^It's a problem borne of the politicization of the bench down there, I'll wager. If you didn't have elected judges, you wouldn't see this sort of thing.
All judges are human and while the election process may well significantly increase the risk that a judge will decide based on publicity and popular events, these issues must still be guarded against here.
Former Chief Justice McLachlin recently addressed concerns that social media movements may be setting expectations that all trials where accused are not convicted are therefore an injustice:
And this comes from a recent dissenting judgment on a sexual assault case from Alberta:
Quote:
The appellant impugns his conviction for sexual assault following a one day trial at which only the complainant and the accused testified. He argues that the trial judge erred in two significant ways. First, rather than applying the criminal standard to determine whether the Crown had discharged its burden, the judge mistakenly embarked on a quest to determine “what happened” (to use his words). Second, in so doing, the appellant says that the judge erred by engaging and relying upon “stereotypical thinking” in assessing the conduct and testimony of the appellant.
I am uncomfortable criticizing trial judges for “stereotypical thinking” because, increasingly, that turn of phrase has taken on a moral ad hominem connotation which often is both too quickly and inappropriately invoked by appellate judges. I prefer to say that the second arguable issue in the case at bar is whether the reasons expose a reliance upon generalizations in assessing the conduct and testimony of the appellant.
I would say examples of where trial judges are acting based on popular opinion or trying to put on some kind of show for the public or media are exceedingly rare but in part because we are always having to be aware not to allow such things to inappropriately creep into the courtroom.
All judges are human and while the election process may well significantly increase the risk that a judge will decide based on publicity and popular events, these issues must still be guarded against here.
Former Chief Justice McLachlin recently addressed concerns that social media movements may be setting expectations that all trials where accused are not convicted are therefore an injustice:
And this comes from a recent dissenting judgment on a sexual assault case from Alberta:
I would say examples of where trial judges are acting based on popular opinion or trying to put on some kind of show for the public or media are exceedingly rare but in part because we are always having to be aware not to allow such things to inappropriately creep into the courtroom.
I see where you're going with this, and I like it!
Behold! Judges of the Future!
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Yes, that's a totally fair point. Saying "you wouldn't see this" is inaccurate; you still see it up here. The system in most US states simply makes the problem more pronounced.
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That is pretty terrible. I was probably not voting for the NDP federally, as I never have, but if I were considering it, that stance might be a deal breaker. But this quote from later in the article is even worse - at least Singh isn't trying to undermine the authority of the justice system.
Quote:
Ontario NDP Leader Andrea Horwath also weighed in to the discussion telling reporters in Toronto that the justice system is failing women.
"I really have two words about the justice system: Jian Ghomeshi," she said. "...that's why lots of women don't come forward, especially as it relates to workplace issues. So let's not pretend that we have a justice system that is actually protecting women and making sure that women see justice. That's something we have a big problem with here."
That statement should preclude your being taken seriously by anyone, yet she'll get thousands of people to support her to run the Province of Ontario. Yeesh.
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That statement should preclude your being taken seriously by anyone, yet she'll get thousands of people to support her to run the Province of Ontario. Yeesh.
I don't think she's necessarily wrong. Our justice system isn't really well equipped to deal with sexual assault, and this is backed up by the lower levels of conviction rates and jail time served in sexual assault cases. The problem is I'm not sure how to improve it or what you would replace it with, which is why I'm not totally against women going public against their assailants. At the very least if women kno who these creeps are, they can maybe take some precautions to avoid them.
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Yeah, no, there's no room to hedge on this. The suggestion that the legal system is broken and therefore cannot be relied upon, and people are therefore justified to act outside of it, is a horrifying thing to put out there. It's much worse for someone seeking public office. There's no excuse for that in any context.
Even if there were an excuse - which I again stress there isn't - it wouldn't be the Jian Ghomeshi verdict. If there was a failure there, it was a failure of human error. The system performed exactly as it should have done.
There's an element of truth, in that there clearly are unique challenges that make these cases harder to prosecute, and you're right to say that there's no easy solution to that. But there often is an element of truth to a dangerous, anti-democratic, rule of law eroding message. Hell, there's an element of truth to Trump's populism, too. If it were nakedly wrong in every way, it wouldn't be nearly as scary.
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You're right about Ghomeshi maybe being a poor example but the justice system and its ineffectiveness in dealing with sexual assault cases is absolutely a big factor that prevents women from coming forward. I don't think being critical of that is undermining it. Again, I'm not sure what the answer is, but you can't expect women to just sit on their hands and do nothing about a system that's failing them. It's pretty common for people to subvert the state when they feel as though the state is neglecting them.
You're right about Ghomeshi maybe being a poor example but the justice system and its ineffectiveness in dealing with sexual assault cases is absolutely a big factor that prevents women from coming forward. I don't think being critical of that is undermining it.
Pointing to this as an issue that our lawmakers need to be aware of and to talk about, and even perhaps to develop some ideas to deal with, is not undermining the justice system - well, it depends what the ideas are, but in theory not. Those sorts of conversations hopefully improve the justice system by giving it better tools to arrive at defensible results, balancing all of the important interests that the rule of law preserves (of which "guilty guy gets punished" is comprises a very small part).
What I object to, what I think is frankly unforgivable, is a prospective Premier, in the context of a conversation as to whether these sorts of public tar-and-feather sessions are the new normal, or if the issue of sexual harassment or assault should be left to the justice system, and saying "you know what I think of the justice system? Two words: Jian Ghomeshi." As if this guy not getting the Nassar treatment demonstrates that the justice system can't be trusted to protect us, because it let someone we all wanted to see get comeuppance go. That's the sort of mind that cannot be allowed any influence over society. She's a modern-day William Roper, and there are far too many such people out there these days.
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As if this guy not getting the Nassar treatment demonstrates that the justice system can't be trusted to protect us, because it let someone we all wanted to see get comeuppance go. That's the sort of mind that cannot be allowed any influence over society.
What's astonishing is how these calls to bypass due process and the justice system are coming from people like the NDP, who claim to represent the weak and disenfranchised. Who do they think the winners and losers are when the rule of law is cast aside and we sort out problems with raw power? Only people with a near-total ignorance of history could think the weak are better served by pursuing extra-legal 'justice.'
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What's astonishing is how these calls to bypass due process and the justice system are coming from people like the NDP, who claim to represent the weak and disenfranchised. Who do they think the winners and losers are when the rule of law is cast aside and we sort out problems with raw power? Only people with a near-total ignorance of history could think the weak are better served by pursuing extra-legal 'justice.'
Cliff, keep in mind this is the same group of people who believe the concept of free speech is a tool of powerful used to further oppress minorities.
It's like the civil rights movement, gay rights movement and basically every. single. other progressive movement in our society didn't happen.....
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It's like the civil rights movement, gay rights movement and basically every. single. other progressive movement in our society didn't happen.....
I gather Rubecube's position - and he can correct me if it's changed but it seems to me he's argued this on here numerous times - is that those movements were not successful as a result of the application of enlightenment liberal principles like freedom of expression, but rather for other reasons. Given that those same enlightenment principles have held sway in western democracies for quite a while now, and that oppression of minorities hasn't been resolved, the argument is that those principles don't work for minorities but rather for the groups that currently have power.
Obviously I think that's wrong, but it's not that they're ignoring the civil rights movement or progress on gay rights, they just don't agree that those things were the result of the ideas you (we) see as being of central importance to a functioning modern society.
__________________ "The great promise of the Internet was that more information would automatically yield better decisions. The great disappointment is that more information actually yields more possibilities to confirm what you already believed anyway." - Brian Eno
Pointing to this as an issue that our lawmakers need to be aware of and to talk about, and even perhaps to develop some ideas to deal with, is not undermining the justice system - well, it depends what the ideas are, but in theory not. Those sorts of conversations hopefully improve the justice system by giving it better tools to arrive at defensible results, balancing all of the important interests that the rule of law preserves (of which "guilty guy gets punished" is comprises a very small part).
What I object to, what I think is frankly unforgivable, is a prospective Premier, in the context of a conversation as to whether these sorts of public tar-and-feather sessions are the new normal, or if the issue of sexual harassment or assault should be left to the justice system, and saying "you know what I think of the justice system? Two words: Jian Ghomeshi." As if this guy not getting the Nassar treatment demonstrates that the justice system can't be trusted to protect us, because it let someone we all wanted to see get comeuppance go. That's the sort of mind that cannot be allowed any influence over society. She's a modern-day William Roper, and there are far too many such people out there these days.
If any of the posters here have not seen 'A Man For All Seasons' the Paul Scofield version not Charlton Heston then go out and watch it now, it is possibly the perfect period film ever made, superbly crafted, relevant today as ever.
That is pretty terrible. I was probably not voting for the NDP federally, as I never have, but if I were considering it, that stance might be a deal breaker. But this quote from later in the article is even worse - at least Singh isn't trying to undermine the authority of the justice system.
That statement should preclude your being taken seriously by anyone, yet she'll get thousands of people to support her to run the Province of Ontario. Yeesh.
One problem is that dealing with Gomeshi's workplace harassment that was ignored and well documented or someone likes Hehr's workplace harassment doesn't fit that well in the criminal Justice system.
In terms of evidenary reuqirements, potential punishments, and positive outcomes for both victims and purpatrators. Look at Hehr, or Louis CK, or Gomeshi at work and none of those seem like criminal behaviour. If you want women to come forward early and often than better results are needed.
One problem is that dealing with Gomeshi's workplace harassment that was ignored and well documented or someone likes Hehr's workplace harassment doesn't fit that well in the criminal Justice system.
I didn't specify criminal justice. There are codes of conduct that apply as well - if you sexually harass someone, you can be fired for cause, for example, and can't sue your employer by claiming that it was okay for you to behave the way you did. But at a basic level, we live in a society governed by the rule of law. The assumption there is that punishment for immoral behaviour is the province of the state. That is one of the main things that distinguishes a criminal offense from a regulatory offense - you did something that we as society deem so evil that you need severe punishment to prevent it from happening again.
By placing those determinations in the hands of courts, subject to a system of weighing of evidence and a sentence from a competent (one hopes) authority like a judge, we limit the power of the whims of zealous, frenzied mobs of self-righteous people who claim to know what's right and what's wrong. So if someone's life is going to be altered in a major way for the worse for behaving in a way we as a society deem worthy of censure, that can't be done by a mob. That's called a lynching, and it's anti-democratic anarchy.
What you seem to be suggesting is that there are some behaviours, like Hehr's (I take it from your post), that need punishment but currently aren't punished according to the law as it stands - at least, not punished enough. That's not an issue with the legal system, it's a matter of lobbying legislators to change the law so that those things are clearly illegal. So, call your MP. But don't suggest that there should be vigilante justice unless or until that law's passed.
I can think of all kinds of behaviours that I'd like to see stopped, but I'm not about to go about destroying those peoples' lives because my views about what the consequences should be don't line up with the rules of this country.
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I gather Rubecube's position - and he can correct me if it's changed but it seems to me he's argued this on here numerous times - is that those movements were not successful as a result of the application of enlightenment liberal principles like freedom of expression, but rather for other reasons. Given that those same enlightenment principles have held sway in western democracies for quite a while now, and that oppression of minorities hasn't been resolved, the argument is that those principles don't work for minorities but rather for the groups that currently have power.
Obviously I think that's wrong, but it's not that they're ignoring the civil rights movement or progress on gay rights, they just don't agree that those things were the result of the ideas you (we) see as being of central importance to a functioning modern society.
No that's not really my position. My position is that those principles alone have generally not been enough for social movements to affect meaningful change. I think quite often you need to break a few eggs to make an omelette. I also think that Cliff's weird fetishization of liberalism is often historically and intellectually dishonest or misleading, for example his bizarre post about the rule of law above.
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