My experience at the Quebec Court of Appeal

This morning I witnessed everything that is wrong with our justice system.

An error in law, during a judicial recount of an election, was made by a judge in Quebec Superior Court. A judge. The guy in the process who is supposed to understand the law better than anyone. He pooched a black and white law because, well, we have no idea why. It could be because he had a bad day. It could be because the day started off with proof that the process was compromised in other ways before it even got to him. It could be because one set of lawyers were more aggressive than the other. It could be because the judge didn’t take time to fully understand the law, and the context in which it is applied.

A judge is supposed to be able to flush out the distractions and stay focused on the case; on the law. A judge is supposed to be above all of this.

This judge, Judge Antonio De Michele, was not above any of this. He was tasked by law to settle a dispute about the validity of ballots. Instead, he caused more, and greater, problems than there were when the parties first entered his courtroom.

Fast forward about six months (it is unclear who is ultimately responsible for this delay) and today, finally, the Quebec Court of Appeal was convened to hear a challenge to Judge De Michele’s decision. That never happened.

It never happened because the judges, yesterday, sent a memo to the plaintiff’s lawyers questioning whether they had the jurisdiction to even hear this appeal. Their assertion was that the proper court for this process should have been the Superior Court. Yes, the one where the initial process took place. In essence, these 3 judges suggested that Judge De Michele’s direct colleagues were the most appropriate people to hear challenges to Judge De Michele’s own inconsistent-with-the-law ruling.

I know that sounds completely absurd to most of us, but in their decision, the Court of Appeal judges claimed that Judge De Michele was not, in fact, acting in the position of “Judge” when he presided over the judicial recount. The Court of Appeal’s (QCOA) position is that *Judge* De Michele was merely a “persona designata” which, according to Black’s Law Dictionary, means “A person considered as an individual rather than as a member of a class”. So, in essence, the QCOA position was that this person who was treated like a judge all day when performing their functions, was not actually acting in the capacity of a judge. And therefore, any appeal of their decisions must go to the court of first instance, which is the Quebec Superior Court. Ironically, the building that this Judge-not-acting-as-a-Judge was operating in at the time of the errors in law he committed.

What?

The fact that the law requires the person who presides over the recount to be a judge didn’t matter to the 3 QCOA judges who heard the argument this morning.

The fact that the process of recounting votes is called a “judicial” recount didn’t matter to them.

The fact that the process took place in a courtroom didn’t matter to them.

The fact that the process took place in front of opposing sets of lawyers, pleading their cases to a person whose main profession is a judge didn’t matter to them.

The fact that the person required to make rulings was supposed to rule based on the law, the main responsibility of a judge, didn’t matter to them.

The Chief Judge of the QCOA said, repeatedly, that Judge De Michele (should we be calling him “Mister” instead, given the court’s positon?) was merely conducting a recount, not rendering any legal decisions. I cannot disagree more. In fact, Judge De Michele rendered dozens of decisions which should have been based on the elections law, but weren’t.

And because the deadline to file a “challenge to a recount” (rather than an “Appeal”) is 30 days, that means that the plaintiff now has no further recourse. Game over. Case closed.

So Judge De Michele’s arbitrary decisions as to the validity of ballots in an election go completely unchecked.

So why do I care about this?

I don’t have any horse in this race. I don’t care who ultimately wins the commissioner’s seat. I was fighting, from day one, for the rights of electors to have their legally valid votes counted. I was fighting for the principle that voters are supposed to decide elections, not courts. Judge De Michele let electors down and today, the Quebec Court of Appeal, the highest provincial court, gave this travesty their stamp of approval. On a technicality that might not even be one.

This is not my fight, but I have made it my fight because the people who should have led the charge all ran and hid, each with their own pass-the-buck excuse.

First, I brought this issue to the attention of the Directeur General des Elections du Quebec (DGEQ). Their response was that even though they are responsible for provincial elections, that school board elections are not their responsibility. Rather, they said, school board elections fall under the Ministry of Education.

So I called the Ministry of Education and shared the issue with them. They told me that it’s not their responsibility. Yup, you guessed it. They told me to call the DGEQ. I explained that I had and shared what I was told. They checked and said that they couldn’t get involved because it would be perceived that they were taking sides (one candidate over the other). I responded that they needed to get involved to take the elector’s side. They said they’d get back to me. I told them that time was short, given that the 30-day delay would expire a few days later. I never got another call.

And today, the Quebec Court of Appeal said that they are not responsible for settling this issue. The highest court in Quebec – “not responsible.”

IS ANYONE RESPONSIBLE IN QUEBEC?

Once the last ballot was in the ballot box, this process completely forgot about the most important participant in the process: the elector. Lawyers fought for their clients to be elected, Judge De Michele ignored the law, and the judges on the Court of Appeal never even allowed a conversation about their best interests.

The 3 judges today argued with jurisprudence presented to them by the plaintiff’s lawyer, who argued beautifully. Their argument was that the cases he was citing were all in Federal courts. Fine. It’s an important distinction, but no jurisprudence exists in provincial court on this issue, in this context. Instead of taking hold of an opportunity to create new jurisprudence in the interest of building confidence in the electoral system, these judges – who admitted openly in court that they agreed there was no direct example for them to follow – took the easy road and walked away.

Our justice system is supposed to be about following the rules. Today, it was not. Today, it was about convenience. These judges came into the courtroom today looking for arguments on jurisdiction and the burden of proof was on the attorney to convince them. Sitting in that courtroom today, it was clear they were not going to be convinced. At one point, the attorney made a very strong point about their choice of venue at the QCOA being deliberate and not an error on their part. Instead of acknowledging the argument being made, Judge Marie St-Pierre chose to focus on how that fact was not mentioned in the plaintiff’s brief. Why should it have been? They chose a court based on their research and filed there. Isn’t intention obvious?

Our justice system is supposed to be accessible. Today, it was not. Today, in essence, the judges told the plaintiff that because his lawyers made what in the court’s mind was a bad decision, that he loses the right to have his say. Now I know that when we hire lawyers that they become our representatives, and that we are responsible for our representative’s actions. But consider that if a lawyer got this “wrong” (arguably, in the eyes of these judges) that the plaintiff would have had no chance in getting it right on his own. The issue wasn’t clear. The judges said that themselves.

I have been working in elections for over half of my life, managing them for the last 9 years at all levels of government. I have extensive training, both theoretical and practical. I have travelled internationally to observe elections in the interest of fairness. I’ve seen lots of unbelievable things. But this has me profoundly upset because I expected better at home. Today, neither the letter nor the spirit of the law was held up by those whose sole job it is to ensure the primacy of law.

Today, a school board commissioner candidate (who was the winner on election day, by the way, only to lose during the contested recount) lost his chance to have even a hearing to have even the chance to have a wrong righted. And for no good reason.

More importantly though, the public lost today. Countless people every election ask Deputy Returning Officers and Poll Clerks how to mark their ballots to ensure that their votes are counted. As a Returning Officer, I have led countless training sessions to make sure that I train these people to provide answers that will stand up to questioning and scrutiny based on the legal definitions and examples provided. I used to rely on the clear, black and white text of the law. Now I don’t know how to answer their question. Today, I lost confidence that I am in control of my vote. Today, I learned that a judge can decide that my mark is not valid because my pencil slightly left the circle, even though the law specifically and expressly declares that mark valid.

Many lawyers over the years have told me that when you bring a court case, there is always luck involved. If you have the facts on your side, you should win. There are cases where the facts are disputed, but this wasn’t one of them. This was an easy opportunity for the Quebec Court of Appeal to make this wrong right. And they chose not to.

Today, the people who were responsible for ensuring that justice is ultimately done when justice was not done let down the people of Quebec.

Is a boycott a hate crime?

There are (FALSE) rumours in Canadian news circles that the Conservative government in Canada is considering laws that would make a hate crime out of boycotting. The context of choice in these reports is boycotts of Israel.

Boycotting Israel is not a hate crime; it’s a crime of ignorance.

People have the right to choose which companies to support with their money and which to withhold support from. If they decide to make their decisions based on propaganda, misinformation, bigotry and horrible priorities, that is their right too.

That’s the beauty of our free market, free expression society. We should all endeavour to keep it that way.

Game of 72 – don’t even think about it

According to a recent article, there seems to be a new social media “game” being played by some kids in Europe called “Game of 72″. The goal is to completely vanish for 72 hours. As the article suggests, “they are not to tell anyone where they are and the more mayhem and panic that is caused, the more points that teen is awarded.”

I don’t know if this will make it to Canada or the US (though in this borderless internet world this stuff travels FAST), but I think it important to warn my parent followers (and any teenager who may happen on this blog) so that they can get ahead of this with their teenage kids.

My child is quite young, so I have nothing to worry about for the moment, but in hopes of inspiring other parents, let me declare unambiguously:

If my child EVER did this, she would come home to find another “Game of 72″ – grounded for 72 weeks. And grounded like we were grounded as kids, not the BS groundings of today.

Social media has its benefits, but it also has a significant, serious potential downside. And as I have written in the past, names matter. This may have the word “game” in the title, but it certainly is not a game.

Wednesday morning quickie

This morning, one moment my daughter was whining that she didn’t like me.

The next minute she was hugging me, telling me she loves me.

Very different feelings, mere seconds apart.

It would be easy to pass this off as the simple, impulsive behaviour of a 4-year old. But that would be wrong.

Adults’ feelings are just as fleeting!

Why do we allow fleeting feelings to dictate some of our most significant life decisions?

There are thoughtful, purposeful, intentional alternatives. Find the ones that work for you. Most importantly, be present in every moment – both to yourself and your circumstances.

Have an amazing day!

Watson vs. Prust, an in-depth analysis

In the first period of the Montreal-Tampa Bay game on Sunday evening, referee Brad Watson assessed a roughing penalty to Montreal’s Brandon Prust. Many viewers thought it a marginal call, and it seems, as in many penalty cases, that the penalized player had a few words for the referee. Unlike many cases, however, this time the verbal war between player and referee escalated, with TV cameras picking up referee Watson yelling and wagging his finger at Prust in the penalty box.

As a long time referee (20+ years of experience) with a commitment to upholding the rules of the sports I officiate without bias – and – as a Habs fan who has come to understand and respect Brandon Prust’s unique style of play and behaviour on the ice, I have a unique perspective to offer. I hope you’ll find this both informative and even-handed.

First, players complain on about 3/4 of all penalty calls. Players always see situations differently from referees. Whether because of the saintly way humans in general see their own actions, from their interest in their team winning, or just from a different angle of vision, we will have different viewpoints on what happened – sometimes literally. It is also common that these disagreements include certain choice words from player to referee. Like in every confrontational situation, there are lines to not cross. While these lines are largely subjective and their locations vary from official to official, there is one common rule among seasoned sports officials: if you’re going to criticize a referee’s decision, don’t make it personal. The expression goes: “the f-word won’t get you kicked out of a game; the y-word will.”

That y-word is “you”.

Brandon Prust’s version of the story is that he told Watson he thought the call was “soft”. If that is true, and that’s all that Prust said, then it should’ve ended there. Referees hear far worse than that on a regular basis and nothing comes of it. So, unless Watson was trying to bait Prust by making a very marginal call against him at the first opportunity, I doubt that that is all that Prust said.

When I first saw the penalty call, I had to rewind my PVR to see it again, because there was nothing penalty-worthy on that play until Prust saw Watson’s arm up. I looked again, and still – nothing. I took to twitter posting:

Unbelieveable that Referee Watson found 2 minutes in that Prust/Coburn sequence, let alone 4 minutes. What the hell is going on?

Well, it seems that the hell that was going on was that altercation between Prust and the calling referee.

Here’s a GIF of the stern finger-wagging talking-to that Watson gave Prust at the penalty box. (courtesy Stephanie Vail @myregularface)

http://gfycat.com/ifr/MammothAdorableGreendarnerdragonfly

There are a few things wrong with this picture.

First, notice how preoccupied referee Watson is making sure that his public address microphone is off. Are these the actions of someone who is saying something he wouldn’t mind people hear? I doubt it. I would guess that he knows that what he is saying is over a line, and he wants to make sure that there’s no public record of it.

Second, notice where Prust is looking – and more importantly, where he is not looking. He is not looking at all at the referee – exactly as he asserted in his post-game comments. While it is still possible that he is verbally abusing Watson while looking elsewhere, he is not looking at him or taking an aggressive posture against the referee. In fact, he is in the process of doing exactly what Watson ordered him to do – sitting down. There is NO reason for the referee to still be at the penalty box, let alone to be taking an aggressive posture against a player who is complying.

We are taught over and over to make our call and get out of the area. Watson would have been well-served to follow this basic advice.

Third, the finger wag. In addition to obviously raised voices, referee Watson decided to sternly wag his finger at Prust as if Watson were the father of a petulant child. While Prust can sometimes act that way, in no situation is it appropriate for a referee to lecture a player in this manner. Those who are accusing Prust of publicly shaming an official should look here for the beginning of that tale – where Watson publicly shamed a player. This is unacceptable – both ways.

If players and referees have something to say to each other, they should say it, and be done. Once a player has entered the penalty box and is in the process of sitting down, there is no reason for a referee to be standing over him, aggressively, waving his finger and yelling at the player. To do so only invites needless trouble and, in this case, it showed up right on cue.

If Prust is telling the whole truth that he confined his comments to Watson’s penalty call being “soft”, then there is no verbal abuse here. It is completely understandable that a player criticize a referee’s call in a reasonable tone, especially in a heated professional playoff series. The standard has been set, and that behaviour, however unlikely to be the whole truth, would fit neatly within that established standard. If it were the case, the blame would lie entirely with Watson for a grave overreaction.

If, however, Prust used more colourful language to protest the call, then Watson is still wrong to have reacted the way he did. Referees are the highest authority on the ice during a hockey game. They have tools that allow them to keep order in these exact situations, and they do not have to consult with anyone before using them. They are judge and jury. That’s a lot of power. To take a famous quote, though, with great power comes great responsibility: referees must not commit the same sins that their tools allow them to punish. Referees must always hold themselves to a higher standard, in large part due to the fact that the subordinate players they govern do not have the same ability to punish them when they lose control.

If Prust went on with his complaints for too long, used choice words, made his protest too loud or personal, then Watson would be well within his rights to assess more penalties – 2 minutes, 10 minutes, or a game misconduct, according to the rules of the game – the rules Watson is responsible for applying.

Prust accused Watson of “calling him every name in the book”. To that I simply answer, “so what?” This happens all the time. Name calling is, sadly, part of the professional game. I don’t like it, but it is.

The first real problem arises from Prust’s next accusation. If, as Prust asserts, Watson actually threatened to “drive [him] out of the arena” then that’s a big problem. When a referee starts seeing themselves as the person who gets to decide who plays and who doesn’t, they lose sight of their role in the game. I believe that the best referees are the ones who view themselves as guardians of the rules, not as being all-powerful. That, coupled with Watson’s extremely ill-advised decision to openly show up a player he has already penalized, made this situation much more difficult than it was, and than it needed to be.

Watson didn’t maintain the necessary higher standard the referees must hold themselves to. He chose a different path. Watson chose to embarrass a player, and by doing so, he not only crossed a line, but he opened the floodgates. It was his actions at the penalty box that opened the door for the shenanigans that followed. Instead of deescalating a situation on the ice, he was responsible for escalating it. And for what? To send a message? We must always remember that referees and players in these professional leagues are both adults, and both deserve respect.

When players don’t respect referees, there are consequences written into the rules of the game. Referees need only apply these consequences. When referees don’t respect players, there is a much bigger problem. While I don’t like the way Prust decided to seek relief from this problem, I can’t help but understand why he did it that way. People who feel backed into a corner and unfairly treated often lash out in extreme ways.

As a sports official who has thrown out hundreds of players and coaches for unsportsmanlike behaviour and verbal abuse, let me be perfectly clear: there is no place for it in sports. Respect must win the day. But, when it doesn’t, – players and referees are human, after all – referees must make absolutely sure to remain on the high road, use the tools they are given, and keep the situations – and themselves – in control. When we don’t, bad things tend to happen.

Last night, referee Brad Watson either forgot this rule or failed at applying it. Just as it did when Stephane Auger did it (much less demonstrably, I might add), that lapse may end up costing him his job.

As always, I invite your respectful comments below, even if you don’t share my view.

Easy to criticize, harder to lead.

On Saturday morning, within hours of Future Shop announcing its immediate closing of all stores resulting in 1,500 lost jobs, NDP MP Nathan Cullen​ posted a partisan attack on the Conservative government, blaming them for this closure.

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Regardless of the fact that any somewhat-informed person understands that this was a routine business consolidation by a company whose services were needlessly duplicated in 60+ regions of Canada, I can’t help but criticize the NDP for, once again, trying to use a crappy situation for 1,500 into a selfish political gain.

Despite having absolutely ZERO experience managing Canada (the NDP has NEVER, EVER, EVER been in power in Canada, federally), the NDP has loudly and repeatedly called for a $15/hour national minimum wage. If they were to ever get to implement that ridiculous policy, how many more chains will have to close their doors because of the 40%+ immediate rise in their labour costs? How many more jobs will be lost?

It seems that the NDP have gotten comfortable in their opposition role where, under the guise of “holding government accountable” they have learned how to make absurd, unrealistic proposals with one simple purpose – to shame the government. They have no realistic statistics to back up their calls because they know that they don’t need ’em to whine. The only parties who actually need to make responsible proposals are the ones who might one day be called on to implement them.

Right now, for the NDP, a role on the government benches is a pipe dream at best. Instead of showing themselves to be a responsible alternative to the current government, a reasonable government-in-waiting, they continue to play the say-anything-against-the-government card.

I know one thing for sure. Any job lost as a result of a wage increase that large, that spontaneous, will be on the head of the party that introduced it.

It’s easy to be critical when you know that your policies will never see the light of day, eh? It would be so much nicer if people who liked to criticize would actually have a clue and a realistic solution to go along with their complaining. That way, we might actually advance as a nation – together.

It’s a novel concept, but one that is only available by parties who want to work with the government to improve our country, not to those whose sole mission is to blow things out of proportion in an attempt to embarrass the country’s democratically-elected representatives in an effort to increase their chances in the next election. If the NDP would like to be taken seriously this coming October, it is high time that they start acting responsibly – in the interest of all Canadians on all ends of the political spectrum.

When you’re good…

I’ve been sick all winter. It seems beyond the typical case of having a child in daycare bringing germs home. My doctor sent me for blood tests. I went today.

This time, I was called by a man. He was the only male nurse visible in the department. That little voice in my head started talking, a lot. I wanted a woman to take my blood. Women are gentler, women are just better nurses, it said. And I was listening.

For whatever reason, I did not act on its recommendations. Instead, I went to my standard joke when the nurse came back. As I lay down (because of a past fainting episode I haven’t been able to forget) with a smile, I asked: “please be gentle?”

Like I always do, I looked away. This nurse was all business. He was doing what he needed to do and not wasting any time doing it. I continued: “please don’t feel the need to tell me what’s going on, just do what you need to.” I turned ever so slightly to see him smile, and then stared back at the wall.

Then, I felt the most subtle pinch. Virtually nothing. Whatever I felt was markedly less than I have normally felt, maybe even less than ever. Before I could finish my thought, it was over. He put on the cotton, stuck the tape to my arm hair, and said “ok, you’re done.”

As I lay there, just in case, I was overcome with emotion. I had judged him to be not good enough because he was a man, and I was so, so wrong. I’m glad I didn’t end up saying anything, because had I listened to my gut, to my instinct, I would not have realized how mistaken my thought was. I would not have realized how amazing this man was at his job.

Over the last 10 years, I have often said that everything happens for a reason. With one delicately, gently, and well-placed needle, this man taught the very important lesson I was meant to learn today. When you’re good at what you do, it doesn’t matter what anyone thinks about you doing it.

Often, we hear women complaining of discrimination in the workplace. Today, I discriminated against a man (albeit silently). I was very, very wrong.