One of the key characteristics setting family law apart from other civil matters is the extent to which outcomes are based on a fog of factors not necessarily obvious from the plain text of the legislation. The only result I would ever guarantee to a client involved in a family law dispute was the amount of child support that would payable, and I would only make this guarantee if: the child was under the age of majority; the payor was not self-employed; the payor earned less than $150,000 per year; the payor was not a stepparent; the child’s special expenses weren’t in dispute; the child’s parenting arrangements unquestionably did not amount to shared custody; neither parent was making an undue hardship claim; there was no reason to impute income to either parent; and, there was no need to average income or otherwise tweak a parent’s Line 150 income. Apart from that, the best I could usually offer was a description of the range of probably results, based on my knowledge of the legislation, the case law interpreting that legislation and my gut sense of the court’s likely approach to my client’s legal issues in the totality of the circumstances.
The extraordinary extent of this ambiguity has a number of consequences. First, it is a reminder of the substantial degree of expertise required to do family law well and the infelicity of delegating legal advice services to paralegals and junior lawyers. Second, it exacerbates conflict by denying separated spouses a single, certain answer and allowing them to cling to positions on the borders of likelihood. Third, it increases costs to litigants and to the system when disagreements must head to a hearing.
Although this sort of vagueness might militate against the automation of dispute resolution in family law matters, the success of the Child Support Guidelines and the Spousal Support Advisory Guidelines suggest that, with greater certainty, automation might just be possible. (When I went to law school at UBC, a faculty member had developed a program to assess the viability of a claim for the intentional infliction of nervous shock!) In this note I propose the creation of a software program to facilitate the settlement of legal disputes in the muddled bargaining context of family law. I am not a programmer, but I recognize the complexity inherent in what I propose. Nonetheless, it seems to me that a small group of expert family law lawyers working with a very patient software engineer might be able to come up with a prototype sufficient for evaluation in less than a year’s work; expanding the prototype to other provinces will require the adjustment of the program to account for local law and practice. There will of course be some cost involved, but I expect the cost would pale in comparison to the savings realized by even a marginal diversion of litigants from the court system.
Negotiating Settlements in Family Law Disputes
In many respects, my job as a family law lawyer was to foster the objectivity of my clients and encourage them, as much as I could, to adopt a rational approach to their legal issues. I could not and would not advocate irrational positions, and, quite apart from concerns about my reputation, the more I could assist my clients toward an understanding the law and achieving emotional disengagement, the happier they generally were. Of course one must not confuse “rational” with “fair.” By “rational position,” I mean a coherent legal position that lies somewhere within the range of probable outcomes, even though the range of likely outcomes may itself be unfair to the individual, as I’ve discussed elsewhere.
At the commencement of a dispute, the parties’ positions will bear a greater or lesser relationship with rationality depending on the extent to which each position is within the range of likely outcomes. One party’s position may be mostly rational (“I will pay child support as the Guidelines requires.”) and another’s may be irrational (“She had an affair, I will quit my job to make sure she gets no support.”), with no points in common:
Each party’s position may be fairly reasonable (“The children will live mostly with me.” “No, the children will live with me.”) yet still share no points in common from which to begin negotiations:
The job of the lawyer for each side is to push the client’s position as much toward the range of likely outcomes as possible, after giving proper legal advice and making a good effort to reframe the client’s perceptions of the situation, particularly where the client’s position is irrational and lies well outside the range. Providing that the parties’ counsel have a relatively common understanding of the facts and the applicable law, the result of the lawyers’ efforts also should be to push the parties’ positions together, within the range of likely outcomes, thereby maximizing the likelihood of settlement.
Ideally, there should be only fractional portions of each party’s position that are not shared with both the range of likely outcomes and the position of the other side. In such a case, each party’s position would be mostly rational and agreement would be easily within reach:
However a more realistic best-case early outcome would consist of somewhat rational parties sharing some degree if concordance between their positions:
Getting from positions that are disconnected from each other, and from the range of likely outcomes, to the ideal overlap of positions and probability seems to me to involve four stages, perhaps five. As a party moves from one stage to the next, the rationality of his or her position increases while the propinquity of that position relative to his or her ideal result decreases, thus moving both parties closer to potential settlement:
The fifth stage, which will be familiar to most commercial mediators, is a stage I’m not terribly fond of. Although it is perhaps the most rational from a cost-benefit approach, it has a back-up-against-the-wall flavour to it that may yield significant resentment down the road. Family law, furthermore, is not concerned with only financial costs; there are substantial and important non-pecuniary values and interests at play as well.
Nevertheless, by stage three, the parties’ positions, wherever they might have been at stage one, are now moored within the range of likely outcomes, legal advice having been given and the parties having become resigned to the constraints the law imposes on their bargaining positions. By stage four, there should be enough commonalities between the parties’ positions that sensible negotiations can take place. Barring any problems lacking meaningful compromise, such as disputes about mobility, settlement should be within reach, particularly if counsel begin to discuss with their clients the sort of bottom line analysis required by stage five.
This sketch of negotiation in the context of family law disputes makes certain assumptions, which will not have passed unnoticed by anyone who has practiced in the area. Firstly, it assumes that the parties are lucid and capable of acting in their rational self-interest, which secondly implies that they are only marginally motivated by principle, revenge, malice or spite. It assumes that the parties are able to rationally assess the best interests of their children and put those interests ahead of their own. It fourthly assumes that the parties are capable of bargaining in circumstances of incomplete information, as disclosure in family law matters is rarely perfect and the future is always unknown. Fifthly, it assumes that counsel have an approximately shared understanding of the critical facts, the applicable law and are able to assess their clients’ legal situations independent of their clients’ emotional states.
This is a tall order, I know, and it may the case that not all parties are suited for an automated dispute resolution process; in such circumstances the courts will of course remain available. However, even if an automated process resolves just 25% of family law cases at minimal cost to the parties and the system, such a process would result in significant savings even after the cost of software development is taken into account.
Addressing Ambiguity in Family Law
I have elsewhere suggested that cryptic, involuted legislation requiring reference to case law to comprehend is itself a barrier to justice. This is especially so where legislation is intentionally drafted to be ambiguous by providing open-ended definitions and tests with non-exhaustive lists of factors to be considered, and is overly generous with the discretion afforded to the court. Certainly, this approach allows judges to provide bespoke justice but it’s singularly unhelpful when a spouse must decide which expenses are “special or extraordinary,” whether to seek spousal support or the sort of parenting plan that best suits the children.
The Guidelines and Advisory Guidelines are excellent examples of how the imposition of consistent but arbitrary rules can reduce ambiguity and increase certainty, resulting in: legislation that is easier to understand; a narrowed range of potential outcomes; a decreased likelihood that parties will adopt and maintain extreme positions; improvements in the capacity of parties to resolve the issues arising from their separation on their own, out of court and without counsel; and, better access to family justice. That said, I’ve earlier pointed out some of the difficulties in determining even the table amount of child support payable. The degree of certainty provided by the Guidelines could be improved, I suggest, by:
- making the formula used to calculate child support for payors with incomes in excess of $150,000 mandatory;
- eliminating the discretion afforded when child support is paid in respect of adult children, by either requiring payment of the table amount or a fixed percentage of the table amount;
- eliminating the discretion afforded if the payor is a stepparent, by either requiring payment of the table amount or a fixed percentage of the table amount; and,
- clearly stating how the payor’s time with the child is to be calculated for the purposes of the shared custody exception to the table amounts, and then providing a specific formula for the calculation of quantum when the 40% threshold is reached.
A similar strategy could be applied to the Advisory Guidelines, which is especially rife with fuzzy definitions and discretionary considerations.
Speaking of spousal support, it should also be possible to develop a concrete methodology to determine entitlement, an issue conspicuously and purposefully avoided by the Advisory Guidelines. The factors a formulaic approach to entitlement might involve include: length of cohabiting relationship; age of proposed payor and proposed recipient; ratio of parties’ present incomes; ratio of parties’ anticipated future incomes; permanence or security of parties’ employment; and, presence or absence of disabilities affecting the employability of each party, calculated somewhat in the manner used by workers’ compensation assessors.
Clarity could be given to the division of property firstly, and most importantly, by extending to long-term cohabiting couples the property division regimes enjoyed by married spouses. At present, unmarried couples in those provinces where they are excluded from matrimonial property legislation must wade through the muck and mire of unjust enrichment claims to pursue an interest in property, the outcome of which can be almost impossible to predict. Where settlement cannot be reached, the time required to resolve unjust enrichment claims in court is usually far longer than what is generally required for married spouses who have the luxury of a determinate statutory regime.
Mind you, these statutory regimes could be substantially more intelligible than they are at present. British Columbia has taken steps toward clarity with legislation that presumes that family property will be divided equally, and will not be divided unequally unless an equal division would be “significantly unfair.” Although BC’s Family Law Act could be much more particular than it is, it’s still significantly better than Alberta’s Matrimonial Property Act. The Alberta legislation merely requires the court to divide property “in a manner it considers just and equitable,” taking into account a non-exhaustive list of factors that includes the “contributions made by each spouse to the marriage” and the “contribution, whether financial or in some other form, made directly and indirectly by or on behalf of a spouse to the acquisition, conservation or improvement of the property.” Good grief.
Given the complexity and ambiguity permeating every area of family law, it’s hardly surprising that spouses would find themselves at odds over the legal issues arising from their separation. In my respectful view, the legislative regimes presently governing family law matters are badly in need of a through defogging. Constraining the range of potential outcomes, more firmly fixing presumptions and limiting the factors applicable to legal tests will assist parties in settling their disputes by promoting rational positions, and will ultimately reduce the costs incurred by both the justice system and the parties in resolving family law disputes.
An Outline of a Family Law Dispute Resolution Software Program
I imagine that a program intended to assist parties resolve the issues arising from their separation would be visibly branded by the provincial and federal ministries of justice, and would be available online and at kiosks in the courthouse. The parties would start the program at roughly the same time, but in different locations to ensure that neither could observe program outputs to the other and to minimize their ability to communicate with one another. All text displayed by the program would be carefully drafted in plain language, be comprehensible by someone who has finished primary school and feature pop-up plain language legal definitions whenever technical language absolutely must be used. The program would also be available in at least the three most common non-English languages spoken in the province.
The parties would firstly obtain legal advice and exchange copies of the relevant documents and information, and agree when they will start the program. The program would begin, as all do, with inputs. These inputs seem to me to consist of both factual and legal data. The factual information would include, at a minimum, the following:
- each party’s age;
- each party’s present employment circumstances and gross incomes from all sources for the previous three years;
- the present and future employability of each party, including anticipated retirement;
- the parties’ marital status, when relevant;
- the length of the parties’ cohabiting relationship, and the date of their separation;
- the ages of the children, and in the case of adult children the status of their schooling or likely self-sufficiency;
- the pattern of care of the children prevailing during the relationship and the pattern of care after separation;
- any limitations on each party’s capacity to care for the children, including because of the party’s place of residence, employment, manifest parenting deficiencies and illness;
- the nature and cost of each child’s special expenses;
- the type and value of property brought into the relationship and any associated debt;
- the type and value of property existing at the date of separation and any associated debt; and,
- the value of property acquired by inheritance or court award, and the date of acquisition.
The precise data required in respect of the division of property would depend on the applicable law, and further data relating to the care of the children, child support and spousal support would certainly be required.
The legal inputs would consist of:
- each party’s preferred outcome on each legal issue, with each party entering their positions blind to the position of the other;
- any applicable legal presumptions;
- the range of likely legal outcomes; and,
- the terms of any existing orders and agreements relevant to the legal issues.
With sufficient clarity in the applicable legislation, the software could likely be programmed with the range of likely outcomes based on case law. With appropriate heuristics and a continuing input of case law, the software could even monitor and adjust the range of likely outcomes on an ongoing basis as the law evolves.
The program would firstly flag any irrational positions taken by a party – defined as positions lying outside the range of likely outcomes – and adjust the party’s position to the rational position closest to their preferred outcome. The program would report to the party what has been adjusted and why.
The program would then determine entitlement to child support and spousal support, calculate the amounts payable and the likely duration for which it would be paid, and determine the income ratio applicable to the sharing of the children’s special expenses. The program would report the results of these calculations to both parties.
Next, the program would identify, and report to both parties, any areas of agreement. The program would display a graphic to both parties indicating how close they are to a global settlement, a graphic that will be updated as the program runs its course.
The program would then compare any remaining areas of disagreement between the parties’ positions – which should now be limited to the children’s special expenses, arrangements the care of the children and the allotment of property and debt – and evaluate the extent of the parties’ disagreement on each legal issue. The program would then determine a midpoint compromise for each disagreement and verify that the midpoint lies within the range of likely outcomes.
The program would state the midpoint result on each issue to each party, without describing the result as a midpoint, and ask whether the result is acceptable to each party.
The program would then identify, and report to both parties, any areas of agreement and adjust the global settlement graphic accordingly.
The program would then calculate the division of property and apportionment of debt, applying the presumptive scheme required by provincial law, assuming property and debt remain in contention. The program would then provide both parties with the results of its property and debt calculations, and, for each issue remaining in dispute, identify to each party any aspects of their positions that are close to or at the limits of the range of likely outcomes and offer each party the opportunity to amend his or her position in light of the new information.
If a party modifies his or her position, the program would check for any areas of agreement, report the new agreement to both parties and adjust the global settlement graphic. If agreement is not reached on one or more issues, the program would recalculate the midpoint compromise on those issues and ask whether the result is acceptable to each party. If agreement is reached, the program would report the agreement to both parties and adjust the global settlement graphic accordingly.
If issues remain unresolved at this point, the program would then assess the settled and outstanding issues for trade offs that might balance the parties’ positions, trading spousal support for property or periodic support for a lump sum, for example. The program would then summarize the potential trade offs to each party, without describing the result as a trade off, and ask whether the result is acceptable. If agreement is reached, the program would report the agreement to both parties and adjust the global settlement graphic.
If outstanding issues remain at this point, the program would display the areas of agreement to both parties and the legal issues remaining in dispute, but not the parties’ last positions on each issue. (The purpose of not revealing these positions is to ensure that the assisted negotiations may be treated as occurring on a without prejudice basis, freeing the parties to propose compromises for the sake of settlement that they will not be held to in the event the matter must proceed to trial.) The program would then provide both parties with an estimate of the likely legal fees required to take all issues to trial, the likely length of trial and, tapping into the court registry database, the probable length of time until a trial of that duration can be heard.
The program would then ask each party if they wish to consider any alternatives to their last positions on the outstanding matters. If agreement is reached, the program reports the agreement to both parties and adjusts the global settlement graphic. Otherwise, the program restates the matters in dispute.
In the event of a global settlement, the program provides, in PDF format, a summary of the facts inputted and the terms of the settlement reached in order that the parties may attend counsel for independent legal advice and the drafting of a separation agreement or consent order. In the event global settlement is not reached, the program would provide the parties with a summary of the facts inputted, the terms of any agreements reached that could potentially be incorporated into a separation agreement or consent order, and the legal issues remaining in dispute, again without revealing the parties’ positions on those issues.
I realize that much of this proposal for an automated settlement tool is fantasy and that much of what I have written is likely misinformed and incomplete. Nevertheless, it might be a valuable exercise for governments and court services agencies to consider what if any aspects of the family law disputes that clog our court systems are amenable to automation or, at the very least, the imposition of greater certainty. Acknowledging the existence of invidious and persistently irresolvable problems such as mobility and the imputation of income, wouldn’t it be nice if we could get at least some disputes about child support, spousal support and the division of property out of the courtroom? What would the savings be to the system of even – forget 25% – just a 10% drop in caseload? What would the savings be to individual litigants?
After many hundreds of Friday Fillips, I’m going to try something different in this space. For the next while I’m going to do a “Boz” and publish a crime novel in episodes. Those of you who read the Fillip for leads to “interesting stuff” I’ve found on the internet needn’t fear: I’ll lift a theme out of each episode and interpolate notes on fresh findings that touch on that theme. I’m also going to gather the accumulating episodes on another website, so that people coming late to the Fillip can catch up with the story. My aim is to offer up an episode every week for, as I say, a while. But the muse may occasionally balk, and so I reserve the right to skip the odd week and revert to the more traditional free-form Fillip.
Trial and Failure
“Tittlebat,” she said, pulling on a dirty leather glove.
“Come again?” Wallace Mitman was busy wadding up a piece of Wonder Bread.
Gregoria Rangel held the tiny fish in her gloved left hand and worked to get the outsized hook from its mouth. She thrust hook, fish, and hands in his direction to show him. “Three-spined stickleback, tiddler, Gasterosteus aculeatus.” And with that she placed the freed animal back in the water and watched until, after a frozen moment, it twitched down and out of sight.
“Think anything will hit on this?” Mitman asked, holding up something that looked rather like a Christmas tree ornament made in junior kindergarten but was in fact a dough ball hiding a hook.
“Don’t ask me?” Rangel said. She had taken off the glove and was looking around for something to wipe her hands on. She settled for a rag she’d found at the bottom of the boat, swapping slime for grease.
“Well, you were all gastro-whatever and tittybat, so I figured you for the compleat angler.”
“I’ve read the book,” said Rangel.
“Why am I not surprised?”
Rangel looked around her. She saw smooth lake, ranks of reeds to her left that marched out from the shore until the water rose over their knees, a fortress of ancient rock and conifers on the opposite shore fifty metres away, and dead ahead the Castle of Far Off Ease, the lodge where they were staying, tiny in what she thought Dante had once called a “giddy distance.” No wind fussed the surface of the lake, and the small aluminum craft rocked gently with their every movement, no matter how slight. It felt to her as though everything was in suspension, precariously so. “Wally,” she said in an abstracted way. “Let’s go back. I’ve had enough. I want a scotch.”
“G.R.,” said Mitman, “I thought you’d never ask,” and he grabbed the outboard starter handle, fired the motor up, and swung the boat around.
For a moment, the dinghy attempted to rise and plane on the surface, but then it lost courage and sank back to plough the lake instead. The snarling noise from the motor made conversation difficult, so Rangel leaned forward, hands on the gunwales at the prow, looking like some figurehead, Mitman thought — or, he corrected himself with a smile — a dog with its happy head out of a car’s window. Not that she was in any sense a dog. He reckoned her beauty as only one of her many stellar qualities. But there was an eagerness in her face that he was glad to see. Perhaps this retreat had been a good idea after all.
And then with a loud humming and a backfire like a gunshot, the outboard motor quit. Rangel looked around with alarm. “What?” she said.
“It stopped,” Mitman said, pointing at the outboard.
“I can see that. Can you fix it?”
Mitman frowned. “Me? What I know from motors you could stick in a . . . stickleback.”
“But you’re the computer genius.”
“Computers aren’t motors. They’re not even machines. Not really. They transcend that category. They’re — “
An evening breeze was gathering itself. And to Rangel’s eye, the lodge was still infinitely far away. She figured half an hour until sunset and then maybe twenty minutes of useful dusk. She saw Mitman making the same calculation. They looked at each other.
Mitman muttered, “It’s probably fouled.” And after pulling this and pushing that he managed to rotate the motor out of the water. Sure enough, a Medusa of weeds strangled the prop. Mitman leaned out carefully and began to strip the vegetation away.
“Tapegrass,” Rangel said, leaning over his shoulder. “Um . . . Vallisneria spiralis or, if you accept some authorities, Vallisneria tortissima because this has twisty — “
“Yes. I know. Shut up.”
The outboard’s tail went back in the water. Mitman worked the starter pull. Nothing. Not a sputter, not a cough. Nothing. “Shit,” he announced.
“Let it rest for a bit?”
They both gazed at the disappearing sun. After an unmeasured while, Mitman gripped the starter handle and, with his left hand on the motor housing, drew the rope out until he felt resistance. He glanced back at Rangel — and gave a swift pull. Nada.
Somehow it had become dusk. “Those stick things,” said Mitman, pointing to a pair of emergency oars strapped to the sides of the boat. “It’s time for the stick things.”
“We’ll take turns,” said Rangel, trying for brightness.
“Damn right,” said Mitman, as he struggled to fit the stick things into the oarlocks. He found a rib in the floor to brace his heels against and began to row. They switched twice and the scotch got closer. Mitman was rowing when the light failed. Rangel leaning forward in the prow imagined she could still make things out, though she knew she couldn’t. But ahead of her shone the white light at the end of the dock at the lodge. And reason told her that there were no obstacles between them and the light. Only water. So if they kept the boat pointed at the light they’d eventually bang into dry land, armchairs, and stiff drinks.
The dock light went out.
“Oh no!” Rangel cried.
“What?” Mitman stopped rowing and swivelled round. “Oh no,” he agreed.
“Quick, put the oars in. Stop us turning.” Mitman did as he was told. “Can you row straight?” Rangel asked.
“Honey, I can’t even be straight,” Mitman said. He was sounding tired.
“Moon, is there a moon?” said Rangel, and they both looked up into the black sky, as if searching for an elusive comet. “There’s always a moon, isn’t there?”
“I think there’s something coming up over there,” said Mitman, pointing invisibly in the dark.
“Stars. There’s lots of stars up here, right? More coming out every minute. Starlight’s pretty bright. Isn’t it?”
“Whoah!” Mitman reached out, found her shoulder, and tapped it. “Or should I say ‘Avast!’?” Rangel turned and turned until she saw it too: a small light making a small circle in the distance.
“Row, damn you, row,” she said with excitement. “A little more to the left. My left. That’s port.”
“It better be,” said Mitman.
“It’s my pride and joy.” Dennis Abudo was certainly beaming. “It’s designed for just such an occasion as this, when the power fails. Which it does with some frequency out here in the boondocks.” His accent made the word sound appealing. “Somebody once told me it was because porcupines eat through the cables. But I’ve observed that people in the country will tell all manner of nonsense to foreigners.”
“It’s just a generator,” Rangel said. She had her coveted whisky in hand, an angora sweater around her shoulders, and was feeling cocky. “Everybody has generators.”
“Ah ha!” said Abudo. “This, my dear lady, is a Stirling engine generator and not everybody has a Stirling engine generator, believe me. Well, not everybody here. There are a few back home in Mozambique. But not here. Here it is ave rara.”
“Not you, too,” said Mitman. His scotch was a martini. Only the olive remained in the glass and he was toying with it, making it spin around the glass in varying orbits.
Abudo looked at him quizzically. “It’s Portuguese,” he said, “for a rare bird. Something uncommon. Sometimes I forget and speak Portuguese.”
Mitman ate the olive. “Sorry, my mistake,” he said. “What makes it fly, this bird, then?”
“Simple and complicated both to explain. Mr. Stirling came up with the idea in 1816 but it was a social failure. Steam engines and then gasoline engines eclipsed his invention. But here it is two centuries later, coming back to life. The beauty is that a Stirling engine does work if you give it any heat and any cooling. The heat of a hand and the coolness of the air could make a Stirling engine go. The engine contains trapped gas that is alternately heated and cooled by these outside sources, moving a piston inside that is linked to some external machine, in this case a generator. Of course, the heat of a hand wouldn’t result in the generation of much power. But this beauty is heated by natural gas, or propane if need be, and to some extent by solar power in the summer. Cooling is courtesy of the lake water.”
“Like a refrigerator compressor only worked backwards,” said Mitman.
“Exactly!” Abudo clapped him on the back. “Only this is much, much more efficient. Nothing is wasted.”
“Neither am I,” said Mitman, “and I’d like to be.” He raised his empty martini glass. “We’ve just survived a hair-raising adventure on the high seas, and I’m still shaky on my pins.”
Rangel followed them up the stairs to the main floor. “Thank God you came down to the dock with that flashlight when you did,” she said, “or we’d have been in sleeping in the weeds tonight.”
“I had to make sure you got home because I was counting on you both to provide dinner.” Abudo smiled.
“Fail whale,” said Mitman.
They took their refreshed drinks outside while Abudo supervised matters in the kitchen. They sat in a pair of Muskoka chairs and leaned back to see that the stars were indeed out in force. After a while, Rangel said in the dark, “I can’t pay you, Wally. This month, of course. But after that . . . “
“Business will pick up,” Mitman told the stars. “I’m not bothered.”
“It won’t,” Rangel said. “They hate me. The whole town hates me.”
“They do. I defended Doctor Evil, Doctor Disgusting and that damns me forever in their eyes.”
Mitman sighed. “You didn’t get him off, though. There is that.”
“Somehow that only makes it worse. On top of it all I was incompetent. I should have been able to persuade the judge that — Oh, hell — .“ And Mitman thought he heard her crying.
He said, “Do you see that boxy sort of construction? I think it’s north-ish. Your north-ish. I do believe that’s the big dipper, or, as some people I know might say, Ursa major. It’s hard to be sure, what with all the millions of other stars cluttering things up the way they do. I mean, just look at that huge smear of light things. Goes all the way across, practically.” Rangel blew her nose loudly. “Some people, city people, never ever get to see this. Never. Can you imagine that? Living on grids without messy light things at night. No, this is the life for me. Hey ho. And it’s the life for you, too, boss. Besides, money is vastly overrated. Did I say ‘vastly’? Often overrated. Sometimes.”
Abudo had come up behind them in the dark and he coughed discreetly. “May I take you in to join the others for a candlelight dinner?” he asked. “Only I must tell you that the soufflé has fallen and the cook is terribly distressed. Please accept my apology on her behalf.”
There was fish for dinner, a perfect pickerel to follow the deflated and delicious cheese soufflé. Abudo himself brought dessert to the table along with a worried look. “Ms. Rangel,” he said, “there is a telephone call for you.” Rangel and Mitman looked at each other, frowning in puzzlement. There was a moment of confusion. Rangel reached for her cell phone and then remembered that she didn’t have it because they were out of range here. That had been the point, in fact. “No one knows where I am,” she said.
Abudo sighed. He said, “I am terribly sorry but I fear there has been a fire.”
© Simon Fodden
In a February 6 article in the Toronto Star, Olivia Carville stated that Ontario law schools are failing in providing domestic violence training for their students.
Unfortunately, the outcome of her article was predetermined by the narrow scope of her question. Her focus on whether there is a mandatory subject in which the topic is addressed cannot capture the many things that law schools do, in curricular and in extracurricular ways, to help students learn about and respond to domestic violence and violence against women. What is worse, the ‘single compulsory course’ inquiry is based on a too simplistic understanding of how best to teach and to learn about domestic violence.
What follows is a description of some of the activities at my law school – Windsor Law. I know, however, that other law schools can tell similar stories.
At Windsor Law, we use the entire three-year student experience, curricular and extracurricular, to help students understand the root causes of violence against women and domestic violence and how they might be recognized and prevented. In our first year compulsory curriculum, faculty address in a variety of ways issues related to power structures and gender biases and assumptions. Understanding these issues is a prerequisite to understanding the complex ways domestic violence operates in women’s lives.
For example, in our compulsory Access to Justice course students read about and discuss the barriers faced by women experiencing domestic violence while also living in poverty, struggling with precarious immigration status, and supporting their children. All of our first year Criminal Law courses have at least 2 classes that address sexual violence against women. Gender bias and sexual violence against women are also themes running through some upper year mandatory and optional courses.
We address issues of domestic violence in orientation training and in file supervision in our legal aid clinics. In our Legal Aid Windsor (LAW) clinic, for example, we have since 1974 used a joint law/social work model. This choice was made because of the early realization that many of the problems experienced by clinic clients, including domestic violence, are often not effectively addressed if the only response is a legal response. Every student who works in our LAW clinic learns how to advise clients and manage files using this interdisciplinary approach, and has access to a supervising social worker where that assistance is needed.
There is a longstanding collaboration between Hiatus House, Windsor and Essex County’s emergency shelter for women and children who are victims of domestic violence, our LAW clinic, and the law school. Our systemic advocacy work has always highlighted the needs of domestic violence victims in relation to housing, income security and criminal injuries compensation. Our students raise funds for Hiatus House through events that also inform and educate the entire law school community about domestic violence. Other student activities include bringing speakers to the law school to speak about these topics and organizing events to raise consciousness about sexual violence, including a Sexual Assault Awareness Week.
In another of our legal aid clinics, CLA (Community Legal Aid) we are working with Legal Aid Ontario to provide training in domestic violence to clinic staff and some of our clinic students. We are also incorporating in CLA the same interdisciplinary approach to the delivery of legal services (law and social work) that has been used in LAW for over 40 years. We ensure that formal training is provided to the students who deal with domestic violence issues.
The University of Windsor is a national leader in providing training as part of the Bystander Initiative. This training program encourages student-participants to see themselves as potential bystanders who could intervene and stop an assault before it happens and provide appropriate support to survivors. Students learn the importance of speaking out against social norms that support sexual assault and coercion. Ours is the first Canadian campus to use the program, and the Faculties of Arts, Law and Business have made it available to their students. The training emphasizes the importance of personal and community responsibility for social change around issues of violence against women.
These are a few examples of the training, education and activities at Windsor Law School. Gender and domestic violence are such complex issues that training in the competencies to deal with them must occur in various ways, curricular and extracurricular, mandatory and optional, throughout the three year law school curriculum. And that training must also extend beyond law school. Lawyers who work in fields where these issues arise should have periodic retraining to ensure that their skills and competencies remain sharp and informed by best practice and current research. The same applies to judges.
Can law schools do more? Yes, we can and we must. And in doing so we will be assisted by the work of the Law Commission of Ontario referred to in the Toronto Star article (Curriculum Materials in Ontario Law Schools: A Framework for Teaching about Violence Against Women). But are there numerous examples in Ontario law schools of teaching and learning activities that help law students and faculty to understand domestic violence and, hopefully, to be agents of change? Yes there are.
Windsor Law School
It is rarely that I read the opinions and perceptions of Gary Rodrigues and not almost entirely agree. This was very much the case with his article Legal Publishing and Market Research – Getting It Right, in which he succeeds in identifying “form over substance” motives in some publishers’ research and in so doing highlights something short of honesty behind much of it. It set me thinking about the extent to which, in more general terms, form over substance is a familiar feature of the actions, decisions and priorities of some of the legal and professional publishers. Whether or not it would be too much to suggest that dishonesty or deception may occasionally characterise some of what we see from them is a matter for debate.
An obvious area in which the talk might not match the action is when simple, straightforward honesty ought to be really important but may be in short supply. Only very recently one read about the possibility of “legal publishers up to their old looseleaf tricks”. It is a suggestion of less than the most honourable motives, particularly at the end of the financial and/or subscription year, in splitting looseleaf releases in two for the publisher’s benefit rather than in the interests of the customer. Everything might be legitimate, of course but equally it may be that:
- in splitting a release in two, particularly where a January-December subscription year operates, the correct number of contracted releases are mailed, covering up for earlier failure to supply;
- in splitting a release in two, where pay-as-you-go contracts apply, two individually higher invoicing opportunities arise, thereby increasing revenue and profit;
- where such activities occur, it may be that financial targets and/or year-end bonuses are of greater significance than value for money and good customer service.
As with the various points that Gary makes on the purpose of research, in cases such as this, the motives behind the behaviours may not always be as transparent as they ought to be and the frequent ethical boasts of PR messages are rendered a little thin. How much better it would be to put even more effort into delivering real-time online content and transactional tools rather than repeat old ways of milking the geriatric cash cows.
Form and substance can often be at odds in other fields of professional publishing endeavour. To a large extent, for example, the internationalising of the enormous providers, although trumpeted as a way of supporting the profession(s), is much more to do with rolling out their own back-office process and cost-saving initiatives. That the lawyer in one country has easy access to the same platform, content and tools as a lawyer in another is, in many cases, likely to be neither here nor there, as both will only be concerned with the laws and processes that affect them in real life. Chances are they speak no language other than their own and would probably not be inclined to read and fully understand the law of another country other than in their mother tongue. The publishers often neglect to mention that their only real and long-term interests lie with a small number of huge, international firms where they can negotiate pricing and supply globally.
Perhaps the most ubiquitous statement made, certainly not only by legal publishers but by them in any case, is the familiar “our people are our most important asset”. This, when uttered, is usually immediately followed by another round of redundancies. The evidence is simply not there to support the statement and as often as not management considers its staff to be an unnecessary evil that gets in the way of progress. This was particularly in evidence not long ago when the chief executive of one of the big publishers boasted the extent to which they had reduced their editorial and creative workforce. In my view, this is a fact of modern life but I would simply prefer to see more honesty and transparency about it so that corporate pronouncements and high-minded statements of purpose and values and consistently matched by actual behaviours. Form and substance in harmony would yield an obsession for actually delivering consistently good customer service, price increases that relate, unless for special reasons, to inflation rates and not using price increasing and short-term cost-cutting to disguise bad decision-making and poor management.
Oddly, few people seem to be unduly surprised when form and substance are not matched, perhaps because it is such a feature of day to day life. When we are telephoned in mid-dinner by an unknown person who immediately tells us that they are not trying to sell us something, we know what is coming, just before we hang up. Likewise, when, for example, a legal publishing business announces that it is definitely not up for sale or interested in a particular acquisition or divestiture, we know what to expect.
It continues to be fascinating to see how the industry is going and indeed evolving. The long-established entities are taking progressively less of their profits from legal markets and the bigger news recently is in the merger of Macmillan Science and Education and Springer Science and Business Media. In law, the interesting action seems to be with further retrenchment by CCH, this time in academic law publishing in Australia, the likes of venture capitalist-held ALM and the strategic directions that they are taking and, of course, with Bloomberg. A directional snapshot describes recent activities well in Jean O’Grady’s article, “In 2014 Change Was the Only Constant In Legal Publishing Leadership”. It seems that the revolving door continues to spin, with all the obvious consequences, both positive and negative, thereof. House of Butter has recently again reported informatively a few times of possible outcomes.
Perhaps, the session involving Gary Rodrigues, Jason Wilson and me on the future of legal publishing, at this year’s CALL/ACBD Annual Conference, may see discussion of these issues and others such as:
- the broad range of challenges and how legal publishers are responding to or anticipating them
- changing market structures, including the impact of newer entrants and competitors
- what the digital challenges cited above and others mean for law publishers and to what extent they require business models to be altered
- who are likely to be the winners and losers based on current trends
We shall need to take steps to try to ensure that both form and substance are delivered in equal amounts.
George Raine, a recent graduate of the Faculty of Information’s Master of Information program at the University of Toronto, has created the Snowden Surveillance Archive, a searchable database of all the publicly released classified documents leaked by former U.S. National Security Agency contractor Edward Snowden.
The leaks reveal the widespread surveillance practices by security and espionage agencies in the US and allied countries.
Archive project partners are Canadian Journalists for Free Expression and the Politics of Surveillance Project at University of Toronto’s Faculty of Information. Funding came from The New Transparency: Surveillance and Social Sorting, a seven-year Major Collaborative Research Initiative funded by the Social Sciences and Humanities Research Council.
There are currently close to 400 documents in the Archive. The Archive website explains that these are “a small fraction of the estimated 50,000 documents Snowden turned over. Most of these will likely not be published, but as new documents are published, they will be added to the Archive.”
It is possible to search by program name, target, agency, classification and ordinary keyword.
Other groups such as the American Civil Liberties Union have released files that Snowden leaked to journalists in June 2013 but the Snowden Surveillance Archive claims it is the world’s first fully indexed and searchable collection of the files.
Many of the documents have been published by The Guardian, The New York Times, The Washington Post, Der Spiegel, Le Monde, El Mundo and The Intercept. In this country, the CBC has been shedding light on Canada-related files leaked by Snowden.
In Graham v Shear Logic Hairstyling, an employee was awarded $11,400 representing general damages for denigration of her dignity and self-respect, and for psychological and emotional harm she experienced due to discrimination in employment on the grounds of sex and sexual orientation, in addition to sexual harassment.
Facts of the case
Stephanie Graham was attending university on a full-time basis from 2003-05. She decided to obtain a trade and completed a Cosmetology course in 2007. In March 2007, she began working as a general hairstylist at Shear Logic Hairstyling, owned and operated by Shawn Cormier, to do the required training to become a general hairstylist.
According to Graham, she began to feel uncomfortable soon after she started working at Shear Logic. Cormier began making comments concerning her appearance and her sexuality. One day he noticed a tattoo on her wrist and asked her what it was. She stated it was two intertwining female symbols. She told him she was gay. He reacted by saying he was shocked and insisting that she could not be gay because she was pretty.
Cormier’s comments quickly escalated. Initially, she would ignore him or laugh. But the questions and comments became even more inappropriate and involved her sex life and sexual partners. Cormier even asked her, “How do lesbians have sex?”
In response, Graham indicated that she did not approve of the comments and questions.
These incidents started to interfere with work. For instance, Cormier would introduce Graham to clients and say she was a lesbian. This would cause Graham great discomfort and insult, but when she became upset, Cormier would explain to clients that it was a result of her being a “bipolar lesbian” or a “bitch.” Graham’s mental health suffered.
In another incident, Graham said Cormier tried to watch her while she used the salon’s tanning bed while nude. Cormier even drove by Graham’s residence and parked on the street in front of her house.
There were several other instances of name-calling and inappropriate comments, but Graham kept working because she needed to be an apprentice to get the qualification.
Then things got strange. Cormier called Graham at home one evening at approximately 9:30 p.m. He was slurring his words and and appeared to be intoxicated. He said he was calling to hear her voice and to say good evening. She advised him not to call in the evenings. Two evenings later, he called again. She reiterated she did not wish to receive any further telephone calls.
Then, on June 7, 2007, Cormier approached Graham and suggested they go to dinner the following Sunday to celebrate their three-month work anniversary. He told her that if she did not go, she would no longer have a position at Shear Logic. He continued to persist and she began to fear for her safety. Rather than flatly refusing to accede to his wish, she told him that she had to look for a new apartment that evening. Further, she advised she was uncertain of whether she would be at work the next day. He told her to call in the event she was unable to make it.
That evening at 6:00 p.m., Graham called the salon and left a message with an employee advising she would not be at work the next day. She was afraid that Cormier would be angry and ridicule her the next day, so she wanted to avoid being there.
Then at 9:00 p.m. that evening, Graham heard a “banging” on her apartment door. Her former partner and a female friend were present. Cormier entered the flat, proceeded down a long hallway and stopped at the kitchen where he began to scream at Graham.
Graham testified, “it was like I was breaking up with him, like he was an angered boyfriend and I was ending the relationship.” He continued to scream to the point where Graham had to tell him he was trespassing and that she would call the police if he did not leave. This was when he started shouting obscenities such as “crazy bipolar lesbian,” “crazy bitch,” and “stupid bitch.” He then fired her and told her to stay away from the salon.
A few days later, Graham went to collect her belongings at the salon, and Cormier began berating her and became aggressive. He would not let her take the potted plant because he paid for the pot, so he ripped it out of the pot and threw it at her.
On June 25, 2007 Graham filed a complaint with the Human Rights Commission.
Within the next month, Graham also filed a labour complaint alleging the employer owed her severance. The Nova Scotia Labour Standards Tribunal found she was terminated without cause and awarded her one week’s pay in the amount of $201.
According to Cormier, there was no inappropriate behaviour. He did not discriminate or harass Graham. He did not threaten to terminate Graham if she did not show up to the dinner; rather, he suggested that she bring her partner.
The decision of the board came seven years after the complaint was made-a significant delay. “There is no justifiable excuse for this inordinately long delay,” wrote board of inquiry chair Kenneth Crawford. However, Crawford said, since the commission appointed a new leader two years ago, there have been faster processing times.
Crawford found that Cormier discriminated against Graham on account of her sex and sexual orientation, and sexually harassed her during her employment at Shear Logic.
The effect of Cormier’s actions was significant. Crawford stated:
“It greatly dismays me to think how the Respondent could have treated a young lady, who was 22 years of age at the time with such anger, total disrespect and humiliation and also did so in the presence of clients. His abhorrent actions which occurred with great regularity took place one month after she advised she was gay.”
It was clear that Cormier wanted to start an intimate relationship with Graham and his infatuation soon became an obsession. This caused Graham to feel uncomfortable, humiliated, disgusted with herself that she remained employed for three months, upset because she felt she was being unfairly treated because she was gay, afraid of him and his sexual advances, and afraid to tell other people that she was gay because of their potential reactions.
Graham was a credible witness. On the other hand, the board did not believe Cormier “at all.” When there was conflicting evidence, the evidence of Graham was accepted.
Normally, the board would order the offender to apologize, but it was not appropriate in this case since Cormier had seven years to apologize but failed to do so. Given Cormier’s denial of wrongdoing, it was clear that he believed he did not do anything inappropriate. Also, a forced apology would not advance the cause of human rights.
Graham was not the one who created the seven-year delay. It was the process of the investigation or referral to the board that caused the problem. As a result, the matter could proceed. It was good news that the Human Rights Commission was heading in a new direction, aiming to reduce the time it took to deal with the complaint. This matter took seven years to reach the Board of Inquiry stage, and there was no justifiable excuse for the inordinately long delay given that the facts of the case were straightforward. The chair stated, “It is refreshing to know the ridiculously long delays at the Commission are now in the past.”
Consequently, Graham was awarded the sum of $11,400 representing general damages for denigration of her dignity and self-respect, and for psychological and emotional harm. Furthermore, she was awarded pre-judgment interest at a rate of 2.5 percent for seven years.
What can we take from this case?
As can be seen from this case, adjudicators look to the credibility of the witnesses and sift through the entire body of evidence before rendering a decision. In rejecting Cormier’s evidence, Crawford stated:
“I found the Respondent’s evidence to be replete with contradictions, evasiveness, constantly forgetful … untruthful, nonchalant, uncaring and detached. He seemed to have had a plodding acquaintance with the truth.”
This is a case which can act as an example of how not to treat an employee. A manager, supervisor, owner of a business or co-worker cannot engage in sexualized comments or sexual harassment, or permit another employee to engage in such conduct. An employer may even be liable for harassment by a non-employee (such as a vendor or customer), depending on the circumstances.
In Nova Scotia, the term “sexual orientation” is listed in the Human Rights Act as a prohibited ground of discrimination but not defined; it includes homosexuality, bisexuality and heterosexuality. The Act makes it against the law to discriminate against someone or to harass them because of their sexual orientation or their same-sex partnership status. This means that a person cannot be treated unequally or subjected to harassment in employment because that person is gay, lesbian, heterosexual or bisexual. It is also illegal to discriminate because someone is in a same-sex relationship.
Harassment in this context is making a hurtful comment or action that is known or ought to be known to be unwelcome. Examples of situations that might be considered harassment include:
- Homophobic jokes or hints being made about a person’s sexual orientation or same-sex partnership status.
- The display of disrespectful signs, caricatures, cartoons or graffiti.
Harassment based on sexual orientation can consist of a single incident or several incidents over a period of time. Harassment can create a negative or hostile work environment which can interfere with an employee’s job performance and result in a person being refused a job, a promotion or a training opportunity. The employer must take action if it knows or ought to have known about inappropriate behaviour based on sexual orientation or same-sex partnership status.
Anti-harassment and anti-discrimination policies and training, including a complaint procedures are valuable tools in promoting equity and diversity within an organization. Adoption, implementation and promotion of these policies can help to limit potential harm, and reduce the organization’s liability in the event of a complaint. These policies should explicitly address discrimination based on all prohibited grounds under human rights legislation, including sexual orientation.
Employers also have a responsibility to maintain a workplace that is free of sexual harassment. Briefly stated, sexual harassment is an abuse of power based on sex/gender. It can involve a situation where the harasser offers work-related rewards to an employee as long as the employee complies with sexual demands. It can also involve repeated, unwelcome, harassing behaviour that creates an uncomfortable or hostile work environment. If employers allow sexual harassment to flourish in their workplace, they will pay a high price in poor employee morale, low productivity, and human rights complaints.
In Nova Scotia, the Human Rights Act states that “sexual harassment” means vexatious sexual conduct or discourse or comment that is known or ought reasonably to be known as unwelcome. A sexual solicitation or advance made to an individual by another individual where the other individual is in a position to confer a benefit on, or deny a benefit to, the individual to whom the solicitation or advance is made, where the individual who makes the solicitation or advance knows or ought reasonably to know that it is unwelcome. It can also be the reprisal or threat of reprisal against an individual for rejecting a sexual solicitation or advance.
Employers must make every reasonable effort to ensure that no employee is subjected to sexual harassment. One way to do that is to establish a clear sexual harassment prevention policy that is communicated to all employees and consistently enforced. That policy should:
- Define sexual harassment as stated in the law
- State that the employer will not tolerate sexual harassment and will take complaints seriously
- Set out clear procedures for filing sexual harassment complaints
- State that the employer will investigate fully any complaint that they receive
- State that wrongdoers will be disciplined up to the point of termination. Disciplinary measures should be proportional to the seriousness of the offense, and
- State that the employer will not tolerate retaliation against anyone who complains of harassment or who participates in an investigation.
In addition, employers should train employees, supervisors and managers to teach employees about what sexual harassment is, explain that employees have the right to a workplace free of sexual harassment, the policy, review their complaint procedure, and encourage employees to use it. Supervisors and managers should have a separate training session that educates them about sexual harassment and explains how to deal with complaints and results of an investigation.
Employers should monitor their workplace and talk to their employees about the work environment to ensure they and their supervisors/managers know what is going on. Keep the lines of communication open. In addition, if someone complains about sexual harassment, act immediately to investigate the complaint.
The employer should assure employees that it will protect the confidentiality of harassment complaints to the extent possible.
Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.
Excerpts: Introduction and Part I
[Footnotes omitted. They can be found in the original via the link above]
Since 9/11, there has been international movement away from criminal law toward less restrained alternatives, including immigration detention. As an antidote to current approaches, Professor Conor Gearty has recently revived the traditional call for “charge or release”. He argues that political violence must be treated as criminal in order to protect the liberty of the least powerful and to ensure that basic rules of justice are met, such as “open justice; a presumption of innocence; careful rules of evidence to prevent abuse; an independent system of sentencing, and much else besides”.
I agree with Professor Gearty that the criminal law is preferable to its less restrained alternatives. Nevertheless, the criminal law that Gearty wishes us to return to is not the same criminal law that eventually acknowledged the wrongful convictions of the Guildford Four and the Birmingham Six. In those cases, the convictions rested on whether the accused actually bombed civilians sitting in pubs. Today, the criminal law has moved so far in a preventive direction that charges are almost always laid long before any such event. Issues of guilt or innocence have become far more complex and dependent upon legislative definitions. Indeed,there is a danger that legislative overbreadth can define innocence out of existence.
It is particularly difficult for Canadians to understand that the criminal law may not be the perfect solution, as Canada has been exposed to the worst effects of using immigration law for counter-terrorism, while Canadian criminal law on terrorism is more restrained than its American or British counterparts. Of course, the criminal law is preferable to immigration law, which risks indeterminate detention, judicially sanctioned use of secret evidence, and Canada’s shameful “loaded weapon” of the threat of deportation to torture under the Suresh v Canada (Minister of Citizenship and Immigration) exception. Unrestrained celebration of the criminal law would, however, be a mistake. In this article I will argue that Professor Gearty and other defenders of the criminal law have overestimated and romanticized criminal law’s contemporary restraints.
Canadian criminal law is comparatively restrained. The Supreme Court of Canada has stressed the importance of requiring proof of terrorist purposes and has read broadly defined terrorism offences to exclude conduct that is not harmful or creates only a “negligible risk of harm”. The Court has reminded judges of the importance of sentencing discretion, including the potential relevance of rehabilitation when sentencing terrorists. It has also warned Canadian trial judges that they should stay terrorism trials if they are concerned that the accused cannot obtain a fair trial because of non-disclosure of information on national security confidentiality grounds. These are all important and praiseworthy safeguards.
Nevertheless, Canadians should not be complacent about how criminal law is actually used against suspected terrorists. The criminal law promises to respect the presumption of innocence, and the need to prove guilt beyond a reasonable doubt with public evidence was affirmed when two men were acquitted of the 1985 Air India bombings. Part I of this article will demonstrate, however, that those charged with terrorism offences face a reverse onus that requires them to establish that they should not be denied bail. Moreover, the preventive detention that characterizes security certificates under immigration law is not foreign to the criminal law, as the grounds for denying bail are almost as expansive as the grounds for determining whether a non-citizen is a threat to national security under security certificates. While Canada has not yet used preventive arrests and peace bonds for suspected terrorists, these legal instruments remind us that the criminal law, like immigration law, has preventive aspirations.
The criminal law also promises the accused effective remedies for unfair treatment. Part II of this article will demonstrate, however, that the accused in criminal terrorism cases in Canada have had no more success persuading judges to grant strong remedies like stays of proceedings than detainees in security certificate cases. Accused in three Canadian terrorism prosecutions have asked for stays of proceedings on the basis of entrapment, but all have had their claims rejected. Entrapment has similarly failed as a defence in terrorism prosecutions in the United States. Although the Canadian experience is less intense than the American experience, it still opens up the possibility of random virtue testing of those who associate and share extreme religious and political views with suspected terrorists. This Part will also examine the promise that the Supreme Court made in R v Ahmad that trial judges would stay proceedings before allowing a trial that was unfair because of non-disclosure due to national security confidentiality rulings by the Federal Court. It will be suggested that there is no reliable means to ensure that trial judges have the information they need to enforce fair trial rights through strong remedies.
Part III of this article will examine why it is unlikely that wrongful convictions will emerge from the terrorism cases of the 2000s and will relate this to problems of legislative overbreadth in defining terrorism offences. Although Canadian law makes some exemptions for freedom fighters and does not base terrorism convictions on objective fault, some Canadian terrorist offences are as broad as the American material support offences which allow convictions in the absence of a terrorist purpose.
The final promise that the criminal law makes is of proportionate punishment. This is an important restraint that is not made in immigration law, where long-term indeterminate detention is not considered a form of punishment. Sentencing has the ability to act as a final check on overbroad offences. This was demonstrated by the British Columbia Court of Appeal’s decision upholding a controversial six-month sentence for a man who collected three thousand dollars in support of the Tamil Tigers and was the first person convicted of financing terrorism. It will be seen in Part IV of this article, however, that this promise of proportionate punishment is fragile. The 2001 Anti-terrorism Act challenges proportionate punishment by providing for mandatory consecutive sentences for overlapping terrorism crimes. Moreover, little would stop the government from introducing mandatory minimum penalties for terrorism offences or simply extraditing people to countries with higher sentencing tariffs.
Some of the concerns raised in this article about the criminal law are based on abuses that may occur in the future but cannot be said with certainty to have yet occurred. The speculative nature of some of my concerns largely reflects Canada’s limited experience with terrorism prosecutions compared with the United States, the United Kingdom or even Australia. But that could change. The argument made in this article is nuanced because it does not dispute that the criminal law is more restrained than immigration law in its approach to terrorism. Indeed, the criminal law is preferable to immigration law because of its emphasis on fair trial rights and the presumption of innocence. The virtues of the criminal law revolve around fair trials, but the criminal law is less restrained when it comes to offence definition as well as the pre- and post-trial stages of the criminal process. This article attempts to redirect scholarship on terrorism toward these often-neglected parts of the criminal process. It also warns against complacency in preferring the criminal law solution to terrorism. In particular, it is dangerous to ignore Parliament’s ability to broadly define all crimes and, in doing so, erase the importance of innocence that Professor Gearty and other defenders of the criminal law rightly celebrate.
I. Criminal Law and the Promise of Being Punished for What You Have Done
Criminal law is often defended on a retributive basis: It punishes people for what they have done and for the choices they have made. Such accounts, however, neglect the criminal law’s ability to detain people for preventive reasons in the pretrial stage of the criminal process. Pretrial custody is particularly relevant to those charged with terrorism offences because they are presumed to be ineligible for bail. They can also face the additional sanctions of preventive arrest and peace bonds. These are non-trivial features of the criminal law that are too often ignored.
Bail or pretrial release can be denied on any one of three grounds. The primary ground is that pretrial detention is necessary to ensure the attendance of the accused at trial. The secondary ground relates to public danger, and the third ground relates to the need to maintain confidence in the administration of justice. Those accused of terrorism may be vulnerable to detention on all three grounds. Moreover, in the immediate aftermath of 9/11, Parliament enacted a reverse onus that requires anyone charged with a terrorism offence to justify why they should be granted bail. As Gary Trotter, Canada’s leading authority on bail, observed at the time of the enactment of these provisions: “If a reverse-onus provision is constitutional with respect to drug trafficking, a provision focused on terrorism is surely to be upheld. Whether a reverse-onus provision is necessary in this context (or any context, for that matter) is another question.” As McLachlin J (as she then was) observed in her dissent in R v Pearson, the reverse onus and presumption against bail will not be necessary for large-scale organized drug traffickers, but could be both determinative and disproportionate if applied to small-scale offenders. Similarly, while a reverse onus would hardly be necessary for an accused with links to a well-resourced international terrorist group, it could be decisive where an accused is alleged to have acted with only a few individuals and has flight and danger risks that can be controlled by appropriate release conditions.
In R v Morales, the Supreme Court unanimously upheld the practice of denying bail and pretrial release for public safety reasons. The Court focused on the wording of section 515(10)(b) of the Criminal Code and concluded that it was consistent with the Canadian Charter of Rights and Freedoms because:
Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous.
The Court in Morales accepted that it was appropriate to deny bail for reasons of preventive detention. Chief Justice Lamer reached this conclusion simply by asserting that a bail system that released a person who committed a crime while on bail would “not function properly”. The legitimacy of preventive detention was assumed because “one objective of the entire system of criminal justice is to stop criminal behaviour”.
The Court also candidly recognized that the preventive detention provision would result in a number of false positives where accused persons are kept in pretrial detention even though they would not commit an offence if released. Chief Justice Lamer accepted “that the art of predicting recidivism and future dangerousness is, at the very least, a somewhat inexact process”, but responded to this problem by asserting that “the bail system does not aim to make exact predictions about future dangerousness because such predictions are impossible to make”. In other words, the impossibility of exact predictions excused the Court from attempting to measure or improve the accuracy of the predictions that are made.
In the post-9/11, but non-terrorism, case of R v Hall, the Supreme Court upheld denying bail to maintain confidence in the administration of justice, but struck down an open-ended provision that authorized denying bail “on any just cause”. Chief Justice McLachlin concluded that the ground for denying bail on the basis of public confidence was not vague or overbroad because it instructed judges to focus on the gravity and circumstances of the offence, the potential lengthy term of imprisonment faced by the accused and the apparent strength of the prosecution’s case. Justice Iacobucci and three others dissented, arguing that independent courts should resist “irrational public fears” and “outrage” about “a highly publicized serious crime”.
Although Parliament enacted the public confidence provision in 1997, it almost seems to have been written with terrorism in mind, and it has played an important role in post-9/11 terrorism cases. For example, it was used to detain Saad Gaya of the Toronto 18 plotters, even though the judge was convinced that he had discharged his onus on the two other grounds of bail because his passport had expired and he could be subject to electronic monitoring. Justice Hill concluded that pretrial release of Gaya, who had been “demonstrably immersed in a viable plan capable of wreaking catastrophic consequences within Canadian society. . . would significantly diminish the public’s confidence in the administration of justice”.
Charter challenges, such as those in Morales and Hall, often focus on the legal wording of provisions that authorize preventive detention and overlook how these provisions are actually used and against whom they are used. Concerns about systemic discrimination are relevant at the bail stage in post-9/11 terrorism cases as the overwhelming majority of the accused have been Muslim men, and by definition, all those accused of terrorism will have controversial political or religious motives. In both Morales and Hall, the Court failed to examine the 1991 findings of the Manitoba Aboriginal Justice Inquiry that Aboriginal people in Manitoba were more likely to be denied bail and held for longer periods of time. The commission concluded that “Aboriginal detainees had a 21% chance of being granted bail while non-Aboriginal detainees had a 56% chance”. The Court in Hall did not examine the findings of a subsequent inquiry that found African-Canadian accused were disproportionately denied bail in Ontario. In addition, bail decisions and reasoning will often not be available for public scrutiny until after the trial owing to extensive pretrial publication bans. Bail decisions may also be influenced by increasing risk aversion of judges making bail decisions. This risk aversion is demonstrated by the fact that over half of those imprisoned in provincial correctional centres are people who are formally presumed innocent and awaiting trial.
It is noteworthy that not all those accused of terrorism in Canada have been denied bail. Although many of these bail decisions are not publicly available, they do suggest that some judges are capable of resisting public pressure for pretrial detention. However, there are some published examples of decisions denying bail where the accused went on to receive an acquittal or a stay of proceedings. This false positive issue is particularly pressing in the terrorism context given the complexity of terrorism trials and the lengthy period between arrest and trial.
(i) The Stanikzy Case
Matin Stanikzy was arrested and taken into custody on November 17, 2010. Along with unrelated domestic violence charges, Stanikzy was charged with a number of terrorism offences: counselling the commission of an offence under section 464, uttering threats under section 264.1 and attempting to possess explosives under section 81(1)(d). He was denied bail, and bail reviews were also twice rejected. He was held in detention for almost a year before being acquitted on November 4, 2011. It is worth noting that Stanikzy’s pretrial delay was relatively short for terrorism trials because the evidence against him did not originate from intelligence agencies.
At a bail review, Stanikzy’s detention was denied on all three grounds. There were concerns that he would not attend trial because he had recently arrived in Canada from Afghanistan. There were also concerns about public safety concerning both the threats he allegedly made to kill thirty to one hundred people at a Canadian Forces Base and the threats he allegedly made against his wife. There were also concerns about the public confidence in the administration of justice, with the reviewing judge stressing that the
Crown’s evidence is strong. It manifests from the defendant’s own words. The gravity of the offence is very serious. It falls into the category of the most serious since it includes the threat of indiscriminate wanton killing of innocent Canadians with the intent to undermine the very fabric of our society, rule of law, and our constitutional democracy. . . . Because of the seriousness of the offence, upon conviction, the defendant would potentially face a very long prison term.
Justice Ray rejected the accused’s request that he be allowed to live away from his estranged wife, under house arrest with sureties. This suggests that the primary reason for denying bail was the terrorism charges as opposed to those of assaulting and uttering threats against his estranged wife.
(ii) The Khadr Case
The Abdullah Khadr case is another example of someone held in lengthy pretrial custody without ever being convicted. He was indicted for material support of terrorism in the US and was subject to four and a half years of detention before proceedings to extradite him were stayed. The judge on the first bail review held that the reverse onus that applied to those charged with terrorism offences in Canada would also apply to bail sought in relation to extradition proceedings. The judges at both bail reviews found Khadr had not discharged the onus of demonstrating that he was not a flight risk given his family’s notorious history of involvement in terrorism and the fact that he was apprehended in Pakistan. Justice Molloy also agreed with the prosecutor’s submission that “this is a tertiary ground case, if ever there was one”. She elaborated:
[A] reasonable person apprised of all of the circumstances in this case would be disturbed to learn that Mr. Khadr had been released into the community under the supervision of his grandmother pending his extradition hearing. This case has attracted considerable public attention because of the nature of the allegations against Mr. Khadr and the strength of the evidence connecting him to Al Qaeda terrorists. This is a rare and extraordinary case. If Mr. Khadr were released in these circumstances and then disappeared from the jurisdiction before his extradition hearing, the consequences could be horrific and the Canadian justice system would decidedly be brought into disrepute.
Justice Molloy cited evidence that during a television interview in February 2004, Abdullah Khadr had said “he dreams himself of becoming a martyr for Islam, expressed his admiration for the terrorists who crashed into the World Trade Buildings on September 11, 2001 and referred to Osama Bin Laden as a ‘saint’”.
In 2008, Khadr sought bail review again and relied in part on the Supreme Court’s 2007 decision in Charkaoui. The decision expressed approval for regular bail reviews for security certificate detainees and accepted that the detainee’s threat to national security should decrease with time, while the government’s need to produce evidence of such danger should increase with time. However, Trotter J held that the Court’s decision in Charkaoui was specific to immigration security certificates and found that Khadr’s risk of flight was still present, stating: “[T]he question of whether delay has severed ties is highly fact-specific”. Justice Trotter also concluded that bail should be denied in order to maintain public confidence in the administration of justice. In 2010, Khadr was released when extradition proceedings against him were stayed because American officials abused process when they offered a bounty for his capture and detention in Pakistan.
My point is not to argue that either Stanikzy or Khadr should have been granted bail or that the decisions were unreasonable or wrong. It is only to suggest that the bail issue may be as problematic under criminal law as it is under immigration law. A person charged with a terrorism offence has to establish cause for being granted bail and such a reverse onus is likely consistent with the Charter. The grounds for denying bail are broad and the concept of denying bail to maintain public confidence is vague and somewhat subjective. Information that does not satisfy the ordinary rules of evidence can be used in bail hearings. In the terrorism context, the accused’s expressive and associational activities may, as they did in the Abdullah Khadr case, provide a basis for denying bail. Accused who come from or have been in foreign countries may likely be denied bail. There may be a presumption of danger and the judge may also conclude that public confidence in highly publicized terrorism cases will be adversely affected by granting bail.
Bail practices should not be ignored when realistically assessing use of the criminal law as a response to terrorism. Those denied bail in the Toronto 18 terrorism prosecutions were subject to prolonged detention in administrative segregation, and for the most part, had little success challenging their conditions of confinement. The difference between bail in immigration and criminal terrorism cases is more a matter of degree than a difference of kind. Although the criminal law is rhetorically associated with the presumption of innocence, those accused of terrorism bear the onus of justifying their release before trial. While presumed to be innocent, they may spend years in prison awaiting trial.
B. Preventive Arrests and Peace Bonds
Unlike in the United Kingdom, where preventive arrests have been used extensively, Canada’s preventive arrest provisions have had no reported use. However, there has been use of preventative peace bonds in Canada. Some of the Toronto 18 agreed to preventive peace bonds as a condition of having charges dropped. Ali Mohamed Dirie, of the Toronto 18, was subject to a peace bond after his sentence expired in October 2011. The peace bond prohibited his possession of a passport, but Dirie was able to leave Canada and died fighting in Syria.
It is difficult to know why Canadian authorities have not used the preventive arrest powers and have used peace bonds sparingly. Authorities may have concluded that broad new terrorism offences, as well as existing inchoate offences, are sufficient. Furthermore, a terrorism suspect can be detained much longer if he is charged with an offence and is unable to show cause for bail than if he is subject to a preventive arrest or peace bond. Bail denial will last much longer than the seventy-two hours maximum for preventive arrest or even the one-year period for a peace bond. These provisions will briefly be examined in order to advance the theme that it is a mistake to underestimate the restraints of the criminal law at the pretrial stage and think that it only responds to past acts.
Since 2001, the Criminal Code has allowed judges to impose peace bonds or recognizances to keep the peace and comply with reasonable conditions when there are reasonable grounds to fear that a person would commit a terrorism offence without such orders. The Ontario Court of Appeal has upheld similar non-terrorism provisions from Charter challenge, stressing that peace bonds were included in the original 1892 Criminal Code and had their origins in a 1361 British statute.
The language of the peace bond provisions is vague and archaic in its reference to the oxymoronic concept of “reasonable fears”. Nevertheless, the Ontario Court of Appeal salvaged the provision by stressing that a judge must be satisfied on the basis of evidence that there were reasonable grounds for the fear. The Court of Appeal concluded that peace bonds were a proportionate restriction on liberty. As is common in proportionality analyses, the existence of a potentially more draconian response helped justify the existing response. Here, the court stressed that a peace bond was less drastic than imprisoning the accused.
Peace bond restrictions on terrorist suspects could, however, be as intrusive as some of those imposed in the immigration security certificate cases. Restrictive conditions caused one security certificate detainee to seek full imprisonment rather than impose the hardships caused by his conditions on his family. Similar to some security certificate cases, recent amendments to the Criminal Code’s peace bond provisions provide that reasonable conditions could include prohibitions on the use of the internet, use of electronic monitoring, curfews and geographic restrictions. The difference between preventive detention in the criminal law and immigration law is a matter of degree.
Preventive arrests were also introduced in the 2001 Anti-terrorism Act and have been reintroduced as of 2013, after they were allowed to sunset. They generally require approval from both the Attorney General and a judge, as well as reasonable grounds to believe that a terrorist activity will be carried out. However, when it comes to the individuals subject to the preventative arrest, police are only required to show a reasonable suspicion that their recognizance is necessary to prevent the terrorist activity from being carried out. Although the actual preventive arrest period is capped at seventy-two hours (as opposed to fourteen days in the UK), a person subject to a preventive arrest can be required to enter into a recognizance for a one-year period.
If the past is any indication, the preventive arrest provisions are unlikely to be used in the future. Although the difference between the reasonable grounds and reasonable suspicion standards looms large in constitutional jurisprudence, it is likely smaller in practice. In most cases it would be far more advantageous to the state to lay a criminal charge under one of the broad terrorism offences and argue that the accused has not shown cause for bail, as opposed to employing the novel preventive arrest powers. The “ordinary criminal law”, in the form of bail denial, can result in lengthy preventive detention of the accused without having to resort to the novel and controversial devices of peace bonds and preventive arrests. It is, therefore, a mistake to think that the criminal law will only detain people in response to proven wrongdoing. As we have seen, an accused may be held in pretrial detention for years, only to be acquitted or have proceedings stayed.
As I put together another Sinch Online Legal Services Conference to be held in May in Sydney, I reflect on how much things have changed with respect to IT and Law in just the last 12 months. Similiarly, a visit to an Apple Store also has an affect on me, but there is uncertainty as to which is greater: amazement at what is possible, and affordable, today; or the fact that there was so much opposition to the “bleedingly obvious” by so many, for so long.
The feeling that one lives in the age of the most rapid technological development is not new. In an article entitled, “Major vendors make new-product announcements”, Jon Klemens wrote in THE NATIONAL LAW JOURNAL dated 27 July 1987 at pp17-20, that:
“Once again, the past year has seen dramatic developments for the law firm automation market. Many of the announcements are for new or upgraded products from established vendors that can be integrated with their existing systems. Each year the author hopes (naively) that product announcements and company developments will remain stable, but each year they accelerate. This year has been no exception.”
The article then lists highlights of the past year and includes a vendor by vendor review of major developments:
- Texas Instruments is vying to become a major supplier for AI applications to law firms. In conjunction with a law firm client, they developed a prohibited transaction tax planning application under artificial intelligence.
- Manac’s new UniLaw module is unique in the market and addresses administrative and attorney workstations applications. Modules developed are for file opening, attorney inquiry and data entry, case management and spreadsheet/administrative applications.
- Delivery of Wang’s word processing enhancements WP Plus has been marked by considerable performance problems. Recent reports are that the performance of WP Plus has improved markedly for most functions.
- Additional hardware announcements by Wang are directed at addressing criticism for poor multi-vendor support and personal computer connectivity.”
Still in 1987, the article continues…
“A major development in the past year has been the advent of personal computers, local area networks and data communication networks in law firms. Local area networks and data communications should be primary sources of announcements and products in the upcoming year.”
Change some vendor names, and personal computers to smartphones, and local area networks to cloud computing, and it could have been written last week. What has made 2014 really amazing is the cycle of:
- Changes in attitude by society which includes a laggard client-led legal profession, fueling
- A thirst for change and innovation with IT.
It is close to becoming the beginnings of a revolution, and that will involve casualties among the establishment. Decades ago, Wang’s efforts might have been too little, too late, as it tried to milk its client-base for products well past their use-by date. Wang was not alone as a dominant player which has since faded from view. Just as networked PCs hastened the downfall of Wang, once key players in the PC market such as Dell, Toshiba and IBM have become less relevant to the changing needs of their customers.
This phenomena of becoming irrelevant is not limited to IT as law firms themselves are also vulnerable as too many desperately try to hang onto their introspective/self-centred ways.
Cloud based services lower overheads, but more importantly, enable the provision of enhanced services via a collaborative platform. Online collaboration efforts can achieve better client outcomes than that of an individual effort as studies in the legal world have shown that joint authorship is superior to sole authorship. So not only are overheads reduced, but the results should be better.
Add to that collaborative platform, domain-specific tools that have been developed to enhance the capability of the legal service provider. Without such tools, even very capable lawyers, will start to appear second rate, or at the very least, limited.
Interestingly, real collaboration between lawyers with “ensmarting” software is finally taking off after a number of false starts. In the May 1989 STUDENT LAWYER at p19, L Miller noted that:
“Artificial intelligence (AI) is incapable of solving the difficult problems that confront the Supreme Court. But most legal problems—90% of Social Security and personal injury claims and wills—are very routine and can be solved mechanically.”
“Law, by its very nature, will always need to be tailored to individual clients and their problems. While predictive systems may be able to tell a lawyer statistically what their chances of winning in court are, no individual case ever obeys statistics. However, in the future, when thinking computers are used to settle complex litigation issues and to initially screen cases, it may be an ethical violation if you have available to you a computer tool which can achieve this and you fail to make use of it.”
Ethics issues are one thing, but more likely to affect you are clients’ responses to firms that empower themselves with IT. Mark Harris of pioneering alternative law firm Axiom describes his firm as a non-traditional technology-led provider of legal services. That approach has been paying off for them for some time. The firm recently signed a $73 million contract with a big global bank to process the bank’s contracts, and track non-standard clauses. It could be a turning point in the assault on OldLaw by alternative service providers.
Meanwhile, expect more tech empowered legal startups, in part because the brake on recruitment and training of law graduates by BigLaw will create an alternative flow of micro-competitors acting like digital termites on the traditional staffing and fees pyramids. (Ironically, these competitors could be increasingly empowered by a born-again IBM with its Watson AI platform.)
The advantage smart systems provide now is that they overcome the old problem of the Law and client needs changing so rapidly, that the developers could not keep up with their maintenance demands. AI systems today are very fast learners, and their “current awareness” sources are more easily, and therefore more quickly, accessed and digested. The weak link in these new working partnerships, will increasingly be the knowledge of the lawyer.
Both Canadian law and American law, through their uniform e-transactions statutes, give a wide definition to ‘electronic signature’ – being essentially any information in electronic form in or associated with a document with an intention to sign the document.
The ‘intention to sign’ requirement aimed to ensure that the same mental element was required for an e-signature as for a handwritten signature.
A recent California Court of Appeal case, J.B.B. Investment Partners v Fair, held that a person who typed his name at the bottom of an email saying ‘ I agree’ to settlement agreement sent to him by email, did NOT intend to sign the agreement and was not bound by it.
Does this sound right to you? The Court said ‘a typed name at the end of an email is not, by itself, a signature under case law.” I do not know the case law referred to. Is there any Canadian case law that says that?
I am aware of Druet v Girouard, where the NB CA speculated that some kinds of document are so important that they need particularly secure e-signatures. (para 30) I know of no authority for that statement, and I am far from sure it’s sound in principle. (In that case, the Court also held that the parties had not intended to be bound by the emails – or at least the purported vendor had not – but that was a conclusion from the text, not from the form or method of the signature.)
What do you think? Should the form of the signature govern the intention in law? So far as I know, it does not for handwritten signatures.
Let’s be careful out there. We have all received fraudulent emails or phone calls. To reduce the chances of being a victim, here is a Global News article on the Top 10 scams to watch out for this Fraud Prevention Month, and Tips to Protect Yourself from Fraud from the Competition Bureau.
MasterCard offers the following tips for credit card security:
Today 88% of face-to-face transactions in Canada are Chip & PIN or contactless, and thanks to the layers of security built into the MasterCard network, Chip & PIN and contactless are safe and fraud rates for Canadian face-to-face transactions have sharply declined.
While consumers should feel safe using their card all the time, they can further protect themselves by remaining diligent and taking precautions. Here are a few simple tips:
1> Don’t underestimate the strength of strong passwords. Make them complex with upper case, numbers and symbols and change them from time to time. Use different passwords for different purposes and ensure you have a means to recover passwords, where applicable, such as a separate registered email address.
2> Shop with confidence online and visit reliable websites. eCommerce makes shopping more convenient than ever, but consumers should do their homework. Look for the SecureCode symbol from MasterCard at checkout, which adds a layer of security and ensures you are who you say you are online.
3> Be skeptical of unsolicited phone calls, email, text messages, or social media messages if they request credit card data or personal information such as passwords, date of birth, social insurance number etc.
4> Do not click hastily on links contained within emails or on any email attachments sent by an unknown or un-validated source no matter how harmless or familiar the title appears. Instead delete the message unless you can confirm the sender.
5> If you followed an email link to a website (or a text message to a voice recording system) and provided card data that later seemed suspicious, contact your card issuer immediately so your account can be protected
6> Always use Chip & PIN, and tap to pay where applicable. You should be the only one with knowledge of your PIN number, and shield it from sight at checkout.
7> Keep an eye on your card statement. Sign up for online/e-statements and check regularly to make sure an unauthorized purchase was not processed. If you notice something, call your bank immediately. The number is always on the back of your credit card.
8> Be informed; know the facts about the layers of security built into your card’s payment network.