Archive For: English

LET’S CANCEL LOGAN MAILLOUX

When the Montreal Canadiens hockey club drafted an 18 year-old defenseman named Logan Mailloux, they clearly underestimated the vituperative backlash it would generate. Mailloux, a gifted, young hockey player had shared with his teammates a photo he had surreptitiously taken when he was having sex with an 18 year-old female. He was 17 at the time. He was charged, convicted, and fined. He also expressed remorse for his actions and stated that in the circumstances, his name should be withdrawn from the draft. Nonetheless, the Canadiens selected him.

An outpouring of indignant comments ensued from commentators, lobbyists, and politicians including a provincial cabinet minister and even the Prime Minister of Canada. The gist of this indignation was that the Montreal Canadiens were sending the wrong message by trivializing an important crime.

Mailloux’s conduct was indeed reprehensible and the victim no doubt left scarred. That said, in my respectful view, the Canadiens were sending the appropriate message by drafting this young man. They implicitly recognized that having committed the offense while a minor, having recognized his guilt and shown remorse, he should not be hindered or estopped from pursuing his professional ambitions. This is in every way consistent with the principles of our Youth Criminal Justice Act. Given that Logan Mailloux was 17 at the time, had he been charged in Canada, this legislation would have applied. For a youth with no criminal antecedents, he would likely have benefitted form extrajudicial measures whereby by admitting his responsibility, the case would have been diverted away from the court system and the charge dismissed. Even had the case proceeded through the court system culminating in a guilty verdict, his name could not have been published, and the record would have been destroyed after 3 years. This is because our legislation recognizes that young persons have a reduced level of maturity, and that we as a community favour an approach that encourages rehabilitation. Logan Mailloux’s name and face drew international attention and opprobrium. He has already suffered far greater punishment than that which could have been expected had he been arrested here. Is that not enough? Do we now need to impair his future?

In this case, the cancel culture of our times led to a chorus of shallow, irresponsible, if not mean-minded comments and tweets from highly-placed persons motivated by the opportunity to capitalize on the heavily publicized fall-out of the case. Logan Mailloux deserved better. We as a community deserve better.

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DRINKING THE COVID KOOL-AID

There is no doubt that the world is beset with a serious virus that has cost the lives of millions of people.  Nonetheless, for the most part, those who have died were particularly vulnerable due to advanced age or underlying health issues.  Although there is some evidence that otherwise healthy people afflicted with the virus have died, these are exceptional cases and should be examined individually to better understand why in their case, the virus proved fatal.  We do know that some healthy individuals showed little symptoms when afflicted; others had typical flu-like symptoms, while some experienced prolonged fever and were bedridden for several weeks.  That said, while the experience is most disagreeable, recovery tends to be complete. 

This has been known since the very beginning of the pandemic.  With this in mind, most governments and notably ours, have grossly mismanaged the pandemic.  They have imposed drastic measures severely curtailing the liberties they are expected to value and protect, without any empirical proof that in so doing, they are advancing the public good.

We are, for the most part, law-abiding citizens.  No one wants to get sick.  With social distancing and better hygiene, the spread of the virus is limited.  However the measures imposed such as: curfews, eliminating the right to socially interact, shutting down business, closing the border, criminalizing travellers returning home despite a negative Covid test by quarantining them in hotel rooms under police surveillance and at their expense, is appalling.  Is it because we failed as a community to protect the most vulnerable, many of whom died alone, likely infected by staff, in senior-citizen residences?  Are our governments fearful that if they acknowledged they acted ineffectively and foolishly, they would lose face and ultimately power?  In the end, they blithely strike away at our most fundamental freedoms: the right to circulate freely, to leave the country, and to associate with others.  By dramatizing the dangers of infection, they have created a social neurosis where people routinely cross the street for fear of walking past another pedestrian on the sidewalk.  When restaurants were permitted to open, people were forced into Plexiglas enclosures to dine.  This is irrational, yet the public, for the most part, has bought into the dogma.  Any protest, whether individual or organized, is seen as heresy. It is hoped that we wake up soon from this Covid nightmare.

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INFANTILIZING THE JUDICIARY

Legislation has been tabled in Parliament to amend the Judges Act (Bill C-5) whose ostensible purpose is the enhancement of judicial sensitivity to the plight of sexual assault victims in a criminal justice context.  The method adopted is compulsory specialized training (seminars) for candidates to the judiciary, as well as the monitoring of the numbers of judges attending such seminars.  Bill C-5 is highly questionable.

The seminars are to be provided after consultation with “sexual assault survivors” and “groups and organizations that support them”.  The seminars are to address various subjects including the “principles of consent” and the “myths and stereotypes associated with sexual assault complainants”.

Judges must be independent.  They cannot be trained to believe certain types of complaints simply because they evoke sexual assaults.  The subject of myths and stereotypes is decades old, and for the very few judges who sadly, may make inappropriate comments or whose analysis is dubious, our system provides redress by way of appeal.  One cannot put sexual assault complainants on a pedestal to shield them from fair judicial scrutiny.  When questioned, they must tell the truth.  If they fail to do so, as evidenced by, for example, significant contradictions or deliberately vague or evasive answers, they are simply not worthy of credit.

To be fair, the seminars should also be established after considering the cases of the wrongly convicted as well as cases resulting in acquittals to show why, in some instances, complaints are properly rejected.  The gist of the bill is to train judges to convict.  Further, by monitoring, by way of an annual report, the number of judges who attend the seminars, Parliament will begin to police the judiciary, an absolute affront to its independence, which is a cornerstone of our democracy. Bill C-5 is draconian.  It is incompatible with the founding principles of our criminal justice system.

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WHY PROSECUTE SNC-LAVALIN?

All criminal prosecutions are carried out in the public interest. Although a crime may well have been committed, a prosecutor can, after a reasoned review of all the circumstances, conclude that it would nonetheless not be in the public interest to lay a charge. We see this approach most frequently when alternative measures are applied. In such cases, individuals, arrested for minor crimes and who are first offenders, are notified that they will not be charged. In other instances, charges may not be filed where, for instance, a charge would have been normally instituted by summary conviction but the complaint was made outside the 6 months delay allowable for summary proceedings. In such a case, the prosecutor may opt not to charge despite being in a position to file an indictable charge, which carries a heavier potential punishment but is not time-prescribed. The prosecutor may feel it would be unfair to pursue the charge where it belonged in the realm of summary conviction proceedings. There may be cases where the anticipated proof is limited to one witness who becomes reticent to cooperate with the authorities. In short, there are countless examples of the exercise of prosecutorial discretion in determining that the filing of a charge would not be in the public interest. That said, the culture that inhabits Crown attorneys is such that it is generally presumed that where evidence points to a crime, absent compelling circumstances, it is in the public interest to prosecute.

 

When the Criminal Code was recently amended to introduce remediation agreements, Parliament opened the door to negotiated out-of-court settlements of significant corporate crimes so long as specified criteria were met. Given the timing of the amendments, it can be safely argued that our legislators were concerned that some corporate entities, and in this case SNC-Lavalin, would be unduly damaged by a prosecution such that vital jobs would be lost despite evidence that the company had cooperated with the authorities, purged itself of the senior managers associated with the crime(s), had a healthy corporate governance strategy in place, and was in a position to make substantial financial amends. In fact, insofar as SNC-Lavalin is concerned, a number of its senior managers have indeed been prosecuted, convicted, and jailed.

 

Corporations don’t go to jail. Prosecutions of the type facing SNC-Lavalin are long, uncertain, costly, and, at the end of the day, can only result in the imposition of monetary punishment which can form part of a remediation agreement in any event. It is hard to imagine why prosecuting SNC-Lavalin would be in the public interest. The company could conceivably collapse during or as a result of the proceedings thereby terminating the gainful employment of thousands of innocent workers and to what end?

 

It is not surprising that the Prime Minister, and members of his cabinet, chose to confront the then Attorney General on her apparent decision not to intervene in the decision of federal prosecutors to pursue charges. In fact, one would think she would have expected it. The prosecutors in this case were surely subject to pressures from the police investigators involved. They, much like the Attorney general, are not confined to ivory towers. As stated above, the culture that inhabits prosecutors is such that they are generally inclined to lay charges where they are morally convinced they can establish guilt beyond a reasonable doubt. Such is their culture, historically. However, remediation agreements are new territory and in conflict with this culture. The stakes in this case are enormous and the Attorney General would not have be faulted for scrutinizing the decision to prosecute if she felt the attorneys involved failed to properly apply public interest considerations. They may have needed to be reminded that this was new legislation introduced to address the challenges of corporate criminal responsibility, requiring that the decision-making process be informed by a new culture.

 

The Prime Minister may have invoked legitimate factors and others less so, if they were indeed, as reported, of a political nature. But the Attorney General is a politician as well, and so long as the pressure was not undue, and her testimony before the Commons Justice Committee, emotions aside, did not suggest it was, there is little rational basis for the scandal that is now brewing. It would be hard to imagine how the prosecution of SNC-Lavalin would be in the public interest.

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“I HAVE JUST SIGNED YOUR DEATH WARRANT…”

With these words, Judge Rosemarie Aquilina sentenced Lawrence (Larry) Nasser to imprisonment for up to 175 years stating it was her “honor and privilege” to do so. Nasser had pled guilty to seven counts of sexual abuse, the victims being young athletes who sought his treatment as physician for the American gymnastics team.

 

The sentencing hearing was streamed over the Internet as over 150 alleged victims of Nasser were permitted to address him, many of whom had never been previously identified. While his crimes were despicable and worthy of harsh censure, one must question the wisdom of turning the courtroom into a stage for the mass denunciation of a lone accused. Then, in pronouncing sentence, Judge Aquilina exalted in the “signing” of a “death warrant” rather than show a modicum of reserve when sending this defendant to prison for the rest of his life.

 

Court proceedings can at times, appear theatrical. However a judge is much more than a stage manager. The court must endeavor to keep the process fair and solemn. Judge Aquilina misapprehended her responsibilities. Unfortunately, she chose to become a spokesperson for Nasser’s victims and many alleged victims, casting aside her role as an independent and impartial arbiter

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SIMPLISTIC SOLUTIONS TO COMPLEX PROBLEMS

In the aftermath of the Weinstein affair and other similar scandals, there has been a litany of support for the alleged victims, who are lauded for their courage in speaking out. What is unfortunate, and this has oft been stated, is that the targets of these media-generated campaigns are smeared without any due process. The complainants’ versions of events are not subject to any scrutiny to determine the legitimacy of their allegations. What is further overlooked is a pattern of behavior whereby far too many victims readily seek the attention and favor of individuals in positions of power and prominence, and prove willing to silently compromise their own integrity in the vain hope of advancing their careers. The complaints usually arrive long after the complainants have achieved their professional ambitions or have resigned themselves to anonymity.

Let’s not kid ourselves as to the feigned naiveté of so many of these complainants who, while inebriated, decry inappropriate behavior occurring in hotel rooms with participants they barely know. While this does not excuse the conduct of an aggressor, it calls for some reflection on the values inculcated in these “victims” who, in their thirst for recognition and advancement, are willing to compromise their personal integrity.

This is much more a social problem than a legal one.

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Sanctifying the Victim

Too many victims of violent crimes have chosen to put themselves in harm’s way. The case of Daphné Boudreault is a classic example. She chose to embark on an intimate relationship with an apparently mentally unstable man with violent and controlling tendencies. Fearful of his behavior, she unsuccessfully sought police protection in order to return to his apartment to recover some of her personal possessions. Notwithstanding that the police did not accompany her, she nonetheless chose to enter the apartment alone, whereupon she was fatally stabbed.  The police were, in this instance, subject to harsh criticism.

The police are not a private protection service. Their resources are limited. Their would be little policing available for the victims of random crimes if those who consciously place themselves in harm’s way could call for police escort every time they felt themselves at risk.

It is sad indeed that Boudreault chose such a man. It is perhaps sadder that she endeavored to recover some personal possessions in circumstances where she feared for her life. One might ask why she was not accompanied by caring friends or family members who, moreover, might have convinced her to abandon, at least for a time, these personal effects. Rather than robotically sanctifying the victim, legitimate questions should be asked. It is far too easy to blame the police.

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A WORTHY PRESIDENTIAL PARDON

Chelsea (formerly Bradley) Manning was a soldier in the U.S. army who divulged a massive amount of classified or sensitive military and diplomatic information to WikiLeaks in 2010. Manning was subsequently arrested, charged, and convicted under provisions of the Espionage Act, and then sentenced to 35 years imprisonment. On January 17, 2017, President Barack Obama commuted the sentence such that Manning will be released on May 17, 2017. Unfortunately, the notion of an executive power to pardon does not exist in Canada.

 

Manning was, in the classic sense, a whistleblower, who purportedly hoped that the disclosure of this material would inform the public and provoke a necessary and constructive debate on the merits of the ongoing American military campaign in the Middle East. Indeed, these disclosures showed for instance, in the case of the Baghdad airstrike video (entitled “Collateral Murder”) American soldiers aboard an Apache helicopter firing on a group of unsuspecting men who were mistaken for enemy combatants. Two of them were in fact Reuters journalists. When the strike was over, at least 12 people (including the 2 journalists) had been killed and several wounded, including children. The soldiers’ discussions prior, during, and subsequent to the strike shows their causal and detached attitude towards violent death, and approximates the banter one would expect while playing a video game. While no doubt the military would have happily kept all this secret, the release of this and other information, including torture at the Abu Ghraib prison, did at least spark some informed debate about the war in the Middle East, and compelled the upper military brass to begrudgingly show some accountability. For this, Manning should be lauded.

 

It is true that it can be argued that releasing classified information can imperil lives. In Manning’s case, there was no empirical evidence to that effect. While government executives, whether civil or military, have shown an insidious preference for shielding the public from the truth, Manning’s actions allowed the public to better understand how its leaders were managing a campaign which has resulted in the deaths of thousands of innocent people, uprooted communities, and generated the single worst refugee crisis the world has ever seen.

 

Manning has been jailed for 7 years. The commutation of his sentence speaks of wisdom and humanity, both of which appear absent from the discourse on military strategy in the Middle East.

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A Preventive Execution

On Wednesday, August 10, 2016, police sharpshooters shot and killed Aaron Driver as he entered a taxi. In an official statement, the Royal Canadian Mounted Police (R.C.M.P.) claimed to have received credible information that Mr. Driver was about to commit a terrorist attack. He was “engaged” by the police once he entered the taxi, and was then said to have detonated an explosive device injuring the cab driver. He was then further “engaged” (i.e. shot) prior to detonating a second device. In a press conference, a R.C.M.P. spokeswoman referred to the intervention as “amazing” and “exceptional”.

 

The police have the power to detain an individual where there are sufficient grounds to believe a terrorist act will be committed. They would also then have the power to conduct a search of the suspect. They did neither. Rather, they allowed him to enter the taxi, thereby exposing the driver to a dangerous situation, before intervening. That said, this all presupposes that they did indeed have “credible information”, that Mr. Driver did indeed have and detonate an explosive device, and that the taxi driver was injured as a result.

 

When a member of the public dies outside of a medical institution, a coroner’s inquiry is undertaken. This process allows public scrutiny of all events that may have precipitated the death. In this case, we have no notion as to what the specific “credible information” was although Mr. Driver did broadcast a threatening video showing him to be a committed ISIS sympathizer. We have no evidence as to the contents of the knapsack he was carrying and which allegedly contained the explosives. Further, when questioned by journalists, the taxi driver answered that the police had told him “not to talk to the media”. It was then reported that he had no visible injuries at all.

 

It is unlikely that a credible and independent investigation will ensue. Our collective apathy and willingness to drink the anti-terrorist tonic will ensure that we not only accept preventive arrests, but that we now accept preventive executions as well.

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Drone Warfare

The Obama administration recently permitted a partial lifting of the veil on its secret drone-assisted assassination program. This program targets alleged terrorist leaders in various countries such as Pakistan, Somalia, and Yemen. There is debate regarding the statistics, but even if one relies on the “official” source, the number of civilians murdered exceeds 100. The administration apparently now, after 6 years of thousands of drone-assisted killing missions, supports revealing this data and favors measures to reduce civilian casualties.

 

The U.S. is not at war with the nations where the impugned drone killings are carried out. There is no justification, either legal or moral, for this program. It is akin to a Star Chamber in which members of a secret politico-military inner council identify and murder supposed terrorists and, in the fallout, kill innocent people as well. Of course, this is not to mention errors in intelligence leading to the direct targeting and murder of innocent civilians.

 

The issue is not how to render the program more effective or accountable. Rather, it should be simply recognized for what it is: state-initiated criminal activity of the worst kind. Those responsible should be held accountable. They have and are committing murder.

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