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However, Jennifer Nowoselski, vice president internal of Dalhousie Student Union, believes those policies are outdated, saying it doesn’t protect students from sexual discrimination.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

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Greenspan’s last words

Just hours before he passed away on Christmas Eve, Edward Greenspan, arguably Canada’s best-known criminal defence lawyer, submitted this critique of the Harper government’s “tough-on-crime” rhetoric (co-written with Anthony Doob) to the National Post:

“All convicted criminals belong behind bars.”

We know of no person knowledgeable about criminal justice in any democratic society who has ever proposed imprisonment for all convicted offenders. But earlier this month, Canada’s Public Safety Minister, Steven Blaney, who oversees our penitentiaries, bluntly told Parliament that “Our Conservative government believes that convicted criminals belong behind bars.” No qualifications, no exceptions.

An opposition MP understandably replied, “Mr. Speaker, that is scary to hear.” Scary? It’s more than scary. It is hard to imagine such a statement being made by someone who supposedly has knowledge about crime and the criminal justice system.

Consider this example: If we take the Public Safety Minister at his word, his government believes that all those guilty of driving with blood alcohol levels even slightly above the legal limit, not speeding and not involving an accident, belong behind bars: Go directly to jail, no need to consider anything else. Currently, only 8% of all offenders — and fewer than 2% of all young women — are imprisoned for this offence. Do the Tories propose locking up the 92% who are dealt with through other means?

[…]

Some believe that offenders learn from imprisonment that “crime does not pay.” This, too, is wrong. Published research — some of it Canadian and produced by the federal government — demonstrates that imprisonment, if anything, increases the likelihood of reoffending. For example, a recent study of 10,000 Florida inmates released from prison demonstrated that they were more likely subsequently to reoffend (47% reoffended in 3 years) than an almost perfectly equivalent group of offenders who were lucky enough to be sentenced to probation (37% reoffended).

Crime and punishment issues are far too complex and far too serious to allow the national debate to be dominated by dishonest platforms and slogans. False promises are often convincing. Whether those offering them are dishonest or ignorant matters little: Conservative crime policies will not make Canadians safer.

Posted in Criminal Law | Tagged , , | 2 Comments

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.

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The child support clawback

In several Canadian provinces (including Nova Scotia) child support payments are deducted from social assistance.  A group of single mothers in British Columbia has launched a court challenge against this policy:

The case will argue that the deduction of child support payments from income and disability assistance violates single parent’s right to equality under the Canadian Charter of Rights an Freedoms.

Milne said the law is unconstitutional because it conflicts with the purposes of the child support system, denies the children of parents on income or disability assistance the right to benefit from their child support, and has a disproportionately negative impact on parents with disabilities and single mothers.

“Other kinds of families are better able to earn other kinds of income and they are allowed to keep some of it before it is deducted from their income or disability assistance,” said Viveca Ellis of the Single Mothers’ Alliance of B.C. “Meanwhile, these vulnerable children have an opportunity for better lives through their child support, but they are not allowed to benefit from it and their parents experience additional financial consequences.”

I’m not aware of any court rulings on this issue, so I’ll be keeping an eye on this one. (There is a PEI Human Rights Panel decision which found that the clawback was not discriminatory, but that wasn’t a Charter case.)

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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)

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Hamas’ Jewish lawyer

There’s nothing wrong with defending unpopular people in court.  On the contrary, it’s downright admirable.  It’s what the criminal justice system is all about.

But this guy gives off a definite Doug Christie vibe. (Or he would, if Doug Christie stood up for people who’d have him killed because of his religion.)

A Hamas-defending, Israel-slamming Jew, Cohen simultaneously confounds and agitates. He’s known for f-bomb-laced rants against what he calls a “Zionist hijacking” of his religion. He demeans the tax charge to which he pleaded guilty [emphasis added] in April as a government attempt “to silence me.” And he doesn’t necessarily disagree with foes who label him “a traitor.”

“Am I someone who would intentionally, willfully sell government secrets or engage in activity with the intent to hurt America or American citizens? Absolutely not,” Cohen said in an interview with NBC News. “But I am someone who will, just willy-nilly, accept the party line whether it comes out of the White House, the Congress, or nice, safe majoritarian values? No. And if that makes me a traitor, then well f*** it, I’m a traitor.”

U.S. officials will, indeed, remove Cohen from his practice of defending some of those whom the feds deem enemies of the state. The tax case against him will likely cost him his law license.

According to federal prosecutors, Cohen failed to report more than $3 million in income.

[…]

“Hamas represents the kind of commitment and integrity that is so important to me — the leadership in particular, is comprised largely of physicians, engineers, academics, and political scientists,” Cohen said. “So they’re a people that not only do I share a common bond with in terms of their struggle, but they’re folks who I just love hanging out with.”

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“The Rise and Fall of Aereo”

Damon Root, in the latest issue of Reason, has an interesting piece explaining the U.S. Supreme Court battle between Aereo, makers of a tiny antenna which allowed subscribers to watch and record TV broadcasts on their mobile phones, and the major American TV networks. 

“Subscribers” might be the key word here. I get the impression that Aereo might have won its case had its device been more like an old-fashioned rabbit-ears antenna, which you paid for once, transmitted nothing and received television signals broadcast for free over the public airwaves.

The Aereo model was found to violate the 1976 Copyright Act, but even some justices who sided with the broadcasters asked pointed questions about how their (ultimately successful) argument could affect cloud computing services. There’s too much here to excerpt, so read the whole thing.

Posted in Entertainment Law, Intellectual Property, Internet, Media, Supreme Court of the United States | Tagged , , , | Leave a comment