Document considered: Wildrose Platform on Justice, Policing and Human Rights
PDF Version: Kangaroo-ism
My colleague, Jennifer Koshan, has written a serious ABlawg post on “The Alberta Election and Human Rights,” pointing out numerous problems with the Wildrose platform on Justice, Policing and Human Rights. The purpose of this post is much narrower and less serious, and that is to follow up on the “kangaroo courts” insult in the Wildrose policy statement.
Like with Professor Koshan, I think that calling the Alberta Human Rights Commission and the tribunals “something akin to ‘kangaroo courts'” is inflammatory rhetoric. According to Webster’s New International Dictionary (2d. ed)), the phrase is most commonly used to refer to “an irresponsible, unauthorized, or irregular tribunal, or one in which, although conducted under some authorization, the principles of law and justice are disregarded or perverted.” The Alberta Human Rights tribunals are decision-making bodies and “kangaroo court” is never used to say something nice about how a decision-making individual or institution goes about its business.
But what exactly does the Wildrose allegation of “akin to ‘kangaroo courts'” mean? Why “kangaroo courts”?
Writing on the metaphor’s etymology, Marvin J. Garbis, in “Aussie Inspired Musings on Technological Issues – Of Kangaroo Courts, Tutorials & Hot Tub Cross-Examination” (2003) 6 Green Bag 2d 141, 142 n.8, tells us that the term “kangaroo court” is not disparaging of the Australian judicial process but rather arose in the American West in the 1850’s to refer to informal tribunals that dispensed instant “justice.” Garbis believes that the marsupial analogy may have been a sardonic comparison between the hopping gait of a kangaroo and the ad hoc and unpredictable leaps of logic and procedures of the American frontier tribunals. While western frontier justice is something detractors of the Wildrose might expect the party to be in favour of, it is reassuring to see that the party has taken a firm stand against it.
In the American context, Parker B. Potter, Jr., has looked at both founded and unfounded claims of kangaroo-ism brought by both judges and litigants and found 375 state and federal judicial opinions discussing the allegation. See Potter’s “Antipodal Invective: A Field Guide to Kangaroos in American Courtrooms” (2006) 39 Akron Law Rev. 73 at 73, and his companion articles, “The Good, the Bad, the Ugly, and More: A Survey of Litigation Arising from the Operation of Kangaroo Courts” (2005) 1 International Journal of Punishment & Sentencing 121; “Dropping the K-Bomb: A Compendium of Kangaroo Tales from American Judicial Opinions” (2006) 11 Suffolk Journal of Trial and Appellate Advocacy 9; and, most recently, “Marsupial Justice” (2008-2009) 35 Litigation 20.
In the United States, according to Potter’s research, juvenile justice is by far the most hospitable habitat for alleged or real marsupial decision-makers. And interestingly, although Potter catalogues a wide variety of habitats where kangaroo-ism allegations can be found – including at the police station, in schools, in labour unions, up and down the halls of government, and in hospitals – in the United States, no adjudicatory kangaroos have been spotted in human rights habitats.
I spent five minutes on a Quicklaw search for “kangaroo courts” in all Canadian jurisdictions and turned up 56 cases – proportionately a far greater number of marsupial sightings than in the United States. The Alberta Human Rights Commission and tribunals are keeping company with the likes of the Attorney General of British Columbia (Randall v Weich, [1982] BCJ No. 862 at para 4), the British Columbia Provincial Court (Criminal Division) (R v Clark, [1997] BCJ No. 715 at para 23), and the federal Minister of Natural Resources (R v Buchanan Forest Products Ltd., [2005] OJ No. 5927 at para 36), to name but three. I did note that it seems to be ministers of provincial and federal governments that are often charged with kangaroo-ism but, as the Wildrose party does not (yet) have any ministers, perhaps they are unaware that the charge may boomerang on them.
As part of his empirical study of kangaroo-ism, Potter presents (at 148-49), in ascending order of popularity, the top twelve decision-making behaviours that have inspired American judges and litigants to hurl the kangaroo invective at another tribunal:
- depriving a person of property based upon false charges;
- employing procedural rules that unfairly favour one side over the other;
- conducting an inadequate investigation;
- basing a decision on insufficient evidence;
- denying an accused person the opportunity to cross-examine witnesses;
- acting out of an improper motivation;
- exhibiting bias;
- denying an accused person the opportunity to confront his or her accusers;
- delaying excessively the decision-making process;
- denying an accused person the opportunity to present witnesses;
- denying an accused person access to counsel;
- providing an accused person with inadequate notice of the charges against him or her.
The Wildrose platform on Justice, Policing and Human Rights is quite vague about what behaviour inspired their allegation of kangaroo-ism, unless it is equating kangaroo-ism with “bringing the administration of justice into disrepute” – normally a different idea. The statement mentions unfairness in dealing with human rights complaints but that is so general as to be meaningless. The only specific behaviour listed is their allegation that rights are “interpreted by individuals who are often unqualified to make judgments on the most foundational of protected rights in society.” That behaviour did not make Potter’s top twelve so perhaps we have a different species of the marsupial class here in Canada.
Lyndsay Campbell
I find myself wanting to click “Like.”
I would not suppose that there have been any marsupial sightings in hate speech trials in the U.S., owing to the inhospitable climate there (too damp, possibly), but it seemed to me that someone must have thought he, or perhaps she, spotted droppings in some such hearing in Alberta.
Terry Paden
The above list seems to be incomplete according to what I understand from CBC Radio One’s The Current program this morning. Police kangarooing strip searches. Compare the U.S. and Canadian Supreme Courts’ decisions on this matter as discussed on The Current. At least some kangaroos are safe here.
Please see: http://www.cbc.ca/thecurrent/
This should be of great importance I would think to both the Wild Rose and Progressive Conservative Party Leaders as women.
I was not able to resist posting this. If it is inappropriate I apologize for this “marsupial dropping”.
Johanna FitzPatrick
While the Wildrose Party has failed to demonstrate why the Human Rights Commission and Tribunal meet the definition of kangaroo court…one could argue that they themselves meet several of the criteria already…and they aren’t even in the legislature as yet:
» employing procedural rules that unfairly favour one side over the other;
» conducting an inadequate investigation;
» basing a decision on insufficient evidence;
» acting out of an improper motivation;
» exhibiting bias;
Annie Voss-Altman
I also wanted a like button.
Personally, I’m surprised that the Wildrose’s new species hasn’t been sighted in the US. I will note without comment the possible relationship between the lack of sightings of this species in the US and the fact that certain jurisdictions in the US have tried to solve their own presumed Kangaroo-ism problems by electing or confirming judges by popular majority, a decision that has had some unpleasant effects in recent years in the US.
See <<http://www.nytimes.com/2010/11/04/us/politics/04judges.html?_r=1>>.
Thus proving the obvious: that kangaroo sightings in North America are usually linked to unpopular decision making, not to actual kangaroo-ism.
Brian Seaman
Jonnette, thank you for your timely and eloquent charge directly at the Wild Rose’s justice platform as it pertains to the human rights commission. Though there are admittedly some serious problems within the extant process (e.g. the inordinate amount of time it takes for many legitimate complaints to wend their way through the process of mediation and then adjudication in the event that mediation fails), resorting to the inflammatory rhetoric that you’ve identified does nothing positive in terms of fixing things. I can not obviously know for certain that Ezra Levant was the origin of the epithet “kangaroo court” as far as applying it to slang the human rights process goes. I do think he would certainly be quite ready to take credit for it. However, he is the most obvious source of this description of the adjudicative part of the human rights complaint process as he employed the phrase “kangaroo court” countless times throughout his book of about three years back, “Shakedown”. There is of course much more to be wary of in the broader Wild Rose platform on justice and other matters. Those of us who truly do care about process, fairness, equality and freedom need to do more of what you’ve done in your article: take aim at this culture of ignorance and fear, and expose its irrationalities and “straw man” arguments.
Dave Laidlaw
The etymology of “kangaroo court” is uncertain, but see:
Kangaroo-Court
[Slang of U.S. origin.] An unfair, biased, or hasty judicial proceeding that ends in a harsh punishment; an unauthorized trial conducted by individuals who have taken the law into their own hands, such as those put on by vigilantes or prison inmates; a proceeding and its leaders who are considered sham, corrupt, and without regard for the law.
The concept of kangaroo court dates to the early nineteenth century. Scholars trace its origin to the historical practice of itinerant judges on the U.S. frontier. These roving judges were paid on the basis of how many trials they conducted, and in some instances their salary depended on the fines from the defendants they convicted. The term kangaroo court comes from the image of these judges hopping from place to place, guided less by concern for justice than by the desire to wrap up as many trials as the day allowed.
The term is still in common usage by defendants, writers, and scholars critical of a court or a trial. The U.S. Supreme Court has also used it. In In RE: gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), a case that established that children in juvenile court have the right to due process, the Court reasoned, “Under our Constitution, the condition of being a boy does not justify a kangaroo court.” Associate Justice William o. Douglas once wrote, “[W]here police take matters in their own hands, seize victims, beat and pound them until they confess, there cannot be the slightest doubt that the police have deprived the victim of a right under the Constitution. It is the right of the accused to be tried by a legally constituted court, not by a kangaroo court” (Williams v. United States, 341 U.S. 97, 71 S. Ct. 576, 95 L. Ed. 774 [1951]).
West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
Until recently, the first example was recorded in a book by the pseudonymous Philip Paxton (whose real name was S A Hammett) in 1853 in A Stray Yankee in Texas: “By a unanimous vote, Judge G____ was elected to the bench and the ‘Mestang’ or ‘Kangaroo Court’ regularly organized”. In September 2007 an earlier example was reported by Stephen Goranson of Duke University from The Mississippian for 12 January 1849 but referring to an event the month before: “On the evening succeeding the election, a meeting was gotten up some what in imitation of a ‘Kangaroo Court,’ for the purpose of trying three individuals, (not all of who had voted for Taylor,) on charges preferred, that one of them, H____, is ever loudest to proclaim his democratic sentiments, but has never been known to vote for one of the party for any office, from President down.”
The kangaroo court in the first example was an unofficial legal institution set up on the frontier at a time when the regular law didn’t reach so far much like the lynch law of the previous century on the other side of the continent. The association may have been between the unruliness of the body and that of the kangaroo, since the mustang, a half-tamed horse, was also invoked. The second example also suggests an ad hoc body (and also that the term was even then well enough known in Mississippi that it didn’t need explaining). On the other hand, the next examples don’t appear until the 1890s and most of those refer to mock courts organised by prisoners in jails to deprive new inmates of their money. The term must have been fairly common around 1850 to appear in newspapers in different states, so the long gap is puzzling; either it wasn’t that widely used or it died out, only to be rediscovered or reinvented later.
Many people like to see something in the closeness of the date of the first example to that of the gold rush in California in 1849. Many Australians came to seek their fortune there (it was easier for them to get to the American west coast by sea than it was for Americans coming from the east coast overland or around Cape Horn). It is suggested that informal courts were held in the gold diggings to control illegal prospectors, who were called claim-jumpers, and that the association of ideas between jumping and kangaroos was too strong to resist. But this story is refuted by the Mississippi discovery, since that state is a long way from California and the newspaper report predates the gold rush.
From: World Wide Words
This gap in use seems to be borne out:
http://books.google.com/ngrams/graph?content=kangaroo+court&year_start=1850&year_end=2000&corpus=0&smoothing=1
More interestingly is the spike in the use of the phrase in the mid-1960’s to the mid-1970’s. This is pure speculation on my part but perhaps it coincides with the Draft Boards in the Vietnam era?
I would concur with Brian Seaman the inflammatory rhetoric is not helpful.
David Clark
Although I am not a lawyer, I believe the Human Rights Tribunals are worse than being called “kangaroo courts”.
I believe that everyone should have equal rights under the law but in a recent decision an adjudicator said that calling for the “killing of all Christians” printed in a book, available for sale in a book store, wasn’t discriminatory. Her reason was that Christians aren’t a protected group and the book and author weren’t believable enough to cause harm. This same adjudicator ruled that a Christian minister had to publicly renounce his religion in a news paper and desist from openly quoting from parts of the bible for the rest of his life. If I told this story to any of my friends they wouldn’t believe that this occurred in Alberta.
None of this could have occurred if the complaint against this minister had gone to a court. The Human Rights code doesn’t even allow truth to be a defense!
I don’t know what kind of idea of justice the posters here have but I know the people I talk to don’t agree with you.
Chris Budgell
As this article was posted almost eight months ago, I don’t know if my reply will be posted, but the issue – the use of “kangaroo courts” as rhetoric – isn’t going away. Nor, in my view, should it, because in a great many instances it’s a valid characterization, though of course as a simple rhetorical device it requires a thorough justification each time it is used.
From what I have seen, the critics of the Human Rights tribunals are usually, if not invariably, arguing that it is the respondents in these cases who are the victims. A consideration of the opposite scenario – of complainants or plaintiffs being victims – would be instructive.
My own experience, repeatedly before a labour tribunal and then before the superior courts, has been exclusively as a complainant, petitioner, or plaintiff. In each instance I can explain cogently why what I experienced could be characterized as a kangaroo court – the kind that leaps (or hops) to a conclusion that there simply is no case to be argued. Rather than “kangaroo court” I prefer the term “gatekeeper device”. I suspect these devices were once far less common than they are today, but that they have been sprouting like weeds for decades in response to the growing demand for access to due legal process. And no matter how they are defined they are ripe for abuse. The latest example I’ve encountered and am challenging is found in the second sentence of section 2.2 of the Canadian Judicial Council’s Complaints Procedures (http://www.cjc-ccm.gc.ca/cmslib/general/CJC-CCM-Procedures-2010.pdf). Notice that very similar language is found in section 3.5 (a). Why does the CJC need not one but two gatekeeper devices? I want them to provide an answer to that question in a court proceeding so that the public can judge the answer for themselves.