RSS FeedLess Popular Judicial ‘esque’s
In Czech novelist Franz Kafka’s The Trial, a man is arrested, forced to participate in a nightmarish, labyrinthine legal system administered by bureaucrats, presumed guilty, and executed without ever learning the nature of the charges against him. The novel has been taken up as a realist depiction of the justice system as viewed by an outsider unversed in the law. Since the 1960s, more than 400 judicial opinions have made reference to it. The term “Kafkaesque” has been used to describe proceedings which deprived parties of due process or the presumption of innocence, or as a synonym for decisions which were disingenuous, ironic, arbitrary and capricious, counterintuitive, or a distortion of reality.*
While The Trial is undoubtedly required reading for those embarking on a career in criminal justice, an observer might conclude that it is the only novel judges ever take the time to read.
Here, then, are some other adjectives which the legal community might consider adopting, where Kafkaesque is less than appropriate.
- Beckettesque: no progress is made for the duration of trial proceedings; all parties are degraded by their participation.
- Chandleresque: proceedings marked by hardboiled description, bouts of violence and femmes fatale.
- Daviesesque: litigants are pompous academics, engaged in a feud the genesis of which no one can recall.
- Dostoevskyesque: trier of fact displayed appalling pessimism with regard to the human psyche; nevertheless, realistic.
- Eggersesque: lower court decision beset with self-aware digressions; appellate courts wish they had thought of it first.
- Garcia Marquez-esque: the accused is executed just moments before a woman whose love he devoted his life to winning appears bearing evidence conclusive of his innocence; she later gives birth to a child who bears his name and who grows up to be executed in exactly the same circumstances.
- King-esque: a struggling writer, a quaint Maine town with a dark secret, and a van barreling towards its gruesome destiny figure prominently in the dispute.
- Murakamiesque: like Kafkaesque but much prettier.
- Nabokovesque: proceedings relate to indecent assault of a minor.
- Poe-esque: proceedings relate to vengeance for the murder of a beautiful woman; disclosure indicates indecent assault and/or incest.
- Pynchonesque: inscrutable; of astounding length — potential violation of Charter s. 11(b) right to be tried within a reasonable time. [See also: Foster Wallace-esque, Rushdie-esque.]
- Rothesque: proceedings are simultaneously an indictment of and a sympathetic depiction of twentieth-century American Jewish values; accused is an old man, ailing, estranged from his family and full of regret.
- Zadie Smithesque: the litigants are minority groups in modern England, fighting to preserve their old-world eccentricities in their new locale; a tooth motif pervades proceedings.
- Sterne-esque: proceedings start at the beginning and then move still further backwards.
* Parker B. Potter, Jr., “Ordeal by Trial: Judicial References to the Nightmare World of Franz Kafka”, Pierce Law Review Vol. 3, No. 2, 2004-2005, pp. 195-330.
Canadian ISP Considers Three Strike Policy
As reported on Michael Geist’s blog, a Canadian ISP is actively considering and promoting a three strike policy against its own users. For those who are unfamiliar with the three-strike policy that Quebecor is suggesting to the CRTC, consider the following:
-a content owner alerts an ISP of infiringing activity coming from a certain IP;
-the ISP forwards the alert to the customer along with a warning;
-if this happens two more times, the offender is booted off the network (his internet gets disconnected)
There are a number of reasons why this policy, which is being fought against in New Zealand and was recently abandoned in the UK, is concerning for any number of reasons but the most oen reason is that there doesn’t seem to be any kind of due process provisions that customers can use to defend themselves from the accusations. There is little burden of proof on the accusing party (an IP address seems to suffice) and a large burden of proof on the accused with no forum set up to hear the defense.
A far better approach, if the three-strike rule was to be implemented, is one that would say the a subscriber may only be kicked off the ISP’s network if he/she has been proven to be violating the law. “Proven” suggests some kind of legitimate, government-administered system (i.e. a court) where guilt must be established and due process is followed.
Of course this approach would be expensive and time-consuming, which means that the whole ‘three strikes’ idea needs to be rethought and, hopefully, kept out of Canada.
Is Someone Going to Kill you with a Piece of Macaroni?
Okay, I can understand banning guns, rockets, even fertilizer… but macaroni?
State Department spokesman Robert Wood:
Aid should never be used as a political weapon.
Lawyers against War Petition Bush’s Visit
Reproduced with permission by the author from GlobalResearch.ca
Former President and War Criminal George W Coming to Canada, March 17
LAW says Bush should be barred from Canada or Prosecuted
From Lawyers against the War: Please participate in this important initiative. LAW contact information is below.
Attention LAW members;
George W. Bush, former President of the United States of America (U.S.) and Commander in Chief of the Armed Force, is reported to be coming to Calgary Alberta on March 17, 2009 to speak at a private function. Evidence of Bush’s involvement in torture and other war crimes and crimes against humanity has triggered Canada’s legal duty to bar Bush from entering Canada and if he enters, to prosecute him for torture.
LAW has advised the Prime Minister of Canada, the Attorney General and the Ministers of Immigration, Public Safety and Foreign Affairs that George W. Bush is inadmissible to Canada under the Immigration and Refugee Protection Act.
Section 35(1) (a) states that a foreign national is inadmissible on grounds of violating human or international rights or for committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes against Humanity and War Crimes Act. Also inadmissiable (s.35 (1)(b)) are persons who are, or were, senior officials “in the service of a government that, in the opinion of the Minister, engages or has engaged in gross human rights violations…”
Under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act:
“crimes against humanity” includes murder, enforced disappearance, deportation, imprisonment, torture, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, committed against any civilian population or any identifiable group. “war crime” includes wilfull killing, torture and inhuman treatment, unlawful confinement, willfully depriving a prisoner of war or other protected person of fair trial rights, intentionally launching that the attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
If there are reasonable grounds to believe a person has been complicit in any of these crimes, entry to Canada must be denied. The Supreme Court of Canada says reasonable grounds are “something more than suspicion but less than…proof on the balance of probabilities.”
Please:
a) let us know if you would like to add your signature to this letter; and,
b) distribute the letter and the request for endorsement to other groups and individuals. c) post the letter on your site.
Thanks.
Gail Davidson
Lawyers Against the War Tel: +1 604 738-0338 Fax: +1 604 736-1175 Email: law@portal.ca
Website: www.lawyersagainstthewar.org
Global Research Articles by Lawyers against War
Facebook Privacy Settings May Keep Out Nosy Profile “Creepers” but not Modern Litigants
It was only a matter of time before Canadian jurisprudence began to develop in response to privacy issues and the admissibility of documents associated with enormously popular social networking sites such as Facebook and MSN’s MySpace. As a result of a number of District and Superior Court decisions it is now uncontroversial that these profile pages may contain relevant documents that can be admitted as evidence; typically these cases involve a plaintiff claiming a deprivation of life enjoyment or working capability and germane photographs demonstrating a party’s ability to engage in sports and other recreational activities.
When it comes to court orders for the production of documents attached to privately listed Facebook profiles and pages the law is not quite settled. Recently, however, the Superior Court of Ontario allowed an appeal overturning a previous decision not to order a plaintiff to adduce documents that are private. This signals the willingness of courts to place full discovery of documents and defendants’ need to assess the case to be met over online privacy rights.
In the 2009 case of Leduc v. Roman, the Plaintiff was injured in a car accident due to the defendant’s negligence. At issue was the Plaintiff’s inability to engage in outdoor sporting activities that he enjoyed before the accident. To controvert the psychological evidence the Defendant asked for all documents on privately listed Facebook pages of the Plaintiff. Master Dash refused to order the production of the documents.
Weighing heavily in the master’s reasoning was the fact that the Plaintiff’s public page had only one casual head shot not indicative of what may be on the other pages. Another aspect was that the Defendant had an opportunity to ask at discovery whether the Plaintiff had photos – either a hard album or electronically—that are demonstrative of his lifestyle but there was no evidence such questions were asked.
On review of the master’s decision, the court found that the master erred by exercising his own discretion and not applying the principle in Murphy v. Preger that a court can infer, from the nature of the Facebook service, the likely existence of relevant documents on a limited-access Facebook profile.
On the point of discovery, it was noted that although the issue of Facebook documents came to life only after the discovery period ended, once the Plaintiff submitted supplementary affidavit evidence the Defendant had the right to cross-examine to discern what kind of evidence existed. The rationale influencing the court’s decisions was that “to permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website… risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”
What this means?
Courts are not going to allow litigants to hide behind privately listed pages or profiles. So if you have any self-incriminating photos or embarrassing pictures from that drunken stupor up in your buddy’s cottage during the May 24 long weekend, don’t be surprised if they end up in a courtroom.
This goes for your friends’ profiles, too. As it stands now, it is possible that if a court had reason to believe there are relevant documents on a friend’s page by, for example, a paired picture including yourself on a home profile mugshot, then production of documents on that account may very well be ordered; again, notwithstanding the exclusivity of the pages.
Perhaps the courts will be the institution to quell this generation’s torrid love-affair with the pre-event, main attraction and post-event photo shoot.
Goin’ Solo – A New Way to Learn
Should law school be a professional faculty designed to produce legal technicians, or a theory-based approach designed to give students a conceptual understanding of the law? When the latter holds true, and law schools do not fully prepare students for the reality of practice, a new start-up is promising to fill this knowledge gap.
Solo Practice University is an online community aimed at allowing law students and recent graduates to learn directly from legal professionals. It is, in its own words, “a revolutionary new web-based educational community that picks up where your legal education left off.”
The community will be composed of blogs, profiles, a messaging function, and interest-based user groups. SPU has already accumulated a faculty which rivals the size of some law schools, and is continuing to add to that number. It hopes to have a representation from a comprehensive list of professional fields by the time it is fully operational. Enrolment at SPU will be restricted to lawyers, law students, and recent grads; legal “outsiders” will not be admitted. Because the institution “is not a brick and mortar structure,” there is virtually no restriction on the size of both the faculty and the student body.
A very appealing quality of SPU is its thorough integration of social and professional aspects of legal practice. More than being just a “how-to” on practical topics, it will provide a means to network with other law students and lawyers, and will address issues like how to maintain a work/life balance.
The “Solo” in the name is not without significance. SPU will teach fresh grads how to get out on their own and set up an independent legal practice. The institution hopes to give out scholarships to those who want to start up a solo practice but who don’t have sufficient financial assets to do so.
Even though the University is not yet up and running, it has launched its official website, and there is hype aplenty. One SPU professor calls the school an “unparalleled opportunity to expand your network, learn new skills, find the best technology, and build your practice.” Another, “Solo Practice University is [a] resource with the potential to make a major and lasting impact on the profession.” These expectations are justified: SPU combines the best aspects of the blawgosphere in one convenient package, with a mandate to fill a pedagogical void that exists in conventional legal education.
Sensational Reporting of a Criminal Trial Process
I was listening to the radio in Toronto today and one story caught my ear. It went like this: “Two suspects charged with shooting an 18 year old in plain view of a security camera had all charges against them dropped today due to lack of evidence…”. Translation: with video surveillance available that clearly showed that the two accused committed the murder, the prosecution messed up and these murderers got off scot-free.
There’s more here than meets the eye, however. Anyone who has ever looked at security footage would probably know that it is very difficult, if not impossible to positively identify a person on the footage alone. Security tapes are good for showing that a crime has been committed, but due to the poor quality of most cameras, more is needed to prove guilt beyond a reasonable doubt.
This brings up an interesting question: why does the media, especially entertainment-centered radio (this was a music station, not a news station) feel the need to report in such a misleading manner? No doubt that upon hearing this, people unaware of the criminal process or quality of video cameras will blame the prosecutors for this failure to convict. Is the prosecution really at fault here? Certainly not for dropping charges when only a surveillance video is available, although they may have done more to secure more evidence (I don’t know the details, so I cannot speculate on what they should or should not have done).
Rethinking Afghanistan
See the Brave New Foundation’s site and blog.
Ret. Judge Paul Staniszewski Espouses Clear Hatred
Paul Staniszewski was a graduate of Osgoode Hall in 1954. He practiced law for 13 years until he was appointed as a federal judge in 1967.
Several law school scholarships were set up in his name at Windsor and Osgoode.
Now Staniszewski wants to ban minorities he dislikes from receiving the awards. Obviously the schools have rejected the idea.
But if he feels this strongly about it, what does that say about the potential for animus and bias by members of the bench that feel the same?
Update
Both law schools are rejecting Staniszewki’s request.
York spokesperson Alex Bilyk said,
A comment like that is unacceptable, but it’s really a moot point because once endowments are established, it continues to serve the students for whom they were established.
Upon reflection, I’m sure the judge realized this type of request is not in line with Canadian norms.
However, Staniszewki repeated similar comments from his home last night.
Some law students are questioning whether the schools should even consider having the scholarships available after his comments.
What law firms are looking for
Léna Taylor, Director of Student Programs at McCarthy Tétrault, answers your questions,
Law students and new lawyers have a variety of things to worry about, from finding a job in this job market, to figuring out what kind of law they’d like to practice, especially with rapidly emerging areas offering opportunities for specialization. Then there’s the crystal-ball question: What areas of practice will be strong in the near future?
Send your questions for Ms. Taylor now to jump the queue, or join us live on Feb. 27 from 1-2 p.m. ET.
h/t Gillian Moody
The Wall
The Wall has to be one of the most common reasons people don’t pursue their academic careers further than they do. Almost all people run into it eventually. Most of us hit it in undergrad, and the remainder hit it in post-graduate or professional school.
It’s easy to tell who never hits it because they’re now our professors. Their lust for knowledge has clearly enabled them to not only survive with their sanity intact, but enjoy a life of perpetual academia. But they’re obviously a minority.
To state the obvious, I didn’t even come close to it in undergrad. And nearing the end of my first year of law school I was still saying something I would never have said otherwise: “I won’t hit it.”
I think I finally have, and the purpose of this post is to warn everyone that you probably will too.
Upon hitting the wall, pretty much everyone pushes through and perseveres until they graduate. Rather than drop out we tend to just finish what we started and move onto bigger and better things, but unfortunately we all have to burden our friends and family with constant whining until we’re finally sporting black robes and marching across the stage at convocation, ready to whine about something else for a change.
Symptoms of hitting the wall include constant fatigue, difficulty paying attention in class, increased tendency to procrastinate (that is, even more than usual), increased frequency of foul language and repetition of obnoxious complaints such as “I can’t take this anymore,” and “I just wanna be done already!”
I guess the reasons one might hit the wall can vary. Most just get tired of the stress. Some are anxious to become productive members of society, or see law school as a means to an end and just want to get on with the “career” aspect of their legal education. Others are drowning in the guilt of having mooched off of parents for the past several decades. Others still are looking forward to days that actually come to an end, such as, for example, a work day that ends at 5:00pm as opposed to a study day that superficially ends when they leave the library but really doesn’t end until they’re unconscious in bed and unable to worry about it until morning.
Personally, the infamous CUPE 3903/York University stand-off might be what did it for me. No, I don’t think the school is any less capable of delivering a quality education to its students, and no, I don’t think any other academic institution is any less likely to suddenly experience such an event. The fact is that it spoiled me, and now things are back to normal.
For three months I enjoyed a near-empty law library without having to tell anyone to shut up or leave, absolutely no line-ups at campus coffee shops and restaurants, an extended and less stressful semester, independent study without the guilt that comes with skipping lectures, and for the first time, feeling like anything other than salmon while making my way through the normally over-crowded hallways of York.
Life was good. I urge all law students to give that life a shot should they get the chance. But once it’s over and things are back to “normal,” you’re probably going to be fed up enough to hit the wall, if you haven’t already.
40% of Ontario Prosecutions Fail Before Trial
According to the National Post, the criminal justice system in Ontario is an absolute mess.
Ontario has the highest rate of failed prosecutions in Canada.
In this province, approximately 40% of criminal cases are withdrawn, stayed, or dismissed, often before the trial even begins.
To say nothing of the impact on the improperly accused person, the cost to the taxpayer – for wasteful police investigations, fruitless prosecutions, and court costs – is in the hundreds of millions of dollars.
Why?
There are a few reasons which the National Post and others have identified:
- Lack of collaboration between Crown Attorneys and the police. For the vast majority of crimes in Ontario, the police make the decision on whether to lay a charge. The police are not in the best position to decide whether the charge will stick in court; Crowns are. In other provinces, the Crown acts in a screening capacity to decide whether a charge should be laid in the first place.
- Lack of discretion on the part of Crown Attorneys. The Crown policy manual requires Crowns to drop charges where there is no reasonable prospect of conviction or where pursuing the matter would not be in the public interest. Thus, Crowns are required to act in a quasi-judicial role in deciding whether to press the prosecution. Unfortunately, junior Crowns are often unwilling to take initiative and withdraw a charge for fear of making a mistake and drawing the ire of their superiors.
- Lack of ownership of files. Most criminal files are shuffled around from one Crown attorney to the next until the time of trial. This creates a great deal of administrative waste, because all of the Crowns that will come into contact with the file will have to take time to fully familiarize themselves with it. Worse yet, when Crowns feel that they don’t have ownership of a file, they are unwilling to make tough decisions to withdraw a charge. Lacking a comprehensive knowledge of the case and the accused, it’s easier to just do nothing and allow the file to pass to someone else.
Having identified some of the causes, it’s clear that relatively simple changes could be made to the criminal justice system to significantly cut down on the number of failed prosecutions.
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