Calgary's Secret Service

No, I'm not suggesting that Mayor Bronconnier has managed to put together a detail of sunglasses-clad elite bodyguards whose black suits and earpieces serve as warning to all comers of the veracity with which they will protect their mark (although...that would hardly surprise me...).

What I am talking about is the Calgary Police Service, and it's refusal to identify the members of an alarmingly prolific and growing group of "peace officers" in its employ that are facing criminal allegations of serious assaults on citizens who have apparently foolishly believed they would be safe when being pulled over to the side of the road for a traffic stop.

http://www.cbc.ca/canada/calgary/story/2010/01/13/calgary-police-charges-taser-traffic-stops.html#socialcomments

http://www.cbc.ca/canada/calgary/story/2010/01/21/calgary-police-charges-assault-taxi.html


Now, I am a criminal lawyer, so do not think for a minute that I do not believe these officers to be innocent until proven guilty. And I am not blind to the fact that police officers are sworn to engage in situations of potential violence that other citizens have the luxury to turn and run from.

The question begging, of course, is where an independent Crown prosecutor has determined that there is a reasonable likelihood of convicting a police officer for an assault during the execution of his or her duty (fully accounting for the specific legal protections that exist to insulate police officers from criminal charges when they use force on the job) should they be afforded anonymity by the very same police force that figuratively wets its pants while running to issue press releases and conduct television news conferences to expose the details of entire investigations against accused people that they dislike?

Review the press release of the most recent charge against one of their own:

http://newsroom.calgary.ca/pr/calgary/officer-charged-152143.aspx?ncid=17193

The entire release is a few lines long and describes the unnamed officer having an "interaction" with a female passenger of a taxi which was investigated and a determination made that a charge of assault was warranted.


Now look at the press release from two days earlier involving a set of drug charges laid against two regular citizens:

http://newsroom.calgary.ca/pr/calgary/drug-charges-laid-following-investigation-152089.aspx?ncid=17193

This release is Pulitzer-Prize worthy and in addition to naming the individuals charged it lists

1. The location of the accused people's homes (within one city block)
2. The amount of drugs found (to the tenth of a gram)
3. The suggested street value of the drugs
4. Other items found (including weapons as astonishing as a six-inch folding knife)
5. The birthplaces of the accused people
6. The unrelated warrants connected to the accused people
7. Bare assertions that the accused people are "known to police"
8. Generalized statements regarding the immigration status of the accused people
9. Confirmation that the accused people are in custody and awaiting bail hearings.


Putting aside that no Crown prosecutor has pre-screened this latter case to determine that there is a reasonable likelihood of conviction, the anonymous police officer and the anything but anonymous non-cops enjoy the same presumption of innocence. If justice is to be blindly equal I simply cannot reconcile the complete absence of respect for privacy shown to the regular citizen with the undeserved complete privacy afforded to the police officer.

I would love to hear Chief Hanson try to explain firstly why his officers seem to have an incomprehensible inability to conduct traffic stops without escalating that interaction into one of violence and secondly why they get to keep it private when charges are laid.

Since I'm making a wish list here, I would also love to hear Hanson's explanation of how there always ends up being a Herald reporter with a camera outside the back door of the Arrest Processing Unit when a person turns themself in on a serious criminal charge or why S/Sgt. Gord Eriksson seems to be so adept at hitting the airwaves to identify people as serious gangsters and describe the case against them to the press before they can get to see a Justice of the Peace and ask for a publication ban which they are legally entitled to.

I'm not asking for people to unfairly crucify a police officer that ends up on the wrong side of the criminal courtroom...but is it too much to ask that they be treated equally with the rest of us mere mortals?

Public confidence demands a disbanding of Calgary's Secret Service.


Michael Bates
Calgary Criminal Defence Lawyer

Facts Don't Fit Government PR Agenda?

I read with interest and bewilderment the following comment from Alberta Justice Minister Alison Redford in the government's latest self-congratulatory press conference regarding Alberta's civil forfeiture legislation:

The government was met with skepticism last year when the law was introduced, but the Supreme Court of Canada has reviewed similar legislation in Ontario and ruled it is not unconstitutional, Redford said.

"The people who were skeptical last year as to whether or not we'd be able to have our legislation upheld were proven wrong. The legislation is constitutional. We haven't had any constitutional challenges here," she said.

http://www.edmontonjournal.com/Alberta+targets+dial+dopers/2272372/story.html


Well, let's see, the Minister must be referring to the SCC decision called Chatterjee v. Ontario (Attorney General) http://csc.lexum.umontreal.ca/en/2009/2009scc19/2009scc19.html

It is true that the Chatterjee decision did say that the provinces were competent to pass such legislation based on the constitutional division of law making powers between the federal and provincial governments, however, that is hardly the complete story.

Specifically, the SCC only ruled upon the division of powers issue and then only with respect to the proceeds of crime sections of the Ontario legislation. The sections pertaining to "instruments of crime" (i.e. cars being used to facilitate crime rather than cars having been purchased with ill-gotten gains) were expressly not part of the SCC decision:

The application judge declined to permit the appellant to challenge Part III of the CRA dealing with instruments of crime because, although some of the seized items were alleged to be instruments of crime, Mr. Chatterjee disclaimed ownership of them. Loukidelis J. also rejected a challenge under the Canadian Charter of Rights and Freedoms. Neither issue is pursued in this Court.

So I boldly say that us skeptics have not yet been proven wrong.

Whether the provinces have legislative authority to pass laws pertaining to instruments of crime has not been decided by the SCC (although, based on the reasoning from Chatterjee, the division of powers issue may well be decided in the same manner).

Whether the particular procedures and substantive forfeiture mechanisms for either proceeds or instruments are Charter compliant (the Charter being part of the Constitution) has also not been decided by the SCC and Ontario's legislation is far from identical to Alberta's in this regard.

More troubling for me, however, is the assertion that there have been no constitutional challenges to the Alberta legislation.

I have personally participated in the filing of two such constitutional challenges, one of which is set for hearing in an actual courtroom before an actual judge in the Court of Queen's Bench in January, 2010. This hearing was scheduled by court order on October 5, 2009...in excess of 50 days prior to Minister Redford's planned and scripted statement that no such challenges exist.

In fairness to the Minister, the earlier challenge that I filed was withdrawn by my client after Ms. Redford decided to release his SUV back to him. Apparently, notwithstanding that the government previously had the SUV in its possession pursuant other federal seizure legislation, Minister Redford didn't realize that the vehicle she swooped down upon was not able to be driven and in such a state of disrepair that it was worth tens of thousands of dollars less than the residual value owed to the lessor (that's fancy law talk for the government devoted resources to use their special legislation to seize worthless property only to turn around and give it back since they had no possible way to benefit from having seized it).

I wonder how many of the 61 vehicles Ms. Redford brags about seizing met the same fate as in my previous case? I wonder how much of the $11 million in value has actually simply been returned to the lessor or other beneficial property owner. I suppose I would ask the Minister, but given that my constitutional challeneges apprently don't exist, I don't think that I would place much reliance on the government's official response.

I wonder if we should question the veracity of the government's pervasive assertion that they are only targeting gang crime with these civil forfeitures? They wouldn't just say that to continue to get public support for yet more law enforcement power over the citizenry would they?

A current elderly client fighting the constitutionality of Alberta's Attorney General taking away her condo would beg to differ.

Laziness and Greed Trump Safety in Calgary Parking Lots

I have been absent from writing this page for a long time...criminal law is booming in the recession I guess. But even as I prepare to pick a jury for a murder trial tomorrow, and feverishly work to complete a factum for the Court of Appeal, I simply cannot resist commenting on this headline:

"Drivers Ticketed for Parking in Wrong Direction"

http://www.cbc.ca/canada/calgary/story/2009/10/07/calgary-parking-ticket-lots-back-in.html

At first I thought, people parking on the opposite side of a street...so they parked illegally and got a ticket...how is this a news story?

When I realized that the City cash grab otherwise known as the Park Plus system in the now "pay and ride" lots for Calgary Transit was the source of this, I just had to chime in.

When I took a special driver safety course at age 16 (so that I could get more affordable insurance on my used Ford Tempo), it was a specific recommendation to back into parking stalls instead of driving in forward because of a significant safety benefit.

When you use "reverse parking" you actually drive past the stall and you can visually see any potential hazard before you start backing up. Then, you back into an area that is "static"...nothing is driving in or out (subject to pedestrians that you must always be watching for). When you go to leave the stall and enter back into the "dynamic" lane of travel, you are looking forward, not over your shoulder or through mirrors and the likelihood of you causing an accident drops significantly.

But don't take my word for it:

The U.K. Health and Safety Executive:

Wherever possible, parking areas should be designed so that only simple manoeuvres are needed for vehicles to park and leave. Always try to avoid the need for reversing[2], and also think about how articulated and other large vehicles will be able to use the space safely.

If a driver needs to move the load area of their vehicle close to a structure, reversing will often be unavoidable. However, parking areas can often be arranged in drive-through patterns. If you can't have drive-through parking, arrangements should encourage reverse parking that: reduces the number of vehicles reversing out into a flow of traffic; improves visibility for departing vehicles.

Arranging parking bays at an angle backwards to the flow of traffic
is a good way of encouraging reverse parking.

http://www.hse.gov.uk/workplacetransport/parking.htm


The Alberta Government Driver's Handbook:

Other hints for backing:
• If you have to back out of a driveway, back your vehicle into the nearest traffic lane and then go forward. Do not back into a second traffic lane.
Note: It is usually safer to back into the driveway so that you can drive forward when you leave.

http://www.transportation.alberta.ca/Content/docType45/Production/basichandbook2009.pdf


The City of Salt Lake City Utah has imposed reverse parking (citing Seattle Washington and Tuscon Arizona doing same and significantly reducing parking-related accidents) stating that, "It boils down to safety and when you want to have your convenience..."

http://www.slcgov.com/transportation/Parking/RAP.htm


And the list can simply go on and on...

Unlike Salt Lake City, I guess in Calgary it boils down to money and when city council wants convenience is at the point of separating its citizens from their money.

I mean face it. The people in the story who were ticketed with $40.00 citations actually paid for the parking service and their only fault was making it slightly more difficult for the City to check that they had paid. And really, the City's response simply is, we want to use our little camera cars and not have the driver to get out to look at a license plate so we don't care if it's safer to back into the stall, we pick efficient money collection over safety.

But wait...how do they ticket the car that is facing the wrong way?...

Uhh, they must use a different camera right? One that reaches up over the car to get the plate number...no wait, if they had that then it wouldn't matter if the car was parked the more safe way.

Uhh, so the parking dude rolls down his window (I sure hope he doesn't have to crank it by hand) and then shoots some kind of special ticket dart at the car...all from the comfortable groove of the driver's seat right?...no wait, that still doesn't get him a look at the plate.

Could it be that the driver gets out, walks to the car, and enters the fully parking fee paid plate number into his little computer? And for causing such inconvenience (never mind the safer parking job) the diligent citizen gets to pay $43 to park because he or she chooses the safer parking method?

You've got to be kidding.

Anyway, I guess I don't need to worry about it...I reverse park in a downtown core parking lot...where such practice is allowed.

I'd re-think this one City...

"...nameless, unreasoning, unjustified terror..."

Selling ice to an Eskimo is supposedly some kind of measure of the prowess of an advocate. Looked at one way, convincing someone they want to part with something of value in exchange for something they clearly don't need is an impressive display of the art of persuasion and of the ability to dispatch logic and reason with a carefully calculated series of suggestion.

From a different set of eyes, though, obfuscating reality for gain in exchange for worthless fodder is at best immoral and at worst completely fraudulent.

And so I look, wide-eyed, at the perpetual media barrage through which the State is selling safety to Albertans in exchange for civil liberties and democratic freedoms. Alberta's Minister of Justice and Solicitor General and our increasingly politicised Chiefs of Police are behaving either as impressive advocates or immoral fraudsters in the ongoing plight to better position the boots of State power on the backs of the necks of the citizenry.

Consider the following news item on June 29th with the headline "Helping to drive off gangs":

http://www.calgaryherald.com/news/Helping+drive+gangs/1735216/story.html

An amendment to the provincial Traffic Safety Act gives police the power to order safety inspections of armoured vehicles, allowing them to immediately seize those driven by gangs. The move is a positive, pre-emptive strike against organized crime, even though it offers little practical use to local police. The vehicles have never been spotted here, but they are the luxury car of choice for gangsters in B. C.

Now, in case you missed it, I'll separate the wheat from the chaff for you:

"The vehicles have never been spotted here..."


This article was a follow up to an earlier June 25th headline in the Calgary Herald that read:

"Alberta challenges Ottawa to ban "killing machines"

http://www.calgaryherald.com/news/Alberta+challenges+Ottawa+killing+machines/1730770/story.html

Redford says they pose a safety threat to other drivers.

"Anyone of us can be stopped at a red light next to one of these vehicles, one of these moving targets, and not even know it," she said.

"After-market modifications also generally add significant weight to the vehicle and that impacts traffic safety. If that weight is not offset by an enhanced engine, suspension and brakes, the vehicle is unsafe and poses a serious risk to other drivers on the roads. We need to get these vehicles, which are weapons in and of themselves, off the streets."

...

Calgary police have not seen any armoured vehicles driven by gangsters in the city--but they do regularly search cars with hidden compartments for drugs and loaded guns.

"We know they're there, we just haven't come across any of them," said police Chief Rick Hanson.

Okay, Chief, I guess we'll have to take your word for it. Knowledge is, after all, a tricky high-level philosophical quagmire. As we are repeatedly told, the police know who the gang members are, though they've never successfully charged any person with being one. And they know who committed most of the so-called gang murders, they just don't have that pesky stuff called evidence sufficient to actually charge anyone. Minister Redford must be right we need to take these vehicles that no one has ever seen on our streets off the streets!!!! Now!!!!

I'm sorry, but I think I'm totally with Kent Hehr, MLA on this one:

Alberta Liberal justice critic Kent Hehr says the announcement is only "an attempt to appear tough on crime."

"I put forward a bill to make our streets safer. The minister killed that bill, and now she's playing Mad Max chasing imaginary criminals in non-existent armoured cars," said Hehr.

Instead, the government should be devoting resources to "more immediate criminal threats."

"There is no indication that this is a necessary measure right now. This is not a real problem in Calgary, or any other part of Alberta. If I were cynical, I might conclude that this is a measure designed to feed off public fears."

This article itself was a follow up from a previous June 24th article in the Calgary Herald that ran under the following headline:

"Alberta to ban gangster vehicles"

http://www.calgaryherald.com/news/Alberta+gangster+vehicles/1727039/story.html

Except for some aboriginals and the traditional bikers, most members don't wear colours or announce themselves in any way. The gang leader could be the kid across the street or the young businessman in the next apartment.

Redford says some gangsters are moving to lavish houses in rural areas. Once established, they use younger siblings and recruits to infiltrate local schools

What?!?!? The kid next door could be a gang leader?...I could be at a stop-light beside a gangster in a killing machine and not even know it?...And he's on his way to a mixer at the kindergarten down the block? THANK GOD WE'VE BEEN SPARED THE MAYHEM...of the thing that was never here in the first place. Thank you Alberta government, I thought I was safe until you told me I wasn't safe and then passed a law that made me safe again...PHEW...that was close.

Now, look, I know that Alberta is land-locked and our climate a bit different than tropical oceans, but how can we possibly not also have a law that bans Great White Sharks from our glacial lakes?!?!?!?! I mean, I've seen the Discovery Channel and in places off the coast of Australia, people are routinely dying from Great White attacks.

I mean, I hate to even think it, but if you tell me to I will, but is there a plot to take out the iconic Calgary Tower with a West Jet Airbus?:

"Alberta police chiefs warn of terrorism following in the wake of gangs"

http://www.calgaryherald.com/news/Alberta+police+chiefs+warn+terrorism+following+wake+gangs/1735045/story.html


AAAAAAAAAAAAAAAAAAAHHHHHHHHHHHHHHHHHH!!!!

Chicken Little thought the sky falling was bad...in Alberta, sasquatch, boogeymen, and the Loch Ness Monster are actually taking sky by the handful, loading it into RPG's and shooting it at us from their highly fortified paramilitary luxury cars!


Okay, the facetiousness is getting a bit thick.

So, I'll go back to the title of this post. It is part of a quote that is incredibly well known...but for a different part of the quote. The whole expanded quote is as follows:

This is pre-eminently the time to speak the truth, the whole truth, frankly and boldly. Nor need we shrink from honestly facing conditions in our country today. This great nation will endure as it has endured, will revive and will prosper.

So first of all let me assert my firm belief that the only thing we have to fear. . .is fear itself. . . nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.

Inaugural Address of Franklin Delano Roosevelt, March 4th, 1933.

On this anniversary of Canada's birth, these words of an American President are apposite. The USA is in a transition from an era of legislation outlawing habeas corpus for persons detained without charges, of legislation permitting State monitoring of private conversations, of legal memoranda torturing language to allow the Executive branch of government to deny the use of torture, and the list goes on.

The current American President had this to say on the topic in his Inaugural Address:

As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake. And so to all other peoples and governments who are watching today, from the grandest capitals to the small village where my father was born: Know that America is a friend of each nation and every man, woman and child who seeks a future of peace and dignity, and that we are ready to lead once more.

Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with sturdy alliances and enduring convictions. They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint.

In the words of Edmonton Police Chief Mike Boyd:

"Often trends that we see in other parts of the world often emerge here in Canada, and we need to get out in front of these things..."

Let's cut the rhetoric, deal with real problems, end the fear-mongering and avoid giving up our rights and freedoms to the State who promises to benevolently protect us from the very fears they have conjured. Let us too reject as false the choice between our safety and our ideals.

The justice system is not broken just because bad things happen to good people. Reasonable bail is a Constitutional right and not a plague in our society. A patient should have confidentiality with his doctor...even if he has a puncture wound. Private property should not be seized by the government based on a belief that it might be used for crime.

This is pre-eminently the time to speak the truth, the whole truth, frankly and boldly. There are undoubtedly gangs operating in this province. There is undoubtedly gun crime occurring from time to time. There are unquestionably victims of crime who don't deserve what they get.

But, Alberta is undeniably a safe place to live and we need not accept every politician's sounding of alarms as genuine and we need not accept police officers being given more power to curtail liberties as a positive outcome. The only thing we have to fear is fear itself...and just how much freedom a government can take from its citizens when they are afraid.

Blame It On Bail - And Those Who Dare To Grant It

By now, most citizens of Calgary will have heard of the arrest made and 3 counts of murder laid in the investigation into the triple homicide that occurred at a restaurant in Calgary on January 1, 2009.

Furthermore, most will have been advised by the local media, without any legitimate context, that the accused killer was "released on bail" mere days before the shootings after having been charged with a number of drug and weapons offences on Dec. 22, 2008.

http://www.cbc.ca/canada/calgary/story/2009/06/09/calgary-charges-murder-new-years.html


Of course, none of us know the facts of those arrests, or how strongly or tenuously linked the accused person was. Nor do we know his past criminal history or lack thereof, his employment record, ties to the community, education...we know nothing.

The obvious suggestion that the media are forcing upon the public is that this tragic incident on January 1, 2009, in which an innocent bystander was killed, would never have happened if only the Justice of the Peace presiding over the accused's earlier bail hearing had detained him...which he obviously should have done...just look at the result.

It did not take long for the viewers of the above link to start making not only the connection but absurd and inappropriate accusations as well. Posters of commentary (many under anonymous user names) following the CBC story said things like:

"If you know a lawyer, or a judge, or a justice of the peace who is a lawyer, it is time to OSTRACIZE them! These people are the CAUSE of the problem..."

"Unfortunately the person who granted him bail the first time wasn't caught in the crossfire..."

"I believe judges who grant bails should be held liable to civil charges from victims' families. If judges were held accountable there would likely be a significant reduction in repeat crimes such as this: (1) fewer bails would be granted to violent offenders at high risk to reoffend, (2) "idiotic judges" liberal with granting bails - successfully sued by victims' families - would soon be out of business [profession] ... a win / win situation for all Cdns and for the justice system."

"Why do we continue to grant bail on ANY criminal charge?"

"Justice of the peace J.J. Ogle is every bit as culpable as this guy. Sadly most judges are pinheads whose sympathies lie with the criminals."


The pen truly is mightier than the sword, I suppose, especially when a target like a J.P. or Judge cannot ethically respond to the criticisms and the critics are cloaked in cyber anonymity in any event. I am sure CBC will completely disavow any responsibility for the things that people have posted, but they are the ones that inexplicably reported the name of the bail judge to personalize the attacks coming from the viewership (I challenge any reporter to explain why the story could not be properly told without a name).

So, even though J.J. Ogle heard a bail application and had likely a relatively extensive explanation of the Crown's evidence tying the accused to the initial arrest (or, the Crown actually consented to the accused's release), we are all supposed to immediately conclude that for some corrupt purpose he let loose a certain killer and knowingly placed all citizens lives at risk, and was fully able to see in his crystal ball what would transpire days later but did nothing to stop it. This all presupposes, of course, that the person accused of the triple-murder is actually guilty of those killings as well as the offences he was earlier accused of.


I strongly support freedom of expression, so I support a citizen's right to criticize me as a defence lawyer, or a judge, or "the system" as a whole, but that right to criticize comes with the responsibility to hear a response.

To me, every one of the above-noted comments shows complete and utter ignorance for the principles of fundamental justice upon which our criminal justice system is built. These members of the public would see us eliminate the independence of the judiciary, the presumption of innocence, and the right not to be denied bail without just cause all in one fell swoop. All of these things would surely mean that no citizen of Calgary would ever be wrongly harmed again right?

The complete foolishness that crime will cease if the "revolving door" of bail is stopped is unfortunately indicative of the level of intellectual ability of many voting taxpayers and as such, the political points to be made by speaking loudly and often against the bail system are many.

At least I must give credit to Alberta Justice Minister Alison Redford that she is not jumping on a bandwagon over these latest media shenanigans...bail reform has been a long-time agenda for her. Further, her comments relative to the media attempt to make the whole story a blame game to point fingers at J.P's and Judges and defence lawyers were not personal and remained on her message that she thinks the "bail tests" need to be changed...not the people applying them.

I respectfully disagree Minister Redford, but thank you for what I found to be a very appropriate refusal to make comments that would further incite ignorant citizens to say that J.J. Ogle was responsible for three murders or to lament at the fact that he was not himself "caught in the crossfire".

I am drawn to quote from a speech that was given by Theodore Roosevelt in Paris in 1910:

It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes short again and again, who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause, who at best knows achievement and who at the worst if he fails at least fails while daring greatly so that his place shall never be with those cold and timid souls who know neither victory nor defeat.

No member of the criminal justice system has an easy job to do, and that includes prosecutors and police. No human being enjoys learning that a person has been killed, especially one who was apparently completely an innocent victim. More to the point, any person who learns they had something to do with a case which ultimately resulted in a death will question whether anything they did contributed to the outcome.

For judges, at times, the second-guessing of their decisons must become near-paralyzing.

So to all the critics, the arm-chair quarterbacks who seem to have it all figured out at all times, you are not "actually in the arena" so perhaps you could show a bit of respect to those of us who are. Blaming the bail system or the judicial officers who oversee it is no more proper than blaming the police for not being on scene before the crime was committed.

And to the judicial officers...don't be fooled by media hype...don't be pressured by spin, conjecture and 20/20 hindsight in a particularly tragic case. Trust the centuries of common law...apply the legal tests for judicial interim release...detain when necessary and release otherwise. Use your judgment and skill and experience with the presumption of innocence as your guide. You will never achieve perfection...but you will continue to bring honour and integrity to your offices..."strive valiantly" and "dare greatly" and justice will be done so far as justice can ever be done by any human system of law.

No matter what the critics might say.

Acknowledge Constable Zeh's "Good Turn"

"There is as much greatness of mind in acknowledging a good turn, as in doing it."

Seneca (c. 4 BC - AD 65)


Some might say this quote means that us armchair quarterbacks think we deserve some type of credit for the heroic deeds of others if we simply say "nice work". Personally, I think it tells us how important it is to say "thank you" when a police officer does a truly heroic thing...that no one would blame him if he hadn't stepped up to do it because of the sheer danger involved.

There is no shortage of criticism and blame to go around when something goes bad in an interaction between police and members of the public...and the mainstream media will ensure that every possible inflammatory headline they can imagine will be plastered about. Obviously, I have been willing to write my critical views on such topics as well.

So, it is with the greatest sincerity that I invite all members of the criminal justice system in Calgary to shake the hand of Constable Zeh when you see him...for this father of two jumped into the Elbow River while off-duty almost two years ago and freed a trapped kayaker not once but twice before pulling her to safety...and now he will receive a Governor General's Medal of Bravery:

http://www.calgaryherald.com/news/Calgary+police+constable+receive+Medal+Bravery+rescuing+kayaker/1395350/story.html


These stories are all too often forgotten when we engage in debate of police misconduct or when, as defence lawyers, we spend much of our days challenging the testimony of officers on the witness stand.

I am honored to know that Constable Zeh is one of the many CPS officers working to keep our city safe and I hope that my colleagues do take the opportunity to acknowledge his bravery if they cross his path in the midst of the daily grind.

Thank you Constable Zeh.

STOP!!! Person reasonably likely to do something illegal and reasonably likely to be intending to acquire property or hurt someone!!!

Some may say that STOP!!! THIEF!!! rolls off of your tongue better, but catching bad guys is a lot of work, so I can understand why Alberta seems more interested in setting its sights on taking property from citizens for things they might be thinking about doing instead of what they have been proven to have done.

http://www.qp.gov.ab.ca/documents/fall/CH41_08.CFM


Dilemma...

Punishing people = fun.
Prosecuting people according to the principles of fundamental justice and the rule of law = hard.
Proving guilt in the face of presumed innocence also = hard.
Province making criminal law = not allowed under Constitution.


Solution...

Dispose of the presumption of innocence.
Never mind prosecutions...that way proof of guilt never comes up.
Go straight to punishing people which as per above = fun.
Avoid Constitutional roadblock by punishing for crimes which might happen in the future...Federal criminal law only deals with actual crimes that have actually happened.


But wait...some people will think that this type of action is illegal. Some judges even might be inclined to assess these government actions for compliance with the supreme law of Canada. That kind of intereference would be very disruptive to our plans to spend the money from property already seized...time for a good stern talking-to from the Attorney General!

http://calsun.canoe.ca/News/Alberta/2009/03/02/8595421.html

Alberta Justice Minister Alison Redford suggests lawmakers should start talking with justice officials on what should be allowed when it comes to seizing property from criminals.

“One of the things that we as legislators need to do is have real conversations with judges and with the courts about what society expects to be the standard and the consequences for committing criminal acts,” said Redford.

“In the last three or four years legislators have been absent from that discussion.”

Okay...just so we are all straight here...in contemplation of possible Charter challenges to this baffling legislation, the Justice Minister and Attorney General thought it made sense to get on the public record in the media and explain that this legislation is, in essence, her statement to judges and the courts about what the society she represents expects to be the consequences of committing criminal acts.

Well, rest assured Ms. Redford that your above quote will be front and centre in any legal brief right about at the paragraph where the pith and substance of your claimed victim compensation legislation is being discussed.

This legislation is not about compensating victims of crime...because property can purportedly be taken and sold even if no crime has ever been committed! Just look at the wording of the followng sections:


(3.1) A reference in this Act to an instrument of illegal activity is a reference to property that

(b) is likely to be used in carrying out an illegal act that, in turn, would or would be likely to or be intended to result in the acquisition of other property or in bodily harm to any person,


19.2(2) The Minister may not commence an action under this Part unless
(a) a peace officer has carried out an investigation in respect of an illegal act, and
(b) as a result of the investigation referred to in clause (a) a peace officer
(i) has reasonable grounds to believe that an illegal act was or is likely to be
committed,
(ii) reasonably believes that the property that is to be the subject of the application
(A) was used in carrying out an illegal act, or
(B) is likely to be used in carrying out an illegal act, and
(iii) reasonably believes that the illegal act referred to in subclause (ii)
(A) resulted in the acquisition of other property or in bodily harm to any person, or
(B) would or would be likely to or be intended to result in the acquisition of other property or in bodily harm to any person.


Having reasonable grounds to beleive something fully encompasses scenarios where the police are simply wrong...and the thing they reasonably believed to be is not so. As such, under this legislation, no crime could have been committed at all in spite of the reasonable belief of the officer. No crime means no crime victim in need of compensation, and yet, the property could still have been seized and sold as an instrument of illegal activity.

This legislation is simply part of the ongoing saga of Ms. Redford wanting the courts to get tougher on criminals...particularly ones alleged to be involved in gangs. Nothing wrong with that idea generally, but now she is overtly soap-boxing about legislators talking to judges about what society expects them to do! (According to legislators who by definition are politicians).

Perhaps Ms. Redford should look at her own Ministry website regarding judicial independence:

http://www.justice.gov.ab.ca/public_education/teaching.aspx?id=3392

The legislative branch, the executive branch, and the judiciary make up the three branches of government in Alberta. The judiciary is the independent branch that presides over the courts.

The judiciary’s independence from the other branches of government helps to preserve the impartiality of judges. Without the impartiality of judges, there is no promise of real justice.

Judicial independence is a cornerstone of our justice system. It guarantees that judges will make decisions free of influence and based solely on the facts of a case
and the law.

Nowhere in there is any mention of judges making decisions based on what the Attorney General tells them that society expects from them.

If the Minister of Justice and Attorney General wants someone to talk to, maybe she would consider writing a guest column for this blog. Truth be told, I half expected to have received some type of communique by now where those I criticize might enter into a public discussion of the issues. After all, that is the public interest purpose for which I write this column in between running my normal practice.

Since I have not yet attracted any participation in this forum, I think I will write to the Minister and ask for her formal participation on this site...and see where that takes us. I sincerely hope she will accept. In that regard, I close this piece with the following quote from former US Senator J. William Fulbright:

We must dare to think 'unthinkable' thoughts. We must learn to explore all the options and possibilities that confront us in a complex and rapidly changing world. We must learn to welcome and not to fear the voices of dissent.

P.S. I want to sincerely thank Mr. Dennis Edney for the captivating address he gave last night in support of Student Legal Assistance regarding his plight in selflessly representing the interests of Omar Khadr for what must seem like an eternity to both lawyer and client.

Mr. Edney, your story was truly inspirational and I cannot think of any greater measure of character than to stand and fight against the might of the governments of both Canada and the United States of America on behalf of a most unpopular client. You have done your family, your profession and yourself very proud.