my partner recently filed a case with the bc human rights tribunal against her former employer for not taking action when she was working with a scary, angry, violent, racist, sexist man. we'll call him "darth". according to the bc human rights coalition, she doesn't have a case because the man never said anything derogatory specifically to jane,even though darth had made various comments about asian women and jane is an asian woman. darth even referred to himself as a racist. of course he denied all of this when jane's boss asked darth about these claims and the boss told jane he therefore had to take her complaint -- ahem -- "with a grain of salt"! (aka did nothing about it.)
and the "human rights" people, with all of this evidence, say jane doesn't really have a case. they use that old liberal language of "a person who happens to be X": they described jane as "a woman who happens to be asian." i raised a stink about this at the orientation and told them that jane doesn't happen to be asian; her parents are asian and that made it pretty much a certainty that she would also be asian, by simple genetics, not mere happenstance. a person gets hit by bus by happening to be in the wrong place at the wrong time. a person does not become asian by a similarly chance process.
even though jane documented three incidents when darth asserted his racism, the human rights people dismissed these comments by saying "oh, well, maybe he was just angry and venting", and "well, he was commenting about asian drivers, not you"!
i'm dead serious.
i couldn't believe what i was hearing...according to their guidelines, in order for the tribunal to make a finding of discrimination, the behaviour has to be levelled specifically at the person making the complaint, meaning that if, for example, you worked with a neo-nazi who was outspoken about her or his hatred of jews, you would not have a case against this person if you were not a jew, even if you found your co-worker's behaviour viscerally offensive and intolerable.
the tribunal's guideline could also be understood to mean that even if this neo-nazi were expressing a hatred of jews in general, or of other jews and you yourself were jewish, you would not be able to establish a case since your co-worker did not make his statements specifically about you.
the guideline also ironically prevents those of us who want to address discrimination from access to legal remedies, based on race, gender, class, or other defining feature: in the example of the outspoken neo-nazi co-worker, if you were not a jew, you would have no legal capacity to engage the tribunal to protect you from your co-worker's racism on the basis that you are not a member of the targeted group.
by refusing to allow allies to file claims, the tribunal helps perpetuate the discrimination it seeks to eliminate. one of the problems inherent in discrimination is precisely that its targets are isolated and victimized. by vitiating the critical role of allies in the struggle for social equality, the tribunal's position further isolates targets of discrimination by placing the onus of action exclusively upon them.
needless to say, targets of discrimination are usually in the most disadvantageous position to defend themselves. imagine a new immigrant whose first language is not english, trying to assert herself in a new job she probably desperately needs, researching her rights in her spare time, looking into whether agencies like the tribunal exist, and then navigating its significant procedural hurdles successfully. fat chance. like jane, many people lose their jobs or homes in their struggle to address discrimination. this fear is palpable in targets of discrimination, making them the least likely people to file a tribunal claim, assuming, of course, that they even knew of its existence, itself an exceedingly unlikely prospect -- jane was born and raised in canada and only found out about the tribunal during her campaign to address her exposure to darth's sexism and racism.
for a legal representative, the tribunal people assigned jane the same man who denied that she was a target of racism and sexism during her orientation session. jane phoned them and said she didn't feel comfortable with him, but did not say why. a representative from the tribunal
told her summarily, without any sensitivity or curiosity, let alone respect for her discomfort, "he is perfectly capable of doing the job." finito. they never paused to ask her why she felt uncomfortable with this man. it nicely underlined the whole distorted mechanics of the place and their lack of recognition of even the most basic elements of discrimination such as privilege and domination.
with friends like that, who needs enemies?
Tuesday, September 14, 2010
Saturday, July 3, 2010
Guilty Unless Proven Innocent: Wrongful Convictions and the Presumption of Guilt
A system which operates upon the inverse principle to the one on public view, “innocent until proven guilty,” must regularly convict people either for crimes they did not commit, or for crimes they did commit but for which the evidence is lacking. Almost everyone would agree that a great wrong is done when an innocent person is found guilty. Fewer people would agree that a great wrong is also done when those who are actually guilty are found so on means other than by a fair and proper process, which necessarily includes the presumption of innocence.
Yet if a person's guilt is established in any way with the assistance of prejudicial assumptions on the part of the police or the courts rather than upon the strict basis of facts and the clearest of inferences (This is a sticky point, for what is clear? This is where bias affects the outcome of a trial), the obvious consequence is that wrongful findings of guilt are inevitable and the trial becomes to some extent a casino table; one with the odds stacked heavily in favour of citizens matching the profile of a “respectable citizen” and the odds stacked decidedly against those who fall furthest from this standard.
There is already a decent selection of irrefutably evidenced and compellingly argued books written on the role of “race”, gender, class and other factors which affect a person's chances in the casinos of law, so I will not make those arguments here. All to say that to find a person guilty in such a slipshod manner as relying upon presumptions of guilt where the facts do not suffice is a surefire recipe for wrongful convictions. Since my own experience with the courts strongly suggests the routine operation of a pro-guilt bias, I expect that wrongful convictions are far more frequent than we have ever been led to believe. Only those with a functional level of self-esteem, focus, and drive would be in a position to communicate their stories of wrongful conviction and have themselves heard, let alone believed.
In a 1992 federal review of wrongful convictions in Canada, Senior Analyst Philip Rosen noted that:
"A final issue of concern to applicants’ counsel is the lack of financial assistance to convicted people who may wish to submit a s. 690 [Criminal Code] application for mercy to the Minister of Justice. In several instances, provincial legal aid plans have refused to assist s. 690...applicants with their legal fees and disbursements. In some cases, counsel have done this work on a pro-bono basis and assumed thousands of dollars in disbursements, while in others, non-governmental organizations have financially supported the applications (http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp285-e.htm)."
If this is the hurdle people wrongfully accused face, it stands to reason that the wrongful convictions that find a public spotlight represent but a tip of a rather horrifying iceberg. Beyond these formidable personal constraints that bar the way to a successful “reversal” (can the damage caused by a wrongful conviction ever truly be reversed?), there must also be at play a certain reluctance on the part of the courts to shed a light on the systemic problems indicated by such travesties. As Mr. Rosen points out, “Wrongful convictions undermine the two prongs of the criminal justice system’s legitimacy. If someone is wrongfully convicted, that person is punished for an offence he or she did not commit and the actual perpetrator of the crime goes free. As well, public confidence in the system declines when wrongful convictions are identified.”
As strong as the desire for the former may be, professional considerations for the public reputation of the entire administration of law may transform the will to free an innocent person into a rather lackluster affair. Without a rather fervent and widespread will to scrutinize and honestly evaluate the errors in the system and admit their systemic nature, however, wrongful convictions are doomed to perpetuity, bringing the legal system into further disrepute. As Mr. Rosen concedes,
"Because findings of wrongful conviction represent a basic undermining of the integrity of the criminal justice system, the procedures established for the review of such cases are extraordinary in nature and are rarely invoked successfully. For it to be otherwise would be to put in question the criminal justice system’s legitimacy and, by bringing attention to its fallibility, to weaken public confidence in it."
Not surprisingly, then, Mr. Rosen reveals a shockingly low incidence of estimated wrongful convictions:
"There are probably fewer truly wrongful convictions than claimed, but there may still be a surprising number. It has been claimed that in Great Britain, the wrongful conviction rate may be as high as .1% – or one out of every thousand people. Another estimate is that there may be 15 cases of wrongful convictions each year in Great Britain. Academic studies in the United States indicate that between one-half and 1% of persons convicted of serious offences did not commit the crime. It has also been suggested by the Criminal Justice Research Centre that as many as 6,000 persons a year are wrongfully convicted of felonies in the United States. There are no similar estimates of the number of wrongful convictions in Canada. An official with the Department of Justice recently estimated that the Department receives about 30 applications a year for the review of criminal convictions."
Given some of the hurdles Mr. Rosen and I have already highlighted, how can we calculate the frequency of wrongful convictions? Mr. Rosen's reference to the roughly 30 applications the Department of Justice received annually in the years leading up to 1992 can only tell us that, when one takes into account the small percentage of people who have the wherewithal to mount an effective wrongful conviction campaign (including finding a lawyer who believes strongly in the merits of the case); have been sentenced to a long enough sentence for the years- or decades-long pursuit of justice to be deemed an attractive option; and have sufficient evidence to argue a case where the burden of proof is on the defendant to establish his or her innocence, that this number must represent a miniscule fraction of the actual cases of people wrongfully convicted.
In cases where a person is serving ten or less years, even assuming we are speaking of a the relatively small number of people who have the emotional, social and financial wherewithal and the evidentiary requisites to mount a wrongful conviction case, a large number of these people may well serve their entire sentence before a wrongful conviction claim gets anywhere, if it gets off the ground at all.
Anyway, people who have the tools and finances to convincingly advocate for their own innocence are those most likely to avoid wrongful convictions in the first place. A wealthy white businessman has the means and “respectable citizen” appeal to be able to defend himself well against both a conviction if he is at trial and a wrongful conviction in the less-likely event of such an occurrence. Demographically, those most likely to be wrongly convicted are the same people who are least likely to be willing and able to stand up for themselves effectively. A drug-addicted Native woman would have considerable hurdles both in avoiding a presumption of guilt and to successfully fighting a wrongful conviction in the far likelier instance of that occurrence.
Surprisingly, while the Innocence Project, an American organization committed to using DNA testing to reverse wrongful convictions, acknowledges that “These DNA exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed ,” they do not even mention the social status reflected in the convictees' “race”, class, gender which leads to far more likely and wider ranging systemic presumptions of guilt. They list instead four raceless, classless, genderless factors contributing to wrongful convictions: eyewitness misidentification testimony, unvalidated or improper forensic science, false confessions and incriminating statements, and snitches (innocenceproject.org). Of course, without recognizing the convictee's social status as the primary driver of convictions based on the presumptions of guilt, we are deprived of a deeper and more accurate understanding of how and why wrongful convictions occur.
Rosen similarly provides a mechanical explanation for wrongful convictions which do not make any mention whatsoever of the role that poverty, colour, ethnicity, nationality, personal background, language, appearance, or gender have to do with these obviously “race”, class and gender-biased miscarriages of justice:
"The causes of wrongful convictions are easy to identify: irregularities and incompetence at the investigatory, pre-trial, trial and appellate stages of the criminal justice system. More particularly, Kaiser identifies the following contributory factors, among others: false accusations, misleading police investigative work, inept defence counsel, misperceptions by Crown prosecutors of their role, factual assumption of an accused’s guilt by actors in the criminal justice system, community pressure for a conviction, inadequate identification evidence, perjury, false confessions, inadequate or misinterpreted forensic evidence, judicial bias, poor presentation of an appellate case, and difficulty in having fresh evidence admitted at the appellate stage. Each instance of determined wrongful conviction illustrates a different combination of failures in the criminal justice system that have prevented it from functioning effectively and fairly."
Not once in Mr. Rosen's report are the words “race”, “racism”, “sexism”, “class” or “classism” even found in the federal document.
Anecdotally, a friend told me about a conversation he had had with a Crown lawyer, whose position was that whoever he is prosecuting is probably guilty and, even if not, that person had probably done something in his life that he should have gone to jail for anyway. While this is anecdotal evidence based on one incident that has come to my attention, it confirms to me at least some extension of the presumption of guilt beyond the confines of our case. Further, one of the defence lawyers in our case candidly admitted that he was not used to dealing with innocent people since most of the people he deals with are guilty. Whether his finding of guilt was based entirely on the facts in all those cases or mixed with presumptions of guilt is not clear, though dealing with people deemed guilty by whatever means cannot but lead to an overall presumption of guilt over time.
Yet if a person's guilt is established in any way with the assistance of prejudicial assumptions on the part of the police or the courts rather than upon the strict basis of facts and the clearest of inferences (This is a sticky point, for what is clear? This is where bias affects the outcome of a trial), the obvious consequence is that wrongful findings of guilt are inevitable and the trial becomes to some extent a casino table; one with the odds stacked heavily in favour of citizens matching the profile of a “respectable citizen” and the odds stacked decidedly against those who fall furthest from this standard.
There is already a decent selection of irrefutably evidenced and compellingly argued books written on the role of “race”, gender, class and other factors which affect a person's chances in the casinos of law, so I will not make those arguments here. All to say that to find a person guilty in such a slipshod manner as relying upon presumptions of guilt where the facts do not suffice is a surefire recipe for wrongful convictions. Since my own experience with the courts strongly suggests the routine operation of a pro-guilt bias, I expect that wrongful convictions are far more frequent than we have ever been led to believe. Only those with a functional level of self-esteem, focus, and drive would be in a position to communicate their stories of wrongful conviction and have themselves heard, let alone believed.
In a 1992 federal review of wrongful convictions in Canada, Senior Analyst Philip Rosen noted that:
"A final issue of concern to applicants’ counsel is the lack of financial assistance to convicted people who may wish to submit a s. 690 [Criminal Code] application for mercy to the Minister of Justice. In several instances, provincial legal aid plans have refused to assist s. 690...applicants with their legal fees and disbursements. In some cases, counsel have done this work on a pro-bono basis and assumed thousands of dollars in disbursements, while in others, non-governmental organizations have financially supported the applications (http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp285-e.htm)."
If this is the hurdle people wrongfully accused face, it stands to reason that the wrongful convictions that find a public spotlight represent but a tip of a rather horrifying iceberg. Beyond these formidable personal constraints that bar the way to a successful “reversal” (can the damage caused by a wrongful conviction ever truly be reversed?), there must also be at play a certain reluctance on the part of the courts to shed a light on the systemic problems indicated by such travesties. As Mr. Rosen points out, “Wrongful convictions undermine the two prongs of the criminal justice system’s legitimacy. If someone is wrongfully convicted, that person is punished for an offence he or she did not commit and the actual perpetrator of the crime goes free. As well, public confidence in the system declines when wrongful convictions are identified.”
As strong as the desire for the former may be, professional considerations for the public reputation of the entire administration of law may transform the will to free an innocent person into a rather lackluster affair. Without a rather fervent and widespread will to scrutinize and honestly evaluate the errors in the system and admit their systemic nature, however, wrongful convictions are doomed to perpetuity, bringing the legal system into further disrepute. As Mr. Rosen concedes,
"Because findings of wrongful conviction represent a basic undermining of the integrity of the criminal justice system, the procedures established for the review of such cases are extraordinary in nature and are rarely invoked successfully. For it to be otherwise would be to put in question the criminal justice system’s legitimacy and, by bringing attention to its fallibility, to weaken public confidence in it."
Not surprisingly, then, Mr. Rosen reveals a shockingly low incidence of estimated wrongful convictions:
"There are probably fewer truly wrongful convictions than claimed, but there may still be a surprising number. It has been claimed that in Great Britain, the wrongful conviction rate may be as high as .1% – or one out of every thousand people. Another estimate is that there may be 15 cases of wrongful convictions each year in Great Britain. Academic studies in the United States indicate that between one-half and 1% of persons convicted of serious offences did not commit the crime. It has also been suggested by the Criminal Justice Research Centre that as many as 6,000 persons a year are wrongfully convicted of felonies in the United States. There are no similar estimates of the number of wrongful convictions in Canada. An official with the Department of Justice recently estimated that the Department receives about 30 applications a year for the review of criminal convictions."
Given some of the hurdles Mr. Rosen and I have already highlighted, how can we calculate the frequency of wrongful convictions? Mr. Rosen's reference to the roughly 30 applications the Department of Justice received annually in the years leading up to 1992 can only tell us that, when one takes into account the small percentage of people who have the wherewithal to mount an effective wrongful conviction campaign (including finding a lawyer who believes strongly in the merits of the case); have been sentenced to a long enough sentence for the years- or decades-long pursuit of justice to be deemed an attractive option; and have sufficient evidence to argue a case where the burden of proof is on the defendant to establish his or her innocence, that this number must represent a miniscule fraction of the actual cases of people wrongfully convicted.
In cases where a person is serving ten or less years, even assuming we are speaking of a the relatively small number of people who have the emotional, social and financial wherewithal and the evidentiary requisites to mount a wrongful conviction case, a large number of these people may well serve their entire sentence before a wrongful conviction claim gets anywhere, if it gets off the ground at all.
Anyway, people who have the tools and finances to convincingly advocate for their own innocence are those most likely to avoid wrongful convictions in the first place. A wealthy white businessman has the means and “respectable citizen” appeal to be able to defend himself well against both a conviction if he is at trial and a wrongful conviction in the less-likely event of such an occurrence. Demographically, those most likely to be wrongly convicted are the same people who are least likely to be willing and able to stand up for themselves effectively. A drug-addicted Native woman would have considerable hurdles both in avoiding a presumption of guilt and to successfully fighting a wrongful conviction in the far likelier instance of that occurrence.
Surprisingly, while the Innocence Project, an American organization committed to using DNA testing to reverse wrongful convictions, acknowledges that “These DNA exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed ,” they do not even mention the social status reflected in the convictees' “race”, class, gender which leads to far more likely and wider ranging systemic presumptions of guilt. They list instead four raceless, classless, genderless factors contributing to wrongful convictions: eyewitness misidentification testimony, unvalidated or improper forensic science, false confessions and incriminating statements, and snitches (innocenceproject.org). Of course, without recognizing the convictee's social status as the primary driver of convictions based on the presumptions of guilt, we are deprived of a deeper and more accurate understanding of how and why wrongful convictions occur.
Rosen similarly provides a mechanical explanation for wrongful convictions which do not make any mention whatsoever of the role that poverty, colour, ethnicity, nationality, personal background, language, appearance, or gender have to do with these obviously “race”, class and gender-biased miscarriages of justice:
"The causes of wrongful convictions are easy to identify: irregularities and incompetence at the investigatory, pre-trial, trial and appellate stages of the criminal justice system. More particularly, Kaiser identifies the following contributory factors, among others: false accusations, misleading police investigative work, inept defence counsel, misperceptions by Crown prosecutors of their role, factual assumption of an accused’s guilt by actors in the criminal justice system, community pressure for a conviction, inadequate identification evidence, perjury, false confessions, inadequate or misinterpreted forensic evidence, judicial bias, poor presentation of an appellate case, and difficulty in having fresh evidence admitted at the appellate stage. Each instance of determined wrongful conviction illustrates a different combination of failures in the criminal justice system that have prevented it from functioning effectively and fairly."
Not once in Mr. Rosen's report are the words “race”, “racism”, “sexism”, “class” or “classism” even found in the federal document.
Anecdotally, a friend told me about a conversation he had had with a Crown lawyer, whose position was that whoever he is prosecuting is probably guilty and, even if not, that person had probably done something in his life that he should have gone to jail for anyway. While this is anecdotal evidence based on one incident that has come to my attention, it confirms to me at least some extension of the presumption of guilt beyond the confines of our case. Further, one of the defence lawyers in our case candidly admitted that he was not used to dealing with innocent people since most of the people he deals with are guilty. Whether his finding of guilt was based entirely on the facts in all those cases or mixed with presumptions of guilt is not clear, though dealing with people deemed guilty by whatever means cannot but lead to an overall presumption of guilt over time.
Thursday, February 4, 2010
letter to the canadian senate
The Senate of Canada
Ottawa, ON
K1A 0A4
January 26th, 2010
Dear Senators,
I wanted to air my feelings about Bill C-6. It has been a popular and contentious issue for what I feel to be quite compelling reasons. I understand that clauses included in the bill have serious potential negative ramifications for Canadian citizens, specifically in the realm of the exercise and protection of our civil liberties.
I understand that one of the powers granted by Bill C-6 is that law enforcement officers will have the right to enter citizens' private property, take whatever they wish, and keep it indefinitely. This can be done without the current requirement of application to the courts or a justice of the peace for a warrant. In other words, agents will not be required to demonstrate reasonable grounds.
In my view, legislation of this nature has no place within a country which in any way refers to itself as a democratic nation. It deeply concerns me that it has even been humoured as anything close to a legitimate document. We have an ample criminal code and warrant application process which has hitherto worked abundantly well. I personally see no need for this new legislation which abridges our constitutional rights.
To me, Bill C-6 takes its place beside Canada's Patriot Act: Bill C-36, -42 and other apparently so-called anti-terror legislation which has a notorious track record for being used against people who are, whether by religion, or colour, or nationality, or ethnicity, or politically considered undesirable by the government (ours or our neighbours to the south).
I appeal to each of you to exercise your better judgement as Canadians, as citizens of this planet, as wise and compassionate beings, to no longer entertain this latest model of in a network of increasingly autocratic legislation. I urge you to do all that is in your power to dismiss Bill C-6. I fear that if you fail to do so our peaceful fellow citizens will be forced to experience its consequences. For a chilling example of how authorities and law enforcement are already acting as if Bill C-6 is on the books, please see: http://www.youtube.com/watch?v=SBCHlTxUqNM
Thank you for you time and attention; I look forward to your replies.
Sincerely,
Che Nolan
Ottawa, ON
K1A 0A4
January 26th, 2010
Dear Senators,
I wanted to air my feelings about Bill C-6. It has been a popular and contentious issue for what I feel to be quite compelling reasons. I understand that clauses included in the bill have serious potential negative ramifications for Canadian citizens, specifically in the realm of the exercise and protection of our civil liberties.
I understand that one of the powers granted by Bill C-6 is that law enforcement officers will have the right to enter citizens' private property, take whatever they wish, and keep it indefinitely. This can be done without the current requirement of application to the courts or a justice of the peace for a warrant. In other words, agents will not be required to demonstrate reasonable grounds.
In my view, legislation of this nature has no place within a country which in any way refers to itself as a democratic nation. It deeply concerns me that it has even been humoured as anything close to a legitimate document. We have an ample criminal code and warrant application process which has hitherto worked abundantly well. I personally see no need for this new legislation which abridges our constitutional rights.
To me, Bill C-6 takes its place beside Canada's Patriot Act: Bill C-36, -42 and other apparently so-called anti-terror legislation which has a notorious track record for being used against people who are, whether by religion, or colour, or nationality, or ethnicity, or politically considered undesirable by the government (ours or our neighbours to the south).
I appeal to each of you to exercise your better judgement as Canadians, as citizens of this planet, as wise and compassionate beings, to no longer entertain this latest model of in a network of increasingly autocratic legislation. I urge you to do all that is in your power to dismiss Bill C-6. I fear that if you fail to do so our peaceful fellow citizens will be forced to experience its consequences. For a chilling example of how authorities and law enforcement are already acting as if Bill C-6 is on the books, please see: http://www.youtube.com/watch?v=SBCHlTxUqNM
Thank you for you time and attention; I look forward to your replies.
Sincerely,
Che Nolan
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