Saturday, February 21, 2015

Why Legal History Must be Mandatory Legal Education

History on equality
not a proud one:

     Law-makers and educators in Ontario need to take the bold and courageous step of making a course or two in legal history focusing on the historical development of the concept of equality and the manifestation of discrimination in our law between men and women and between racial and cultural/ethnic groups mandatory for all students of law - including paralegals.  Such training will bring home the fact that our law whether we like it or not has historically been a mechanism for the oppression rather than liberation for women and others in society.  We ought not to hide from this reality.  Recognizing it is the first step towards a more just administration of justice.  Indeed, it was not long ago that women in Canada were considered property and did not have the legal right to vote. Similarly, it was not that long ago that a man of African-Canadian descent could not legally practice law in Ontario.  The Ontario Legislature had to pass a special law in order that Delos R. Davis could practice law in Ontario.

as a Sword:  

     In addition to bringing home to stake-holders the broader historical reality of our laws very real, calculated and deliberate choice to oppress rather than liberate these rights seeking segments of our society such education will assist in understanding some of the tools and practices which were traditionally employed to secure the desired public-policy result and to eradicate such practices.  In the adjudication arena the concept of credibility was the chief tool to secure the then status quo - women and racial and other minorities had no credibility.  It was - regrettably - that simple.  A conviction for rape could not be secured in the absence of corroboration.  A person of African-Canadian descent's evidence was routinely rejected on the basis of credibility.  An African-Canadian man accused of a sexual crime against a White woman was for all intents and purposes presumed guilty for a significant portion of our recent history.

     Education in legal history will not solve all of the problems of inequality in our legal system. The problems are way too profound.  However, history shows us that as we prod along we are indeed making some progress.  We now recognize and accept that certain beliefs are simply not acceptable or politically correct.  The challenge remains however in educating if not this generation then the next one in recognizing that history will forever be both a benchmark and a guide to informing our acts and omissions as law-makers, lawyers, judges and adjudicators.  Dismissing an allegation of sexual assault simply because it was a he-said-she-said is no longer acceptable.  Finding an African-Canadian man who testifies in his own defence guilty of sexual assault simply because the victim is a White woman is today not acceptable.  We now recognize and accept that the determination of guilt and innocence is not merely a "toss-up" between who we believe is telling the truth.  An understanding and appreciation of the historical reality of the connection between race, sex, gender, credibility and equality can only help to bring us closer to the ideal of a fair and just legal system.


Monday, February 16, 2015

Legal Profession in Ontario is at a Cross-Roads:Why Joe Groia Gets my Vote

     The legal profession in Ontario is currently like a rampaging adolescent seeking to satisfy its parents - the public and the Ontario Government - that it is responsible and relevant and capable of acting in their best interest. Theft and fraud by lawyers chronicled in a recent Toronto Star article and the alleged unwillingness or inability of the governing body to devise a comprehensive policy which includes criminal prosecution has recently resulted in the governing body reaching out to police in an effort to address this alleged problem.  At a time when ordinary Canadians are increasingly unable to afford the services of lawyers and young lawyers and especially women lawyers and lawyers from racial minority groups find themselves constructively shut-out of the profession - it is clear that we in the legal profession need to reevaluate our priorities.

     The upcoming Bencher elections will determine whether we move forward or whether we stay on the current path which appears destined to erode the fundamental principles which we as lawyers and the public have come to expect of us - the champions of the Rule of Law and individual liberty. It is lawyers who ensure that the individual's rights are respected by the state.  It is not the police.  It is not the judiciary.  It is a job not fit for all.  Legislatures can pass all of the law in the world but it is the lawyer who brings these laws to fruition and delivers them to the public. History shows us this fact.  The U.S. Constitution clearly stipulated equality.  However, that did not bring equality to African-Americans.  It took great lawyers like Charles Houston and Thurgood Marshall to bring those rights to fruition.

     Mr. Joe Groia has decided to seek to join the governing body of our profession at a time when we most need his skill, compassion and leadership.  Mr. Groia "stepped-up" and represented an unpopular client facing a formidable opponent in the Ontario Securities Commission.  He successfully defended a man who without his assistance would likely have been found guilty.  He did so I am made to understand either pro bono or at a substantially reduced fee for a lawyer of his calibre.  I am impressed by this as a lawyer who respects the Rule of Law and the important place that we as lawyers play in it.

      The late great Chief Justice Bora Laskin said that law without compassion is void.  What I take from this simple sentence is that law is not a science and the job of the lawyer is plagued by all of the imperfections which come with being human.  One great jurist put it this way - "litigation is not tea party."  A life experience example will illustrate my point here.  I was conducting a discovery on behalf of a plaintiff who was bullied by his immediate supervisor to the point of requiring psychiatric care.  The other lawyer was most obstructive in my view and refusing to allow the witness to answer relevant questions.  I understandably got upset and referred to him as a "little man."  He aborted the discovery and a motion followed.  We appeared before Master Linton.  Master Linton found no fault with my statement and awarded my client costs.  He went on to state that I showed great restraint by referring to the other lawyer as a "little man" as there were  a lot of other things I could have called him.  This was before civility became a serious issue with the governing body.  Myself and the other lawyer went on to settle the case nicely and I fully understood where he was coming from.  The court dealt with the problem and all was well !

     I do not know Mr. Groia personally.  My decision to support him is based on the soundness of his position and the very civil manner in which he has elected to advocate his position - like a true lawyer.  He to me embodies the wisdom and compassion that our profession is so in need of in these challenging times. I am confident that he will serve both us as lawyers and the people of Ontario very well.  Another lawyer who impressed me lots was jailed for being both incivil and contemptuous in his fight against South Africa's Apartheid laws.

Wednesday, February 4, 2015

RE: A Complaint Against J.P. Leonard Obokata - A Classic Indemnification Case

     Here is yet another case which illustrates the point I made a few posts ago in response to the Toronto Star's irresponsible and sensational piece entitled "Tax-Payers Billed for Guilty Justices' Legal Bills" published on November 20, 2014.  The piece erroneously suggested that a 2007
legislative change created the current practice of the public "forking out" for legal fees. "A legislation change in 2007 gave the council power to conduct hearings against JP's and to ask the Attorney General to cover their legal costs. A spokesman for the AG told the Star on Thursday that the government paid the full recommended amount to all five disciplined JPs."

     As the following decision rendered by Justice Cathy Mocha sitting as Commissioner in Re: A Complaint Against J.P. Leonard Obokata on November 6, 2003 illustrates the constitutional tradition of indemnifying judicial officers for their legal costs in defending these proceedings did not come about from any legislative change in 2007.  That is a long established tradition in our legal system.

The Basic Facts:

     The complainant is a female Justice of the Peace.  Justice of the Peace X and Justice of the Peace Obokata were colleagues.  In May, 2002 an educational conference for justices of the peace was held in Toronto.  The two attended the conference. On the evening of May 2, 2002 Justice of the Peace Obokata sent out to dinner with five other justices of the peace.  Prior to dinner, Justice of the Peace Obokata consumed some alcoholic beverages in his hotel room.  He consumed more alcoholic drinks during dinner.  After dinner, Justice of the Peace Obokata, Justice of the Peace X and three other justices of the peace waled back along public streets toward their hotel several blocks from the restaurant.  While walking behind the other three justices of the peace with Justice of the Peace X, Justice of the Peace Obokata without any invitation or consent deliberately reached over and grabbed one of Justice of the Peace X's breasts and twisted his hand.  Justice of the Peace X loudly exclaimed "Lenny ! I can't believe you did that !"  Justice of the Peace Obokata then repeated the action.  Justice of the Peace X told Justice of the Peace Obokata to tell on the other Justice of the Peace walking ahead of them what he had done. He complied. The other justice of the peace suggested that Justice of the Peace Obokata did apologize but JP X did not want to  have any further conversation or contact with him.  Justice of the Peace X chose not to report the incident to the police.

The Complaint:

     Justice of the Peace X wrote to the Registrar of the Justices of the Peace Review Council on June 13, 2002 to file a complaint.  She wrote:

     "I am regretfully filing a complaint concerning the conduct of a colleague.  This difficult decision has been reached following much deliberation and soul-searching......Notwithstanding an attempt by His Worship to apologize, his behaviour was unprofessional, immoral, and reflects conduct unbecoming a judicial officer.  I remain hurt, angered and offended by his actions.  In my opinion, his disrespect constituted a total lack of sensitivity towards me personally and women in general.  I am concerned that failure on my part to bring this matter to the attention of our governing body to address this situation, may result in others being exploited."

Finding of Misconduct:

     "Justice of the Peace Obokata's behaviour on May 2, 2002 constituted a sexual assault contrary to the Criminal Code.  Justice of the Peace Obokata intentionally applied force to Justice of the Peace X without her consent in circumstances of a sexual nature such that the sexual integrity of Justice of the Peace X was violated...Having committed sexual assault, Justice of the Peace Obokata clearly misconducted himself within the meaning of section 12 of the Justices of the Peace Act."


     - that Justice of the Peace Obokata be formally reprimanded by the Review Council for his conduct and the discredit that his conduct has brought to the bench pursuant to section 12(3.3)(b) of the Act; and

     - that as a condition of continuing to sit as Justice of the Peace he be required to undergo assessment and treatment and counselling for potential alcohol abuse and gender sensitivity training with proof in writing to the satisfaction of the Justices of the Peace Review Council; and

     - that J.P. Obokata be suspended without pay for 30 days.

     Her Honour Justice Mocha reasoned that judicial officers are human beings with all the frailties that entails and acknowledged that mistakes will be made.  She went on to conclude that public confidence in this particular justice of the peace was eroded but not lost.  The key question she reasoned was whether the misconduct is a correctable error.  She found that it was and that a lack of tolerance for the misconduct can be accomplished through a penalty short of removal from office.

Indemnification for defence

     Her Honour Justice Mocha recommended that Justice of the Peace Obokata be compensated for all of his costs in connection with the Inquiry.  This is notwithstanding her  clear finding that he committed a sexual assault on a fellow justice of the peace.

NOTE:  This piece is written for the sole purpose of drawing public attention to an issue of public importance, namely, the complaint process involving justices of the peace, the right of justices of the peace to counsel and to defend themselves in such proceedings and the right of the public to be fully informed.  Democracy works best when the people are well informed.