted to talk to the men who confronted Jacoe, identified as Douglas Perry of White Rock Creep Catchers and Cody Hunter of Langley Creep Busters on their Facebook pages.

They declined an on-camera interview.

Hunter, however, provided this explanation over Facebook messaging: “We did not see anything mentally wrong with Jax(s)on on the catch or in the chats … he knew what he was doing was wrong.”

As I noted in October, I am the parent of a child on the autism spectrum.  He’ll be a teenager before too long, and he may may want to test the stormy waters of online chatting and dating.

The overwhelming majority of people who encounter my son are understanding, but I’m not naive enough to think there won’t be those who will try to take advantage of him.  And in the age of online vigilantism, many people are actively looking for lives to destroy.  It makes them feel important and superior.

Ironically, Jacoe’s father says he was “pro-vigilante” until this happened:

“In the past, I’ve actually been…pro-vigilante,” says the 46-year-old concrete delivery driver. “I actually liked the idea of people standing up for others. Now I can see how much harm it does. It’s really that simple.”

He says his family has been devastated by the actions of the vigilantes.

“If they take out one real predator while damaging five other people’s entire lives…it’s not worth it. It’s just not.”

I want to get this on the record before, God forbid, it happens to my family.

On drunkenness and consent

Today’s Halifax Metro dedicates five full pages to taxi driver Bassam Al-Rawi’s acquittal on sexual assault charges, and Judge Gregory Lenehan’s comments in rendering his decision:

A Halifax taxi driver found with an intoxicated, unconscious, mostly naked woman in his cab and her DNA on his mouth has been acquitted of sexual assault by a judge who said there wasn’t enough evidence to prove the woman’s “lack of consent.”


Judge Gregory Lenehan ruled that Bassam Al-Rawi was not guilty of sexual assault in Halifax provincial court on Wednesday after he stood trial last month for a May 23, 2015 incident.


The complainant was found by police in Al-Rawi’s cab around 1:20 a.m., passed out after a night of drinking and being turned away from Boomers, a downtown bar. Her belongings were spread around the car as she lay in the backseat with her feet up on the two front seats, only a shirt partially covering her breasts. Her pants were also damp because she urinated on herself.


Al-Rawi’s pants were partially undone and sitting lower on his body, the court heard. As police approached, they saw his seat was reclined and he attempted to hide the woman’s pants and underwear.


“I have struggled to determine what all this evidence proves,” Lenehan said in his decision.


Part of the evidence the Crown presented was a toxicology report showing the 26-year-old complainant would’ve had a concentration of between 223 and 244 milligrams of alcohol in 100 millilitres of blood when police found her.


“Clearly a drunk can consent,” Lenehan said. “As noted by … the forensic alcohol specialist, one of the effects of alcohol on a human body is it tends to reduce inhibitions, and increases risk-taking behaviour.”


There’s no doubt the complainant was unconscious when she was found by police so at that moment she was unable to consent, Lenehan said — but what’s unknown is when exactly she passed out and “that’s important.”


She also couldn’t provide information on whether she “agreed to be naked in the taxi, or initiated any sexual activity,” Lenehan said.

Protestors and petitioners are calling for Lenehan’s job.  But his assertion that “clearly a drunk can consent,” while clumsily stated, is not inaccurate.  It comes down to the facts of a particular case:

Toronto criminal lawyer Robb MacDonald, however, says that one’s level of intoxication limits their ability to adequately consent to a sexual encounter.

“The truth is, intoxicated people can give consent in Canada,” MacDonald told CTV News Channel on Thursday. “The issue is their level of intoxication.”

The Supreme Court of Canada, MacDonald said, has been clear that if someone is intoxicated to the point of being unconscious, they cannot legally give consent to a sexual encounter.

“And secondly,” he said, “if they’re not quite at that level of intoxication, but they are so drunk that they cannot really comprehend the nature of the sexual act that they are embarking upon, then again, consent can be vitiated.”

The issue in this case, MacDonald said, is that woman may have consented to a sexual act only to lose consciousness after it had ended. In his decision, Lenehan said that there was no way to prove beyond a reasonable doubt what happened in the taxi.

“The law is clear that if she’s unconscious at the time that the sexual act begins, there’s no consent,” he said. “If at some point during the sexual act, she becomes unconscious, there’s also no consent. But in this case, if she might have been conscious at the time and giving consent… therein lies the issue.”

Al-Rawi’s conduct, like that of Cst. Doug Snelgrove in Newfoundland, was morally reprehensible.  But that’s not enough to establish criminal guilt.  If the state is going to impose its power to take away someone’s liberty, it must establish that person’s guilt beyond a reasonable doubt.

Judge Lenehan’s interpretation of the facts in this case may have been questionable, but his statement about intoxication and consent is legally sound.

Our judicial system is independent for a good reason: judges must be free to render decisions they believe to be legally correct, even if they are unpopular with the public.  Anything less leads to rule by the mob.

Who says Le Pen can’t win?

In 2002, far-right candidate Jean-Marie Le Pen stunned the world by making it to the second round of the French Presidential election.  The electorate responded with fury, uniting around centre-right incumbent Jacques Chirac and re-electing him with over 80% of the vote.

In 2017, everyone assumes the same thing will happen to his daughter.  Polls show Marine Le Pen likely to come out on top in the first round, but the conventional wisdom has it that another “anyone-but-Le Pen” movement will carry her second round opponent to victory.

Just like the conventional wisdom had it that Britain would never vote to leave the EU, or that Donald Trump would never win the key Midwestern states needed to be elected President of the United States.

Le Pen’s Front National remains radioactive to most French voters, so the odds are against her.  And yet, it certainly seems like events are conspiring in her favor.

One of her top rivals is being investigated for corruption (as is Le Pen herself, but with far less media attention).  And Le Pen pulled off what I thought was a political masterstroke in refusing to wear a headscarf before meeting with a key Lebanese religious leader.

Now, the European Parliament appears determined to make Le Pen a free speech martyr:

European Union lawmakers “overwhelmingly” voted on Tuesday to lift the EU parliamentary immunity of French presidential candidate Marine Le Pen for tweeting pictures of Islamic State violence.

Le Pen, a member of the European parliament, is under investigation in France for posting three graphic images of IS executions on Twitter in 2015, including the beheading of the United States journalist James Foley.

Responding to a request from the French judiciary, the EU lawmakers in the legal affairs committee voted to lift her immunity, EU officials said. The committee’s decision will have to be backed by the whole parliament in a second vote, possibly this week.

Le Pen’s immunity shields her from prosecution; lifting it would permit legal action against her. The offense being considered is “publishing violent images,” which under certain circumstances can carry a penalty of three years in prison and a fine of 75,000 euros ($79,650).


“Showing and naming the horror of Islamism allow us to fight against it,” Florian Philippot, the vice president of Le Pen’s far-right National Front party, told Reuters.

If I wanted Le Pen to get elected, I’d make sure she was put on trial for posting images of atrocities carried out by Islamists.  A key argument by the extreme-right is that mainstream politicians and media are too afraid of being called racist to tell the “truth” about Muslims and the Islamic faith.  And now Marine Le Pen may find herself criminally charged for doing just that.  It’s like the state – and the hated EU – are going out of their way to prove her point.

Le Pen is still a longshot to win the whole thing.  But it seems like the French establishment is no more capable of stopping her than the American establishment was able to stop Trump.

OJ is on his way out

In a few months, one of the world’s most famous alleged double murderers may be back on the streets again:

OJ Simpson could walk free from jail in a few months after serving less than a third of his sentence before cashing in on his multi-million dollar NFL pension.

The former American football star could be released exactly nine years into his 33-year sentence after he was jailed for a string of crimes including armed robbery and kidnapping in 2008.

A parole board hearing on 3 July is expected to recommend the 69-year-old’s release based on good behaviour.

If the board votes in his favour he could be a free man by 3 October, the earliest possible date for his release.

He needs to secure recommendations to be released from at least four of the seven commissioners at the hearing, something Las Vegas criminal defence attorney Daniel Hill was confident of.

“He’s the kind of person who gets paroled,” Mr Hill told he The Daily Express“He has done a significant amount of time and, by all accounts, hasn’t caused any problems.”

Once he’s out, maybe he can start looking for the real killers again.