Sunday, August 19, 2012

What are the real costs of Civil Forfeiture?

It is easy to put up statistics and make yourself look good and the Alberta Attorney General / Solicitor General, Jonathan Denis, has just had help from the Calgary Herald / Edmonton Journal in a feel-good story about the province's Civil Forfeiture Office (CFO) that is full of propaganda-like numbers:

Alberta gives 1.6 million seized from alleged criminals fund

So what are we to make of this?  Instead of just regurgitating figures, let me try to do a little analysis:

For the 5 year existence of the Victims Restitution Compensation Payment Act (VRCPA) the province has apparently seized $25.59 million worth of assets.  Slightly more than $5 million per year seems like a nice number, but wait...that's just what they have slapped preliminary court orders on.

Those ex-parte orders are obtained without giving notice to the property owner and without anybody opposing the CFO lawyers in court.

Not surprisingly, once someone is given an opportunity to come and argue against the government, the legitimacy of the initial seizure (and therefore that $25 million dollar number) doesn't hold up in a number of cases.

That is likely a major reason why of the $25.59 million seized, only $4.4 million (a mere $880 thousand per year) has been actually ordered to be kept by Her Majesty the Queen in Right of Alberta.  The quick math on those two numbers tells us that the CFO has convinced the courts to let it keep a mere 17% of the total value of property it has seized from Albertans.  (Admittedly, some of these cases will still be pending in court, so that percentage will likely go up some).

So why do police and government officials boast success rates of in excess of 95% on these cases?


     "...when police refer a case to a CFO, there is often plenty of evidence that can prove a case to the 
     lower civil threshold of balance of probabilities. This explains, in part, the extremely high success
     rate of CFOs—usually exceeding 95%."

     - Karl Wilberg, Director, Alberta CFO

Is 'success' being able to keep any money no matter how small?  If the CFO keeps $50 to cover photocopying and gives back a million-dollar home to its rightful owner does that count as a win?

I don't know, but if the former Justice Minister, now Premier Redford, is running such a transparent government, I think she should ensure that citizens of this province get the straight answers on this whole CFO program.  Can Minister Denis prove to us in black and white that the net balance sheet for taxpayers is actually not in the red?

Of course, one of the issues is that when the CFO swipes a house or a car there is often a bank that is first in line to collect proceeds.  But they know that up front in most cases because there is a registered mortgage or lien on the property.  So why report the big figure of $25.59 million at all?

Maybe part of the concern is ensuring that the program charges ahead and gets bigger every year without a full cost / benefit analysis?

Think about it; the "over 550 cases" the CFO says it has opened don't run themselves, they get handled by lawyers, who have offices, assistants, pensions and benefit plans.  There has been reported to be over a dozen Crown lawyers doing CFO seizure work in Alberta.  A senior Crown lawyer in Alberta can make more than $160,000.00 in salary alone.  Even if I really push the figures down, look at where we get:

10 lawyers making an average salary of $100,000.00 per year is a full million dollars worth of overhead.  If the average salary and head counts are higher, then this number gets way worse.

So, not counting any of the other stuff like support staff and employee benefits, the CFO is conceivably burning well over a million dollars every year and to date has successfully had forfeited only $880,000.00 annually.

This would mean once all actual costs are factored in the Alberta taxpayer could be going under by multiple hundreds of thousands of dollars every year by chasing money to use for victims programs.  But, again, these figures do not reconcile with Mr. Wilberg's public statements that his CFO brings in $1.50 for every $1.00 it spends.

When crime

     "Vehicle cases are “money-loser files” because the province has to pay towing and impound
     charges and other related fees, acknowledges Wilberg.

     But the plentiful cash-seizure cases make up for the vehicle losses. Overall, the program brings in
     $1.50 for every $1 spent by taxpayers on the initiative."

Where does he get the data for that statement?  I think the best I can say in trying to assess all of this is that we need the CFO to produce raw data so that critics and not just boosters of the civil forfeiture regime can fully analyze the real cost to Albertans.

I mean, on one of the first cases I was involved with under the VRCPA, the full value of the senior citizen's condo was given back to her and the CFO ended up minus more than $86,000.00 in costs that they had to repay to her.

On another, the CFO voluntarily gave back my client's BMW X5.  On yet another, they voluntarily dropped the seizure against my client's family home.  More recently, my client sold a seized property with the consent of the CFO and the matter was resolved by the vast majority of the proceeds being returned to him.

The bottom line, for me, is if this program is as good as the government says it is, then open the books for us all to revel in its splendor.  Let us see the actual revenue in against the expenditures out.  This legislation has been controversial since its inception, the CFO has suffered some setbacks
in court, and contrary to popular talking points, the actual constitutionality of the Alberta VRCPA is only just starting to be judged by the courts (and certainly has not been approved by the Supreme Court of Canada).

Regardless, just because Alberta can seize property from its citizens - guilty of a crime or not - doesn't mean that it should; especially if the real costs outweigh the benefits.

Michael Bates
Calgary Criminal Lawyer

Friday, August 19, 2011

Herald Editor Needs Hackers

Okay, maybe just some diligent fact-finding would do.

I say this in response to the recent Herald editorial comment entitled "Impaired Judgment" which discusses the impaired driving sentencing decision of Alberta Provincial Court Judge Anne Brown in the case of Dominika Duris.

In a piece clearly and personally aimed at an individual Judge's integrity, the Herald Editor professed with erudite credibility and confidence:

"Clearly [Duris] didn’t learn her lesson. Nor will she, as long as the courts fail to hand an appropriate sentence that reflects the seriousness of the crime. The judge was wrong to ignore Duris’s first driving conviction, which had taken place by the time of sentencing in the second offence. Her circumstances changed, and the judge should have taken that into consideration while sentencing.

That Duris won’t pay the price is a serious travesty of justice, that compounds the tragedy of the death of an innocent young man who had his whole life ahead of him."

First of all, before naming a judge and saying that she was wrong in discharging her sworn duty to uphold the law, you might want to determine the facts and get a legal opinion. This is particularly so because judges are in almost all cases not entitled to publicly respond to such criticisms at risk of losing the appearance of impartiality...and to improperly say a judge was wrong breeds serious and false public contempt for our justice system and for our democratic institutions.

Secondly, to lay the burden of a 'travesty of justice' at the feet of a judge for the consequences of a crime that was not in court before her is not only distasteful but blatantly asinine. Judge Brown was expressly not punishing Ms. Duris for her crime that killed an innocent young man in Ontario - and had she attempted to get a little extra discipline for that crime THEN she most certainly would have been wrong in law.

If the Herald Editor thinks that Duris should have been given a more serious sentence for impaired driving causing death, then he can research the facts of the Ontario case and make a comment about that matter (also after getting a legal opinion so as to not just ignorantly slag that judge).

Thirdly, Judge Brown's sentence was not the minimum sentence for impaired driving - the fine of $2,300.00 (which I rather suspect was a $2000.00 fine plus 15% Victim Fine Surcharge) is significantly more than the $1,000.00 mandatory minimum.

Fourthly, Judge Brown was presented with a joint sentencing submission by Crown and defence - which the Supreme Court of Canada has indicated must only rarely be departed from by a sentencing judge, and only where it can be stated that the proposal would be unjust in law.

Which brings us to the fifth point...the submission of the lawyers and the decision of Judge Brown was not wrong in law. In 1982 in a case called R. v. Skolnick, the Supreme Court of Canada had almost this exact situation before it on an impaired sentencing matter and summarized the law (which is completely binding on Judge Brown whether she or the Herald Editor like it or not) as follows:

(1) The number of convictions per se does not govern in determining whether the Coke rule applies.

(2) The general rule is that before a severer penalty can be imposed for a second or subsequent offence, the second or subsequent offence must have been committed after the first or second conviction, as the case may be, and the second or subsequent conviction must have been made after the first or second conviction, as the case may be.

(3) Where two offences arising out of the same incident are tried together and convictions are entered on both after trial, they are to be treated as one for the purpose of determining whether a severer penalty applies, either because of a previous conviction or because of a subsequent conviction.

(4) The rule operates even where two offences arising out of separate incidents are tried together and convictions are entered at the same time.

The Coke rule was explained by a 1962 ruling cited in Skolnick as follows:

"It may be thought to be anomalous that if a man commits the offence of drunken driving and then repeats the offence before being convicted of the first offence he escapes the increased minimum statutory penalty in respect of his second offence. But Lord Coke, the great 17th Century judicial defender of the rights of the individual, said over three centuries ago that a man may not lawfully be subjected to an increased statutory penalty as for a second offence unless he had deliberately broken the law again after being convicted and receiving punishment for a first breach of it. The law has been taken to be so settled ever since.

This three century old canon of construction of penal provisions of this kind is broadly based on principle and does not depend upon the precise language used in a statute. It ought not to be excluded unless the legislature has plainly said so."

So, in 1962 the law had already said FOR 300 YEARS that what Judge Brown did was right. By my math that says that to do what the Herald Editor's gut feeling tells him is right, Judge Brown would have had to simply ignore 349 (and a half) years of precedent.

A quick review of the legal databases shows that in 2010 and 2011 this principle has been explained, referred to and applied by courts in B.C., Saskatchewan, New Brunswick, Nova Scotia, Ontario and Quebec.


Well, I suppose the problem for the Herald Editor was that he doesn't have access to these legal databases and where could he possibly have looked to get the facts (since using hackers would be wrong)?

I wonder if he could have read his own paper?

In a comprehensive and detailed report of the case, longtime Calgary Herald court reporter Daryl Slade, who likely actually observed the proceedings, did crazy things like interviewing the lawyers and reporting the facts:

After noting that Judge Brown accepted a joint sentencing submission, Slade diligently reported the comments of the prosecutor and a representative of MADD:

"[the prosecutor] said outside the Calgary court following the hearing that he could not treat Duris as a repeat offender, thus subjecting her to at least 30 days in jail.

"At the time of this driving offence, she was not convicted of the prior offence," Hadford explained, "so we can't rely on it as a previous conviction."

Tracy Franklin, president of the Calgary chapter of Mothers Against Drunk Driving, said she understands why such a sentence was meted out, but is frustrated with the message it sends."

Double Huh...

So the Herald court reporter (who practically lives in criminal courtrooms every day) got the Crown to basically articulate the 349 1/2 year old legal principle for the record and had a representative of the most renowned anti-drunk driving organization confirm that she understood the reasoning of Judge Brown's sentence and that led to a personal attack of the integrity of the judge the next day in the Editorial column?

Shame on you Herald Editor.

You should apologize immediately and profusely for an unwarranted attack on one of our system's most diligent, intelligent and committed jurists. And if you are not going to hire any hackers (who ironically, while acting criminally were actually doing so to obtain true facts upon which to base stories) maybe read your own publication's lawfully sourced articles before shooting your mouth off.

Michael Bates
Calgary Criminal Lawyer

Wednesday, January 12, 2011

Can I Trust You With My Life?

Dear Sgt. Patrick Webb,

As Alberta spokesman for the RCMP, I ask you this question. Can I trust the members of Canada's historic national police service with my life and the lives of my family?

I expect that you will deliver an emphatic "Yes, Sir!" to my question without even a pause. What else could you say in your position?

But with the greatest of respect Sergeant, I have deep reservations about whether I can believe you. I say this not in some form of jest as I often comment on this website, but with absolute sincerity.

I grew up in small-town Alberta with all of the small-town things that come with that lifestyle. By and large, we never did really bad stuff, but we had our fair share of face to face encounters with the members of the local detachment.

But back then those encounters were virtually all with respectful professional policemen and policewomen...even if some in the crowd were drunk / belligerent / or coming off with something intelligent like "F-ck you pig..."

I never once feared getting kicked in the face while following a member's commands:

[As the "suspect" is charged with careless use of a firearm hours after the incident, can I expect to see the member charged with aggravated assault while carrying a firearm sometime next week? I suspect not.]

It would never have crossed my mind that if I drank too much and had to sober up in "the tank" that I would be brutally beaten upon being released:

I would have, ironically, called you a liar if you had told me about two members being charged with perjury within a 12-month period:

I never had any reason to think a routine traffic stop would lead to me being beat up by the very people sworn to the mantra "Maintiens le droit".

I didn't ever ponder whether visible minority recruits were subjected to racial slurs and profanity about their culture from their Depot instructors DURING SENSITIVITY TRAINING and then fired based on fabricated performance reviews after complaining of the racist treatment:

We didn't see regular news stories of officers being charged with criminal offences and certainly not pleading guilty to fraud:

A story of a senior Mountie forging documents to cover up the fact that his unit was breaching court orders and conducting illegal wiretap investigations was at best a plot for a bad made for tv movie on late night CBC...not an in-court admission:

[Whatever happened to this guy, by the way?]

Let's see...more savage prisoner beatings:

Charges for breaking into a house:

Charges for criminal harassment, extortion and fraud:

Then there's getting charged for murdering another police officer:

Then getting charged for murdering a wife:

Then there's not getting charged for what many Canadians consider murdering a guy at an airport...complete with "deliberate misrepresentations" under oath in order to justify the members' actions:

Then there's actually killing a guy in cells (although, admittedly, I have to go back a few years to catch that one and in fairness the conviction is only manslaughter):

And sadly...I could keep going...

I think I speak for plenty of Albertans and Canadians as a whole when I ask, "What has happened to the RCMP that I used to know?"

Now, you might be wondering why I write to a lowly (no disrespect intended) Alberta spokesperson rather than go much higher up into brass territory with my question. Well, the answer is simple in light of current Alberta events.

In the midst of the inquiry into the Mayerthorpe tragedy - an incident on which I write nothing out of respect for the fallen officers and their families - the news breaks of a man shot to death in Canmore while wielding a replica handgun:

Not surprisingly, public debate has whipped up over whether this was a "good shoot" now that we all know the officers were not in any actual danger from the fake gun. Of course, we are all sitting in our living rooms in front of computer and tv screens with the benefit of many comments thrown around about how the officers should not have fired are 100% unfair in my view.

That said, the story and the comments got me inspired to write this post...because I started thinking about how this would have played back when I was a teenager...back when the RCMP and its members were not mired in criminality and controversy on a daily basis.

There was trust. We trusted you. We would have assumed that it was a good shoot and would have approached any suggestion to the contrary with a great deal of skepticism. But with the items I have noted above, our confidence has been shattered. Utterly lost for many of us.

I want to trust the RCMP with my life. I really do. I want to return to a time when the uniform commanded respect because virtually every officer who wore it EARNED that respect every day in every way. Is the whole force bad? Of course not. Are there dozens way too many examples of those that are? I wish there wasn't...but the evidence speaks for itself.

Can I trust you with my life?

If you say 'yes' as I have suggested you would, then my follow up question is borrowed from the last word spoken by a dying Robert Dziekanski - "Why?"

Yours truly,

Michael Bates
Calgary Criminal Lawyer

Tuesday, December 07, 2010

The Sanctity of Assange

This is not a petition to nominate Julian Assange for sainthood...but it is a public plea to the Calgary Police Service and the Attorney General of Alberta:

Julian Assange is a person whose life is deserving of protection in the same manner and with the same force of the law as anyone else. In a province that so boldly pats itself on the back for its "tough on crime" stance, I urge you not to trivialize a nationally broadcast encouragement of murder.

You cannot be "tough on crime" against disadvantaged immigrants, homeless people, drug addicts and the like, and then totally change the standard when the person accused is a former campaign manager and political adviser to the Alberta-based Prime Minister. Alberta is precisely the jurisdiction that, in its relentless pursuit of criminal convictions for often the most minor of criminal conduct, has the "law and order" credibility to host a prosecution of Tom Flanagan for his public advocacy for the assassination of Mr. Assange.
As an aside I suggest, though, that because Mr. Flanagan is a former political adviser to the currently sitting Alberta-based Prime Minister that Alberta is absolutely not the jurisdiction whose public servants should be making the decision whether to prosecute. The reasonable apprehension of bias is impossible to get away from...regardless of what the final decision is.

I am a strong supporter of free speech and I have serious concerns that people, particularly university professors, not be unduly restricted in engaging in public debate on issues of public interest and importance out of fear of criminal prosecution. So I echo the comments of fellow University of Calgary alumnus and Calgary Herald contributor, Kris Kotarski:

"...if one has to draw the line somewhere, then incitement to murder is not a bad place to do so, especially when the person who is doing the inciting holds a position of power."

Might I also attempt to stop the Crown from disposing of this case solely upon a review of s. 464 of the Criminal Code and the much too easy to predict legal assessment that due to having publicly apologized for the comments Mr. Flanagan has demonstrated that he did not have the actual intent that anyone would kill Mr. Assange. I offer two pieces of advice:

1. Review in detail the Supreme Court of Canada decision in R. v. Hamilton, [2005] 2 S.C.R. 432 which clearly establishes that actual intent that Mr. Assange be murdered is not required. It is enough to establish that the encouragement to kill Mr. Assange was accompanied by an awareness of an unjustified risk that the offence counselled was in fact likely to be committed as a result of Mr. Flanagan's conduct.

The inescapable fact is that Professor Flanagan was called on a national Canadian news program to talk about Julian Assange and the Wikileaks story for precisely the fact that he has credentials, political connections, and therefore credibility for his opinions to be taken seriously by viewers. Otherwise, Michael Bates or Bill the homeless guy outside of the studio could be the guest...anyone can have an opinion on this issue.

In light of the seriousness with which the international community is reacting to the leaks of secret diplomatic documents and matters of international relations and foreign policies (including concerns that wars have started over these types of breaches of sensitive secrets) does it not create an unjustified risk that someone might take seriously the suggestion of a former Stephen Harper adviser that Mr. Assange be assassinated?

Which leads to the second point.

2. If the standard for a charge under s. 464 is not met because Mr. Flanagan's remarks are accepted as "glib" and made truly with such little care or thought for the fact that Julian Assange is actually a human being that could be killed, then how does one not proceed with a charge of criminal negligence under s. 219 of the Criminal Code which reads:

Every one is criminally negligent who (a) in doing anything...shows wanton or reckless disregard for the lives or safety of other persons.

Were Mr. Flanagan's comments not a marked departure from the standard of a reasonable person acting as a seasoned political commentator on a national news program talking about a guy who has been in hiding in part due to prior threats against his life?

In order to assist in the analysis of both of these potential charges let me suggest an exercise for the assigned prosecutor. Take Professor Flanagan's actual remarks verbatim, and where the name Julian Assange appears or where Assange is clearly the subject of the remarks, take out his name and replace it with any number of the following (you can think of your own examples too...and if you want to make it really fun, imagine the person making the statement is Julian Assange):

Prime Minister Stephen Harper
Beverly McLachlin, CJC
Premier Ed Stelmach
Alison Redford, Q.C.
Chief Rick Hanson
Tom Flanagan
Michael Bates
Any citizen...

My point I hope is obvious. If the determination is that there is no reasonable likelihood of conviction, or no public interest in pursuing charges against Mr. Flanagan, does that not send the message to the world that you are free to come to Alberta to broadcast your public suggestions that people be killed? Make sure you chuckle a bit when you say it and then say you are sorry for the broadcast the next day and all is well?

If Mr. Assange were to say the exact same thing about anyone on the list above are we really to believe he would face no charges for it? If the rule of law and equality before the law and the idea of a blindfolded Lady Justice are the guiding principles here, I truly hope that the decision is made with the above commentary in mind...because it is just too easy to ignore the personal interests of an "international rogue"...too easy to fail to consider the sanctity of Assange.

Michael Bates

Wednesday, November 17, 2010

What's the Penalty for "Distracted Lawmaking"?

November 17, 2010 the Calgary Herald runs a story about a 34 year old Albertan who attended at an Edmonton hospital emergency room at around midnight one Friday in September asking nurses for help because he was suicidal.

Approximately every hour for the next 12 hours the man came out of the room he was placed in to ask for a counsellor.

A full half day after seeking emergency treatment, his final request was for a pen and paper. Anyone paying attention might have guessed that it was to write his suicide note.

The young man then hung himself with the strap from his backpack attached to a lamp in the room where he spent his final moments...all alone.

The same story reports that the median wait time for an admitted patient to receive treatment at this hospital emergency room is 19 hours.

Against this backdrop, the exceedingly absurd Alberta government is falling all over itself to congratulate itself for the province's monumental new "Distracted Driving" legislation. Official propaganda repeatedly refers to this new law as "the most comprehensive legislation in Canada."

The Bill is 5 pages for the love of God...and that includes blank margins several inches wide on both sides of the text and page 5 that has one sentence "This Act comes into force on Proclamation." A decent copy-editor could fit it all on the back of a cereal box.

In spite of such unimpressive stature, the Calgary MLA apparently the father of this law is quoted as being "ecstatic" and "proud to have been a part of" the "almost three years" that it has taken for this massive majority government "to do this".

Since I am not behind the wheel of my car, I think I will text-speak my visceral response - WTF?

As a criminal defence lawyer I am, of course, well aware of the fact that it was already an offence under the Traffic Safety Act to drive "without due care and attention" or "without reasonable consideration for persons using the highway" - otherwise known as "careless driving". I am personally aware of instances where drivers were talking or texting on their cell-phones and were charged with this offence. I hardly think it was a rare scenario.

The old offence of "careless driving" is commonly understood to be the most serious provincial driving offence. It carries a specified penalty of $402.00 and 6 demerit points against your license. So, one could be forgiven for expecting even greater sanction from the new iconic "Distracted Driving" offence that our Transportation Minister described as a "bold approach" and prompted him to exclaim, "This is a great day for traffic safety in our province."

Alas, wading through all 5 of the new sections (about 1.67 sections per year by my math) of this earth-shattering legislative epic and the associated press releases, one will discover that the proposed penalty for this new quasi-crime is $172.00 and a total of zero license demerits.

I'm sorry...but that is considerably less than my monthly cell-phone bill and a fraction of what today's smart-phones cost to buy.

As the parking police and photo-radar fellas can attest to, well-to-do Albertans pay millions of dollars a year in fines for infractions they commit with staggering prolificity. Under the old offence, if caught texting or doing my nails or shaving or reading a book or whatever while driving and nailed 3 times for careless driving I get an automatic license suspension. Under the new offence, 3 distracted driving convictions and I pay a bit more than one careless...and I have no demerits. If I have enough cash, I can literally commit the offence every day, mail in a cheque and never change my driving habits.

A bold approach increased indirect taxation maybe...

So while I read with awe the giddy remarks of our elected officials blowing their own horns loudly enough to commit the traffic offence commonly known as "stunting" and I bathe myself in the warm pool of safety that has been bequeathed to me as a member of the driving public I cannot help but wonder:

If I am hit in a crosswalk by a "distracted driver" will he pay his fine and be back behind the wheel within the 19 hours I may wait to receive emergency medical treatment?

Are Alberta's MLA's so inept that they truly revel in devoting nearly 3 years of work to generate a few pages of redundant traffic laws?

Or is it that in the overzealous flourish surrounding this legislative milestone the government is looking to create a little distraction of its own?

The man swinging from the lamp might have had an opinion on that...if anyone had bothered to notice him. Might I suggest a "bold approach" on the Health portfolio before we get more new ways for traffic cops to meet their monthly quotas?

Just one Alberta taxpayer's opinion.

Michael Bates

Wednesday, September 29, 2010

Penny for Your Thoughts? You get what you pay for...

There are troubling comments in the media in our province today regarding the effect of the Ontario Superior Court decision striking down the prostitution related provisions of the Criminal Code...and I hate to say it, but the most troubling comes from a colleague in the Calgary criminal defence bar.

David Andrews is quoted by the CBC as saying, "There is currently no law in Canada as a result of this, that will be enforced around prostitution."

With the greatest of respect, this is an extremely careless and incorrect statement.

First of all, the judgment itself does not in any way effect prostitution offences as they relate to the involvement of those prostitution laws will most certainly continue to be enforced.

Second, the judgment itself does not take effect at all for 30 days, and as such, even in Ontario - the only province where the judgment is actually legally binding in any way - even the impugned prostitution laws are still in force.

Third, while the lower or provincial court in Ontario is bound by the judgment, other Superior Court judges are not. So, a new case running the same arguments in front of a different judge of that court could result in a dismissal of the Charter arguments and convictions for the Criminal Code offences, notwithstanding the decision of Justice Himel.

Fourth, as evidenced in the same CBC story, the Calgary Police Service have publicly stated that it is business as usual as far as they are concerned. So, rightly or wrongly, the law in Calgary is going to be enforced by the same manner as it was prior to the Ontario judgment. As for a suggestion that the Crown will just not proceed with any such charges laid by the police, the Alberta Attorney General's office has already made this public statement:

"David Dear, a spokesman for Alberta Justice, said the court decision will have no impact in Alberta.

"The ruling is binding only on lower courts in Ontario, and that means the Criminal Code's provisions around prostitution remain the law in the rest of Canada," he said."

Fifth, there are provincial laws and municipal ordinances relating to prostitution which impose license fees and regulations and allow for vehicle seizures and other such consequences...none of which should be ignored as a result of the Ontario ruling.

If anyone out there is actually reading this post, I would advise that the next 30 days will tell us more about what will actually become of prostitution law in Canada, but for now, follow the law that is on the books as it was written and enforced prior to Justice Himel's decision.

Having criticized the defence lawyer side of the debate, I must say that the Alberta government approach to the issue is similarly difficult to comprehend. While completely accurate to point out that it is an Ontario ruling that by stare decisis is not binding on Alberta courts, it is almost laughable to suggest that the decision will have "no impact" in Alberta.

With all due respect, that is not something that is within Alberta's jurisdiction to decide.

The reality is that the Attorney General for Canada is a party to the proceeding in Ontario. The Criminal Code provisions in issue are federal criminal law, and not within the control of the provinces. If the federal government does not appeal Justice Himel's ruling, then it must adhere to it. No matter how badly Alberta wants to prosecute prostitution offences, if Parliament accepts defeat on this case, Alberta will have no law to enforce.

Notwithstanding the strict legal principles, one might also think that an Attorney General's office would put some actual thought and contemplation of the reasoning of Justice Himel behind its ultimate statement of policy on what effect the decision will have in her province.

I mean, as Justice Himel states at paragraph 84, the 133 page decision is the end product of a trial that included over 25,000 pages of evidence in 88 volumes presented over the course of 2 ½ years. Witnesses included current and former prostitutes, an advocate for prostitutes’ rights, a politician, a journalist, numerous social science experts who have researched prostitution in Canada and internationally, police officers, an Assistant Crown Attorney, a social worker, advocates concerned about the negative effects of prostitution, experts in research methodology and a lawyer and researcher in the Department of Justice. The witness evidence was accompanied by a large volume of studies, reports, newspaper articles, legislation, Hansard and many other documents.

In addition, Justice Himel directly received evidence from RCMP officers regarding project KARE – an Alberta programme established in 2003 and aimed at solving over 30 missing persons and 41 homicide cases arising from “high risk lifestyles” including drugs and prostitution. Since its inception, project KARE has solved only 2 of those cases and 5 more prostitutes have been killed [Para. 92 and 124].

Justice Himel also thoroughly analyzed the 1994 Department of Justice commissioned study called the Calgary / Winnipeg Study which drew several conclusions that the criminalization of communication for the purpose of prostitution potentially increased prostitutes’ level of risk by limiting their ability to screen potential customers, and pushing the practice underground [Para. 157 to 159].

Ultimately, the finding that the sections are unconstitutional is not some "technicality" setting a "john" free from criminal sanction, but is a finding that the lives of the prostitutes (the unspoken for victims of project KARE) are being imperiled unnecessarily by the current regime of criminal legislation surrounding prostitution in Canada. The almost complete lack of success of project KARE would tend to mesh quite well with Justice Himel's findings.

So, forgive me if I am just a bit disappointed that the official statement from Alberta's Justice Minister isn't something a little more erudite and compassionate than, the decision will have "no impact" in Alberta.

Frankly, I rather suspect that I am one of the few commentators on this topic that can say I have actually read Justice Himel's decision. In my view, the entire case, including the efforts of all parties, their respective lawyers, and Justice Himel and her staff is disrespected by official statements which purport to, in 10 words or less, state what the decision does or does not represent.

Personally, I don't take any side on the issue and am quite content to wait and see what unfolds over the next 30 days. Funny, I think I just wrote the statement that should have been included in everyone's official press release when asked to predict the consequences of the Ontario decision declaring criminal prostitution laws to be unconstitutional.

Just my two cents worth...

Michael Bates
Calgary Criminal Lawyers' Weekly

Thursday, September 23, 2010

Long Gun Registry Vote

I've decided to try to chime in on this issue in the most simple way asking this fundamental question...what is the purpose of the long-gun registry?

If the purpose is to eliminate gun crime...then all right thinking individuals can agree it must be scrapped, for it can never achieve this purpose. With or without a registry, we will always have gun crime.

If the purpose is to have a comprehensive ability of police to track all firearms in Canada, then again, scrap it, for it can never achieve this purpose. There will never be complete compliance with registration.

If the purpose is to criminalize otherwise lawful and safe gun owners, then in my opinion it should be scrapped because that is a stupid purpose. (For what its worth, I don't think this is really the purpose).

If the purpose is to make it easier for police to find suspects of gun crime so that they can be apprehended and charged, well, I concede that sometimes it will work for further analysis on this point is required.

If the purpose is to keep police officers safe by telling them what guns are waiting on the other side of a door, then in my opinion it should be scrapped because this is a fantasy purpose that is as unattainable as eliminating gun crime. Registered guns can be stolen, given to someone else, stored anywhere (i.e. not at the address that the registry has for the owner) and one would think that police safety is far more likely at risk from illegal guns anyway.

If the purpose is an attempt to gain political points in the wake of a terrible unpreventable mass murder of promising young college students by making the public go back into complacency regarding the true issues of violence against women, mental illness etc. because you can say you implemented a major new level of government regulation of firearms and that will make everybody safe again (for what its worth, I think this was the real purpose) then this was a corrupted purpose from the beginning and the registry should fall due to its colossal weight of waste, its crumbling foundation and...gravity.

So, what about that "one tool in the toolbox" that helps police solve gun crime? I agree it does do that on occasion. The question seems to be obvious the cost of maintaining the registry giving us good return on investment in terms of the cases that it helps to solve?

I have to say, for as much as I have disagreed with and criticized Chief Rick Hanson and Minister Alison Redford on various justice issues, I think that the shared view that they have presented is 100% correct on this one:

"We want to make sure communities are safe, but we think that it is a much better use of resources to put the money that has been put toward the long-gun registry into policing and other forms of community safety initiatives," Redford told CBC News.

Read more:

Well said, Minister Redford.

Michael Bates
Calgary Criminal Lawyers' Weekly