Friday, April 4, 2014

Ontario's Justices of the Peace Discipline Adjudicative Process Lacks Consistency

     Some months ago I wrote on the lack of consistency in the adjudicative process at Ontario's Human Rights Tribunal.  I noted that in some cases adjudicators assessed the credibility of witnesses and cited established legal principles on the subject while in others they did not.  I have been hard at work reviewing some of the decisions issued with respect to the adjudication of judicial misconduct complaints involving Ontario's justices of the peace and I have discovered that just like the HRTO the adjudicative process involving justices of the peace discipline cases suffers from the same glaring problem.

      In the coming days I will look into two recent noteworthy cases involving justices of the peace, namely,
Vernon A. Chang Alloy (2010) and Errol Massiah (2012).  

Wednesday, April 2, 2014

Court of Appeal Issues Ruling on R v. Kampe


     The Court of Appeal for Ontario released its long-awaited Endorsement in R  v. Kampe.

     Readers will recall that this was the case in which the learned trial judge failed to appreciate and consider the s.15 constitutional violation raised by the Appellant and which violation was supported in the evidence before her.  The case involved a situation where a Black man and a White woman were seated in car where the police alleged they were "looking at a piece of crack cocaine in his hand.  The Appellant testified that the police dragged him out the car and on his testimony beat him up and then trumped up a charge of possession for the purpose on him.  The white woman was not only not charged but police did not obtain a statement from her or secure her identification particulars.  In addition, the Appellant asserted that the learned trial judge erred in law because she failed to apply and follow the Court of Appeal's decision in R  v. Brown 2003 Canlii 52142 (Ont.C.A.).

     The Court of Appeal's endorsement is a mere two pages, if that, cites no legal authorities and seems to suggest that it is not an error of law when lower judges do not follow binding authority.

     I will in the coming days have something to say about their endorsement.

Friday, March 21, 2014

The Justices of the Peace Act - Judicial Independence - Institutional Impartiality and Institutional Independence

     In light of the overwhelming response to my recent posts on the complaints process at the Justices of the Peace Review Council it appears that there is great interest among members of the public with respect to the workings of this very important administrative tribunal.  In this follow-up post I will explore the provisions in the enabling legislation which safe-guard the fundamental principles of judicial independence, institutional impartiality and institutional independence in the complaints process.

What is judicial independence ?

     One of the fundamental principles in our system of justice in Ontario is that judicial officers must be free to judge without fear of reprisal or reward from third parties and in particular government.  Two well recognized indicia of independence of judicial officers are remuneration and security of tenure.  S.21.1(2) of the Justices of the Peace Act provides for the Justices of the Peace Remuneration Commission to make recommendations with respect to the remuneration of justices of the peace.  S.5(2) provides that every justice of the peace shall retire upon attaining the age of seventy years and s.11.2(1) provides that a justice of the peace may be removed from office by order of the Lieutenant Governor in Council.  The removal from office can only take place after a hearing before a hearing panel which recommends to the Attorney General that the justice of the peace be removed.

     It is important to note the very circumscribed role of the Attorney General plays in the removal from office process. The enabling legislation provides the justice of the peace with the right to a hearing before a hearing panel.  It is only after a finding of judicial misconduct where the panel makes an express finding that the justice of the peace is unable, because of disability, to perform the essential duties of his or her office, the justice of the peace has engaged in conduct that is incompatible with the due execution of his or her office, or the failure of the justice of the peace to perform the duties of his or her office that a recommendation may be made to the Attorney General to remove the justice of the peace from office.  The Attorney General can not unilaterally remove a justice of the peace from office under the legislation.

Can the Attorney General Bring a Complaint
under the Justices of the Peace Act:

     This is far from a simple question.  It is not a simple question on account of the various roles which the Attorney General plays not only in the administration of justice proper but particularly under the Justices of the Peace Act.  The Attorney General plays a role in the appointment of the individuals who sit on the Justices of the Peace Review Council.  The Attorney General plays a role in the appointment of both Ontario Court of Justice judges and justices of the peace.  At the conclusion of a hearing before a hearing panel of the JPRC the panel may recommend to the Attorney General that the justice of the peace be indemnified for his or her legal costs flowing from the hearing.  Lastly, it is the Attorney General who receives the recommendation for removal from office following a hearing.

     Unlike the Judges Act, R.S.C., 1985 c.J-1 the Justices of the Peace Act, R.S.O 1990 ch J.4 does not give the Attorney General express authority to initiate complaints against a justice of the peace.  However, s.10.2(3) makes it crystal clear that neither the Attorney General, a judge or a justice of the peace has the authority to bring a representative complaint on behalf of a person who comes to them with a complaint.  The provision provides that these recipients of such complaints shall provide the person making the complaint with information about the Review Council's role in the justice system and about how a complaint may be made and shall refer the person to the Review Council.  Clearly, if the Attorney General is expressly prohibited from bringing a representative complaint on behalf of a third party it stands to reason that this prohibition would naturally extend to the Deputy Attorney General, Assistant Deputy Attorney General
and senior managers affiliated with the office of the Attorney General who may be considered agents of the Attorney General.  The absence of such an extension of the prohibition would make a mockery of the principles of judicial independence, institutional impartiality and institutional independence.  The logical extension of an absence of such a prohibition would result in a situation where a senior management employee of the Ministry of the Attorney General could round up her subordinates, take statements from them and send them off to the JPRC as complaints.

     There may well be circumstances in which it may be proper in upholding the rule of law for the Attorney General of Ontario to bring a complaint against a justice of the peace under the Justices of the Peace Act but those circumstances are rare and exceptional.  It must never be forgotten that the Attorney General is an elected politician and a member of the Ontario Bar.  That office is mandated by law and custom to protect the public interest and uphold the principle of the Rule of Law.  In Cosgrove   v.  Canadian Judicial Council [2007] 4 F.C.R. 714 the Attorney General for Ontario brought a complaint against then Justice Cosgrove.  That was an exceptional case.  Firstly, the enabling legislation expressly authorized such complaints from both the federal and provincial attorney generals.  Secondly, the allegation in that case was the judge deliberately failed to follow established legal principles in staying a first degree murder charge.  The court determined that it was consistent for the attorney general to protect the public interest and part of this mandate includes the participation in review of the conduct of judges.  The other two principles cited above, namely, institutional impartiality and institutional independence provide a logical explanation for why complaints regarding judicial officers are rare and exceptional under the Justices of the Peace Act.

What is institutional impartiality ?

     The principle of institutional impartiality is the concern which led our law-makers to create a tribunal known as the Justices of the Peace Review Council to deal with the issue of complaints against justices of the peace in Ontario.  It is that fundamental belief that justice "must be seen to done".  The legislature having established the Justices of the Peace Review Council it would be repugnant to the Rule of Law for the Attorney General or any other member of the "government" to directly or indirectly influence the operation or dealing of that tribunal.  The Justices of the Peace Review Council can never allow itself to be even perceived as being a tool of the Attorney General or any other part of the "government".

Analysis and Commentary:

     The Justices of the Peace Review Council is an independent tribunal established by the legislature of the Province of Ontario to deal with, among other issues, the receipt and investigation of complaints of judicial misconduct and the adjudication of judicial misconduct hearings.  The proper discharge of this important statutory function in a free and democratic society requires that the Justices of the Peace Review Council be and be seen to be free of any perception of partiality towards the Attorney General or any other agent of that office or the "government" proper.

     If under s.10.2(3) of the Act the Attorney General is expressly prohibited from bringing representative complaints on behalf of third parties,  the fundamental principles of judicial independence, institutional impartiality and independence are rendered illusory and meaningless if the Deputy Attorney General, Assistant Deputy Attorney General and senior members of the Attorney General's staff can bring such representative complaints.

     
NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, the vital importance of the impartiality and independence of the Justices of the Peace Review Council from political and other irrelevant considerations in the proper discharge of their statutory mandate.


   

   

   
     

Sunday, March 2, 2014

"RBC Has No Public Washroom Facilities" - Manager Client Care

     On Friday, February 28th, 2014 I limped into the RBC branch at Jane Street and Alliance in Toronto and used the automated banking machine to deposit two cheques.  During the transaction I had a compelling urge to urinate.  I hastened my transaction and hobbled over to an African-Canadian woman who appeared to me to hold some level of authority in the bank.  I was on crutches having injured my right leg last Wednesday.

     I asked the RBC staffer politely for me to have access to a washroom.  Her reply shocked me.  She told me that RBC does not have public washrooms.  RBC's washrooms are only for employees due to "security reasons".  I explained to her that this was not true based on my personal experience since I was permitted to use the washroom at the Hurontario and Countycourt Boulevard branch some months ago.

     The RBC staffer politely directed me with my crutches and all to limp across the street and use the public washroom at Tim Hortons.  I felt at the time that this was most unacceptable and I politely asked her for her business card and I provided her with mine.  Ironically, the card she provided me displays the name of Tanya Edwards, Manager Client Care.

Commentary:

     Tim Hortons has public washrooms for its customers.  Walmart has public washrooms for its customers.
Staples has public washrooms for its customers.  My law office has public washrooms for my clients.  RBC sells financial services to the public which includes mortgages, RRSPs and other investment products which often require their customers to be in their branches for periods of time which would make it sensible, convenient and necessary to have public washrooms for these customers.  RBC from what I understand is a highly profitable company with a lot of disposable money.  If this is the manner in which one of our largest and most successful corporate institutions manages client care they seriously need to reevaluate their client care mission.  This example tells me in no uncertain terms that RBC has failed to consider client needs in their business plan.  I would love to see the job description which accompanies Ms. Edward's position of Manager Client Care.  RBC can do better as a corporate leader I say.  What do you say ?

Note:  This piece is written for the sole purpose of drawing attention to an issue of public importance.  RBC ought to have public washrooms for its clients and especially those who have physical disabilities.  Democracy and the marketplace is best served with a free exchange of ideas.

Friday, February 21, 2014

Natural Justice and Ineffective Assistance of Counsel in Administrative Law Hearings


     Our law is settled on the recognition that ineffective assistance of counsel in a criminal trial can impact on the fairness of a criminal trial and quash a conviction for any crime but this policy is not so well recognized in the civil forum. (R  v.  G.D.B. [2000] 1 S.C.R. 520 - R  v.  J.B. 2011 ONCA 404)  The simple rationale underlying the policy is well stated by Doherty J. A. in R  v.  Joanise (1995) 102 C.C.C. (3d) 35 (Ont. C.A.) at p. 57: "Where counsel fails to provide adequate representation, the fairness of the trial, measured both by reference to the reliability of he verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers.  In some cases the result will be a miscarriage of justice."   Under our law an appellant must be able to establish the following three points to succeed on an appeal involving ineffective assistance of counsel.  First, the appellant must establish the facts underlying the allegation of inadequate representation on a balance of probabilities.  Second, the appellant must establish that the acts or omissions amount to incompetence. Lastly, the appellant must establish that the ineffectiveness resulted in a miscarriage of justice by undermining either the appearance of a fair trial or the reliability of the verdict.  Our courts have determined the last question first since there must be a nexus between the ineffectiveness and the result.

        The claim of ineffective assistance of counsel in criminal trials is so well established and recognized in our criminal law that the Court of Appeal for Ontario has a specific policy on the handling of such appeals in criminal matters in that court.  Surprisingly, there does not appear to be any such policy with respect to the quality of legal representation which litigants in civil proceedings receive from their lawyers.  Some observers rationalize this failure by pointing to the ability of litigants to sue their lawyers for negligence.  However,
that "knee-jerk" response overlooks the fact that the criminal litigant has this option and much more.

     In this brief post I will attempt to state a case for the recognition of ineffective assistance of counsel in the civil context and for now expressly in the administrative law context.

Denial of Natural Justice:

Material witnesses:

     In circumstances where a person stands accused of discreditable conduct, judicial misconduct, securities fraud or non-compliance or the breach of the Ontario Human Rights Code it stands to reason that ineffective assistance of counsel has the potential to adversely impact the fairness of the hearing and the reliability of the evidence and decision and amount to a denial of natural justice.  Indeed our Divisional Court correctly concluded in Audmax  v.  HRTO 2011 ONSC 314 (Div Crt.) than an unrepresented litigant was denied natural justice and fairness by virtue of a Human Rights Tribunal of Ontario adjudicator's failing to provide an unrepresented litigant an adjournment to enable that party to secure the evidence of a material witness. Clearly this denial of natural justice would occur in the same way if the litigant had counsel who made the proper request and it was denied.   However, where counsel fails to make the proper request in similar circumstances that failure amounts to ineffective assistance of counsel and a breach of natural justice.

Language impediments:    

     Just as the circumstances in which a duty of care in negligence are not closed so too are the circumstances in which a litigant can be denied of natural justice and fairness in an administrative law proceeding which may render a hearing void.  In Dungus  v.  Toronto Police Service a French speaking litigant whose complaint was written in the French language was self-represented before the HRTO,  a tribunal whose enabling legislation and rules of procedure provide litigants with a right to a hearing in French or English and the adjudicator failed to address his language needs and proceeded with the hearing in English.  This omission on the part of the adjudicator is arguably a breach of natural justice which impaired the reliability of the evidence and the fairness of the proceedings.  Clearly, if Mr. Dungus had counsel at his hearing who overlooked this important point in circumstances where there is evidence to support a language impediment that ought not to remedy the breach of natural justice in the circumstances.

Jurisdictional questions:

      Statutory schemes like the Justices of the Peace Act, R.S.O. 1990 ch. J.4 which call for a two-step process involving an investigation of a complaint and then a formal hearing depending on the outcome of the investigation are excellent candidates for ineffective assistance of counsel claims. Under this particular statutory scheme the receipt of a written complaint from a complainant triggers the appointment of a "complaints committee" which is tasked with investigating the subject complaint.  At the conclusion of their investigation the "complaints committee" can decide to, among other options, dismiss the complaint or order that a formal hearing be heard before a "hearing panel".  Since the receipt of a written complaint is a pre-condition to this statutory actors taking of jurisdiction the question of what constitutes a complaint within the framework of the statute is a serious question of law going to the issue of jurisdiction.  Although the statute indicates that any person may make a complaint about the conduct of a justice of the peace it expressly expressly prohibits other justices of the peace, judges or the Attorney General from bringing complaints on behalf of others and directs them to provide such complainants with information about the role of the Justice of the Peace Council in the justice system and about how a complaint may be made and to refer them to the Justices of the Peace Review Council.

     Clearly it would be contrary to the express language of the statute for the Attorney General to interview complainants, take will-say statements from them and send those to the JPRC as a complaint.  The same would apply to a complaint submitted by a justice of the peace or judge in similar circumstances.  Arguably a complaint stemming from the Deputy Attorney General or the Assistant Attorney General in similar circumstances is equally objectionable.  That is not to say that these individuals may not be able to bring their own complaints on matters which they have direct knowledge of.

     Counsel acting for a justice of the peace in such a proceeding who fails to address the question of whether or not the alleged complaint complies with the statutory scheme would have arguably failed to provide his or her client with effective representation and accordingly deprived them of natural justice.The fact that the matter proceeds to a formal hearing without the lawyer addressing this point does not cure the problem.

Biased Investigation:

     What happens if the investigation is clearly biased on its face ?  For example, should not the investigators be bound by the audi alteram partem rule -i.e. hear both sides ?  Also, if the investigators request a written response from the litigant when investigating allegations of sexual harassment-type allegations should not the response be put to the alleged victims ?  Should not the litigant's written response be considered by the "complaints committee" who decides whether or not the matter should proceed to a full hearing ?

Improper delegation:

     Under the Justices of the Peace Act supra the investigation of complaints are expressly reserved for the "complaints committee."  What if the investigation was conducted by someone or persons other than the "complaints committee" ?

Failure to act:

     What happens if the litigant is represented by counsel during the entire two stage process and counsel fails to see or raise any of these issues by way of a preliminary motion before the hearing panel or a case conference with a judge - as provided by the enabling legislation ?  What if counsel puts the litigant on the stand to testify without proper preparation ?  What if counsel makes admissions which are clearly harmful to the litigant's case without consultation or consent ?

COMMENTARY:

     The right to effective assistance of counsel is not exclusively reserved to defendants in criminal cases.  In any legal proceeding in which a litigant has a right to counsel it must be presumed that he or she has the right to effective representation of counsel.  Anything less requires express legislation from the legislature to the contrary.

     Any argument that the litigant is absolutely barred from raising such failures by his or her counsel on judicial review is simplistic and fails to appreciate the supervisory function of the superior court in our system of justice.  Granted, if the litigant's lawyer unsuccessfully raised these issues this may create an answer to the alleged breaches of jurisdiction, natural justice and fairness.  However, where they were not addressed the litigant can not be said to have had a fair hearing in accordance with law.   This is so not because I say so but because the Supreme Court of Canada said so in Dunsmuir   v.  New Brunswick 2008 SCC 9 in the following words:

     "By virtue of the rule of law principle, all exercises of public authority must find their source in law.  All decision-making powers have legal limits, derived from the enabling stature itself, the common law or civil law or the Constitution.  Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.  The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes."

     Note:  This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, the right of litigants to the effective representation of counsel in all legal proceedings.  Democracy and the Rule of Law work best with public discourse on issues of public importance.

Friday, January 17, 2014

The Justices of the Peace Review Council: A Primer on the Complaint Process

   Many citizens in Ontario are unaware of the existence of a very important administrative tribunal known as the Justices of the Peace Review Council.  This tribunal is tasked with, among other responsibilities, to receive and process complaints of misconduct against Ontario's justices of the peace.

   In this post I wish to introduce the reader to Ontario's complaint process with respect to misconduct complaints against justices of the peace.

The Justices of the Peace Act:

   The Justices of the Peace Act, R.S.O. 1990 Ch. J.4 is the statutory enactment which governs the complaints process involving justices of the peace in Ontario.  The Justices of the Peace Review Council (JPRC) was first established in 2006 and is continued under s.8(1) of the current legislation.  S.8(2)(b) provides the JPRC with express jurisdiction with respect to complaints involving justices of the peace in the following words: "to establish complaints committee from among its members to review and investigate complains under section 11."

Composition of JPRC:

   S.8(3) provides that the JPRC is composed of: (a) the Chief Justice of the Ontario Court of Justice, or another judge of the Ontario Court of Justice designated by the Chief Justice; (b) the Associate Chief Justice-Coordinator of Justices of the Peace; (c)  three justices of the peace appointed by the Chief Justice of the Ontario Court of Justice; (d)  two judges of the Ontario Court of Justice appointed by the Chief Justice of the Ontario Court of Justice; (e)  one regional senior justice of the peace appointed by the Chief Justice of the Ontario Court of Justice; (f)  a lawyer appointed by the Attorney General from a list of three names submitted to the Attorney General by the Law Society of Upper Canada; (g)  four persons appointed by the Lieutenant Governor in Council on the recommendation of the Attorney General.

Complaint re justice of the peace:

   S.10.2(1) provides that any person may make a complaint to the JPRC about the conduct of a justice of the peace and s.10.2(2) stipulates that a complaint to the JPRC must be in writing.  What is meant by the writing requirement can be gleaned from other portions of the Act and the JPRC procedures to suggest that the complaint in writing must be from one who is directly affected by the acts and omissions of the justice of the peace as distinct from a representative complaint. For example, s.10.2(3) provides that judges, justices or the peace or the Attorney General must provide any complainant who approaches them with a complaint with information about the JPRC and how a complaint may be made.  Accordingly none of these enumerated sources can bring a representative complaint on behalf of any complainant.  The rationale for this would seem to be rooted in concerns of impartiality and fairness.  The question of whether or not a Director of Court Operations who supposedly took statements from various court staff regarding the conduct of a justice of peace and forwarded them to the JPRC while copying the Deputy Attorney General for Ontario is currently the subject of a judicial review application before Ontario's Divisional Court*.  It is asserted in that case that the JPRC exceeded its jurisdiction in entertaining such a complaint and in fact displayed a lack of institutional impartiality and institutional independence from the Attorney General and the Ministry of the Attorney General for Ontario.

Investigations
Complaints committees:

   S.11(1) of the Act mandates the JPRC to establish a "complaints committee" to investigate and dispose of complaints as provided for by 11(15).  A complaints committee is a subset of the JPRC which under s.11(2) of the Act must be composed of the following: (a) a judge who shall chair the complaints committee; (b)  a justice of the peace; and (c)  a member who is neither a judge nor a justice of the peace.  The complaints committee has four mandatory functions under the Act.  S.(11)(3) requires that the complaints committee, "shall report in a timely manner to the complainant that it has received the complaint and it shall report in a timely manner to the complainant on its disposition of the matter."  Under s.11(7) the complaints committee must conduct "such investigation as it considers appropriate".  The wording of the section seems to contemplate that the committee itself must conduct investigations and that this important function can not be delegated - even to counsel.  Had the drafters intended that this function could be delegated they would have used language such as "the complaints committee shall cause to be conducted...or better yet they would have expressly stated this in the legislation.  S.11(15) provides that the complaints committee with what is referred to in the administrative law jurisprudence as a statutory power of decision.  A statutory power of decision is essentially the right to make a decision with respect to competing rights.  Under this provision the complaints committee has the jurisdiction to (a) "dismiss the complaint if it is frivoulous, an abuse of process or outside of the jurisdiction of the complaints committee, (c) order that a formal hearing into the complaint be held by a hearing panel. The fourth mandatory function of the complaints committee under the act is found in s.11(18) and is to report to the JPRC on its decision.

Expert assistance:

   S.8(15) allows the JPRC to "engage persons, including counsel, to assist it and its complaints committee and hearing panels."  This provision would seem to permit the JPRC to retain counsel to assist it with investigations but it is not clear to what extent the actual delegation of the investigation itself may be delegated to counsel so retained. Clearly, if counsel is retained to undertake such functions it raises serious questions about such things as jurisdiction and fairness.  For example, does counsel retained by the JPRC have the legal authority to actually conduct the investigation ?  If so - do they assume the same degree of obligations such a fairness and the like as does the complaints committee.

Hearings
Hearing panels:

     When a complaints committee orders that a complaint against a justice of the peace should proceed to a hearing under s.11(15) the chair of the JPRC must establish a hearing panel from among the members of the JPRC to hold a hearing in accordance with that section of the Act.  A hearing panel is a subset of the JPRC and under the Act is must consist of a (a) a judge who shall chair the panel; (b)  a justice of the peace; and (c)  a member who is a judge, lawyer or a member of the public.  S.11(18) vests the panel with another statutory power of decision and provides that they may "dismiss the compliant, with or without a finding that it is unfounded.  Where the panels upholds the complaint the section provides specific enumerated remedies which the panel may order from a reprimand to a recommendation to the Attorney General that the justice of the peace be removed from office.

Note:  This piece is written for the sole purpose of educating the users of our court system on a very important tribunal in the administration of justice.
*Massiah   v.  Justice of the Peace Review Council - Divisional Court File No. 449/13.









Thursday, December 26, 2013

Mandela's Embrace by the Mainstream

      The recent passing of Mr. Nelson Mandela and the outpouring of public support while touching and without doubt well deserved left me with very mixed emotions.  As one who was able to see the righteousness in his cause from the outset -  the  mainstream's recognition of the legitimacy of his struggle and the justness of his cause raises a question in my mind that the greatest impediment to positive social change may be the mainstream itself.  When I graduated from Montreal's McGill University in 1986 and found my way to Toronto publications like the Toronto Sun were running articles where Mr. Mandela was openly referred to as a terrorist.  Later when I went on to law school at the University of Windsor I had countless heated discussions where some fellow students echoed similar sentiments about Mr. Mandela.  Indeed, the U.S.A. had Mr. Mandela on a terrorist watch list as late as 1998 or so.

     Of course - my faith in the mainstream is shaken even more when I consider that it was not very long ago that African-Americans in the United States of America were involved in there own struggle over  laws which deprived them of the right to vote and legal equality generally.  In that struggle - as in Mr. Mandela's struggle - there was one man who stood courageously and denounced those morally bankrupt laws - Rev. Martin Luther King Jr.  He too was imprisoned - albeit not to the extent that Mr. Mandela was.

     If we are to use the two above-referenced historical experiences as a gauge - they tend to reveal that both the Canadian and American mainstream (and others) suffer from a condition akin to that provided for in the insanity defence in criminal law.  The insanity defence in criminal law provides that  one who is suffering from a disease of the mind and can not appreciate the nature and quality of there actions is not criminally responsible for their conduct.  These two historical events show that the mainstream clearly appeared to be incapable of appreciating the moral  bankruptcy of both Jim Crow and Apartheid at the outset like myself and others.  In both instances it was not until after years and years of senseless killing and untold human suffering that they embraced both struggles and leaders as legitimate and heroic.  Why?  It is my sense that shame, embarrassment and what the social psychologists refer to as cognitive dissonance had more to do with this embrace than anything else.