Sunday, April 20, 2008

If You Can't Beat 'Em...Steal Someone's Car?

I never have been quite able to understand the willingness of the public to go along with ideas put forward by government as "crime fighting" initiatives without putting the least bit of thought into it.

I mean, how can you argue against any idea that is aimed at fighting crime right?

Well, it appears that as citizens we'd better get vocal pretty quick or get ready to turn over your private property to the state...for no apparent reason.

The big kick nowadays is for the government to deflect responsibility for doing a terrible job enforcing laws by distracting the public with shiny things...big ones...with four wheels...

The premise is simple enough...catch a guy committing a crime (that has been a crime for decades but is happening more frequently and voters are getting pissed off about it) and show how tough you are on that crime by seizing his car...well maybe not his car, but someone's car.

It's a win-win right?

Illegal guns are still all over the place and you are really doing absolutely nothing to stop that, BUT, the government has managed to take someone's car away so you sure can't blame them for the problem...


The Criminal Code of Canada already has a special offence for unauthorized possession of a firearm in a motor vehicle. If prosecuted as an indictable offence, the maximum punishment is prison for 10 years. It seems to me that jail is what Parliament intended as a way to curb such persons' mobility...not state-sanctioned auto theft.

Why not demand that this law, already on the books, be used vigorously? Because it is much easier to just take property without proper justification than it is to prove a criminal offence in court.

The concern I have is that this is starting to become the solution for everything...can't stop prostitution, take people's cars...can't stop gang violence, take people's cars. If we just sit and watch this become a trend, where will the government stop? You drove your car to the 7-11 before stealing that candy bar so, on the exact same logic as the prostitution and gun thing, we're taking your car. And why stop at cars? Why not take the running shoes a guy is wearing when he commits a "dine and dash" or take the prescription eyeglasses he used to facilitate writing a fraudulent cheque?

Now, as though it isn't bad enough that the provincial government is flailing to legislate criminal law (which is exclusively Parliament's jurisdiction) consider the other problems with this:

1. They don't seem to care whose car it is they seize. If someone borrows a car and is found in it with an illegal gun, then the "perp" is not punished when the car is taken, the owner is. Sure, they will propose a process where the rightful owner can get the car back, but it will at best still be a nightmare of red tape.

2. They don't seem to care about the law of possession...which requires actual knowledge of an illegal item before you are punished for possessing it. If you are in the car and so is the illegal gun, your car will be gone...even though you will not have committed any criminal offence. Here's what the MLA proposing this law said:

"If you have four gangbangers driving around in a vehicle with an unregistered gun or even a registered gun not registered to them, they can't all say I don't know how it got here," Hehr said Thursday.

"You know what? That person has an obligation to know what's in his vehicle, and otherwise that vehicle's going to be transported downtown and it's going to be sold."

It's a fine bit of rhetoric, but if you have a single mother driving from her second job to night school who is stopped for speeding and finds out the hard way that her kid loaned her car to a "friend" who used it for a drug deal earlier that day, then how good are we going to look taking that car downtown to be sold? I mean, she has an obligation to know what's in her car so, she should lose that car for not having done a better contraband search EVERY TIME she gets in and out of it.

3. Measures such as these seriously undermine the concept of equality before and under the law. A guy carrying an illegal gun on his bicycle is subject to one set of penalties where the guy committing the exact same crime but in a car faces far more serious penalties. Further, the "gangbanger" the MLA describes who is driving a barely running drug jalopy worth $500.00 loses out differently than the farmer whose license lapsed and is driving a $65,000.00 work truck.

4. The offenders apparently intended to be caught by this law are those doing drive-by shootings resulting in serious bodily harm and death. Will it bother them in the least to have to steal a car before doing the next hit so that they don't lose their personal Mercedes?

I guess as a lawyer who knows about Constitutional challenges to legislation, I should not be trying to talk the government out of this idea, rather I should send a thank-you card for the business they are proposing to create for me and my colleagues.

As a citizen and a property owner though, I fear the intrusions that government will make in the name of "public safety" that will leave us fighting to keep our stuff when we shouldn't have to. Hopefully others out there will agree.

Thursday, April 10, 2008

Anger Cannot Be Dishonest - Calgary Police Brutality Allegation

"Anger cannot be dishonest." - Marcus Aurelius

Having recently considered the question of who the citizenry can rely on to "police the police" I feel compelled to comment on a recent video making news in our city and indeed across the nation:

I've chosen to quote a Roman Emperor known for stamping out corruption during his reign in this thread because I struggle greatly to accept official comments by the newly minted head of the Calgary Police Association who is quoted describing what is seen on the video both as "proper" and "appropriate" police conduct.

I guess the comment I have the biggest problem digesting (after watching a man get pushed down the stairs by a CPS officer) is this one:

"He was not pushed down the stairs." - John Dooks, Calgary Police Assoc.

See, the problem is, he was pushed down the stairs and unfortunately for the officer in the video, saying it didn't happen won't make it so.

Now, I'm a criminal defence lawyer, so I know about "spin" and trying to qualify circumstances in an effort to improve the look of a set of facts...and I accept that it is possible the suspect here might not have "tumbled head over heels" or been injured ultimately.

But not because he wasn't pushed down the stairs. He was. It's really that simple.

Mr. Dooks is also quoted saying that all the officer did by dragging the suspect in front of a stairwell before kicking him from behind was "simply brought the man to his feet."

I guess I'm a simpleton, because where I come from, you bring someone to their feet by pulling them up...not dragging them in front of a set of stairs and pushing them down. And if a major metropolitan police force has no better control methods at their disposal for dealing with what the officer himself apparently described as a "passive resister" then Lord, help us all.

If the suspect did go down the stairs on his feet he is either adept at protecting himself when propelled into the opening of a stairwell, or lucky, or both. Regardless of the outcome (I hope it is true that he didn't tumble and wasn't hurt) I challenge Mr. Dooks or the CPS to show me in the training manual where what happened on this video is what police ought to do in such circumstances.

I mean, I guess if it was proper and appropriate, we can count on the CPA and CPS seeking permission to use the tape as a training guide for new recruits right?

Oh, and lets not forget...the officer was justified because the suspect "was physical with police" earlier and off-camera. What is that supposed to mean? How stupid are we really? So, he was permitted to assault the officers physically before without consequence, but subsequent "passive resistence" get's him a toss down the stairs????? And, sorry Mr. Dooks, but I think what you just did is say it was appropriate and proper for your officers who were treated "physically" by a suspect to leave him unsupervised and unrestrained up against a wall for a while with some other suspects.

Is that Chapter Two of the CPS training manual?

And as for Mr. Dooks making comments suggesting ulterior motives by the guy who submitted the tape to the media...and quickly pointing out he has been ACCUSED of a criminal offence recently, that's what I call the leader of Calgary's police men and women trying to incite the public to rush to judgments in the very manner he asks them not to do to the officers in the tape. It is not really that hard to understand why a citizen would be wary of coming forward to the police with a tape like this, especially if what they get for it is an immediate and public character assassination.

Admittedly, I much prefer Chief Hanson's take on the situation...he has ordered a full internal affairs investigation and will wait for the results of same before making any judgment. Good. Now, if only I hadn't personally seen CPS take literally years to conclude investigations into allegations of police misconduct, I might be willing to just sit idle.

Further, in the event that a discipline hearing is recommended, it can be done in private. Further still, even if done in public, there is no obligation (nor previous track record that I can find) for the police service to actually ever tell anyone about the RESULT of such hearings.

Many would argue, this is the most elaborate system of "spin" there is. In the face of a videotape that doesn't look good for the officer...defer judgment. Then kill a couple years so people forget and quietly make a decison and don't tell anyone what it is.

I would rather see a police service and police union (police commission, mayor, Solicitor General etc.) be honest with the public. Admit that what they see in the videotape troubles them and causes serious concern about what happened in this police-public interaction.

Include the caveat that we do need to wait before making any final judgments, but don't come out and say it all looks good. Then, investigate immediately and decide whether or not to charge or discipline within weeks, months if necessary in a major case, but not YEARS.

Then, inform the public about the findings of the investigation and the ultimate outcome.

I can't speak for everyone else out there, but I would gladly place my trust as a citizen in that type of a police discipline process.

My take...this officer got angry...and anger cannot be dishonest. I've heard similar things said about pictures not being able to lie. I guess given the way this thing has been handled so far, and the fact that we are land-locked in Calgary, we will have to do without the Coastguard and rely on the proliferation of digital security video to police the police.

No one else seems to really want the job.