IMPORTANT: the deadline for participation has been extended to January 31, 2018, see Reply to my input to “How can the Criminal Justice system be changed to better suit Canadians?
I answer your question with this input:
- DROP THE PRETENSES. A pretense tries to make something that is not the case appear true. If you do not drop the pretenses, there will not be useful outcomes of this exercise, only a tinkering with the system.
Pretense: In Canada we have the Rule of Law. That is not true.
The Rule of Law:
“All persons, regardless of wealth, social status, or the political power wielded by them, are to be treated the same before the law.
“The rule of law means that the law is above everyone and it applies to everyone. Whether governors or governed, rulers or ruled, no one is above the law, no one is exempted from the law, and no one can grant exemption to the application of the law.
“The rules must apply to those who lay them down and those who apply them – that is, to the government as well as the governed. Nobody has the power to grant exceptions.”
A few Examples of Reality – – persons, corporations, and institutions who are treated as “above the Rule of Law”:
2009 Arrest George Bush. Rule of Law essential to democracy arising from Bush visits to Edmonton, Saskatoon and Montreal.
(INSERT: I hope Justice Transformation actually reads the exchange with the RCMP Superintendent contained in this and the next posting)
2016-07-12 University: Canadian researchers who commit scientific fraud are protected by privacy law. Toronto Star. AND response. Fraud is a criminal offence.
And so on.
We don’t stop to think about WHAT UNDERMINES the rule of law? . . . If people see that the law applies to them, but not to rich or privileged people, and not to Corporations and Institutions, they grow to hold the law in disdain.
Unequal application of the law breaks down the rule of law. The response then, of those who govern, is to invoke martial law, because people become unruly.
People comply with the law if they see that is it fair and equally applied. You can have a measure of PEACE in the community if the Rule of Law is upheld.
We don’t bother to understand that World War Two happened because the influential, the educated, the authorities – – the police, the lawyers, judges and university professors in Germany notoriously DID NOT stand up and speak up when they saw things that were wrong in the application of the laws.
In pre-war Germany, people did not stand up and insist that law-breakers be arrested and tried in courts of true justice.
As bad actors amassed power, they were allowed to break the laws with no fear of prosecution. A tipping point was reached, beyond which the system of governance could not be retrieved from the mad men.
The laws as they apply to George Bush for crimes against humanity are spelt out in a letter to the Chief of Police. Evidence is supplied. Notice is given well in advance of the visit. The Attorney General of Canada receives the same information. It’s easy to swagger and deal out “justice” to petty criminals. Neither the Police or the Attorney General have the courage to perform their duties, to uphold the Rule of Law, when it comes to serious crimes committed by monied people.
Canadians would stand up and raise hell if the Government gave our money to a person associated with the mafia, to someone who has been convicted of bribery, of fraud in Government contracts, and so on.
CONSIDER: A group of people get together under a corporate name. They commit highly unlawful acts, have a long list of court convictions, and have not been tried for all their crimes. They come to Canada and are not only immune from the laws of our land, but they also receive billions of our tax dollars.
There are many examples; we do not have the Rule of Law. The sooner you stop pretending that we do, the faster we might make progress.
Pretense: In Canada, citizens have ACCESS TO JUSTICE. No they don’t. Who can afford the cost of a lawyer? or the cost of self-representation in a complex system?
As I understand things, the role of the state is to protect citizens against violence. Citizens agree to abandon violence and vigilantism; we pay taxes for policing and the justice system, in exchange for the ability to live in relative security, without fear.
The Justice System is funded – – I would say owned – – by citizens. It is the responsibility of citizens.
If we are fortunate, in the face of ineffective systems, communities will find their own ways to meet local needs. Neighbourhood Watch, for instance. Or programs that focus on the healthy development of the community, all its children and the environment.
If we are ineffective, violence will increase for the simple reason that it’s affordable to hire someone to break the knee-caps of an aggressor.
It is not affordable to use the justice system.
The Police typically will not handle, for example, cyber violence. Amanda Todd, the UN admonitions for countries to do something about cyber violence, and local examples come to mind.
If the Justice and Policing Systems, the Governments in Canada, will not dedicate resources to create access to a Justice System designed to serve every day citizens, violence will increase because people tolerate only so much before they take matters into their own hands.
Violence begets violence in that system – – it is the available means of defence.
The Rule of Law is fundamental to Democracy. It is undermined through our failures to reform and evolve. There are too many financial beneficiaries of the status quo, roadblocks to what needs to be done.
2. The laws that apply to Citizens must also apply to Corporations and institutions, that is, to the individuals in those entities.
3. People from within the Justice System cannot be the ones to provide oversight.
4. There are systemic biases within the system that serve to protect the status quo. They need to be identified and abandoned if you have any hope of change.
5. The Justice system is a closed shop, a relatively small community of people across the country who have all graduated from the same small number of institutions. They are alumni brothers and sisters. They have “connections”. They have been trained the same.
Law Reform Commissions have been castrated. The Uniform Law Conference of Canada is under-resourced. And it is closed to input from citizens. You don’t get effective change in a closed system. It has to be opened up.
6. You have to stop the practice of using the Justice System as a tool of intimidation. Corporations perfected the practice, giving rise to Anti-SLAPP legislation in California and in Ontario, for example. Others learned. They extort money by threatening to file a lawsuit, which is known to be more costly than paying off the extortionist. Lawyers advise clients to capitulate to the extortionist; it is the financially sound decision. It is egregious, for example, in cyberbullying and cyber violence. The Justice system appears to be willfully oblivious to the practice of using the Justice system for intimidation and coercion.
7. A criterion in the ranking of Law Schools is the number of graduates hired by the top law firms in Canada. The top law firms are corporate law firms. They don’t get prosecuted for criminal behavior; criminal law is irrelevant to them. So Law Schools have a big incentive (ranking) for excellence in Corporate Law. Resources typically flow to where the money is . . . corporates. So…. what do you do? Citizens SHOULD fund universities and the Justice System, in order that our institutions not be subverted to serve corporate interests that are usually diametrically-opposed to the public interest. I do not find it surprising that the Justice system is increasingly criticized for its failures in serving our communities.
8. You should employ philosophers and psychologists in the effort to change the system. And most definitely, community activists. Basic principles of law in a democracy have been lost. Conflicts-of-interest don’t fall under Criminal Law. But they set the stage for criminal activity. Our forefathers learned from experience with the consequence that conflicts-of-interest were not allowed. Today? The Justice system and our institutions turn a blind eye to conflicts-of-interest. Think Bill Morneau, Government decisions on pension rules, and Morneau’s family business, Morneau Shepell. Or, take a look on the other side of the border and then see the same corrupt players here, KPMG mentioned in the URL’s at the top:
In the summer of 2006, the government’s once-promising prosecution of executives from KPMG, an accounting and consulting firm suspected of selling illegal tax shelters to wealthy clients, started going bad. (The U.S. attorney’s office in Manhattan felt so confident that it indicted 17 KPMG executives.) The case fell apart when the judge ruled that those prosecutors had violated constitutional rights by pressuring the firm to waive attorney-client privilege and stop paying employees’ legal fees; the government’s zeal, he noted, had gotten “in the way of its judgment.” With the “greatest reluctance,” he threw out the cases against 13 of the executives. (Two others were convicted.)
The same criminals are in Canada, doing the same thing, and undermining the Rule of Law: 2016-03-08 Canada Revenue offered amnesty to wealthy KPMG clients in offshore tax ‘sham’, CBC. IMPORTANT VIDEO. KPMG takes a 15% cut of the taxes saved through schemes that send the money of wealthy Canadians offshore to tax havens. You are seriously deluded if you think that the failure to treat the individuals at KPMG the same as other Canadians are treated (the video), does not deepen disrespect for The Law in Canada.
9. Many Law School graduates have gone from High School directly to University. The ones who article in the prestigious job of Supreme Court clerk, reviewing applications to the Court and making recommendations to the Justices, are the top graduates from across the country. Many of those people have achieved excellence by single-minded devotion to their studies. They cannot be faulted for that. They can be assured of good jobs in the System at the end of their articles. The problem for the Supreme Court and for the Justice system: these kids are smart (“left-brained”), but are often bereft of experience that comes from the streets of our societies. Many have never been an “advocate” for a social issue in real life. John Ralston Saul argues that the rational is the most fragile of our faculties. I agree with him. We have to be able to see “the other”, especially in the Justice System this is important, but “Seeing” the other is dependent upon IMAGINATION. And experience. Effective CHANGE is dependent on CREATIVITY. Maybe you have already conferred with inmates – – they will have answers that well-placed people in the system will not have.
10. An adversarial system generates some really stupid tactics and costly outcomes, both financially and in time wasted.
11. Did you watch Michael Moore’s “Where to Invade Next“? He visits Norway to take their best ideas for the Justice System back to America. Canada, too, should steal some of Norway’s ideas. We have hardly emerged from the Middle Ages. And we regressed substantially under Harper. The prison farms should be re-introduced. Don’t tell me – – they sold off the land?
12. Do not hire American consultants for your endeavors. God forbid. Better the Norwegians.
13. If you are to have Integrity within the Justice system, and therefore respect for the Criminal Justice system, I would say that the officials responsible for abuse of their power as Prosecutors in the following cases, have to be identified and prosecuted.
Three women a threat to their communities (?), prosecuted.
- Even though StatsCan knew (under oath, at the trial of Audrey Tobias – – but they may have been lying) that Lockheed Martin’s role in the Census was to be ended within two years (by the 2016 Census), AND the decision had been made by the time of the Tobias trial in Toronto, in October 2013, (ref 2014-07-17 Transcript, Tobias trial establishes Lockheed Martin is OUT)
the Federal Dept of Justice, in concert with StatsCan, went ahead and prosecuted:
- Audrey Tobias, 89 years old
- Janet Churnin, 79 years old and
- (Karen) Eve Stegenga, a self-employed yoga instructor, 37 years old.
The cost of any one of these trials is very high – preparation, consultations, judges, prosecutors, court workers, facility costs, travel costs, opportunity costs (the money could have been put to better use).
The outcomes were dismal, from a prosecutorial point-0f-view. Judges are to be credited, the women were spared a criminal record:
- (Karen) Eve Stegenga received a conditional discharge (July 17, 2014). She had to do 25 hours of community service.
- Janet Churnin received a conditional discharge (December 2013). 50 hours of community service.
- Audrey Tobias was found not guilty (October 2013).
Community service is a way of life for all three of these women. Lockheed Martin is the “group of people who get together under a corporate name. They commit highly unlawful acts, have a long list of court convictions, and have not been tried for all their crimes. They come to Canada and are not only immune from the laws of our land, but they also receive billions of our tax dollars”.
You might say, “This is just the way the world works”. Justice Department officials seriously abused their power in all three cases. What was the purpose of the prosecutions? According to the numbers supplied by the StatsCan witness, non-compliance has risen to 11% from 2%. StatsCan and the Justice Dept itself, by failing to listen to Canadians about the wrongness of hiring a rogue corporation like Lockheed Martin, with its extensively documented criminality, is teaching Canadians non-compliance with the Law.
14. It is 15 minutes before the deadline for submissions to you. I will therefore do a simple copy and paste. It is American documentation, an issue of increasing concern in Canada, too.
GROSS: So you think that having, say, investment banks settle for large fines is not an adequate punishment. Why not?
EISINGER: I don’t think it deters crime. And I think it undermines the sense of equity and justice in this country. I think people see companies paying big checks and the individuals getting away with it. And I think it stokes an enormous amount of anger with the system and undermines the legitimacy of our justice system, especially because we have a justice system which excessively punishes the poor and people of color while allowing top corporate executives, powerful people, off. We talk about inequality in this country, but I argue that the greatest perquisite of being powerful and wealthy in this country is the ability to commit crimes with impunity.
(INSERT: perquisite (perk) – a thing regarded as a special right or privilege enjoyed as a result of one’s position.)
You know, it seems paradoxical that in an era of mass incarceration, it’s so hard to prosecute executives of corporations. Can you describe this, like, judicial timidity about prosecuting executives for corporate wrongdoing? So how do you explain that disparity?
EISINGER: Well, one thing is that there’s a kind of class affinity here where I think that prosecutors have an easier time certainly prosecuting drug dealers and murderers but also prosecuting corrupt politicians. I think they see politicians, and it kind of disgusts them when they do corrupt things. But when they see an articulate, well-educated executive from the same schools that they went to or the parents of the – their classmates, they find it much more difficult to picture these people as criminals.
As one SEC regulator put it in an email when they were investigating Goldman Sachs for wrongdoing – he said these are good people who have done one bad thing. And they essentially view executives as good people who may have made a mistake, and they don’t want to put those people in prison. Suffice it to say, they don’t see young black males who are dealing drugs as essentially good people making one bad mistake.
The other problem is that the courts are much friendlier and judges are much friendlier to corporate criminals than they are to street criminals. So we have a divided society, which is no surprise to anybody. And it really manifests itself in criminal law enforcement.
GROSS: Are we seeing a double standard develop about what a corporation is – because in some instances, a corporation is a person. Like, when it comes to giving money to a campaign, a corporation is now a person. (INSERT: In the US, not in Canada) But does a corporation have a different standing when it comes to being prosecuted?
EISINGER: It does because the Department of Justice has effectively decided that it will not indict this kind of person, the corporate person. And it’s not an official policy. It’s just an effective one. And because of that, corporations have the ability to settle for money and never face the death penalty, never face serious indictment. And because of that, they can get away with a lot of wrongdoing for a long time without paying any serious penalty besides writing a check. And the checks are something that they can afford and something that comes out of not their pocket but the shareholder pockets.