Quotulatiousness

May 4, 2012

Conrad Black is now, in Margaret Atwood’s words, “a very informed and outspoken commentator on prison reform”

Filed under: Cancon, Law, Media, USA — Tags: , , , — Nicholas @ 00:09

Margaret Wente on the return of Conrad Black:

Margaret Atwood is delighted that Conrad Black is coming back to Canada. “He has a lot to say and contribute,” she e-mailed from New York on Wednesday. But she thinks the Harper government may not be delighted. Lord Black, she notes, “is now a very informed and outspoken commentator on prison reform, and does not think the government’s expensive mega-jails plan will work.”

Believe it or not, Ms. Atwood and Lord Black have become BFF. When Payback, her book on debt, came out in 2008, he gave it a favourable review from his jail cell. She likes his book too. “Conrad Black’s A Matter of Principle is a fascinating, erudite, & defiant prison memoir — must-read for lawyers, politicos, & gossips alike!” she tweeted after it came out last fall. Lord Black even made a guest appearance in the new documentary based on her book. At the premiere, she declared that he is “a new and different kind of Conrad.”

[. . .]

During his 37 months as a guest of the U.S. Federal Bureau of Prisons, Lord Black experienced several jailhouse conversions. Most notably, he became an impassioned advocate for prison reform. U.S. prisons, he argues, are full of millions of innocent, near-innocent, impoverished, unlucky wretches who are victims of “the carceral state.” He is convinced that the war on drugs is an abject failure, and he has called the Harper government’s crime policies “sadistic and malicious.” Not even Mr. Mulcair went that far.

Lord Black has also fallen out of love with the United States, a nation he once idolized. “Its greatness survives, certainly, despite chronic misgovernment, but my affection for it has faded,” he has written. Last fall he wrote that after his release, “I will leave the United States forever, all passion spent.” He has also rekindled a genuine appreciation for Canada, a nation he harshly criticized for years. The rapacious capitalism he once celebrated is less attractive to him now. He seems to have developed — dare I say it? — a social conscience.

April 22, 2012

For the defence

Filed under: Europe, Law — Tags: , , — Nicholas @ 11:09

Paul Mendelle explains why the Breivik trial in Norway seems so strange to those used to British or American court practice:

It’s the dinner party question that every barrister gets regularly asked — how do you defend people guilty of such terrible crimes as murder, rape and paedophilia? It’s a simple enough question, and one I expect to hear often now that the Anders Breivik trial is under way, but there’s not a simple answer. The query raises issues that go far beyond mere problems of professional ethics. It touches upon matters of fundamental constitutional importance to us all.

The shortest answer is to say that we don’t defend people who are guilty of these crimes; we defend people who are accused of them and who tell us they are not guilty. Contrary to just about every drama series on TV, barristers do not provide their clients with defences. It’s the other way around: clients give us their instructions, and we are bound to act strictly upon them. The joke among barristers is that if we were in the business of providing our clients with defences, we’d come up with something a damn sight better than they do.

[. . .]

But while we are obliged to take our clients’ cases and to act on their instructions, we are certainly not obliged to act as their mouthpiece. Quite the contrary, the court is not to be used as a soapbox from which the defendant spouts political views. We are obliged to defend the man accused of racially motivated crime if he is adamant he is not guilty, but not if he wants to use us to justify his racist views. And if we did, the judge would stop us.

That’s why the Breivik trial seems so strange to the eyes of an English lawyer: because what is being proffered by Breivik does not appear in any legal sense to amount to self-defence. No individual has the right to resort to mass murder to defend his country, as he claimed when he concluded his ludicrous evidence. The court does indeed seem to being used by him as a platform for him to express his twisted views and while it has had the very good sense to impose a broadcast blackout, I cannot imagine that an English court would allow the defendant to give that evidence, or to call the sort of witnesses he plans to call. I hope I never have the occasion to be proved right.

March 15, 2012

The Omnibus Crime bill is really about only one thing: harsher punishments

Filed under: Cancon, Law, Liberty — Tags: , , — Nicholas @ 09:23

If anyone thought that the Conservative government had a libertarian streak, the Omnibus Crime bill should be enough to disabuse them of the notion:

The Conservative government’s omnibus crime bill passed the Commons on Monday night. No matter the problem, the solution this unimaginative legislation provides is the same: longer sentences.

[. . .]

An important one that seems to have escaped the government’s thinking is whether, absent any other constructive reforms, it is a good thing to increase the powers of the police and prosecutors, and the effect it will have on the administration of justice. The government prefers to talk about criminals, as if everyone picked up by the police is guilty. Never discussed is the impact increased sentences will have on the accused but not convicted, namely, those presumed innocent.

In the daily operation of the criminal justice system, more severe penalties enhance the power the police and prosecutors have over the accused, or those merely suspected. The Americans have gone to such an extreme that the presumption of innocence is becoming only a notion; so severe are the penalties that police and prosecutors are able to bully even the innocent into pleading guilty. The trial in American criminal justice has been usurped by the plea bargain, in which the prosecutors hold most of the cards.

Canada is not there (yet), but it has happened here. In Ontario, the Goudge inquiry into parents falsely convicted of killing their own children established the pattern. Parents were threatened by prosecutors with such severe consequences that they pleaded guilty to crimes they did not commit, in the meagre hope of salvaging something of their lives.

[. . .]

There really isn’t very much “omni” in the omnibus crime bill. It’s about one thing — harsher punishments. It does nothing to alleviate the disgusting pre-trial (pre-trial!) conditions of remand that prevail in too many jails. It does nothing to mitigate the crisis in legal aid. It does nothing to lessen the likelihood of wrongful convictions. As Chief McFee notes, it does nothing for prevention.

Quis custodiet ipsos custodes? Who will guard the guards themselves? Who watches the watchmen? That’s the ancient maxim. The crime bill shows that those guarding the guards are not on duty.

March 11, 2012

Tim Worstall on “Protestant” and “Catholic” laws

Filed under: History, Law, Religion — Tags: , , , — Nicholas @ 10:41

No, not the differing flavours of Christianity themselves, but more their different approaches to understanding and interpreting the law:

The Protestant revolution was, in part (it never does to strain these analogy/simile things too much) that the Bible, when in the vernacular, as clear an outline of God’s will as any should need. Intervention was not needed, a man could commune directly with the Word and the Will of God.

On the matter of the law I am a Protestant. As rigid and unyielding as any Puritan, Lutheran or Calvinist. With a twist of course: the law must be written so that it can be understood directly, without that intervention of the priestly caste of lawyers, accountants, diversity advisors or bureaucrat’s helplines.

If you cannot write a law with the clarity of “thou shalt not kill” then go away and think through what it is that you’re trying to enact, the language that you are using to do so until you can, with clarity, tell us what it is that we must not do at fear of time in pokey.

That modern society is complex is no excuse. If you cannot write simple and simply understood laws then better that we have fewer laws.

That the Puritans went gargantuanly off the rails by using their new found revelations of God’s Will to tell everyone else what to do is true. But I do find it interesting that our new would be ruling class, the nomenklatura, are adopting such a Catholic view of the law. We’ll make it all so complex that no individual can understand it and thus there is the necessity of that nomenklatura to tell people what to do in detail by “interpreting” it.

March 5, 2012

The European Court of Human “Rights”

Filed under: Europe, Liberty — Tags: , , , , — Nicholas @ 10:41

Luke Samuel thinks it’s time for people to declare themselves to be “human rights sceptics“:

You don’t have to be a little Englander, or even right wing, to recognise that it is an affront to democracy that unelected and completely unaccountable judges, who have absolutely no democratic mandate, are able to override the decisions of elected representatives. It is appalling that European judges can make significant political decisions over a body of citizens across Europe to whom they will never have to answer.

But there is a more fundamental reason that liberals should be sceptical of human-rights law: because it makes us all less free. Human rights are not ‘rights’ in a liberal sense at all. They bear no resemblance to the ‘rights’ fought for by the radical liberals of the English Civil War, or the French and American revolutions, which sought to limit the power of the state and protect the autonomy of citizens. Instead, human rights treat people as fundamentally vulnerable and in need of state protection. This view of human vulnerability, in the eyes of the human-rights lobby, justifies the granting of absolute power to the state to set the boundaries of freedom.

Take, for example, the ‘right to a private and family life’ protected under Article 8 of the European Convention on Human Rights. The courts will not consider a claim under Article 8 unless it is convinced in the courtroom that you have a ‘family life’ worth protecting. How the courts have defined ‘family life’ for the purposes of Article 8 is laughably antiquated. In 2002, the courts ruled that ‘family life’ does not exist where a relationship between parents and their grown-up children is ‘only emotional’, in that the children are no longer economically dependent on their parents. Neither are unmarried parents likely to be considered a family, unless they maintain sufficient levels of contact with their children. How can any ‘liberal’ support the idea that your family life is only worthwhile if it conforms to what the state decides a family should look like?

Or take Article 10, which purports to protect our freedom of expression. Of course, the very concept of ‘freedom of expression’ owes its existence to radical liberals like John Stuart Mill and Voltaire, who argued that there can be no exceptions to free speech, otherwise you do not have free speech at all. But human-rights lawyers will tell you that Article 10, along with most other human rights, is a ‘qualified right’ because there is a long list of conditions under which the state can interfere with it. This list includes where it is necessary in the ‘interests of public safety’ or for the ‘protection of health or morals’. Such broad qualifications mean that as a means of limiting state power, ‘qualified’ human rights are all but useless.

February 14, 2012

“The Harper crime policy is less than the sum of its parts”

Filed under: Cancon, Law, Liberty — Tags: , , , , , , — Nicholas @ 10:39

It’s odd to find myself on the same side of a debate as Roy McMurtry, but he and his co-authors Edward Greenspan and Anthony Doob are much more right than the government in this:

The Harper crime policy is less than the sum of its parts because it does not add up to a crime policy that addresses, or even acknowledges, these basic facts. It squanders resources that could be used to reduce crime. Making it more difficult for people to get out from under the shadow of their much earlier offences (through a pardon or “record suspension”) makes it harder for millions of Canadians with criminal records to reintegrate into society. Adding mandatory minimum penalties will do nothing to deter offenders, who, the data demonstrate, do not expect to get caught.

But the Harper crime policy is more than the sum of its parts because it tells us that the government is committed to ignoring evidence about crime, and does not care about whether our criminal-justice system is just and humane.

The student who grows six marijuana plants in her rented apartment to share with friends will soon face a mandatory minimum sentence of nine months in prison. Meanwhile, assaults have no mandatory minimum sentences. The law says that trial judges are required to impose sentences proportional to their seriousness and the offender’s responsibility for the offence. Is someone who grows six marijuana plants much more dangerous than someone who grows five (for which there is no minimum sentence)? Or who commits an assault? The Harper Tories seemingly think so.

Update: Of course, Stephen Harper rhetorically cast the libertarians out of the Conservative party years ago. The current attempts to provide the police with powers even they have said they don’t need merely provide extra proof. Chris Selley summarizes a National Post editorial on the subject:

The National Post‘s editorialists do not understand how a government that considers the long-gun registry (and, we’d add, the mandatory long-form census) an unconscionable invasion of Canadians’ privacy and a waste of their money can possibly get behind legislation that would “give the government unprecedented access to Canadians’ online activities, by allowing police to collect the personal information of Internet users … without having to go through the cumbersome process of obtaining a warrant beforehand.” We share this frustration. But Public Safety Minister Vic Toews made it quite clear what he thinks of such complaints yesterday, when he said Canadians “can either stand with us or with the child pornographers.” In other words: “Attention, libertarian wing of the Conservative Party of Canada. We think you are immoral, and no longer desire your votes.”

February 11, 2012

“Courts are often the state’s battering rams, used for breaking down individual rights and freedoms”

Filed under: Cancon, Government, Law, Liberty — Tags: , , , — Nicholas @ 11:00

George Jonas explains why Canadians were more free before their rights and freedoms were codified in the Charter:

The Canada in which I landed in 1956 may not have had a Charter of Rights and Freedoms, but it had rights and freedoms galore, making it the envy of the world. The Canada in which I make my home today has a Charter, but Canadians who say they had more rights and freedoms 50 years ago aren’t paranoid: They did.

There seems to be an inverse relationship between written instruments of freedom, such as a Charter, and freedom itself. It’s as if freedom were too fragile to be put into words: If you write down your rights and freedoms, you lose them. Minimally, governments will try to take away every freedom you haven’t remembered to include.

“Where does it say you have a right to breathe, sir? Surely it’s not a fundamental right. If it were, it would be in the Charter.”

The 19th century British constitutional scholar, A.V. Dicey, foresaw this. He cautioned against written constitutions for this very reason, among others.

Part of the reason for the inverse relationship between written rights and actual freedom is the court system:

When I came to Canada, a court of law was often a place where individuals went for protection against the state. These days, they’d be taking a chance. Courts are often the state’s battering rams, used for breaking down individual rights and freedoms. Climate trumps the law, obviously, considering the law isn’t the law until a judge says it is. There is global warming, as the world is warming to tyranny. A judicial climate change has turned Canada’s courts from frequent champions of individual liberty to near-permanent defenders of social policy.

A judicial expression used to call policy “an unruly horse.” If you’ve time for only one book to see how events unfold when policy starts driving the law, pick up Christie Blatchford’s account of the native land-claim standoff at Caledonia, Ont., called Helpless. It shows what happens when the justice system becomes a branch of social engineering.

February 8, 2012

“[C]ourthouses were places where justice was done. Today, people … look at them as places where injustice will be done.”

Filed under: Cancon, Law, Liberty — Tags: , — Nicholas @ 11:43

Karen Selick on the more obvious signs of security in Canadian courtrooms:

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.

February 4, 2012

The true slippery slope in the Ian Thomson case

Filed under: Cancon, Law, Liberty — Tags: , , , , — Nicholas @ 11:24

Rex Murphy gets to the bottom of the crown’s odd fixation on prosecuting Ian Thomson for successfully scaring off arsonists who attempted to burn his house down around him:

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.

January 16, 2012

An unwelcome kind of “Top Ten Reasons” list

Filed under: Government, Liberty, USA — Tags: , , , , — Nicholas @ 09:04

Jonathan Turley, writing in the Washington Post:

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.

January 5, 2012

Double-jeopardy falls to political correctness

Filed under: Britain, History, Law, Liberty — Tags: , , , — Nicholas @ 10:14

Brendan O’Neill on the terrible precedent of a recent British government decision and it’s most recent mis-use:

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.

December 26, 2011

Montana voters angry over “indefinite detention” vote, seek to recall their senators

Filed under: Government, Liberty, USA — Tags: , , , , , — Nicholas @ 11:42

Jonathan Turley has the details:

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.

December 23, 2011

What is justice?

Filed under: Government, Law, Liberty, USA — Tags: , , — Nicholas @ 12:19

We may not be able to fully answer that question, but I think Scott Greenfield has a good case for what isn’t justice:

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”.

December 6, 2011

Forbes: The NDAA is the “Greatest Threat to Civil Liberties”

Filed under: Government, Liberty, USA — Tags: , , , , — Nicholas @ 00:40

E.D. Kain makes the case for President Obama to veto the National Defence Authorization Act:

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.

November 4, 2011

The Kangaroo Family Court

Filed under: Law, USA — Tags: , , , , — Nicholas @ 11:15

The headline says it all: “Sexual Assault Victim Must Pay Her Attacker Spousal Support”

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).

« Newer Posts — Older Posts »

Powered by WordPress