All posts filed under: Law

Divorce and the ‘Silver Bullet’

Divorce is almost always an ugly and painful experience. But for parents with children, there are additional heart-rending realities to confront. No loving parent wants to be absent for their kids’ many firsts and bests—the first tooth falling out, the first goal scored, and so on. Countless goodnight kisses will be missed, and at crisis moments when they need you most (and for the many moments when they don’t need anything more than knowing you’re close by), one parent will not be there to provide advice, compassion, and comfort. Also hanging in the balance are hundreds of thousands of dollars of shelter and vehicles and toys and books and worthless junk priceless only to you. These stakes drive people to lie. Lies are at the messy heart of divorce, almost by definition. Sometimes the lies are so large and consequential that lawyers and judges are pressed into service to officiate a death match of he-said-she-said. But there is a lie among lies that practically guarantees child custody, optimal parenting time, the money you’re sure you …

Paul Manafort and Systemic Bias

As we navigate the world, we attempt to understand the structures that surround us. And often, because we struggle with complexity and uncertainty, our putative knowledge comes packaged in neat and tidy descriptions of societal phenomena, invoked with a high degree of epistemic confidence. Rather than indulging explanations rife with qualifiers and disclaimers—for example, “System X is Y in areas C, B and Q but not in D and F”—we defer to absolute, uncompromising narratives that allow for the staking of moral high ground. In order to sustain these narratives—and, by extension, our moral certainty—singular cases are adduced as definitive proof of system-wide descriptions, inapt analogies are drawn, and relevant/countervailing facts are elided. In discussions about racism in the U.S. criminal justice system, the dynamics are no different. The 47-month sentence received by Paul Manafort, former campaign chairman for President Trump, has provided fodder for bias theorists. According to their account, the U.S. criminal justice system has two-tiers: one for those with white collars and white skin and another for those with blue collars (or …

How Social Justice Ideologues Hijacked a Legal Regulator

I have been a Toronto-based litigation lawyer for 30 years. My politics are progressive and strongly egalitarian. About two decades ago, I started my own law firm, specifically so that I could serve disadvantaged individuals and communities. I have sued governments and large corporations, often on a pro bono basis. I have acted for Indigenous clients—including the family of Dudley George, an Ojibway man who was shot and killed by police in 1995 at Ipperwash Provincial Park in Ontario. I have represented a regional Cree First Nations tribal council on the James Bay coast for more than 25 years, and for eight years a group of indigenous Mayan women in an ongoing claim against a Canadian international mining company for alleged rape and murder at its facility in Guatemala. I act in a class-action for almost a thousand people who claim to have been wrongfully mass-arrested by Toronto Police at the 2010 G20 Summit. I am a recipient of the Diane Martin Medal For Social Justice Through Law, the Human Rights Award from the Ontario …

Upholding the Jihadist’s Veto

In his provocative essay The Age of Reason, Thomas Paine didn’t mince words on Christianity. ”What is it the Bible teaches us?” he asked, and answered: ”rapine, cruelty and murder. What is it the New Testament teaches us?—to believe that the Almighty committed debauchery with a woman engaged to be married; and the belief of this debauchery is called faith.” In 1819, the English deist Richard Carlile was convicted of blasphemy and sentenced to two years in prison for selling The Age of Reason. Today Tom Paine is celebrated as one of the Enlightenment’s foremost champions of human rights. But even 200 years after his conviction Carlile might not have been vindicated had he been able to take his case to the European Court of Human Rights. In a recent ruling, the Court upheld the conviction of an Austrian citizen for an ”abusive attack on the Prophet of Islam which could stir up prejudice and threaten religious peace” for denouncing the Prophet Muhammad as a “pedophile.” The Court insisted that the comments could arouse “justified indignation” in religious believers …

Previously Unrecognized Rights: Climate Change Lawsuits and the Rule of Law

Citizens around the world are asking courts to override the climate-related policy choices of democratically elected legislatures and mandate the substance of future legislation. In the name of previously unrecognized rights, plaintiffs in hundreds of cases are asserting that judges have the authority to command action by their supposedly co-equal legislative and executive branches of government. Whatever the merits of the plaintiffs’ policy objectives, their campaign to circumvent the political branches poses a serious threat to the rule law and the constitutional principle of separation of powers. Since the beginning of the modern environmental movement in the 1970s, environmental advocacy groups in the United States have made regular use of the courts to advance their interests. Generally these environmental lawsuits have claimed government failure to comply with the procedural requirements of the National Environmental Policy Act, other federal legislation addressing specific environmental problems like the Clear Air and Water Acts and the Endangered Species Act, the various public lands management laws, and the Administrative Procedures Act. The result is almost always delay, sometimes leading to …

Privilege and Double Standards at the Kavanaugh Hearings

After weeks of controversy, Brett Kavanaugh has been confirmed as a justice on the United States Supreme Court despite allegations of sexual assault against him. These allegations deeply divided an already fractured country. Americans watched both Kavanaugh and his accuser, Christine Blasey Ford, testify before the Senate, and they attempted to ascertain which was telling the truth in the absence of any evidence to corroborate either of their stories of what happened more than three decades ago. One would hope that senators could have worked together to examine the available evidence in a manner that showed respect for all parties involved. In reality, this was far from what happened, as senators from both parties appeared more interested in advancing their own political goals by any means necessary than in making their best effort to discover the truth. Perhaps most outlandish was President Trump’s decision to mockingly imitate Ford’s testimony during a campaign rally, which ought to be condemned by anyone who believes that alleged victims of sexual assault deserve to be treated with respect. Also …

When “Believe the Victim” Backfires

A few years ago the University of Montana, where I was teaching, found itself at the epicenter of a national crisis of campus rape. Even as the U. S. Department of Education directed colleges and universities to lower the level of evidence necessary for conviction in sexual assault cases, the Department of Justice censured the lax investigation and prosecution of such cases at UM in particular, in effect making UM an example to the nation. But not only was UM under the eyes of federal monitors. DOJ made it known that it would also be looking closely into the handling of allegations of rape in the city of Missoula, of which UM is part. In this charged atmosphere, and with the national press looking on as well, two members of the UM football team—one of them none other than the quarterback and team captain—were charged with sexual intercourse without consent. The respective incidents took place two years apart. In the first case, where the crime was reported to the police fifteen months after it occurred, …

On the Fallibility of Memory and the Importance of Evidence

As we await the vote on Brett Kavanaugh’s confirmation and the results of the ongoing FBI investigation, America is left to ruminate a little longer on the testimonies he and Christine Blasey Ford gave before the U.S. Senate Judiciary Committee. Both were highly emotional and heartfelt. Ford sounded like someone who had experienced a trauma, and Kavanaugh sounded like a man falsely accused. Both left you wanting to believe the person on the stand, even if neither’s story remained completely consistent. But who should we believe? Shall we “believe the victim” or assume that the accused is “innocent until proven guilty?” A closer look at the science and nature of human memory, the historical trends on the accuracy of eyewitness testimony, and the prevalence of wrongful convictions demonstrates that the most reasonable assumption is to believe both. The Constructive Nature of Episodic Memory Sometime in the early 1980s, Sigmund Freud’s theories of the subconscious and the psychosexual stages of childhood experienced a resurgence in popular culture. However, there was one important difference: his descriptions were …

What Is the Law?

Recent debates about the looming appointment of Brett Kavanaugh to the US Supreme Court have once again indicated the depth of disagreement amongst American jurists and politicians about what legal officials should do and which legal interpretations are valid. Should a state have an interventionist Court or a restrained one? Is an interventionist Court one that takes a pragmatic approach to the law, or one that stresses paying attention to the so called ‘original meaning’ of legal texts? The intensity of these debates reflects the power granted to many legal officials in the American constitutional order. At different times, judges have handed down enormously consequential decisions that impact the way civil rights are understood, determine whether or not abortion will be legal and accessible, help us to understand the structure of American democracy, and so on. Americans are not alone in deliberating on these hot button issues—criticism of the power of legal officials, and discussion about what constitutes legitimate legal interpretation, also rage in Canada and on the European continent. These debates belie deeper and more complex questions …

Inducing People’s Employers to Fire Them Should Be a Civil Wrong

If you aren’t from Australia or New Zealand you may be tempted to think of Anzac (Australian and New Zealand Army Corps) Day as simply a variation of Veteran’s Day or Remembrance Day—but for many Aussies (and Kiwis), it’s a little bit like Veteran’s Day combined with the Fourth of July or St. Patrick’s Day. It is a deeply patriotic holiday that many regard as a semi-sacred, particularly because we celebrate it on April 25 to mark the anniversary of the day in 1915 when Anzacs arrived on the shores of Gallipoli, Turkey to fight in a battle that would result in over ten thousand soldiers losing their lives. Like it or not, Anzac Day has become patriotic mythology. To mark Anzac Day in 2015, Special Broadcasting Service (SBS) reporter Scott McIntyre took to Twitter and wrote: “Remembering the summary execution, widespread rape and theft committed by these ‘brave’ Anzacs in Egypt, Palestine and Japan.” To make matters worse, he also asked “if the poorly-read, largely white, nationalist drinkers and gamblers pause today to consider the horror …