Unfortunately, as the reports circle around the internet, PC Vu Pham, 37, has succumb from his injuries he received in a shooting this morning.  Pham leaves behind a wife and three children and a community, in which he was deeply involved, in mourning for his sudden, tragic, and senseless murder.

The 70 year old suspect’s name has not been released, but he will undoubtedly be charged above all else with first degree murder.

It is reported that PC Pham, a Vietnamese immigrant and veteran officer of 15 years, was attempting to stop a suspect vehicle from a report of  domestic violence.  If this is the case, it is the worst kind of irony, because today, March 08, is International Women’s Day.  A day that in part is aimed at preventing violence against women.

This is the second police officer who has been killed in the line of duty in a week in Ontario.  On Monday, March 01,  Artem “James” Ochakovsky, a Peel Regional Police officer died in a traffic accident when his police cruiser hit another car and then wrapped around a telephone poll.

Although the deaths of Ochakovsky and Pham are different in nature, they are tragic to the community and especially the policing community.

I will save my personal opinion for my personal website, and if you are at all interested in reading it, follow this link.

Sexual assault is any physical contact without consent “in circumstances of a sexual nature such that the sexual integrity of the victim is violated” (Martin’s Criminal Code). If you are accused of sexual assault, what the physical contact looked like to you is irrelevant. What matters is if the judge thinks it was sexual. He or she will look at many factors such as “[t]he part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force … and the motive of the accused” (Martin’s Criminal Code). Sometimes your motive will be important and sometimes not.

In the twin brother case, the man had sex with the woman so the nature of physical contact was not an issue. The question on appeal is about the woman’s consent: was the man reckless or wilfully blind when he believed the woman agreed to the sexual contact? I don’t have the trial judge’s decision or the parties’ submissions on appeal, and I don’t want to draw conclusions about this case from the media’s reporting. So let’s say the case is just an inspiration for this essay.

Suppose the prosecution argued that the man had a higher duty to make sure the woman consented because he looked almost exactly like his brother. It’s a reasonable argument for the Crown to make because belief in consent is not a defence if you were “reckless” or “wilfully blind” in having this belief. It means if you knew there was a chance the woman didn’t consent or if you knew you had to do more to find out if she consented but didn’t because you didn’t want to, and the court finds she didn’t consent, you’re a criminal.

If you are the twin brother of a woman’s boyfriend, do you have to take extra steps to ensure her consent before sex even if you think the woman gave it? One theory could be that the exceptional similarity of twins creates a special risk that the woman will confuse one brother for another. If you know of this risk but go ahead, you are reckless even if you believe the woman consented. If you don’t know of this risk but know about the possibility of risk and prefer to ignore it, you are wilfully blind. In both cases, you are guilty of sexual assault if it turns out the woman didn’t consent.

As you can see, the law of sexual assault is complex and fact-specific. One reason why the Parliament and the courts chose to make it that way is to protect women because of many ways in which they could be against having sex and because they would not always be able to make it clear to the man, for example out of fear. The burden is clearly on men (assuming sexual assault is a man crime as I argued in the beginning) to make sure the woman consents before and during any sex. But if lawyers and judges disagree on the complex questions of consent, what should ordinary men in Canada do? (I am not talking about rapists, violent men, and other obviously criminal types.)

Criminal law must give clear guidelines, or it risks becoming unjust. Vague criminal law is unconstitutional in Canada. I am not arguing that the sexual assault law is vague but it’s complicated enough for men to have to follow the highest standard of conduct to really be on the safe side. In your normal sexual relations, the line between lawful and criminal conduct can be very thin. You can cross it easily. Here are some suggestion for all men in Canada:

• before any touching, ask the woman if she consents and do not touch until she says yes
  • sexual touching includes hair, neck, hands, face, etc.—not just the obviously sexual areas
  • of course, it also includes the sexual act itself
• if the woman says no, do not touch her; do not assume that she is playing; in criminal law, no means no
• if you know you look like someone else she knows, tell the woman exactly who you are before any touching
• during any touching, constantly monitor the woman for signs she stopped consenting
• if you see any signs that she withdrew her consent, stop all touching immediately
• videotape everything (preferably in high definition) in case the facts are disputed in the future
  • don’t forget to warn her you’re videotaping because uninformed consent doesn’t count
  • having two impartial witnesses during the whole process is even better
• DO NOT DRINK before or during the physical contact with a woman: you risk impairing your judgement and missing the moment when she stops consenting. Self-induced intoxication is not a defence.
• above all, guys, treat women with respect and avoid random sexual relations

(Post sponsored by AdviceScene)

American International Group, better know by its acronym AIG, it seems these days can rarely catch a break. It just seems negative news follows negative news for this company. This time the negative news for this too big to fail company – deeply wounded by the global credit crunch and later recession – has two of its units being accused of racial discrimination in their lending practices.

It is important to note that AIG has not been found guilty of anything; in fact it wasn’t even accused of any wrong doing.

WHAT?

I know, I know, it seem like I am saying that AIG is involved yet not involved in this case. And yes that is exactly what I am saying.

All of this may seem totally contradictory but let me assure you it is not. What we have here is a classic illustration of legal reality vs. public perception of a company’s brand. In order to be successful companies have to be mindful of the differences between these two concepts and effectively manage their interrelation.

The Department of Justice (DOJ) allegations were never directed at AIG, the parent company, but were instead directed at two of its subsidiaries –AIG Federal Savings Bank (FSB) and Willmington Finance Incorporated (WFI). Both banks were accused of not sufficiently monitoring the activities of mortgage brokers who sold mortgages that they funded. The brokers were, according to the DOJ, offered African-American borrowers less favorably borrowing terms than similarly financially situated whites. The two have agreed to settle the case with the DOJ and have agreed to pay at least $US6.1 million without admitting liability as part of the terms of settlement.

The case broke no new ground as far as banks in the US being accused of racial against minorities, namely African-American and Latino-Americans, in fact similar settlements or even full blown litigation involving other US banks will surely be making the headlines in the near future. The case however did break new legal ground in that for the first time US authorities held a lender directly responsible for the racial discriminatory acts of brokers. As a consequence, from now on banks will have a positive duty to monitor the activities/policies of brokers that they fund, to the best of their ability, in order to ensure that they are not using race to determine borrowing terms. This duty also of course carries with the co-duty to take positive action whenever a bank believes that a broker is using race.

From a strict legal perspective AIG, the parent, hands remain totally clean is this matter. It is important to reiterate that AIG was never accused of anything; the allegations were solely directed at the two subsidiaries. And no this is not a simple matter of splitting hairs, while related all three companies are separate. The legal concept of the corporate veil - the independent legal identity of companies, even if related – is a fundamental one in corporate law. The corporate veil is best understood as a shield that is used to protect all the right that come with incorporation. This is not to say that it can never be lifted/pierced, for it can, but this is only done in rear and specific instances where for example fraud is alleged or where for some reason the directing/controlling mind of a corporation needs to be identified.

However, these allegations go beyond strictures of the corporate veil and this is where public perception of the brand and effective management of that brand become important. AIG and its army of brand management specialists both know that the general public are often not so discerning as to make the distinction between parent and subsidiary; as far as the public is concerned AIG is AIG. This is the reason I believe that there was such a quick settlement – the last thing AIG, the parent, needs is a protracted legal battle involving accusations of racial discrimination, albeit involving subsidiaries. This would be a public relations nightmare.

The issue of state protection has become more contentious following a string of recent federal court challenges – involving refugee claimants from Turkey, Kenya, Mexico, St. Vincent and, in Sterbyci’s case, Albania – that question assessments made by the Immigration and Refugee Board and enforcement officials…

TO PROVE ONE’S CASE, the refugee board suggests, claimants must demonstrate that the “state apparatus” of protection has collapsed, that people in similar situations are also not getting protection, or explain how they sought government help without success.

Refugee lawyers Luyt and Boulakia argue those guidelines and country-condition reports are selectively applied, and the recent federal court decisions would seem to support that.

… state protection cannot be automatically assumed in a democratic country.

Queen’s University immigration law professor Sharryn Aiken said it is only a partial victory for these refugee claimants, because their cases have only been referred back for redetermination; they still face removal from Canada.

However, it underlines the need in Canada for a refugee appeal division, a body with the authority to not only revisit evidence, but reverse wrong decisions, she said.

Former Supreme Court Justice Frank Iacobucci was enlisted Friday to investigate whether the release of documents relating to Afghan detainee torture would cause an “injurious” effect.

The release of these documents – which could prove damning if they show government complicity in torture – was widely cited as being the underlying reason for PM Stephen Harper’s most recent prorogue of Parliament.

The unsettled issues here seem to be the following:

1. Is this, as critics allege, simply a transparent effort to hide from opposition pressure to release the documents?
2. Will Iacobucci actually be given all of the relevant documents?
3. Should Iacobucci fear personal reprisal – à la Richard Colvin – if his findings do not please the Conservative government?
4. How binding will his decision be, given that it’s not a Supreme Court reference?
5. If Iacobucci decides that releasing the documents would be injurious, is a Parliament majority vote to release them nonetheless binding on the executive?

Iacobucci previously led an independent commission from 2006 to 2008 investigating Canadian government involvement in the torture of three Arab-Canadian men in Syria and Egypt. He found that CSIS and the RCMP indirectly contributed to wrongful detainment and torture of the individuals.

The basic premise of legal reasoning is that it’s all about the courts. Everything lawyers do is about predicting the outcome of litigation that may or may not happen (at least in common law countries like Canada). That is ultimately the only thing lawyers do even though it may look like your average lawyer is busy with a million other roles. It’s clear that litigators think about litigation, but the other kind of lawyers—those who draft or vet contracts, wills, letters and applications—also always have the courts in mind. The difference is that the litigators already have a dispute on their hands, and non-litigators go out of their way to prevent a dispute.

Courts have the power to review any private or government action and decide if it’s legal. Our courts’ rulings are binding on all parties to the dispute, even the government.  Because our courts are independent and have constitutional powers, anyone can sue anyone else including the Prime Minister and have a fighting chance. This is called the rule of law, and that’s why we have so many lawyers.

Good lawyers try to think the way judges would think because lawyers have only two purposes: to prevent litigation and to win in litigation. It’s all about the courts in our legal system. In my previous essay, I asked a question about inalienable rights in Canada. It was a legal question. Its purpose was to figure out if there was any way for Canadian courts to uphold taking away of all Charter rights. I concluded that courts could technically do that, and that’s why my answer was that there were no inalienable rights in Canada.

My reasoning wasn’t political: I didn’t look at the balance of power among political parties or their inclination to attack Charter rights. It wasn’t economic: I didn’t crunch numbers to see when Canadians could no longer afford Charter rights. It wasn’t social: I didn’t look at what groups in our society would take what position on the issue. My reasoning was legal: I tried to predict what arguments could convince judges to allow the elimination of Charter rights.

The legal argument doesn’t take politics or economics into account but it’s still powerful because the courts have huge power in Canada. Court will listen to economic and political arguments (they are called policy arguments), especially in constitutional cases.   But I assumed in my previous essay that the country must be in an emergency politically and economically for the extreme legal argument against Charter rights to succeed.

So lawyers always try to predict what the courts will say, even when the police or a government ministry will most likely resolve the issue. In some areas, such as immigration, government officials have enormous discretion, and the courts often trust their judgement. In those cases, the lawyers certainly try to predict what the government official will decide, but even in those cases, lawyers know that every official is subject to judicial review. The government understands this too, and it certainly limits how far agents of the state go in their discretion. So the courts are still in the picture, at least because they leave the government alone. But they can pull the leash quickly if the government oversteps its bounds or if the courts change their interpretation of how much they should trust the government’s judgement  in the given area.

Lawyers (at least when they earn their keep) think like judges. A good legal argument resembles a judicial decision that a judge could almost copy in potential litigation. And even lawyers who draft contracts and wills think about the courts, because they try to describe their clients’ rights in words that no judge will question. That’s why Mr. Burns’s lawyer said “this should hold up in any court” handing his boss yet another evil contract in one of The Simpsons episodes.

Knowing that lawyers think in terms of disputes in courts can empower an ordinary citizen. First, when you go to court without a lawyer, you will know that you really should get one, even if it’s a law student. The courts are the be–all and end–all, and you need someone who knows what judges want to hear. Second, if you have a lawyer, it will be easier to see if he is doing a good job. Try to think of future disputes over your contract or will, and see if your lawyer is taking care of that in the text. Finally, you should know about the power of lawyers and judges because the courts are the only unelected branch of power in Canada, and you as a citizen should know why and how the system works and how to make sure it continues to work in the future.

Further reading: Frederick Schauer, Thinking like a Lawyer: A New Introduction to Legal Reasoning, (Cambridge: Harvard University Press, 2009).

(Post sponsored by AdviceScene)