Flaming Misogyny or Blindly Zealous Enforcement? The Bizarre Case of R v George

This article examines the distinction between judicial reasoning flawed by errors on questions of law, properly addressed on appeal, and errors that constitute judicial misconduct and are grounds for removal from the bench. Examples analysed are from the transcripts and reasons for decision in R v George SKQB (2015), appealed to the Saskatchewan Court of Appeal (2016) and the Supreme Court of Canada (2017), and from the sentencing decision rendered by the same judge more than a decade earlier in R v Edmondson SKQB (2003). Both were sexual assault cases. In George a thirty-five year old woman with five children was tried and ultimately acquitted of sexual assault and sexual interference after she was assaulted in her home by a fourteen year old male. Striking similarities between the reasoning and language in the trial decision in George and the sentencing decision in Edmondson demonstrate entrenched antipathy for sexual assault law and the fundamental principles of justice, equality, and impartiality. This is arguably judicial misconduct, persisting despite access in the interim to many years of judicial education programming, not merely legal error. The problem does not lie with the judge alone, however. A toxic mix of misogyny and blindly zealous enforcement of the law appears to have undermined the administration of justice in George from the outset at all levels. The problems are systemic. Were this not the case, it is likely that Barbara George would not have been charged

The Prejudicial Effects of 'Reasonable Steps' in Analysis of Mens Rea and Sexual Consent: Two Solutions

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about whether a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by s. 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded on their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable” given what the accused knew, the legal definition of consent in section 273.1 is easily over-looked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. That is precisely what we see here; the result is often failure to enforce the law. The author proposes: (a) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and (b) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent

The Indian Child Welfare Act.

Few child welfare lawyers routinely confront the application of the Indian Child Welfare Act (ICWA or the Act ). When the statute applies, however, it is crucial that its provisions be strictly followed. There are at least three reasons why counsel should attempt to ensure that ICWA\u27s provisions are carefully applied. First, ICWA\u27s provisions are jurisdictional. Failure to abide by its requirements invalidates the proceeding from its inception. Indeed, any party or the court may invoke ICWA at any time in the proceeding, including for the first time on appeal. Second, unlike most federal child welfare legislation which provides funding streams to states and therefore may not be enforceable in trial level proceedings, ICWA is substantive law that provides minimum federal standards for addressing any case involving a child who qualifies as an Indian child. Finally, the failure to adhere to the law\u27s requirements can be disruptive for children, harmful to families, and undermining to tribal authority; it is also burdensome for courts and child welfare agencies. For instance, where the Act\u27s provisions were not properly followed, the United States Supreme Court invalidated an adoption some three years after the completion of the proceedings in the trial court and remanded the case for further proceedings. In addition to the statute itself, counsel should carefully consider the application of the Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings (BIA Guidelines), which, while they do not have binding effect, are entitled to great weight because they represent the construction of the statute by the administrative agency charged with implementing the Act\u27s provisions. Courts in a number of jurisdictions have affirmed ICWA\u27s constitutionality in the face of equal protection challenges. These courts have reasoned in part that the treatment of Indian people is unique not because they belong to a discrete racial group but because they are members of a quasi-sovereign tribe

Child Protection Law and Procedure

Child protective proceedings involving non-Indian children are primarily governed by the Child Protection Law (CPL), MCL 722.621 et seq.; the Juvenile Code, MCL 712A.1 et seq.; and subchapter 3.900 of the Michigan Court Rules. Taken together, these sources of authority establish a comprehensive scheme for reporting cases of suspected abuse and neglect, investigating those reports, and responding, when necessary, with appropriate legal action. For child protective proceedings concerning Indian children, see chapter 25. While these statutes form the primary authority for handling child protection proceedings, practitioners must be aware that federal law, specifically Title IV-E of the Social Security Act, 42 USC 670 et seq., and the policy established by the Michigan Department of Health and Human Services (DHHS) for handling child protection cases are increasingly influential in the courts’ handling of child protection cases

Child Welfare Cases Involving Mental Illness: Reflections on the Role and Responsibilities of the Lawyer-Guardian Ad Litem

Child welfare cases involving mental illness suffered either by a child or his parent can be among the most difficult and perplexing that a child’s lawyerguardian ad litem (L-GAL) will handle. They may present daunting problems of accessing necessary and appropriate services as well as questions about whether and when such mental health problems can be resolved or how best to manage them. They also require the L-GAL to carefully consider crucially important questions—rarely with all the information one would like to have and too often with information that comes late in the case, is fragmented or glaringly incomplete. This brief article will begin with a discussion of the scope of the problem of parental mental illness and its impact upon children. It will then suggest the need for a particular type of evaluation in order to attain a more comprehensive understanding of the nature of the mental health issues involved, their impact on each party’s functioning, and how best to proceed with the provision of services. Next, it will address case planning by the L-GAL, doing so primarily through suggesting a series of questions that the L-GAL might ask herself about the parties to the case, others involved in the family’s life, and the community resources available to address the needs of the children and families with whom sheis working

Affirmative Sexual Consent in Canadian Law, Jurisprudence, and Legal Theory

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions

The Indian Child Welfare Act.

Few child welfare lawyers routinely confront the application of the Indian Child Welfare Act (ICWA or the Act ). When the statute applies, however, it is crucial that its provisions be strictly followed. There are at least three reasons why counsel should attempt to ensure that ICWA\u27s provisions are carefully applied. First, ICWA\u27s provisions are jurisdictional. Failure to abide by its requirements invalidates the proceeding from its inception. Indeed, any party or the court may invoke ICWA at any time in the proceeding, including for the first time on appeal. Second, unlike most federal child welfare legislation which provides funding streams to states and therefore may not be enforceable in trial level proceedings, ICWA is substantive law that provides minimum federal standards for addressing any case involving a child who qualifies as an Indian child. Finally, the failure to adhere to the law\u27s requirements can be disruptive for children, harmful to families, and undermining to tribal authority; it is also burdensome for courts and child welfare agencies. For instance, where the Act\u27s provisions were not properly followed, the United States Supreme Court invalidated an adoption some three years after the completion of the proceedings in the trial court and remanded the case for further proceedings. In addition to the statute itself, counsel should carefully consider the application of the Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings (BIA Guidelines), which, while they do not have binding effect, are entitled to great weight because they represent the construction of the statute by the administrative agency charged with implementing the Act\u27s provisions. Courts in a number of jurisdictions have affirmed ICWA\u27s constitutionality in the face of equal protection challenges. These courts have reasoned in part that the treatment of Indian people is unique not because they belong to a discrete racial group but because they are members of a quasi-sovereign tribe

Political Control of Independent Administrative Agencies

This work examines the development and performance of federal independent regulatory bodies in Canada in the period up to 1979, with particular attention to the operation of legislative schemes that include executive review and appeal powers. The author assesses the impact of the exercise of these powers on the administrative law process, and proposes new models for the generation, interpretation, implementation, review, and enforcement of regulatory policy. The study includes a series of representative case studies based on documentation and extensive interviews with individuals drawn from government, agencies, and other parties, including counsel for public interest groups. This enables author, writing from her experience as a participant-observer embedded in the public interest legal sector, to draw on the experiences and perspectives of a broad range of participants in the regulatory process, including but not limited to those dealing with the regulated energy, transportation, communications, and foreign investment sectors. Legal principles identified as emergent in leading judicial decisions in administrative law are used to assess the powers and practices used in executive reviews and appeals. The author finds those powers and practices to be flawed and proposes changes. The proposed models are designed to accord with emerging legal principles and avoid flaws of the types identified in the review and appeal provisions. This work, written under contract with the Administrative Law Project of the Law Reform Commission of Canada, formed one part of a comprehensive study of administrative law at the federal level in Canada

Sexual Consent as Voluntary Agreement: Tales of “Seduction” or Questions of Law?

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a specific person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used

Access to Justice and the Public Interest in the Administration of Justice

The public interest in the administration of justice requires access to justice for all. But access to justice must be “meaningful” access. Meaningful access requires procedures, processes, and institutional structures that facilitate communication among participants and decision-makers and ensure that judges and other decision-makers have the resources they need to render fully informed and sound decisions. Working from that premise, which is based on a reconceptualization of the objectives and methods of the justice process, the author proposes numerous specific changes in decision-making processes and practices. These changes are required to achieve a standard of decision-making that is consistent with the public interest in the administration of justice within a constitutional framework under the social and political conditions of the early 21st century. The essay illustrates the application of the principles and methods of legitecture to analysis of problems of institutional design in law