A Chase the Ace disgrace

Lotteries always bring out the best in people, don’t they?

A photo-op to celebrate a $1.2-million lottery win in Nova Scotia turned sour Thursday when two family members feuded over the win.

Barbara Reddick of Guysborough, N.S., and her nephew, Tyrone MacInnis, posed for the cameras with a giant cheque in Margaree Forks, N.S., after winning the Chase the Ace fundraiser benefitting two local fire departments.

Reddick then pointed at MacInnis and said: “See you in court.”

“It was my ticket,” she told a group of people gathered for the ceremony. “I bought the ticket and now he’s trying to lie and say I said split. I said split with the 50/50, not with no Chase the Ace.”

“I’m taking him to court. I’m getting a lawyer tomorrow. Now you can print that.”

[…]

“I put his name on the ticket for good luck because he’s like a son to me — he was,” she said. “He was lucky, but not for half a million dollars.”

The contact number on the ticket was for MacInnis, who lives in Glace Bay, N.S.

I’ve come across many cases where someone whose name wasn’t on a lottery ticket sued the winner for a share of the money, but never a situation where the plaintiff tried to argue that the other named person isn’t entitled to anything.

The fact that she listed his phone number on the ticket will likely be relevant to this case.  But if she wants to retain my services to take her nephew to court to get all of the winnings for herself, she can give me a call.  I’ll need a $600,000.00 retainer.

Speaking of Chase the Ace, here’s my kid brother:

https://open.spotify.com/embed/track/2wVH8PSy5k3mybj1L9Ca6D

 

Lenehan cleared

This was a) inevitable; b) legally correct; and, c) will not satisfy the mob.

The Nova Scotia provincial court judge at the centre of the controversial sexual-assault trial involving taxi driver Bassam Al-Rawi has been vindicated.

Judge Gregory Lenehan acquitted Al-Rawi of sexually assaulting an intoxicated female passenger in Halifax.

[…]

In his March 2017 decision Lenehan said the Crown provided “absolutely no evidence on the issue of lack of consent.” The judge went on to add, “clearly, a drunk can consent.” That phrase set off protests and led to 121 complaints about his conduct.

A decision released today by the Executive Office of the Nova Scotia Judiciary states, “The uses of ill-considered words by a judge in a decision can undermine the public’s confidence in the judiciary.” But “the test for judicial misconduct has not been met.”

In its decision, the three-member review committee cited Lenehan’s statement that he was trying to use direct language that Al-Rawi could understand. Al-Rawi relied on an Arabic-to-English translator for his trial.

The committee noted that the expression “clearly, a drunk can consent” is “not an incorrect statement of the law.” Lenehan told the committee he used the phrase when referring to any person in a state of drunkenness, not the complainant specifically.

“[Lenehan] was focused on the presumption of innocence and the requisite standard of proof. While he committed errors of law as found by the Court of Appeal, and could have more carefully reflected his reasons, the committee could not find evidence to attribute the judge’s approach to bias,” the ruling states.

“This committee closely examined the allegations of gender bias or influence arising from attitudes based on stereotype, myth or prejudice that were raised by the complainants.”

The review committee noted that had Lenehan said “a drunken consent is a valid consent,” or “intoxicated person can nonetheless consent,” he would have made the same point without sounding personal or harsh.

There are certainly some cases where a judge’s behavior is so egregious that removal from the Bench is warranted.  (I’m looking at you, Robin Camp.)  But law professor Erwin Chemerinsky, commenting on an effort to recall a California judge who imposed a lenient sentence in a sexual assault case, warns against targeting judges who make unpopular decisions:

Judges should decide cases, including the difficult task of sentencing criminal defendants, according to their best view of the law and facts. This time the recall is for a judge who was too lenient in imposing a sentence, but next time it could be for a judge who excludes evidence in a high-profile case because the police violated the Fourth Amendment or for a judge who orders a school to be desegregated and upsets the voters.

Efforts to recall judges for light sentences encourage judges to impose maximum penalties out of fear that anything else could cost them their positions. After all, no one has begun a recall when a judge imposed an outrageously high punishment, such as in the first case I argued in the Supreme Court where my client received a sentence of 50 years to life under California’s “three strikes law” for stealing $153 worth of videotapes.

Judicial independence is crucial to upholding the rule of law, and history shows that it is lost when judges fear removal for their unpopular decisions.  This is not a new realization. One of the grievances enumerated in the Declaration of Independence was how the King of England effectively controlled the judiciary by removing judges. Several years ago, when I spoke in Russia, judges there told me how they would be removed if they did not rule as the prosecutor and the government wanted.

[…]

A California Court of Appeal can overturn a sentence if it finds that it was an “abuse of discretion.” If the prosecutor believes a sentence is too lenient, the remedy is to appeal.

But the answer is not to remove a judge from the bench because we dislike the sentence. We all need judges to decide cases, including sentencing defendants, without fear that an unpopular decision will cost them their jobs.

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.”

Our Zimmerman case

Over two years after she was allegedly raped, and four months after she took her own life, two of Rehtaeh Parsons’s alleged tormentors will appear in court today:

Two young men face child pornography charges today in a high-profile court case connected to Rehtaeh Parsons, the Nova Scotia teen who was bullied online and then took her own life.

The 17-year-old died in April. She was taken off of life support a few days after a suicide attempt.

According to Rehtaeh’s parents, four boys sexually assaulted their daughter at a house party when she was 15. The Cole Harbour, N.S., teen was then said to have been mocked by classmates, enduring relentless harassment and humiliation after a digital photo of the attack was circulated at school and on social media.

The boys charged in the case are both 18, but they can’t be named because they were youths at the time of the alleged offences.

One is charged with creating and distributing child pornography. The other faces two distribution charges.

It’s not clear whether the accused will appear in person or if defence lawyers will appear on their behalf.

This CBC report quotes Dalhousie law professor Wayne McKay, and criminal defence lawyer Elizabeth Buckle, who note some of the unusual aspects of this case:

Wayne MacKay, a law professor at Dalhousie University in Halifax and the chair of the province’s task force on cyberbullying, said the case is a legal anomaly.

“It’s relatively unusual to have young people charged with child pornography, though there are a few other precedents for that,” he said. “So there are so many new elements that have come out of the Rehtaeh Parsons situation that it seems to be a never-ending process.”

[…]

Elizabeth Buckle, president of the Nova Scotia Criminal Lawyers’ Association, said the widespread speculation blanketing the case is troublesome.

“One of the things that shocks me is how little we’re hearing about the presumption of innocence and how many people are giving comment about the facts without knowing all the facts,” she said.

Buckle said it was unusual to hear Prime Minister Stephen Harper comment on the progress being made in the case as it moves before the courts.

“I think it ignores the presumption of innocence, and it ignores that maybe no criminal offence took place here,” she said.

Halifax police and RCMP decided to reopen the case in mid-April after her death, saying that new and credible information had been brought forward.

If the police really found new evidence that makes a conviction more likely, so be it.  But the similarities between this case and the George Zimmerman trial are disturbing.

In both cases, we have incidents that led to the tragic deaths of promising young people; decisions by the police and/or prosecutors not to law criminal charges; widespread outrage on the internet; blatant interference and pandering by elected politicians; the reopening of investigations by the police; and heavily publicized trials.

Zimmerman, of course, was found not guilty.  Considering the high burden of proof that must be met by the Crown, I will not be at all surprised if both accused in the Parsons case are acquitted as well.

The question is, will the people who wanted criminal charges laid accept such a verdict?

“Cyber Safety” in Nova Scotia

This province’s new Cyber Safety Act, drafted after the horrible Rehteah Parsons case came to light, officially took effect yesterday.

The law firm of Stewart McKelvey published this brief summary of the new law:

Cyberbullying is defined in the Act as:

any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.

A person who subjects another person to cyberbullying commits the tort and can be liable for general, special, aggravated and punitive damages and be subject to an injunction.

[…]

If the person committing the tort of cyberbullying is under the age of 19, his or her parent(s) or guardian(s) will be jointly and severally liable, unless they can convince the court that they:

a.) Were exercising reasonable supervision over the child at the time the child engaged in the activity that caused the loss or damage; and

b.) Made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.

Factors the court will consider in making this assessment include:

– The age of the child;

– The prior conduct of the child;

– The physical and mental capacity of the child, including any psychological or other medical disorders of the child;

– Whether the child used an electronic device supplied by the parent, for the activity;

– Any conditions imposed by the parent on the use by the child of an electronic device;

– Whether the child was under the direct supervision of the parent at the time when he or she engaged in the activity; and

– Whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the defendant.

My time in Junior High was hellish enough without the internet and camera phones, so I shudder to think what it must be like today for those who don’t fit in.

But I also have little faith in the government’s ability to fundamentally understand, much less police, what happens online.  And legislation hastily drafted in response to a moral outrage inevitably has serious problems.

Freedom of expression is not absolute.  That’s why we have the tort of defamation, and laws against criminal harassment and “hate speech.”  But not everything that might disturb you, or hurt your self-esteem, should be considered “bullying.”  (I’m often accused of taking my political views way too seriously, and there’s no shortage of commentators who can get my back up almost every day.  But does that harm my “emotional well-being,” or do I just need to lighten up?)

And in an age where, in most households, both parents are working, there is only so far a parent can go in supervising their children’s internet usage.  It’s easy to delete your browser history (or turn on “private browsing”), so even the most diligent parent will not know everything that their son or daughter is posting.  And even if they don’t have home internet access at all, the youngster can just go to any public library.

I don’t want children being bullied online (or offline, for that matter), but there are other societal values – especially freedom of expression, and people not being held legally responsible for things they didn’t know about – which should be kept in mind. If the Cyber Safety Act survives Charter scrutiny at all, here’s hoping the courts keep these principles in mind.

Update: Jesse Brown, technology columnist for Maclean’s, savages the new legislation:

…Rape, assault, harassment: these are crimes with established parameters. All of them could also be called “bullying.” They could also be described as “mean,” and I suppose we could enact a law against being mean. But I’d rather have laws against specific crimes, rather than against vast swaths of vaguely defined human behaviour. Ultimately, bullying is in the eye of the bullied. For many, cyberbullying is equal to a negative thing said about them on the Internet. I’ve met restaurant owners who feel they’re being cyberbullied by Chowhound critics.

The problems with anti-cyberbullying laws don’t end there. Once a law establishes some flawed definition, it moves on to enforcement. Here’s how Nova Scotia’s new Cyber Safety Act, which went into effect yesterday, will go about stopping online abuse:

Someone feels that you’re cyberbullying them. They visit or phone the court and request a protection order against you (minors , or some reason, cannot do so, only adults). A judge decides if their claim meets the law’s definition. The definition of cyberbullying, in this particular bill, includes “any electronic communication” that ”ought reasonably be expected” to “humiliate” another person, or harm their “emotional well-being, self-esteem or reputation.”

If this is the standard, I don’t know a person who isn’t a cyberbully.

Rehtaeh Parsons: a thought experiment

Christie Blatchford’s controversial National Post column from last week purports to explain why prosecutors in Nova Scotia decided not to proceed with charges against the four boys who allegedly raped Rehtaeh Parsons.  According to anonymous sources (who, of course, could be desperately trying to cover their asses) there were serious problems with the case, and convictions in court weren’t likely:

…Postmedia sources point to huge problems with the case that made it virtually impossible to take to court, chiefly the shifting accounts from Rehtaeh herself and independent evidence, including retrieved online messages, that supported the suggestion the sex that took place was consensual.

Even the notorious cell phone picture, first sent by one of the alleged assailants and re-circulated thereafter, shows virtually nothing that would stand up in court.

The photo is of a male naked from the waist down, giving a thumbs-up sign, pressing into the bare behind of another person who is leaning out a window.

[…]

The case was handled by a joint Halifax Regional Police/RCMP sex assault team, the lead investigator a woman.

It took almost a year for the police to bring the case to a senior Crown attorney within the province’s Public Prosecution Service (PPS). Also a woman, she is an experienced sex assault prosecutor.

While in a few provinces, Crown attorneys have to approve charges, Nova Scotia isn’t one of them, though police often ask for legal advice.

(These two arms of the province’s justice system have different legal standards to meet. For police, it’s what’s called RPG, or reasonable and probable grounds, to lay a charge. For prosecutors, it’s “a realistic prospect of conviction” in court.)

Essentially, what police ask is, “Do I have a case here?”

The prosecutor “looked at it really thoroughly,” PPS spokesperson Chris Hansen told Postmedia in a telephone interview Thursday. “She concluded there was no realistic prospect of conviction.”

The officer then turned her mind to a possible child-pornography charge, so the prosecutor referred her to a colleague, one of two PPS specialists in cyber crime, particularly as it relates to child pornography.

“He looked at it carefully as well,” Ms. Hansen said, and also concluded the case had no realistic chance of conviction.

Among the general public – and even among some alleged lawyers who should know better – there seems to be a sense that this matter should have been brought to trial, regardless of any misgivings prosecutors may have had about whether Parsons’s alleged attackers would have been convicted.

But think about what a trial would entail.  Rehtaeh Parsons would have been obligated to tell her story in court, in front of the people who allegedly violated her.  (She may have been allowed to testify behind a screen, so she wouldn’t have to look at the accused, but this wasn’t certain – and in any event, she still would have been in the same room.)   Then she would be cross-examined by counsel for the defendants, who would not be timid in their interrogation of the complaint.

And after all that, a verdict of “not guilty” could have been the result.  It’s not enough for the judge or jury to believe the accused likely carried out the offence.  Guilt must be proven beyond a reasonable doubt, even for accusations like these.  (Actually, especially for serious accusations like these.)

Imagine that you have to decide whether to prosecute this matter.  You believe there are serious, perhaps fatal, weaknesses to the case.  You know forcing this young girl to tell her story in court could be extremely traumatic.  And you think she could be put through all of this only to have the accused walk away.

Without the benefit of hindsight, what would you do?

Rehtaeh Parsons: be outraged – but careful

A day after The Chronicle Herald‘s atom bomb of a story about Parsons, I’m still haunted by what happened to that poor girl – especially that her fellow classmates not only circulated photos of her alleged rape, they tormented her personally.

The story has now spread around the world, and there is pressure on the provincial government to commence in inquiry into the case, particularly the RCMP’s seemingly inexplicable decision not to lay charges against the animals who allegedly raped Rehtaeh Parsons and then circulated photos of their own brutality.

I agree wholeheartedly.  The “system” – our schools, our police, our social workers – is supposed to protect young people.  And in this case, it failed miserably.  But here’s the thing: once an inquiry is called, it must be allowed to do its job.

Lawyer and Liberal Party operative Warren Kinsella undeniably speaks for many people in this “open letter” to the controversial online hackers’ collective, “Anonymous”:

Rehtaeh was thereafter harassed and abused and bullied by students at her school.  The torment got bad enough that Rehtaeh had to move to another town.  Months later, she returned, but the bullying and abuse never stopped.  She was sent messages calling her a “slut.”

You may ask what happened to the four males who raped her, and who circulated the photograph of Rehtaeh being raped – which, incidentally, meets the definition in Canadian law of child pornography.

Nothing.  Nothing happened to them.

The RCMP, who allegedly investigated, are led in Nova Scotia by Alphonse MacNeil.  He calls himself a “consensus builder” and has two daughters.  I’m sure you could find his email address if you needed to.

The Nova Scotia government, which agreed with – and energetically defended – the RCMP’s decision to do nothing about the rape or the child pornography, is led by NDP leader Darrell Dexter.  Interestingly, he represents Cole Harbour in the provincial legislature.  His email isn’t readily available, either, but I know you’ll find that, too.

His Attorney-General is Ross Landry.  Yesterday, Landry refused to reopen the case; by the afternoon, he had seemingly changed his tune.  His constituency office email is here.  I don’t know what his email is.

The names of the little bastards who did this, and who are still alive and walk free in Cole Harbour, are unknown to most of us.  But, as in the Steubenville, Ohio case, I am certain anyone who is sufficiently motivated can find out who the little bastards are, and name and shame them.

I’m unclear how to appeal to you, Anonymous.  But if there was ever a case that cried out for your attention – and if there were ever men like MacNeil, Dexter and Landry who deserved to be fired, or worse, for their pathetic responses – I don’t know what it is.  What happened to Rehtaeh and her family is so horrible, so evil, I am ashamed that it happened in my country.

In closing, I should note that Rehtaeh’s heart was sent to Toronto yesterday, to be transplanted into another person.  I don’t know why I feel a need to mention that to you, but I do.

Maybe because, in some way, it feels like Rehtaeh is still watching now, to see who will do something, and who will do nothing.

My own feelings about this kind of online activism are decidedly mixed.  The Steubenville, Ohio case – the first one that came to mind when I read about Rehtaeh’s story yesterday – may never have been resolved at all had it not been for the work of Anonymous.

But I also know that online activism – especially when particularly reprehnsible criminal allegations come into play – can go very, very wrong.  When George Zimmerman shot unarmed teenager Trayvon Martin while patrolling a gated community in Florida, Zimmerman’s address and contact information quickly circulated online.

Just one problem: it wasn’t the same George Zimmerman:

An elderly Florida couple have been forced to move into a hotel after their home address was wrongly tweeted as belonging to the man who shot teen Trayvon Martin.

The tweets were traced back to a man in California and the address was also reportedly retweeted by director Spike Lee to his almost 250,000 followers.

The couple, aged 70 and 72, have been harassed with hate mail, been hassled by media and had scared neighbors questioning them since the tweet, their son Chip Humble told the Orlando Sentinel.

Fearful for their safety, and hoping to escape the spotlight, the couple have temporarily moved to a hotel.

The confusion seems to stem from the fact the woman’s son is named William George Zimmerman and he lived briefly at the address in 1995.

When William Zimmerman pleaded with the man who tweeted the address, the man responded, “Black power all day. No justice, no peace” along with an obscenity.

One of the most devastating books about the legal system I’ve ever read is Dorothy Rabinowitz’s No Crueler Tyrannies, about the infamous Fells Acres abuse cases in Massachusetts.  The Amirault family, who ran a child care centre, were caught up in the “Satanic Ritual Abuse” hysteria – remember that? – of the mid-to-late 1980s, and falsely accused of molesting young children in the most shocking ways imaginable.

The Amiraults were innocent, but thanks to overzealous prosecutors, exploitative media coverage and opportunistic politicians, their lives were destroyed.  If the internet had been around then, do you believe they wouldn’t have been targeted online as well?

I went to high school, I know how freaking horrible teenagers can be, so I’m inclined to believe Rehtaeh Parsons’s grieving mother.  However, we are only hearing her story – we have not heard from the police, her teachers or school officials, or her classmates.

That’s why I want an inquiry.  But emotional cases like this can lead to bad information, bad law, and innocent people getting caught in the net.  I work on criminal cases myself – albeit on the defense side – and I know how what gets reported in the media can bear only the slightest resemblance to what actually happened.

Even before Kinsella posted his open letter to Anonymous, they were already on their way to tracking down, naming and shaming the people who did this to that poor girl.  If they find them – and if they actually did it, assuming they get the right guys in the first place – well, I will shed no tears.

Justice must be done.  But our system protects criminal defendants, and places the burden of proof squarely on the prosecution, for very good reasons.

Postscript: according to CTV, Parsons’s family says donations in her memory “can be made to the East Coast German Shepherd Rescue, Metro SPCA, and the Laing House – a Halifax-based peer support organization for youth with mental illness.”