Category: Ethics

Factual Causation: Never say never, but …

For those who care:

You’ll find, at the link, the PDF version of the (revised version) of the PowerPoint slides I used, last month, as part of a lecture titled “A Plea For Coherence: Making Sense of Factual Cause”  I gave in Vancouver on May 5, 2017 at UBC’s law school.

Cheifetz-Factual-Cause-May 2017 revised June 2017- reduced size

The subject shouldn’t surprise some of you:  the incoherent state of proof of the jurisprudence on proof factual causation in negligence in Canada.

I have specifically not dealt with the issue of the use of statistical evidence. That is yet another area within the Canadian jurisprudence that needs a Stygian Stables level clean-up.

The “never say never” in the title of this posting refers to the likelihood that, unless there’s a radical change in my foreseeable future, this is last time I’ll write anything focused on the state of the Canadian jurisprudence on this subject.

I am not aware of any reason to expect – meaning any cases in respect of which leave has been granted where the issues ought to be considered – that the Supreme Court will do anything to clarify the various problems in the foreseeable future.

Perhaps this means that what is needed is for some inventive counsel to convince an appellate court to misuse an SCC decision, as plaintiff’s counsel did with Walker Estate in Resurfice; or, for a trial judge or appellate court to accept, as I point out in the paper, that the SCC jurisprudence requires the conclusion that, in Canadian negligence law, events may occur without having causes (and not just in Stoner, B.C.).

I began the published process of attempting to make sense of the Canadian jurisprudence in an article where the subtitle was “The Hunting of the Causative Snark”. Some of you will know that I completed the process about a decade later in an article which might as well have had the subtitle: “The Snark Is A Boojum”.

If you wish, imagine that my May 2017 piece has the subtitle: “Understanding Original Canadian Jabberwocky”.

I’d have used “Original Canadian Gibberish” but Mel Brooks is still alive to complain that “Blazing Saddles” is too good for that association. I’d have to agree.  On the other hand, Lewis Carroll is not alive to complain although he’d be right, too, if he could and did.

DC

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Alternate Facts In Canada: A Lie By Another Name Is Still A Lie Even In The GWN During Stanley Cup Season

“Federal spies, lawyers schooled in honesty after fallout over warrants”  http://www.theglobeandmail.com/news/national/federal-spies-lawyers-getting-crash-courses-on-court-honesty-after-fallout-over-warrants/article34720293/

The explanation, according to Murray Segal – (http://www.murraysegal.com/about-murray-segal.html) – is apparently the government lawyers failure to always be “comprehensive”.

“Speaking to The Globe and Mail, Mr. Segal suggested it is getting harder for spy-agency officials to tell judges everything they need to know. CSIS and its lawyers “are well-intentioned and extremely hard-working people who do high-, high-pressure work,” he said. The recent shortcomings, he added, were not about falsehoods so much as “not always being comprehensive in terms of bringing to the table all the issues a judge issuing an order might want to have.”

Sorry, Murray, though nice try but: a lie by any other name is still a lie and still smells rotten, even on the banks of the Ottawa & Rideau.

“Not always comprehensive” has to mean “incomplete” and therefore “not entirely accurate” and “misleading”. The federal gov’t lawyers either knew that or they didn’t. If they knew that they were in contempt of court. If they didn’t, that’s either because (1) they were wilfully blind; (2) reckless; (3) competent and diligent but honestly mislead; (4) incompetent; (5) some combination of all of these factors. In any event, if the reports to the courts were incomplete and the gov’t agencies knew, the gov’t is in in contempt of court.*

It’s as simple as that.

Mr. Segal’s well-honed bullshit facility – developed no doubt in his years working for and with Ontario governments – must have been working overtime for this one.

What’s also worth asking is why the Globe editors weren’t prepared to ask the article writer to rewrite the story story so it makes the point I’ve made. I’m assuming, of course, that somebody on the editorial board saw this, if the writer didn’t.

But, then, my guess is that if he’d used clear English, he’d not get the next similar gig.

*There is, of course, a 6th choice. The lawyers were “only following orders” and (a)  knew exactly what they were doing and thought it was proper conduct or (b) knew it wasn’t but didn’t want to complain lest they lose their jobs. Ain’t life as a working gov’t lawyer grand?

 

Nemesis Calling: Is Anybody Home? or

  A Satire on Hubris by Outis

Those who gods would destroy they sometimes give more money than the person will ever be able to use in that person’s lifetime.
Or they sometimes make that person wealthy as the result of ze’s creation of a fungible product that has no intrinsic value whatsoever to society and could equally be replaced by something equally valueless, where ze just happened to be one of the first kids on the block.

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