Kavanagh confirmation sows decades of judicial distrust

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The legitimacy of the judicial system depends on trust. Courts and judges are, after all, not imbued with an inherent magic or divine authority. Instead, legal decisions are respected because, as a society, we choose to respect them — we trust the process, the people and the system that produced them, even if there is disagreement with a particular result. 

But what happens when disagreement with a decision turns into a complete dismissal of the judiciary’s independence and authority? 

This weekend, the United States took the first step toward answering that question when the Senate confirmed Brett Kavanaugh to the Supreme Court and laid bare the overtly political and partisan nature of the appointment process.

The truth is that partisan politics has defined the United States Supreme Court appointment process for years. From the Federalist Society’s judicial lists and lobbying efforts to the rejection of Robert Bork to the Republicans’ audacious decision not to allow a vote in 2016 on President Barack Obama's judicial pick, Merrick Garland, politics has always coloured the law in the U.S.

But Kavanaugh is different. He is different because he was, by his alleged criminal conduct and by his own words, a uniquely ill-tempered and ill-suited candidate.

Kavanaugh was always going to be a controversial appointment. His name was on the Federalist Society’s list of pre-approved, right-wing judges. But that was all par for the course. The real debate began after allegations by Dr. Christine Blasey Ford that Kavanaugh had tried to rape her when they were teenagers. Blasey Ford’s Senate testimony was consistent, compelling and credible. 

This should have been enough to disqualify Kavanaugh. But the Republicans cried foul about a new “open season” on men and argued that Blasey Ford’s allegations had not been proven. Kananaugh, they said, should be presumed innocent.

Let me let you in on a little secret: The presumption of innocence is a legal construct. It operates in our courts of law to protect people charged with crimes from the power of the state to deprive them of their liberty. 

In short, the presumption of innocence is a procedural court protection to ensure fairness, not a moral imperative. This is why we do not automatically convict and sentence a self-admitted murderer whose crime is clearly captured on video. In court, even where guilt is plainly obvious, proper procedures must be followed and the prosecution must prove guilt beyond a reasonable doubt. 

The presumption of innocence does not mean someone is forever factually blameless until proven beyond any doubt otherwise. The presumption of innocence does not operate to immunize potential Supreme Court judges from scrutiny. 

The Kavanaugh confirmation hearings were not a criminal trial where a benefit of the doubt matters and where, as the saying goes, it’s better that 10 guilty men go free than to convict an innocent man.

I’ve never heard anyone suggest that it’s better to put 10 guilty men on the Supreme Court rather than to risk depriving one federal court judge of a promotion.

But even leaving aside Blasey Ford’s heart-wrenching testimony, the absurdity and tone of Kavanaugh’s denials should disqualify him.

Put simply, Kavanaugh does not possess a proper judicial temperament. I have cross-examined hundreds of witnesses and I have seen many of my clients subjected to gruelling and often unfair questioning by prosecutors. These witnesses have neither the education nor courtroom experience that Kavanaugh does, yet all of them were more composed, more respectful and more responsive than he was.

Throughout his angry and unhinged testimony, Kavanaugh avoided or did not answer direct questions. Senator Kamala Harris asked the simple and straightforward question, “Are you willing to ask the White House to conduct an investigation by the FBI?” 

Kavanaugh answered, “The FBI would gather witness statements, you have witness statements. . . . The witness testimonies before you, no witness who was there supports that I was there . . .”

In other words, he did not answer. Over and over and over again.

If this was a trial, the argumentative, belligerent and unresponsive testimony given by Kavanaugh would leave a prosecutor smiling all the way to a conviction.

But if credible allegations of rape, a lack of judicial temperament and possible perjury are not enough to discard Kavanaugh and choose one of the dozens of other conservative-friendly judges on the Federalist Society’s list, Kavanaugh’s own words should have been the final nail in his coffin. 

The Supreme Court must never be viewed as a partisan institution, said Brett Kavanaugh in an opinion piece he wrote for The Wall Street Journal after his very bad day in the Senate. Kavanaugh may have been trying to salvage his confirmation, but he was right.

Now look at what Kavanaugh yelled under oath only a few days earlier.

“Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation. . . .

“You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind.

“The behaviour of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. But at least it was just a good old-fashioned attempt at borking. . . .

“This whole two-week effort has been a calculated and orchestrated political hit, fuelled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

After Kavanaugh was sworn in to the United States’ highest court, Donald Trump’s press secretary, Sarah Sanders, tweeted,“Congratulations Judge Kavanaugh! Instead of a 6-3 liberal Supreme Court under Hillary Clinton, we now have a 5-4 conservative Supreme Court under President @realDonaldTrump, cementing a tremendous legacy for the President and a better future for America”

How can anyone ever view Kavanaugh as anything but a political operative?

The rape allegations may not have been proven beyond a reasonable doubt, but surely the partisan nature of Kavanaugh’s appointment has been.

How can there be any legitimacy in a future Supreme Court decision on a political divisive issue where Kavanaugh is the deciding vote?

And what happens when half the country refuses to accept a ruling from the country’s highest court?

Unfortunately, Kavanaugh’s shocking and disappointing confirmation will afford a lifetime to answer these questions.

The Liberals are all vision, no reform

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The benefit of fixed election dates is that we probably know when the next federal election will take place. So, you can mark your calendars — but do it in pencil just in case — Canada will be voting on Oct. 21, 2019.

With the federal election only a year away and given the glacial pace of the government’s promised justice reform, there’s not much time for any new criminal justice bills. And given the partisan politics that have become hard-baked into criminal justice proposals, the Liberals will certainly not want to provide fodder for the inevitable Conservative “soft-on-crime” attack ads.

What we have here is all the justice legislation we’re going to get.

So, now is as good a time as any to see if the Liberals have lived up to their lofty justice promises. And, boy, did the Liberals come to power in 2015 on the back of some very big promises.

The instructions provided by the prime minister to Minister of Justice and Attorney General of Canada Jody Wilson-Raybould were ambitious. She was instructed, among other things, to modernize the justice system, increase the use of restorative justice, increase the government’s Charter compliance and address gaps in the justice system that allow the most marginalized Canadians to fall through the cracks. The Liberals also promised to embrace evidence-based policy-making, to restore judicial discretion, to legalize cannabis and to eschew omnibus legislation.

Unfortunately, by any measure, the Liberal government has not only failed to live up to its promises but has moved progressive justice policy backwards.

But let’s start with one almost positive. When it comes to the legalization of marijuana, it seems that the Liberals kept their promise — sort of. They pledged to legalize marijuana because it “traps too many Canadians in the criminal justice system.” So, in 2015, the Liberals promised to “remove marijuana consumption and incidental possession from the Criminal Code.”

But the Liberal’s cannabis legislation doesn’t do any of those things very well. Sure, the new legislation does legalize some marijuana — some of the time, under some circumstances — but it does not “remove marijuana consumption and possession from the Criminal Code.”

Unfortunately, in addition to leaving marijuana criminal in too many circumstances, the cannabis legislation also discriminates against the young and the poor and is checkered with unconstitutional provisions. Amendments to correct these issues were proposed when the bill was studied, but the Liberal-controlled committee rejected every opposition amendment — evidence-based policy be dammed.

But the list of promises, even half-kept ones, basically ends there.

Sadly, even in the face of an explicit promise, the government has taken no action to address the problem of minimum sentences. Even though almost all the evidence suggests that minimum sentencing is a counterproductive measure that contributes to inequality and court delays — while offering no increase in community safety — the government has done nothing.

Wilson-Raybould did introduce a bill to restore some discretion to judges to determine the appropriate victim fine surcharges, but that bill languished on the order paper and was abandoned only to be sent back to square one and incorporated into the self-described “bold” criminal justice reform bill C-75.

But bill C-75 does little to satisfy the Liberals’ lofty justice rhetoric. This flagship and highly criticized piece of legislation reacted to high-profile court cases by eliminating the preliminary inquiry and radically changing jury selection. When combined with legislation that would compel an accused to make reverse disclosure to the Crown in sexual assault cases, Wilson-Raybould’s “bold” justice reform has been described by the criminal defence bar as “utter and complete betrayal,” an erosion of procedural safeguards and “worse than anything [former prime minister Stephen] Harper ever did.”

What is missing from the government’s criminal justice track record are any meaningful measures to transform how we deal with crime driven by addiction, poverty or mental health. Missing is any recognition that systemic racism is a problem. Missing is anything remotely resembling the promised reforms.

Ultimately, the government cannot be criticized for a lack of vision — just look at all its promises. But the Liberals’ first term in power has shown that they are willing to sacrifice that vision. Perhaps they don’t have the stomach for necessary reforms, perhaps they were full of hot air when they made the promises or maybe they just don’t really care about community safety, constitutional values and fairness.

History will show the last four years as a missed opportunity. And a government that swept to power with the support of many in the criminal defence bar may learn the lesson that there is no greater fraud than a promise not kept.

Among Premier's influencers and the AG's true role, Mulroney is absent

Last week, the Ontario Court of Appeal found that Doug Ford’s legislative attempt at gerrymandering in Toronto’s election was disruptive and reduced the effectiveness of the candidates’ election messages.

The court also strongly inferred that Ford’s bill was unfair. But unfairness does not make a law unconstitutional. And although the Court of Appeal did not definitively rule Justice Belobaba got it wrong when he found that Bill 5 violated the Charter,it did find that there was a strong likelihood that he was in error.

In the end, Ontario Attorney General Caroline Mulroney may have prevailed in the Court of Appeal, but she certainly has nothing to celebrate. The whole debacle has confirmed two things: Mulroney is a legal lightweight and she is a non-player at the cabinet table.

But first, let’s take a step back and clarify the historical record.

Belobaba’s decision finding Bill 5 unconstitutional was released just after breakfast on Sept. 10. Within a matter of minutes, Ford tweeted: “Re: the judge’s ruling this morning, I’ll have more to say about this at noon. Stay tuned . . . #onpoli.“

This kneejerk reaction left no time for reflection, no time for analysis and certainly no time for Ford to discuss the complex decision with Mulroney.

And at that noon press conference, where Ford announced his hasty decision to take the unprecedented legal step to invoke the Charter’s notwithstanding clause to exempt Bill 5 from constitutional compliance, there was no sign of Ontario’s attorney general.

Mulroney was not in the room when Ford attacked the legitimacy of the “appointed” judge’s decision and began his assault on the role of an independent judiciary. Mulroney was nowhere to be seen when Ford said he would not hesitate to use the notwithstanding clause again.

In fact, Mulroney ghosted the whole province until much later in the day when she tweeted: “s92 of the Constitution makes it clear that the Province has exclusive jurisdiction over municipalities. It’s why we’re appealing the ruling and will be introducing legislation to invoke s33 to deliver on our commitment of smaller, more effective government. #onpoli #forthepeople.”

It is shocking that the chief legal adviser to Her Majesty the Queen in Right of Ontario and, by extension, the Government of Ontario seems to have played no role in Ford’s decision to invoke the notwithstanding clause. It is Mulroney’s job, after all, to provide legal advice to and conduct litigation on behalf of the government. But it appears that she did none of these things. She was either asleep at the wheel or even worse pushed out of the car by Ford.

It is shameful that Mulroney did not firmly and brightly stand up for the judicial system when Ford began throwing shade at judges.

But even more disappointing is the lack of legal depth Mulroney displayed when she finally did speak up.

In her initial tweet, Mulroney seems to conflate the jurisdictional issues with the decision to invoke the notwithstanding clause. No one has ever said that the province did not have the jurisdiction to pass laws that deal with municipal elections. But perhaps Mulroney’s conflation of the issues should not come as a surprise. After all, Mulroney has not really even practiced law that much.

She only renewed her lapsed licences in 2017 — immediately prior to her unsuccessful leadership bid. And she has only ever been licensed to practice law south of the border. She has never been licensed in what should be considered a foreign jurisdiction given her U.S. training — that jurisdiction being Ontario.

Maybe this lack of experience with the Canadian legal system explains her bizarre defense of Ford’s use of the notwithstanding clause in the Ontario legislature, where Mulroney said, “We are using the Charter of Rights and Freedoms to uphold the Constitution.”

Yes, Ford was indeed using the Charter’s notwithstanding clause but not to uphold the Constitution. The reality, apparent even to a legal neophyte, is that Ford was using a provision of the Charter to pass a law that had been found to violate the Constitution.

The fact that the Court of Appeal later expressed skepticism regarding the soundness of Belobaba’s reasoning does not untangle the logic pretzel Mulroney found herself in when defending Ford’s drastic and ultimately unnecessary decision to invoke the notwithstanding clause. 

The hypocrisy of Mulroney’s position is even more galling.

She remained silent when Ford attacked the legitimacy of the judicial system. She defended Ford’s use of the notwithstanding clause because municipal elections are a subject of provincial jurisdiction. Mulroney says that, despite the fact the issue was never raised by Ford during the election, the government now has a mandate to forge ahead with Bill 5.

And yet Mulroney has filed a court challenge to the federal government’s carbon tax. Recall that the federal government actually campaigned on the carbon issue. And the federal government has the jurisdiction to implement the carbon tax. And yet Mulroney is asking “appointed judges” to interfere with the democratic will of the people — but only when it suits her.

 Hypocritical inconsistency is the hobgoblin of small and politically partisan minds. And Ontario deserves better.

Mulroney is not Doug Ford’s attorney general. She is the attorney general for all of Ontario. It is time she started acting like it.

Feds need constitutional remedy on sexual assault intoxication defence

The news that an Ontario Superior Court judge ruled the prohibition on extreme intoxication as defence to sexual assault was unconstitutional broke just before the Labour Day long weekend.

And then social media exploded.

Tweets and Facebook posts linking Ontario’s absurd buck-a-beer initiative, the removal of consent from school curricula and the defence of extreme intoxication spread like a viral forest fire. "Shame on us, Ontario," was the public sentiment.

But Justice Nancy Spies' decision in the McCaw case came as no real surprise to criminal lawyers. After all, s. 33.1 of the Criminal Code,  which prohibited the drunkenness defence, had been struck down as unconstitutional nine times already. Seriously, every time the issues had been argued — in British Columbia, Quebec, Nunavut, the Northwest Territories and five times in Ontario — the limitation was found to violate the Charter.

In fact, Spies did not even really make a decision on the constitutionality of s. 33.1. She said she would have found it unconstitutional but the decision was already made for her. She said that she was bound by precedent set in the Dunn case, which first found the limitation to be unconstitutional in 1999.

The question is not is the defence of extreme intoxication in sexual assault cases back. It has been back for a while now.

Historically, intoxication was never a defence to any crime. However, as the common law evolved to recognize that punishment without a guilty mind was fundamentally unjust, this rule was relaxed. It came to be the case, and it was confirmed by the Supreme Court in the 1977 case of Leary that extreme intoxication could provide a defence for specific intent offences but not offences, such as sexual assault, that only required a generalized intent.

Following the coming into force of the Canadian Charter of Rights and Freedoms, the Supreme Court was asked to re-evaluate the issue. The Charter guarantees a right to a fair trial and the right to be presumed innocent. But because of the rule in Leary, in situations where the level of intoxication reached by an accused was sufficient to raise a reasonable doubt as to the capacity to form even the minimal mental element required for a general intent offence, an acquittal was impossible. 

So, in 1994, the Supreme Court found that extreme intoxication to the point of automatism could be a defence to general intent offences. To hold otherwise would violate the Constitution. 

But this was not a licence to get drunk and commit sexual assault. The Supreme Court also found that this type of defence would be rare. This conclusion was backed up by empirical evidence from Australia and New Zealand, both of which had permitted a similar defence to sexual assault charges for almost 20 years, and their experience did not result in the opening of any floodgates.

The majority of the Supreme Court, including Justice Claire L'Heureux‑Dubé (who may be best known for defending the rights of women and being tough on crime), importantly went on to limit any intoxication defence: that the accused would bare the onus of proving the rare defence and would need to back up the defence with expert evidence.

The federal government’s reaction was swift, and nine months after the Supreme Court’s landmark decision, legislation introduced by then-Justice Minister Allan Rock was passed to eliminate a defence of extreme intoxication for all assault-based offences.

And then that new law was found unconstitutional twice in 1998, thrice in 1999, once in 2000 and 2005, twice more in 2010, again in 2012 and yet again last month.

These cases never made it to any court of appeal or the Supreme Court because even when the accused was permitted to advance the intoxication defence they were convicted — every time.

The current federal government pledged to modernize the Criminal Code and to ensure that our laws meet constitutional muster. But they seem to have purposely avoided this problematic section of the Code. The result is a revolving door of litigation, a patchwork of laws and public confusion.

Perhaps it is understandable — from a political perspective — that the government is hesitant to touch s. 33.1 of the Criminal Code with even the longest of poles. But it must. The current state of affairs is not only constitutionally dubious but also dangerous.

Thisbrings me back to all of those social media posts. Being drunk is not a defence to sexual assault. Being intoxicated is not an excuse to abuse women. But a quick and uninformed read of all of those tweets and Facebook posts may lead some to that conclusion. And this risks public safety.

Is the defence of extreme intoxication in sexual assault cases back? No. Not only did it never really go away but its chances of success also remain as rare as ever. 

As the Supreme Court said in 1994, it is always open to Parliament to fashion a remedy that would make it a crime to commit a prohibited act while drunk. It is time the government did just that, but this time, it should do it in a way that does not violate the Constitution. 

Getting to the real root of gun violence

Politicians, police officers and Crown prosecutors have not been serious about fighting guns and gangs — at least according to Ontario Premier Doug Ford.

 "It's time to get serious about fighting guns and gangs," said Ford earlier this month, as if this was an issue of trifling importance prior to the election of the Progressive Conservatives. 

How is Ford getting serious about guns? Part of his answer is to spend $7.6 million to create a “legal SWAT team” in each Toronto courthouse. Apparently, if there is a problem with guns, it only exists in Toronto.

Each of Ford’s SWAT teams will be led by a Crown attorney and will be mandated to focus exclusively on ensuring violent gun criminals are denied bail and remain behind bars.

If anyone needs to get serious about gun violence it is Doug Ford and Attorney General Caroline Mulroney because this new plan has no basis in reality and it won’t move the needle a centimetre toward making our communities safer.

Ford’s announcement throws some backhanded shade at Ontario’s prosecutors. He implied that prosecutors are part of “a system that lets far too many criminals convicted of gun crimes out on bail and back on the streets the very next day.” 

Does Ford think prosecutors are pushovers when it comes to gun crimes? Does he hold Crown attorneys responsible for this year’s spike in gun crimes? I suppose it falls to a criminal defence lawyer to stand up for Ontario’s Crown attorneys because the fact is that they are skilled advocates who forcefully prosecute gun crimes and are hyper-aware of public safety. I can’t imagine what more prosecutors could do to get serious about guns.

There are already specialized Crowns who deal with gang and gun charges, and all prosecutors are already directed to take gun bails very seriously. But don’t take it from me — it is in black and white in Ontario’s Crown Prosecution Manual, which says: “In all cases involving firearms, the Prosecutor must seek a detention order, absent exceptional circumstances, to ensure the safety and security of the public. If exceptional circumstances exist, the Prosecutor must obtain prior approval of the Crown Attorney or designate before recommending or consenting to any form of judicial interim release.” 

So, prosecutors almost always contest the release of anyone charged with a gun crime. Ontario’s prosecutors are hyper-vigilant when it comes to guns and, take it from me, they are very skilled in the courtroom. The fact is that it is difficult to secure a release for any serious firearms offence and when, over the Crown’s objection, bail is granted, the conditions of release are always restrictive.

And then there is a problem with the logical connection between bail for gun charges and reducing gun crimes. It is basically a settled proposition, if you care to actually look at the evidence, that severity of punishment doesn’t deter crime. So, Ford’s posturing about cracking down on bail won’t stop gun crime.

Is it Ford’s contention that the recent spate of shootings has been committed by people who were already on bail for a prior gun allegation? This would be cause for concern, but there is no evidence to suggest that this is the case. And spending millions of dollars in the absence of any evidence is wasteful and counterproductive. Ford’s announcement was not about actually achieving results or making our streets safer — it is all about creating the mirage of action.

Spending money on programs designed for political damage control is not only ineffective,it comes with opportunity costs. As Ford has constantly reminded us, there is not an unlimited amount of money for the province to spend. Just think what Toronto could do with almost $8 million to actually increase community safety: addiction treatment, anti-poverty measures, affordable housing, mental health supports, job training and youth gang exit programs. Funding these types of programs may not be the thing of blustering-tough-guy press conferences, but it would actually produce results.

But, instead of investing in preventing crime and keeping our streets safe, Ford plans to cut many of these programs — programs that actually do reduce crime. 

The reality is that police, prosecutors and politicians have been serious about reducing violent crime.

Sadly, it is Ford and Mulroney who are not serious about keeping our streets safe, and one only needs to scratch the surface to come to that conclusion. They seem to be more interested in optics than in reality and results. Their short-sighted approach to the very serious issue of gun violence will end up costing much more than $7.6 million.