I articled in Toronto in 1976-1977, when anyone could freely breeze in and out of the courthouses — including Osgoode Hall, where the Ontario Court of Appeal sits — without ever seeing a police officer, being searched or having to show ID.

So what has changed over the past 35 years to make our courthouses so fearful? The homicide rate has actually fallen significantly over that time, although violent crime in general has risen.

But private businesses still don’t find it necessary to take this level of precaution. I can walk into a Toronto shopping mall as freely today as I walked into Toronto courthouses 35 years ago. Is there something unique about courthouses that makes them more likely scenes of violence?

My hypothesis is that people were more willing to accept the notion 35 years ago that courthouses were places where justice was done. Today, people are more likely to look at them as places where injustice will be done.

Many more people are compelled to interact with “the law” these days, simply because there is so much more of it. Regulation over citizens’ lives has exploded, and much of what happens in court cannot be described as having anything to do with justice.

Mr. Thomson is alive, his house stands, but the Crown is still busy with him. Why is this man being punished for self-defence? Why are the Crown prosecutors making his already tormented life more miserable?

I can only suggest it is because in this, as in similar cases, our caring authorities are uncomfortable with the idea of a citizenry that retains some common sense and courage when it comes to self-protection or the protection of their property. Why, here in Toronto two years ago, a Chinese-Canadian merchant was himself charged with nothing less than “kidnapping” when he, with some help, captured a chronic shoplifter and thief. The “kidnapping” amounted to holding the wretch that was robbing him till the police arrived. They charged the storekeeper after making a deal with the thief. If this is not dread of a resourceful citizenry, then what is it?

Here’s another theory: Perhaps we have subscribed to the Thomas de Quincey school of criminology. De Quincy, as every schoolboy knows, was the great 19th-century author and essayist, the creator of the classic Confessions of an English Opium-Eater. He also penned two satirical, fearsomely prescient essays, beginning in 1827, on Murder Considered as one of the Fine Arts. In the second of these, he outlined an interesting perspective on how dabbling in one form of crime can gradually, almost imperceptibly, lead to other, more horrific, desperate and truly despicable matters:

“For if once a man indulges himself in murder, very soon he comes to think little of robbing; and from robbing he comes next to drinking and Sabbath-breaking, and from that to incivility and procrastination … Many a man has dated his ruin from some murder or other that perhaps he thought little of at the time.” Very wise words indeed.

Every year, the State Department issues reports on individual rights in other countries, monitoring the passage of restrictive laws and regulations around the world. Iran, for example, has been criticized for denying fair public trials and limiting privacy, while Russia has been taken to task for undermining due process. Other countries have been condemned for the use of secret evidence and torture.

Even as we pass judgment on countries we consider unfree, Americans remain confident that any definition of a free nation must include their own — the land of free. Yet, the laws and practices of the land should shake that confidence. In the decade since Sept. 11, 2001, this country has comprehensively reduced civil liberties in the name of an expanded security state. The most recent example of this was the National Defense Authorization Act, signed Dec. 31, which allows for the indefinite detention of citizens. At what point does the reduction of individual rights in our country change how we define ourselves?

While each new national security power Washington has embraced was controversial when enacted, they are often discussed in isolation. But they don’t operate in isolation. They form a mosaic of powers under which our country could be considered, at least in part, authoritarian. Americans often proclaim our nation as a symbol of freedom to the world while dismissing nations such as Cuba and China as categorically unfree. Yet, objectively, we may be only half right. Those countries do lack basic individual rights such as due process, placing them outside any reasonable definition of “free,” but the United States now has much more in common with such regimes than anyone may like to admit.

These countries also have constitutions that purport to guarantee freedoms and rights. But their governments have broad discretion in denying those rights and few real avenues for challenges by citizens — precisely the problem with the new laws in this country.

The list of powers acquired by the U.S. government since 9/11 puts us in rather troubling company.

On Nick Ferrari’s breakfast show on London’s LBC radio this morning, I argued that all the people describing this case as a victory for justice are overlooking the fact that it is a victory built upon the wreckage of some pretty important legal principles. One longstanding legal protection in particular — the double jeopardy rule, the idea that no one should be tried twice for the same crime — had to be dismantled in order to get Dobson back in the dock. Having been acquitted of the murder of Lawrence in 1996, Dobson was what we used to call ‘autrefois acquit‘, previously acquitted, which in the past would have meant that he could not have been tried for the murder a second time. That all changed in 2003, when New Labour ditched the double-jeopardy rule.

[. . .]

Double jeopardy is the elephant in the room of the Dobson and Norris conviction. Sure, journalists are mentioning it, usually in fluffy factboxes titled ‘How this case came to court’, but no one wants to discuss it in detail. No one wants to discuss the extraordinary amount of history and progressive tradition that had to be consigned to the dustbin of ‘bad ideas’ in order to secure one conviction against two nasty blokes.

The double-jeopardy rule had existed in some form or other for centuries. There was a Roman maxim which said ‘nemo bis in idem debet vexari‘ — no man shall be punished twice for the same. It’s there in early Christianity, too, in St Jerome’s insistence in the fourth century that ‘there shall not rise up a double affliction’. It’s also in the sixth-century Digest of Justinian, the seed of much of modern jurisprudence, which insisted that, ‘The governor should not permit the same person to be accused of a crime of which he has been acquitted’. An academic study of the double jeopardy rule in history points out that it is one of the ‘few legal rights recognised by the Christian fathers throughout the Dark and Middle Ages’.

In twelfth-century England, a form of double jeopardy was codified in the Constitutions of Clarendon, which, in an attempt to rein in the authoritarian instincts of Henry II, stipulated that no man could be tried for the same offence in both the ecclesiastical courts and the king’s courts. It had to be one or the other. From England it spread to the US, where the eighteenth-century revolutionaries and their successors made a bar against double jeopardy a key plank of their new republic’s constitutional guarantee of liberty against state power. In each historic period, the purpose of the rule against ‘double afflictions’ was strikingly similar: to protect individuals from potentially being hounded and interminably retried by governors, crown forces or cops determined to stick them in jail. That’s because being permanently at risk of prosecution is itself a kind of life sentence.

We have been discussing the disconnect between citizens who have repeatedly opposed continued rollbacks of civil liberties and the Democratic and Republican leadership pushing for such rollbacks, including the recent provision allowing indefinite detention of citizens under the National Defense Authorization Act of 2011 (NDAA). Now Montana citizens have decided to try another approach given the non-responsive attitude of our leaders — they are moving to remove their two Senators from office over their votes in favor of indefinite detention powers.

Montana is one of nine states with recall laws. The other states are Arizona, Colorado, Louisiana, Michigan, Nevada, North Dakota, Oregon, and Wisconsin. Eighteen states have recall laws, but most do not apply to federal officers.

H/T to Radley Balko for the link.

Whenever a motion is made for a bill of particulars in the Southern District of New York, the government’s response is the same: It would unduly prejudice the government to be required to disclose allegations of fact that would enable the defendant to know the specific conduct that forms the basis of the charge against him. And the court agrees.

You know, telling the defense what exactly it says the defendant did that was criminal would indeed prejudice the government. It would give the defense half a chance to prepare its defense. Well, maybe only a third of a chance, but at least a chance. Level the playing field, if only a bit? Prejudice.

But when it comes to prosecuting “enemy combatants,” the ante is upped. Way upped. Not only is the risk of individual failure at stake, but the reputation of a government that’s come to depend on a population who believes, with their every breath, that it can be trusted to ignore every safeguard around which are concept of a legal system is based, and still be fair. The integrity of the outcome must be trusted, and yet the conviction of those denied their rights must be assured.

What to do? It’s not enough to deny the defense access to the evidence against the defendant. No, not the puny refusal to provide a bill of particulars, but wholesale denial of “state secrets.” Still, a criminal defense lawyer gets used to thinking fast, working on the fly. We don’t enjoy the luxury of depositions, document demands, the absolute necessities of civil practice where lawyers whine about not being allowed to use a proctoscope at least five years in advance of trial. We prepare for surprises because we have no choice. We deal with the unknowns, because that’s our job.

Bad enough? Nope, read the rest of the post to find out just what little similarity to actual justice is in operation for those accused of being “enemy combatants”.

If Obama does one thing for the remainder of his presidency let it be a veto of the National Defense Authorization Act — a law being debated in the Senate currently which would place domestic terror investigations and interrogations into the hands of the military and which would open the door for trial-free, indefinite detention of anyone, including American citizens, so long as the government calls them terrorists.

So much for innocent until proven guilty. So much for limited government. What Americans are now facing is quite literally the end of the line. We will either uphold the freedoms baked into our Constitutional Republic, or we will scrap the entire project in the name of security as we wage, endlessly, this futile, costly, and ultimately self-defeating War on Terror.

In short, if the government says you’re a terrorist, it has the right to detain you in military prisons for as long as it likes: you have no rights as a designated “terrorist”. So much for habeas corpus.

A San Diego judge ordered Crystal Harris to pay $1,000 a month in spousal support to her ex-husband — just as soon as he finishes up his six year prison sentence for sexually assaulting her. As 10News reports, “The entire assault was caught on tape and what it captured was enough to convict Shawn Harris of a felony — forced oral copulation.”

So why is a victim being forced to pay her attacker? According to Judge Gregory Pollock, it’s because Crystal Harris brought home six figures worth of bacon while Shawn Harris was unemployed.

“I can’t look at a 12-year marriage where one side is making $400 a month, the other side is making over $11,000 and say no spousal support,” Pollock said in court. “That would be an abuse of discretion.”

It sounds like a miscarriage of justice, but the law is written so that it only excludes attempted murderers from the right to receive spousal support. Another case of a bad law forcing a bad judgement (or a judge unwilling to exercise his discretion in a case that cries out for it).

According to the latest serious rumour, Prime Minister Stephen Harper and Justice Minister Rob Nicholson are poised to make two appointments to the Supreme Court of Canada.

The two will be chosen from a secret short list of six names produced by an all-party selection committee which whittled down a bigger secret list (given to them by the Justice Minister after his officials mysteriously came up with what is believed to have been 12 names) and only after consultation with unnamed officials from provincial law societies and law schools and unnamed senior judges.

[. . .]

The lack of openness is a particular concern with the Supreme Court, which, as has been evident recently, and even in its current ostensibly non-activist form, is plenty activist about telling government when it is wrong.

I refer of course to the Insite decision, which effectively told the federal government, particularly the former health minister Tony Clement, that its policy against this particular supervised injection site was arbitrary, ill-conceived and violated drug users’ rights to “life, liberty and security of the person” as defined by the Charter of Rights.

As it happens, in the end I reluctantly concurred with the result (that Insite stays open), but there’s no getting away from the bottom line that a group of unelected judges over-ruled the elected government and effectively legislated policy, albeit in a specific case.

[. . .]

Canadians are comforted by the fact ours isn’t like the American system, where presidential appointments to the Supreme Court have to be confirmed by the U.S. Senate (such an unseemly business, such a circus) and where, o! the horror, some lower-court judges actually run for office.

How is it better to have kings emerge from a secretive inside-baseball process, for all we know involving a witches’ chants and eye of newt, than to vote for them?

Whatever one thinks about Conrad Black’s guilt or innocence, there is no doubt that he has proven his claim that America’s legal deck is stacked in prosecutors’ favour: Even before his conviction, he had to endure a genuinely Kafkaesque ordeal of assets being frozen and seized by the FBI, email and phone lines hacked, backroom deals with sleazy witnesses (David Radler, please call your office), and outrageous leveraging of blunderbuss statutes to generate dozens of charges on the basis of tangential procedural indiscretions. The very institution meant to protect innocent people from this machinery of state — the private legal sector — is an old-boys’ club whose members often seem just as concerned with seven-figure paydays as with keeping clients out of jail. The fact that Mr. Black happens to be a famous person makes the claims more credible because, as the author writes, if all this could happen to Conrad Black, it “could happen to anyone, and often does.”

Jonathan Kay, “Conrad Black and his new book: A man in full pay-back mode”, National Post, 2011-09-03