Wednesday, November 26, 2008

Further to the discussion on this post, I consulted my poet/lawyer friend Sharon McCartney about the phrasing in the CC juror guidelines. Here's what she has to say:

It's confusing because the phrase introducing the starred points indicates discretion ("may also exist") while the bracketed phrases use absolute language ("conflict of interest exists"). One of the basic principles of statutory interpretation (statutes arguably include such guidelines) is that you have to read each item in the context of the entire piece of legislation--and also reasonably, sensibly and in a way that avoids absurdity. So, reading the bracketed phrases in the context of the entire paragraph, you could argue that there's still some discretion to decide whether or not a conflict exists. That would be particularly so in light of the previous paragraph, the point of which is to list situations where an absolute conflict exists. If you read the bracketed phrases as indicating situations where an actual conflict "must" exist, then what was the point of the previous paragraph and why are the bracketed phrases not listed there? I think that's what a judge would ask. They try really hard (usually) to make sense even of poorly written material. And they assume that the legislation (or whatever is being interpreted) is well-written, well-organized and sensibly thought out.

However, you could argue that the bracketed phrases are in contrast to the starred items in the sense of narrowing down the existence of an actual conflict of interest. Does that make sense?

It's just kind of stupidly written. The other argument to rely on is that any legislation has to be interpreted in a way that gives meaning to the purpose for which the legislation was enacted--the "broad, purposeful" interpretation. Where the purpose is to avoid conflicts of interest or the appearance of bias, you would err on the side of finding that the wording indicates where "actual" conflict occurs, rather than a "possible" conflict, and that this would help people (i.e. jurors) avoid situations where they would be in an actual conflict of interest.
So, there's a case, albeit a dubious one, for Melanie Rutledge's claim that the guidelines were followed to the letter. But even if this is so, it seems rather obvious that the spirit of those guidelines has been trampled on.

3 comments:

Steven W. Beattie said...

The legalistic reading of the guidlines gives the Canada Council an out, I suppose, but my own (admittedly non-lawyerly) reading would interpret the bracketed passages of the second part to indicate those situations within potential conflicts where actual conflicts do exist. Which is a tortured way of saying that it seems clear to me that there was a conflict here, and that the CC's guidlines clearly indicate that. A violation occurred: whether of letter or of spirit seems immaterial.

GM said...

As I said over on BN, I don't doubt they at the very least "tried" to follow the letter of the law. I just think the letter of the law needs changing.

It's all good, well-meaning folk here, Z. But some of them have made bad mistakes. Time to 'fess up and make some changes.

Zachariah Wells said...

I've never questioned anyone's intentions here. But once a mistake has been made and pointed out, good intentions don't count for much. Especially if the "fessing up" doesn't happen. Some good actions are what's needed now.