Calgary Criminal Lawyers' Weekly

Herald Editor Needs Hackers

2011-08-19T15:08:00.002-06:00

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.

http://www.calgaryherald.com/opinion/Editorial+Impaired+judgment/5274673/story.html?cid=megadrop_story

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.

Huh...

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:

http://www.calgaryherald.com/news/Repeat+drunk+driver+fined/5265850/story.html

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

Can I Trust You With My Life?

2011-01-12T22:38:00.002-07:00

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:

http://www.theglobeandmail.com/news/video/kelowna-man-kicked-in-face-by-rcmp-during-arrest/article1864346/

[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:

http://www.edmontonjournal.com/sports/Biche+RCMP+officer+pleads+guilty+appalling+assault/3891371/story.html

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:

http://www.vancouverite.com/2010/03/26/chilliwack-rcmp-officer-accused-of-lying-in-court/

http://www.vancouversun.com/news/Retired+RCMP+officer+faces+perjury+charge+over+murder+trial+testimony/4092767/story.html

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".

http://www.torontosun.com/news/canada/2011/01/04/16759896.html

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:

http://www.thestar.com/news/gta/crime/police/article/838098--federal-court-finds-rcmp-guilty-of-racism

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

http://www.theprovince.com/RCMP+officer+pleads+guilty+fraud+attempt/3754260/story.html

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:

http://www.globalnews.ca/bogus+rcmp+wiretap+memos+derail+drug+case/2970856/story.html

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

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

http://www.nunatsiaqonline.ca/stories/article/98789_nunavut_rcmp_member_pleads_guilty_to_assaulting_prisoners/

Charges for breaking into a house:

http://www.cbc.ca/canada/calgary/story/2010/02/19/calgary-rcmp-cochrane-break-enter.html

Charges for criminal harassment, extortion and fraud:

http://www.innisfailprovince.ca/1214_10/news10.html

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

http://www.leaderpost.com/opinion/RCMP+officer+charged+with+murder+Ottawa+police+officer+incurred+charges+Sask/2389941/story.html

Then getting charged for murdering a wife:

http://edmonton.ctv.ca/servlet/an/local/CTVNews/20100711/edm_mountiefolo_110710/20100711/?hub=EdmontonHome

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:

http://www.canada.com/Special+prosecutor+named+inquiry+blasts+shameful+Dziekanski+Tasering/3170322/story.html

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):

http://www.cbc.ca/canada/calgary/story/2006/09/26/mountie-jailsent.html

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:

http://www.cbc.ca/canada/calgary/story/2011/01/12/calgary-canmore-shooting-replica-guns.html

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 hindsight...so 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

The Sanctity of Assange

2010-12-07T07:17:00.003-07:00

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.

http://www.calgaryherald.com/news/Prof+face+charge+urging+assassination/3938210/story.html
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

What's the Penalty for "Distracted Lawmaking"?

2010-11-17T22:49:00.004-07:00

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.

http://www.calgaryherald.com/health/Hospital+suicide+highlights+crisis+wait+times/3822743/story.html

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.

http://www.assembly.ab.ca/ISYS/LADDAR_files/docs/bills/bill/legislature_27/session_3/20100204_bill-016.pdf

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".

http://www.calgaryherald.com/news/Alberta+passes+distracted+driving+legislation/3845604/story.html

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.

http://www.leducrep.com/ArticleDisplay.aspx?e=2535924

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 indeed...to 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?

http://www.calgaryherald.com/health/Tory+assails+Alberta+ailing+medical+system/3845540/story.html?cid=megadrop_story

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

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

2010-09-29T12:57:00.003-06:00

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."

http://www.cbc.ca/canada/calgary/story/2010/09/29/calgary-prostitution-laws-enforce-ruling.html

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 minors...so 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 police...in 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."

http://www.edmontonsun.com/news/alberta/2010/09/28/15510421.html

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

Long Gun Registry Vote

2010-09-23T12:04:00.002-06:00

I've decided to try to chime in on this issue in the most simple way possible...by 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 that...so 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 then...is 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: http://www.cbc.ca/canada/calgary/story/2010/09/22/edmonton-alberta-redford-gun-registry-vote.html#ixzz10NagQG5D

Well said, Minister Redford.

Michael Bates
Calgary Criminal Lawyers' Weekly

Apathy is Unethical - In my opinion...

2010-09-01T22:34:00.004-06:00

As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air - however slight - lest we become unwitting victims of the darkness.
- Justice William O. Douglas (U.S. Supreme Court)

As lawyers we enjoy a privileged position in society. Even those of us who toil away in the criminal justice system relying on the $84.00 per hour Legal Aid rate to help keep the lights on will typically drive better cars, live in nicer neighbourhoods, and be able to share more luxuries of life with our friends and family than the elusive "average Canadian".

The position of privilege is not one only defined in economic terms, however. By law a member of the Law Society of Alberta in good standing has rights of audience in Her Majesty's courts which are not automatically afforded to every citizen. We have exclusive province to practice law giving legal advice to others and guiding them through an ever increasingly complex justice system often at times when they are most vulnerable.

Our education gives us wisdom and insight, our training gives us confidence and skill in the art of persuasion, and our immersion in the innards of "the system" gives us unparalleled access to bear witness to and comment on "the good the bad and the ugly" of Canadian justice.

It would be easy for me at this juncture to cruise down a predictable path extolling the virtues of ethics and integrity placing high on pedestals such ideals and simultaneously vilifying the concept of making significant financial gain by the predation of the misfortunes of others.

But I won't.

Unlike many critics of our profession I have absolutely no problem with a lawyer in a free market system making a six figure income by becoming a master of the trade and providing invaluable service to his or her clients. I aspire to such success myself. The reality is that people will visit upon themselves, or suffer such misfortunes from without, regardless of whether a lawyer is around seeking to profit by getting them out of trouble.

Where my problem lies is in the apparent number of lawyers who seem to get the self-interested success part down pat (at varying points along a continuum) but fail to accept a professional responsibility to the system and the members of the public whose troubles have provided for such a lucrative career. Worse yet, the level of many lawyers' success (i.e. the sheer enormity of the money they make and their potential for advancement and appointments) is often then cited as the specific reason why they will not "rock the boat" or speak out publicly about things that they consider unjust or oppressive within the justice system.

When one moulds his or her concept of success around the maxim that "it is not what you know but who you know" then an obvious corollary is that "it is not what you say but who hears you say it" that will dictate the person's willingness to speak for those who have no voice. For a criminal defence lawyer, I dare say such an ignoble approach to the practice of law places self-interest far above the best interests of the accused and society as a whole...accepting injustice in silence because to speak would create a risk of personal consequences.

To resort to a cliche, a squeaky wheel will get the grease...therefore, many people will refuse to squeak in order to avoid getting grease stains on their favourite shirt?

What am I really trying to say here? Well, like the title says...apathy is unethical. Is it easier to only be controversial (if at all) within the confines of solicitor-client privileged communications? Is professional life "smoother" when you only complain to other defence lawyers in a lounge where everybody agrees that to speak publicly is not advisable? Is "flying under the radar" on access to justice issues and hot topics like judicial appointment protocol or the latest new "law and order" legislation less stressful? Totally...100%...yes.

But, in my view, to ignore such important matters where you see ways to improve the system is to abdicate the responsibility that comes with the position of privilege that we hold as barristers and solicitors. Lawyers who make a living litigating the rights and freedoms of their clients have an obligation to challenge aspects of the system which threaten the rights and freedoms of their clients (and by necessary implication, all Canadians).

Having the opportunity to see problems first-hand, the knowledge and advocacy skills to identify and publicize such problems, and the power to actually confront and eliminate such problems means that as lawyers we cannot in good conscience sit in silence, indifferent to inequity, corruption, and illegality, and wait for the next client with a savings account to be subjected to those problems so that he or she can pay us to help.

The Code of Professional Conduct states that a lawyer should seek to improve the justice system. The full commentary on this rule is as follows:

R.2 A lawyer should seek to improve the justice system.
C.2 Efforts to improve the justice system, including constructive criticism of its operation and institutions, are consistent with a lawyer's responsibilities to the administration of justice. Legal training and the opportunity to observe the justice system in operation uniquely qualify lawyers to evaluate and seek improvements to that system. The justice system includes not only the courts and the judiciary, but all public institutions involved with the administration of justice such as the legal profession, the police department, and various governmental departments and agencies, including legislative bodies.

Implicit in Rule #2 is the duty to report misconduct by persons connected with the justice system. See also Rule #4 of Chapter 3, Relationship of the Lawyer to The Profession, respecting the duty to report the misconduct of colleagues in the legal profession.

A lawyer's efforts to improve the justice system must be constructive and bona fide in nature. Whether seeking a legislative or administrative change, speaking out against an injustice or perceived weakness in the system or expressing other criticism, a lawyer must act with intelligence, professionalism and due deliberation.

Moreover, the party or parties to whom criticism is expressed must be appropriate under the circumstances. In some instances, this will be the Law Society; in others, the Judicial Council, the police department, the police commission or the media. In deciding whether to publicize criticism through the media, a lawyer must consider all possible consequences, such as loss of control over how the lawyer’s comments are ultimately reported and inability of the subject of the criticism to respond in any meaningful way.

Although proceedings and decisions of the courts are properly subject to scrutiny and criticism by all citizens, a lawyer who chooses to criticize such matters or the judiciary itself must take into account the following considerations:

 an opinion expressed by a lawyer may be given particular weight or credibility due to the lawyer's professional knowledge and connection with the legal system;

 if a lawyer voicing an opinion has been involved in the proceedings at issue, the lawyer's comments may be, or may appear to be, partisan rather than objective; and

 judges are often prohibited by law or custom from speaking in their own defence. In this regard, a lawyer may in some circumstances have an obligation not only to refrain from expressing criticism, but to defend the court if it is the subject of unjust criticism.

Finally, a lawyer seeking reform to the justice system must disclose whether it is sought in the public interest, on the lawyer's own behalf or on behalf of a client, although the name of a client may not be divulged in the absence of express or implied authorization. (see Rule # 2 of Chapter 7, Confidentiality)

It is this commentary which guides my frequent comments to television, radio and print media on criminal justice issues and which motivates me to publish this blog. I know full well that many things I write will not be well-received by authorities such as the Attorney General of Alberta or Calgary's Chief of Police. I suspect individual Crown lawyers and judges before whom I appear will take exception at times to the viewpoints that I espouse.

But, I also expect that sometimes...if I manage to hit a nerve or cause someone to reflect because of something provocative that I have written...my form of public criticism will actually improve the justice system. Legislators may adopt my ideas, police officers might try out a different "roadside manner" with citizens, judges may re-think their approach to bail or sentencing or whatever issue I might be railing about that week.

In my view, failing to engage some form of freedom of expression with a view to improving the system is a failure to effectively uphold one's moral obligations as a lawyer...that much should be clear by now. What causes me even greater concern though is when people in the justice system take active steps to stifle and "shut up" those of us who do choose to speak.

"If you say that, then prosecutors will refuse to give you deals that they would normally give..." "If you write about judicial bias or appointment protocol, then you will lose cases you would otherwise win..." "You'll never be able to get a Q.C. if you criticise the A.G." These are examples of actual things I have heard said by colleagues from time to time.

There can really be no debate that lawyers must comment responsibly on all topics of public interest, and particularly on legal matters. But is there really a legitimate debate about whether lawyers should comment on matters of public interest including legal matters? Will prosecutors really compromise their professionalism because they dislike my opinions? Will judges actually betray their oath of office because I appeal their judgments on the basis of alleged bias? Will the A.G. injudiciously deny a Q.C. application out of personal spite?

If so, then I've got a whole bunch of other highly critical posts to write...

For me, really, the whole issue boils down to this:

1. Lawyers are citizens in the best position to effect positive change in the justice system by creating and fostering public debate of issues that arise in front of us literally every day;

2. As such, we have a responsibility to actually seek such positive change;

3. Positive change often comes out of very negative public opinion or reaction to a particular issue;

4. Lawyers should engage in these discussions (responsibly), not avoid them for fear of reprisal;

5. If we unduly seek to restrict the ability of lawyers to criticize the police, the courts, or any other part of government then we encourage and arguably reward apathy;

6. Apathy is unethical.

I close with a quote attributed to Thomas Jefferson:

We have the greatest opportunity the world has ever seen, as long as we remain honest - which will be as long as we can keep the attention of our people alive. If they once become inattentive to public affairs, you and I, and Congress and Assemblies, judges and governors would all become wolves.

I, for one, intend to do my best to keep the wolves at bay.

Michael Bates
Calgary Criminal Lawyers' Weekly

Police Officers Should Stop Lying

2010-06-16T20:05:00.002-06:00

"We have now sunk to a depth at which restatement of the obvious is the first duty of intelligent men."

- George Orwell

I think of myself as being at least reasonably intelligent, so here I go...

"One day before he publicly apologized to Robert Dziekanski's mother for the Mounties' role in his death, RCMP Deputy Commissioner Gary Bass e-mailed an RCMP member assuring him the apology did not mean the force was sorry for anything specific its officers did."

http://www.calgaryherald.com/news/RCMP+apology+linked+actions+Mounties+Memo/3162099/story.html?cid=megadrop_story#ixzz0r4XaFCI0

What exactly was the Deputy Commissioner referring to then when he sat beside this mother of a son killed at the hands of 4 RCMP officers and said, "Your son's death is a tragedy and for the role the Force played in this tragedy, we offer our sincere apology."

Must have had his fingers crossed.

This after the outrageous testimony that the police officers involved in the incident tried to sell along with a bottle of "stupendously superb" elixir...

http://ccdlaforum.blogspot.com/2009/03/wrong-way-of-worldmaking-one-lawyers.html

So, let's see, false apologies, false explanations to other members about those apologies, false testimony by the officers involved...even in the face of video showing the contrary...police not looking too trustworthy here...

That tazer case is so unbelievable, though, it must just be a wart on the surface of otherwise pristine skin:

“Actually, the lies go far deeper than even I realized. As I interview police officers, I find out that literally everything internal is built upon a system of intricate lies. Lies about overtime, lies about work schedules, lies about people in custody (does anybody check an accused in a holding room every 15 minutes?)

“As you rise in rank, the premise is this: the less you know and the less you do the better everything gets for you. It’s absolutely crazy. If you get into trouble for anything, lie your face off unless someone’s got you on video, and even that is subject to lying.”

Sounds like some journalist with an axe to grind...not much credibility...oops! Actually, that's a retired Winnipeg police officer that wrote that one...

http://www.canada.com/ottawacitizen/news/story.html?id=797922c0-ba7c-4df1-93cd-71643ff868bc

Okay, but overtime...routine boring tasks...that's stuff everyone fibs about...I mean when it comes to important stuff, that's where we can still depend on the honest police officers that we tell our small children to trust without reservation...right?

"The decision to stay the charges comes after testimony revealed a fabricated memo about wiretapping concerns by RCMP Sergeant John Roskam, a longtime member of the force who was head of the wiretap unit in Ontario.

Sgt. Roskam, who insisted he acted on his own, revealed under cross-examination last November that there was both a fake memo and a real memo in responding to lawyers concerns about wiretaps and whether the force was not complying with court orders.

“I was flabbergasted that a senior police officer would fabricate disclosure in a criminal matter,” said Michael Lacy, the defence lawyer who discovered the existence of the real and fake memo last fall when he asked provincial prosecutors in an unrelated case for documents related to RCMP wiretap procedures.

“The RCMP deceived the Crown as well,” said the defence lawyer, who called for an outside police force to begin a criminal investigation."

http://www.nationalpost.com/most-popular/story.html?id=2968012#ixzz0r4oSZ1M0

A fake memo?!?!?! Regarding police failure to follow a court order?!?!?! Fabricated disclosure in a criminal prosecution?!?!?!? Deception of the Crown prosecutor?!?!?!?! Yikes!

Okay, okay, but the saving grace is that the cop admitted his wrongdoing on the witness stand...I mean, sure lying to cover up breaches of court orders is not a "best practice model" to borrow some corporate lingo, but hey, police still tell the truth in the actual trial...don't they? Please tell me they do...

"The conduct of the police that led to the Charter breaches represented a blatant disregard for Charter rights, further aggravated by the officer’s misleading testimony at trial...The price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. Police officers are expected to adhere to higher standards than alleged criminals."

http://csc.lexum.umontreal.ca/en/2009/2009scc34/2009scc34.html

Damn...now the Supreme Court of Canada is assessing police behaviour relative to the crooks they are supposed to be stopping...this is not getting better...

Okay...I'm panicking a bit now...what can I salvage? Got it...It's not like police are storming in riot gear unprovoked up to a student cheering his favorite team and savagely beating him within an inch of his life, hospitalizing him and then completely fabricating a story that he attacked them and their horses and that he got injured when the horses kicked in reaction to his assaults...all because they didn't know they were caught on CCTV...

http://www.telegraph.co.uk/news/worldnews/northamerica/usa/7591294/Police-beating-student-caught-on-video.html

OH COME ON!!!!!! Police guys, seriously, I'm trying to help you...throw me a bone for crying out loud!!!!!!!!

Good thing that video was from the US (a.k.a. police brutality central). When police get rough in Canada it is because the perp refuses to follow commands to get on the ground...'cause if he did get on the ground when told to, he sure wouldn't get a Jan Stenerud-like kick to the ribs...

http://videosift.com/video/Police-Brutality-in-Victoria-BC

Okay, I'm done.

Maybe, I will just re-state the obvious. Police officers should stop lying.

And prosecutors and judges and the rest of us should stop pretending like police officers are not fraught with the same human frailties possessed by those of us who do not carry a badge.

Michael Bates
Calgary Criminal Lawyer

Real Life is Not Hollywood

2010-06-11T00:49:00.003-06:00

I am writing to stand up for Cst. Jens Lind of the Calgary Police Service following what has become, in my view, completely misguided criticism of his lack of heroics following a fiery car crash that made headlines in our city.

http://www.cbc.ca/canada/calgary/story/2010/06/09/calgary-suv-dead-crash-house-asirt.html

Online would-be Supermen and Spidermen (and probably some Wonderwomen too) have gone as far as to overtly accuse Cst. Lind of letting an 18 year old kid die through his indifference to the emergency of the burning car smashed up against a house. Such comments are totally unfair.

I've watched the terrible quality home movie of the officer arriving on scene and going to work...and I concede, it makes for an incredibly boring action flick. The car doesn't explode, there's no upside-down motorcycles shooting lasers while the officer goes into freeze-motion and dodges the bullets of a fleeing suspect. There's not one close-up of the grimacing protagonist as he defies physics swinging perilously over a hazard of certain death with 14 fatal wounds that somehow are not even slowing him down nor any catchy one-liners that make us all want to go out and buy a Cst. Lind costume for Halloween this year.

Nope, that home movie just shows a glimpse of plain old boring reality. A police officer arriving on an impossible scene. Driver most likely dead before he even put his marked cruiser in park, and kid somewhere in the vehicle dying...unknown to anyone else. There's a fire...a man calling out that a woman from the house is injured...passersby who likely mean well but are too naive to realize the jeopardy they would be in if they come too close...and a number of other issues I am sure...we just can't see them on the video.

The officer wastes no time in sending a call for EMS, fire and backup, popping his trunk to get his too small standard-issue fire extinguisher, and then walking calmly straight up to the unknown situation to see what he could do to keep everyone safe and get anyone help who needs it.

There's no improbable dive across the lawn, no full speed run so he can jump far enough to grab the edge of the car before it falls off a cliff. Nope...Cst. Lind appears to just do his job. That the kid would later be found alive long enough to die in hospital instead of on the scene does not mean that Cst. Lind should have run around like a chicken with its head cut off just to make onlookers feel like he was sufficiently earning the right to be called an action hero.

Unless further investigation turns up evidence to the contrary, Cst. Lind has absolutely no responsibility for the tragic outcome of this attempted vehicle stop. He didn't flee police, he didn't crash the car, he didn't start the fire, and he didn't drop the ball.

What happened was real life. Not a video game or a summer blockbuster. Cst. Lind should not have to apologize because his performance did not entertain those of you that think "Grand Theft Auto" or "Gone in 60 Seconds" is real. We should all be thinking sympathetic thoughts for the family and friends of the deceased (no matter what kind of history the driver might have had), and hoping that Cst. Lind is not haunted by what he had to deal with at work that day.

And to all those callous critics...CPS is recruiting...

Michael Bates
Calgary Criminal Lawyer

Do as Rick and Alison Say...Not as They Do...

2010-04-01T10:35:00.003-06:00

I wonder if any provincially operating pollster will come to my aid on this one. I need to get a sense of how many people in our City can tell me about the firing of Calgary Police Constable O. Valmestad in 1993 or Constable R. Stewart in 1994. I suspect very few.

Which is odd, because of the certainty with which Justice Minister Alison Redford (in a joint press effort with Chief Rick Hanson) asserts that if someone in the justice system ever "goes over to the wrong side of the road" and there is evidence found of "some sort of breach" that it will be "completely disclosed to the public...it will be front page, everything will be open and we will be honest about it."

http://www.calgarysun.com/news/columnists/rick_bell/2010/03/31/13430386.html

Now, in fairness, the dismissals of Cst. Valmestad and Cst. Stewart happened before either Ms. Redford or Mr. Hanson took their respective offices...so I have to be clear that there is no suggestion whatsoever that either of them has been involved in any kind of cover-up of those cases. Further, I don't think that one can expect these public officials to search through history and continually bring up examples of bad conduct and re-publish them to be sure everyone knows about them.

It should also be acknowledged that each of these cases was the subject of a Law Enforcement Review Board hearing that was not subject to any exclusion of the public. In theory, therefore, the details of these cases are available to an industrious member of the public who decides to go searching.

But, based on the statements of the Justice Minister, uncovered misconduct will be shouted from the mountain-tops and presented for all to see...on the "front page" as it were...so no searching should be required. And, unfortunately, both Minister Redford and Chief Hanson will be judged on the past performance of their offices unless and until we see them demonstrate a different approach by actions, not spoon-fed press releases to the oh so critically demanding Rick Bell.

Funny...I just finished writing a piece about the secrecy that Calgary Police officers benefit from when they get charged with criminal offences as compared to the complete denuding of the average joe in like circumstances.

http://calgarycriminallawyer.blogspot.com/2010/01/calgarys-secret-service.html

Also funny...since I wrote that article at the end of January, at least one more CPS officer has been charged with a criminal offence...and has still been given anonymity.

http://www.cbc.ca/canada/calgary/story/2010/03/24/calgary-officer-charged-assault-woman.html

More funny...the police service is citing a recently introduced policy to not name officers charged in on-duty incidents in order to prevent harassment of members and their families over incidents where the officer may have been just doing his or her job.

http://www.globaltvcalgary.com/world/Calgary+police+officer+charged+assaulting+woman+while+duty/2721800/story.html

Well, okay, but how is that any different than the presumption of innocence that all citizens are entitled to? I mean, the police already get the special benefit of a Crown prosecutor screening the case before charges are approved. So, when Minister Redford and Chief Hanson claim that police and justice officials get treated the same as everyone else...how can they act like they mean that? They know that it is completely untrue.

So the police officer alleged to have committed a crime (on at least as good of evidence...and I would say better evidence than what it takes to proceed against a civilian) gets an official protection of their identity and suggestion that they may have "just been doing their job."

The citizen alleged to have become involved in crime at the behest of a criminal organization...of course getting the same treatment as the police officer...gets the following official statement from the Minister of JUSTICE (read fairness, impartiality, committed to the presumption of innocence and the need for proof beyond a reasonable doubt):

"I don't have any illusions about what these people do - dealing in drugs, intimidating people, trafficking in people, involved in all kinds of heinous activities...I wouldn't ever expect any sort of decent behaviour. It's about time we understand in Alberta how awful these people are and make this part of a conversation we have. They'll try every trick in the book because they're bad people."

Honestly...what is happening in this province? How are the Crown Prosecutors in Ms. Redford's charge supposed to be seen to be administering justice with an even hand, dispassionately seeking truth with fair treatment for all when their boss is so fervently conjuring public contempt for people whose identities will not be shielded by any policy and may find themselves accused of having committed a crime.

I am at a complete loss.

So, maybe I should revert back to those dismissals of those CPS officers...Valmestad and Stewart (whose first names do not appear anywhere in the LERB decisions...and which decisions do not appear on the LERB decision website - being pre-2002). Probably not the kind of behaviour that would warrant being described as "all kinds of heinous activities" or maybe...

Here's a summary of the Valmestad incident taken from the decision of the presiding officer at the Police Act disciplinary hearing:

The [high speed] pursuit initially begins with a traffic infraction...this in itself is a contravention of the pursuit policy, which Valmestad said he was familiar with.

The pursuit is called off by a supervisor. He acknowledges this instruction, turns off his siren, but continues to pursue. He disregards the instructions of his supervisor. He runs into the stopped Blazer twice, but he lies over the police radio to his sergeant. Traffic accident reconstructionists had to be called in, and they proved this to be a lie. He claims [R.D.] drove straight at him, tried to run him down...this false
information is shared with all responding police units when Valmestad uses the police radio. He has elevated [R.D.] to a position of being a dangerous and desperate man. While [R.D.] may have refused to stop, entered into a pursuit, and drove away from an armed police officer, he was not responsible for any deliberate attempt to run down or injure a police officer. [Valmestad] fires six shots, emptying his service revolver at the Blazer as it drives away. There is no evidence of his life or anyone else's life being threatened or endangered.

...It was important enough to use deadly force to try and stop the vehicle, yet immediately after discharging his firearm, he uses the police radio and says: "It's [R.D.] driving. Don't sweat it, I'll go and put warrants out for this guy." Obviously it's not so important now.

[Valmestad] doesn't immediately bother to tell anyone that he's fired his handgun at the Blazer. Four bullets, or portions thereof, hit the Blazer and plateglass window of a store [Creative Kits for Kids Shop] in the shopping centre. Two bullets were unaccounted for.

He leaves the scene of the accident and shooting, it is not protected. He returns after he realizes traffic on the roadway is driving through the scene.
...

...[Valmestad] used deadly force in an attempt to stop a vehicle. If his intent was to disable the vehicle, not only did he not succeed, but he fired at the tailgate and rear window. I fail to see how shooting at those two locations would disable a vehicle. Constable Valmestad didn't discharge one or two bullets, he fired six. His life was not in jeopardy, nor was anyone else's. In fact, the only lives in jeopardy were the three people in the Blazer who fled from Valmestad in a hail of bullets.
...

A similar summary of the Stewart incident follows. The gist of the story is that a woman had lived with Cst. Stewart prior to dating Stewart's Sergeant. Wanting to confront the woman and the superior officer for having an affair behind his back, Cst. Stewart entered a room at a police station where the woman and sergeant were having a discussion. From the sergeant's evidence [with my paraphrasing in brackets]:

"He closed the door and he braced his left foot against the bottom of the door. As he was doing this he drew his service revolver and pointed it at my face..." [Cst. Stewart began to demand answers about the affair. After discussions of who loved who] "Stewart then wheeled in a police crouch, both hands on the revolver, and pointed it at D.B.'s head. The revolver was an inch or two from her forehead...[he] said, "...give me a reason..." and he took a step forward and banged the gun into Ms. B's forehead...and he said, "Give me a reason why I shouldn't blow you away right
now."...

[The sergeant was then ultimately able to diffuse the situation and remove the bullets from Stewart's gun and the incident ended].

So the poll question I started out with...if justice officials are so adept at putting their misdeeds on the front page, how many people in the general public have any awareness of this behaviour by Cst. Valmestad and Cst. Stewart? And when police officers conduct themselves in this type of manner and find themselves charged with criminal offences, are we really serious that they get to be anonymous because they might be just doing their jobs?

Can anyone dispute that the facts of these cases demonstrate something other than the high standard of what is expected of police officers? No. Does that mean it would be right for me to go to a newspaper and based on these heinous acts make a statement like this about all members of the CPS:

"I wouldn't ever expect any sort of decent behaviour. It's about time we understand in Alberta how awful these people are and make this part of a conversation we have. They'll try every trick in the book because they're bad people."

I would be WAY OFFSIDE to make that statement...and yet the Minister of Justice spews such verbal diarrhea with impunity. After all, she's only speaking of useless criminals as opposed to respectful police officers like Cst. Valmestad and Cst. Stewart.

And now, since I grow weary of trying to get someone, anyone, in Alberta to care about such issues, I bring this rant to a close with the following juxtaposition. In the very article that they peddle a little more fear to the masses and assure us any organized crime corruption of the justice system will be openly exposed, Minister Redford and Chief Hanson move on to their next apparent axe to grind as the author says they both agree that:

"the federal open-book rules on what an accused should know have gone way over the line..."

Wow. That's talent. Merely a handful of words earlier an unwavering commitment to open disclosure...turned into a lead in on why criminal cases should involve less disclosure to the citizen.

And the masses eat their wings, drink their beer, watch the Flames and let it all drift by...

Michael Bates
Calgary Criminal Defence Lawyer

Withdrawal for the Non-Attendance of "Mr. Green"

2010-03-26T10:34:00.004-06:00

I must write a quick commentary on the just-released judgment of the Supreme Court of Canada in R. v. Cunningham...because it is already being misconstrued by mainstream media and the courts must not be misled as to what the SCC really said.

http://scc.lexum.umontreal.ca/en/2010/2010scc10/2010scc10.html

The Calgary Herald has published an article with the outrageously misleading headline, "Lawyers can't dump deadbeat clients, top court rules." That is absolutely NOT what the SCC decision in Cunningham stands for.

http://www.calgaryherald.com/news/Lawyers+dump+deadbeat+clients+SCOC/2729626/story.html

True, the SCC did conclude that both superior and provincial courts hearing criminal matters have the jurisdiction to refuse a lawyer's application to withdraw for non-payment of fees but the more revealing part of the analysis is that the unanimous panel described such a refusal as "coercive" and therefore directed that the jurisdiction should be used "exceedingly sparingly."

The judgment concludes with a very concise summary paragraph:

In sum, a court has the authority to control its own process and to supervise counsel who are officers of the court...This jurisdiction, however, should be exercised exceedingly sparingly. It is not appropriate for the court to refuse withdrawal where an adjournment will not be necessary, nor where counsel seeks withdrawal for ethical reasons. Where counsel seeks untimely withdrawal for non-payment of fees, the court must weigh the relevant factors and determine whether withdrawal would cause serious harm to the administration of justice.

Earlier, the SCC judgment notes that even where the court finds that the administration of justice would be seriously harmed, withdrawal MAY be refused...not must be...for non-payment of fees. The SCC elaborated stating that "only in the most serious circumstances" should a criminal defence lawyer be forced to shoulder the financial burden of providing access to justice. "Refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice."

So...R. v. Cunningham actually stands for the proposition that lawyers clearly CAN dump so-called "deadbeat" clients...or what us more ethical professional types would instead refer to as clients who for whatever reason find themselves unable to pay (of course, how could one expect sensationalist media types to recognize that sometimes...dare I say oftentimes...people who are impecunious are not "deadbeats").

The good news for us here in Alberta is that the SCC standards set in Cunningham actually are pretty much exactly the test that was set by our Alberta Court of Appeal back in 1996...with but one significant exception. When considering how to balance the application to withdraw as against the harm to the administration of justice, the SCC specifically noted that administrative inconvenience, specifically whether the court time could be used by another case if an adjournment was required is not a relevant consideration.

One final note that is very important for the future arguments of this issue. The SCC expressly did not rule on the merits of the Cunningham case...calling that issue moot since they were only deciding whether the court had the jurisdiction to make such a ruling.

That is, Cunningham does not stand as authority that if Legal Aid cancels your client's coverage one month before preliminary inquiry that your application to withdraw for non-payment of fees should be denied. Obviously, every case will be decided on its own facts, applying the Cunningham criteria and any other relevant circumstances to the balancing.

Although I end by emphasizing to defence counsel, Crown counsel and judges alike that Cunningham uses very strong language against orders requiring counsel to act for free even where applications for withdrawal for non-payment are "untimely". Don't let media hype replace actually reading the judgment and applying its true spirit.

Michael Bates
Calgary Criminal Defence Lawyer

Stelmach's Police State

2010-03-22T10:36:00.004-06:00

The principles of fundamental justice and ideals of a free and democratic society are being so actively stripped right before our eyes, that as a born and raised Albertan I am contemplating leaving the place that my family helped to build.

When receiving the bronze commemoration of our family farm being a century old there was never a more proud moment for my grandfather. Yet the Alberta rancher I know...born at the end of WWI, made it through the Great Depression, WWII, countless droughts and market killers like BSE...would be appalled to see how our government has positioned itself through the propogation of fear to where its armed officers will be demanding its citizens to "show your papers" or be summarily detained and searched.

Dozens of my grandfather's best friends died overseas to help Europe escape from that type of government...and we now blindly accept it coming here.

My rant I suppose has been building for some time as Alberta has been rallying to provide massive State authority to take private property from its citizens even if there is no proof that they have done anything wrong; cities like Calgary have laws that make it illegal, punishable by jail, to make someone uncomfortable on public property, to participate in a gathering in a park, to curse in public, to put your feet on a bench, and on and on.

Enter the latest outrageous grant of State power under the guise of "anti-gang legislation"...the Body Armour Control Act.

http://www.assembly.ab.ca/ISYS/LADDAR_files/docs/bills/bill/legislature_27/session_3/20100204_bill-012.pdf

Now, I know, the first reaction from people will be, "but this is just a law to prevent gangsters from wearing body armour which allows them to riddle our streets with bullets with impugnity...how can you have a problem with that?"

Well, here's how.

Firstly, alleged gangsters who are wearing body armour now are often carrying firearms, which can you believe, are not lawfully owned or registered. Therefore, forgive me if I have trouble believing that a guy toting an illegal handgun on his way to kill a rival (oh yeah, murder is also illegal) is going to stamp his feet like a dejected 3 year old who's mom just took his soccer ball for refusing to clean up his toys and go back into his house and sulk because the body armour he is wearing has suddenly become illegal for him to possess.

In case you missed my point in the sarcasm, the Body Armour Control Act will have absolutely no effect whatsoever on improving community safety or reducing shootings or lowering risks to the general public (which, the police don't want to tell you are risks that are all way down and have been going that way consistently for years).

What the Act will do is make any law abiding citizen who would choose to protect themselves with a form of clothing have to submit to fees and regulations of a permit process or become a law breaker...by doing nothing but possessing an item that is completely legal to possess.

So my critics will say, "okay, maybe it's not the most effective tool in the police toolbox, but anything that helps them can't hurt, right?"

Well, that's where they are wrong.

What no one seems to have clued into is the police-state provisions that are built into this legislation. The Act provides that a police officer who has reasonable grounds to believe that you are in possession of "body armour" in a public place can WITHOUT WARRANT search you and any personal property in your possession. A car is personal property by they way.

Now if you are found illegally possessing body armour (i.e. when demanded to "show your papers" you come up short), then the horrible teeth of the Act come out...the body armour can be seized!! Oh my!! The gangsters will be devastated!! It might be an overnight courier before they will ever be able to replace it!!

But wait...

Maybe, just maybe, this whole thing is a facade...an elaborate smoke-screen. No...the government would never deceive its citizens would it?

Of course, it's hard to dismiss the possibility that what this legislation actualy represents is a completely obvious see-through method to allow the State to demand papers from any citizen with a bulky sweater, search their person and all personal property for the evil "body armour" (some of the Kevlar stitching can be abrasive, you could get a serious raspberry if someone rubbed their bullet proof vest against your arm!) and have a back door entry to indiscriminately search for things that they really want (drugs, guns, money, your religious faith, political affiliations, baby pictures...the State's interests are endless really) and never have to get those damn troublesome warrants.

I mean, really, how can you run an effective police state if you have to deal with independent judicial officers who sometimes say "no" you can't abuse the citizen that way?

"Now who's fear-mongering?" my critics will no doubt jump at the chance to point out that police never do bad things and even if they wanted to, they would need reasonable grounds to believe you are possessing "body armour"...only bullet-proof vest wearing gangsters have to fear police harrassment from this new law, so come on with this police-state stuff...right?!

Well, let's take a look at what "body armour" is under this legislation. It's "a garment or item designed intended or adapted for the purpose of protecting the body from an item or object used to, or adapted to, stab, pierce, puncture or otherwise wound the body."

Now, for those of you thinking that hockey equipment could be "body armour", well, you're right, but the State has thankfully decided to exempt sports equipment from the Act. They have also exempted workplace safety equipment that is required by an OHS code so you don't have to stop wearing safety glasses...although clearly they could otherwise be "body armour".

So what of my grandfather the trailblazing Alberta rancher? Well, he's got a conundrum. See, OHS legislation doesn't apply to the farm, so, if he chooses to wear safety glasses, leather gloves, a welding apron, or perhaps even coveralls...he may well be subjecting his person and his vehicles to warrantless search. After all, I rather doubt that my gramps will be filing for his body armour permit for his work gloves...the lawless maverick that he is.

So now to my conundrum...do I pack up my family and head to a different place where government is appropriately constrained by a citizenry that actually protects its civil liberties with vigor? I could. But that seems entirely un-Albertan to me. And why should my family leave after over 100 years of building this province? No. I can tell you what I plan to do.

I have already ordered my body armour. Should get it this week. And I plan to start wearing it. Not because I fear the false threats that the State has conjured up with the assistance of the supposed independent media. No, I will be wearing overt body armour, so the police can see it. And when they ask me to "show my papers" (after Bill 12 rams through the legislature with scarcely a thought of any debate) I will see where that goes...if I get my way, it will go into a courtroom.

My apologies, Primier Stelmach, but you have no right to send your soldiers to search me. My right to life liberty and security of the person may not provide a "right to bear arms" as for our neighbours to the south, but a protective vest presents no risk of harm to anyone, and using my desire to protect myself from harm as a way to purportedly subject me to what would clearly otherwise be an unlawful detention and search simply crosses the line.

Wake up Alberta.

Oh, and in case you still think I am just being some kind of alarmist, for fun, have a read of the judgment of a member of our Alberta Court of Appeal in a case called R. v. Cornell.

http://www.albertacourts.ab.ca/jdb/2003-/ca/criminal/2009/2009abca0147.pdf

Criticising what he called the "indiscriminate habit of balaclava-clad police conducting searches in private homes" in our province, Justice Ritter wrote a useful reminder, "Canada is not a police state."

I might suggest a re-write, your Lordship..."Canada is not supposed to be a police state."

Michael Bates
Calgary Criminal Defence Lawyer

It Ought to be Illegal to do...Well, Everything

2010-03-01T07:46:00.004-07:00

While not strictly a criminal law issue, there are fundamental links between criminal justice and the workings of a free and democratic society like ours...which is why I write this quick post.

Opposition NDP and Liberal parties in Alberta are proposing that the way to deal with voter apathy and record low voter turnout in our province is to make it illegal to not vote.

http://www.edmontonjournal.com/news/Opposition+mulls+fines+voting+Albertans/2615409/story.html

The worst part is that the proponents appear to think that this bullying to the ballot-box will somehow translate into votes against the current government?!?!?!?

I will be the first to tell friends and family members to practice democracy...not only on election day, but with donations of time and money, in community groups, on blogs, and anywhere else the opportunity arises. But when the government (and I view all MLA's or MP's as the "government") can only think to legislate inspiration and criminalize one's decision not to exercise a democratic right (because some are not just lazy, but seek to effect political change by refusing to vote) then for me democracy has already failed.

If a law were passed that punishes non-voting with a fine, then I would not vote (which would be a first in my entire "elligible for voting" life) and then challenge the constitutionality of such legislation...and likley win.

Perhaps I can make a suggestion to the opposition parties. If you want voter turnout (and you want those votes coming your way) give people a reason to vote. Inspire with leadership and policies that the people you seek to lead actually want. Disappearing voter participation is not the problem...it is a symptom of an underlying disease.

And it is obviously not a disease only of the current governing party.

Michael Bates
Calgary Criminal Lawyer

Calgary's Secret Service

2010-01-21T15:53:00.003-07:00

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?

2009-11-30T11:59:00.003-07:00

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

2009-10-08T15:51:00.003-06:00

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..."

2009-07-01T01:10:00.003-06:00

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

2009-06-10T01:20:00.002-06:00

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"

2009-03-18T22:32:00.004-06:00

"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!!!

2009-03-03T11:38:00.007-07:00

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.

"Ministers of Justice" Must Actually Seek It - SCC orders police misconduct out of the closet

2009-01-19T07:00:00.000-07:00

It is a public scandal that offends; to sin in secret is no sin at all.
- Moliere, 1622-1673

I suppose in criminal law it happens more often than in other disciplines, but it is still relatively rare for a lawyer to read a judgment and immediately know that it will in time be seen as one of the most influential cases in Canadian law.

I am sure I do not overstate the epiphany that is the unanimous decision of the Supreme Court of Canada in R. v. McNeil, 2009 SCC 3 which was released on January 16.

http://scc.lexum.umontreal.ca/en/2009/2009scc3/2009scc3.html

In a nutshell, the facts of McNeil are pretty simple...he was convicted of possessing marijuana and cocaine for the purpose of trafficking based heavily on the evidence of Constable Hackett...who himself had been professionally disciplined under the Police Act and charged criminally for "drug related misconduct". The problem for McNeil was he didn't get to know about this key information until after he was convicted.

Thinking that his appeal of conviction might be assisted with the introduction of the police disciplinary records and criminal investigation documents as fresh evidence, McNeil sought production...perhaps even believing that he would be assisted by the Crown in his search for truth as suggested in this quote from R v. Boucher, [1955] S.C.R. 16, adopted by the unanimous SCC in R. v. Stinchcombe, [1991] 3 S.C.R. 32:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

Further, in Boucher, Rand J. had quoted with approval from the 1865 judgment in R. v. Ruddick where it was noted that prosecuting counsel should consider themselves to be "ministers of justice" rather than to focus on winning a conviction.

Alas for Mr. McNeil, notwithstanding that the documents he sought were in the possession of both the Barrie Police Service and the provincial Crown prosecuting the criminal charges against Hackett, "[b]oth entities resisted production, and the federal Crown supported their opposition to the motion."

I repeat my opening quote, "It is a public scandal that offends; to sin in secret is no sin at all."

The Court of Appeal of Ontario ordered production of the documents and so the Crown appealed further. Mootness, an amicus curiae, residual expectations of privacy and a bunch of other things get addressed but the bottom line is that the SCC was asked to decide when and how records and information of police misconduct ought to be disclosed to accused persons.

The SCC reaffirmed essentially everything that it has said previously in Stinchcombe and subsequent cases, including drawing an appropriate distinction between the prosecuting Crown and other "3rd party" state entities. Where the epiphany comes for me is at lucky paragraph 13 where Charron J. writes that the prosecuting Crown has an:

...obligation to make reasonable inquiries of other Crown entities and other third parties, in appropriate cases, with respect to records and information in their possession that may be relevant to the case being prosecuted. The Crown and defence in a criminal proceeding are not adverse in interest for the purpose of discovering relevant information that may be of benefit to an accused.

Wait...it gets better...

Not only does the oft-cited but (in my experience) almost never followed Boucher quote get meaningful reiteration, but the so-called "ministers of justice" not only have to look for relevant information that might assist the accused, but the police and other investigating authorities actually have a corollary obligation to provide such information...BEFORE THE CROWN OR DEFENCE EVEN COMES LOOKING FOR IT!:

The necessary corollary to the Crown's disclosure duty under Stinchcombe is the obligation of police (or other investigating state authority) to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force...acts on the same first party footing as the Crown.
...records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the "first party" disclosure package due to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused...

Charron J. continues even further at para. 49:

The Crown is not an ordinary litigant. As a minister of justice, the Crown's undivided loyalty is to the proper administration of justice. As such, Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter. Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfill its duty as an officer of the court without inquiring further and obtaining the information if it is reasonably feasible to do so.
...
The same duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case...the Crown and defence are not adverse in interest in discovering the existence of an unreliable or unethical police officer...

And, yes, it even gets better at para. 53:

...Obviously, the accused has no right to automatic disclosure of every aspect of a police officer's employment history, or to police disciplinary matters with no realistic bearing on the case against him or her. However, where the disciplinary information is relevant, it should form part of the first party disclosure package, and its discovery should not be left to happenstance.
...findings of police misconduct by a police officer involved in the case against the accused that may have a bearing on the case against an accused should be disclosed.

And just to ensure that an appropriate cherry-like morsel of prose is placed atop the judgment, Charron J. wraps up with this statement of principle at para. 59:

...Where the information is obviously relevant to the accused's case, it should form part of the first party disclosure package to the Crown without prompting. For example, as was the case here, if an officer comes under investigation for serious drug-related misconduct, it becomes incumbent on the police force, in fulfillment of its corollary duty of disclosure to the Crown, to look into those criminal cases in which the officer is involved and to take appropriate action.

For those of us practicing criminal law, it should not be difficult to see how brilliant Charron J.'s judgment is. We all have had our opportunity to catch an officer on the stand, wrapped up in a lie or attempting to strengthen her evidence by "remembering" reams of details that are not in her notes. But we have absolutely no idea how many of these officers have been disciplined for dishonesty to their superior officers, or for failing to follow use of force policy (i.e. excessive use of force during arrests) because almost all of these matters are done in private hearings with no published statement of findings of guilt.

If we ever do come across such matters, it is clearly "happenstance" to use Justice Charron's term, and far from the police and Crown taking steps to align in interest with the accused in exposing unreliable or unethical police officers, the opposite is almost always the case. Well, Charron J. has cracked the "code of silence" it would seem.

For those of you who may be Crown attorneys or just regular defence-lawyer hating citizens and who think that disclosure of police misconduct is either already done as Boucher would suggest it ought to be, or is some kind of unfair notion that police should be "on trial" instead of the accused, or that police can just be outright trusted to do the right thing, I offer you a striking example from Calgary's finest.

I have previously written of the injustice that was the Killian-Constant case where police did a paramilitary dynamic search warrant for a grow-op that didn't exist based on a warrant obtained on no proper grounds:

http://calgarycriminallawyer.blogspot.com/2008/08/see-no-evil-hear-no-evil-doapparently.html

What I did not criticize in that article was the misconduct demonstrated by then Cst. Ian Vernon with respect to altering his note book to add grounds for a search warrant after the botched raid turned up nothing but the makings of a law suit and complaints to the Law Enforcement Review Board.

http://www.canada.com/calgaryherald/news/city/story.html?id=17720957-0ff2-44f8-a749-e4aeca1b43bc&p=2

Throughout the 7 year long legal battle a memo surfaced through Freedom of Information Act requests that showed just how the Calgary Police Service responded at the highest ranks when they found an officer possibly fabricating notes.

They reported it right away to the Crown right? Nope.

They disclosed it to the defence lawyers who were acting for the persons accused in Cst. Vernon's debacle right? Nope.

Instead, then Inspector (to become Deputy Chief) Hornby wrote to then Deputy Chief (now Chief) Rick Hanson as follows:

"I have a situation where I believe an officer's notebook has been modified improperly that may bring the service into disrepute,"

"If the defence recognizes the change and learns a warrant was obtained in this manner, it could have serious repercussions on any testimony Const. Vernon may give, now or in the future,"

I repeat again, "It is a public scandal that offends; to sin in secret is no sin at all."

What is striking about this example and the SCC decision in McNeil, is that the very existence of this memo demonstrates the relevance of this incident (and subsequent internal discipline for violating the CPS note-taking policy) and ensures that on every case that officer Vernon participates from now on that this should form part of the Crown's standard disclosure.

I suggest that the McNeil case will become so influential because it will serve to accomplish a number of things:

1. Accused persons alleging police misconduct will actually have a chance to get relevant information on point.

2. Judges and prosecutors will actually start to see proof (that has always been in the possession of the police) of many assertions of police misconduct that were previously chalked up to vexatious fabrications by unscrupulous accused.

3. The internal police disciplinary process will no longer be a meaningless exercise in futility for complainants.

4. "Bad cops" might actually choose not to misconduct themselves for fear that their reputations may actually include what were previously items that just stayed in the closet.

5. "Good cops" will be distinguished more readily from the bad and enjoy the reputations they deserve without having to share such reputations with officers who misconduct themselves.

Maybe there will be many other spin-off results as well, I guess only time will tell (e.g. does Homefront disclosure simply become part of Stinchcombe given that Crown counsel will clearly know them to be in possession of relevant information...and they are right there in the courtroom so it is clearly feasible to inquire).

For now, I'm off to start writing some follow-up disclosure letters...

Daily Affirmations - With Attorney General Alison Redford

2008-11-03T10:45:00.003-07:00

I can just see it now...Alberta's Justice Minister with her own cable television show looking over the shoulder of one of her Crown Prosecutors and into the mirror for a delusional responsibility-shirking soliloquy that would make Saturday Night Live's Stuart Smalley beam with pride:

Crown Prosecutor: "Hello, [Insert Crown's name here]."

Attorney General: "I don't have to be a great prosecutor..."

Crown Prosecutor: "I don't have to be a great prosecutor..."

Attorney General: "I don't have to read the Criminal Code, or textbooks on criminal evidence or research current case law..."

Crown Prosecutor: "I don't have to read the Criminal Code, or textbooks on criminal evidence or research current case law..."

Attorney General: "Because all I have to do is be the best [Insert Crown's name here] I can be."

Crown Prosecutor: "All I have to do is be the best [Insert Crown's name here] I can be."

Attorney General: "Because I'm good enough, I'm smart enough, and doggonit, people like me!"

Crown Prosecutor: "Because I'm good enough, I'm smart enough, and doggonit, defence lawyers are too good for me!

Why do I launch such criticism? Because I don't like being publicly accused by the Justice Minister of being the cause of delays and problems with the criminal justice system as she makes what is seemingly another daily attempt to grab votes while simultaneously blaming anyone but her or her employees for systemic problems.

http://www.canada.com/edmontonjournal/columnists/story.html?id=644893cd-a3f9-4d67-95ee-5159decc8b45

...Justice Minister Alison Redford blamed the backlog not on overtaxed courts but on defence lawyers, who, she suggested, exploit procedural redundancies in the Criminal Code to delay trials.
"Our courts are very well-resourced," said Redford. "We have the judges who can do the work. We have the prosecutors who can do the work."
The problems, she claimed, stem from Criminal Code rules that she said give the defence a strategic advantage. "Frankly, defence counsel is very good at using those."
...
"I'm not going to let defence counsel get away with saying that there's not enough Crown prosecutors, or that they don't know what they're doing..."

So, I guess this column is my way of saying that I'm not going to let the Attorney General get away with saying that she respects the work defence lawyers do while openly disrespecting us...and without facts or legitimate foundation to do so. Nor will I let her attempt to say that Crown prosecutors are somehow victims when defence counsel choose to outwork and thereby outwit them.

Consider an example from my first year as a lawyer called R. v. Gateway Collections:

http://www.ruttanbates.com/Gateway_Collections_Judgment.pdf

I suppose that I exploited a procedural redundancy in the Charter to get a stay of proceedings and an order for costs against the Crown...at least as Ms. Redford seems to look at these things. I on the other hand am of the view that Crown neglect and impropriety was the cause of my client "getting off" and the judge (whose decision was not appealed by the Crown) agreed:

I find the conduct of the Crown in this matter regarding its disclosure obligations to be generally consistent with Crown counsel’s conduct throughout these proceedings, which left an overall air of neglect pervading this prosecution. Failing to appear for pre-trial conference, failing to follow the Court’s directions regarding setting continuation dates, and failing to respond to telephone communications from the Court all display a pattern of neglect akin to the lack of response received by defence counsel to numerous entreaties for proper disclosure. I find this conduct on the part of the Crown to be egregious and unacceptable, and in the circumstances prejudicial to the defence in preparing their case and making full answer and defence to the
charges.

Now, it would be wrong for me to suggest that this case somehow means that all Crowns are incompetent or unethical...and I do not make that suggestion at all. So why is it permissible for Ms. Redford to paint all defence counsel with a single stroke to make some political point? It isn't. And I would say to Ms. Redford that she is playing a most dangerous game if she thinks she will further her law and order agenda (a laudable goal) by repeatedly slapping defence lawyers in the face.

Dorothy Wright Wilson, Dean of University of Southern California Law has been quoted as saying, :If criminals wanted to grind justice to a halt, they could do it by banding together and pleading not guilty."

Ms. Wilson was absolutely correct.

While I digress into anecdotal evidence, now retired ACJ Brian Stevenson was always touting the statistics of how many cases the Provincial Court (Criminal) Division was able to process every year. By my recollection a couple of years ago the stats suggested that only about 12 percent of criminal cases were ever set for trial. Regardless of the precise number, all of us in the system, including Ms. Redford, know full well that the vast majority of cases are dealt with by way of guilty plea.

Referencing Stats Can for the most recent numbers online (2005/2006) one can see that in Alberta alone some 50,527 adult criminal matters were processed that year...with 33,926 findings of guilt, 743 acquittals, 15,288 stays of proceedings and 570 "other".

http://www40.statcan.ca/l01/cst01/legal19j.htm

I would go out on a limb and venture to say that if even one third of criminal cases were set for trial that the system would simply crumble under the pressure.

Therefore, Ms. Redford and the people of this province owe a major debt of gratitude to criminal defence lawyers who, in the vast majority of cases, advise and assist their clients in pleading guilty and therefore prevent systemic paralysis and implosion.

If we as defence lawyers were behaving the way in which the Justice Minister suggests then we would already have true chaos in the criminal justice system...and if she keeps telling any reporter with a pen that we are actively doing it, she is inviting a self-fulfilling prophecy of sorts. Ms. Redford might be wise to consult the history books for the quote attributed to Admiral Yamamoto following the "success" that was the attack on Pearl Harbor:

I fear all we have done is to awaken a sleeping giant and filled him with a terrible resolve.

I know, I know, a bit melodramatic...but the point is valid. If you really want to see how bad things would be if criminal defence lawyers were truly your enemies (trying purposefully to create delays and problems in the system) as opposed to just your adversaries (trying our best to serve our clients according to law) then just keep calling us your enemies and keep blaming us for all that is wrong in the system.

If however you would like to see fairness and justice done (as closely as can be done by any human-run system) then lobby for changes to the legislation if you want...just leave out the slight to the integrity and reputations of us defence lawyers who are doing everything in our abilities to uphold our side of the scales.

And maybe look to see if your side of the table might find some area for improvement when looking in the mirror rather than just daily affirmations that everything you are doing is right because that is what you choose to tell yourself.

Stupid Is As Stupid Does - CPS Get "Rough Ride" at Stampeders Game

2008-10-22T23:57:00.002-06:00

When the lovable Forrest Gump finds himself constantly being asked if he is stupid, his pre-loaded retort in effect asks the questioner to judge him by his actions...he's only stupid if he behaves stupidly.

By that standard, there was a whole pile of "stupid" on display at the recent Calgary Stampeders vs. Saskatchewan Roughriders football game when a group of apparent rowdy 'Rider fans got introduced to what is becoming an all too frequent CPS modus operandi of police-initiated escalation of risk based on some warped interpretation of a peace officer's role in society.

http://calgary.ctv.ca/servlet/an/local/CTVNews/20081017/CGY_drinking_stampeders_081017/20081017/?hub=CalgaryHome

There is little doubt that "stupid" aptly describes the fan(s) getting so drunk or rowdy that police even needed to address them in the bleachers in the first place.

However, there is equally little doubt that "smarts" were not part of the police officer's assessment that the best peace-enforcing, respect-commanding, protection of the public option to deal with the situation was to not get any of the over 30 other police officers in the stadium for back-up, impulsively engage the crowd of unruly spectators, forcibly grab one by the throat and then begin to haul him away with back turned to the remainder of the crowd.

As for the second spectator, "stupid" is about the only word for his attempt to grab the police officer...no matter what his reason or intention.

But that said, when the second spectator attempted to grab the officer from behind (maybe to plead to leave his buddy in his seat, maybe to obstruct, maybe even to grab a weapon...which I accept, the officer in the video could have thought was happening) it was just plain "stupid" for the police officer to release the suspect he was forcibly removing, turn, and close a gap of 7 to 10 feet for the purpose of punching the second guy with such lack of control and awareness of the surroundings that he tumbled head first down the stands on top of other fans and into the group that included the very person who might have been attempting to do a "gun grab" (although I think 20/20 hindsight allows us to say it is pretty unlikely that is what the fan was doing).

Eyewitness Bert Bartake's quote to the Calgary Herald sums up very concisely why I so strongly criticize how the officer behaved in this incident:

"It could have been a very dangerous situation...[H]is gun was completely exposed and vulnerable in the crowd."

http://www.canada.com/calgaryherald/news/city/story.html?id=9aadfb05-5d1d-43dd-b0e2-1e999dfcd6f1

And perhaps more to the point, this whole incident results because of "...a Roughrider fan allegedly throwing objects and pouring beer into the crowd..." Unpleasant for sure...but I would much rather have to wash beer out of my favorite sweatshirt than to be struck from behind by a flying police officer who didn't restore order to this situation in any way shape or form but instead played a significant and active role in turning this from a nuisance into a violent altercation.

But much to my dismay, the "stupid" doesn't stop there. Normally media-savvy Chief of Police Rick Hanson in a misguided attempt to smooth over the incident on behalf of his officer is quoted as saying:

"You're in the stands, you're surrounded by drunken louts who have lost all semblance of sanity in many cases..."

What!?!?!

With all due respect Chief, I would suggest that your officers were actually surrounded by in excess of 30,000 lucid, law-abiding citizens of sound mind...with a minuscule minority of troublemakers salted therein. I might even go so far as to suggest that this incident got out of hand as it did because the officer approached it as a group of insane drunken louts in need of a dose of authority as opposed to a group of over-eager but otherwise law-abiding football fans.

But wait, Calgary Police Association President John Dooks goes further and says:

"The officer had to react and I have no concerns. His actions were appropriate and defensive."

What!?!?! (again)

No concerns? Seriously? This incident played out how you would hope it to? A repeat of this at the next game is fine by you?

Look...I'll give the officer that he was defensive and that he had to react. If we cannot be reasonable in giving police officers significant benefit of doubt then we cannot expect them to react decisively in the heat of the moment when we need them the most.

But how can Mr. Dooks not see that the officer had to react defensively to the situation that he created? And how can the CPA President, himself a seasoned veteran police officer, think that tumbling uncontrolled with virtually no ability to maintain any order (or protection of his complement of weapons, including his firearm) amounts to "appropriate action" by a police officer?

Much like the RCMP tazering of an immigrant in an airport after mere seconds on the scene, this incident and many other examples of police conduct these days leaves many members of the public wondering if the officers even know that by virtue of holding their public office that they are peace officers as well as police officers.

The use of powers of arrest and prosecution is far less desirable in a democratic society than the use of powers of dialogue and persuasion. If the CPS were to attempt to implement this idea, I think they'd find themselves getting much fewer "rough rides" in their day to day operations.

At risk of making more of this incident than it really is, I think it astute to close this commentary with an attempt to minimize stupid behaviour by otherwise honorable, well-intentioned public servants:

“Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive."
- C.S. Lewis

“This and no other is the root from which a tyrant springs; when he first appears he is a protector."
- Plato

Food for thought.

If You Can Be Accused of the Crime...You Can Do the Time

2008-09-06T02:05:00.003-06:00

That's how the saying goes is it not?

Well in Alberta, it is not only the status quo but it is apparently the express intention of our Minister of Justice to make this an official provincial motto.

I quote Minister Alison Redford from the erudite dissertation by the Calgary Sun's Rick Bell, "No Hugs For Thugs" as follows:

http://calsun.canoe.ca/News/Columnists/Bell_Rick/2008/08/31/6621796-sun.php

"It's fine if we have more people in jail. I want to keep more people in jail in remand."

With all due respect Madam Minister, perhaps your focus should be less accused people in jail, and more convicted after the fair trial they are entitled to in our free and democratic society:

http://www.cbc.ca/canada/edmonton/story/2007/11/22/remand-numbers.html

"Alberta facilities now hold more people waiting for court dates than those servicing sentences. According to the solicitor general's office, 1,513 people are currently in remand waiting for trials or sentencing compared to 1,107 actually serving sentences in provincial jails."

You don't have to be an accused person to know that routine criminal matters in Calgary are regularly taking a year to set for trial from the date they are booked...so it is no small event for a person accused of a crime to be denied bail.

Now, to be fair, persons detained in custody get preferential trial dates so they are often waiting for trial for much shorter periods...and hey...what's a few months give or take in 23 1/2 hour lock-up wearing communal blue coveralls with access to basically no work, school or recreational options if you are waiting to be found innocent?

I am sure the Minister would have no issue taking a few month holiday in the Calgary Remand Centre...

Ms. Redford says that she is frustrated by what Mr. Bell refers to as a "gong show" of a justice system and that she wants us to get back to "simple principles of justice." I for one would have preferred Alberta's top lawyer to stand up for our system to the hyperbolic pandering of a so-called journalist, but that ship having sailed, let's take a look at the simple principles our Justice Minister speaks of:

"I don't believe just because someone is arrested they should be entitled to bail immediately. What people are entitled to is a bail hearing and there doesn't have to be agreement between defence counsel and Crown counsel to give them bail.
"It's fine to be presumed innocent until proven guilty but a bail hearing is not like a trial and the reason we have bail is to ensure those people who are not likely to re-offend and who will show up for their court date can, in some cases, continue to work. I don't think that's where bail is now."

Wow. Okay, people are not just entitled to a "bail hearing" they are entitled to not be denied reasonable bail without just cause...or at least that's what the Constitution says. And forgive me for arguing, but the reason we have bail is to ensure that innocent people do not serve jail sentences for crimes they have not committed. Or, for that matter, that guilty people do not serve jail sentences where other fit sentences would suffice.

It is only where "just cause" is shown that a person should not get bail (subject to certain reverse-onus situations), otherwise the presumption of innocence is meaningless. Reasonable bail is not a work permit for "some cases" it is an essential element of a just system of criminal law and a vital protection of the right to life, liberty and security of the person (also protected in the Constitution).

And since we are talking simple principles...to be presumed innocent until proven guilty is about as fundamental of a principle as our system has. "It's fine" to have a centuries old building block of due process and the rule of law as part of our criminal process? That is an awfully flippant way to speak of another right that is, you guessed it, specifically protected in our Constitution.

Now it's hard to argue with the Minister saying people on bail should be abiding by the conditions...and not excused for breaching. Of course, they are presumed innocent until proven guilty of that too, so, see above.

Also, I don't personally agree with minimum sentencing, but I don't have much problem with a Justice Minister advocating such a position. But then this comes along:

"I want people to be given one to one credit for remand, end of story. Not two for one, not three for one. Every day in remand should be one day off your sentence, not three days off your sentence.
"What you have right now is people delaying getting to trial because they know they're getting two-for-one credit or three-for-one and, all of sudden, they're sentenced and they're out in two or three months. That is wrong."

First off...at the normal two-for-one credit for remand time, by not having a backlog of a year to get to trial, the "system" could eliminate months and months of "benefit" to offenders for their pre-trial custody.

That said, convicting and sentencing them quicker will not result in them being incarcerated any longer. The two-for-one credit is meant to mimic the statutory remission that offenders get when serving time. Why should a person in jail prior to conviction get less credit for their time behind bars than the person serving post-conviction? That is what one-for-one remand credit would do.

Now the Minister either knows this and is being disingenuous on her stance regarding pre-trial custody credit, or she doesn't realize that part of the equation and we have a bigger problem than I thought. Or maybe she is proposing to amend the legislation and take away remission for sentenced offenders as well? I suppose we'll have to wait and see.

I guess my point overall is this...I was quite surprised to see the vigor with which the Minister of Justice joined forces with a media opinion columnist to trash the very system over which she keeps watch...particularly in a province that has no previous government to blame for the current state of affairs. I was also quite confused when I tried to reconcile the comments in this article with Ms. Redford's MLA bio which starts off with, "Ms. Redford, a human rights lawyer..."

http://www.assembly.ab.ca/net/index.aspx?p=mla_bio&rnumber=08

With an impressive resume including many prestigous posts connected with the United Nations, I would be very interested to hear what Ms. Redford intends to do to have Alberta come anywhere close to compliance with the United Nations Standard Minimum Rules for the Treatment of Prisoners.

http://www.unhchr.ch/html/menu3/b/h_comp34.htm

C. PRISONERS UNDER ARREST OR AWAITING TRIAL
84. (1) Persons arrested or imprisoned by reason of a criminal charge against them, who are detained either in police custody or in prison custody (jail) but have not yet been tried and sentenced, will be referred to as "untried prisoners,' hereinafter in these rules.
(2) Unconvicted prisoners are presumed to be innocent and shall be treated as such.
(3) Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners shall benefit by a special regime which is described in the following rules in its essential requirements only.
85. (1) Untried prisoners shall be kept separate from convicted prisoners.
(2) Young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions.
86. Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.
87. Within the limits compatible with the good order of the institution, untried prisoners may, if they so desire, have their food procured at their own expense from the outside, either through the administration or through their family or friends. Otherwise, the administration shall provide their food.
88. ( I ) An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.
(2) If he wears prison dress, it shall be different from that supplied to convicted prisoners.
89. An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.
90. An untried prisoner shall be allowed to procure at his own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution.
91. An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred.
92. An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.
93. For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.

Treating remand prisoners like they are innocent? Benefit from a special regime? Sleep singly in separate rooms? Get their own food? Wear their own clothes? Be offered the opportunity to work? AND GET PAID??!!?? Have access to their own doctors? Soundproof counsel interview rooms?

Probably easier to just not deny them reasonable bail without just cause.

Justice Denied

2008-08-19T23:58:00.003-06:00

"There are two kinds of failures: those who thought and never did, and those who did and never thought." - Laurence J. Peter

For all of the criticism I have directed towards the Calgary Police Service in the past, I felt compelled to comment on the following story:

http://calsun.canoe.ca/News/Alberta/2008/08/09/6395061-sun.html

Constable Sean Hasson was acquitted of what originally proceeded to trial as an allegation against him of aggravated assault. The case against him was apparently pathetic...so much so that the Provincial Court Judge made comments which loosely paraphrased meant that it would not have been possible for any reasonable jury properly instructed to convict.

So I hope that the good constable is truly a beneficiary of the presumption of innocence and that he is not plagued in his return to work with lingering doubts on the part of his fellow officers or members of the public. As a believer in our system of justice, I am sure that he is entitled to that.

Now, as a defence lawyer, writing a column for Calgary Criminal Lawyers' Weekly, one might expect me to give praise to my colleague Willie DeWitt for his masterful defence of his client, but...no offence to Mr. DeWitt, and unable to resist the boxing reference...I cannot be sure that his opponent didn't simply throw the fight, figuratively speaking.

In fact, as a member of the public who was not in the courtroom that day, I cannot figure out what possibly could have happened here, but in my view, an example of justice this case is not. I don't say this because alleged police brutality went unpunished, rather, the bad taste in my mouth is owing to the apparent ineptitude of the Attorney General for Alberta as represented by the Province's Crown Prosecutors' Offices.

What possible explanations are there for what happened?

Maybe the Crown who recommended the charge of aggravated assault "did without thinking" and committed a serious injustice against Constable Hasson forcing him to face the ordeal of a criminal prosecution that had no reasonable likelihood of conviction?

Or maybe the Crown at large did properly think the case through but the prosecution "never did" do its job in preparing the case for trial and the injustice is to the alleged victim?

Or maybe a perfectly appropriate case did just implode for no apparent reason.

The problem is, how is the public to figure out which of the above it is?

Now, before going any further down this road, let me say one thing...the actual individual Crown Prosecutor of this case should be commended for throwing in the towel once it was apparent that the case could not be made. It is not an easy task to fall on your sword but it is one all good prosecutors should be prepared to do when the evidence just isn't there.

But here's the problem I continue to have; how is it possible that the Crown downgraded the prosecution just before trial to assault causing bodily harm, but was surprised that his own witnesses' evidence did not come remotely close to supporting even that lesser charge?

I mean, Witness #1 (the complainant) says he was sober and cooperative when the police officer broke his jaw with an intentional knee to the face. Witness #2 (the complainant's friend) on the other hand says the complainant was highly intoxicated and belligerent with the officers.

His own friend doesn't support the allegation?!?!?!?!?

Witnesses #3 and #4 (other cops) called by the Crown gave completely exculpatory evidence consistent with that of the complainant's friend.

And two constables who assisted Hasson in detaining Cerato while investigating a
fraud complaint, said the injured man became aggressive when he was asked to return to a bar to pay his tab. Both Const. Garry Jansen and Const. Joseph
Dalton said Cerato was clearly intoxicated and initially refused to come with them when asked to return to Len's Den to pay a $16 bill.

Dalton said Cerato swore at his partner repeatedly, while Jansen used "verbal judo" to coax him into co-operating. Cerato, who was speaking to the officers from the
second-storey balcony of the northeast apartment complex where he lived,
eventually agreed to meet them at the door. But when he emerged he continued to
be abusive to the officers, who now included Hasson, they said.
Both Jansen and Dalton, who were called as Crown witnesses, said Cerato took an aggressive stance. Hasson then pulled him to the ground and when Cerato continued to resist he was cuffed. During the struggle Hasson accidentally kneed Cerato's jaw,
Jansen said.

With all due respect, with this evidence this case never had a chance...and "the Crown" as an institution looks foolish for proceeding...especially where the accused was someone we actually expect to place himself in harm's way and to use force to apprehend suspected offenders.

As citizens, we should demand better. This case leaves the appearance of a "show trial"...the state going through the motions to prove to the public that it will not tolerate police misconduct. The only problem is, the state appeared to lack any reliable evidence of police misconduct!

I am the last guy to advocate turning a blind eye when police break the law...but I hope that I am also near the back of the line when it comes to running trials against accused police men and women in the face of insurmountable evidence to the contrary.

See No Evil, Hear No Evil - Do...Apparently Nothing

2008-08-02T14:07:00.003-06:00

The Calgary Police Commission has found a way to metaphorically kick itself in the groin as evidenced by comments from the Commission chairman regarding the recent resolution of the outrageously long-lived citizen complaint of one Nancy Killian-Constant:

http://www.canada.com/calgaryherald/news/city/story.html?id=df016465-b504-4301-89ca-fd696e9a2091&p=1

Now, let me be fair here...Calgary Police Chief Rick Hanson has demonstrated tremendous skill and judgment in bringing this matter to a close in such a way that has prompted the complainant to state that she is, "...inspired and impressed with the Calgary Police Service."

Chief Hanson has demonstrated that by doing what ought to have been done right from the outset - apologizing and taking responsibility for what was at best police incompetence in an unlawful tactical entry of an innocent family home - even very bad mistakes can be forgiven.

But the feel-good nature of a Chief of Police making amends for the behaviour of his officers - which included highly suspect notebook alterations and a memo regarding same being exchanged at the upper management levels of the service - does not allow the Calgary Police Commission to join in the accolades.

The Calgary Police Commission is supposed to be an independent civilian watchdog which holds the Calgary Police Service accountable:

http://www.calgarypolice.ca/about/commission.html

Well, it may have civilian members, but this case makes the Commission look neither independent nor like a watchdog...maybe the "oversight" they talk about in their mission statement to them means failing to look at the Calgary Police Service as opposed to monitoring it?

Let me highlight just what I mean.

The Calgary Police Service has fought long and hard for 8 years against the efforts of Ms. Killian- Constant and her family to get justice for being victimized by the absolute rudder-less ship that was the group of sworn police officers who violated their home.

This long battle was waged by the Calgary Police Service notwithstanding that there was never any legitimate dispute that they messed up huge when they obtained and executed a dynamic entry search warrant for a drug operation that didn't exist based on an unverified tip from an individual who was feuding with the Killian-Constant family at the time.

Where was the oversight of the Calgary Police Commission during those 8 years? Why were the independent citizens not intervening and making then Chief Jack Beaton and the officers involved take responsibility? Why were the victims being victimized again?

Why was the Calgary Police Service given free reign to apply to the Law Enforcement Review Board asking for $15,000.00 in legal costs to be paid by Killian-Constant due to her "frivolous and vexatious" pursuit of her claims of wrongdoing only to a couple of years later have the Calgary Police Service enter into a secret settlement agreement with the family, topped cherry-like by a public apology from the Chief of Police?

The Calgary Police Service was either wrongly fighting the battle then, or they have wrongly thrown in the towel now...I think that the citizens of Calgary are entitled to know which it is.

For its part, the Calgary Police Commission had this to say:

Calgary police commission chairman Denis Painchaud said the Killian Constant case also highlighted the need for better public oversight of the police.

"Obviously, you have to give a lot of credit to Miss Constant and their family. They were persistent, courageous and diligent," he said. "It was frustrating for us, but hats off to her for staying with it because, at the end, everybody learned from this."

What?!?!?!

Well, who does the Commission think ought to take the blame for there not having been "better public oversight"? And now what the service called frvolous and vexatious (which the LERB agreed with) is called persistence, courage and dilligence which is deserving of "alot of credit"? Take our ceremonial white hats off to Nancy for "staying with it"..."it" presumably referring to the previously-dubbed frivolous and vexatious complaints?

This doublespeak is truly remarkable for its level of absurdity.

And who is the "us" that were frustrated by Ms. Killian-Constant? See, if she was right about the improper police conduct (as the Commission chair suggests in his thanking her for the learning experience) then why would the Police Commission be frustrated by that? Again, the perception is that the Commission has aligned itself in its identity with that of the Police Service...rather than as its watchdog.

In my view, while this settlement represents a positive for the individual complainants, it does nothing to garner public confidence in the citizen complaint system...it does just the opposite. How many average citizens would have the financial and emotional resources to pursue their righteous cause through 8 years of hell? What if the police service doesn't give up so easily next time?

No, it seems to me that we are the point where if you want police accountability, go get it yourself...I mean, let's face it, that's exactly what Nancy Killian-Constant did. Did the office of the Chief of Police provide it? No. The Calgary Police Commission? Hardly. The Law Enforcement Review Board? Well, I guess we'll never know since those proceedings were ended by the settlement.

And sadly, we are not alone in this state of official police non-accountability:

http://www.canada.com/vancouversun/news/westcoastnews/story.html?id=506a36a6-bbc2-4f8a-a941-46d2a1d0b85c

The B.C. Civil Liberties Association and Pivot Legal Society will no longer refer people claiming to have been wrongfully abused by Vancouver police to the office of the police complaint commissioner.

In the past, both organizations would help people make complaints to the OPCC, but that process didn't work, policy directors for both groups said Thursday.
"The system is broken. People don't have confidence in the process and they feel they aren't being treated fairly," said the B.C. Civil Liberties Association's Michael Vonn.
...
While the boycott is in place, Pivot and the civil liberties association will process allegations against the police through small claims court.
Five such claims have been launched by Pivot within the past year, said King. Two were settled out of court while in July 2007 a third resulted in a successful action against a police officer for unlawful detention with a judgment of $5,500 being awarded, he said. Two of the cases are still to be dealt with, he said.

"There have been monetary settlements and we feel that when a judge makes a ruling -- and it's public -- then the police department will take the incidents a lot more seriously and dish out more appropriate punishment to the officers," said King.

I can't disagree with that.

Tasers Don't Kill People, Police Kill People?

2008-07-24T02:06:00.003-06:00

The controversy around Taser use will never abate as long as citizens keep dying shortly after having 50,000 or more volts course through their bodies courtesy of a member of the local constabulary. This statement is never more true than when the deceased is a young person.

http://www.cbc.ca/canada/story/2008/07/23/taser-winnipeg.html

I struggled with whether the title I chose for this post was a fair way to provoke debate...you will likely recognize the borrowing I have done from the popular slogan of the North-American gun-lobbyists. I settled on the title as appropriate, however, in large part due to this comment from the report of the RCMP Public Complaints Commissioner:

"The Taser must be in the hands of those qualified and trained, but also those who have the knowledge, experience and judgment to know in which circumstances this weapon may be most effective."

The interim report by the same Commissioner really seems to have hit what the problem is as I see it:

http://www.cbc.ca/canada/story/2008/06/18/taser-report.html

In an interim report, Kennedy had called on the force to restrict its use of stun guns, saying the weapons are increasingly employed to subdue those who are resistant rather than those who pose a threat.

In that report, Kennedy criticized the RCMP for failing to manage the use of Tasers and allowing usage to grow over the past six years to include cases where people were "clearly non-combative."

It seems to me that all of the debate and analysis about use of force protocol and status of the weapon as lethal versus non-lethal will be completely meaningless...unless the public can trust that Tasers are being used sagaciously and not in the manner of a small child on Christmas morn' desperate to try out his or her new toy in attempt to make a suspect ape a "fish out of water".

So, here's the question I think is left begging. How can we possibly trust that Tasers are properly being used by police when there are numerous ongoing inquiries into their use and safety and the RCMP Complaints Commissioner has already told us that the RCMP have been using it improperly on non-threatening people? All the while, Taser use continues as do resulting deaths.

Seriously, can we not put the electro-convulsive version of suspect control on the shelf for long enough to sort out these issues so that we can complete inquiries already in progress without killing more citizens while we wait for the reports?

Maybe this young guy in Winnipeg was sufficiently threatening police with his knife to justify lethal force with a firearm...in which case one could hardly fault an officer for having erred on the side of the Taser. But how can we have any confidence in this? In my opinion policing agencies have completely failed to prove that such confidence is well-founded, and until they do, they should have to arrest people like they did before Tasers were invented.

One final bit to ponder (that I have not previously seen pointed out in the volumes of debate on this issue) as a civilian, I can lawfully purchase a 9mm handgun which is virtually identical to the ones police carry...but a Taser is a prohibited weapon that a civilian cannot lawfully possess.

Now, I know that it's hard to imagine legitimate sporting target practice with a Taser...whereas many handgun owners use them for just that...but it does seem a bit odd that I can own the lethal weapon but not the one that I'm being repeatedly told has never been proven to directly cause a person's death.

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

2008-04-20T12:12:00.000-06:00

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...

http://www.cbc.ca/canada/calgary/story/2008/04/18/hehr-guns.html

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...

Please.

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.

http://www.canlii.org/ca/sta/c-46/sec94.html

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.

Anger Cannot Be Dishonest - Calgary Police Brutality Allegation

2008-04-10T11:59:00.004-06:00

"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:

http://www.calgarysun.com/media/policevideo/policevideo.html

http://www.cbc.ca/canada/calgary/story/2008/04/09/cop-video.html

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.

Coastguard?

2008-02-08T09:01:00.000-07:00

I just can't get the image out of my mind...Homer Simpson has formed a vigilante group whose thuggery rivals that of the very criminal element they intend to combat. When asked by the insightful Lisa if his group is now the police, then "who will police the police"? the slovenly and slothful father-figure manages enough initiative to shrug his shoulders and unintelligently answer the rhetorical question with "I dunno, Coastguard?"

Cut the scene to the Alberta Solicitor General's brand new initiative to bring back public confidence in the realm of police discipline and accountability through a whole new level of "civilian" oversight...the Alberta Serious Incident Response Team (ASIRT).

The ASIRT was hatched as part of an effort to quell concerns that police internal investigations of other police could simply not be trusted to be open, transparent...and let's face it, legitimate. The public has become increasingly suspicious of there being two different sets of rules...one for police and one for everyone else...when it comes to allegations of criminal or professional wrongdoing. And with reports like the one coming out of Toronto this month where scores of very serious criminal charges against 6 police officers have all been thrown out for unexplained, unreasonable delay by the prosecutors, it is not difficult to understand public sentiments:

http://www.nationalpost.com/scripts/story.html?id=278431

The judge acknowledged that in staying the charges, "not without considerable reluctance I will add," he was ending the case on an "unsatisfactory" note, particularly for the public and the unanswered questions about corruption on the Toronto force.

But he added: "In this case the public might fairly question why it has taken until 2008 to even approach the start of a trial on alleged misconduct by police officers that occurred, for the most part, in 1997 and 1998," he said.

So, on the face of it, the ASIRT and the theory behind it should make Albertan's feel great about the fact that a special "civilian" team will be in place here to ensure that accused police officers are investigated and prosecuted the same as anyone...without any potential benefit of biased investigations or slack prosecutions. I mean, just look at what the Sol. Gen. has said about the program:

http://www.gov.ab.ca/acn/200703/21178518D70E2-0E6B-39B9-D67906191E3EF696.html

Proposed amendments to the Police Act will allow the establishment of a provincial body to investigate police when someone has been seriously injured or dies as a result of the direct actions of a police officer. This team would also investigate highly sensitive or serious matters involving police.

"The creation of this body is in line with government's goal of providing safe and secure communities for Albertans," said Fred Lindsay, Solicitor General and Minister of Public Security. "It will help maintain transparency, accountability and public trust in how investigations against police are handled."

Excellent. No need to worry about conspiracy theories here...police will be policed by "civilians", regular members of the public...public accountability making sure that justice system insiders are not the ones who could potentilly improperly influence the course of an investigation or subsequent prosecution to protect "one of their own."

Right.

The "civilian" director of ASIRT was appointed in October of 2007...and he's a Crown Prosecutor with Alberta Justice. The structure of the new ASIRT teams has been described by the government as follows:

ASIRT will be made up of two investigative units. One will be based in Edmonton to cover northern Alberta while the other will be in Calgary to investigate incidents in southern Alberta. Each team will have six investigators, a staff sergeant and administrative support staff. Investigators will be current police officers or civilians with investigative experience (including former police officers, Canadian military investigators, or Canada Customs investigators).

http://alberta.ca/ACN/200710/2222261CB6A00-C079-79AA-84C22E897FD9D21C.html

Now, for all of you holding out hope that the independent "civilian" oversight part of this initiative is going to be saved because a massive complement of Canada Customs luggage searchers are going to get the investigator's jobs...think again. The Sol. Gen. has posted the competition for the job of "Civilian Investigator":

http://www.pao.gov.ab.ca/jobs/postings/046282.htm

Alberta Serious Incident Response Team (ASIRT) is a new provincial unit set up to investigate serious and sensitive matters involving police officers. If you have experience as an Investigator in the field of law enforcement, the new positions of Civilian Investigators of ASIRT may be of interest to you. We are looking for leaders with strong senior level experience who want to continue their commitment to enhancing law enforcement and serving the community. You will be part of a team of investigators in the Edmonton or the Calgary office who investigate incidents under Section 46.1 of the Police Act. This includes incidents involving serious injury or death of any person that may have resulted from the actions of a police officer or complaints that are made alleging that serious injury to or the death of any person may have resulted from the actions of a police officer, or any matter of a serious nature related to the actions of a police officer.

Qualifications: Degree or diploma plus extensive senior level experience in the law enforcement field. Experience must include operational expertise in investigating major crimes with preferred experience in homicide. Equivalencies will be considered. Some travel within Alberta will be required.

Okay, so lets say a couple of cops in Calgary get charged with beating a homeless man to a pulp in the stairwell of a police station:

http://www.cbc.ca/canada/calgary/story/2007/12/19/officers-charged.html

Instead of just having regular police investigations which are then referred to the Crown Prosecutor for review and conduct, we are now going to benefit from the "civilian" oversight of an ASIRT investigation.

So, current and former police officers (lets face it, the job qualifications specified mean that ex-major crimes detectives are going to be the "civilian investigators") under the direction of a Crown Prosecutor investigating this type of allegation as part of an ASIRT team is different than the previous scenario how???????

Bottom line...this is a waste of money and a sadly transparent (well transparancy is what they were going for) attempt to trick the Alberta public into thinking that they are somehow protected from potential corruption by some extra-special layer of civilian oversight of police in the province.

And don't get me wrong, I'm not saying that the prosecutor appointed as director or any investigators who will be hired are corrupt. In fact, I'm not even suggesting the old pre-ASIRT process is corrupt. Actually, the link to the story of the CPS officers being charged demonstrates an example where the pre-ASIRT process apparently worked just fine.

The point I'm making is this...why are policing agencies so afraid to have actual objective civilians (i.e. never have been police officers) overseeing their activity? Maybe I'm missing something, but the whole idea of civilian oversight of police is to ensure that someone is looking at things through glasses colored anything but blue...it's the only way to identify systemic problems or to actually uncover corruption...have someone who has absolutely no connection to policing be the set of critical eyes.

If the RCMP can have a non-member commissioner, perhaps Alberta can do away with the appearance of objective oversight, and actually implement it.

And as an aside...

If the implementation of ASIRT is needed to "help maintain transparency, accountability and public trust in how investigations against police are handled" then what does that say of the jobs being done by provincial Police Commissions and the Law Enforcement Review Board?

Anyone have a CB radio and the call-sign of a local Coast Guard cutter?

Technolawyer - BlawgWorld 2007

2007-07-31T17:55:00.000-06:00

As a lawyer who tries to keep current with the various advances in technology that can help to streamline the practice of law, I am one of numerous subscribers to the Technolawyer website and news letters.

I am also a contributor to Technolawyer's online project known as BlawgWorld...an impressive collection of legal blogs from around the World Wide Web. BlawgWorld 2007 has been officially launched and includes a posting from Calgary Criminal Lawyers' Weekly as well as many many other sites that offer a wealth of on-line legal expertise.

Please feel free to download a copy of BlawgWorld and let me know what you think of it...the organizers at Technolawyer are always looking to improve things for next year.

http://www.technolawyer.com/r.asp?L11444&M1

The Impaired Driving Road - Paved With Good Intentions?

2006-12-05T07:16:00.000-07:00

Okay, someone has to say it...and since criminal defence lawyers are accustomed to taking unpopular positions, here it goes...

The federal government is going way too far with proposed revisions to the impaired driving sections of the Criminal Code. One can only hope that Parliament will debate parts of Bill C-32 into oblivion, otherwise, the Department of Justice had better prepare for a flood of new litigation claiming violations of the Canadian Charter of Rights and Freedoms.

Bill C-32 - First Reading Version

Impaired by Drug
There are a number of potential Charter issues with respect to the field sobriety tests that officers would be given authority to conduct. The official Department of Justice material speaks of "highly trained" and "expert" officers who will determine when grounds exist to demand bodily fluid samples from a person believed to be driving while impaired by a drug.

A recent news report, however, suggests that these "experts" merely go on a two-week course. Seems awfully cursory training for the officers to have a specialized ability to sort out drug-impaired drivers from the general driving public.

Expert Training

In any event, as these are truly new provisions to Canadian law, I'll hold the criticism for now because no matter how carefully crafted, there will undoubtedly be many Charter challenges to test the boundaries. Time will tell if the government did its homework before putting these provisions forward.

Sadly, if the proposed overhaul of the current alcohol impairment sections is any indicator, the report card is unlikely to be good.

Getting Tougher on Alcohol
The most common notion of "impaired driving" remains impairment by alcohol. While there are some proposed revisions that one would have a tough time arguing against, like increased minimum punishments, there are other proposed amendments that defy legal reasoning.

For example, Bill C-32 proposes the addition of two new alcohol-specific offences: 1) causing an accident that results in bodily harm while you are over 0.08; and 2) causing an accident that results in death while you are over 0.08.

We have always had impaired driving causing bodily harm or death which provides for more severe punishment than a "regular" impaired where it is shown that impairment was a cause of the harm or death. In such a scenario, it is your criminal behavior that directly results in harm to another person, and so there is a legal justification for increased punishment.

There has not previously been an "over 0.08 causing" charge because the number is an arbitrary limit which attracts criminal sanction regardless of whether you are actually putting anyone at risk by being impaired. These new offences are incredibly overbroad because you can receive a far greater criminal punishment due to a completely non-criminal factor...or even possibly a factor that has nothing to do with your behavior.

Consider a driver with a BAC of 0.10 and, because he has not maintained the brakes on his car over the past month, he hits a car in an intersection. Assume the accident was inevitable due to brake failure and that this driver has a high alcohol tolerance and was not impaired. Due to the low impact of the collision and the fact that the other driver is wearing a seatbelt, no injuries occur. The over 0.08 driver could be charged by summary conviction which under Bill C-32 would carry a maximum jail term of 18 months.

Now consider the same driver with the same BAC and the same accident, but this time the other driver is not belted and she crashes her head against the windshield and the result is a serious concussion with major cuts and bruises. Now the charge must proceed by indictment and the driver is subject to a maximum jail term of 10 years (life if the girl were to die). The potential criminal liability is markedly increased in spite of the fact that the actual criminal conduct is identical, the accident was inevitable due to negligence, and was in no way caused by the presence of alcohol.

It is difficult to find fairness in this type of increased punishment without any corresponding increase in moral or legal culpability on the part of the offender.

No More Evidence to the Contrary?
Shockingly, the proposed legislation also purports to, de facto, eliminate any defence to a 0.08 charge that is supported by the results of a breathalyzer or blood analysis. The wording of the section seems to still suggest an "evidence to the contrary" defence, de jure, albeit more stringent than the current law, however...

Under the proposed new provision, an accused must call evidence tending to show both that the approved instrument was malfunctioning or operated improperly and that the concentration of alcohol in the accused's blood would not have exceeded 0.08 at the time of the alleged offence.

This section actually might have passed Charter scrutiny if it were not for the subsequent provision stating that evidence of the accused's amount and rate of alcohol consumption, rate of absorption, and any calculations based thereon cannot be evidence tending to show that the approved instrument was malfunctioning or operated improperly.

So basically, absent smoke coming out of the breathalyzer machine during a test (and the police officer administering the test just pretending not to notice) an accused will be left with no way in which to dispute the presumed normal operation of the instrument. Furthermore, the interplay of these sections leads to an absurd contradiction within a criminal proceeding.

In order to provide evidence tending to show that one's BAC would not have been over 0.08 at the time of the alleged offence, it is necessary to call all of the normal evidence regarding consumption and then have an expert use absorption and elimination rates to come to an opinion of a BAC lower than 0.08 based on that evidence.

If the trial judge accepts the accused's evidence and finds that it "tends to show" that his BAC would not have been over 0.08 at the time of the incident, then logically, the judge must necessarily be prepared to accept that the approved instrument was malfunctioning or operated improperly...BUT...the judge is barred in law from drawing that conclusion.

Since the accused is required to demonstrate both elements, then notwithstanding he has shown his BAC to be below 0.08 at the time of the alleged offence, he has failed in his defence and must be convicted on the basis of the test results.

To allow an accused to be convicted of being over 0.08 in the face of evidence tending to show he or she was not over 0.08 seems to blow the presumption of innocence and the concept of reasonable doubt completely out of the whole trial process.

Now, I don't want to be seen as minimizing the seriousness of impaired driving or the impact it has on its many victims. The fact remains though, that we have a justice system which demands certain fundamental protections in order to ensure that trials are fair...and these protections cannot be trumped no matter how well-intentioned the government.

With all due respect to Bill C-32, rather than conduct unfair trials with near absolute liability on alleged impaired drivers, why not just say zero tolerance...ANY alcohol within 24 hours of driving means a criminal charge. Then all of these nuances about accuracy of approved screening devices and evidence to the contrary simply go away.

Something to think about.

Legal Aid Top Priority for Albertans?

2006-11-22T11:39:00.000-07:00

Forgive me for being cynical...and I sure hope I just don't have the "pulse of the province" on this one...but I'm having a tough time believing the numbers of a recent poll conducted for the Legal Aid Society of Alberta.

Albertan's Show Overwhelming Support for Legal Aid

As those of us who do significant amounts of Legal Aid work know, the remuneration is often minimal and there are a significant number of applicants who can't really afford to hire a lawyer, but can't qualify for Legal Aid.

Now, I will say that Southern Appeals Committee makes significant efforts to grant extra hours and other coverage extensions (where you show the need for it on a file and they can find the room in their budget), but at the end of the day, it remains very difficult to represent Legal Aid clients to your fullest ability when you are always running into tariff restrictions.

So, while it is a very encouraging statistic that "65% of respondents agreed that legal aid should be given the same funding priority as other vital social services such as health care, education, welfare, and child protection" if those same people were asked if they would cut back on certain health care and education budgets to give the Legal Aid Society some desperately needed additional funding I have serious doubts that the same level of support would be expressed.

I guess my concern is that the "support" that an apparent 96% of Albertans show for Legal Aid is abstract and ideological...almost everybody agrees that extensive, well-funded Legal Aid programs are a good idea. But when the time comes to actually put dollars behind the people who are desperately trying to provide the programs and services to Albertans on a daily basis those same people who think it's a good idea will be looking over their shoulders to find the people who ought to pay for it.

As I said, I hope I'm wrong...I hope this poll gives some traction to the Society when it goes to government officials to make its case for better funding. Who knows, given the current Federal Government approach to "law and order" issues, maybe these results can even help to convince the very soon to be chosen new Premier to make Legal Aid a priority in the overall push to improve the justice system.

We'll keep our finger's crossed...

Are Animal Cruelty Laws Too Soft?

2006-11-09T11:52:00.000-07:00

Debate has erupted across the nation on the heels of a rather disturbing allegation of animal cruelty against two young men in Didsbury.

Animal Cruelty Allegation

A dog was put down immediately by an attending vet upon observing the extent of the massive injuries it had suffered from being apparently beaten and then bound and dragged behind a car by the neck.

Petitions have shown up in local businesses and on the internet as well as some estimated 100 people attended the accused's first court appearance to try to bring public awareness to the issue.

The fact is that no matter how bad the allegation, animal cruelty is only a "straight summary conviction" offence and as such the penalties are limited to 6 months in jail or a $2,000.00 fine or both [s. 446]. Many animal advocates think this is just way too light.

Now, I won't put any opinion of my own out on this as I don't think it appropriate for a criminal lawyer to be lobbying one way or another on penalties for criminal offences. My job is to assist clients who are subject to the Criminal Code, not advocate to strengthen or weaken its consequences.

That being said, for the sake of fostering debate, I would point out that had these boys been accused of the exact same conduct, but the animal was "cattle" as defined by the Code (any bovine, horse, mule, ass, pig, sheep or goat) instead of a dog, they would be facing a "straight indictable" offence with a potential sentence of up to 5 years in jail [s. 444].

Seems to me there is a pretty vast disparity between these two sections and it is hard to understand why. Obviously, history would tell us that "cattle" are animals owned for survival / livelihood whereas other animals would be more classically seen as mere pets. Is such a distinction valid in today's society? I leave it to be debated.

Interestingly, legislation had already been proposed to increase penalties for animal cruelty to 5 years or $10,000.00, but according to Didsbury area MP Myron Thompson, it was unable to be passed as a result of the call of the last election.

Could be in an ironic twist that the alleged actions of these two teens will be the impetus behind a quick passage of new tougher animal cruelty legislation that might otherwise have fallen by the wayside...

Hockey Fight Turns Criminal

2006-10-31T16:14:00.000-07:00

It's been some time since I've been able to find the time to write on this site, so I make a renewed commitment to make this Calgary Criminal Lawyers' Weekly. Perhaps all it took was the allure of a good hockey brawl to bring me back...

http://www.cbc.ca/canada/calgary/story/2006/10/30/charge-brawl.html

Calgary Police have confirmed that they are proceeding with assault charges against at least one player after an on-ice altercation spilled over and erupted as two Junior "B" teams were leaving the ice.

Now, it is important to note that we are not talking about a Marty McSorley or Todd Burtuzzi type incident here...the player who has been charged with assualt was not dressed for the game and was in fact sitting in the stands as a spectator. When a linesman came off the ice to break-up the brawl by the bleachers, the accused allegedly attacked him and apparently knocked him out with a kick to the head.

If the matter goes to trial, the fact that the incident was the aftermath of a hockey game will just be interesting narrative, but should not be legally relevant since the player was effectively a regular civilian for this particular game. One would assume that no spectator could ever try to use a defence of "consent of the sport" when they attack a game official...especially where the alleged assault is a kick to the head (except in European soccer perhaps?)

The incident does raise the debate again though, of when a mere sporting battle between consenting adults crosses the line into criminal conduct.

Speaking as a former captain of a now defunct central Alberta team of the Heritage Junior "B" (or Jungle "B" as we affectionately called it) League, I can say that in my day, there was quite a bit of otherwise criminal conduct that happened on the ice on a regular basis.

Threats of bodily harm or death were regular, fights resulting in far more than "trivial" or "transient" bodily harm happened every week. Assaults with weapons, to wit, sticks, helmets, pucks, water bottles etc. were far too commonplace. But we kept showing up and taking to the ice knowing full well what we were submitting ourselves to.

So, as times change and our increasingly litigous society brings these issues to the forefront more often, one is left to wonder...where do we draw the line? and how do we ensure fairness so that a player who goes to the Jungle (or to any other league for that matter) on the weekend will know what he can 1) Do and get away with; 2) Do, but get a penalty if caught; or 3) Do and find himself entering an election and plea?

I'm not saying that criminal conduct should be condoned all in the name of our patriotic national sport...but I know I've been in brawls that I hasten to say would have made this incident look meek and it seems that the absence of media attention was the difference between police on the scene simply reinstating peace and order as opposed to laying criminal charges.

So I pose the question generally, when is the consensual violence of adult contact sport more than just fierce competition and subject to criminal prosecution?

Roadside Drug Testing On The Way?

2006-06-14T09:31:00.000-06:00

In it's continued push toward "getting tough on crime", the Federal Government is confirming that they are looking at introducing a new Bill to allow police officers to conduct a battery of roadside tests aimed at catching drivers who are impaired by drugs.

http://www.canada.com/topics/news/national/story.html?id=c8f949ea-1bd4-4a37-9b3b-074e1d9df539&k=58774

On the face of it, it seems like one of those ideas that is difficult to oppose...I mean, who wants drugged-up lunatics on our roads right?

The problem is that, even in today's technologically advanced society, there really are no methods to test for drugs which are as simple and practical as the roadside screening device for alcohol. Just look at what is being considered in this proposal:

Andrew Murie, chief executive officer of MADD, said he expects that legislation to detect drug use would permit police to conduct a five- to six-minute battery of tests at roadside by doing such things as checking blood pressure, eye pupils and co-ordination.
If an officer concludes drugs are in play, the driver would then be required to undergo further testing at the police station, including surrendering a blood sample.
''Once the public becomes aware that police officers can do this test, they'll separate using drugs and driving a motor vehicle,'' predicted Murie.

Those of us who review officers' "indicia of impairment" with respect to alcohol will have a tough time accepting that police will objectively and accurately test a suspect's blood pressure...and even if they do, what can blood pressure possibly tell them in terms of reasonable and probable grounds unless they are looking at the suspect's medical chart to know what his or her "normal" blood pressure is?

Does MADD think that police can do blood tests routinely at their local district office? Is it not troublesome that we would be setting up a scenario where any overtired, overweight or stressed out driver who is nervous when stopped by police would be getting hauled off to the nearest hospital for their blood to be drawn against their will?

This may be a bit of a rant, but frankly, too few Canadians...and us defence lawyers included...are prepared to strongly oppose things which in theory sound great, but in practice present the risk of incredible mistakes / waste of resources / injustice.

If this initiative does find its way to the House of Commons, I just hope enough of us will speak up about the shortcomings before we're faced with trying to undue the mess of a newly enacted law.

New Rapid Deployment Squad for Calgary

2006-05-16T08:09:00.000-06:00

The details are pretty sparse at this point, but the Calgary Police Service is talking about forming a new "rapid deployment team" purportedly to help "clean up" the downtown core.

http://www.cbc.ca/default/story/ca-downtown20060512.html

I suppose for defence lawyers this initiative will be good for business? Otherwise, I'm not really sure what to say about it. The story quotes Chief Jack Beaton as saying that last year some 850 people were charged with some 2500 offences in the downtown core last year...one can only presume with the added police presence and likely confrontational nature of a "rapid deployment team" that we will see those numbers increase significantly.

I won't get overly critical before the full plans are rolled out and the new squad has a chance to start its work, but it does seem a bit doubtful that this initiative will have any real effect on crime rates. For now, defence lawyers will have to keep one eye open for charges that arise from the operations of the "rapid deployment team" to ensure that they are keeping themselves onside with respect to proper procedures and Charter issues.

Will Alberta Produce the Next Major Askov Decision?

2006-04-21T17:28:00.000-06:00

Particularly in Calgary and its surrounding circuit points, Alberta courtrooms are becoming increasingly packed...and the backlog is getting dangerously close to producing a situation where thousands of criminal cases may be stayed simply because there are not enough resources for matters to be brought to trial within a reasonable time.

In the landmark case known as R. v. Askov, the Province of Ontario was forced to drop more than 50,000 cases outright because the backlog was too large and the rights of accused persons to a fair trial within a reasonable time were being breached.

In Strathmore, AB trial dates are this week being set for the middle of March, 2007...a few days shy of 11 months down the road.

The Askov standard suggests that matters should be brought to trial within 8 to 10 months in the normal course, with some extension being acceptable for more complex matters or for particularly busy jurisdictions.

The Alberta Government seems to know that they are in trouble as they have recently announced a number of new judges and prosecutors will be hired to help ease the caseload...but the looming question is whether such measures will prove to be too little too late.

http://www.gov.ab.ca/acn/200604/197007665A26A-B922-2F14-58E0CB98B0E495A7.html

Defence lawyers should be particularly alert to maintain their client's Askov rights at each pre-trial court appearance because it may take a while for any of the new resources to actually work their way into the system...and in the interim, the delays may be your proverbial "ace in the hole".

Ontario Court of Appeal Upholds Refusal to Give 2 for 1 Credit

2006-04-11T13:10:00.000-06:00

On the heels of my last post, the Ontario Court of Appeal has upheld a lower court decision refusing to grant an offender 2 for 1 credit for pre-sentence custody.

http://www.canlii.org/on/cas/onca/2006/2006onca10236.html

While the unanimous Court does recognize the general practice of giving adult offenders 2 for 1 credit, it at the same time holds that a sentencing judge basically has full discretion to depart from this practice where it is seen to be appropriate.

It would appear that so long as the sentencing judge has some principled basis for departing from 2 for 1 credit, and gives some explanation of that basis on the record, that such decisions will be given great deference by appellate courts.

The Court writes:

[25] The sentencing judge’s reasons for sentence make it patently obvious that he saw the appellant as posing a serious danger to society and that he would not likely receive parole. The reasons for departing from the practice of awarding 2-for-1 credit for pre-sentence custody are readily ascertainable and the sentencing judge did not have to repeat them in relation to this factor. His departure from the
normal practice was not an unreasonable exercise of his discretion.

Further warning for defence lawyers to no longer assume that 2 for 1
credit can be relied upon.

Pre-Sentence Credit Cannot Be Taken For Granted

2006-04-05T16:54:00.001-06:00

Criminal lawyers should be wary...don't take it for granted that your client will get 2 for 1 credit for pre-sentence custody.

http://www.edmontonsun.com/News/Edmonton/2006/04/01/1515385-sun.html

Not all judges are willing to play ball. A provincial court justice recently nailed an accused with straight one-to-one credit in sentencing. He went further, suggesting that some criminals try to 'stretch out' their Remand time in order to shave extra months off their final sentences.

He might have gotten that idea from an Edmonton Sun article which ran last fall, quoting a representative of Remand guards saying canny inmates avoid being transferred to less-crowded units at the jail, to boost sentence credits.

It's a notion that sends criminal defence lawyers into fits. For one thing, it suggests some judges may be changing their sentencing practices because they suspect Remand inmates are exploiting lousy lockup conditions to pare months off their prison time.

Generally speaking, the vast majority of judges continue to apply 2 for 1 credit as a matter of course, but this story represents the latest in a string of ever-increasing incidents where judges are being very suspicious of offenders who appear to be trying to "bank" good time prior to being convicted.

When it comes to guilty pleas, defence lawyers ought to start including a caution to clients about the "convention" of 2 for 1 credit in the standard procedure for dealing with s. 606(1.1). Obviously, many offenders will want to vacate their guilty pleas or appeal their sentences in the event that they are not given 2 for 1 credit, and they will be quick to point out to the courts that their lawyer didn't advise them that it was possible they might only get 1 for 1 credit.

Perimeter Security Coming to Alberta Courthouses

2006-03-29T12:37:00.000-07:00

Starting with the Edmonton Law Courts building and the Calgary site of the Court of Appeal on April 10, 2006 , and following up in the summer of 2007 with the new Calgary mega-courthouse and other circuit points, anyone entering a courthouse in Alberta will be subject to a drastically stepped-up security screening.

Law Society of Alberta - Court Security

I have chosen the word "drastically" because at present, persons entering courthouses in the Province are simply not screened at all.

There will be a "fast track" lane with reduced security measures for judges, lawyers, court staff, police officers and emergency personnel, but these individuals will have to produce proper identification or be forced to wait in the full-screening line.

Perhaps this is a necessary or if not necessary at least a prudent step to take, but I can't help but think that we are succumbing to the very fears that terrorist interests have been preying upon by deciding to take this step.

It is not as though there is no security under the current system...armed Court and Protection Services (CAPS) officers were present in almost every courtroom, and are never far away if needed. Not to mention that in criminal and traffic courts in particular the concentration of police officers is often astounding.

So far, we have been able to avoid much of the "culture of fear" that has developed in the U.S. following September 11th, but this new measure may be a significant step away from the openness and freedom that we have enjoyed as Canadians.

On a practical note, it will be interesting to see how well these "airport-type" security measures are administered...particularly when one considers the number of people who will have to get into the Calgary mega-courthouse every day at about the same time.

The already time-consuming and often inefficient court process may just get a whole lot worse, leading to many more citizens being frustrated and disappointed from their experiences with the justice system.

And ironically, aren't people who are incredibly frustrated with the justice system the ones who would be most likely to be a security threat in the first place?

No Appeal of Escort Licensing Case

2006-03-24T09:19:00.000-07:00

Alberta Justice will not appeal Justice Sullivan's ruling from last month that Doug Eastaugh was not guilty of various prostitution-related offences due to "officially induced error" - that is, he thought he was not breaking the law because he was licensed and in compliance with the City of Calgary's bylaw governing escort agencies.

Calgary Herald - No Appeal

This decision leaves the City of Calgary in a bit of a quagmire...likely requiring them to go back to the drawing board on their legislation. Previously, City officials commented that Sullivan's decision was a criminal case and that they considered the bylaw would continue to be enforced as is.

The problem with this reasoning is that there is now Court of Queen's Bench authority which by necessary implication questions the jurisdictional validity of the by-law.

If municipal legislation operates so as to nullify criminal responsibility for activity that would otherwise be caught by the Criminal Code, then the bylaw is improperly infringing on the jurisdiction of criminal law-making powers of the Federal Government.

Perhaps the true test for the City will come if escort agencies start refusing to re-new their licenses or even ask for refunds of the $3,600.00 license fees they have already paid...claiming that they cannot be made to follow an unlawful by-law.

I suppose we'll all have to wait and see where this thing goes from here.

First Offender Jailed for Internet Harrassment

2006-03-17T17:17:00.000-07:00

While this case appears to be a particularly bad set of facts in terms of the types of things this victim had to endure, it does demonstrate the serious approach that the courts are prepared to take when it comes to individuals using technology for criminal purposes.

CBC News - Cyberstalker Gets 1 Year in Jail

In some respects, one wonders if offenders are not over-punished given the fact that the further use of technology COULD have made the offence more serious than it actually was...consider Judge Cioni's comments:

"In a case like this, where electronic means are used to attack a person, one wonders where the end of the road is in society today,"

Sex Offenders Must Prove Their Way to SOIRA Exemption

2006-03-13T15:34:00.000-07:00

Today, the Alberta Court of Appeal ruled on what a convicted sex offender must do to qualify for the exemption from the Sex Offender Information Registration Act found in s. 490.012 (4) of the Criminal Code.

In the unanimous decision in R. v. Redhead, 2006 ABCA 84

R. v. Redhead

the Court concluded that the focus must be on determining whether the impact of a SOIRA order on an offender would be grossly disproportionate to the benefit to the public interest and that the offender must call evidence of such impact otherwise no exemption is available:

...Patently, the impact on anyone who is subject to the reporting requirements of a SOIRA order is considerable. But absent disproportional impact, the legislation mandates that anyone convicted of a prescribed offence is subject to the prescribed reporting period.

[34] This Court has held that the failure of an offender to adduce evidence of the impact of a DNA order on his or her privacy and security mandates the issuance of the order: R. v. Isbister (2002), 303 A.R. 22, 2002 ABCA 54. Similarly, an offender has the onus to adduce evidence of the impact of a SOIRA order on him or her when seeking an exemption.

[35] In both cases before this Court, the trial judges erred in overlooking the lack of evidence of the impact of a SOIRA on the offender.

...

[44] If the exception in s. 490.012(4) is so narrow that the SOIRA order is effectively mandatory, then the exception becomes meaningless: Have, supra at para. 17. However, in the absence of evidence of the impact of such an order on the offenders, it is impossible to assess whether such impact would be grossly disproportionate to the public interest.