Obnoxiousness isn’t always a crime

The skeet who yelled a sexist meme at NTV reporter Heather Gillis during a live shoot has been acquitted of criminal charges:

A provincial court judge in St. John’s has ruled it could be illegal to shout a sexist slur at female reporters, but not in the case of what happened to NTV reporter Heather Gillis last year outside the city dump.

It was never a question of whether Justin Penton hurled the words at Gillis while she was interviewing St. John’s Mayor Danny Breen at the Robin Hood Bay waste management facility in April 2017. The issue for the judge was whether or not it constituted a crime in that context.

Gillis reported she was “humiliated, embarrassed and disgusted” by the comments. Breen said it made him uncomfortable.

But Judge Colin Flynn ruled an emotional disturbance does not meet the criteria for a charge of disturbing the peace.

“Something more than emotional upset and a momentary interruption in a conversation is needed to constitute the criminal offence,” Flynn wrote in his decision.

[…]

Last April, Gillis had just finished interviewing Breen, who was a city councillor at the time, and was following up with a few off-camera questions. Penton drove by in his truck and yelled “F–k her in the p—y” on his way into the dump.

A lower court judge is bound by Supreme Court of Canada decisions, and in this case it appears that Judge Flynn is following the 1992 Lohnes decision.  He even suggested that Parliament could, and probably should, add “emotional disturbance” to the Criminal Code provisions regarding causing a disturbance.

Needless to say, the University of Twitter College of Law respectfully disagrees:

1

Twitter is angry about a court decision.  Dog bites man.  But even many of Newfoundland’s blue-checkmarks are calling out the decision:

Screenshot from 2018-02-20 18-55-23Screenshot from 2018-02-20 18-55-39Screenshot from 2018-02-20 18-56-41

Newfoundland’s media world is a small one, in which most local journalists know each other well, so it’s not surprising to see the province’s media personalities coming to the defense of a colleague.

But would so many reporters, commentators and entertainers be piling on this if it didn’t happen to someone from their own world?

The St. John’s drug scene

CBC’s David Cochrane on the darker side to oil-fueled prosperity in my hometown:

St. John’s is the hottest cocaine market in Atlantic Canada. At least that’s what the drug dealers whom the Royal Newfoundland Constabulary arrests tell the police officers.

The volumes of cocaine coming into the city are enormous,in spite of the many arrests and the relative geographic isolation. The spike in disposable incomes from the local oil boom and commuter workers from western Canada is fueling the demand. It is the dark side of prosperity.

Friday’s announcement of a $1-million police task force to tackle drugs and organized crime shows how true that is.

But embedded into that drug trade is a streak of hidden and unreported violence. There’s a rash of drug dealers ripping off other drug dealers. There are home invasions in areas much nicer than Tessier Place where stick-up crews are trying to rip off a dealer’s dope stash or his bank roll.

Police and prosecutors hear of severe beatings using bats,crowbars,brass knuckles and bear spray. The victims of these beatings often refuse to give the police a statement even if they end up in hospital with life-threatening injuries. After all,how do you tell a cop that the guy who hurt you did it in order to steal your cocaine stash?

Newfoundland and Labrador’s greatest unsolved mystery

Thirty years ago yesterday, 14 year-old Dana Bradley disappeared. A few days later, a family looking for a Christmas Tree found her body off Maddox Cove Road, near St. John’s.

The killer has never been caught:

Dana was last seen getting into a 1973 to ’76 Dodge Dart or Plymouth Valiant four-door sedan, reads the handwritten RCMP news release from December 1981. The car was beige, tan or faded yellow with noticeable rust marks.

She climbed into the car at a bus stop opposite Tim Hortons on Topsail Road about 5:20 p.m. on Dec. 14.

Harry Smeaton of Gander and his brother, John, were selling Christmas trees on the empty lot behind the bus stop.

It hadn’t been a busy day and they were sitting in the truck watching people going back and forth.

“This little one looked like she was going for the bus,” he said of Dana, who then stuck out her thumb to hitchhike.

In no time, a car pulled up and the man had to reach across and open the passenger door from the inside because the handle didn’t work. In that moment in time, the brothers couldn’t know it was the last time anyone — aside from the killer — would see Dana alive.

“I wish we had the wherewithal to get the plate number,” Smeaton said in a phone interview last week.

“But at the time, it was a different place.”

[…]

More than $1 million was spent on an investigation, including laborious excavations in search of the mystery car at Robin Hood Bay, after Mount Pearl resident David Somerton confessed to the killing in 1986 and was charged with first-degree murder.

On Maddox Cove Road, police set up makeshift structures equipped with propane heaters to thaw the ground to search for clues.

Somerton later recanted, claiming he was hounded into the confession during questioning. He was convicted of public mischief and sent to jail for two years.

Another man was sentenced to nine months in prison in 1982 for making cruel, harassing phone calls to the Bradley family.

Over the years, the case has been profiled on national investigative journalism shows, is the subject of a book — “Hitching a Ride” by Darrin McGrath — and a poignant song, “The Ghost of Dana Bradley,” by renowned Newfoundland songwriter Ron Hynes.

There has been speculation her murder was connected to three cases of missing Newfoundland and Labrador women between 1978-84.

No sympathy from me

I feel bad for many fathers who are caught up in the machinery of child-support enforcement, but not this guy:

A St. John’s man says a provincial law aimed at dead-beat fathers is excessive.

Alastair Collis said it’s unacceptable that authorities have garnisheed his mother’s bank account.

“Why would they attack a 90-year-old woman? It’s elder abuse,” he told CBC News.

“They just can’t go just stopping your driver’s licence, your passports, your account and all that. And now, I don’t care what they do to me, they can throw me in jail, I don’t care but you don’t touch my mother.”

Newfoundland and Labrador’s director of support enforcement has declared Collis in default of payments and garnisheed his bank account and because Collis’s name is also on his mother’s account, that has been garnisheed as well.

According to Collis, he has been paying his child support.  It’s just that he refuses to pay through Newfoundland and Labrador’s support enforcement agency:

Once a court orders a divorced parent to pay support for children, the payments are made to the director of support enforcement, who then ensures the payments are passed on to the children.

Collis refuses to go through the director and said he doesn’t see why he should.

He said he’s a good father who regularly makes payments to his two teen-aged daughters in Toronto.

Collis is calling on all provincial party leaders to study child-support laws and have them rewritten.

In Nova Scotia (and back home in Newfoundland, I presume) the parties can agree that payments will be made directly to the recipient, though such orders often contain a clause giving either party the option to enroll in the Maintenance Enforcement Program.  As a rule, I recommend to my clients – payors and recipients of child support – that they make their payments through the Agency.  The recipient will know how much is owing, and the Program can enforce the order through garnishment of wages and bank accounts; the payor, meanwhile, will have documentation showing how much he has paid.

As for Collis, if he’s telling the truth and he has been paying child support, he should be able to make a court application to reduce or eliminate his arrears, and remove the garnishment order.  But it will cost time and money, and he may have to dig through years of bank statements and cancelled cheques to show how much he has paid.

That’s a high price to pay for making some kind of point, isn’t it?

The moose are loose

Every Newfoundlander with a driver’s licence has either struck a moose on one of the province’s highways, or come very close.  (My scare came in 1992, barely a year after I’d gotten my licence, while driving this through Terra Nova Park.)   Now, prominent trial lawyer Ches Crosbie (John’s son) is leading a class action against the Provincial government for failing to adequately protect motorists:

The statement of claim that Ches Crosbie is putting forward has no legal precedence that either side is aware of. None of the allegations noted have ever been tested in court.

At the heart of Crosbie’s case is the population of moose in Newfoundland and Labrador. Specifically, the plaintiffs point to the fact that these animals are not native to the province. Because they are alien species brought in by earlier settlers, the government is responsible for controlling the growth of the species. “Wildlife practices of the defendant have allowed the moose population on the Island to reach numbers in the range of 120,000 to 200,000 … multiplying the danger of moose collisions for users of the highways,” reads the statement of claim. The statement of claim also adds: the “government made a decision to bring this non-native invasive species here about a hundred years ago,” but the government has “avoided taking responsibility for managing the hazard it created.”

Accordingly, the plaintiffs demand that the Newfoundland and Labrador government take actions to cut the population of moose by half as a means to protect drivers. As well, moose near roads should be allowed to be killed by officials and fences should be installed along roads to keep them out.

[…]

At first glance, this case may seem sensational. Upon further examination, though, the legal issue at the heart of this case should remind us of a case that was heard some 20 years ago. The legal analysis will turn on the duty of care that is owed by public authorities. The guiding case is the 1989 Supreme Court of Canada case of Just v. BC. In the earlier case, the issue of governmental liability was raised when a boulder fell on a car, killing one passenger and seriously injuring another. The plaintiff claimed that the government had neglected to properly maintain the highway. At the trial and Court of Appeal levels, the judges held the government of British Columbia to not be liable in tort, as the entire inspection system and its implementation are policy matters.

What ultimately comes out of the Just case is a test for when governmental actions are exempt from liability, to as to allow government actors to exercise their duty to formulate public policy without intervention from the courts. This is fundamental to the division of powers in our country.

First, the majority of the judges on the Supreme Court found there to be general proximity because “the Department of Highways could readily foresee the risk that harm might befall users of a highway if it were not reasonably maintained.” Once general proximity is established, the Court in turned their attention to statutory exemptions and the difference between an operational decision and a policy decision. That forms the crux of the Just test. “Government agencies may be exempt from the application of the traditional tort law duty of care if an explicit statutory exemption exists or if the decision arose as a result of a policy decision,” summarizes the Court.

The Court found that there was no statutory exemption, so it proceeded to distinguish policy decisions from operational decisions, explicitly noting that the former concerns budgetary allotments for departments or government agencies. This kind of investigation usually includes an inquiry into where on the governmental hierarchy the decision was made, whether it was done with advanced planning as opposed to being executed on the ground, etc.

While it was a policy decision to have safeguards on the highway, the majority of the Court found that the government failed to exercise due care in the operation of the policy — in the manner and quality of the inspection system. Having found no statutory exemption and having dismissed it as a policy decision, the Court ordered a new trial to more fully investigate the facts of the case (i.e. budgetary restrains, availability of personnel, etc.) in Just.

Obligatory:

The Rodgers case

The seizure of two young children from a Western Newfoundland couple is getting a lot of media attention in my home province, mainly because of the heartbroken mother’s allegation that intelligence testing was used to determine that she and her husband cannot adequately care for the children:

Neighbours of a southwestern Newfoundland couple whose children were placed in foster care are raising money to help the family mount a legal challenge.

Dorothy, 31, and Bobby Rodgers, 34, of Port aux Basques, said the decision to put their children in foster care was unfair. They said authorities used their scores on intelligence tests to justify keeping their son and daughter out of their home.

“So many people knows me and Bobby, he’s such a good father to those kids, I’m a good mother,” said Dorothy Rodgers.

The couple plans to go to court to fight for the return of their children.

[…]

Dozens of supporters have called open line radio shows and more than 150 people have joined a Facebook support page.

A lawyer hired by the couple told CBC News that he has concerns about paperwork done by social workers about the Rodgers.

Lawyer Adam Crocker said it contains hearsay allegations and judgmental language.

The CBC’s sympathetic video report can be viewed here.  The “intelligence tests” were part of a Parental Capacity Assessment, which is regularly ordered in child-protection matters:

What is a parenting assessment?

A parenting assessment gathers information from a number of different sources about:

  • the needs of the child or children
  • the parent’s ability to meet those needs
  • the skills and strengths of the parent
  • the relative skills and strengths of parties proposed as caretakers
  • the quality of the parent child relationship
  • supports available to the family

This information is analysed to form recommendations promoting the best interests of the child. Recommendations may include:

  • placement options for the child
  • long-term planning suggestions
  • treatment suggestions
  • services that may help the parent address problem areas

Why get a parenting assessment?

Children’s Aid, therapists, the court, or lawyers may need to understand how someone approaches parenting, including strengths and weaknesses.

Often certain problems in a parent’s behaviour, or problems between a parent and child, need to be addressed before making any decisions on behalf of the child.

Areas to consider when assesing a person’s ability to parent can include:

  • depression or grief
  • anger control/management
  • alcohol or drug abuse
  • issues of child abuse or neglect
  • criminal activity
  • mental/emotional health issues

I’ve worked on many child-welfare matters in Nova Scotia and Newfoundland, and I’ve seen several cases where, in my opinion, officials went too far in removing children from the care of their parents.  That is the ultimate violation of family integrity by the state, and if a government agency is going to separate children from their mothers and fathers, it had better be only way to ensure their safety.

That said, social workers and child-protection officials are in a no-win situation, where they may be savaged for their inaction if they don’t intervene – especially after the Shirley Turner fiasco just a few years ago.  And even Ms. Rodgers admits that there is more to this case than her test results:

…She says social services took her children based on a set of lies she admits to telling while in a transition house seeking help from her abusive past; lies which Dorothy says had nothing to do with the quality of care for her kids and which she believes social services are holding against her.

She also feels that her missing a doctor’s appointment for one of her kids because of bad weather is being held against her. She explains that they struck bad weather in Port aux Basques on the day of the first appointment and there was no way she was going to risk her or her children’s lives by driving through the Wreckhouse at that time. She says she missed her rescheduled appointment too, but assures that her child eventually saw their family doctor and that at no point was her child in any grave medical danger.

Rodgers believes there are flaws in the Parent Capacity Skills Test, which the department made her take. She says the test is designed to identify familial strengths and weaknesses so that families can focus on the strengths while improving upon the weakness. In her case, however, she says only her family’s weaknesses received any attention.

Is this family being victimized by an unfeeling, intrusive government bureaucracy?  Maybe, but unless I have all the information available to the lawyers, the social workers and the Judge before me, I cannot say for sure.  Which is precisely my point.

Live from Provincial Court

CBC reporter David Cochrane (@CochraneCBCNL) is tweeting some hilarious observations from courtroom #7 in Atlantic Place, St. John’s – a courtroom where I often appeared, sometimes as a lawyer.*

Guys with facial tattoos, sideways baseball caps, accused persons screaming about “miscarriage of justice” when the charges against them have been dropped – seems like the place hasn’t changed at all.

*and with that, my daily quota of Simpsons references is fulfilled.

Danny Williams: The War With Ottawa

My latest book review for Canadian Lawyer has been posted.  Bill Rowe’s account of his experiences as Newfoundland and Labrador’s “ambassador” to Ottawa, while Danny Williams and Paul Martin feuded over equalization payments and offshore oil revenues, doesn’t do enough to make Newfoundland’s case, but it does humorously show what happens behind closed doors in the nation’s capital.