Since I’m no brain scientist, I thought I’d crack open a textbook (crowns believe in textbooks, right?). I had a look at Witness Testimony – Anthony Heaton-Armstrong; Eric Shepherd; Gisli Gudjonsson; David Wolchover – Oxford University Press (oup.com) – 2006 (thank goodness for a solid Calgary law library).

While skimming the book, I was looking very closely for the expected chapters on how traumatic memories can be incredibly unreliable and inconsistent – as assumed by most criminal lawyers and judges these days, especially when it applies to a complainant’s weak evidence. To my shock, I couldn’t find a single chapter (or page) stating this assumption!
The book is from 2006, long before the #MeToo movement, so maybe that explains it. It is amazing what kinds of horses**t pass for “common sense” and law these days.

As I mention here at #4, R. v. G.M.C., 2022 ONCA 2 states the following (emphasis added, para. 38):

After his general observations with respect to the assessment of evidence, the trial judge simply expressed some propositions, grounded in common experience, that are familiar to every trial judge and lawyer and to lay people. Although he used different language, I would express these as:

• observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;

Similarly, see the disturbing case of R v ADG, 2015 ABCA 149, at para. 33, emphasis added, which I mention here:

The Supreme Court of Canada has made clear that sexual assault cases should be decided “without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma”: R v Shearing, 2002 SCC 58 at para 121, [2002] 3 SCR 33. There is no inviolable rule on how victims of sexual assault will behave: R v DD, 2000 SCC 43 at para 63, [2000] 2 SCR 275.  It cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way.

See also the irresponsible and dangerous claim made by L’Heureux-Dubé J. in R. v. Osolin, 1993 CanLII 54 (SCC) (cited approvingly by Prof. Tanovich in his similarly-irresponsible article that I review here), supra note 4 at 625, where she notes that (emphasis added), “[t]here is absolutely no evidence to suggest that false allegations are more common in sexual assaults than in other offences; indeed, given the data indicating the strong disincentives to reporting, it seems much more likely that the opposite is true.”

Now let’s see what the textbook says. It begins “when witnesses lie by providing an account – whether to investigators or in court – which they know to be untrue the detection of their deceit, especially if they appear plausible or where there is no supportive or contradictory evidence, is elusive and prone to error” (p. 2, emphasis added).

Chapter 6 deals with recovered memory and false memory, and Chapter 7 deals with “crime-related amnesia.” Surely, Chapter 7 deals with trauma-related memories? Not really. It mostly deals with offenders and their convenient claims of “amnesia” – moreso than those of “victims.” As “a rule of thumb, one can say that 20 to 30 per cent of those who commit violent crimes claim amnesia” (p. 107). It states that older studies showing 20 per cent of offenders who claimed amnesia were malingerers (liars) is actually a very low number, and there are “good reasons to believe that the rate of malingering is much higher” (p. 109). Surely, no complainants are malingerers, especially if they’re brave enough to claim to be assaulted, given “disincentives” to reporting?

Here’s the “money” quote (p. 111, emphases added):

In comparing offenders’ memory before, during, and after the crime, Christianson and von Vogelsang [footnote omitted] found that it was more common to completely lose memory of what happened during the crime than information immediately before or after the crime. This pattern was evident for both groups, but was most pronounced in the reactive group. Note that this pattern is opposite to what is normally found when studying memory for emotional events. That is, subjects typically remember the emotion-inducing event quite well, but show impaired memory for information preceding and/or succeeding the highly arousing event.

This would suggest that the “law” that “trauma-affected” memories (of course, assuming trauma occurred, which is perhaps inconsistent with the presumption of innocence, to start) are often recalled poorly is nothing but pure, unadulterated, Grade A Alberta horses**t – of course, it is also binding “law” on just about all courts. It is not “soft science” or any other kind of science – although it is perhaps a selective distortion of science.

I also deal with this here, at #6. Note that my favourite podcast recently dealt with this topic, as well.

Complainants are well-coached by Crowns (ethically or otherwise) these days to claim “trauma” and to insinuate that their glaring inconsistencies should be entirely discounted, given their “trauma.” I had one lying complainant claim that “you’re in trauma. You’re not going to remember everything until everything settles out” explained why she left out significant details in her initial report to police – regurgitated by the Crown in closing submissions when claiming that her lying witness should be believed despite her inconsistencies. The gullible judge clearly accepted these “submissions” – asking me (emphasis added):

So just — just drawing from normal human experience where one is struck to the point of unconsciousness or being rendered unconscious, is it unreasonable for that person perhaps to have things mixed up? The chronology of events mixed up or — and, you know, we don’t have any experts here, but just, you know, drawing from human experience, when a person is put into a traumatic situation or a very fluid situation where there is violence involved, you know, are you suggesting that, you know, if you have a sequence of events, they’ll — messed up, that that points to the — points to a deliberate attempt to mislead the Court or — — you know, goes to credibility?

Yes, sir, yes it does. It also goes to reliability, too. Needless to say, my client was wrongly convicted.

How many dozens of wrongful convictions are happening daily thanks directly to this clearly well-established “science” and law?

To quote the timeless Eddie Greenspan from 35 years ago: “if we keep diluting our evidentiary rules; if we threaten our police, Crown attorneys, and judges with censure for applying the same common sense, or the same discretion, in cases of alleged sexual assault as they do in all other criminal investigations and trials, we will inevitably end up with innocent people convicted and ruined.”

I recently read Richard Posner’s excellent 2010 book, How Judges Think. He pulls back the curtain on judicial thinking, clarifying a topic seldom discussed or understood. He puts the lie to the commonly held perception that judges’ reasoning is (for the most part) Divinely inspired. He reinforces Justice Berger’s somehow-controversial comments in R. v. Gashikanyi, 2017 ABCA 194 (decision cited approvingly in R. v. Parranto, 2021 SCC 46, at para. 130) that “Judges are no different than butchers, bakers, and candlestick makers” (at para. 72). I thought now is a good time to post my thoughts on the book, especially given the recent international uproar over the US Supreme Court’s expected reversal of Roe v. Wade and – on a smaller scale – the ABCA’s decision on pipelines and the SCC’s decision in Brown (discussed at #2 and 9 of last week’s update). I also deal with the subject generally in my December 2021 blog post: Policing Thoughtcrime: The Role of Law Societies? – Moldofsky Law. See also.

He points out, at p. 114, that appellate review is often “intuitive”: “So what is involved in appellate review is, at bottom, simply confidence or lack thereof in another person’s decision. That is an intuitive response informed by experience with similar decisions. It is not rule- or even standard-driven, except in the clearest of cases, but it is not mindless guesswork either.”

He laments the lack of methodological rigour that goes into training judges (p. 118): “Apart from brief orientation sessions and occasional continuing legal education seminars, judges in our system are not actually “trained,” which is an interesting commentary on the methodological rigor, or rather the lack thereof, of judging. Judicial training is “learning by doing” – a further clue to the largely tacit character of judicial reasoning.”

He has some practical advice for appellate counsel (p. 119), which incidentally reminds me that I wanted to review Point Made one of these days: “Rather than beating appellate judges over the head with cases, which is the standard technique of appellate advocacy, appellate lawyers would be more effective if, recognizing the essentially legislative character of much appellate adjudication and the essentially pragmatic disposition of most American judges, they emphasized instead the practical stakes in their cases and how the stakes would be affected by the court’s deciding those cases one way rather than another.”

He mentions judges’ “reversal aversion” (p. 141): “District judges also do not like to be reversed. Even though a reversal has no tangible effect on a judge’s career if he is unlikely to be promoted to the court of appeals in any event – and little effect even then – it can imply criticism rather than merely disagreement, and no one likes a public rebuke.”

He excoriates judges’ intellectual laziness and bullying tactics (pp. 142-3): “Because a federal district judge has more decision freedom than judges in career judiciaries, personal factors – including the kind of intellectual laziness that consists of acting prematurely on intuition rather than (also) on analysis and evidence, and even the delights of tormenting the lawyers who appear before the judge – are likely to play a larger role in his behaviour than in that of his counterparts in career judiciaries perhaps especially tormenting the lawyers, because that affects neither the judge’s reversal rate nor his backlog, but on the contrary reduces his backlog by inducing more settlements.”

He notes the obvious – that judges can be highly selective in their use of language and are capable of “spinning” almost anything, as are lawyers too, certainly (p. 144):

Appellate judges in our system often conceal the role of personal preferences in their decisions by stating the facts selectively, so that the outcome seems to follow from them inevitably, or by taking liberties with precedents. Yet the doctrine of precedent exercises some constraint even on the minority of appellate judges who are ambitious to place their own distinctive stamp on the law. […]

A newly-appointed Supreme Court justice may pay lip service to most of the Court’s earlier decisions even if he dislikes the policies on which they rest. But he will construe those decisions narrowly in order to minimize their impact. And when he finds himself, as he often will, in the open area in which conventional sources of law, such as clearly applicable precedents, give out, he will not feel bound by those policies. So if he can command a majority the law will veer off in a new direction. Eventually, the old precedents will be interpreted to death, or finally, overruled explicitly. (pp. 276-7) […]

There is almost no legal outcome that a really skillful legal analyst cannot cover with a professional varnish. So a Supreme Court justice – however questionable his position in a particular case might seem to be – can, without lifting a pen, or touching the keyboard, but merely by whistling for his law clerks, assure himself that he can defend whatever position he wants to take with enough professional panache to keep the critics at bay. (p. 286) […]

If the Justices acknowledged to themselves the essentially personal, subjective, political, and, form a legalist standpoint, arbitrary character of most of their constitutional decisions, the – deprived of “the law made me do it” rationalization for their exercise of power – they might be less aggressive upsetters of political applecarts than they are. But that is probably too much to expect, because the “if” condition cannot be satisfied. For judges to acknowledge even just to themselves the political dimension of their role would open a psychologically unsettling gap between their official job description and their actual job. Acknowledging that they were making political choices would also undermine their confidence in the soundness of their decisions, since judges’ political choices cannot be justified by reference to their professional background or training. Judges do not like to think that they expressing an amateurish personal view when they decide a difficult case. Some judges “agonize” over their decisions; most do not; but both sorts feel a psychological compulsion to think they are making the right decision. (Some judges think that just by virtue of their having been made judges, their decisions must be right, or at least as right as any other judge’s). A judge who does not become comfortable with his decision by the time it is handed down might ever after be tormented by doubts that it was correct. No one likes to be tormented, so judges do not look back and worry about how many of their thousands of judicial votes may have been mistaken. (p. 289)

He points out the Supreme Court’s sensitivity to its portrayal in mainstream media (p. 146): “The irony is that Supreme Court justices pay even less attention to academic criticism than lower-court judges do, though more to the reactions of legislators, the general public, and the media.”

He criticizes the similarity and/or lack of diversity among most judges (p. 155): “Judges who come from the same social and professional background are likely to think alike. So when they disagree they will be arguing from shared premises. Arguments from shared premises can lead to objectively verifiable conclusions – which is not to say that the conclusions are correct. Conclusions that follow logically from incorrect premises have no warrant of correctness.”

He points out the obvious problem of life tenure (p. 158): “Whether in the academy or in the judiciary, life tenure guarantees independence but also invites abuse because it eliminates any penalty for shirking.”

He makes the interesting point that judicial salaries need to be just high enough and not too high (p. 169): “Another effect of a much higher salary, having a similar consequence, would be to attract leisure-loving practitioners. […] And so the obverse of the proposition that low judicial salaries drive out dissatisfied judges is that the low salaries operate as a screening device: only lawyers who really want to be judges will accept the financial sacrifice required.”

He notes the arrogance (colloquially known as “judge-itis” that sometimes accompanies a judicial appointment – p. 306): “Cocooned in their marble palace, attended by sycophantic staff, and treated with extreme deference wherever they go, Supreme Court justices are at risk of acquiring an exaggerated opinion of their ability and character.”

While I’m on the topic, I thought I’d mention some related points from other works.

In Judicial Conduct and Ethics (by Shaman, Lubet, Alfini – 1990, Michie), the authors note that “Unfortunately, the public and organized bar appear to be more interested in judicial ethics and judicial accountability than the judges are” (p. vii), and that “acquiring a sensitivity to ethical issues will help avoid the two principal charges filed against judges: (1) conflict of interest and (2) inappropriate demeanour (unnecessary harshness, sarcasm, and name-calling)” (p. x). Judges are to: “perform their work with a high degree of competence, and should treat litigants, witnesses, attorneys, and others who appear before them with courtesy and respect. […] In sum, they should inspire trust and confidence, and should bring honor to the judiciary” (p. 2).

They also note that (p. 31), “Vindictive comments or threats towards attorneys in connection with court proceedings have generally been prompted by improper retaliatory motives on the part of the judges in question. Thus, judges have been sanctioned for making rude and vindictive comments or threats to attorneys who sought to disqualify the judge, bring disciplinary charges against the judge, or appeal a ruling of the judge.”

In Judges on Trial by Shimon Shetreet (Elsevier, 1976), the author cites (at p. 187) R v Gray [1900] 2 QB 36 (could not find digital version), in which “The Court expressed the view that ‘judges and courts alike are open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to the law or the public good, no court could or would treat this as contempt of court.’” See also here and here.

Quoting R. v. Ex Parte Blackburn 1968 QB, he states (p. 190):

Lord Denning M.R. stated that the courts will “most sparingly exercise” the power of contempt, and will never use [it] as a means to uphold [their] own dignity. Commentators are fully entitled to voice outspoken criticism. […]

Salmon L.J. said:

It is the inalienable right of everyone to comment fairly upon any matters of public importance. This right is one of the pillars of individual liberty – freedom of speech… no criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith.

At p. 244, he notes the importance of civility as between the Bar and the Bench: “Sankey L.J. observed: “the Bar is just as important as the Bench in the administration of justice, and misunderstandings between the Bar and the Bench are regrettable, for the prevent the attainment of that which all of us desire – namely, that justice should not only be done, but should appear to have been done”” (Hobbs v. Tinling 1929).

I have lots to say about Legal Aid Alberta (LAA) and its funders. They’ve slashed their budget drastically the last few years – with an extreme, detrimental impact on both the public and the lawyers who depend on it for their livelihoods. Given their very tight budget (and drastic reductions in funding from Alberta’s provincial UCP government), they’ve made the decision to fund far fewer matters (certificates), for less money per certificate, and to nickel-and-dime its roster lawyers to exasperation.

LAA admits as much: “we committed to reimagining the way we operate to refine our business processes to maximize our funding dollars—and ultimately enhance our services to clients” (p. 6 of PDF, 2019-2020 LAA Annual Report, emphasis added). Everything else about the reports demonstrates this as well. Below, I will detail the dollars and cents.

Average cost for Level 1 certificates (adult) was $1,152 in 2020 (about 70% of all certificates – criminal is about 80% of total certificates) – slightly lower for youth at $853 (p. 13). Down to $1,074 in 2021 (p. 17) – a relatively small reduction of 7%. Average family law certificate spend was $3,391 – p. 14 – 3 times the spend for adult Level 1 criminal certificates.

LAA’s total spend in 2020 was about $70 million for certificates (drastically reduced by 35% last year) and about $41 million for internal expenses (staff, lawyers, overhead, etc. – p. 27), which totals ~$110 million – about the amount they made in revenue that year (approx. 80% from AB government). Legal Aid has 300 staff (including lawyers) and 1,200 roster lawyers (p. 8 – here).

For the next year (last year – 2020-2021), the average cost of duty counsel roster certificates went down about 15% from the 2 previous years (p. 17, 2021). Interestingly, the total number of Level 1 certificates went down from 20,000 or higher over the previous 3 years to a mere 13,000 in 2021 – a reduction of 35% (in addition to the 35% reduction in total certificate spend, 25% reduction in criminal certificate spend, and 12% reduction in criminal per certificate spend). The number of Level 1 youth certificates went down by a full 50% (p. 18). Interestingly, youth certificates had far less fluctuation in cost per certificate (looking only at Level 1 and 2/2.5) than adult certificates from 2020 to 2021.

Family certificates, on the other hand, went up in cost per certificate (about 20%) last year – p. 18, although the total number of family/child welfare certificates issued also decreased drastically (by about 50% – even higher if you look at previous years). Immigration certificates also were drastically reduced (about 70% in quantity) but increased in cost per certificate (about 20%).

Average Level 2/2.5 certificate spend was $2,354 in 2021 – down more than $200 from the year before (considering that there are 6,741 such certificates – a total savings of approx. $1.5 million right there; similar to the total savings per Level 1 certificate from the previous year). The total savings on Level 3 certificates is about $1 million. Per certificate savings total about $4 million (about 12% of total spend on criminal certificates of $31 million) last year then – even forgetting the drastic 35% reduction in number of certificates, which seems to have saved LAA another ~$30 million.

Total revenue in 2021 was only $70 million from the province (a reduction of $20 million). Total savings on criminal adult certificates was about 25% from 2020 to 2021 (from $42 million to $31 – p. 31). Spending on family certificates was reduced from $17 to $9 million – about a 50% reduction. While LAA’s overhead and staff expenses experienced a slight increase, their total spend on roster went down drastically from $69 million to $45 (35%) in a single year. So the total “pot” available for the roster was cut by more than one-third in one year alone.

Note that Ontario’s total Legal Aid expenses was reduced a more modest 15% in 2021 (p. 36) – and government revenue was stable (p. 34), although they’re expecting a huge, appalling 30% decrease in provincial funding this year, despite significant and necessary pushback from both the defence bar and the judiciary. A slight reduction in average cost per criminal certificate in Ontario (p. 28 – $1,750 to $1,672 – about 5%; similar to the reduction in cost per certificate in Alberta – and also cost per certificate, although Ontario had much less of a drastic reduction in number of criminal certificates issued – about 10% there to 35% in Alberta – see. p. 26).

In Ontario, the tariff is also much better to counsel, as it generally pays a lot more. Further, the hourly rate is significantly higher than Alberta’s (by some 10-60%), and BC’s hourly rate is even higher. Total spend on criminal certificates increased from 2020 to 2021 in BC (p. 23).

All this in a time when criminal cases are supposedly at an all-time high, with record numbers of new judges and crowns being hired (all unionized and compensated quite comfortably, of course). Note, “The release said that in the past two years there has been a 12 per cent increase in the number of active criminal cases.” So, criminal cases in Alberta have not at all reduced – merely LAA’s willingness to fund them (by 35%), and for the few that they do fund, they insist on pinching every last penny.

Note that LAA had a surplus of nearly $7 million last year (p. 31 – I wonder how much of that total is owed to its roster lawyers?), and pretty much “broke even” the year before. Instead of “streamlining” or “modernizing” the tariff, they could start by paying a reasonable wage, treating roster counsel with basic decency, and not drastically reducing the number of matters it funds in one year (by 35%, with a subsequent reduction in roster spend of 40% – particularly when their internal expenses increased – clearly, their salaries didn’t go down, while we were chopped by up to 40%).

Looks like LAA tried to pay call centre agents up to 18% less a couple of years ago. LAA appears to have a single-minded focus, and that is to save every penny possible. Whether that’s consistent with their duty to the public or to roster counsel appears to be irrelevant, in their view. Their “relationship” and “trust” with roster lawyers appears to be at an all-time low, and it’s not clear that they care about that one whit (note their disrespect to senior counsel about the contract they force roster counsel to sign, referred to by senior counsel as “shocking” and “disrespectful”). Note also their ironic claim to conduct “business to the highest ethical standards” (p. 8), which is especially hilarious if the person “in power” who attempted to bribe said senior counsel in the above article by offering her a vaunted Q.C. appointment were she to essentially shut up was on LAA’s payroll.

I’m looking forward to LAA’s 2022 report – I suspect it will be released in July (last year’s was July 27). I definitely hope it’s not as awful as 2021 (July 2022 edit: here it is. Roster spend went up by 15%, and provincial funding increased 18% – I’ve made a handy spreadsheet here).

Looking at Alberta’s provincial budget alone; its health budget is $22 billion next year (p. 127) – more than a third of its total budget. Education is $8.4 billion (p. 131) – not including post-secondary. Its funding of Crown prosecution service (ACPS) is $99 million (includes prosecutors, already well-paid, who received a significant and well-deserved pay bump recently; note, it does not include federal prosecutors for drug offences) – 3 times what LAA paid for adult criminal roster counsel, $63 million for “Victims of Crime and Public Safety Fund” (almost twice what LAA paid for adult criminal roster counsel), some $215 million for Court and Justice Services (judges who are paid approximately $0.5 million each per year if you include pension, etc. which is apparently not enough; note 13 new Alberta judges appointed just recently – possibly includes Legal Aid) – a 10% increase from the last year (p. 137), for a total of a whopping $1.48 billion for the justice system (also includes exorbitant amounts to police and prisons – provincial only; as an aside, the $0.5 billion the province spends on police is separate from the other $0.5 billion spent by the City of Calgary alone on its police services). A mere $31 million spent by LAA on roster counsel for adult criminal certificates, and $42 million on total roster (includes family, immigration, youth criminal, etc.). The total of $42 million spent on legal aid certificates is down a shocking 40% from the year before. I will put some charts below.

It’s very simple, LAA and provincial governments around the country: either fund Legal Aid properly or continue to decimate the strength and independence of the defence bar, openly encourage wrongful convictions and inappropriate guilty pleas, and make it more obvious how little you respect the vital work of the criminal defence bar by funding them exponentially less than everyone else in the justice system. Your call – not mine.

Charts