Newly Released Documents Show Doug Ford Lied About Legal Aid

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Back in April, after almost "hitting three telephone poles," Doug Ford called into a Toronto radio station to defend the government’s cuts to the legal aid system. The boiling public backlash seems to have gotten under his thin skin and at the end of that impromptu call Ford said that, "if anyone needs support on legal aid, feel free to call my office. I will guarantee you that you will have legal aid."    

New information, released under a Freedom of Information request, shows that Ford never had any intention of following through on his legal aid guarantee.

But first some recent history. In the days before Ford’s frantic radio call-in, the Ontario government had just slashed funding to Legal Aid Ontario (LAO) by 30 per cent. To make matters worse, the $133 million cut took effect immediately – there was no advanced notice – despite the fact that LAO's 2019 budget had already been finalized. And on top of it all, the province directed LAO that no provincial money at all could be used to cover immigration and refugee law, meaning that vulnerable immigrants and refugees would face deportation hearings without any legal counsel.

Ultimately, the scope of Ford’s cruel cuts stretched well beyond immigration hearings. Community legal clinics, which provide assistance to some of Ontario’s most marginalized people, were forced to roll-back services and close offices. Funding for indigenous specific sentencing submissions was slashed by more than 50-percent. And rollbacks to criminal court services sparked a crisis in the justice system.  

More and more people who can’t afford a lawyer are being denied legal aid. This is the context in which Doug Ford guaranteed that those people who need legal aid “will have legal aid.”

And this week, in response to continued questions by the Huffington Post’s Emma Paling, Ford doubled down on his guarantee saying the he would “continue to help anyone who calls.”

But internal government emails reveal that, despite his promises, Ford has not actually helped anyone.

On April 23, the day after Ford first made his legal aid promise, I wrote to the premier to inquire how my clients, who are in desperate circumstances but have been denied legal aid, could take advantage of his personal guarantee. I received no response.

So, over the following 100-days I wrote more than 40 letters to the premier and Attorneys General Caroline Mulroney and Doug Downey.

It was a one-way pen pal relationship. I never heard back from Doug Ford.

Ford may not have responded to any of my letters but the Ministry of the Attorney General (MAG), then lead by Caroline Mulroney, immediately took notice.

On April 23, the day I wrote the first letter, senior team lead at MAG, Philip Klassen wrote to Caroline Mulroney’s director of communications, Jesse Robichaud, her press secretary, Alexandra Adamo, her issues management advisor, Jean-Philippe Chartré, her legal counsel, Genvieve Chiu, and a team of media relations personal alerting them that a “prominent Ottawa lawyer” had written to the premier about his “promise that anyone who needed legal aid will receive it.”

Seven days later, issues and media relations officer Maher Abdurahamsn sent a follow up email alerting the team that it “seemed like Mr. Spratt is still going strong.”

 You can bet your ass I was.

 It appears that Ford was not expecting anyone to actually take him up on his legal aid promise. Over a week after his call to the radio station, the premier’s correspondence unit was still “waiting for input” on how to reply to my letters.

But my request was not, as the Attorney Generals’ team noted, a “one-off.” It turns out Ford received at least half-a-dozen letters about his promise. 

Ford Passing The Buck on his guarantee

On April 29, the premier received a letter from a constituent seeking help because they were denied legal aid and could not afford a lawyer. Despite his personal guarantee, Ford responded that the issue was not in his “area of responsibility” and shuffled the inquiry to Mulroney.

The next day Ford received another email from someone “in desperate need of legal aid.” Ford again responded that this request fell outside his area of responsibility and forwarded the request to the Attorney General.

Another emailer implored Ford for help saying, “You said no person would ever be without help and I am hoping that you will be able to help me.” Ford did not provide any help and again passed the request to Mulroney.

NO government interference With Legal Aid

And what was the Attorney General’s response to these pleas for help? Mulroney wrote that she could not provide any assistance, including “speaking with LAO staff on your behalf to secure a certificate” because LAO operates “independently and without government interference.”

The heavily redacted government emails also show that in one case an immigrant or refugee wrote to Ford because they were denied legal aid. This time Ford, after expressing sympathy about the situation, suggested that any immigration related issues should be addressed to the Federal Minister of Immigration and Refugees and Citizenship, Ahmed Hussen. 

Promises Made, Promises Broken

Ford promised that anyone who needed legal aid would get it but government documents show that no one who contacted Ford received legal aid or assistance of any kind. Those same documents show that no one in the Ford government even had the power to intervene with LAO’s decisions.

Pick your poison, either Ford was so utterly incompetent that he made a promise he was incapable of keeping and then made it again or he is purposefully misleading the public to distract from his deeply unpopular legal aid cuts.

Ford promised that anyone one who needed legal aid would get it. All they had to do was call him. And then, when people contacted him, he said it was not his problem and passed the buck.

And when the Attorney General received that buck she said that LAO was independent so they could not provide any help either.

And despite all of this, Ford doubled down on his disingenuous promise.

A promise he was powerless to fulfil.

 A promise that he never had any intention of keeping.

 A promise that has now proven to be pure political hucksterism.

 A promise that proves Ford to be liar.

Baseball Bean Balls as a Crime

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Baseball is a gentleman’s game. Unless you are on the Cincinnati Reds, or the Pittsburg Pirates, or just about any other professional team.

Let’s start that over. Professional baseball is a game played by man-sized children. They hold grudges. They fight. They throw things at each other when they get mad. And they commit criminal offences while the state turns a blind eye.

Don’t get me wrong. I love baseball. But I watch the beautiful game despite and not because of the gratuitous and petulant violence.

Last week a baseball game broke out during a boxing matchbetween the Pirates and Reds. The final chapter of a season-long quarrel between the teams played out when Cincinnati relief pitcher Amir Garrett charged across the field intent on a fight. It was Garrett versus the world. Garrett fought the whole Pirates team by himself and he came in hot, throwing punches. Predictably, the benches cleared and both teams joined the melee. The brawl stretched on for minutes. It was like a horrible opera with haymakers, complete with intermissions, subplots and flare-ups.

It was also a crime.

In any other context, the police would have been called and arrests would have been made. Take this fight off the baseball field and move it to a bar, an office or a public park and people would end up in handcuffs.

Criminal assault is the application of force or the threat of the application of force without consent.

There is no question that by running across the field with arms swinging, Garrett was looking for a fight and there is no question he intentionally applied force. But Garrett was not arrested or charged. The police, on the field at the game, literally stood by and did nothing.

The traditional defences of provocation and self-defence don’t apply in a case like this and would be laughed out of court. But, what about consent?

In Canada, you can consent to a fist fight – as long as a weapon is not used and as long as the fight does not result in bodily harm.

But is there any evidence of that in this case?

There is no doubt the Pirates were chirping at Garrett from their dugout – but did they specifically consent to being punched? In court, the consent defence might raise a reasonable doubt but we are dealing with millionaire athletes here and not office workers or bar patrons so this case will never make before a judge because no one was charged.

The law does treat athletes differently than office workers. In sports, physical contact that would normally be assaultive is lawful because unlike fist fights, sporting activities and games are deemed to have a significant social value; they are worthwhile.

In the case of Jobidon the Supreme Court found that “some forms of intentionally applied force will clearly fall within the scope of the rules of the game, and will therefore readily ground a finding of implied consent, to which effect should be given.”

Hockey players don’t commit an offence when they check. Baseball players don’t commit and offence when a hard-slide to break up a double play knocks over a fielder. Boxers don’t get arrested for beating the snot out of each other.

But charging at the opposing team and throwing punches is not clearly condoned in the rules of Major League Baseball.

However, the issue of whether Garrett committed a criminal offence – he did – is distinct from the question of whether Garrett should be charged with a crime – he probably shouldn’t.

Court resources are scarce and the system is already hanging on the edge of a cliff by its fingernails. Everyday there are serious criminal offences that are in danger of being thrown out of court for delay. Public courts should not become the police of Major League Baseball.

To be clear, our overburdened criminal courts should also not be the place where we deal with crimes driven by poverty, addiction or mental health issues. But those poor souls are not millionaires and often end up charged, convicted and imprisoned for offences much less serious and much less violent than Garrett’s.

So, Major League Baseball needs to step up. Garrett received a laughable 8-game suspension. More importantly someone is going to get killed if baseball doesn’t start taking violence seriously.

The Pirates versus Reds fight had a long backstory. Earlier in the game, Pirates pitcher Keone Kela intentionally threw a pitch at the Reds batter Derek Dietrich. In a post-game interview Kela all but admitted it was intentional, saying “The reason I went up and in was strictly, one, to show my intent with my pitch and to pretty much let Dietrich know that I didn’t necessarily agree with the way things went down.”

Kela “didn’t necessarily agree” with how Dietrich had broken an unwritten rule of the game, taking too long admiring one of his homeruns – back in April. In that April game, pitchers were also using the ball as a tool of retaliation and intimidation – pitching at or behind batters.

The majority of baseball brawls either start or end with pitchers intentionally throwing the baseball at a batter. Sure, there is usually some perceived slight – trash talk, a too-slow homerun trot, or a rookie player being  too good.

And this is where the courts should step in – before someone is killed.

The rules of Major League Baseball specifically outlaw and condemn pitching at batters for good reason. Raymond Johnson Chapman played as a shortstop for the Cleveland Indians. Chapman died in 1920 after being hit in the head by a pitch. Short of death, a 2018 study in The American Journal of Sports Medicinefound that although hit-by-pitch injuries occur infrequently in the course of normal play, they collectively represent a significant source of missed games due to injury. Over 5-years, 24,624 player days were missed due to injuries cause by hit-by-pitches.

Intentional hit-by-pitch situations may represent only a fraction of these incidents, but the evidence is clear, being hit by a pitch creates a substantial and predictable risk of bodily harm. Players have the scars, broken bones and grotesque bruises to prove it.

No one, not even a professional athlete, can consent to bodily harm inflicted outside the rules of the game.

Given the injury risks, there can be no argument of implied consent to be hit with a 90 mile per hour projectile. However, these are criminal offences which major league baseball thinks merit only brief suspensions as punishment.

It can be difficult to establish intent in hit-by-pitch situations. But the same is true for many criminal offences. Our police and courts are good at looking at evidence to draw logical inferences. Any fan of the game can distinguish, with reasonable certainly, an errant pitch from a purposeful beaning. And sometimes pitchers freely incriminate themselves. This year, Cubs pitcher Carl Edwards Jr. admitted to intentionally hitting Seattle’s Austin Nola in a spring training game. And in 2012, million-dollar superstar, Cole Hamels admitted to intentionally hitting Bryce Harper with a 93-mile-an-hour fastball because the rookie complained about the strike zone.

Harper took first base and ended up stealing home later that inning. Hamels was suspended for only 5 games. Hamel should have been charged with a crime, and so should have Carl Edwards Jr. and so should have Keone Kela.

Intentional assaults in hockey, a much more violent contact-sport, have resulted in criminal charges and convictions. In 1989 Dino Ciccarelli was convicted of assaulting the Toronto Maple Leafs’ Luck Richardson after he hit him in the head with his stick. In 2000, Marty McSorley was convicted of assaulting Donald Brashear with a weapon, when following a routine hockey-fight he struck Brashear with a weapon – his hockey stick.

Major League Baseball has proven itself unable to deter pitchers from intentionally throwing fast-moving projectiles at batters. Unless Major League Baseball thinks there is valuable social utility in the bean ball it is only a matter of time before a tragedy will force the justice system to take action.

CCTV cameras don't deter crime, so why does Ottawa want them?

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In the wake of several fatal shootings in Ottawa’s ByWard Market the city’s mayor Jim Watson desperately reached for the lowest of low hanging fruit – he wants to install CCTV surveillance cameras.

The three shooting took place over about six months. There was little talk from the mayor about the root causes of crime. There were absolutely no reasonable discussions about the dangers of relying on small sample sizes when looking at law enforcement policy or expanded police powers.

But Watson, who is nothing if not savvy when he perceives his thin political skin to be on the line, channeled his inner George Orwell and is now mandating that the city study the use of CCTV surveillance.

According to Watson, the objectives of the CCTV project are to deter crime, increase the “perception of safety,” and assist with the identifications of suspects.

The real goal of the CCTV project has nothing to do with preventing or detecting crime. Watson is floating the surveillance project for political reasons. This is all about the perception that politicians are taking action. The rest of Watson’s objectives just don’t add up.

Let’s start with the mythical concept of deterrence. To be fair, deterrence forms the basis of almost every new criminal law and is referenced in every sentencing decision delivered by our courts. I will let you in on a secret, general deterrence is a myth. Stiffer sentences don’t deter a robber in the grip of addiction. Harsh punishments have proven ineffective at preventing gun crime, and CCTV cameras won’t deter brazen and impulsive public shootings.

Ottawa’s city councilor for the ByWard Market Mathieu Fleury told the CBC, "I don't know how far [CCTV cameras] would go to prevent [crime].”

It turns out the answer is not that far at all.

In 2007, David Murakami Wood, currently Canada Research Chair in Surveillance Studies at Queen’s University, helped write a report on the spread of CCTV for Britain’s information commission. Murakami, then at Newcastle University, told the New York Timesthat, “the idea of CCTV as a deterrent for something like this is no longer accepted.”

And although the prevalence of public surveillance cameras has exploded in the last decade, there still does not seem to be much evidence justifying the forward march of the surveillance state.

A 2016 study of 146-camera CCTV surveillance system in Newark, New Jersey, published in the Journal of Crime and Justice, found modest support for CCTV as a deterrent against auto theft while demonstrating no effect on the other crime types – including violent offences. These findings were consistent with studies that examined public CCTV surveillance programs in Los Angeles, Cincinnati, San Francisco and Sweden.

The bottom line is that study after study has shown that the effectiveness of CCTV as a crime prevention tool is questionable. Why would a CCTV surveillance system in Ottawa will be any different?

If cameras won’t stop crime, what about the detection of crime? Maybe CCTV cameras will help the Ottawa police identify and apprehend suspects. Except the police already do a very good job of that. Let’s look at the three shooting that lead Watson down the CCTV rabbit hole in the first place – they have all been solved. In each case arrests were made mere days after the incidents.

No state sponsored privacy invasions needed.

But if cameras don’t actually make our streets safer or solve cases maybe they will at least increase perception of safety. This was, after all, one of Watson’s explicit objectives.

On this front, Watson may be right. And this is the real goal of his proposal. Make the public feel like they are safer – even if they are not.  At the end of the day the perception of safety may buy votes but it is thin gruel if there is no actual increase in safety.

The proponents of a CCTV system have done no work to make the case that the increased state surveillance is necessary or would be effective. And the onus should be on those seeking to expand the surveillance state to justify that expansion.

Because there are costs associated with state surveillance.

CCTV systems can increase anxiety and can actually change human behavior. It turns out that not everyone feels safer with increased surveillance and with big brother watching. There is a civil liberties cost to cameras – once the state is granted expanded power there is always the risk they will misuse those powers. Just ask CSIS about its decade-long program of spying on Canadians who posed no threat to national security.

This is why privacy experts are concerned. Ann Cavoukain, Ontario’s former information and privacy commissioner, warned about the unintended consequences of increased surveillance due to the massive amount of information that can be collected through CCTV surveillance.

And then there is the dollar-and-cents cost to CCTV.

The installation, maintenance, monitoring, data encryption and storage, and necessary privacy protections will not be cheap. Perhaps this money could be better spent on front line mental health workers, public education, or social programs that have proven to actually deliver results while not intrude on public privacy.

At the end of the day one shooting is one too many. But the public should not cede ground to the advancing surveillance State for no tangible increase in safety or quality of life in return. And we should definitely not turn a blind eye to politicians who seek to expanding state surveillance for their own selfish, political ends.

More is needed than judicial education for sexual assault law

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Sometimes judges make mistakes. Sometimes they get the facts wrong. Sometimes it’s the law. Mistakes are often corrected by appeal courts. That is how our system works. And although nothing is perfect, our system works pretty well. 

In some cases, when a judge makes a mistake, there is public outcry. Editorials are written. Academics pen long think-pieces from their ivory towers. Newspapers publish editorials. And politicians seize the opportunity to propose new laws to correct the perceived problem.

Let’s be clear, little of this applies when a judge makes a mistake to the detriment of the accused. There are no private members bills born when courts wrongly enter a conviction because a judge wrongly reversed the burden of proof or misapplied the presumption of innocence. There is little public outcry or indigent newspaper editorials when an innocent is sent to jail 

These cases are corrected, if they are ever corrected, through the hard and large unrecognized work of appeal counsel. There are no calls for judicial education because a handful of judges misapplied laws designed to prevent wrongful conviction – although that happens more than we would like to imagine.

But when it comes to sexual assault cases in the post-Ghomeshi world it has been a very different story.   

It is true that much of the Canadian legal history, when it comes to sexual offences, was defined by the misuse of stereotypes and myths. This is why there is specific legislation to prohibit the use of these myths and stereotypes – even when the evidence is probative. But sometimes defence counsel still strays into forbidden territory. Crown counsel do too. And occasionally Courts still make legal errors.

So, enter Rona Ambrose and her 2017 private members bill that sought to mandate judicial training on sexual assault law. Ambrose’s bill died in the Senate after flying through the House of Commons with unanimous support. 

There have been accusations that the Senate was playing politics with Ambrose’s judicial education bill. Ambrose herself called the Senate’s failure to pass the bill “shameful”. And the Liberals have promised that they will re-introduce the bill if they are returned to government.

But maybe, there was more than shameful politics to blame for the Senate’s reluctance to pass the bill. You see, there was little legislative debate in the House of Commons. It was almost as if the bill had no flaws at all. However, as parliamentary journalist Dale Smith pointed out there were indeed problems lurking beneath the surface of the judicial education bill. 

Ambrose’s bill mandates judicial training on “education in sexual assault law that has been developed in consultation with sexual assault survivors, as well as with groups and organizations that support them.” The problem here should be obvious – an interested party should not be involved with training the judiciary. In our adversarial system, this type of behind-closed-door partisan education sets fertile conditions for the perception of bias. 

There is also the logistical issue of mandating specific training for every judicial applicant. If you thought the appointment process was slow now, just wait. Those who have pointed to a lack of timely judicial appointments as a reason why cases, including sexual assault cases, have been thrown out of court should be concerned.

And why just sexual assault training?

In a recent editorial the Toronto Star demanded that judges receive better training in sex assault laws and lamented that Ambrose’s bill was not rushed into law. The Star pointed to two cases in the last two months where appeal courts retuned cases for new trials because of mistakes related to the application of rape shield laws. This is a pretty small sample size to ground calls for parliamentary intervention. And what about other judicial mistakes?

Trust me on this one, there is more than one case a month where court have misapplied the burden of proof, undermined the right to silence, or too-narrowly applied Charter protections. Can we have mandatory, pre-judicial application training on these topics, too? Please? Maybe this mandatory education can be provided by defence lawyers?

Both cases referred to by the Toronto Star were corrected on appeal. There was no extra and potentially problematic judicial education needed. Because when judges get things wrong, an appeal – not new government legislation – is usually the best answer.

Leaving aside the issue of political interference with judicial independence, the belief that Ambrose’s bill represents some sort of panacea is folly. And the sad thing is that there is so much that we can be doing that might make a difference in the lives of complainants. We don’t need to pin our hopes on a flawed private members bill.

Step down from your ivory tower with me for a view from the trenches; where complainants are provided inadequate social supports; where complainants are almost always provided inadequate information about the court process; where the legal education of lawyers (both Crown and defense) is too often seen as an expensive obligation and not a learning opportunity and where the wishes of complainants are often ignored.

Maybe we can start by tackling these problems.

Because there are many ways that the justice system can be modernized to ensure that it truly brings justice to victims of sexual violence. But, holding out Ambrose’s bill as a silver bullet misses the opportunity for real progress and misses the opportunity to bring about real, meaningful reforms.

In the end, the House of Commons may have seen voting for Ambrose’s bill as the path-of-least-political-resistance, but it was not the fix that the justice system truly needs.

Doug Downey: Who is Ontario's Newest Attorney General

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There were lots of reasons to fire Caroline Mulroney. So very, very many reasons. 

Mulroney, Ontario’s former attorney general, provided cover for Premier Doug Ford when he unnecessarily invoked the Charter’s notwithstanding clause in a petty fight over the size of Toronto’s city council. Even when Ford undermined the judicial process, asking why unelected judges should prevail over the will of the majority, Mulroney bobbled in agreement instead of acting as a champion for the rule of law and due process.

Most recently, Mulroney silently oversaw deep cuts to the legal aid system that will inevitably result in impoverished and marginalized Ontarians facing prosecution, conviction, and deportation without the assistance of a lawyer.

And Mulroney took no meaningful steps to reform and modernize Ontario’s overburdened court system. Under Mulroney, our courts were overworked, underfunded, and plagued with delays. They were a throwback to the 1990s when the fax machine was considered modern technology.

Mulroney may be remembered as one of the most unambitious and subservient Attorneys General in Ontario’s history. 

But Mulroney was not fired for her incompetence – she was fired for dutifully following orders.   Whether it was slashing access to justice, attacking the rule of law, or debasing herself in convenience store beer videos, Mulroney did what she was told. 

And that loyalty to the Ford machine bought Mulroney a first-class ticket for a seat under the bus.

So, hello Doug Downey, what kind of attorney general are you going to be?

Downey’s appointment as chief legal adviser to Her Majesty the Queen in Right of Ontario came as a bit of a surprise to most of the legal community. Downey, although seemingly held in decent regard by many in the legal profession, does have the opportunity to surpass the incredibly low bar set by his predecessor. 

And there may be some hope that Downey will be more than merely a Ford sock puppet.

In his remarks following the throne speech Downey began by acknowledging that much of Ontario is the traditional, and in many cases unceded, home to First Nations and Métis people. Downey then went on to praise former Ontario Premier Leslie Frost saying:

The throne speech is a reflection of the plan for the people. It is a government for the people. The people wanted someone in their corner. They wanted politics done differently. And they wanted results. The throne speech confirmed that the plan they were promised and that they voted for is the result they will get.

This is one of the reasons I entered public life: to deliver change.

Leslie Frost was born in Orillia, in Simcoe county, and became Premier in 1949. But back when he was in the military, in 1920, he wrote a letter to his parents, and he was opining on what he should do next with his military career. He said, “There is always the question of duty. A person should take part in some public matters, either civil or military.” Well, I agree with Leslie Frost. Most of us in this Legislature are driven by a sense of duty to the public. I’m honoured to now be working in the Frost building.

I am sure that Downey is well aware that Frost oversaw one of the great expansions in the role of provincial governments in recent history. Under Frost, Ontario substantially increased public investment in the schools, and public transportation. His government introduced public hospital insurance – a precursor to the modern OHIP system of healthcare. He even increased taxes, implementing the provincial sales tax, to fund the new progressive government spending. 

Ontario’s legal aid system was also born under Frost. His government passed the Law Society Amendment Act of 1951 that created the first plan to assist vulnerable and low-income Ontarian’s with legal expenses.

If Downey wants to truly honour Frost’s legacy he will advocate for increased public funding for health, education and justice. He will be an advocate for the rule of law. And he will work to make sure that all Ontarian’s have equal access to justice,

But this will mean he will need to speak out against Doug Ford’s legal Aid cuts and austerity measures – including cutting funds earmarked for lawyers to make of Gladue submissions made on behalf of indigenous people.

Downey needs to show that he can do more than make empty land acknowledgements.

He will need to call out political double speak and the intentional erosion in public confidence in our democratic institutions. 

Downey will need to do what Mulroney was incapable of doing – taking a principled stand against Ford’s worst instincts.

After all, all Downey needs to do is look in the rear-view mirror to see the tire marks over Ford’s last supplicant Attorney General. 

Downey has the opportunity to truly advocate for the people, all the people. But the choice is his. Ford sock puppet or Frost disciple. 

The two are mutually exclusive.