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 of the Court of Quebec. 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, the court designated to hear “Contestation of Election” challenges, even though this was not a contestation of the election, but rather a review of Judge De Michele’s inconsistent-with-the-law rulings. An appeal, if you will, at the Quebec Court of, you guess it, “Appeals”.

I know that appealing a judge’s decision at a lower court to the aptly-named Court of Appeals sounds reasonable 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.

Advertisements

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.

Why I am leaving social media

I am leaving all social media for one week, effective immediately.

Lately, I have become present to the extremely negative role that social media has on my view of people in general and more importantly, on my mental health.

Waking up this morning to a myriad of comments celebrating (!!!) the murder of 4 Israeli civilians who were just praying in their synagogue, coupled with the complete lack of even the slightest condemnation from any of my non-Jewish friends on the topic, leaves me empty about the future of humanity.

It saddens me to remember Martin Niemoller’s famous quote in times like this:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.

We will get the world that we create, and we will deserve that world. And if we only speak out when we have a personal interest, then we should be ready for our society, our morals, and our values, to be taken over by those who have no morals or values at all.

And if you prefer to brush off my fears as irrational or exaggerated, just look at your timeline. It is already happening.

Worse than the silence of not speaking out against this murderous hatred is the fact that global silence from non-Jews is considered tacit support for their hate-filled, destructive tactics. International aide funneled to terrorists who are believed to be among the richest groups in the world, coupled with international condemnation of Israel for simply defending their people’s right to live leaves me shaking my head in disbelief.

But it’s true. Iran openly declares, three times in one week, about their desire to destroy the state of Israel and their plan to do it, and the United States sits quietly, working back channels to make a deal with them that would allow them to pursue their destructive nuclear goals.

I see friends who decide to stay out of these issues telling me that it’s not worth it. I believe it is worth it, but perhaps I’m wrong.

Perhaps the majority is right.

Perhaps ignorance really is bliss.

Happy Unbirthday!

Over the past 2 years, facebook has modified the way they display friends’ birthdays quite a few times. The result, in my humble opinion, is that the feature continues to get easier (and consequently more mindless) to use. First, birthday greetings were buried near the bottom of the right side of your news feed. (Sometimes I’d even have to scroll down a bit). Later, they were moved way up to the top, always in your face. Most recently, a feature was added that removed the need to actually go to someone’s wall to leave them a greeting. From your personal news feed page, you can click on each person who has a birthday that day and leave them a quick message, typed and sent before you blink twice. Then, just click copy, go to the next “friend” below, click paste, change their name or initials, add or subtract a few exclamation marks, and in less than a minute, you’ve brightened the days of all of your friends born on that day. Isn’t that amazing?

Armed with these thoughts, I felt the need to experiment. After my real birthday in early February, I edited my facebook profile to show my birthday as February 27th, about 3 weeks later. Then, I waited.

The goal of this experiment was to see how people use facebook’s birthday announcement feature. It was not in any way a scientifically valid experiment, and I only mention this because it was the prime criticism voiced by those whose facebook birthday rituals were exposed by it. One person even bothered to write you dont have the know-how or the right tools to conduct such an experiment for its results to be accurate.” Well, the results I posted were the factual ones listed here:

  • 99 facebook contacts wished me Happy Birthday on my actual birthday.
  • Of those, 48 wished me Happy Birthday AGAIN on Feb. 27.
  • Only 5 of the original 99 caught me trying to have two birthdays in a month. (One was my mother, who should know – it’s kind of a memorable experience – so we’re down to 4.) *This stat is the least reliable of all, since it is quite possible that others questioned what they saw but didn’t bother to say anything.
  • 2 others (who sent wishes on my actual birthday via something other than facebook) caught me in the days leading up to my fake second birthday, and one of their messages, posted mere hours before Feb. 27th’s arrival, was left on my facebook page for all to see. Still, moments after 12am, the wishes started coming in, right on top of the comment “as if tomorrow is your birthday!”
  • At least 5 of the 48 who sent wishes on both days wrote exactly the same thing on both days. (I only noted those that were hyper-obvious and easy to spot)

Plainly, there was no special “know-how” or “tools” required to observe and report the above other than simple addition – which I can assure you that I have mastered. But, just to reassure the skeptics, I had excel check my 1+1+1+… math.

Certain statistics are missing from the above list of results. Note how I did NOT tabulate the number of people who ONLY sent me birthday wishes on the wrong date. This is not a key element to the experiment as it would be ridiculous and unreasonable to expect everyone on my facebook friend list to know the exact date on which I was born. There is no meaning to be taken from this other than, I submit, that they trusted me to put my correct birthday on facebook. To these people, I am sorry to have misled you and I thank you for the well wishes.

To those who caught me, whether you said something publicly or not, in addition to the above thanks, please accept a big virtual hug of appreciation, redeemable the next time we see each other for a real one. I have never before wanted to be called out as much in my life. Thank you, thank you, thank you.

Using (and abusing) facebook’s birthday feature makes seeming sincere too easy. So easy, in fact, that you don’t even have to go to someone’s “wall” to send them birthday wishes. (It’s not really much to ask, is it?) If you had to, you might notice that others are giving you valuable information. It is so mindless, in fact, that sending wishes to someone on their birthday takes mere seconds requiring little to no thought. So little thought, that almost 50% of people who sent wishes on the 27th also sent them 3 weeks earlier, and apparently didn’t give a second thought to it. Some even admitted as much, as if that was a valid defense that justified their behaviour.

Again, while I DO appreciate those who took the few seconds to send me wishes on either day, the right one or the fake one, any logical person has to question the value of wishes sent on both days. An old expression suggests that you can count your true friends on the fingers of one hand. New technology tries to artificially debunk that. I am under no illusion that I have almost 1000 friends despite what facebook tells me. We cannot rely on facebook to maintain our personal relationships for us. We still need to pay attention to them in real life.

This same person (and one other) wrote to me saying that they are tired and busy and that’s why they sent wishes twice. I remember, when facebook made their most recent changes, thinking that each morning I would wake up and send birthday wishes to everyone that facebook told me had a birthday that day. It would be a daily routine. Then, I realized that such a thoughtless, impersonal gesture would only serve to make me feel good about appearing to do something nice, while hiding the fact that I didn’t really care to send any real wishes, only to do what facebook had made convenient. I suggest that that’s what’s really going on here. Now I admit that I am drawing non-statistically significant conclusions on my experiment; they’re called opinions. I have a right to them as a human. You have a right to disagree. Consider, however, that disagreeing might be just an easy way to avoid taking responsibility for sending auto-pilot birthday greetings rather than paying a modicum of attention to who you are wishing what to and when.

Brevity has never consistently been my strength, so I will quote Deb who got “caught” sending me birthday wishes on both days. In her reaction to the results of the experiment, she summed up facebook birthday greetings perfectly. “FB allows us to be “thoughtful” without really putting any thought into it…(u can quote me ;)” Perfectly said, Deb. And, to your credit, thanks for taking this experiment the way it was designed.

Now, if anyone feels offended by this experiment or by anything coming from it, I invite you to instead laugh it off as the facebook experiment that it is and use it as an opportunity to reflect on the role that social media plays in your life, how you rely on it, and the impacts that social media and other social constructs have had on your interpersonal relationships.

And if your immediate response to that invitation is that you don’t have the time or interest for that, then look at what you do have the time or interest for instead (i.e. facebook). If one doesn’t have the time to invest in bettering their relationship to others in their lives, then how much are their facebook birthday “wishes” really worth anyway?

If you are still offended (or even more so now), well there’s not much I can do. I don’t apologize for this experiment. I think it is crucial, like James wrote in his reaction on facebook, to start consciously unplugging from the social media addiction. We must stop relying so heavily on social media to remind us of the things we had to consciously work to remember  before this technology existed. Let’s put the effort into real human interaction and pick up the phone to call people for their birthdays. I would rather get a handful of phone calls than a hundred greetings on facebook.

Jesse, who also surprisingly got “caught”, asked “I wonder how many birthday wishes you’re gonna get next year… Don’t be thinking there’s an unlimited supply. You may have used them all up with these shenanigans!!” Well, Jesse, that’s a very clever question. After I decided to do this, I briefly thought “shit, this experiment will upset some people so much that they will ignore my future birthdays!” Then, I realized that if someone didn’t remember that they wished me happy birthday 3 weeks earlier, they probably won’t remember to hold a grudge for 11+ months!

Despite being one of the few people who publicly called me out for fishing for birthday wishes I didn’t deserve, Michelle adapted an old but famous movie character. In her criticism of me, she brought up a conversation about lemmings that we had on the night of the experiment, after I congratulated her for catching me red handed. She wrote: “In 1958, the crew of Disney’s White Wilderness PUSHED those lemmings off the cliff. They did not jump. You created the cliff and gave those FB friends of yours a gentle shove.”

Her analogy is only part right. While I concede that I created the cliff, I did not push anyone. People did what they did, and all I am doing is observing, reporting, and offering an opinion on what happened. I am creating an opinion of the value/sincerity of wishes of those who sent them twice within a very short time frame. Again, while it is not scientifically sound, it remains my prerogative as a person. What I object to is people blaming the cliff for having fallen over it.

To adapt a famous quote from Eleanor Roosevelt, no one can make you feel [any way] without your consent. Only you are responsible for how you feel. And in order to avoid feeling a way that we find undesirable, we humans look for scapegoats. We cling to rationalizations and interpretations that we can hold on to in order to believe that it’s not our fault; that someone else is to blame. The key to personal growth is in looking at every situation as if you are 100% responsible – even, and especially, when you absolutely don’t want to be.

In the end, each person, whether they had a part in this experiment or not, will see it as they decide to see it. One can choose to focus on the cliff I created or on the possible lessons learned because of it. It is amazing to me how so many people witnessed the exact same experiment yet came out of it with opinions and feelings spanning the entire spectrum from “funny” and “interesting” to “antagonizing” and “disrespectful.” The only explanation for this, once again, is that it is a question of attitude. When you make a mistake, who do you choose to be? Are you the person who plays the victim card and blames others or the one who finds the nearest mirror and takes a long, hard, honest look. I hope you choose the mirror.

Special thanks to David Plotz who conducted the same experiment with his “friends” and posted about it here: http://www.slate.com/articles/technology/technology/2011/08/my_fake_facebook_birthdays.single.html and to my friend Nicholas Smith who brought it closer to home and inspired me to try it for myself.