Now here is as fine a piece of sophistry as has come along in a while.
It seems this Muslim gentleman in Arizona took exception to his daughter becoming "too westernized" and ran her down with his vehicle, killing her in the process. He admitted it was an honour killing. He is being tried for first degree murder for which Arizona law prescribes the death penalty. His lawyer, however, is arguing that he should not be subjected to the death penalty less the public (especially the Muslim public) gets the idea that it is Christians who are putting Muslims to death.
The law is supposed to be neutral and even-handed and issues such as race, religion, ethnicity, etc., are irrelevant. The religion of the prosecutor and the judge ought to be irrelevant to the outcome.
What does this mean? Can only Muslim judges pass sentence on Muslim defendants?
What if the defendant were an atheist? Would one require an atheist judge so that religious folk are not seen to be killing non-believers?
What the defense lawyer is really arguing is that killing this defendant will stir up the Muslims and then watch out; the usual "let's not shake the wasps nest" fear argument that seems to hold much water in our society.
Showing posts with label criminal law. Show all posts
Showing posts with label criminal law. Show all posts
Monday, February 22, 2010
Monday, September 28, 2009
Paying for injustice
There is a very sad column in today’s Toronto Sun by prominent criminal lawyer, Edward Greenspan. He is singing a song I call “The Defence Lawyer Blues”. It is a popular refrain amongst criminal lawyers.
The lyrics dwell on how misunderstood they are by the public and the politicians, how necessary they are, how underappreciated they are, and how underpaid. Most of his lament is about the payment part.
He is complaining that legal aid programs that were started by the government years ago, to ensure that the poor had the taxpayer to pick up their legal tabs and could hire good, expensive lawyers, are now not paying enough money to make it worth a lawyer’s time to take on such clients. He is concerned that the refusal by criminal lawyers to defend accused criminals will lead to unfairness, which might, by some, be equated with injustice.
He mentioned that lawyers are boycotting the defence of gang members in the recent police sweeps.
Now you may remember some of those sweeps, the ones where the cops took down the gang members, dragging them out of their Lexus’s, cracking the crystals on their Rolex watches, and breaking their solid gold bling necklaces, emptying the trunks of hundreds of thousands of dollars in drugs and guns.
I had no idea until I read this column that those guys were qualified for legal aid.
I used to know a young man, 19 years of age, who was a runner for one these gangs. He was a small time dope distributor, dealing mainly in marijuana which he purchased from gang members and resold. He carried a gun and had been shot at a couple of times. He was small fry, but he cleared $12,000 a month, tax free. Eventually, the police caught him when a snitch fingered him in return for lesser charges. He got legal aid and 3 years of detention, which might well have been longer had he not had a legal aid lawyer in his corner. Personally, I think he should have been in longer.
I mention this, because I own a mortgaged home, a modest, two-bedroom bungalow, a beater of a car and I live on a pension that does not pay $12,000 a month either before or after taxes. I am considered to be a member of the “middle class” and therefore ineligible to obtain legal aid. If I want a lawyer, I have to pay for it, even if it might mean selling my home, or incurring crushing debt that I will never be able to repay. And when my young acquaintance got a lawyer, I had to pay for him as well, through my taxes.
Why is Mr. Greenspan not shedding crocodile tears on my behalf?
He says most of the legal aid money goes to family law.
That is very interesting because recently I have had some personal experience with the Family Court on behalf of one of my children who is fighting a custody battle.
My child is a single employed mother working 6 days a week, and making about $31,000 a year, before taxes. She cannot get legal aid because she is considered middle class. However, the father of the child, who is able-bodied and has been in the work force (I use that term loosely) for 14 years, and has held a job for only 6 months in all that time (in PC terms, he is motivationally-challenged) is getting legal aid for a lawyer, and so far has been fairly successful in screwing her over through the court.
I notice whenever I go to the courthouse and read the rosters in front of the court chambers that about 95% of the litigants are unrepresented by lawyers. That is because they cannot get legal aid, and like me and my daughter they cannot afford to hire the family law equivalent of Mr. Greenspan.
As we all know until now there has always been one law for the rich and one for the poor. That is because they are the only ones who can afford lawyers. But, if Greenspan is correct, it now appears the poor are joining the ranks of the middle class and they will soon find out how it feels to be denied justice in our society because of a lack of money.
Let’s all welcome the poor to our part of town. The one distinguishing feature of it is that it is lawyer-free. Not to be confused with free lawyers which is the neighbourhood they used to occupy.
My prescription for legal aid?
I would do away with it in the Family Court since very few of these actions are being fought with lawyers anyway. Lawyers do not really help in family problems because lawyers see themselves as gladiators. Would we think of solving family disputes by distributing handguns to the husband and wife? A lawyer is the legal equivalent of a handgun. Family disputes should be dealt with by a triage of counselling, mediation and arbitration (binding if necessary).
In the criminal system we should bring in a public defender department as they have in some of the American states. Such a system has flaws, of course, and may even cost more money, but the key thing is that the state is responsible for both the prosecution and the defence and the government runs a political risk if it pays to much attention to one side over the other.
This is the problem faced by Mr. Greenspan. He has no political clout because he is seen (fairly or unfairly) as a self-interested private lawyer representing a sleazy element in our society. A public defender system would have a chief mandarin as a champion to ensure that there is adequate funding, and such a person cannot easily be ignored by the government. The provincial Ombudsman should also have a role in overseeing it. And it would open the possibility that it could be made available to the middle class.
The rich will always be there to hire Mr. Greenspan, so he will not lack for a decent income.
The lyrics dwell on how misunderstood they are by the public and the politicians, how necessary they are, how underappreciated they are, and how underpaid. Most of his lament is about the payment part.
He is complaining that legal aid programs that were started by the government years ago, to ensure that the poor had the taxpayer to pick up their legal tabs and could hire good, expensive lawyers, are now not paying enough money to make it worth a lawyer’s time to take on such clients. He is concerned that the refusal by criminal lawyers to defend accused criminals will lead to unfairness, which might, by some, be equated with injustice.
He mentioned that lawyers are boycotting the defence of gang members in the recent police sweeps.
Now you may remember some of those sweeps, the ones where the cops took down the gang members, dragging them out of their Lexus’s, cracking the crystals on their Rolex watches, and breaking their solid gold bling necklaces, emptying the trunks of hundreds of thousands of dollars in drugs and guns.
I had no idea until I read this column that those guys were qualified for legal aid.
I used to know a young man, 19 years of age, who was a runner for one these gangs. He was a small time dope distributor, dealing mainly in marijuana which he purchased from gang members and resold. He carried a gun and had been shot at a couple of times. He was small fry, but he cleared $12,000 a month, tax free. Eventually, the police caught him when a snitch fingered him in return for lesser charges. He got legal aid and 3 years of detention, which might well have been longer had he not had a legal aid lawyer in his corner. Personally, I think he should have been in longer.
I mention this, because I own a mortgaged home, a modest, two-bedroom bungalow, a beater of a car and I live on a pension that does not pay $12,000 a month either before or after taxes. I am considered to be a member of the “middle class” and therefore ineligible to obtain legal aid. If I want a lawyer, I have to pay for it, even if it might mean selling my home, or incurring crushing debt that I will never be able to repay. And when my young acquaintance got a lawyer, I had to pay for him as well, through my taxes.
Why is Mr. Greenspan not shedding crocodile tears on my behalf?
He says most of the legal aid money goes to family law.
That is very interesting because recently I have had some personal experience with the Family Court on behalf of one of my children who is fighting a custody battle.
My child is a single employed mother working 6 days a week, and making about $31,000 a year, before taxes. She cannot get legal aid because she is considered middle class. However, the father of the child, who is able-bodied and has been in the work force (I use that term loosely) for 14 years, and has held a job for only 6 months in all that time (in PC terms, he is motivationally-challenged) is getting legal aid for a lawyer, and so far has been fairly successful in screwing her over through the court.
I notice whenever I go to the courthouse and read the rosters in front of the court chambers that about 95% of the litigants are unrepresented by lawyers. That is because they cannot get legal aid, and like me and my daughter they cannot afford to hire the family law equivalent of Mr. Greenspan.
As we all know until now there has always been one law for the rich and one for the poor. That is because they are the only ones who can afford lawyers. But, if Greenspan is correct, it now appears the poor are joining the ranks of the middle class and they will soon find out how it feels to be denied justice in our society because of a lack of money.
Let’s all welcome the poor to our part of town. The one distinguishing feature of it is that it is lawyer-free. Not to be confused with free lawyers which is the neighbourhood they used to occupy.
My prescription for legal aid?
I would do away with it in the Family Court since very few of these actions are being fought with lawyers anyway. Lawyers do not really help in family problems because lawyers see themselves as gladiators. Would we think of solving family disputes by distributing handguns to the husband and wife? A lawyer is the legal equivalent of a handgun. Family disputes should be dealt with by a triage of counselling, mediation and arbitration (binding if necessary).
In the criminal system we should bring in a public defender department as they have in some of the American states. Such a system has flaws, of course, and may even cost more money, but the key thing is that the state is responsible for both the prosecution and the defence and the government runs a political risk if it pays to much attention to one side over the other.
This is the problem faced by Mr. Greenspan. He has no political clout because he is seen (fairly or unfairly) as a self-interested private lawyer representing a sleazy element in our society. A public defender system would have a chief mandarin as a champion to ensure that there is adequate funding, and such a person cannot easily be ignored by the government. The provincial Ombudsman should also have a role in overseeing it. And it would open the possibility that it could be made available to the middle class.
The rich will always be there to hire Mr. Greenspan, so he will not lack for a decent income.
Saturday, May 17, 2008
Is it criminal or is it civil?
I am on board with those who believe that human rights commissions in Canada need reformation. I don’t think I would see them abolished outright, but I would either subject them to many of the fairness rules that are our built into our criminal or civil courts, or remove matters that touch and concern free speech to the courts proper.
The question becomes whether free speech disputes are criminal in nature or more akin to civil issues.
If they are crimes, I am not much persuaded of the unfairness of HRC proceedings by arguments that the complainant gets the government to pay the shot of the prosecution, since that is also what happens in criminal courts. The theory behind it is that a crime is not a crime against a single victim, but is a crime against all of society.
In that sense, an issue involving free speech is a societal one, and not some local tenant/landlord issue, or some one-off employee/employer dispute, conflicts for which HRCs were originally created to resolve. The societal dispute needs to be handled in a more formal and equitable fashion, the way we require in our criminal prosecutions.
The hallmarks of the criminal process are:
• a presumption of innocence on the part of the accused,
• the burden of proof lies with the prosecutor,
• an indictment must be proven beyond reasonable doubt,
• the right to have the case heard by an impartial jury,
• the right to face the accuser and to the right to cross-examine witness for the prosecution,
• the right of the accused to present his/her own evidence and witnesses in rebuttal,
• the requirement to present only evidence that is material and relevant to the charge,
• consideration of the reasonableness or otherwise of the conduct in question, and
• the requirement that the process be conducted by a qualified judge with extensive legal knowledge and prior courtroom experience as a trial lawyer.
One of the essences of a criminal prosecution is that there has to be mens rea on the part of the accused. It is not sufficient to consider only what the accused may have done, but one must also determine the intention of the accused in performing the action.
For example, I may strike somebody with my fist and kill him. Should I be convicted of murder one, murder two, manslaughter, or go free? The result will depend on what the court concludes about my intention. If I struck the person to prevent him from killing another person and that was reasonable conduct in those circumstances, I likely would not be convicted of a crime.
However, there already is a provision in the criminal code for hate speech, one that is not often pursued simply because the foregoing procedural hurdles normally preclude a successful prosecution. And that is probably as it should be since free speech is a fundamental human right in a liberal democracy.
So, why would Parliament set up a counterpart free speech prosecutorial regimen in such a loosey-goosey forum as an HRC?
One answer might be that the law makers think that these offenses equate more with civil issues rather than criminal ones. The HRCs traditionally deal with civil disputes, not criminal ones.
If I don’t hire somebody because, say, he wears a turban, he can either sue me or, in effect, get the HRC to do it for him. I am not a criminal in the Canadian criminal code sense, because my offense is not against society, it is against this individual. My behaviour is proscribed by statute to be sure, but that does not make it a crime, only an actionable civil matter. If the issue goes to a hearing before a human rights tribunal and the members award damages against me, it is not something that is going to show up on a criminal record that would bar me international travel, or prevent me from getting credit, etc. It is a civil penalty, like a court in a tort action awarding damages against me for trespassing or causing a car collision.
It only would fall into a criminal category should I ignore the judgment and it is referred to a court for contempt proceedings. A conviction in that case would be for something different.
However, if free speech disputes are more civil rather than criminal in nature, then it is unfair that the state pay for the prosecution of the defendants. The complainants should have to bear the cost, exactly as they would in a normal civil trial.
Since free speech is such an important issue, all the normal requirements that apply to actions in civil courts should also apply here, many of them the same as the ones listed for the criminal process. The difference, in this instance, is that the burden of proof would shift to the defendant, in accordance with the standards of libel law, and the bar of proof would be “on the balance of probabilities” rather than “beyond reasonable doubt”.
On the defense side, the defendant would have an array of defenses available to him: truth, fair comment, matters of public importance, reasonableness, honest believe, etc. The defendant would also have the right to a jury trial.
Probably the most significant aspect of a civil action is the possibility that the losing side could have the costs of the action awarded against him. This is a sobering consideration for frivolous-minded litigators, and intentionally so.
No matter how this mess eventually sorts itself out, the one flaming flaw that cries out for correction is eliminating the word “likely” from Section 13 to make it clear that there must be some evidence of actual harm. This is far too subjective a standard and is a self-evidently inequitable law.
Addendum: Since publishing the foregoing earlier this morning, I have considered that I am a fence-sitter, and I never like to be accused of that. On balance, I think free speech disputes are between civil litigants and are not the proper subject of criminal law. Free speech means that state has no right to interfere in an individual's expression of his or her conscience. It doesn't mean that if I say something that causes another individual harm, that individual should not have a means to seek redress. The redress should be through our time honoured tort laws in a court of civil jurisdiction, and the state should have no litigious role in that, including funding a litigant.
The question becomes whether free speech disputes are criminal in nature or more akin to civil issues.
If they are crimes, I am not much persuaded of the unfairness of HRC proceedings by arguments that the complainant gets the government to pay the shot of the prosecution, since that is also what happens in criminal courts. The theory behind it is that a crime is not a crime against a single victim, but is a crime against all of society.
In that sense, an issue involving free speech is a societal one, and not some local tenant/landlord issue, or some one-off employee/employer dispute, conflicts for which HRCs were originally created to resolve. The societal dispute needs to be handled in a more formal and equitable fashion, the way we require in our criminal prosecutions.
The hallmarks of the criminal process are:
• a presumption of innocence on the part of the accused,
• the burden of proof lies with the prosecutor,
• an indictment must be proven beyond reasonable doubt,
• the right to have the case heard by an impartial jury,
• the right to face the accuser and to the right to cross-examine witness for the prosecution,
• the right of the accused to present his/her own evidence and witnesses in rebuttal,
• the requirement to present only evidence that is material and relevant to the charge,
• consideration of the reasonableness or otherwise of the conduct in question, and
• the requirement that the process be conducted by a qualified judge with extensive legal knowledge and prior courtroom experience as a trial lawyer.
One of the essences of a criminal prosecution is that there has to be mens rea on the part of the accused. It is not sufficient to consider only what the accused may have done, but one must also determine the intention of the accused in performing the action.
For example, I may strike somebody with my fist and kill him. Should I be convicted of murder one, murder two, manslaughter, or go free? The result will depend on what the court concludes about my intention. If I struck the person to prevent him from killing another person and that was reasonable conduct in those circumstances, I likely would not be convicted of a crime.
However, there already is a provision in the criminal code for hate speech, one that is not often pursued simply because the foregoing procedural hurdles normally preclude a successful prosecution. And that is probably as it should be since free speech is a fundamental human right in a liberal democracy.
So, why would Parliament set up a counterpart free speech prosecutorial regimen in such a loosey-goosey forum as an HRC?
One answer might be that the law makers think that these offenses equate more with civil issues rather than criminal ones. The HRCs traditionally deal with civil disputes, not criminal ones.
If I don’t hire somebody because, say, he wears a turban, he can either sue me or, in effect, get the HRC to do it for him. I am not a criminal in the Canadian criminal code sense, because my offense is not against society, it is against this individual. My behaviour is proscribed by statute to be sure, but that does not make it a crime, only an actionable civil matter. If the issue goes to a hearing before a human rights tribunal and the members award damages against me, it is not something that is going to show up on a criminal record that would bar me international travel, or prevent me from getting credit, etc. It is a civil penalty, like a court in a tort action awarding damages against me for trespassing or causing a car collision.
It only would fall into a criminal category should I ignore the judgment and it is referred to a court for contempt proceedings. A conviction in that case would be for something different.
However, if free speech disputes are more civil rather than criminal in nature, then it is unfair that the state pay for the prosecution of the defendants. The complainants should have to bear the cost, exactly as they would in a normal civil trial.
Since free speech is such an important issue, all the normal requirements that apply to actions in civil courts should also apply here, many of them the same as the ones listed for the criminal process. The difference, in this instance, is that the burden of proof would shift to the defendant, in accordance with the standards of libel law, and the bar of proof would be “on the balance of probabilities” rather than “beyond reasonable doubt”.
On the defense side, the defendant would have an array of defenses available to him: truth, fair comment, matters of public importance, reasonableness, honest believe, etc. The defendant would also have the right to a jury trial.
Probably the most significant aspect of a civil action is the possibility that the losing side could have the costs of the action awarded against him. This is a sobering consideration for frivolous-minded litigators, and intentionally so.
No matter how this mess eventually sorts itself out, the one flaming flaw that cries out for correction is eliminating the word “likely” from Section 13 to make it clear that there must be some evidence of actual harm. This is far too subjective a standard and is a self-evidently inequitable law.
Addendum: Since publishing the foregoing earlier this morning, I have considered that I am a fence-sitter, and I never like to be accused of that. On balance, I think free speech disputes are between civil litigants and are not the proper subject of criminal law. Free speech means that state has no right to interfere in an individual's expression of his or her conscience. It doesn't mean that if I say something that causes another individual harm, that individual should not have a means to seek redress. The redress should be through our time honoured tort laws in a court of civil jurisdiction, and the state should have no litigious role in that, including funding a litigant.
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