Category Archives: Law

Dark Water: Real Monsters

 

 

Dark Water is a really good film. It is a monster/horror film, but not but not the kind you might expect. This is a real life horror show with real life monsters,.

The opening scene is dramatic, spooky and menacing. The scene is idyllic at the outset, like so many scenes in so many horror films. In 1975 a group of cavorting teenagers trespass onto property for a classic midnight swim. It’s obviously loads of fun. I have done exactly that type of thing. But just as in any self-respecting horror film you know from the menacing music that something is wrong. Danger lurks and teenagers dressed only in skimpy swimsuits are defenceless before the danger. There must be a monster lurking in that dark water. And there is. But it is not the typical horror film. It is much worse than that.

The water is oily—slimy. This can’t be good. Suddenly the strong deep male voice of authority rousts them up. The kids are forced to leave. And they do. After they leave a small boat softly glides across the pond spraying something over the slick and shiny surface of the water. The boat is marked “containment.”

In time we learn the monster is not supernatural. It is real. It is indeed profoundly menacing and dangerous. It is a chemical monster the result of corporate malfeasance of a high order.

The film was based on an article in the New York Times Magazine by Nathaniel Rich in 2016 titled, The Lawyer who Became DuPont’s Worst Nightmare.” That lawyer was Rob Bilott (Mark Ruffalo). He was a lawyer that typically acted for chemical corporations. He was an environmental lawyer—for the wrong side!

Bilott was persuaded to go to the other side by a friend of the family, a West Virginia dairy farmer Wilbur Tennant (Bill Camp), who was profoundly angered by what happened to his cows. His cows were strangely dying in horrible ways on land he farmed. He was suspicious. Something was wrong. It was a mystery and Bilott was intrigued. Like a relentless detective  on the trail of truth. And the truth is ugly and leads to an astonishingly long drawn out legal battle against a corporate giant and weak government regulators.

Tennant was unable to get help from anyone before Bilott. No veterinary or lawyer would talk to him. DuPont owned the town and the town was grateful for the ownership. People did not want to rock the boat. It got good paying jobs and security. But did it get something else too? Something less benign?

The corporate giant at the heart of the case, DuPont, never admitted liability or wrongdoing, but it did pay hundreds of millions of dollars for harm caused to animals, property, and people as a result of their chemicals ending up in a local stream and drinking water. The chemical central to the case is called PFOA short for perfluorooctanoic acid. It is a chemical that was entirely unregulated.

In the lawsuit Bilott asked for and got an order requiring DuPont to provide all relevant documents to Bilott. But he got more than he bargained for—110,00 pages of documents! He was literally swamped with paper. It took him months to just sift through the papers. Information in those papers did not come out easily.

It took 16 years for the case to wind through the courts, but of course all the resulting lawsuits have not been completed. Far from it in fact. Many of the parties involved died before judgment of the court was delivered, including Wilbur Tennant.

Yet with enormous—no heroic—work Bilott found a story. Sometimes, I am proud to say, lawyers are heroes. This was one of those times. According to Rich’s articles this was the story:

‘‘I started seeing a story,’’ Bilott said. ‘‘I may have been the first one to actually go through them all. It became apparent what was going on: They had known for a long time that this stuff was bad.’’

DuPont used TFOA in its wonder product Teflon. According to Rich, it was the source of about $1 billion in annual profits for DuPont. Worth defending with vigour. And that is what DuPont with the aid of their team of expensive lawyers did. They defended in the American style—with overwhelming force as the Powell doctrine demands.

PFOA, although unregulated at the time had some very interesting properties. According to Rich,

“PFOA’s peculiar chemical structure made it uncannily resistant to degradation. It also bound to plasma proteins in the blood, circulating through each organ in the body.”

 For decades DuPont had been dumping it into their own landfill near Tennant’s property and that in turn drained into a local creek. As Rich explained:

 “By 1990, DuPont had dumped 7,100 tons of PFOA sludge into Dry Run Landfill. DuPont’s scientists understood that the landfill drained into the Tennants’ remaining property, and they tested the water in Dry Run Creek. It contained an extraordinarily high concentration of PFOA.”

The court ordered an independent scientific analysis of Tennant’s claims that the harm was caused by DuPont’s chemicals and that report blamed poor animal husbandry on the part of Tennant instead of the chemicals. But DuPont had not been entirely forthcoming in disclosing information for the scientific panel to make its determination. The fight should have been over here. But Bilott was as relentless as a bulldog with its teeth in a human leg.

Bilott kept digging and as he kept digging he kept finding interesting stuff. Watch the movie or read the article to find the details and they are fascinating. Well worth the read or view. And he discovered a lot of people that were harmed. Horrendous birth defects and worse. An interesting little scene showed an adult person with horrible birth defects who had been shown in a photograph as a young baby in the film. The actual adult man, played himself as a happy-go-lucky gas jockey.

Here is Bilott’s side of the story according to Rich:

‘‘I was irritated,’’ he says.

DuPont was nothing like the corporations he had represented at Taft in the Superfund cases. ‘‘This was a completely different scenario. DuPont had for decades been actively trying to conceal their actions. They knew this stuff was harmful, and they put it in the water anyway. These were bad facts.’’ He had seen what the PFOA-tainted drinking water had done to cattle. What was it doing to the tens of thousands of people in the areas around Parkersburg who drank it daily from their taps? What did the insides of their heads look like? Were their internal organs green?

Tennant’s suit was eventually finalized after 16 years, but this film actually raises a much bigger question. Or even two. I will talk about that in my next blog.

Delgamuukw v. British Columbia

 

Since the Constitution Act of Canada was enacted in 1982 a number of important cases have gone all the way to the Supreme Court on the issue of Indigenous land claims and rights. Some of those cases bear heavily on the issues that Wet’suwet’en First Nation faces today.

Interestingly, one of those cases was Delgamuukw v. British Columbia which also included the Wet’suwet’en and their neighbours the Gitxsan or Gitksan. I have already commented on the Gitksan people earlier in this blog. See http://themeanderer.ca/gitxsan

In fact as I mentioned in that earlier post it was seeing them at  the Gitksan village in BC many years ago that first got me interested in Indigenous issues. Today, the Gitksan are also supporting their neighbours the Wet’suwet’en. It really is a small world.

In the case of Delgamuukw v. British Columbia the Supreme Court recognized traditional governance forms of First Nations including the hereditary chief and clan system on traditional territories. That has become an important issue in the current Wet’suwet’en melee because of the disagreement between 5 of the Chiefs and Councils who have signed Benefits Agreements with the CoastalGasLink and the Hereditary Chiefs who are opposed to their pipeline. The Hereditary Chiefs are arguing in this current case that the Elected Band Councils and their Chiefs are more like municipal councils with jurisdiction only over reserve lands. The Court noted this in the injunction case but did not say whether or not it agreed with this assertion. Whether that claim is right or not is one of the many uncertainties in the current case.

In Delgamuukw v. British Columbia the Supreme Court upset the law as it was until that time. The trial judge had rejected the claim by the Wet’suwet’en and Gitksan that they had an aboriginal right  over traditional  lands in northern B.C. that had never been ceded to the Crown because it could not provide satisfactory evidence to support their claims. The Supreme Court overturned that decision, pointing out that the court should have paid more attention to the oral tradition of the Wet’suwet’en and Gitksan people. In order to do that the Supreme Court acknowledged that the ordinary laws of evidence must be adapted to place oral history on an equal footing with other types of evidence, instead of being classed as hearsay as courts had previously done. This made a huge difference in cases of Indigenous rights because invariably they depended on oral history.

In the Delgamuukw case the court also said, in accordance with the Royal Proclamation of 1763, that aboriginal title to land can only be surrendered to the Crown. Added to that, such land is communally held, not privately as other land. This is also a controversial issue I will comment on later in this blog. To prove that it has Aboriginal title a First Nation must prove by oral history, or otherwise, that the land was exclusively occupied prior to sovereignty.

This case considered the nature of Aboriginal title.  Aboriginal title is a right in land that allows a group to use the land in almost any way deemed fit.  The use need not be an Aboriginal right per se(e.g. the right to hunt).  Title land can be used in many ways, but not in a way that is irreconcilable with the original connection with the land (e.g. cannot strip mine a land that was used as a hunting ground).  Aboriginal title can only be surrendered to the Crown.  In other words, only the federal government can extinguish aboriginal title, not provinces. in the current case the Wet’suwet’en assert that they were never conquered and never ceded their rights in the land to the Crown and that therefore they own it.

What does “Rule of Law” mean in an indigenous context?

The late Mohawk scholar, Patricia Monture-Angus made an important and relevant statement when she said:

“Think about everything that First Nations people have survived in this country: the taking of our land, the taking of our children, residential schools, the current criminal justice system, How was all of this delivered? The answer is simple: through the law.”

The reason for this is that Canadian law often–too often–has been strongly Eurocentric. In other words, it has perceived claims of whites as naturally right and indigenous as naturally wrong-headed or ill-advised. Such law is clearly not just law. That is the reason that so many Indigenous people are suspicious of Canadian law. Frequently in the past Canadian law has been used as an instrument of domination over Indigenous people. The Indian Act is one example, Residential schools another. If you belonged to a group that had been repeatedly subjected to such domination you would likely be suspicious too. As a result when many Indigenous People hear that the Prime Minster expects them to respect the rule of law, it is understandable that they would not consider such an admonition in the same spirit as the rest of us might.

The Supreme Court of Canada has recognized, as many Canadians have not, that Canada was never terra nullius (“nobody’s land”) before European colonization.  Yet often this fact is ignored, particularly in dealing with things like unceded land. Unceded land is land that Indigenous people have not conceded belongs to Canada. They have never given up their claims to it. Significant portions of land have been ceded to Canada by treaties or other agreements. Significant portions of land the Wet’suwet’en First Nation has claimed as its traditional territory is unceded. Some of its land was in fact ceded to Canada. As a result 6 Indian Reserves, as they are called in the Indian Act, have been ceded to Canada.

Since the federal government and the Wet’suwet’en  First Nation have not come to agreement about their land claims, it is an unresolved land claim. It may or not be held to be valid. It is unresolved land claims that pose great problems for resource development in Canada. Unfortunately, those claims can take decades (or even centuries!) to be resolved. Often it seems to me there is no great pressure exerted on the federal government to conclude agreements with First Nations until a potential development, such as a pipeline, logging  enterprise or golf course, is proposed that would impact their land claim. Then it becomes urgent. I really wish people like farmers, pipeline workers, retired lawyers, and others pressed the government to resolve these claims rather than wait for the next crisis. Pressures of urgent developments are never helpful. It would be much better if such agreements were negotiated in advance of development with good faith and diligence. Then it could be done quietly, thoughtfully, without undue pressure.

in this case the pipeline company Coastal GasLink Pipeline Ltd obtained an injunction against the Wet’suwet’en people not to interfere with the construction of their  pipeline and they claim that injunction has not been followed. An injunction is a court order requiring someone, such as Wet’suwet’en First Nation  to do something or, more often, refrain from doing something. A recent study from the Yellowhead Institute at Ryerson University found that when Canadian courts issue injunctions they do so overwhelmingly in favor of corporations against Indigenous claims.  76% of injunction applications filed by corporations were granted while more than 80% of injunction applications applied for by First Nations were refused. Why is that? This pattern is perpetuated with the repeated issuance of injunctions – enforced with violence and threat of lethal force by the RCMP – against the Wet’suwet’en working against the Coastal GasLink project, authorized without the consent of the hereditary chiefs vested with jurisdiction over the decision. We have to be careful with such stats. By themselves they prove nothing. But they are interesting, and they impact what First Nations think about the Canadian judicial system.

As a result it is perhaps not so surprising that Wet’suwet’en people don’t have quite the reverence for judicial injunctions orders that other Canadians have. That doesn’t necessarily make it right, but it does make it understanding.

Rule of Law

 

The expression “rule of law” has been used many times in this dispute between some Wet’suwet’en people (not all) and the developers of the pipeline and the British Columbia government and the Canadian government and various other interested parties. All sides throw this expression at each other like weapons.

I am a recovering lawyer, so all my life, I have thought it is important to respect law. I still do. A country in which laws are not respected is a country headed towards anarchy. That is what many of us object to about the current President of the United States, Donald Trump. He thinks his country is a place where the laws apply to everyone but himself. His lawyer, Alan Dershowitz, argued in the recent Senate impeachment trial, that anything the President did was permitted by law. He seemed to say, the President by definition could not break the law. But most importantly, there in the United States and here in Canada is what to the people think? Do they respect the rule of law?  I really believe America is demonstrating conspicuously that Americans do not respect the rule of law. Few of his millions of supporters object. As long as it helps Trump win is all that counts. I don’t want Canada to be like that.

To most of us that was an anathema. That is not what law is. Law applies to everyone, even the rulers. The President is not a king.  Therefore the President must obey the law just like the rest of us. This is a fundamental concept to a society that wants to avoid anarchy. Does the same not apply to Wet’suwet’en people and their allies? Does the same apply to Prime Minister Trudeau and Premier John Horgan? I hope so. The same goes for the Canadians who have been roundly criticizing the Wet’suwet’en people and the damage their blockades of trains have been harming the Canadian economy.

 

But what is the law? That is not as quite as simple as it might seem. Clearly, the law includes the Constitution Act and Canadian Charter of Rights and Freedoms of 1982. It also includes the British North America Act that created the country of Canada in 1967. In fact it includes all laws passed by the Parliament of Canada within its jurisdiction as provided for in the British North America Act. It includes laws of the province of British Columbia pursuant to which permits can be issued to permit the construction of various projects such as pipeoines. It includes the laws of British Columbia that create a court of law and governs the decisions that are made by courts. Then of course there is common law. That is law created by judges interpreting the law. The laws of Canada also include those laws that were adopted by the British Parliament before 1987 but only to the extent that valid Canadian laws have not been enacted to contradict such laws. One of those laws is the Royal Proclamation of 1763. I will be commenting on it because it is relevant. This may surprise some of you, but in recent years there has been a growing recognition among Canadian courts and Canadian people that the law of Canada also includes aboriginal law. When Europeans came to Canada the people that occupied this country had laws too. Those laws are also important. They must also be respected. All of these laws are part of our “rule of law.”

Sometimes laws overlap. Sometimes laws contradict each other. Sometimes purported laws are outside their jurisdiction and hence invalid and not legally binding. Then courts have to determine what is really the law of Canada in the circumstances of any case.

With such a mosaic of laws it is not always easy to determine what is the law. That’s why lawyers are important. I had to say that.

In the Wet’suwet’en matter many laws have become important. It is not necessarily so easy to say what is the law and how should it be enforced.

A friend of mine recently asked me if there were any people who had never been displaced. I had no answer to that question. Frankly I don’t know. I know that strife has been common since time immemorial. Strong people have ousted weaker people. That might be true but what is the significance of that? Is that what law is? The strong can do what they want? Too bad so sad? I know that is a common American attitude. They are not as squeamish as the rest of us.  Many of them think they conquered Indian people, as they call indigenous people, so might is right and that is all there is too it. Canada of course has not conquered the First Nations of Canada. The Wet’suwet’en, for example, were not conquered.

Canada has always prided itself on being a country of law. Really that goes back to at least 1763 when the British monarch proclaimed the Royal Proclamation. Canada and its predecessors always wanted a solid legal foundation for the country.  The Canadian government always recognized that without a solid legal foundation, Canadian society would be built on a shaky foundation. I think that was, and is a good idea. Because Canadians wanted a society based on the rule of law they realized they would have to negotiated with the Indigenous people of Canada to share occupancy of this wonderful country. The could not just impose the laws of the recent arrivals. That has made things very interesting in Canada, but I am proud of our country for taking that approach.

Sometimes the Law is not an Ass—it is much worse than that

Recently Manitoba has been the location of an incident that I should catch international attention for its idiocy.  If it hasn’t  happened yet, I suspect it will. The international media just hasn’t caught on to how stupid we can be.

The incident happened at our esteemed Law Courts in Winnipeg. A Winnipeg lawyer represented an  indigenous person from Ontario who had been arrested and placed in the Winnipeg Remand Centre as a result of breaching a court order that he abstain from alcohol. He had to pay a $20 cash deposit on his bail, which had been granted by the court, in order to get released from the Remand Centre.  He had agreed to the $20 payment thinking that was how much money he had. Unfortunately, the mantas 5¢ short. Since he was from Ontario and had only intermittent access to a phone, he cold not call anyone for help and spent the weekend in jail because he was unable to pay the full amount. No one would let him even though he only owed 5¢.

On Monday morning his lawyer discovered what had happened and returned to court to pay the outstanding amount. In fact, a sympathetic, and reasonable Magistrate, gave his defence lawyer a nickel to pay the outstanding amount. The lawyer got a receipt for the $20. The lawyer thought that this was the end of it. The entire cash required had been paid. Unfortunately, the lawyer did not understand the astounding ignorance of the law.

The following morning the defence lawyer learned that there had been a mistake. It turned out that his client had been 35¢ short. Much more than 5¢! So the hapless client had to stay in jail for the entire night because he could not pay the extra 30¢. So the client was transferred to Milner Ridge Correctional Facility, about 100 km away, because the space in the Remand Centre was needed for incoming prisoners. The defence lawyer had asked that his client remain until the bail was paid., but his request went unheeded—perhaps because the client was indigenous. Its  funny (not) how such incidents happen to them, rather than fine white people. As well the client had no one in the city that he could call for a tiny bit of cash to rectify the mistake.

When the client reached Milner Ridge the lawyer thought he would be released. Unfortunately, Milner Ridge had no facility to electronically access the client’s cash deposit which had been paid in Winnipeg. It was paid but he still could not get out of jail! After all his bail had been paid, so he thought. When the lawyer learned of this he returned to the courthouse and paid the client’s cash deposit himself. The client was returned to Winnipeg and was  released from jail a full week after he had been taken into custody. He stayed in jail for a week because the authorities thought he had not paid the outstanding 35¢ that actually had been paid.

While he was in jail he missed taking his prescription medication, which he needed because of a prior condition related to his addiction to OcyContin and his heart was alternately racing or slowing down. He was in serious jeopardy.

The Winnipeg Free Press reported, “According to Statistics Canada figures for 2016-2017 the average cost to house a prisoner in a provincial institution was $213 a day.” So taxpayers paid more than $1,400 to house this indigenous prisoner  even though he had paid all of his bail after being 35¢ short initially.

The Crown later stayed the charges. This means that the client was an innocent man! Innocent until proven guilty remember.

Charles Dickens said that the law was an ass.  Sometimes, Charles Dickens should have said it was much worse than that.

The Court of Public Opinion

 

The court of public opinion does not require proof beyond a reasonable doubt. The court of public opinion makes its own evidentiary rules. In the court of public opinion we can consider hearsay, we can hear opinion evidence given by non-experts, we can accept leading questions, and can violate all kinds of other valuable rules of evidence. But all of us sitting in judgement in the court of public opinion should learn from the courts of law. They have some good ideas.

In the court of public opinion we should remember to listen to both sides. We should exclude dubious evidence. We should reject specious arguments. We should make our decisions based on the best evidence we can muster. We should not rely on second hand stories. We should be on guard against bias. We should keep an open mind. We should not base opinions on junk science. We should cross-examine those who testify to us (if we can). We should employ reason in weighing the evidence, rather than faith, emotion, feelings, or instincts. We should not guess or leap to conclusions. We should be diligent. We should do all these things (and more) if we are actually trying to discern the truth. We should try our best to be ideal observers.

Of course if we just want to mouth off none of this is necessary.

Abuse of Power

In my last post I talked about Michael Jackson. I suggested that we did not have enough evidence to convict him. Besides, he was charged and acquitted by a jury that heard all the evidence, all the arguments, and all the irrelevant evidence was excluded. We are not in that position and must remember that.

That does not mean we can’t have our opinions. In a court of law the prosecution has a high standard of proof that it must meet before the judge or jury as the case may be, is entitled to find Jackson guilty. Jackson is entitled to be acquitted unless the evidence proves beyond a reasonable doubt that he was guilty. That is a very high standard. That same standard is not applied in all circumstances. It is much a higher than the standard of proof in a civil case.

That is why even though O.J. Simpson was found not guilty of murder, he was nonetheless successfully sued by his widow’s family for damages for her death in a civil trial. In a civil trial the plaintiff (the one suing) only needs to prove the case against the defendant (such as O.J.) on a balance of probabilities. In other words the plaintiff only has to prove that it was probable or likely that O.J. killed his wife. If it is proved that it was likely that O.J. killed his wife he can be held liable for the damages he caused in a civil suit, even though he was found not guilty on a criminal charge.

I will give you an example. If a son acquires property from his elderly parent without paying fair market value for that property and it is established that the parent was under the influence of the son and subsequently a daughter of the parent alleges that the son used undue influence to get that property without paying for it, the son is required to prove that he did not use undue influence. The son must prove that the parent exercised his or her own free will to make the gift and unless the son can prove that, the son will be required to disgorge the gift. The daughter is not required to prove that the son (her brother) used undue influence over their parent, the son must prove that he did not use undue influence. The onus of proof is on the one who gained the advantage while he was in a position of power over the vulnerable giver. This is as it should be.

This can apply the same way to others who are in a position of power over a vulnerable person. This could include the doctor of the parent, or lawyer, or accountant, or parent, or minister, or employer, or anyone else in a position of superior power over the person who made the ‘gift.’. The law presumes that undue influence was used until the person who benefitted rebuts the presumption and proves otherwise by satisfactory evidence.

This is good law. We can all learn from it. I think it can help us to understand what we might want to think about the Jackson case. Even though we acknowledge that there was insufficient evidence to prove he was guilty beyond a reasonable doubt. That high standard only applies in a criminal trial.

In a civil case sometimes the same principle is applied and might apply to someone like Michael Jackson. If he was in a position of power over a vulnerable person by reason of his wealth, fame, and power he should be forced to prove he did not misuse that power. The onus of proof should be on the powerful person not on the vulnerable person who might have been abused. Michael Jackson might be entitled to an acquittal in a criminal court, but what about the court of public opinion?

Gray Mountain

https://www.dropbox.com/s/xacoebo7zns77ok/Screenshot%202019-03-14%2021.09.42.png?dl=0

 

Gray Mountain, by John Grisham, is in some ways a traditional Grisham novel. He often has great ideas that get you interested right off the bat. This was no exception. A Young Wall Street Lawyer gets laid off after the Financial Crisis of 2008. As a severance perk the firm pays for her health insurance if she agrees to work pro bono for a charity. As a result she finds a job with a Legal Aid firm deep in Virginia. There she discovers Appalachia and all that comes with it, including coal. The coal industry is up to its  old tricks and some employees need legal help in dealing with Big Coal.

Sadly, like most Grisham novels in my opinion, he starts off with a great idea that fizzles because he does not know how to finish it. Grisham is like a good starting pitcher who needs a closer. This book is in that strong tradition. It fizzles  at the end. In the meantime it did provide an entertaining read.

Before it ends, the heroine, Samantha helps a number of indigent people who were getting screwed. The saddest of her cases involves a coal miner who contracts Black Lung disease for which he is entitled to be compensated, but the system, and all embroiled in it, use that system to deny benefits. Samantha in the best tradition of the law tries to get redress. Big Coal resists. As Grisham writes, “coal companies are brilliant when it comes to finding new ways to screw people.”

As Grisham writes:

Chester said, “it’s a favorite trick in the coalfields. A company mines the coal, then goes bankrupt to avoid payments and the reclamation requirements. Sooner or later they usually pop up with another name. Same bad actors, just a new logo.”

“That’s disgusting,” Samantha said.

“No, that’s the law.”

Grisham is nothing if not cynical about lawyers and the law. But in recent years he has also painted the other side of the story, with lawyers like Samantha. There are some good lawyers too. This is what she learns from another lawyer, talking about court rooms, “I love them. It’s the only place where the little guy can go toe-to-toe on a  level field with a big, crooked, corporation. A person with nothing–no money–nothing but a set of facts can file a lawsuit and force a billion dollar company to show up for a fair fight.” That is the majesty of the law.  Even if the fight is not always fair, often it is. Often it brings justice. That is a pretty good thing.

For another client she helps, when no one else will, Samantha realizes this on her way home:

“As she drove away from the Starlight Motel, Samantha realized she had spent the better part of 12 hours aggressively representing Pamela Booker and her children. Had she not stumbled into the clinic that morning, they would be hiding somewhere in the backseat of their car, hungry, cold, hopeless, frightened, and vulnerable.” Again, a pretty good thing.

Sometimes– maybe not often enough, but sometimes–lawyers can be proud of what they do. Damn proud.

A Christmas Miracle

Bim (AKA Roy Forbes) once said if you did not believe in miracles you might be taking bad advice. I always feared this applied to me. No more. A Miracle just occurred and very near to Christmas at that, but  there has not been a lot of talk about it in the media.

Just when it seemed impossible, the Democrats and Republicans in the US, who normally can’t agree on what day it is,  have joined together with President Donald Trump in an amazing agreement for criminal justice reform. They have agreed to eliminate many of the most horrific mandatory minimum sentences that were intended to tie tied the hands of liberal judges in the US, but which led to many outrageous criminal sentences. In a remarkable bill that enjoyed widespread non-partisan support and was lauded  by President Trump as his first non-partisan triumph, truly significant criminal justice reform was actually achieved.

Currently the US has the highest rates of incarceration in the entire world. At this time more than 2 million Americans are behind bars, with African Americans disproportionately represented, of course.

I was shocked to see Mark Holden Senior Vice President and General Counsel for the Koch Industries, famous for being ultra rich conservatives, together with Van Jones, former staffer for Obama, who both backed the bill. Jones called it a “Christmas miracle–you have to believe it to see it.” Holden said his people believe in fundamental liberties, equal justice, and second chances. He admitted that for the last 30 or 40 years the criminal justice system has been a poverty trap and has not made Americans safer.  A lot of money and human potential has been wasted on it. In the past decade or so Americans have learned from the success of states like Texas, South Carolina, Georgia, Delaware and others, that you can keep people safe and make sure criminals are being rehabilitated while they are in prison and when they come out they are less violent, less trouble, more productive, and you save a lot of money. What conservative would not like that?

In the last few years, a conservative state like Texas has closed down 8 prisons and saved more than 8 billion dollars and now has crime rates that  have not been that low since the 1950s! Understandably, this has many conservatives and liberals in the US excited. Jones says the left and right have come together for a principled reason. Conservatives who believe in limited government, or who are Christians who believe in the importance of human dignity and second chances, and libertarians who hate to see government chew up rights, are all offended by the mass incarceration in the US. People on the left who are concerned about social justice, racism, and such issues are also offended by the mass incarceration. Holden admitted, “The war on drugs has been a massive failure. We need to look at the criminal elements within that and treat them as crimes, and treat them proportionately for what they do, but by and large a lot of other people in the system are really a public health issue, a poverty issue, a substance abuse issue, mental health issue, or maybe they just need a chance, because they come from a place where they don’t have good schools, good programs, or mentoring. Lets not just lock them up. We’re way too anxious and alarmist around criminal justice issues just to lock people up…There are people who need to be in prison, but most don’t.”

People around the world are disturbed by what is happening in the US. A big part of what has made politicians reluctant to engage this issue has been fear. After all, giving benefits to prisoners who often don’t have the right to vote as convicted felons and don’t make political campaign contributions is difficult for politicians to support, since some of these prisoners will re-offend and hurt someone. Inevitably this will lead to a public outcry and may end the political career of the politician who helped make this happen. Fear drives the politicians.  They must be persuaded to overcome fear and to support measures like the current American legislation. They must see that the current system is madness.

Some political leaders have come to understand that having people in prison who don’t’ really belong there come out with deep resentment. As Jones said, “Prison makes them bitter not better,” and that is not good for society.

As Criminal justice advocate Brian Stevenson said, “we have a two-tiered system—the rich and guilty get a better deal than the poor and innocent.” We need a criminal justice system that serves all of us. We should not have a system where justice depends on the amount of money the charged person possesses. As Holden said, “If you are middle class or working class or one of the least among us living in desperate circumstances you cannot fight the federal or state government for it becomes a situation that once you’re in the system and don’t have resources you are pretty much branded for life with the scarlet letter “F” (for felon). That is completely unfair.” And whether you’re on the left or the right you should be able to see that.

We should not think this issue is limited to the US.  It is most dramatically demonstrated there, but we have it in Canada too. We too have obscene sentences imposed on vulnerable people unable to defend themselves against the powerful state and its zealous officials, all because of mandatory minimum sentences. We have to resist political leaders who try to convince of the need for mandatory minimum sentences by frightening the voters.

Canada not that long ago under the leadership of our local MP who was also the Minster of Justice,  Vic Toews,  brought into Canada a large number of mandatory minimum sentences all in the name of getting “tough on crime.” He did this just when the legislators he was imitating in the US were starting to realize these minimum sentences ushered in horrible injustices and did little to reduce crimes.  Even though these laws were good examples of “lose/lose,” that did not stop our local MP, Ted Falk, from crying with mock horror when Trudeau made a modest incursion towards reducing mandatory minimum sentences, again trying to show Conservatives were “tough on crime” while liberals were “soft on crime.” We have to remember, fear is seldom a sound basis for making important policy decisions.

Miracles can happen.

People are entitled to the presumption of innocence and Judges should not be rapists or harassers

The recent hearings in the US Senate to consider and decide whether or not Brett Kavanaugh should be confirmed as a judge on the US Supreme Court exposed some of the glaring weaknesses in the American system of judicial appointments to that nation’s highest court. Remember that judges are appointed for life and can have a profound effect on many social issues of great importance. Issues such as the right of women to an abortion, or the rights of a foetus, the rights of gays and lesbians, and countless other important issues. No doubt America should put the best people on that court.

In criminal law there is an expression, ‘better to let 10 guilty criminals off than send 1 innocent person to prison.’ That is acceptable in a criminal court.  Is that the appropriate principle to other important decisions? Not always I would suggest. No one in his or her right mind would say, ‘Better to have 10 rapists as judges than decline one innocent candidate.’

The problem of course is what should the decision makers do when the evidence is not certain or all the facts are not in? That can be difficult. Did the American Senate get it right?

What are people to do when all the evidence is not in? In a criminal court it is clear. The court cannot convict unless it is proven beyond a reasonable doubt that the accused is guilty.  If the judge or jury decides the case is not certain, a verdict of not guilty is required. That is as it should be. But what about other circumstances? What about outside the criminal court?

I think environmental law has found a workable solution.  It is called the precautionary principle. This means that decision makers should act to prevent harm when it is within our power to do so, even when all the evidence is not in. For example, if someone proposes to install a petroleum pipeline that might or might not lead to environmental contamination should the pipeline be approved or not? This principle requires that the pipeline which might cause great harm, only be approved if the persons who wants it gives reasonable credible evidence that it is safe to do so.

If it is not certain whether a particular course of action will create harm or not, as for example when the existing scientific evidence is unclear or uncertain about whether it will lead to serious harm or not, the precautionary principle imposes an obligation on the proponent of the  course of action, such as a pipeline, to prove that it will not lead to harm until further evidence makes it clear that the harm can be averted. In other words, policy makers are required to protect the public when there is a reasonably plausible possibility that a particular action will cause harm.  The decision makers can and should act to do this even it is not certain that the action will lead to harm. These protections can only be relaxed when further sound evidence makes it clear that no harm will result. The onus of proof is on the proponent to establish a lack of harm. Not the other way around.I think the American Senate ought to have been guided by such thinking in the case of Judge Kavanaugh.

In the case of the Senate hearings both the complainant Dr. Christine Blasey Ford and the proposed judge, Kavanaugh made plausible cases in support of their position. Kavanaugh came on strong and made a forceful defence against the allegations. On the other hand, Ford was clearly credible too. She made some inconsistent statements about what happened 36 years ago, but it would have been suspicious if that were not the case. I would say it was not certain beyond a reasonable doubt who was right.

The Senate appointed Judge Kavanaugh on the basis, I believe, that Dr. Ford’s  allegations were not proven. I think the Senate put the onus of proof on the wrong person. It should have said, Kavanaugh must prove he was innocent on a balance of probabilities, not on beyond a reasonable doubt.

Ford’s testimony might not have led to a conviction in a criminal trial, but it certainly was enough to reject him as a judicial candidate for a lifetime position to the highest court in the land. The public should not be required to accept a candidate as tainted as Kavanaugh, even though he might be innocent, because the public should be protected from the immense harm he might inflict on the public as a result of his lifetime appointment unless he could first prove that he was worthy.

Judge Kavanaugh was right when he called the hearing a national disgrace but not for the reasons he said so. It is a disgrace when the weighing of judicial appointments becomes a pure partisan game on both sides. It is a disgrace when an alleged sexual assault victim becomes a pawn in a political game. It is not a disgrace when an unworthy candidate is rejected for high judicial office when on a balance of probabilities, even if not beyond a reasonable doubt,  it is clear that he is wholly unsuitable for that office.

I would put it this way: If you were on the board of your local school division would you hire Brett Kavanaugh to be a janitor for the school? Not me.