Friday, 29 July 2016

Scottsboro Boys, Canada 2016?

                                            *footnote added August 3rd, 2016*
                                            *footnote added October 4th, 2016*

The Ururyar decision issued July 21st by Ontario Justice Marvin Zuker happens to create a bit of a convergence for me. I don't particularly want to write about individual decisions here, but there is a judicial independence issue involved that is peculiar to my field of expertise, public schooling. 

First, I should say from the outset that Zuker is more than a name to me because he is an education law expert, and has written a book from which I've used a passage or two. I actually didn't know he was a judge, but once I did, I was inclined to regard him positively. 

But I'm not that happy to see a brown guy unable to catch a break in a Canadian courtroom otherwise dominated by white people and relative to a white accuser, and I found both the judge's decision and his manner to be troublesome, based on news reports. So I found myself googling Judge Zuker to find out whether it's the same person who wrote the book. Seems it is. And then the OISE links popped up. Turns out that on the side, Mr. Justice Zuker is a university instructor, and specifically, he teaches at the Ontario Institute for Studies in Education.

OISE is the University of Toronto's version of an education faculty, and it is the wellspring of much of what is wrong in Canadian education. What is wrong with Canadian education is the same thing wrong with it in most of the western world: it is full of charlatans. Pedagogy is, and has been since its inception in the 1800s, a branch of experimental psychology that is practiced on non-consenting minors without input controls or outcome measurement. Intellectually or morally, it has no place in any university. But thanks to attendance at school being compulsory in all provinces, and the hiring of university-trained teachers being equally so, pedagogy has enjoyed a double buffer from client feedback for 150 years, and I am here to tell you it has not aged well under those conditions. 

But don't take it from me. In the preface to his 1964 book, American Educational Theory, Stanford PhD and then-Associate Professor of education at Ohio State University Charles J. Brauner said: "The commonly accepted dichotomy in education - theory vs. practice - takes "theory" for granted. Professionals talk so much about the importance of philosophy of education in teacher training that the assumption that education has a philosophy or philosophies is too often overlooked. Education's presence as a department in most universities strengthens the unexamined conviction that there must be a body of subject matter worthy of being called a discipline. The absence of standards for discerning discipline status goes unnoticed. And the difficulties associated with the mixing of sense with nonsense defy analysis because they escape scrutiny."

The mix of sense with nonsense in edschools leans heavily toward the nonsense, only alleviated occasionally because universities attract smart people, and occasionally, one of them is able to step outside the nonsense framework and do some credible work (like Dr. Brauner). However, they are usually vilified and excluded by their peers, and OISE in particular is not one of the places they might look for support. The ratio of sense to nonsense that emits from OISE is particularly low. I would not be particularly content if a judge had a teaching gig at any school of education, but of all the gin joints in Canada, Judge Zuker has a teaching gig at OISE. 

The fact that he has a teaching gig at all absolutely staggers me. I cannot recall having heard such a thing of any other judge. I have no idea how it would pass the judicial independence filter no matter what the faculty or the university for a judge to be a university instructor. I assume that means he takes a paycheque. Even if he teaches for free, there is a relationship here that is an obvious - to me - violation of judicial independence.

One of the tenets of judicial independence, if my memory of my reading on the subject serves, is judges being paid well enough that they are not vulnerable to being swayed by money. I assumed this was a matter of immunity to bribery or corruption. But it should also function to ensure that the judge has only one institutional allegiance: to the courts.

As the late Mr. Justice T. David Marshall, also of the Ontario courts, put it in his 1995 book, Judicial Conduct and Accountability, "Put simply, to accomplish their judicial role in society, judges must be separated from government and indeed from all concentrations of power." The issue in judicial independence, then, is power. So even if all judges had to have jobs on the side to survive, it would appear important that such jobs not be with "concentrations of power."

A judge being employed to help out at a corner grocery store would not be all that problematic from a judicial independence perspective. However, the U of T is another thing entirely. U of T is a powerful economic, social, and legal entity. Universities in general are a powerful societal presence. And this was a campus rape accusation. It is my belief that on that basis alone, Judge Zuker's assignment to the case was a risk to judicial independence.

Even a judge employed at a corner grocery would have to recuse him or herself on some cases, for example, anything to do with zoning, traffic, competition, or supply that might affect the store; maybe even labour laws or fire safety standards. A judge employed by a university might have to recuse themselves on several more. In this case, a competing institution to the U of T was involved, and while I do not believe that university policy was involved, the university community as a whole is struggling with rape as an issue.

The recent history of campus rape stories (I don't even want to credit them with the unqualified word "rapes") is highly problematic. Without for a moment minimizing the impact of actual rape where it has occurred, there is a great deal of uncertainty not only about the nature of sexual relationships within universities, but about the role of the institutions in managing them. There is a deeply significant issue here that actually stands to threaten the rule of law. The issue of university codes of conduct, and who is responsible for their enforcement and what tools they may use, stands to give the universities a degree of law-making power over a certain constituency or a certain geographic territory. The management of this evolution of university power is so significant that it strikes me as being of the utmost importance that judges be independent when they consider any cases that touch on it. 

The judge's campus connection is problematic from at least two other angles. One, the defendant is a university instructor. Mr. Justice Zuker is a university instructor. The judge chose to comment on the defendant's employment arrangement. (Specifically, "Twenty-two thousand for doing nothing," Zuker said, and muttered something about it being a nice gig," per Christie Blatchford in the National Post). The spectacle of one university instructor berating another for his employment arrangement was beyond absurd, and detrimental to public confidence in the courts. This is entirely beside the fact that the the judge's comments overlook that the employer has a contractual obligation to Mr. Ururyar that it likely cannot suspend on the basis of rape charges, perhaps due to that pesky presumption of innocence thing. 

The other perspective from which the judge's decision to opine on the defendant's income was risky was in light of the trial court's unique role in the court system is as the finder and trier of fact. The appeal courts will only interfere with findings of fact when the mistakes become "palpable and overriding," that is to say, when they become so obvious as to be readily apparent, and so significant they would have changed the outcome of the case. The deference to the trial courts on facts is because the trial judge, seeing and hearing evidence directly, is deemed to have an advantage over appeal courts in assessing fact. The appeal courts are seen as superior arbiters of law, and are constituted to address legal errors.

If the absurdity of a non-lawyer trying to explain the intricacies of the courts can be overlooked for a moment more, it is my impression that everything else the trial courts are empowered to do - exercise their discretion, assess character and trustworthiness, and so on, is intended to support their duty to dispense justice based on the facts of the case. This they do by applying the relevant law to the facts. 

I have read only a few hundred judicial decisions (not many relative to how many lawyers or judges will have read) but even on the basis of my slim sample, I have noticed that there are some trial court judges who do not appear to take their own role as finders and triers of fact all that seriously. They seem to be more interested in doing other things. I refer to this as "pining for the fjords," a phrase for which credit must be given, of course, to Monty Python. Some of them seem to think they should already be an appeal court judge, or they expect to become one later, and so they already feel that facts are slightly beneath them. They can hardly get through the facts fast enough before they begin pontificating about the law. Others appear to be so nostalgic for their previous role as lawyers that they act as if they were co-counsel for one side or the other, and rather than dwelling on the facts, they linger on argument. 

Either of these behaviours leaves the facts of a case in something of a no-man's land. These trial judges can't be bothered with them, but then the appeal courts won't touch them out of deference to the trial judge. 

What Mr. Justice Zuker's aspirations are, I cannot say. But what I can say is that the tendency to express opinion about the defendant's employment relationship, in particular, strikes me as being both outside the role of a trial judge and inappropriate given that the judge himself has a similar contractual relationship. 

Finally, there is the matter of content. Mr. Justice Zuker's findings are heavily based in the progressivist world view. Progressivism originated in university faculties of education and propagated itself through the academy and into public school systems from that base. If his lack of independence from his role at the university were not already problematic on any other front, the progressivist nature of his decision alone suggests that judicial independence was compromised by that relationship.

What is wrong with progressivism, fundamentally, is that it is a breed of utopianism, so it does not compromise. Therefore, it is fundamentally totalitarian; not compatible with democracy or with the rule of law. It is not compatible with intellectual pursuits either. There is deep irony to this, since it is embedded root and branch in universities. It gained a foothold there right at the dawn of the secular age, when universities emerged from the shadow of churches to separate knowledge from belief. That universities should now be the source of belief rather than knowledge is tragic, but a very salutary tale of institutional failure. Today, the tenets of progressivism and the pedagogical methods that propagate it can be found throughout the university, having just in the past ten years infected even medicine and law (you can read about "student-centred education" on most medical school websites). Thus, the toxin that would end the intellectual age for which universities were the stimulus was present from their very inception. The failure to root that toxin out can be attributed, probably, to the fact that edschools became one of the first cash cows that universities enjoyed when they captured teacher training from the Normal Schools.

But I digress. 

To be deemed independent of all the sources of power that his association with OISE conjures up, Mr. Justice Zuker would have had to distance himself from progressivism. He did not. Instead, Mr. Justice Zuker appears to have made his decision not from deep within the most sacred principles of law, as did the judge who decided the Ghomeshi case, but from within one of the most cherished tenets of progressivism: militant feminism.

We saw militant feminism in action in its public response to the Ghomeshi case: it wants the law to succumb to belief on the basis of gender: if you're a woman, you're believed, and if you're a man, you're not. Militant feminism is at odds with the rule of law insofar as it has no room for the presumption of innocence, and has no interest in whether a standard of reasonable doubt has been reached. This is not a correction of the patriarchical norms against which original feminism evolved, but a simple reversal of them, and does the law no more credit than did the original version.

There is actually a really disturbing trend among men who side with militant feminism. They are often fundamentally more chauvinistic than average. This shows up in a variety of ways. Militant feminism actually infantilizes women by believing they have to be protected from themselves. At the extreme, if women are unable to achieve clarity on whether to have sex or with whom, militant feminism insists they must be protected from the consequences of their actions by the force of law. Also, the type has to be acknowledged who sets up a persona as a women's advocate or student of women's studies and meets a lot of women that way - and often, women who have low enough self-esteem to need the security of the feminist collective hive mind to achieve their identity. These women are particularly vulnerable to being used for sex by people who do not love or respect them. And because of these two elements, one has to wonder about how men who cheer on militant feminism really feel about women: do they feel threatened? opportunistic? superior? emasculated? In my experience, their behaviour certainly doesn't reek of equal.

Militant feminism is a part of OISE, and women's equality in law is, independently, one of Mr. Justice Zuker's interests. Sadly, that his interest was pursued in the vein of militant feminism would have been another reason not to assign him to a rape case. If he were simply an expert in anti-female bias, that would be one thing. But where expertise itself morphs into bias, the capacity to adjudicate fairly has been lost.

And when it comes to assessing whether adjudication has been fair through a feminist lens, it has to be noted that this was a case where two female lawyers appeared before a male judge. I'm dammed if I want to see case assignment based on the sex of judge or lawyer, much less of litigant, but it seems to me a factor that must be surfaced and examined if its subtle effects are to be overcome. Like all other aspects of judicial quality assurance, the legal system trusts that this one is satisfactorily resolved in the mind of the judge. To achieve that, a male judge would have to ask himself if the attractiveness of the lawyers has influenced his decision. I wonder whether any studies have been done of this phenomenon. Not that female judges, homosexual judges, or any others should not be asking the same questions of themselves, but the parameters are slightly different based on what each of us instinctively responds to.

The actions of Mr. Justice Zuker bring us back full circle to the Canadian Judicial Council's recent paper on judicial independence that I wrote about two blog posts ago, and my last post about judicial error. They illustrate how fundamentally irrelevant the CJC paper is. I doubt very much that Mr. Ururyar needs an explanation of "Why Judicial Independence is Important to You". The man is sitting in jail due to a failure of judicial independence. The problem, if this case is any indication, is that judicial independence does not appear to be important to judges.

What faces the judicial council* now is the question of its own processes. What this is, at core, is a simple mirror image of the case of Justice Robin Camp, then of the Provincial Court of Alberta, now of the Federal Court, who faced an inquiry by the CJC for making inappropriate remarks about a rape accuser. In the Justice Camp case, a complaint was made to the CJC by four female law professors and a formal inquiry ensued at the request of the Alberta Attorney General. It was obvious, and a good thing, that when a female accuser was treated badly in court, the legal system responded on her behalf. It is actually irrelevant whether male or females responded: lawyers did.

But now a male accused has been treated badly in court. The question now hovers: will any law professors, male or female, step forward to complain about this judge's conduct? Will anyone else? Will an Attorney General intervene? And if not, why not?

And if no one steps forward with a complaint on the mirror image of the Justice Camp case.... does the CJC do nothing? Can it do anything?

The history of what once happened in rape cases, which was reanimated by the comments of Justice Camp, does not look good on the judiciary today, nor did it then. But replacing contempt for accusers with a witch hunt for accused is not any better. Equality and access to justice, when all is said and done, simply mean the delivery of better law. 

Speaking of equality, I titled this post after a 1931 American case in which nine black teenagers faced a fabricated accusation of raping two white women. Here's the trusty Wikipedia link: The case did not really have a happy ending, although the initial wrong decision was set aside by Judge James Edward Horton, whose biography, with some quotes from his decision, can be accessed from the above link. The case, it is worth noting, brought the problem of racial make-up of juries to the fore, and changed how jury assignment was practiced.

I'm not going to linger on the race issue, but it seems to me to loom large. The pattern is simply too strongly entrenched in law - and law enforcement - to be ignored. It does not mean the man cannot be guilty. But it does mean that a judge should have taken extraordinary care to ensure that he was, if he found him so, and to treat him with as much respect as any other accused might experience.

Really, none of this is rocket science, which is what makes its occurrence so damaging to public confidence in the courts. Judge Horton put it quite succinctly: "So far as the law is concerned it knows neither native nor alien, Jew nor Gentile, black nor white. This case is no different from any other. We have only to do our duty without fear or favor."

I don't think that happened here. I think that Mandi Gray, the accuser, got a favo[u]r. The decision may be overturned, and the favour rescinded. But overturning the decision will not address the errors that were made that caused the bad decision to occur. Those errors were multiple failures to guard judicial independence.

It is apparently not the public that needs to be reminded why judicial independence is important.


*Footnote added August 3rd: it's been brought to my attention that Mr. Justice Zuker may fall under the jurisdiction of the Ontario Judicial Council, in which case a different statutory framework would apply from that which applied in the case of Mr. Justice Camp. My qualitative references to the position of the CJC on judicial independence remain relevant.
*Footnote added October 4th: My comments here about Mr. Justice Camp were made on the basis of public reports. While the contrast between the two judges still serves in this post, my views of Mr. Justice Camp's comments have changed with the emergence of more information as his inquiry proceeded.

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