On “humanizing” a killer

As we sit locked down inside our homes, we thought 2020 couldn’t get any worse. And then Dartmouth denturist Gabriel Wortman went on an hours-long shooting rampage across Nova Scotia.

As of this writing the death toll hasn’t been finalized, but we know it is the worst act of mass murder in Canadian history since the 1985 Air India bombing.

Today’s edition of The Chronicle Herald features several angry letters in response to a news story published in the April 20 edition, about the killer’s life and background. The paper has added an Editor’s Note explaining why they published it in the first place:

Editor’s note — Some readers have expressed opposition to this story, not wishing to read about a mass murderer’s background. We respect their position. We don’t ever want to glorify, but we must contextualize to begin to find the answers we all desperately want — who, why and how.  Providing personal history is crucial to this. 

That said, we are now shifting our coverage focus to the victims and their families. Going forward, we only use the murderer’s name and photo when it serves a greater public good, and when we do, we will endeavour to explain it.

We are taking a similar approach with photos of his crime scenes. Those will only appear when they provide valuable context for our readers. 

I can understand why people are upset about this, especially at a time of unprecedented stress and uncertainty. It seems unfair that someone who carried out an act of pure evil and destruction should become famous for it, while his victims – including a police officer, a teacher and two nurses – fade into obscurity.

But I think the Chronicle Herald was right to publish its story. Indeed, I think the paper had an obligation to do so.

We’d like to believe that killers spring fully formed from the pits of Hell, creatures of pure evil with whom we regular people have nothing in common. There’s no chance that we would ever do something like this, so there is nothing to be gained from studying their lives.

But I can’t help thinking of a famous quote from Aleksandr Solzhenitsyn’s Gulag Archipelago:

“If only it were all so simple! If only there were evil people somewhere insidiously committing evil deeds, and it were necessary only to separate them from the rest of us and destroy them. But the line dividing good and evil cuts through the heart of every human being. And who is willing to destroy a piece of his own heart?”

In my job as a lawyer, I have defended many people who have done horrible things, though nothing on the scale of Gabriel Wortman’s crimes. (Indeed, people often ask me how I can defend someone whom I know to be guilty. My response is that it’s easier than representing someone I believe to be innocent. In the latter case, a person may be unjustly convicted and jailed if I don’t do my job properly.)

Some of these people had never been in trouble before they were charged. Others have criminal records several pages long. But everyone I’ve represented had at least some redeeming qualities, or went through childhood abuse and trauma so shocking that it would drive anyone to madness.

News stories about killers’ backgrounds don’t “humanize” their subjects, because they’re already human. If anything, it makes it more disturbing to see something like Hitler playing with his dogs, or John Wayne Gacy playing a clown at parties, or Wortman giving free dentures to cancer patients. (Now, there’s a headline that aged like milk.)

There may be a fine line between explaining the actions of a mass murderer, and glorifying that killer. Rolling Stone arguably did the latter with its dreamy cover of the Boston Marathon bomber, and those ubiquitous Che Guevara shirts don’t cross that line as much as jump over it enthusiastically. But background about the life of the Nova Scotia shooter is an essential part of this horrendous story.

Co-parenting during the pandemic

It’s the question I’ve been asked more than any other since the age of social distancing began: how does this affect parenting time with my children?

The answer, as reported in the Chronicle Herald:

While safety precautions must be kept in mind, court orders and agreements for parenting time must be followed by both parents:

Shared parenting can be done safely during the pandemic by following public health guidance, says a Nova Scotia family law expert.

“As long as both parents follow the public health directives they should continue to comply with their parenting orders and agreements,” said Rollie Thompson, a Dalhousie University law professor.

The province’s chief medical officer of health Dr. Robert Strang created unnecessary confusion for co-parents on March 31 when he said in his daily briefing that children should remain in one home during the COVID-19 lockdown, Thompson said.

Strang backtracked the next day, acknowledging he was offering a public health perspective and reminded parents to follow court orders and parenting arrangements. He said parents could get advice from a lawyer or Nova Scotia Legal Aid and “if possible and safe to do so … should develop a plan with the understanding that moving about in the community and going from house to house does increase the risk of transmission of COVID-19.”

“I think Dr. Strang should stick to public health and stay away from family law,” said Thompson.

Thompson, an expert in family law, co-wrote the federal government’s Spousal Support Advisory Guidelines. He said that the vast majority of co-parents in the province can be counted on to follow the social distancing rules. That includes moving kids from one parent’s home to another.

Thompson’s advice to co-parents and their kids is to follow four instructions during the pandemic:

– continue to comply with parenting orders and agreements;

– comply with public health directives to protect your health;

– when health or other unexpected problems arise, be flexible to do what’s in the best interests of your children;

– and above all, work together and avoid conflict.

[…]

The Nova Scotia Judiciary said that existing court orders around parenting time continue to be in effect during the COVID-19 crisis. Jennifer Stairs, a spokeswoman for the judiciary, said those orders — including those involving custody, access, contact and parenting — could be negotiated as long as all parties involved agree.

Unfortunately, I’ve already been forced to deal with several cases where a parent either believes the COVID-19 pandemic means they can’t allow their child to spend time with the other parent, or where they’re using it as an excuse to deny access.

If this is happening to you, contact your lawyer immediately. If you aren’t yet represented by counsel, Nova Scotia Legal Aid may be of assistance:

Nova Scotia Legal Aid is offering help for parents trying to wade through the confusion. Lawyers will process emergency family matters for people who qualify for legal aid. Free twice-weekly online chats are also being offered on the Nova Scotia Legal Aid website. Lawyers will be manning the online discussions on family law issues. They are scheduled Tuesday and Thursday, from 3 p.m. to 5 p.m. Those who don’t qualify for legal aid can access family summary advice at all courthouses through scheduled telephone appointments.

COVID-19 and the courts

The courts of Nova Scotia have issued several memoranda explaining how its practices and procedures have been affected by the coronavirus pandemic:

If you are dealing with any legal matters at the moment, make sure to contact your lawyer and check the courts website to see how your case is being affected.

As for me, my office is closed to the public and I’m working from home. But I’m still meeting with clients when needed – albeit by teleconference or video calling apps. My contact information remains the same, but regular mail may be delayed – email or fax is the best way to get a hold of me.

In the meantime, stay home and keep washing those hands!

If you don’t have to go out, don’t go out.

The novel coronavirus has arrived in Nova Scotia. Or, perhaps it’s more accurate to say the virus has been here for some time, and we’re just getting confirmation now. It takes a few days for symptoms to appear, so anyone reading (or writing) this could have it without even realizing.

The top priority for now is keeping the spread of the virus to a minimum, to avoid strain on the health care system. That means practicing “social distancing” to the greatest extent possible:

Remember, even if you aren’t sick, you may be carrying the virus without knowing it. And even if you’re young and healthy, you will inevitably come into contact with the elderly, people with chronic breathing problems, and other members of vulnerable groups.

The Washington Post has posted the best article I’ve seen, illustrating how the coronavirus can spread and how social distancing can keep the problem manageable. The Post uses some very clever (and unnerving) animations to explain some complicated mathematical and scientific concepts. (There’s a reason I went into law instead of a STEM field.)

Court appearances in the coming weeks will be affected, as well. I am now working from home as much as possible, and changing all in-person appointments to phone or videoconference meetings. If you are one of my clients, I will be in touch.

It’s time to take this seriously, but don’t panic. And even though we may have to physically stay home, we can still keep in touch with our friends, relatives and neighbours through social media. Or, if you’re in Italy, by singing on your balcony:

Don’t worry, everyone: I promise not to sing to you in public, unless the authorities need me to help disperse a crowd.

“Lying-in expenses”

While a white-hot debate over abortion engulfs the United States and threatens to spill over into Canada, this Washington Post column by law professor Carliss Chatman purports to take the anti-abortion position to its logical conclusion:

…When a state grants full personhood to a fetus, should they not apply equally?

For example, should child support start at conception? Every state permits the custodial parent — who has primary physical custody of the child and is primarily responsible for his or her day-to-day care — to receive child support from the noncustodial parent. Since a fetus resides in its mother, and receives all nutrition and care from its mother’s body, the mother should be eligible for child support as soon as the fetus is declared a person — at conception in Alabama, at six weeks in states that declare personhood at a fetal heartbeat, at eight weeks in Missouri, which was on the way to passing its law on Friday, but at birth in states that have not banned abortion.

Interestingly, the Parenting and Support Act in Nova Scotia does allow for child support once a child has been conceived – sort of.

Section 11(1)(a) allows an expectant mother to apply for a contribution toward “lying-in expenses” even before the child is born. The Legal Information Society of Nova Scotia defines such expenses as follows:

…These expenses are meant to contribute to the reasonable costs that a woman has while pregnant to carry the baby and prepare for the birth of the baby. These costs usually include things like maternity vitamins, maternity clothes and baby-related items, like a crib, stroller, or car seat. They can also include maintenance of the mother during the pregnancy and expenses related to the birth of the child.

An unmarried woman may ask to have lying-in expenses paid as part of a child support application to the court. A judge can order the mother or the possible father, or both of them, to pay certain amounts toward these expenses. The costs have to be proven (for example, by giving receipts or confirmation of costs) and they have to be reasonable and necessary.

Applications for lying-in expenses can be made during the pregnancy, or after the birth of the child. Often, the application is made after the child is born, and combined with the application for child support , to make things easier (making one application instead of two).

If the application is made before the child is born, the applicant mother must provide confirmation that she is in fact pregnant:

In practice, lying-in expenses are rarely sought. The most recent Nova Scotia decision on the CanLII case-law database in which they were awarded is from 2010. The issue came up in a 2017 case, but they weren’t ordered, at least in part because of the applicant’s tardiness in raising the issue.

In twenty years of practicing family law, I’ve only worked on a handful of cases where lying-in expenses are an issue, and never one where the application was commenced before the birth of the child. But the option is there.

Unsolved Nova Scotia: Kevin Martin

Forever young.

Imagine losing your young son in a devastating fire. And then your other son disappearing, seemingly without a trace, until his body is found in a shallow grave.

And you think you know who took the life of your little boy, but no one has ever been brought to justice.

That’s the unspeakable horror that befell Bonnie Thomas, now a resident of Prince Edward Island, when she lived in Pictou County. This is one of the most heartbreaking mysteries I’ve ever heard about:

Kevin was 13 the day in May he had run away from his house on MacKay Street in Stellarton. It wasn’t the first time he had left home without permission and his family had no reason to believe it would be his last. According to retired Stellarton police officer Hugh Muir, who became involved in the case early, Martin had fallen in with a bad crowd about six months to a year before this day. Muir was familiar with Kevin because he had gone to school with Muir’s older boys, and remembers him as a nice, polite kid.

Thomas recalls how Kevin had been bullied at school and craved acceptance. He wanted to be part of the cool kids and so when they skipped school, he did too.

“He was a great kid. He just got in with the wrong group of kids,” Thomas said. “He was a follower.”

A few years earlier Kevin had also lost his older brother Olin in a house fire. They had only been 10-months apart in age and shared a room. The fire was determined to be have been caused accidentally, but had a lasting effect on Kevin.

“I don’t think Kevin ever got over losing Olin,” says their mother.

[…]

Then came a degree of closure they had hoped not to find. Commercial loggers working in the Burnside area of Colchester County – near Upper Stewiacke – discovered Kevin’s remains buried in a shallow grave. While police have never released how they believe the teen died, physical evidence found at the scene was enough to determine his death was a homicide. They believe he was killed shortly after he disappeared in 1994.

While he’s no longer involved in the investigation, Muir personally thinks there had to be more than one person involved, particularly to dispose of the body. He believes the people responsible also likely had a familiarity with the area where Kevin’s body was found. He is sure there are people still alive with information that could solve the case and prays they think of a 13-year-old being brutally murdered and of a family still suffering without answers.

“He would have been possibly married and a father of his own now,” Muir said.

Thomas is confident she knows who the guilty people are. Based on information she said someone gave her and that was passed on to police, she believes there were three people directly involved. 

The News spoke with that person who gave Thomas and police the tip. Her first name is Debbie, but she requested her last name not be used. Debbie says her information came from a relative who says she knows the people responsible, where it happened and how. Debbie said she’s shared what she knows with police, but to date no arrests have been made.

Nova Scotia Crime Stoppers has posted a reward of up to $150,000.00 for information that leads to the killer’s arrest and conviction. In an era where many long-dormant cold cases are finally being solved, thanks to technological advances and determined investigators, hopefully justice for Kevin will be done.

A Chase the Ace disgrace

Lotteries always bring out the best in people, don’t they?

A photo-op to celebrate a $1.2-million lottery win in Nova Scotia turned sour Thursday when two family members feuded over the win.

Barbara Reddick of Guysborough, N.S., and her nephew, Tyrone MacInnis, posed for the cameras with a giant cheque in Margaree Forks, N.S., after winning the Chase the Ace fundraiser benefitting two local fire departments.

Reddick then pointed at MacInnis and said: “See you in court.”

“It was my ticket,” she told a group of people gathered for the ceremony. “I bought the ticket and now he’s trying to lie and say I said split. I said split with the 50/50, not with no Chase the Ace.”

“I’m taking him to court. I’m getting a lawyer tomorrow. Now you can print that.”

[…]

“I put his name on the ticket for good luck because he’s like a son to me — he was,” she said. “He was lucky, but not for half a million dollars.”

The contact number on the ticket was for MacInnis, who lives in Glace Bay, N.S.

I’ve come across many cases where someone whose name wasn’t on a lottery ticket sued the winner for a share of the money, but never a situation where the plaintiff tried to argue that the other named person isn’t entitled to anything.

The fact that she listed his phone number on the ticket will likely be relevant to this case.  But if she wants to retain my services to take her nephew to court to get all of the winnings for herself, she can give me a call.  I’ll need a $600,000.00 retainer.

Speaking of Chase the Ace, here’s my kid brother:

https://open.spotify.com/embed/track/2wVH8PSy5k3mybj1L9Ca6D

 

Lenehan cleared

This was a) inevitable; b) legally correct; and, c) will not satisfy the mob.

The Nova Scotia provincial court judge at the centre of the controversial sexual-assault trial involving taxi driver Bassam Al-Rawi has been vindicated.

Judge Gregory Lenehan acquitted Al-Rawi of sexually assaulting an intoxicated female passenger in Halifax.

[…]

In his March 2017 decision Lenehan said the Crown provided “absolutely no evidence on the issue of lack of consent.” The judge went on to add, “clearly, a drunk can consent.” That phrase set off protests and led to 121 complaints about his conduct.

A decision released today by the Executive Office of the Nova Scotia Judiciary states, “The uses of ill-considered words by a judge in a decision can undermine the public’s confidence in the judiciary.” But “the test for judicial misconduct has not been met.”

In its decision, the three-member review committee cited Lenehan’s statement that he was trying to use direct language that Al-Rawi could understand. Al-Rawi relied on an Arabic-to-English translator for his trial.

The committee noted that the expression “clearly, a drunk can consent” is “not an incorrect statement of the law.” Lenehan told the committee he used the phrase when referring to any person in a state of drunkenness, not the complainant specifically.

“[Lenehan] was focused on the presumption of innocence and the requisite standard of proof. While he committed errors of law as found by the Court of Appeal, and could have more carefully reflected his reasons, the committee could not find evidence to attribute the judge’s approach to bias,” the ruling states.

“This committee closely examined the allegations of gender bias or influence arising from attitudes based on stereotype, myth or prejudice that were raised by the complainants.”

The review committee noted that had Lenehan said “a drunken consent is a valid consent,” or “intoxicated person can nonetheless consent,” he would have made the same point without sounding personal or harsh.

There are certainly some cases where a judge’s behavior is so egregious that removal from the Bench is warranted.  (I’m looking at you, Robin Camp.)  But law professor Erwin Chemerinsky, commenting on an effort to recall a California judge who imposed a lenient sentence in a sexual assault case, warns against targeting judges who make unpopular decisions:

Judges should decide cases, including the difficult task of sentencing criminal defendants, according to their best view of the law and facts. This time the recall is for a judge who was too lenient in imposing a sentence, but next time it could be for a judge who excludes evidence in a high-profile case because the police violated the Fourth Amendment or for a judge who orders a school to be desegregated and upsets the voters.

Efforts to recall judges for light sentences encourage judges to impose maximum penalties out of fear that anything else could cost them their positions. After all, no one has begun a recall when a judge imposed an outrageously high punishment, such as in the first case I argued in the Supreme Court where my client received a sentence of 50 years to life under California’s “three strikes law” for stealing $153 worth of videotapes.

Judicial independence is crucial to upholding the rule of law, and history shows that it is lost when judges fear removal for their unpopular decisions.  This is not a new realization. One of the grievances enumerated in the Declaration of Independence was how the King of England effectively controlled the judiciary by removing judges. Several years ago, when I spoke in Russia, judges there told me how they would be removed if they did not rule as the prosecutor and the government wanted.

[…]

A California Court of Appeal can overturn a sentence if it finds that it was an “abuse of discretion.” If the prosecutor believes a sentence is too lenient, the remedy is to appeal.

But the answer is not to remove a judge from the bench because we dislike the sentence. We all need judges to decide cases, including sentencing defendants, without fear that an unpopular decision will cost them their jobs.

There’s no justice like mob justice

Reading the front-page story in today’s Metro, about 13 Dalhousie dental students being suspended from clinical activities for their appallingly sexist Facebook comments, I was struck by this passage near the end:

Florizone said he’s not ruling out the possibility of expulsion, but emphasized university administration must follow a fair and just process to determine the proper course of action.

However, Jennifer Nowoselski, vice president internal of Dalhousie Student Union, believes those policies are outdated, saying it doesn’t protect students from sexual discrimination.

“It’s the base minimum of what the university could do in this situation,” she said.

Yeah, who needs due process, anyway?  It’s not like sexually charged allegations at a university ever turn out to be incorrect, right?

These Facebook comments (some of which “joked” about using chloroform to sexually violate women) were disgusting and grossly inappropriate, and the fact that these idiots would post them online, apparently under their own names, calls into question whether they’re smart enough to perform dentistry in the first place.

Is the university, whose reputation has been seriously damaged, right to investigate this?  Sure.  But the key word is “investigate,” before we destroy people’s lives and careers.

Someday, it could be one of the people demanding immediate expulsion who finds herself in trouble for something she wrote online.  And when that happens, I suspect she’ll be grateful for “a fair and just process to determine the proper course of action.”