Saaditi v Moorhead: Case Comment

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In Medieval Europe, deciding guilt or innocence was sometimes decided by trial by ordeal. It was believed that the holy water would reject a liar. So they would tie up an accused person and throw him in the water. If you floated, you were guilty. If you drowned, you were innocent.

Has the law evolved much further from this barbaric custom? Many think we have.

In Unfair: The New Science of Criminal Injustice, law professor Adam Benforado begs to differ. He points out that the law of evidence hasn’t caught up with neuroscience. That the way we decide cases isn’t always justifiable. And he gives examples of how we are blind to problematic reasoning.

As we uncover the secret world of detectives, judges, prisoners, and others, we will confront challenging questions. What if our legal rules and practices not only are blind to the real influences on human behaviour but serve to actively perpetuate myths that neuroscientists and psychologists have revealed to be false? What if the structures and frameworks of criminal law that we have adopted to eliminate bias actually make matters worse? And if most people are unfamiliar with the complexities of our hidden minds, might there be power players out there taking advantage of this knowledge to stack the cards in their favour at the expense of the weakest?… Do we care that the path through our system is greased for some and tarred for others, owing to the cognitive biases of police officers, jurors, and judges? Does it matter that certain people are disadvantaged front the outset simply because of their structure of their brain or the shape of their face? … Is justice really blind? [Or is lady justice taking in a lot of information and once she has a picture of you, there’s not much you can do to change it?]… We are masters at jumping to conclusions based on an extremely limited amounts of evidence.

Is it time we rethink the way we establish facts in courtrooms? What role should science have in evidence law?

Interestingly, most rules of evidence are based on judicial decisions. Judges making rulings on a set of facts. They are not rooted in science. They are not thought out by bureaucrats. They are not meticulously updated to keep up with scientific developments. In fact, there is a tension between judges and science.

I remember first entering law school, being surprised that judges did not rely on secondary material, like research papers in coming to conclusions. Rather they were restricted to case law and witnesses. But is that justifiable? How should the scientific method influence judicial decision making? Are the senses really enough to judge a case? How should science and law influence one another?

In Saadati v Moorhead, 2017 SCC 28 the Supreme Court of Canada narrowly considered this question. At issue in the appeal was the necessity of medical expert evidence. The trial judge found that a series of motor vehicle accidents caused the plaintiff psychological injuries. However, no expert evidence was put forth to establish the mental injury.

Ultimately, the Supreme Court welcomed expert evidence. But said it wasn’t necessary to prove mental injury. It also wasn’t necessary to confine a mental injury to a psychiatric disorder.

Justice Brown  stated at paragraph 2:

[2]                              This Court has, however, never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so now… recovery for mental injury does not require proof of a recognizable psychiatric illness. [Requiring proof of psychiatric illness is] premised upon dubious perceptions of psychiatry and of mental illness in general, which Canadian tort law should repudiate…

At paragraph 31, Justice Brown states that confining compensable mental injury to a medical condition is “suspect as a matter of methodology”. And that the categories identified as psychiatric disorders are constantly changing and evolving.

Although I agree that lawyers and judges shouldn’t abdicate their critical thinking to hired guns and that it shouldn’t be necessary to adduce expert evidence to show an injury, I strongly believe that we need to rethink the rules of evidence. The rules of evidence and how we apply these rules need to be grounded in science.

(Views are my own and do not represent the views of any organization.)

Nasty Women in the Law

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Last week, the Women’s March overshadowed Trump’s Inauguration. So what was it about Hillary Clinton that people found so nasty? What was it that triggered such comments like: “such a nasty woman”?

And what is it about women lawyers that trigger these attacks? Such as: “Marie Henein is a successful female lawyer at the top of her profession. Total bitch.”

In “Nasty Women and the Rule of Law“, Alice Woolley and Elysa Darling analyze this conundrum. They argue that women lawyers face this backlash because being a lawyer requires women to challenge and subvert gendered norms. Women are supposed to be feminine. Being feminine usually means being: affectionate, cheerful, sensitive, soft-spoken, warm, and so on. Contrastingly, being masculine generally means being: a leader, aggressive, ambitious, assertive, analytical, dominant, competitive, and so on. Characteristics that lawyers are generally required to embody.

Woolley and Darling state:

But by acting in this way [masculine], she not only violates our expectations of what women can do, she also violates our standards about what women ought to do…

[W]omen risk being targets of gendered hostility, because being a good lawyer means being a bad woman – it means abandoning or acting contrary to the communal behavior women ought to exhibit, in favor of the agentic values men ought to exhibit. This is particularly so if the woman is an aggressive lawyer, exhibiting the kind of zeal and occasional incivility that the profession frowns upon, since doing so could be considered a violation of a “gender-intensified proscription”.

Interestingly when we look at Hillary Clinton she is often described as masculine. Whereas Ivanka Trump (a power player in her father’s circle) is often described in feminine terms, e.g. beautiful, a good daughter, polite etc. [To read more about Ivanka’s carefully crafted persona click here: INSIDE IVANKA AND TIFFANY TRUMP’S COMPLICATED SISTER ACT. ]

So what’s the solution? How can women lawyers embody traditionally masculine characteristics and avoid all of the nastiness?

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I originally posted this blog post on slaw.ca. I would like to add to my original post by stating that I completely agree with Woolley and Darling’s paper. Women are faced with a backlash and are often punished or called names for exhibiting “masculine” traits. This backlash often occurs for behaviour that no one even notices coming from a man, a treat that I have experienced first hand. Perhaps the only answer is to stay calm and carry on in the face of sexism.

“I would have quit this job a long time ago if I was listening and waiting for people’s approval.”– Marie Henein (Toronto Life)

 

 

 

Civility in the Classroom

Last week I had the honour of guest lecturing at the University of Ottawa law school as the inaugural Cavanagh Williams LLP Practitioner in Residence. The topic was “Ethics in Advocacy”. It was an honour to be a part of the course “Professional Responsibility”.

The lecture began with an introduction of the topic by Professor Adam Dodek. Subsequently, I led a discussion of the principles of professional conduct. The discussion dealt with a variety of scenarios encountered in legal practice. There was a lively debate about how lawyers should handle swearing affidavits, disclosing relevant documents, and preparing witnesses for court (among other things). All scenarios were based on true stories that included ethical dilemmas.

The lecture ended with a group presentation on the meaning of civility and the principles of professional conduct. Of interest was a debate about the case Laarakker2011 LSBC 29. In that case, the lawyer Mr. Laarakker was disciplined by the Law Society of British Columbia for making discourteous remarks online and directly to an Ontario lawyer. Below are the discourteous remarks:

[12] After consulting with the client, the Respondent sent a one page fax letter to the Ontario Lawyer. The Respondent’s letter read:

I have been approached by [the client] with respect to your letter of October 30, 2009. Suffice it to say that I have instructed her not to pay a penny and to put your insulting and frankly stupid letter to the only use for which it might be suitable, however uncomfortably.

It is disappointing when members of our profession lend themselves to this kind of thing. You must know that you are on the thinnest of legal grounds and would be highly unlikely to get a civil judgment against my client. That is aside from the logistics in bringing this matter to court in BC. I am also well aware that by preying on people’s embarrassment and naiveté you will unfortunately be able to pry some money out of the pockets of some of the humiliated parents.

I have notified the local paper of this scam. Save the postage in the future and become a real lawyer instead! You must have harboured dreams of being a good lawyer at one point. Surely bullying people into paying some small amount of money is not what you went into law for.

But then again, someone has to be at the bottom of his class, practising with a restricted license as you appear to be.

Good luck.

[13] Two days before sending the letter, on November 20, 2009, the Respondent posted a comment on the “Canadian Money Advisor” internet blog. The Respondent posted the comment in response to two postings made by an individual who had received a letter similar in nature to the Demand Letter. The Respondent posted on the blog as follows:

I am a lawyer.

This guy is the kind of lawyer that gives lawyers a bad name. He is relying on intimidation and blackmail to get the lousy $500. Don’t pay him. I hate these sleazy operators.

Speaking as a lawyer, he would have little chance of collecting in court. He would have rto [sic] prove that a chiold [sic] was a habitual criminal. As far as an adult is concerned, he has to prove the loss. Also remember this, he has to bring the action in a court near to where the incident took place (at least in BC) Gueuss [sic] what – that ain’t going to happen.

The Law Society of British Columbia fined Mr. Laarakker for his remarks. Apparently it’s distasteful for lawyers to air their dirty laundry in public. The Law Society concluded:

[45] As noted above, the Respondent takes the position that he was allowed, perhaps even compelled, to do what he did in the face of a “rogue lawyer”. Even if the Ontario Lawyer can be considered to be a “rogue”, it is not the Respondent’s place to pursue some form of vigilante justice against that lawyer by posting intemperate personal remarks or by writing letters that do not promote any possibility of resolution of the client’s legal dispute.

[46] Clearly, the appropriate avenue for the Respondent to take would have been to file a complaint either with the Law Society of Upper Canada or the Law Society of British Columbia. Obviously, the Respondent did not take those steps. Thus, by taking actions that he felt were protecting the integrity of the profession, he was achieving the opposite result.

(I personally disagree with the decision. Mr. Laarakker was warning the public about a scam. It was practically a public service announcement. Just because his tone could have been softened, doesn’t mean he deserved to be fined. After all these were questionable demand letters sent to unsophisticated individuals.)

I really enjoyed the class’s discussion on this case. It was interesting to hear the perspectives of students, especially considering that most of them are of the Facebook, Instagram, Snapchat generation.

The day ended with a small lunch with a few students. I had a wonderful experience, and I hope that the students enjoyed it too!

 

 

Trials Then & Now

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Thomas Hobbes famously proclaimed in Leviathan that Where there is no common power, there is no law, where no law, no injustice…No arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death: and the life of man, solitary, poor, nasty, brutish and short.”

Just as life pre-law was nasty, brutish, and short. So were trials pre-18th century.  According to historian J.S. Cockburn, almost no trials lasted longer than 20 minutes. And up to 25 trials were heard in one day by a single judge and jury. In that quick time, the judge and jury would decide the fate of the accused, often representing themselves. Who were then forced to endure the punishment, without barely any chance of appeal.

By the early 19th century, the court system shifted towards the adversarial system that we have today. Rules of evidence became more entrenched, rights became more respected, and party autonomy was birthed. With the rise of party autonomy, parties became expected to provide the evidence to the neutral decision maker, who passively heard the evidence.

It is the context of our adversarial system that former Supreme Court Justice Antonin Scalia and lawyer Bryan Garner, advise lawyers on how best to make their case. They write in their book Making Your Case:

All of us are more apt to be persuaded by someone we admire than by someone we detest… Your objective in every argument, therefore, is to show yourself worthy of trust and affection. Trust is lost by dissembling or conveying false information… by mischaracterizing precedent to suite your case; by making arguments that could appeal only to the stupid or uninformed; by ignoring rather than confronting whatever weights against your case. Trust is won by fairly presenting the facts of the case and honestly characterizing the issues; by owning up to those points that cut against you and addressing them forthrightly; and by showing respect for the intelligence of your audience.

Law Gurus and Questioning State Authority

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There is a new breed of litigants in town. They go by different names: freemen-on-the-land, sovereign men, sovereign citizen, etc. But at their core, they are the same. They refuse to recognize the authority of the courts or the authority of the government.

These vexatious litigants are guided by gurus. Gurus that claim that by unlocking secret principles, “hidden from the public, but binding on the state, courts and individuals”, people can avoid unwanted obligations, like taxes or child support or criminal sanctions.

These gurus peddle secret principles. And of course  these “secret principles” can be anyones, for a small payment to the guru. Kind of like paying a psychic to lift a curse. A curse that no one else can see but the psychic.

In Meads v. Meads, 2012 ABQB 571, Justice Rooke states that the gurus disseminate their ideas in seminars, books, websites, and instructional DVDs and other recordings. “Latin maxims and powerful sounding language are often used. Documents are often ornamented with many strange marking and seals. Litigants engage in peculiar, ritual‑like in court conduct. All these features appear necessary for gurus to market [their] schemes to their often desperate, ill‑informed, mentally disturbed, or legally abusive customers… [The] scheme is not intended to impress or convince the Courts, but rather to impress the guru’s customer.”

However, unlike a psychic’s power these secret guru principles are eventually tested in court. But, these principles are quickly shot down by judges.  Once a judge “strips away the layers of peculiar language, irrelevant references, and deciphers the often bizarre documentation which accompanies [the] scheme”, it becomes clear that nothing with substance grounds these ideas.

Justice Rooke then lists some questions that anyone thinking of hiring a guru should ask:

 Why do these gurus seem to have little, if any, wealth, when they say they hold the proverbial keys to untold riches?

Why do those gurus not go to court themselves, if they are so certain of their knowledge? If they say they have been to court, ask them for the proceeding file number, and see if their account is accurate. Those are public records.

Can that guru identify even one reported court decision where their techniques proved successful? If not, why then are all successes a tale of an unnamed person, who knew someone who saw that kind of event occur?

How are their ideas different and distinct from those surveyed and rejected in these Reasons?

How are these advisors different from the [] gurus who have been unsuccessful and found themselves in jail?…

Will your advisors promise to indemnify you, when you apply the techniques they claim are foolproof? If not, why?

If they cannot explain these points, then why should you pay them for their legal nonsense?

I would add: if something seems too good to be true, then it probably is. “Only two things are certain in life: death and taxes.” And no guru can change that.

But, I must say I find gurus’ questioning of state authority very interesting. We should always be examining the basic premises of our laws, including the Hobbesian/Locke/Rousseau conception of state authority. But such questioning of where state authority comes from, and whether it comes from some fictitious social contract or from some other source, is better left to the philosophers.

The Implicit Premise Beneath the Surface

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The study of law can be disappointing at times, a matter of applying narrow rules and arcane procedure to an uncooperative reality; a sort of glorified accounting that serves to regulate the affairs of those who have power–and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition.

But that’s not all the law is. The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience.

Barack Obama, Dreams from My Father: A Story of Race and Inheritance

Law school is all about “applying narrow rules and arcane procedure to an uncooperative reality”. Little attention is given to the backstory behind the rules. No pictures provided of the witnesses, no video recording of the testimonies, no references to the rich lives behind the names. Rather, the human element is stripped away. And in separating the rules from the story, little thought is given to the premises lurking beneath the surface.

But behind all judicial decisions is the weight of history, tradition, liberalism, and capitalism. Adam Dodek and Alice Woolley write in In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession “[a] legal story incorporates legal norms, cultural contexts, history, institutions, structures, and the people whose lives, whether willingly or not, come into contact with the law.”

It is easy to see an implicit premise in an out-of-date case. Professor Constance Backhouse writes in In Search of the Ethical Lawyer about a decision regarding a marital dispute. In the early 19th Century, Chief Justice William Campbell ruled that the wife had no justification for leaving the home after she was beaten for some time in front of multiple witnesses. “Justice Campbell declared that ‘a man had a right to chastise his wife moderately’… This legitimation of wife battering stood for years as the prevailing Canadian judicial edict on a husband’s rights.” The main implicit premise being that women should be subservient to men.

Ultimately, even the simplest of cases encapsulate the weight of legal norms, history, institutions, and structures that are greater than any two parties. Liberal theories on democracy and the division of property inform all decisions. The ideas of Hobbes, Locke, and Rousseau remain strong as judges implicitly entrench them with each passing decision.

Fighting Fair: From Just Wars to Just Lawsuits

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Litigation is like war. Easy to start. Hard to end. Difficult to know how it will turn out.

In Fighting Fair: Legal Ethics for an Adversarial Age, legal scholar Allan Hutchinson argues that military ethics should be applied to legal ethics. He points out that merely looking to the laws themselves is not enough for evaluating ethical behaviour. The laws take their shape because of lawyers. “The clients they represent, the causes they advocate and the strategies they deploy all influence the law’s content and substance.” The law often grows in a way that “today’s frivolity may be tomorrow’s law”. Once derided as absurd, the concept becomes tenable and then eventually accepted as law. Furthermore, just because something is the law today does not mean it is right, as evident by the laws of Nazi Germany.

 The sobering truth is that the discursive resources and frameworks for evaluating the ethical merits of military action are much richer and more sustaining than that of legal ethics.

The main thrust of military ethics is that any and all violence in war must be justified. There are five conditions for a just war. They are:

  1. a just cause;
  2. rightful intentions (not simply to recapture something and not motivated by hidden / ulterior intentions);
  3. proportionate – there is more good to be achieved than the harm to be done by waging war;
  4. it is the last resort; and
  5. there is a reasonable chance of success.

The abiding objective of entering and waging a just war is to achieve a just and lasting peace, not a punitive and temporary victory. Accordingly, the goal of military action is not simply to win, let alone crush the enemy, but to work toward a future situation in which war will no longer be a possibility between the parties. It is considered that this cannot be achieved unless the victorious side negotiates a settlement that is fair and reasonable to both sides…. Any remedy achieved must be commensurate with the wrongful or transgressive conduct that gave rise to the hostilities in the first place…

[T]he negotiator’s primary duty is to be fair and forward-looking… Ethical lawyers will work toward settlements that are reasonable and defensible… In both military and legal ethics, it is paramount obligation to act both discriminately and proportionately. Indeed it is the ethical signature of the warrior as opposed to the hired gun to be both a good winner and a good loser.

Like a just war, lawyers should promote just lawsuits, using proportionate force to achieve their ends. These ends should be directed to a lasting peace and not to an ulterior motive.

 

 

 

The Dark Side of Precedent

The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system.  It provides certainty while permitting the orderly development of the law in incremental steps.  However, stare decisis is not a straitjacket that condemns the law to stasis.  – Carter v. Canada (Attorney General), 2015 SCC 5

The past haunts the present. Judges appeal to past decisions to justify their present decisions. This appeal to authority paints the decision with the hue of inevitability. Professor Elizabeth Judge explains “the judicial author chooses a family tree, but reverses the temporal scheme, as the child chooses the precendential parents”.

But, what happens when all of the “precedential parents” are rotten?

Sometimes the law develops in a skewed way as deep pocketed clients stack the deck in their favour. These client lobby the right policymakers, while strategically picking their lawsuits. All so that they can get the law lined up in their favour. Instances of this can be seen in many areas of the law, from insurance law to tax law, where one side of the dispute is an industry titan and the other side is a lone player.

The problem of David versus Goliath becomes amplified when lawyers push for skewed laws to be blindly applied to every case, arguing that alike cases must be treated exactly alike. However, treating things exactly alike may be unfair.

As stated in Andrews v Law Society of British Columbia, [1989] 1 SCR 143, the notion that all things alike should be treated alike is deficient. If it were applied literally, “it could be used to justify the Nuremberg laws of Adolf Hitler. Similar treatment was contemplated for all Jews.” It follows then that a bad law should not be saved “merely because it operates equally upon those to whom it has application”. Instead, judges must consider the “content of the law, its purpose, and its impact upon those to whom it applies, and also upon those whom it excludes from its application.”

When applying precedents, especially in industries known for having huge power imbalances between parties, judges should pay extra attention to the law’s history. Whose voices shaped the law? Whose voices were marginalized, ignored, and submerged? Blindly bowing down to the altar of precedent merely reinforces power imbalances and undermines the goal of fairness.

Gender Identity and Equality Under the Law

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The law bestows rights upon people. The law denies rights to other people. We have a problem when the law arbitrarily deprives people of their deserved rights.

Upon inspection it becomes clear that the law marginalizes transgendered individuals through archaic policies and by turning a blind eye to overt discrimination.

The television show I Am Cait explores the obstacles that transgendered individuals encounter everyday: from finding jobs to getting into school to communicating with loved ones.

After watching I am Cait, I was inspired to read Jenny Boylan’s book She’s Not There (2003) about her own journey as a transgendered male-to-female. In her book, she remarked that:

Professor Lynn Conway at the University of Michigan estimates that there are forty thousand transgendered male-to-females in this country [United States of America], and that counts only the ones who have already had the surgery…that makes the condition more common than cleft palate and multiple sclerosis… So why don’t we see more transsexuals in our daily travails? …Simply because most transexuals look unremarkable.

Given the prevalence of transgendered individuals, it is absurd that government policies regarding gender and sex seem to be stuck on a bi-polar continuum. And even worst, discriminatory policies seem to be ameliorated only after legal action is taken and not upon the government’s own initiative, which further illustrates the marginalized status of transgendered Canadians.

For example, in the Human Rights case XY v. Ontario (Government and Consumer Services), 2012 HRTO 726, XY challenged the process regarding changing one’s sex on a birth certificate. Fortunately, the adjudicator saw the injustice in the process:

[15] I further find that the requirement that Ontario birth certificates reflect the sex assigned at birth unless a person has and certifies to the respondent that he or she has had “transsexual surgery” is substantively discriminatory because it exacerbates the situation of transgendered persons as a historically disadvantaged group, and thus perpetuates their disadvantage. In the alternative, the requirement that Ontario birth certificates reflect the sex assigned at birth unless a person has and certifies to the respondent that he or she has had “transsexual surgery” is substantively discriminatory because it perpetuates stereotypes about transgendered persons and their need to have surgery in order to live in accordance with their gender identity, among other things.

XY case: http://bit.ly/1I2RPVL

“We act as if that being of a man or that being of a woman is actually an internal reality or something that is simply true about us, a fact about us, but actually it’s a phenomenon that is being produced all the time and reproduced all the time…”  – Judith Butler

The Case Against Latin

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“The one great principle of English law is, to make business for itself.” (Charles Dickens, Bleak House)

Part of the way English law makes business for itself is through using Latin jargon, which requires a lawyer to decipher.

Luckily, the use of Latin phrases is on the decline. Law schools are shifting away from teaching such jargon and for good reason. As Stephen Waddams states in The Study of Law, the Latin language obscures clear thought by giving ideas the appearance of authority. An appearance that may very well be stripped away if stated in plain English.

A Scottish judge once said of a Latin phrase (“Res ipsa loquitur” – the thing speaks for itself) ‘If that phrase had not been in Latin, nobody would have called it a principle. The day for canonizing Latin phrases has gone past”.  [And] That was in 1923.