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.

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)

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.”

A quick and easy solution to the Trinity Western Law School controversy

This has been a pretty awful week for Canada’s newest would-be law school:

Nova Scotia’s law society has voted to approve accreditation of Trinity Western University law school, but only if it drops the controversial policy prohibiting same-sex intimacy that some say is discriminatory.

Ten members of the council of Nova Scotia Barrister’s Society voted to conditionally accredit, while nine voted against allowing graduates from the faith-based Trinity Western University to practise in the province.

The decision follows that by Ontario’s law society to refuse to accredit the new law school.

[…]

The law society’s ruling could create turmoil on a national scale. Some lawyers have voiced concerns that having some provincial law societies deny accreditation when other provincial societies have granted it could threaten a new national mobility regime that allows lawyers licensed in one province to practise across Canada. The system took more than a decade to establish, and leaders of the Law Society of Alberta have warned that a decision such as the LSUC’s could pose a “direct threat” to mobility agreements.

Anger over Trinity Western’s plans has focused on the university’s community covenant, a document requiring all staff and students to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.” Detractors say allowing Trinity Western to train only those law students who agree to abide by the covenant is discriminatory.

TWU will probably challenge these decisions in court, but it’s not clear whether the school will be successful.   (Paul Daly of Administrative Law Matters thinks a decision either way by the Law Society of Upper Canada would be upheld by the courts.)

As I wrote a few months ago, I’m downright enthusiastic about Canada getting a law school with a distinctly Christian, conservative perspective.  But I just can’t get past a “covenant” that clearly discriminates against prospective students who are gay.  I think the Nova Scotia decision, which puts the onus on TWU to change or eliminate the covenant, is the right way to approach this issue.

Trinity Western could resolve this dispute with just a small wording change:

In keeping with biblical and TWU ideals, community members voluntarily abstain from the following actions:

  • sexual intimacy that violates the sacredness of marriage between a man and a woman

There may be some who bristle at the idea of a faith-based university being recognized at all (which would be bad news for St. FX, St. Mary’s, Mount Saint Vincent…), while others say they oppose any kind of guidelines governing students’ behavior at all.  (The Globe and Mail quotes one TWU opponent as saying “‎I cannot vote to accredit a law school which seeks to control students in their bedrooms.”  Taken to its logical extreme, that would prohibit university policies governing sexual consent, a fact of life at almost every school.)

But simply excising these six words from the covenant would almost certainly take care of the school’s accreditation problem, while allowing it to retain its uniquely Christian character.  If they don’t budge, that will say a lot about their priorities.

And I’m afraid this is just the beginning for Trinity Western.  As more people adopt the view that discrimination against gays and lesbians is akin to racial and sexual discrimination, other professions and even university athletic administrations will do what law societies have started.

Book Review: “New Law, New Rules” by George Beaton

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

New Law, New Rules, by its very nature, shows how much the practice of law has changed. It is dubbed “a conversation about the future of the legal services industry,” and while Australian consultant George Beaton is billed as the author, it’s really a collaboration from dozens of lawyers, professors and analysts from around the English-speaking world.

The logistics of putting something like this together even ten years ago would have been daunting. However, Beaton and his collaborators compiled enough material for a book after months of stimulating debates and discussions carried out over their blogs, twitter feeds and other social media platforms.

The result is a rather informative and thought-provoking e-book that should make every lawyer reconsider how they’re running their practices. The past decade-and-a-half has seen many alternatives to the traditional law firm arise – virtual firms, where much of the work is done outside of a central office; firms using fixed fees, as an alternative to the traditional billable hour; even companies like LegalZoom (co-founded by Robert Shapiro, best known for his position on O.J. Simpson’s “dream team”) which prepare forms and some online guidance for people who wish to represent themselves.

Beaton uses the term “NewLaw” to describe these developments, and notes that a “NewLaw” firm – Axiom Law, whose employees work remotely to keep overhead low – is on pace to become the world’s largest law firm by 2018 – even though the company would bristle at the phrase “law firm.”

New Law, New Rules explains how companies like Axiom are much more reliant upon technology than the traditional firm, which may be more likely to balk at the cost. And they’ve thrown out the traditional partnership model, instead relying upon outside investors and shareholders. (In Britain, where new legislation has opened the doors to outside ownership of law firms, commentators have invoked the name of that country’s largest supermarket chain to discuss the rise of “Tesco Law.”)

And yet, if the NewLaw business model was so obviously superior to the way traditional “BigLaw” firms are run, the latter would have been run out of town years ago. But the law firm as we’ve always known it isn’t going away any time soon – in fact, several of the contributors to New Law, New Rules passionately defend the “old-fashioned” model.

The larger firms still continue to attract the top graduates from the most highly regarded law schools, and they still have the resources to navigate the most complex international transactions. And after the Great Recession, they’ve proven to be a safe haven for those who aren’t sure they want to try out a newer, more innovative but less established legal service provider.

Still, there’s no doubt that things have changed more in the past few years than they did in the previous few decades. It’s reflected in my own practice – I do quite a bit of my own legal work from my home office or on the road, and the internet has opened a wealth of affordable (or even free) legal resources that let me access texts, journal articles and case law without having to open a book. It used to be that only the larger firms had the largest law libraries; now, the playing field has been leveled.

At the same time, I’ve been reluctant to adopt other NewLaw practices, such as flat fees. I can estimate how much it may cost to handle a hotly contested divorce from start to finish, but until the matter is well under way, I can’t say how cooperative the other party will be, or whether there will be a dramatic change to the parties’ living arrangements (say, a child decided to leave Mom’s house and move in with Dad).

I intend to be in this business for a long time, so I have to do a lot of thinking about how I’m going to conduct my practice in the years to come. New Law, New Rules, available in electronic formats only, from retailers including Amazon and Smashwords, can be a hard, buzzword-heavy read at times, but it helped me see which way the winds are blowing.

Book review: A Cruel Arithmetic: Inside the Case Against Polygamy by Craig Jones

[Originally posted at Canadian Lawyer]

When s. 293 of the Criminal Code of Canada was referred to the British Columbia Supreme Court, I wrote that I believed the law was clearly unconstitutional in its current form:

If this case was about legal recognition of polygamy — with massive implications for family law and even immigration policy — it would be much more challenging.

At issue, however, is whether a polygamy should be a criminal offence. Federal and provincial governments, and many interest groups, argue that the Criminal Code provision is necessary to protect women and children coerced into abusive relationships.

Such activity is already illegal, however, and the way s. 293 is written criminalizes all polygamous relationships, even those involving consenting adults. I would be very surprised if the B.C. Supreme Court — and, ultimately, the Supreme Court of Canada — does not find that the section is overly broad and therefore unconstitutional.

The Supreme Court of B.C., of course, did uphold the constitutionality of s. 293. (This is why you shouldn’t take my stock market or fantasy football predictions, either.) But the debate isn’t over, and the anti-criminalization arguments summarized in my blog post will still be forcefully made by religious and pro-polyamory activists.

Craig Jones, who represented the British Columbia Department of Justice in the Polygamy Reference, could not disagree with these arguments more strongly. A longtime civil libertarian, Jones was confident the constitutionality of s. 293 would be upheld, but he initially did not personally take a strong position against the practice.

By the time the matter made it to court, however, he was convinced polygamy is an inherently harmful practice that should not be tolerated in a modern society. He explains his evolution, and the case against polygamy, in his fascinating book A Cruel Arithmetic: Inside the Case Against Polygamy.


In a polygamous society like Bountiful, B.C. — a mysterious, secretive colony populated by members of the Fundamentalist Church of Latter-Day Saints, the breakaway Mormon sect which practises “plural marriage” — this “cruel arithmetic” inevitably manifests itself in two ways. Every time a man takes an additional wife (polyandry, the taking of multiple husbands by a woman, is almost unknown) another man in the community is left with no one to marry. And as the adult females are married off, younger and younger wives are taken. The results: child trafficking, sexual exploitation of minors, and “lost boys,” who are marginalized and even expelled from their homes:According to Jones, it is not enough for the state to take action against only “bad” polygamy involving young children or coercion and abuse:

Again and again, the discussion circled back to the fact that academic writers seemed to consider only harm arising in polygamous marriages, not polygamous societies [emphasis added]. The focus was entirely on how to accommodate polygamous unions while minimizing or addressing possible harms to co-wives and children. The commentators concluded that banning polygamy was unconstitutional because the law could be written to apply only to “bad” polygamy, or the state could simply scrutinize polygamous marriages looking for abuse and crimes. But the “cruel arithmetic” effect on the targeting of girls, like the increased criminality of men in the polygynous society, would be felt everywhere, and this was so even if every polygynous marriage was harmless, egalitarian, and restricted to fully consenting adults.

One of Jones’s expert witnesses, Dr. Joe Henrich, forcefully made the case that a “nontrivial” increase in polygamy would result in higher rates of crime and anti-social behaviour from the growing number of unmarried males (this has been the experience in China, where the “one-child” policy has led to an imbalance in the number of males and females).

But surely if polygamy were decriminalized, very few Canadians would take up the practice, right? Jones isn’t willing to take that risk. He devotes a lengthy chapter to the findings of historians and evolutionary psychologists, who note monogamous societies are a relatively new development. And, of course, there are still many nations where polygamy is legal and/or widespread, and it’s not hard to believe immigrants from these societies would be attracted to Canada — multiple wives in tow.

A Cruel Arithmetic makes a very strong case against polygamy, but does it make a strong case for criminalizing the practice? I find Jones’ arguments compelling (as did the British Columbia Supreme Court, obviously) but I still believe consenting adults have an inalienable right to enter into whatever arrangements they want.

Indeed, adults can enter into polyamorous relationships, provided they don’t go through anything like a marriage ceremony. Once the relationship becomes a “marriage,” though, it becomes a crime. As the distinction between even monogamous marriage and common-law relationships becomes less clear, I believe this becomes increasingly hard to justify. Even Jones has a difficult time pulling it off, in my opinion:

There may be harms that attached to some “polyamorous” relationships that weren’t marriages. But in my view, there was something about marriage, about the invocation of some external authority with (even notional) powers of enforcement, that permitted polygamy “take” a spread. . . . Who knows, if polyamory really does take off, and if it caused the same problems as polygamy, perhaps the law would have to be changed to accommodate that new reality. But line drawing, as we would urge the Court, is Parliament’s business, and when dealing with a spectrum of risks and harms the line has to be drawn somewhere.

Jones puts forward evidence that polygamy leads to societal harms that justify infringement upon some individual rights. But we have to be careful about where that line of thinking can lead us (would an abortion ban be justifiable if social science research showed harm arising from a declining birth rate?).

There’s also the fact Canada has tolerated the practice of polygamy in Bountiful for decades. There might be a Criminal Code section that makes polygamy a criminal offence, but it hasn’t stopped a polygamous community of 1,000 people from developing in the B.C. interior. We’ve known what’s been going on there for years, but nothing was done about it. And the longer it takes, the harder it becomes to suddenly start prosecuting it.

Moreover, Canadians know the anti-polygamy law is almost never enforced, but that certainly hasn’t led to many more “plural marriages.” If anything, the existence of Bountiful — a closed, cultish community that feels like a throwback to the 19th century — has probably made polygamy less attractive to mainstream Canadians. Who wants to live like those guys?

The case against officially recognizing polygamous unions, however, is much more strong (if anything, A Cruel Arithmetic is useful for rebutting the argument made by anti-gay-marriage activists, that recognizing same-sex marriage will lead to a slippery slope toward officially sanctioning polygamy). We can respectfully disagree as to whether it should be a crime, but we can agree that polygamy is a very troubling practice.

More importantly, A Cruel Arithmetic describes this major Canadian constitutional argument in more detail than I’ve seen in any other book. The duelling lawyers and their personalities, the clashes within the civil service, the preparation and cross-examination of witnesses — it’s all here. And it is absolutely riveting, especially when Jones describes the dismantling of dubious “expert” witnesses trying to make the case that polygamy is not so harmful. I’d go so far as to say every law student should read it, and many practising lawyers could learn a lot from it, too. I certainly did.