Justice Well Served: Retire in Peace Chief Justice McMurtry

2007 Justice Well Served: Retire in Peace Chief Justice McMurtry
February 23, 2006 Supreme Injudiciousness
February 20, 2006 Another Immigration-Related Falsehood
January 16, 2006 Immigration and the Politics of Deceit
January 16, 2006 Gunning for Justice in an Election Year
January 14, 2006 Judge's Crime and Punishment
January 20, 2005 Fruits Of Diversity
June 17, 2005 Justice Interruptus
  How Unique Is Canada: A Contextualized Approach
June 23, 2005 Inequality in International Immigration
June 24, 2005 Permanent Revolution In South Africa Johannesburg
September, 2005 Crime And Videotape
  Attorney For The Defence; Goodbye
  Engendered Attack
September, 2005 A Constitutional right is not a technicality


Justice Well Served: Retire in Peace Chief Justice McMurtry

The man does not know me. I have never been to dinner with him. I have only shaken his hands at numerous functions that he has attended. I have sat in the audience to listen to his speeches. In reviewing a book I wrote, Kirk Makin of the Globe and Mail said that I was an outsider in the legal profession. But the man does not treat me as an outsider. He does not treat anybody as an outsider to justice and the legal system.

The man, the subject of this short piece is the retiring Chief Justice of Ontario, the Honourable Roy McMurtry. The Federal Government will be hard pressed to find a person who will fit Justice McMurtry's shoes. McMurtry was at ease whether he was engulfed in a sea of black faces in a wayward community hall in Toronto or in a sea of white faces on Bay Street. McMurtry's concerns for the inclusion of alienated black youth who are potential recruits to the life of crime into the mainstream society is unequalled by any Chief Justice who has ever dorned the Black Robes of this province. His support of the efforts of the Canadian Association of Black Lawyers and other community groups in all communities to realize their goals of inclusion in the Canadian mosaic and to enjoy the fruits of citizenship like mainstream society does is unchallengeable.

It is thus not surprising that community newspapers like Pride Newsmagazine have presented awards through the African Canadian Achievement Awards in recognition of the contributions of outside community individuals like Roy McMurtry. The African Canadian Achievement Awards have traditionally only been dished out to individuals of African heritage. Now a person from outside the community who has made signal contribution to the improvement of the life chances of African Canadians can be honoured in recognition of this fact. Roy McMurtry is such an individual.

Roy McMurtry did not only do the talk--mere talk is cheap. Everyone can talk. But he did the walk as well. He helped quite a number of individuals achieve their goals. He has helped in diversifying the judiciary and other places where minorities needed not tread.

McMurtry also helped in bringing hidden knowledge of the rich legal history of this country by founding of the Osgoode Society which publishes seminal works on legal history of Ontario and Canada. Those of us who are familiar with the publications of the Osgoode Society marvel at how we could ever have known a lot about the Legal history of Canada had the Osgoode Society not existed. There is nothing published outside there comparable to what exists at the Osgoode Society. The Osgoode Society also keeps an archive of all the interviews it has done of many prominent jurists and lawyers including Black Judges and Lawyers like Vibert Lampkin, Maurice Charles, Lloyd Perry, Leonard Braithwaite, Charles Roach and others. It is now easier to do research, thanks to the efforts of people like McMurtry.

The closest one can get to finding a person like McMurtry is to think back in history of another country and Chief Justice: that of Chief Justice Earl Warren of the United States Supreme Court (1953 to 1969). That Chief Justice was the beginning of the the new paradigm in legal relations and the concept of justice in the US. His leadership brokered the breaking down of the Jim Crow tradition of "separate but equal" doctrine. In Ontario, Chief Justice McMurtry stood for the proposition that it does not matter what your colour or religion is: you are entitled to equal treatment, respect and inclusion in this our great land.

I look at the horizon and ask myself: Who will fit the bill to follow in the footsteps of this giant in the service of justice?

Supreme Injudiciousness
February 20, 2006

The nomination of Justice Marshall Rothstein by Prime Minister Harper to be the next Justice on the Supreme Court of Canada is an act of supreme injudiciousness. A native jurist or other minority was due for appointment this time around if we take the notions of multiculturalism, equality and diversity as seriously we proclaim them in national and world forums. Native jurists were on the short list for possible appointment. Once again, justice has been served, Canadian-style: much talk but no action. Professor david Tanovich's latest book has an apt title: THE COLOUR OF JUSTICE; POLICING RACE IN CANADA, the first sentence of which reads: "The colour of justice in Canada is white". How presient the title and statement are to the recent and historic appointment quotient to the Supreme Court of Canada by our governments.

In Canada, what excuse can the Prime Minister find and give now for not appointing an aboriginal person or another minority person to the Supreme Court? The height of supreme injudiciousness has indeed been reached. In an excellent article that appeared not long ago in the GLOBE AND MAIL, entitled, "A Supreme Test of Inclusion", Phil Fontaine (Chief of the Assembly of First nations) and Dianne Corbiere (President of the Indigenous Bar Association) answer every conceivable objection put forward by those opposed to the appointment of aboriginals and other minorities to the Supreme Court of Canada. They state that aboriginals are not minorities, but represent distinct entities that predate all comers to Canada, aboriginals had their own distinct legal, political and cultural systems equal to that of the English and French, they were not a conquered people and their unique position in the Confederation has always been recognized. Why not on the Supreme Court? Natives have highly qualified lawyers suitable for appointment, they will not be tokens. The Canadian Bar Association and former Justice Minister Irwin Cotler had ruminated over the appointment of an aboriginal person. The climate for an appointment has been opportune. Even the National Post, which opposes native and minority appointments on the basis that there should be no "quotas" (refusing to acknowledge that the Supreme Court already contains quotas of three French judges, three white Ontario judges, two white western judges and one white maritime judge) grudgingly reported last year that there are qualified aboriginals out there and named two of them, one of which I have named repeatedly in my columns in the Toronto Star(2004) and Lawyers Weekly (2000) and in various media. The two named by the National Post are from the west and since the this appointment came from the west, there is no excuse the Prime Minister can give for not appointing an aboriginal or minority this time? Except ignorance and or insensitivity to the existence of other races and cultures in Canada. Tokenism does not arise because these aboriginals are highly qualified. It is time to launch Canadian multiculturalism into the 21st century. As Professor Daniel Munro stated in his article in the TORONTO STAR of August 18th, 2005, "it's time we adopt a more democratic approach to dealing with our multicultural reality. We should focus on improving the representation and participation of ethnocultural groups in the main-stream political process rather than offering protections or exclusions from that process". A supreme court appointment of an aboriginal or minority person would have been a good start.



Another Immigration-Related Falsehood
February 23, 2006

How did the idea that victims of and witnesses to criminality within the troubled areas of Toronto, and by implication elsewhere in Canada refuse to call police for fear of being deported , find traction within the Toronto City Council and other media commentators? What evidence is there that this is indeed the case? What studies have been conducted? What publications are out there to verify this firmly held notion? Who spread this idea and for what purposes?

Let us examine the implications of this idea before peeling its falsehood and exposing it for what it is: a dangerous falsehood. The first implication is that criminality which finds its victims and witnesses within the recent or illegal immigrant community is rampant in that specific community. Meaning? Criminality as evidenced by its victims and witnesses is mainly a problem of recent or illegal immigrants. Criminality is therefore not Old Canadian-rooted, criminality is not rooted in the Canadian societal fabric.

Criminality is therefore in the margins of society. It is not part of the cancer of society. Let us develop an" don't ask and don't tell'" policy and then we will nip this peripheral cancer in the bud. The next thing or implication will be the continuation of the criminalization and over-policing of the recent or illegal immigrant population, because after all that is where the criminality resides. The next implication is that when the police are unable to solve any criminal problems, the ready answer for their inability is already self-evident--the recent or illegal immigrant population does not want to divulge the names of the perpetrators of crime for fear of deportation. What are the facts however? The facts are that most violent crimes including homicides, sexual assaults, robberies, aggravated assaults are committed by either Canadian-born or long-term residents of Canada and that the majority of victims and witnesses are Canadian-born or long-term residents of Canada.

The perpetrators, victims or witnesses do not fear deportation, the victims and witnesses fear intimidation. Just like the victims and witnesses of the mafia, bikers or any other criminal enterprise across the globe, organized or disorganized, state or non-state etc. How the administration of justice sometimes treats victims and witnesses is a joke: interminable delays, loss of jobs, lack of respect and lack of empathy by crowns, defence lawyers and judges, lack of protection by police agencies, and at the end having nothing to show for all the trouble, while the criminals are cuddled with all types of protections as rightly granted by the Charter which was brought about by the politicians.

Some of the victims and witnesses are spouses, friends, girlfriends and families of the criminals so it is understandable that like in any other community they would be reluctant to spill their knowledge of the perpetrators. The best way to acquire information and evidence about this current idea is to get transcripts of bail hearings or trials of people who commit violent crimes. The status of these people is usually front and centre of the hearing. Those who do not get caught are by extension from similar backgrounds. They are Canadian-born or long term residents of Canada. It goes the same for victims and witnesses . I am not here saying that recent or illegal immigrants do not get caught up in this web. They do but they are not in the majority. Further we could get better evidence if our esteemed full-time journalists from the mainstream media were a little more creative and do investigative journalism rather than merely down-loading police bulletins. Finally, please read the latest book by Professor David Tanovich of Windsor Law, entitled THE COLOUR OF JUSTICE: POLICING RACE IN CANADA (2006) and my LLM thesis entitled: DANGER TO THE PUBLIC UNDER THE CRIMINAL CODE AND THE IMMIGRATION ACT OF CANADA(2001) for further information about the actual perpetrators of criminality, the nature of law enforcement and the administration of justice in Canada.

Munyonzwe Hamalengwa practices law in Toronto.



Immigration and the Politics of Deceit
January 16, 2006

The flip-flopping by the Liberal Government over the issue of immigration during the election campaign of 2004/2005 is evidence of the rampant politics of deceit, nay political prostitution, engaged in by all governments in order merely to be elected or re-elected. It is not based on solidly held principles.

The Liberal government had always refused to apologize or compensate Chinese Canadians for their internment during the second world war. Now during an election campaign, the Liberal government reversed their policy of over half a century and agreed to apologize to Chinese Canadians. Prime Minister Paul Martin would not apologize in Parliament, but instead apologized on an obscure Chinese radio station in Vancouver. Prior to that, the Liberal government in a feat of divide and conquer decided to promise the redress of the issue of the internment to a new and unknown Chinese organization rather than an old Chinese organization that had been spearheading the issue of apology and compensation for decades.

The turn-around by the Liberals was because this issue became a hot political ticket on which a party contesting the elections could win or lose an election. Chinese Canadians have significant numbers. The Conservative Party on the other hand all of a sudden started promising an apology and compensation to the Chinese, something they had refused to do all these years. Stephen Harper even started talking about speeding up the recognition of foreign credentials to enable new Canadians to secure jobs in Canada, an issue that had not escaped the lips of the Conservatives in decades. Just to win votes. The Conservatives could have done the same to the Chinese as they did to the Japanese in 1988- an apology and compensation for their internment.

The New Democratic party has been consistent on the issue of apology and compensation all these years and in all their election platforms. My colleague, Guidy Mamman has written an excellent article on the immigration policies or lack thereof by both the Liberal and Conservative parties. I have also previously written numerous articles on the politics of immigration, including the fact that Liberal party policies have in the past led to the wholesale deportations of small-time black criminals, the fact that the Liberals imposed the $975 head tax on immigration applicants in 1995 and so on.

Left out of all promises of compensation and apology by all political parties are African Canadians. It is as if we were never enslaved and discriminated against in the history of Canada. It is a voluble statement by all parties of our position and our political clout in the Canadian mosaic.

Munyonzwe Hamalengwa is a criminal and immigration lawyer in Toronto.



Gunning for Justice in an Election Year
January 16, 2006

Why do seemingly intelligent people invest the criminal justice system with the ability or the power to solve society's problems when they know or ought to know that the criminal justice system has no ability or capacity whatsoever to solve society's problems? And when the criminal justice system shows its absolute impotence in solving crime or society's problems, then these people blame the criminal justice system, i.e judges or the law and lawyers for that failure. Even with the knowledge that the criminal justice system is not designed to solve society's problems, some politicians and some reporters still pontificate how they will or should reform or toughen the criminal system to address society's problems.

Judges know that they are impotent. In one famous case decided a few years ago entitled R. v. Wismayer, the Court of Appeal for Ontario for example stated that the deterrent nature of the prison criminal sanction is at best speculative and parliament should look elsewhere for solutions to criminality that calls for general deterrence. In another case involving drug mules who happened to be single black mothers, a Judge of the Superior Court of Justice in Brampton located the problems of the criminality of these mules in material conditions of existence, i.e societal conditions of these women. see R. v. Mason) He imposed an appropriate sentence. The Court of Appeal for Ontario slammed back this judge for his judgment and the Court of Appeal stated in no uncertain terms that it is not the criminal justice system's function to solve society's problems. It is for parliament to do so. Wendy Dennis wrote a book entitled, THE DIVORCE FROM HELL: HOW THE JUSTICE SYSTEM FAILED A FAMILY(1998). Reading the book discloses that the family in the book expected too much from the justice system. The solution to their problems resided in that same family and in societal institutions other than the justice system. Alex Macdonald in his book, OUTRAGE: CANADA'S JUSTICE SYSTEM ON TRIAL (1999) overrates the ability of the justice system to solve society's problems. Once the politicians brought in the Canadian Charter of Rights and Freedoms, the criminals and their lawyers were bound to use it. The Charter was not brought about by the judges or the criminals. You can not turn around and accuse the people for using an instrument that was placed for their use without there having requested it. The cons are not stupid, just read Michael Harris's book, CON GAME: THE TRUTH ABOUT CANADA'S PRISONS(2001). Harris's book will also educate you on the Parole system. It was not designed by the inmates or lawyers. it was designed by the politicians in parliament. After serving one third of a sentence, an inmate is qualified to come out on parole if he/she meets the stringent criteria. And contrary to popular mythology, the parole board and criminal justice judges are not soft on criminals at all. The complexities of the parole system are explored in an excellent book, the only one of its kind by a journalist and former parole Board member, Lisa Hobbs Birnie, entitled, A ROCK AND A HARD PLACE: INSIDE CANADA'S PAROLE BOARD(1990). Former criminal lawyer and fraud convict Julius Melnitzer also wrote a helpful book on prisons and the parole system entitled MAXIMUM, MINIMUM AND MEDIUM (1997). Fortunately there are some sober analysis of the capacity and incapacity of the criminal justice system to solve society's problems. The best are by criminal lawyers and Law Professors David Paciocco, GETTING WAY WITH MURDER: THE CANADIAN CRIMINAL JUSTICE SYSTEM (1999) and Alan Young's JUSTICE DEFILED: PERVERTS, POTHEADS, SERIAL KILLERS AND LAWYERS(2003). In the current debate on guns and violence in Canada and in the context of election politics, it is absolutely necessary to resist the temptation for knee-jerk solutions to complex societal problems for short term political gains that will in the long run have no impact on the causes of or solutions to crime. I recommend the above-noted books as background reading before embarking on suggesting solutions to systemic criminality. The United States of America is even worse in its criticism of its justice system for failure to solve society's problems. Canada should learn how not to go the American way because a few journalists always point out how we must adopt the American way of solving this or that problem. If you read Max Boot's book, OUT OF ORDER: ARROGANCE, CORRUPTION, AND INCOMPETENCE ON THE BENCH (1998); Paul Campos' JURISMANIA: THE MADNESS OF AMERICAN LAW; Judge Burton Katz's JUSTICE OVERRULED: UNMASKING THE CRIMINAL JUSTICE SYSTEM
(1997); Judge Harold Rothwax's GUILTY:THE COLLAPSE OF CRIMINAL JUSTICE, and Nancy Grace's OBJECTION: HOW HIGH-PRICED DEFENCE ATTORNEYS, CELEBRITY DEFENDANTS, AND A 24/7 MEDIA HAVE HIJACKED OUR CRIMINAL JUSTICE SYSTEM(2005), for example you would think that everything in America and or Canada revolves around the criminal justice system and that society has gotten so rotten that it has all collapsed. Nothing is further from the truth. In fact, it is the other way round, it is the political system that is rotten and is infecting everything else and those who run it that benefit and drive the criminal justice system, there and by extension, in Canada. That is the analysis offered by Catherine Crier in her latest book, CONTEMPT: HOW THE RIGHT IS WRONGING AMERICAN JUSTICE (2005). Canada has no equivalent book to Crier's. The message is: Look to the politics of the country and not to its criminal justice system for solutions to society's problems. The blame on the criminal justice system by the politicians is political abdication of responsibility. You do not want to be part of that political conspiracy.

Munyonzwe Hamalengwa is a Toronto lawyer whose Masters of Law (LLM) Thesis in Criminal Law was entitled DANGER TO THE PUBLIC UNDER THE CRIMINAL CODE AND THE IMMIGRATION ACT OF CANADA (2001).



Judge's Crime and Punishment
January 14, 2006

Saturday, January 14, 2006 3:50 PM

While a few groups of individuals who always like to talk about crime and punishment like politicians, company executives, lawyers (defence and prosecutors) etc have seen the inside of a prison as convicts and experienced the rigours of crime and punishment over which they had only talked about at a distance, one group who talks about this phenomenon on a daily basis has almost entirely escaped its experience and consequences. I am talking about judges. Judges commit criminal offences like every one else but they escape punishment because their conduct is not categorized as criminal and when it teeters on criminal conduct, it is excused on the basis of judicial immunity or is fast- tracked through the some kind of judicial rather than criminal conduct hearing. One judge in Barrie, Ontario, Canada, who was alleged to have committed sexual misconduct acts on seven women which would have attracted seven sexual criminal assault charges were they committed by any one else, was allowed to resign after a judicial rather than criminal misconduct process in 2004 and 2005. According to Sadakat Kadri in his book, THE TRIAL: A HISTORY FROM SOCRATES TO O. J. SIMPSON (2005), Nazi judges who clearly should have been charged with war crimes like the rest of high ranking German society during the Nazi era, improperly escaped punishment for their overzealous enforcement of Nazi crimes against humanity. So do all other judges in all societies including apartheid South Africa judges. Occasionally, however, an unfortunate judge gets netted in the web of simple crime and punishment rather than the big world-type crimes against humanity. One such unfortunate judge was the subject of a front page story in the New York Times of Friday the 13th of January 2006.

Judge Roland Amundson, who had been on the Minnesota State Court of Appeals had been convicted and sentenced for stealing US$300,000.00 from an US$600,000.00 trust fund he had been administering for a severely mentally retarded person. In prison, Amundson met a few inmates whose lengthy prison sentences he had upheld as an appellate judge. It is through his prison experience and interactions with the inmates whose sentences he had upheld that Amundson now preaches for the rethinking of the efficacy or lack thereof of the fascination by those who have never experienced prison life with the prison sanction. Amundson says that prison seems to now serve the purpose of warehousing rather than rehabilitation. He says that inmates come out more incapacitated to exist and survive in society than when they went into prison. People in prison need fathers more that almost any other group of people in society. Other solutions have to be found.
Amundson is delivering the same message as another US judge who saw the inside of a prison also as an inmate. Judge Sol Wachtler had been the Chief Judge of the New York State Court and Court of Appeals when he was convicted for criminal conduct. His prison experience produced a riveting book on crime and punishment, the only one of its kind, entitled, AFTER THE MADNESS: A JUDGE'S OWN PRISON MEMOIR (1997). If only those who send people, unthinkingly to prison would read this book, they would think twice before making the inevitable ignorant utterances about rehabilitation and curative function of the prison. There are no easy solutions to criminality but we should speak from the position of informed knowledge rather than regurgitated stupidity.

Munyonzwe Hamalengwa, is a Toronto Lawyer who was detained without charge or trial during a State of Emergency in Zambia.



Fruits Of Diversity
January 20, 2005



Justice Interruptus
June 17, 2005



How Unique Is Canada: A Contextualized Approach



Inequality in International Immigration
June 23, 2005



Permanent Revolution In South Africa Johannesburg
June 24, 2005



Crime And Videotape
September, 2005



Attorney For The Defence; Goodbye



Engendered Attack



A Constitutional right is not a technicality
September, 2005







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