I don’t usually get political but I’m afraid I need to in this case.

The recent explosive headline in Alberta is that Danielle Smith – currently Alberta’s premier and leader of the United Conservative Party (UCP) had a phone conversation with Artur Pawlowski, a pastor who is currently awaiting verdict on his criminal trial for “mischief” – essentially for inciting protesters to block traffic during the early days of COVID in Coutts, Alberta.

There is an Alberta election upcoming in May. The NDP are desperately seizing on this story for much-needed traction in the battle, with the assistance of the media and the public. Surely, their premiers never talk to prosecutors.

Smith had been previously accused of “inappropriate” communication with the Alberta Prosecution Service (Crown) in relation to these charges. She appears to hold the view that the charges are mostly political and frivolous – perhaps a reasonable viewpoint though certainly not mainstream – and has suggested that the Crown drop the charges. Initially, multiple emails were confirmed by anonymous, “well-placed” sources to CBC to have been sent by Smith’s staff to prosecutors.[1] The existence of these emails were vehemently denied by both Smith and the Crown (the latter claiming to have searched nearly a million government emails finding no evidence of contact between Smith and the Crown – the search details being confidential, of course – perhaps as strong an internal investigation as SCOTUS did on its infamous recent Dobbs leak and subsequent decision).

Now, there is a video/audio recording of Smith’s phone call with Pawlowski. She seems frustrated (by the sound of it) that the Crown is not dropping the charges, and promises to continue further efforts to achieve same. Of course, she is now being pilloried for her attempt to “politicize” the Crown – essentially obstructing justice by giving her opinion to the Crown about these proceedings. At minimum, being clueless about how non-political the Crown is supposed to be and lying about her role.

What no one is criticizing are the Crown’s ethics and honesty, strangely. If the emails and/or recording exist and are valid and reflect reality (which I don’t see any reason to assume otherwise), how is Smith the only one doing something wrong? If her intervention is inappropriate, surely the Crown should have told her so immediately, disclosed the emails to the media and everyone else and made a big fuss about it. Instead, they deny the existence of the emails. Go figure.

Who did leak the emails and/or recording to the media (I’m aware that the video was available privately on YouTube for some time)?

The following educated guesses appear reasonable:

1. Pawlowski himself – however, I don’t see much reason for him to have done so. Smith already went out of her way to help him – why would he stab her in the back? Plus, he has morals.
2. Another enemy of Smith (e.g. Independence Party, which just booted Pawlowski, incidentally). This would be a bit of a conspiracy theory – they’d have to hate the UCP enough to attempt to destroy it, despite much common political ground.
3. Someone from the Crown’s office – if these emails exist (and the denials are lies), I’m guessing they’d be accessible to any prosecutor in the province? My understanding is all file-related correspondence is saved on an internal database that all prosecutors can access (or at least the prosecutors who need to access it – if not all). So Smith’s emails would have been shared – at the very least – internally with some Crowns. Even if the emails do not exist, surely Smith can be taken on her word that she had “almost weekly” phone conversations with Crowns about the files – surely there’s a record of those somewhere?

   If it was someone from the Crown’s office who leaked it, why would they do so? Perhaps to trash Smith and her party? Score political points of some kind?

   If that is the case, do they not realize that they also make the Crown look bad at the same time (for covering for Smith – assuming her behaviour is inappropriate)? And for possible ethical violations more serious than hers (she’s not a lawyer and is not bound to comply with legal ethics the way lawyers are)?

So many questions, so few answers. Even more puzzling is how no one else is talking about this.

Media:

Danielle Smith discussed COVID charges ‘almost weekly’ with justice officials, according to leaked call | CBC News

CBC News stands by Coutts story despite statement from Danielle Smith’s office | CBC News

No emails found between Alberta premier’s office, prosecution following weekend search, justice ministry says | CBC News

Alberta premier’s office contacted Crown prosecution about Coutts cases: sources | CBC News

Alberta Independence Party ousts leader Artur Pawlowski | CTV News

NDP wants investigation following CBC report of Alberta premier’s office contact with Crown prosecutors | CBC News

Alberta premier says she was ‘imprecise’ when saying she contacted prosecutors | CBC News

Prosecutor says pastor’s fiery speech at Coutts blockade was criminal | CBC News

[1] “That original story of Jan. 19 included allegations by well-placed sources that a staffer had sent a series of emails to the Alberta Crown Prosecution Service challenging the prosecutors’ assessment and direction of the cases stemming from last winter’s border protests at Coutts. The premier’s office denied the allegations, saying Smith had no knowledge of anyone on her staff doing so.

This is a copy of the letter I sent to Alberta Justice Minister this morning:

August 3, 2022

Via Email to: ministryofjustice@gov.ab.ca  

The Honourable Minister Tyler Shandro

Minister of Justice and Solicitor General & Deputy House Leader

204 Legislature Building

10800 – 97 Avenue

Edmonton, AB

T5K 2B6

Dear Sir:

RE:     Inadequate Legal Aid Budget has Roster Counsel at Breaking Point              

Criminal defence lawyers in Alberta continue to work incredibly hard for their indigent, highly-vulnerable clients and to maintain a struggling criminal justice system. They do this despite inexcusable underfunding by both your government of the Legal Aid Alberta (LAA) system over the last few years, as well as inexcusable conduct by LAA to minimize funding it provides to its roster counsel by refusing coverage and challenging invoices at every opportunity (note the CTLA’s comment that LAA engages in a “smoke and mirrors approach to cover up for the fact that they have been given insufficient funding to work with” – CTLA letter, dated July 15, 20220, p. 4 – press release).

While it is difficult to calculate the amount of money owed by LAA to its roster lawyers, it is straightforward to calculate the amount by which your government has underfunded LAA – and by extension, its roster lawyers – over the past few years.

Provincial government funding of LAA steadily increased from 2016 through 2019 (by 57%), and was then drastically cut by 35% through 2021, and slightly increased for 2022 to return back to 2018 levels. The 2022 amount was basically the same as 2017, which is inexcusable to say the least (particularly given the inflation rate of 17% since 2017).

Per the CTLA’s letter to you, emphasis added (p. 4 – and the CBC’s article dated Oct. 11, 2018), “In 2018 the NDP government added $14.8 million to the LAA budget, which was used to cover shortfalls for the 2018 year. The NDP committed to a further $17.5 million for 2019-2020, $16.6 million for 2020-2021 and $21.2 million for 2021-2022.”

The CDLA interprets that generously as a further $17.5 million for 2019-20 exclusive of the $14.8 million added to the year ending 2019 and onwards. While the CDLA’s numbers are somewhat inaccurate (p. 3), they tell a story of $54.6 million underfunded through 2022:

The corrected version should read as follows:

That’s an additional $25 million unaccounted for in the CDLA’s numbers.

Be that as it may, it is unclear why the numbers should be read as generously as the CDLA does. A simple reading of “a further $17.5 million for 2019-20” is inclusive of the $14.8 million added to the year ending 2019 and onwards. As such, the correct numbers should read [extremely difficult to paste chart here]:

As you can see, the total shortfall (or arrears) owed by your government to LAA is a whopping $174 million (and counting) over the last 3 years alone. At best, reading as generously as the CDLA, the shortfall should be $79 million.

It is unclear to me why this massive shortfall has hitherto been unaddressed by LAA, CTLA, CDLA, etc.

As I pointed out in my latest weekly criminal law update (#1):

Finally, Alberta’s criminal defence lawyers are mobilizing to address the $174 million funding shortfall from the provincial government to Legal Aid Alberta over the last 4 years: Alberta legal aid lawyers threaten job action over ‘funding neglect’ | Edmonton Journal (also Calgary Herald, CBC, Calgary Sun). Correct numbers here (spreadsheet).

I have also blogged about my concerns previously: The train wreck that is Legal Aid Alberta – Moldofsky Law.

I will not get into further detail, such as LAA’s roster spend decreased 16% from 2017 to 2022, while its internal spend increased 26% over that time period. The numbers speak for themselves, and are appalling.

I have reviewed your letter addressed to Mr. Savage, CDLA president, dated Aug. 2, 2022, stating that you are open to eventually consider increasing LAA’s budget, and that, among other things:

Access to justice is essential for Albertans. I encourage you to work with Legal Aid Alberta on their administrative review of the current tariff system. I am confident Legal Aid Alberta’s work on modernizing the tariff system will create many administrative efficiencies increasing accountability, sustainability, and transparency of our legal aid plan.

With the greatest respect, we do not need your platitudes. Nor do we need to “modernize” any LAA tariff system. What we need is for your government to honour its unmet commitment of $174 million over the last 3 years. I technically write only for myself, although I suspect many other defence counsel in Alberta share my views. I am gratified that CTLA, CDLA and other organizations are banding together to send a strong message to your office.

As the CDLA pointed out (p. 8 of its letter), the CBA reported that every dollar spent on Legal Aid returns $6 of public funds saved elsewhere (p. 2, CBA Backgrounder).

Solidarity from LAMDA and WiCCD is appreciated:

Defence counsel work tirelessly to safeguard the rights of some of Alberta’s most marginalized and vulnerable people. They provide skilled and necessary assistance in every corner of the province. They have done so in spite of rates that are a fraction of what Legal Aid organizations in other provinces pay, and with allocated hours, which mean they do much of their work for free.

I eagerly await prompt, public statements of solidarity with the defence lawyers of Alberta from the following organizations (not a complete list):

1. All levels of Court in Alberta
2. Criminal Lawyers’ Association (Ontario)
3. Alberta Crown Attorneys’ Association
4. Canadian Bar Association – Alberta branch
5. Legal Aid Alberta
6. Law Society of Alberta
7. Calgary Bar Association

I trust the above to be satisfactory and ask that you please contact me directly with any questions.

Yours truly,

Moldofsky Law

Efrayim Moldofsky

Barrister and Solicitor

Given the Supreme Court of Canada’s recent horrendous decision in R. v. J.J., 2022 SCC 28 (extending its half-decade Crown win streak for sex assaults at that Court to 35) that I blog about here and the recent jury verdict in the Jacob Hogaard case (noting the awful, one-sided media coverage of it), I thought I’d post my comments on the Jian Ghomeshi trial from 2016 which directly led to this awful legislation. Justice Moldaver even made very pointed (clueless, to boot) remarks to defence counsel Megan Savard at the JJ hearing criticizing Ms. Henein’s stellar and irreproachable (per Prof. Craig) defence of Ghomeshi (1:53-2:01). Clearly, the naïve and irresponsible government, media, general public and SCC viewed the Ghomeshi acquittals as a gross miscarriage of justice, when they were, in fact, everything but that. Listen to the recent embarrassing, irresponsible and cringe-inducing podcast by Jesse Brown of Canadaland on this, who continues to refuse to admit defeat (and/or his journalistic misconduct) in attempting to destroy Ghomeshi all these years now. I managed to get my hands on the trial transcripts of the Ghomeshi trial, and will review them below.

Since 2 of 3 complainants have a publication ban, I’ll refer to them as Complainants 1 (L.R.  – edit July 18, 2022 – Linda Redgrave, who subsequently waived the publication ban), 2 (Lucy Decoutere), and 3 (S.D.). Let’s deal now with some of those pesky details, shall we?

When confronted with emails largely contradicting her trial version of events, one complainant claimed the email was “bait” to get him to call to get her to explain why he punched her in the head. She didn’t think a “common person” would believe her explanation – y’think? She claimed at trial that she had no romantic feelings toward him after – again, highly contradicted by her emails (no, nothing at all to do with myths or stereotypes). Of course, nowadays, the SCC and Parliament have ensured that lying complainants are less likely to be confronted with their texts/emails that contradict their narrative without a s. 278 application and advance notice of the lies they can expect to have to answer for.

Complainant 1 (L.R.)

Ghomeshi had a bright yellow VW Beetle at the time (p. 45). He kisses her, then grabs her hair “really, really hard.” Later, she goes to his house alone after a taping. He then pulls her hair and punches her “multiple times” in the head – while he’s somehow also pulling her hair (57). Crown asks her why she didn’t run out of house, why she didn’t scream, why she waited so long to report – all arguably myths, technically. She claims that she didn’t report at the time, because of societal “stigma” of reporting sexual assault – star defence counsel Marie Henein properly objects to evidence of “societal stigma” and ends that.

LR never saw him again, but contacted him again. Did not discuss details of her allegations with Complainants 2 and 3.

Cross-examination – excellent. Begins by confirming that she took oath to tell truth both in police statement and at court. LR had reviewed her statement week prior. Her statement to police (13 years after the alleged incident) took a mere 25 minutes – shocking on its own. Police never asked her to show them neighbourhood of residence (or asked about it). Same with not following up on emails she admitted to sending accused. Does not recall officer telling her not to read more about the case.

Accused was smitten – not dazzled (later just an “interest”) – with her. Interesting distinction – obviously fibbing/lying. Denies telling her friend she herself was smitten by accused. Fudges on whether she told friend after first incident that she really liked him and wanted to see him again (technically, arguably a myth – many judges/Crown would eagerly jump in to protect complainant at this point these days on grounds of relevance and/or impermissible myths). Almost gets her to admit that she was angry after 2^nd meeting that he was not terribly interested in her. And that her third meeting was meant to be romantic between her and accused. Then gets her to admit that she went straight to the car after – not the pub – given that it was a snowstorm.

Then, gets her on the Beetle – it was a GTI. She’s “not a connoisseur of cars.” Told Kevin Donovan of the Toronto Star that Ghomeshi yanked her hair hard. Then tries to backtrack – Kevin Donovan “changed her story” but admits saying accused yanked her hair hard. Her hair was long at the time – “retracts” her email follow-up to police saying she had hair extensions at the time. Doesn’t admit to lying when she said on TV that he pulled her hair right after she got in the car – during direct, she said after kissing. Other inconsistencies noted (head smash allegation retracted, changes story on whether shocked, etc.). Notes that whatever happened in the car, it wasn’t enough to keep her away (myth?).

Told media she never contacted him again after 3^rd incident. Confirms this multiple times. Then Henein pulls out stacks of emails she sent him afterwards. Simply glorious. “Good to see you again” and “your show is still great.” Second email with photoshopped photo of herself in a string bikini – downloaded 3 hours prior to sending. Myths – my foot. Maybe she was too “traumatized” to remember how obsessed with him she was?

Another email says she’s been watching him on TV – despite claiming that every time she saw his face she’d be traumatized.

Complainant 2 – Lucy Decoutere

She met Ghomeshi at a Banff event, and flirted with him. She went to Toronto to see him, and he took her to dinner and then back to her house, where he “started kissing me, and then he took me by the throat and he just pushed me against the wall, cutting off my breath, and he slapped me three times” (228 – as revealed in cross-examination, the sequence had previously been very unclear, in her renditions to media and police). She then stayed, to “placate the situation.” Afterwards, they “might have kissed on the sofa,” sitting close together on the sofa, and kissing each other good night, as she didn’t want to “seem frosty” – all of the kissing is added at trial and not previously mentioned to police nor media, as noted by Ms. Henein in cross-examination (she specifically told police that nothing significant had happened after, as she somehow didn’t think this was “consequential”). She didn’t tell anyone about this incident because she wanted to “protect him.” She then spent the weekend with him, and later sent him flowers (also revealed at or during trial).

On cross-examination, she is confronted with photos of her cuddling Ghomeshi in the park, after the alleged assault. She “doesn’t remember” the photos being taken. She didn’t “understand the relevance of after-incident contact,” which Ms. Henein points out is a “very well-rehearsed answer.” Her prior testimony that she had no intention of pressing charges was a lie, as demonstrated by a message she sent, in which she said she wants him “f**king decimated” – despite her further perjury that she has “compassion” for him. She had some “casual” emails after the fact with him, which she realized she should possibly let the Crown know of the day before – after LR was decimated on the stand. She cannot find the emails, though. Thankfully, Ms. Henein has them, and – at that time – was allowed to ambush the Crown’s lying witness with them.

She previously claimed to have lost access to the emails, but subsequently tells police she deleted them. When she is confronted with these “forgotten” emails, it includes post-incident emails she sent to Ghomeshi such as “Sunday, in my brain has a slot all for you. rrrrrrr.” She signs her subsequent email “torn between two lovers.” She wants to “play with him” in Banff. She further emails, “If I don’t get to hang with you while we are in Banff, I’m going to beat the crap out of you.” She sends a photo to him, with the subject “Proof that you can’t live without me.” She further tells him “let me know when you want to hook up. I’m doing stuff, but would happily use you as a procrastination technique” – note, that her lies statements to police and media were that she had no subsequent romantic interest in him. Also, “had a really great dream the other night. You were with me in Toronto.” Among many other “forgotten” emails is one of her “fellating” a bottle. Although she told police his hands terrified her, her letter said she “loved” his hands. Her emails stated “I think you are magic and would love to see you” and she wants to “frolic on the beach” with him. She “wants to f**k his brains out. Tonight.” Sounds very non-romantic to me! Her love letter that she “forgot” about mentions that he was “too sparkling.” And “what on Earth could be better than lying with you, listening to music and having peace. Nothing.”

Complainant 3 (SD)

After this second devastating Crown witness – also destroyed by excellent cross-examination – Ms. Henein informs the Court that it appears SD had been listening to the news – contrary to the Court’s order – and now also had additional information to “disclose.” They then require a last-minute s. 276 application on the basis of this last-minute disclosure. She met Ghomeshi at a music festival at which she was performing. He takes her out to dinner, and she sees him again at the festival, later. They kiss on a bench in the park, and then she “felt his hands on my shoulders and his teeth and then – and then his hands go around my neck and he was squeezing.” That led to “some difficulty breathing,” and he tried to “smother” her. She then gets a cab and goes home, and her mind is a “big blank” as to what else occurred. She later goes out for dinner (again) and to a bar with him, thinking she may have “misread” the situation. Good lord.

The plot thickens. After the bar, there was further “romantic activity” at her home – this was only disclosed at the last minute, of course. She hadn’t thought it was “relevant” to disclose earlier. If it wasn’t Crown misconduct yet for not staying the proceedings to this point (and/or charging all 3 complainants with crimes of perjury), by now it certainly is.

The lies continue. Despite being obviously terrified of him after their original encounter, she later saw him alone at her home romantically because she was – I kid not – “notoriously known for giving people second, third and fourth chances.” She saw him again multiple times afterwards, before she ended her relationship with him.

Kevin Donovan also apparently “lied” – by saying Ghomeshi attacked her, when she had used less aggressive language and claims to have told him that the kissing was initially consensual. She testifies that he “kind of” choked her with both hands, but she had previously told police that she can’t remember if it was with 1 or 2 hands.

Decoutere messaged her that her police statements will be part of a “Jenga tower” – presumably to topple Ghomeshi. She also demonstrably lied under oath (during direct) that she had not discussed her allegations with Decoutere prior to going to police. Her communications with and about other complainants were properly subject to a disclosure request – although I’m sure many Crowns would consider such disclosure “irrelevant” and/or privileged (particularly pertaining to its conversations with complainants).

She is shown to have lied when claiming to have no interest in Ghomeshi (“professionally” and/or personally).

Just to get defence’s hands on disclosure of all of this correspondence, clearly very difficult – even before the idiotic legislation, and especially now. Defence had to go through costly, lengthy, unpredictable third-party disclosure records applications, it appears. SD writes to Decoutere, “They didn’t get into specifics, but for example, if they want our conversation even though the cops have it, they have to put in an application for it, then I, we, would sit with a court appointed lawyer and go over everything and decide what can, cannot be shown. They also said it really depends on how much money he wants to spend. More digging, more money.” It is alarming that most liars can so easily get away with their lies – back then, and especially now. God forbid we allow defence access to any “embarrassing” or “highly personal” communications! Since the presumption of innocence is an absolute joke (or a rape myth) – at best, what could possibly go wrong with this policy?

SD’s very last-minute disclosure of having spent some more time with Ghomeshi and engaging in sex with him, apparently at her place and he spends the night there – clearly blocked from her “traumatized” mind until the very last-minute, coincidentally. Of course, SD insists (with a straight face, apparently) that this minor detail was “irrelevant” – incidentally, likely agreed to by the Crown, SCC and everyone else. She had lied under oath to police previously when she said there was no consensual sexual contact. Only things that “made her feel bad” were relevant, in her view. It was an “omission” and of an “embarrassing” detail (a “misjudgment”), she later claims – and not at all a lie. And things she did not expect to be called out on for lying about, I’d respectfully submit.

Incidentally, it is not too late for the Ontario Attorney General to do its duty and charge all 3 lying complainants with perjury, which was extreme and blatant in this case. Surely, they’ve been busy and have merely overlooked their responsibility and ethical obligations to date on this file. If they refuse to do their duty, individuals should initiate a private prosecution. It is appalling that blatant criminal behaviour is overlooked, excused and encouraged when it comes to Crown witnesses.

R. v. Ghomeshi, 2016 ONCJ 155 is a very fair, reasonable and understated judgment, detailing the (obvious) reasons for the acquittal. Horkins J. points out (gently, I’ll add) with regard to LR that “The impossibility of this memory makes one seriously question, what else might be honestly remembered by her and yet actually be equally wrong?” (para. 36). And “The negative impact that this after-the-fact conduct has on L.R.’s credibility is surpassed by the fact that she never disclosed any of this to the police or to the Crown” (para. 40). LR’s evidence was approached – properly – “with great scepticism” and she “deliberately breached her oath to tell the truth” (paras. 41, 43).

Ms. Decoutere’s further encounters with Ghomeshi, were in her view “inconsequential” (paras. 53, 59) – which reminds me of similarly memorable language at para. 80 of R. v Saddleback, 2020 ABPC 168. Horkins J. finds, correctly, that “It is difficult for me to believe that someone who was choked as part of a sexual assault, would consider kissing sessions with the assailant both before and after the assault not worth mentioning when reporting the matter to the police” (para. 60). Inconsistencies in her narrative of the sequence of events – while generally forgivable (yuck – para. 64), are inexcusable in this instance, due to the “shifting” narrative. In violation of her oath to tell the police the truth, she made the choice to “consciously suppress relevant and material information” which indicates (again – gently) “a failure to take the oath seriously and a wilful carelessness with the truth” on Decoutere’s part (para. 67).

We’re just getting started (paras. 87, 94, 109, 114):

In the framework of a credibility analysis in a criminal trial, Ms. DeCoutere’s attempt to hide this information evidences a manipulative course of conduct. This raises additional and mounting concerns regarding her reliability as a witness. […]

Let me emphasize strongly, it is the suppression of evidence and the deceptions maintained under oath that drive my concerns with the reliability of this witness, not necessarily her undetermined motivations for doing so. It is difficult to have trust in a witness who engages in the selective withholding relevant information. […]

The extreme dedication to bringing down Mr. Ghomeshi is evidenced vividly in the email correspondence between S.D. and Ms. DeCoutere. Between October 29, 2014 and September 2015, S.D. and Ms. DeCoutere exchanged approximately 5,000 messages. While this anger and this animus may simply reflect the legitimate feelings of victims of abuse, it also raises the need for the Court to proceed with caution. Ms. DeCoutere and S.D. considered themselves to be a “team” and the goal was to bring down Mr. Ghomeshi. […]

S.D.’s decision to suppress this information until the last minute, prior to trial, greatly undermines the Court’s confidence in her evidence. In assessing the credibility of a witness, the active suppression of the truth will be as damaging to their reliability as a direct lie under oath.

It gets even better (paras. 118, 119, 121, 135, 137, 138):

I accept Ms. Henein’s characterization of this behaviour. S.D. was clearly “playing chicken” with the justice system. She was prepared to tell half the truth for as long as she thought she might get away with it. Clearly, S.D. was following the proceedings more closely than she cared to admit and she knew that she was about to run head first into the whole truth.

S.D offered an excuse for hiding this information. She said that this was her “first kick at the can”, and that she did not know how “to navigate” this sort of proceeding. “Navigating” this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth. […]

The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamental principle of our criminal justice system. It is essential to understand that this presumption of innocence is not a favour or charity extended to the accused in this particular case. To be presumed innocent until proven guilty by the evidence presented in a court of law, is the fundamental right of every person accused of criminal conduct. […]

However, the twists and turns of the complainants’ evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances. […]

Each complainant was confronted with a volume of evidence that was contrary to their prior sworn statements and their evidence in-chief. Each complainant demonstrated, to some degree, a willingness to ignore their oath to tell the truth on more than one occasion. It is this aspect of their evidence that is most troubling to the Court. […]

The success of this prosecution depended entirely on the Court being able to accept each complainant as a sincere, honest and accurate witness. Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception. [emphasis added]

The consensus among media and legal academics was generally that Horkins J. was wrong – if not in his verdict, than in his stated reasons for it. Joshua Sealy-Harrington (a moderate, I suppose; others would probably call for Horkins’ immediate firing) accuses Horkins J. of making “genuine mistakes.”

Sealy-Harrington says, “In other words, Justice Horkins declines the harder position that these complainants lied about being assaulted and adopts the softer position that, due to their inconsistencies, the veracity of their claims of assault is not beyond reasonable doubt – a reasonable conclusion based on the record before him, and a conclusion that carefully delineates the dishonesty he is actually identifying in his reasons.” Technically, he’s correct – Horkins J. did not call them actual liars about everything (I suppose he wanted to keep his job), but he came pretty darn close to it, actually. Further:

It is undeniable that Justice Horkins’ description of this behaviour as “odd” is rooted in the stereotype that credible sexual assault victims avoid their abuser at all costs after an assault (even though the contrary has been consistently documented in the context of sexual abuse, and even though such an expectation surely imposes absurd expectations on women assaulted by their ongoing partners (see here and here).

No, actually. It has nothing to do with stereotypes; everything to do with lies.

Of course, irresponsible media and legal academics and practitioners fell over themselves in their rush to condemn the acquittals, some using reserved language, like Sealy-Harrington (while most did not). Surprisingly, Prof. Elaine Craig (perhaps the least responsible academic of the self-proclaimed “experts”) did not criticize the judgment in her book, although she was as big a proponent for the atrocious legislation that arose from it as anyone else. If the judge was in Alberta, I assure you there would have been a Crown complaint about him.

Alice Woolley (previously an academic, and now a justice in Alberta – a former professor of mine and actually a decent person) criticized the judgment too. What is consistently and conspicuously absent from all of this “analysis” is the presumption of innocence, which I understand has not yet been classified as a rape myth (not that I should give the SCC and Parliament any more bright ideas). And no, it was not the prosecutors’ fault that the complainants lied through their teeth – what may be their fault is the prosecutors not seeing that sooner and failing to stay the proceedings when they did. Clearly, blaming the prosecutors in this case (or the judge or defence, what have you) is necessary (“Further, it allows the lawyer to help ensure that the witness gets to provide her testimony, and that she will not end up looking like a liar when she is telling the truth”). Bollocks!

I read a recent ABCA case of a conviction appeal dismissed that illustrates for me the extent of the quagmire that is sexual assault law in Canada.

The decision is indexed as R v BEM, 2022 ABCA 207. The majority decision is by Schutz and Slatter JJ.A., with a partial dissent by Veldhuis JA (on one issue only – far from the only problem with the conviction) – allowing for an appeal as of right to the Supreme Court of Canada on that issue alone.

The conviction was by a jury in 2021, for a historical sexual assault allegation. The trial judge was Henderson J. The charges appear to have been laid in 2015, and they were alleged to have occurred some 25 years prior to the trial (para. 3). Para. 4 begins, “The defence position was that the sexual assaults never occurred, which involved a direct challenge to the believability of the complainant.” This sentence grates on my nerves (like nails on a chalkboard) and is a good example of what bugs me about the decision. It is also not the only such sentence. The defence position clearly was not that “it never occurred” but rather that the Crown did not prove guilt beyond a reasonable doubt. This is not a credibility contest, nor is it an inquiry. The defence position “involved a direct challenge to the believability of the complainant”? How about “the Crown position involved a direct challenge to the believability of the accused” – that would be a lot less problematic. Essentially, to paraphrase the great BARD, “presumption of innocence – whither art thou?”

The main issue is whether the Crown’s “story” to the jury about his own childhood memories was prejudicial to the accused – the majority somehow found that it was not. Apparently two wrongs make a right – as defence counsel had referred briefly to his childhood (mentioning that 25 years ago was “40 pounds and a bunch of grey hairs ago” – italics in original, para. 6), the Crown’s misconduct story with extensive detail about his own childhood memories was somehow on par with that, and was “not serious” (para. 28).

It gets worse. The Crown appears to give extensive unqualified “expert evidence” on the subject of trauma and memory. For example, at para. 13 (emphasis added):

Why can’t [the complainant] give you more detail about what she considers — she says now she believes to be the first time? Well, here is a suggestion, trauma perhaps. The first time initially I think there would be a greater – it’s common sense to reason a greater level of trauma to a 13-year-old child. As it becomes routinized, that is routine, perhaps less trauma as the events are ongoing. (Transcript, p. 190, l. 35 to p. 191, l. 3)

See my recent comments in Trauma and memory – Moldofsky Law (along with this). Shockingly, no criticism by the ABCA of this “expert” evidence whatsoever. The Crown gives more “expert evidence” in para. 13 about how memory works. How the Crown can get away with not calling an expert on memory at this type of trial is simply unconscionable and is probably misconduct in and of itself. I guess making it up as we go along is just fine and dandy for the ABCA.

Here’s another incredibly problematic paragraph (para. 14, emphasis added):

Crown counsel then discussed some of the possible shortcomings in the complainant’s evidence, specifically relating to details of events that happened 25 years earlier, inconsistencies, and gaps in her memory: whether and how her clothes were removed at particular times, what type of clothing she was wearing, whether or when she was in a bed, timing of the assaults, locations etc. Crown counsel discussed inconsistencies between the complainant’s statement to the police, her testimony at the preliminary inquiry, and her testimony at trial. He argued that differences in recounting complex historic experiences at different times did not necessarily mean that the memories were unreliable. Crown counsel argued that the complainant’s failing to “fill in the gaps” in her evidence showed she was attempting to be truthful.

Where does one even start? Inconsistencies about all sorts of details – one would argue not peripheral ones, in that it deals with locations, etc. – can all be chalked up to trauma, somehow, and are not only not credibility problems, they’re credibility boosters! Oath helping, if you will – the more inconsistencies, the better! We’re not even ashamed, at this point. To hell with that quaint, outdated notion of the presumption of innocence – that went down the drain 50 years ago with the equally-outdated requirement for corroboration!

Despite all of this awful, unqualified Crown “expert evidence” the conviction is somehow good enough. Of course, the Crown applies a blatant double standard, arguing – despite his “expert” opinion – that most inconsistencies in the appellant’s version should be fatal to his credibility (para. 16). He didn’t know if there was a door? Obviously lying! Even more disturbing, “you can rely on [the complainant’s] evidence. You can be confident that she’s telling you to [sic] truth about her lived experience. She’s constrained by the truth” (para. 16). It’s unclear how “constrained by the truth” the Crown was.

The Crown continued with his brilliant oratory (para. 16, emphasis in original):

Well, memories change but yet memories can be relied upon. You know, for years my own personal experience — you know, you can talk about, you know, your own personal experience. It’s a well known analogy — I had a personal memory which I believe to be true that while on a camping trip when I was in grade 3, I slipped in a campground shower, bashed the back of my head, and had to go for stitches. That was my memory. […] My memory has been sort of shifted but fundamentally the truth of the experience — the core of the experience is persistent. Remains the same throughout. And I think that’s what’s happening here. That’s what happens naturally, that’s real life. That’s what [the complainant] is narrating to you folks. A lived experience. You can rely on her evidence (Transcript, p. 200, l. 36 to p. 202, l. 5).

Immediately following the Crown’s closing address, defence counsel “stated that he was “seriously contemplating a mistrial application” because of Crown counsel’s suggestion that the complainant had no motive to lie, and the suggestion that defence counsel had misrepresented that the complainant had testified that the sexual assaults happened “every time”. No objection was raised respecting the Crown’s personal anecdote about slipping in the shower” (para. 17). Unfortunately, the “no motive to lie” angle is not further explored, although absence of evidence is not evidence of absence.

Have a load of this (paras. 37, 39 emphases added):

When the Crown’s address to the jury is challenged, the core issue must be whether the trial was rendered unfair. While it would obviously have been better if the personal anecdote had been left out, it must be considered in context to assess its potential effect on the fairness of the trial. As stated in Pisani at p. 740: “There can be no unyielding general rule that an inflammatory or other improper address to the jury by Crown counsel is per se conclusive of the fact that there has been an unfair trial”. […]

The comment was “folksy”. It was not disrespectful, exaggerated, overzealous, inflammatory, or sarcastic, and it did not invite any prohibited line of reasoning: R. v Tokaryk, 2019 ABCA 439 at paras. 30-32. It was on the topic of “human memory”, an issue on which evidence is generally not called. Arguments about how human memory works are entirely appropriate, and human memory is a topic on which the jury is expected to apply its life experience. Overall, there is no risk that the Crown’s reference to this personal anecdote resulted in any miscarriage of justice.

Thankfully, Veldhuis JA’s dissent gives us an even better idea of how bad a wrongful conviction this was and is (legally).

The trial judge instructed the jury as follows: “The fact that [the complainant] waited 20 years to make the complaint is entirely irrelevant to the issues you have to decide. You must ignore this fact” (para. 60), with similar comments in para. 61 about the complainant later leaving her young child in the care of the accused. This jury charge is blatantly incorrect. Veldhuis JA for a unanimous panel (para. 1) concedes that this was improper, yet again, not a big enough problem.

Veldhuis JA continues with the completely nonsensical “stereotypical assumptions about sexual assault victims are “a form of ‘prohibited reasoning’, like the rule that the accused’s criminal record cannot be used to show that he had a propensity to commit the crime”. But trial judges and juries are entitled to use assumptions about the ordinary conduct of people to assess credibility” (para. 75). So they’re forbidden but also not forbidden? Super helpful – thanks for clarifying!

Yet again, I bring to you R. v. D.D., 2000 SCC 43 at para. 65 which is relatively straightforward and it’s unclear why it’s constantly butchered by so many courts and Crowns (emphasis added):

[T]here is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave.  Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse.  Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge.  In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.  A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

It is one factor to consider – but not the only one. It is not prohibited nor forbidden!

See also R v ADG, 2015 ABCA 149, which surprisingly gets it mostly right (at para. 32, emphasis added):

Yet this does not mean that no consideration whatsoever can be given to the timing of the disclosure of abuse: R v TEM, 1996 ABCA 312 at paras 9-11, 187 AR 273, leave to appeal to SCC refused [1997] 2 SCR xv. The importance of delayed disclosure will vary depending on the circumstances of the particular complainant: TEM at para 11. Victims of sexual assault will have different reasons for reporting abuse at different points in time. It is up to finders of fact to evaluate the testimony of complainants and determine their credibility on the basis of all the evidence, including the timing of their disclosure.

R. v. Roth, 2020 BCCA 240, cited by Veldhuis JA at para. 73, also does a somewhat-better job, at para. 130-131, emphasis added:

However, this does not mean that the evidence surrounding the driver’s attendance at the home, including the complainant’s conduct during that interaction, was not open for consideration in the credibility assessment and the trial judge was obliged to steer away from it.  The risk of myths and stereotypes distorting a judge’s fact‑finding or reasoning process does not prohibit use of a complainant’s behaviour for all analytical purposes (assuming the evidence surrounding that behaviour is properly before the court).  Although a piece of evidence may carry the potential for impermissible reasoning, it may also have a permissible role to play as a circumstance to consider in assessing the evidence as a whole, in the context of the case’s particular “factual mosaic”: R. v. D.(D.), 2000 SCC 43 at para. 65; Kiss at paras. 101–102.  In my view, what A.R.D. and like cases warn against is the improper use of this type of evidence, not any use at all.

The sole “bone” Veldhuis JA throws the accused here (and the majority agree with her on this point – para. 1) is para. 77:

But that does not mean that a delay in reporting is always “entirely irrelevant” and must be “ignored”. It would have been more helpful if the jury was told something like:

“The fact that [the complainant] waited 20 years to make the complaint is something you may consider. However, do not rely on any stereotypical assumption that sexual assault complainants will immediately report an assault because there are many reasons for delayed reporting. You should consider all the circumstances surrounding the events before deciding if the case has been proven beyond a reasonable doubt.”

In this case, the appellant concedes that the instruction was sufficient because on this record, the delay was irrelevant. That is simply because the defence did not choose to make any use of it, and it had no probative value. But in another case, the late delay might have some probative value beyond the stereotype.

While the above from Veldhuis JA is remarkably ambiguous and non-committal, it’s far better than what we usually see on the subject of myths – particularly in Alberta and the Supreme Court of Canada, the latter of which has a current 34-case Crown win streak.

The leaving her child with the accused is a “myth” to the extent that it assumes she’d “avoid” him – again forbidden but also allowed, apparently (para. 79). To the extent that it argued her credibility was adversely impacted because she said she wanted to cut off all contact with him – that was apparently a “legitimate” avenue of attack (para. 80), despite the fact that she did not appear to say that she did cut off all contact.

I’ll leave you with a fantastic, related article, Due Process for College Students Undermined by New Jersey Title IX Bill (reason.com) (emphasis added):

However, some of those “providing services” to victims are also meant to be impartial investigators of serious allegations, such as university employees involved in adjudicating allegations of sexual assault. Giving “victim-centered” training to those employees raises the question of whether a victim-centered approach also allows for an impartial examination of the evidence and testimony for and against a student accused of sexual assault.

Students accused of Title IX violations already face low standards of evidence. If S.B. 2469 passes, every university employee involved in hearing a case would also be trained to see the accuser as more credible by default.

Such training requirements exist elsewhere in higher education. According to “Title IX and ‘Trauma-Focused’ Investigations: The Good, The Bad, and the Ugly,” a 2019 paper published in the Journal of Applied Research in Memory and Cognition, these trainings often assert that a victim must be believed—even if their story is deeply flawed. In fact, they often argue that having a confusing or unclear story is a sign that a complainant is telling the truth—as such flaws in testimony are the result of trauma. As the authors write, “A particularly ugly feature of [this] training is that it specifically suggests that if memory reports of alleged victims fit the ‘profile’ of those expected from a trauma victim, this fit should serve as evidence that the report is true.”

In a 2015 Harvard Law Review article, legal scholar Janet Halley examined Harvard’s “victim-centered” training, writing that it “is 100% aimed to convince [employees] to believe complaints, precisely when they seem unreliable and incoherent.” If Title IX investigators and decision makers are taught that every complainant is telling the truth—and that any inconsistencies are themselves signs of trauma—then any hearing is essentially a show trial. The accuser is telling the truth because they are the accuser, regardless of what the accused may say in response.

Requiring these trainings only makes sense if legislators believe that everyone accused of a Title IX offense is guilty—something which has been proven over and over to be untrue. The uncomfortable truth about Title IX investigations—and sexual assault investigations more broadly—is that there is rarely conclusive evidence against the accused, and some accusations are indeed false.

Sexual assault is a serious crime that often goes unpunished. However, we shouldn’t respond to this unpleasant fact by attempting to lower the standard of evidence—or in this case, bias Title IX employees toward the complainant.

Title IX investigators make crucially important decisions about whether to find someone responsible for sexual assault and intimate partner violence. Training Title IX employees to see the complaining party as always truthful, as S.B. 2469 would require, also means training them to assume that the accused party is always guilty. That is not a just scheme, even if it guarantees that every actual victim receives justice.

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