Tuesday, August 4, 2009

In Defence of our System of Justice (by David Andrews)

If his killers weren’t released on bail, Keni Su’a would be alive today! In the light of any tragedy we can always point to something, if it had been different, would have caused a different result.

In this case, we learned that the first, and ultimately second but not the third individuals charged with the triple homicide at a restaurant in Southeast Calgary on New Years Day were released on bail prior. The first accused had been released on bail just days before he was alleged to have participated in killing three people, one of whom was totally unconnected to the recent spate of gang violence in our city. The circumstances of the prior charge involved his having been found-in a home with 4 other individuals and a cache of illegal weapons including guns. Initially, the uninformed were quick to blame the Judicial System, the Bail provisions of the Criminal Code and specifically the Judge who released him. Those uniformed comments came from no less than our own Minister of Justice who used the occasion to point out that this was further justification for the argument that the present bail system amounted to the ‘catch and release’ of dangerous criminals and implied that our courts were not working to protect us. Subsequently, we learned that his release had not been opposed by the Crown prosecutor in Court and this paper carried an editorial on June 11 headlined; “The horror is that bail made sense”, the next day on June 12, 2009 other local paper managed an interview with the Associate Chief Judge of the Calgary Provincial Court who explained that in law, if the prosecutor doesn’t ‘show cause’ why the Accused shouldn’t be released, the judge has no legal authority to detain the Accused. The headline distorted his explanation indicating – “Judge Blames System”.

It is not the system that is to blame, nor the people working within it. Any person or persons who commit another crime while on bail are ultimately to blame and the justice system will deal with them appropriately and harshly if they are guilty. The Calgary remand centre is overcrowded with individuals who have breached their bail conditions and committed new offences while on bail. In a desperate search for easy answers to make sense of this tragedy it has been all too easy to look for answers where there are none and blame the ‘system’ when it is individuals who should be held accountable. If you believe in the right to be considered innocent until proven guilty and that there should be a high standard before your right to liberty is denied then bail is a fundamental principle of those beliefs and should not be easily dismissed as a cause or condition of a much greater problem of crime and punishment.

The Herald editorial said that “Evidentially, even those accused of serious crimes have every expectation of a quick release pending their court date, as long as their lawyer has a keen eye for who’s on the bench and the wit to work the system to place his client before those known to grant bail easily”.

While I am sure that some Defence lawyers appreciate the endorsement, the cynicism of the comment was remarkable. Although, I would not deny that there was some truth in the comment, it does a great disservice to the administration of justice to suggest that the judges, jp’s and justices of this city are so easily duped. Or that our erstwhile prosecutors or so easily outwitted by wily Defence lawyers. In fact, the law is not only what is written the criminal code, but it is also years and centuries of interpretation of the basic principles by other courts and a healthy dose of common sense. If the evidence doesn’t suggest that the accused will be convicted – why should she be denied bail? The police are equal participants in the justice system and have been let off too easily in all of this. They have effectively been unchallenged in the suggestion that they are working to take criminal s off the street only to have them quickly released by a justice system that doesn’t respect their work or understand the risk or danger to the public posed. In fact, it is the opposite. If there is a catch and release syndrome at all it has come to be because people are arrested without a proper investigation or foundation for the charge and we are tired of seeing charges without merit. It doesn’t matter how many charges there are; 23, 27 the matter is determined by evidence not volume. Crown Prosecutors are tasked with the responsibility of standing in the place of the ‘minister of justice’ as the Agent of the public interest. But they are expected to act in a way that is consistent with basic legal principles. The prosecutor has a responsibility to look at bail in light more than just how serious the charge may appear but the background of the Accused including the criminal record and more importantly the strength of the evidence. In other words, a prosecutor who does not oppose the release of an individual on serious charges when the evidence isn’t compelling and there is no record is simply making the correct decision in light of the criminal law. They recognize when the evidence doesn’t support the charge. As someone who appears each day in the Criminal courts of Calgary I can tell you that the citizens of Calgary are well-served by their prosecutors. They do not make these decisions lightly and I would invite anyone to attend the Calgary Court house on any day of the week to watch the process in action. Often decisions are made quickly, but not lightly and only with a full understanding of the issues at play.

Section 11E of the Canadian Charter of rights and Freedoms guarantees the right not to be denied reasonable bail without just cause. The most effective argument I have ever seen made for bail happened when I was a student-at-law. After listening to a beleaguered prosecutor outline a particularly weak case for a chronic offender with a horrible criminal record, the grizzled courtroom veteran who was tasked with defending the accused and making his application for bail stood up when it was his turn and said “the Charter says the Accused is entitled to reasonable bail.” And sat down. The Judge agreed and released the hapless criminal on appropriate conditions. As lawyers, when we analyze the Charter we are taught to look at it from the perspective of the ‘reasonable person’. That person is aware of general principles of law and aware of all of the circumstances. That coincidentally, is one of the tests for bail. In order to make the argument that the principle of bail is not the problem, it is important to understand what bail is and isn’t.

Section 515 of the criminal code sets out the grounds for bail: An Accused’s bail is determined by three factors; whether or not they are likely to show up in court to answer for the allegation, whether there is a substantial likelihood that they will interfere with witnesses in the case against them or commit more crimes while on bail, and the public interest. This is why a person charge with murder who has no criminal record and no reason to flee due to their deep roots to the community or a compelling defense can still be denied bail in a charge of murder, or why on a lesser charge a person might be released even if they have a criminal record or limited ties to the community.

Into this mix comes the reverse onus clause. For certain offences, or when a person is already on bail it falls on them to persuade a judge why they should be released. Alberta Minister of Justice has argued that this should be the case for more gun and drug charges that would make it harder for alleged gangsters to obtain bail. She made this argument in light of the news of the arrest of the first accused in the new years Day homicide. It did not matter that some of the charges he was released on were reverse onus charges or that his bail had gone unopposed. There is nothing sinister that is bail had been not been opposed. He had no criminal record, was found in a residence that he did not own or rent where drugs and guns and other contraband were stashed and the evidence was far from certain. I hope the outcome of those charges will be as vigoursly reported as the fact that he was on bail for them.

The imposition of a reverse onus clause will not cure the ills of the criminal justice system or work to protect the public in any significant way. It will result in a press release from the Minister of Justice congratulating herself and the rest of us will move on with the daily business of criminal justice. Bail will continue to be determined, as it should be on the basis of the evidence before the court. Prosecutors will make decision based on solid legal principles and not respond to hysteria or ill-informed hype from those who would argue that the presumption of innocence and the right to be released pending trial and conviction are getting in the way of deterring crime.

There is no question that tragedies will happen and that some criminals will commit crime regardless of whether or not they are on bail. Criminals rarely respect the rules or they wouldn’t be criminals. In the meantime – to indict the entire bail system is an overreaction. As much as it is true that an innocent bystander would not have been killed in a restaurant on new years day in southeast Calgary if the accused had been held in custody, it is equally true that he bail system in Calgary and Canada is not the cause of the ills anymore than a collective failure to predict the future on the part of all involved is. Calgarians need to know that there system is functioning properly and while far from perfect, the persons working within it are making the right decisions and doing their jobs fairly and justly without calls needless calls to reform an entire system.

Submitted by:

David Andrews
Calgary Criminal Defence Lawyer

Friday, July 10, 2009

In Alberta, First They Came (by David G. Chow)

In Germany, they came first for the Communists, And I didn’t speak up because I wasn’t a Communist;

And then they came for the trade unionists, And I didn’t speak up because I wasn’t a trade unionist;

And then they came for the Jews, And I didn’t speak up because I wasn’t a Jew;

And then... they came for me... And by that time there was no one left to speak up.

Reverend Martin Niemoller, "First They Came"


Reverend Martin Niemoller's poem, "First They Came" was written in response to apathetic German intellectuals who remained silent during the Nazi terror in the 1940's. Niemoller was arrested and confined in the Sachsenhausen and Dachau concentration camps until he was freed by Allied forces in 1945. His poem is a powerful reminder that public ennui is a dangerous response to State intrusions on individual liberty.

Today, the Alberta crusade in the name of justice reform is not nearly as overt or oppressive as that which inspired Martin Niemoller. Rather, the Alberta movement is a more ubiquitous campaign, driven by fear and advanced in the court of public opinion. At the heart of the campaign is a media based assault on our legal traditions conducted in the name of public safety and tough on crime type rhetoric. The dialogue is loaded with emotional content and is largely based upon low probability/high consequence subject matter, that when analyzed objectively, poses relatively insignificant risk to Albertans. Regardless, the end result is public furor against our system of justice by citizens whose opinions have largely been informed by politicians and interest groups who have fed them a special diet of information designed to satisfy the pallet and malnourish debate.

In Alberta, they came first for my sense of security, and I didn't speak up because I wanted to feel safe...

At the outset, let me say that I am not arguing Canadians should simply ignore their surroundings or blindly walk through life without concern for safety or security. Nor am I saying that we should only worry about events posing imminent threat or a clear and present danger. Rather, I am saying that we should not be fooled into believing we are at significant risk to being victimized by anomalous events to the extent that we should allow fear to compromise our way of life. Aside from the fact that we are exposed to waves of information , we have not likely in any meaningful way actually been effected by many of the events reported daily and in particular, things law enforcement tell us we should be afraid of.

With this in mind, I begin...

I do not profess to be an expert in the field of cultural studies, anthropology, social psychology, semiotics or any other social science occupied with the study of culture. For the purpose of this paper I am content to make a rather broad and somewhat banal assertion that definitions of culture are manifold and the definition often depends inextricably upon the discipline in which it is analyzed. Suffice it to say, however, it is widely understood that culture is the totality of information acquired, preserved and transmitted by various groups in human society. Anthropologist Edward T. Hall defined culture as "...the way of life of a people, for the sum of their learned behaviour patterns, attitudes, and material things"[i]. J.M. Balkan, suggested that culture is the socially generated and socially sustained way in which human beings constitute their world. Though some intellectuals, such as Claude Levi-Strauss theorize culture as non-hereditary information and others, such as Richard Dawkins, argue it is the opposite, there is one thing for certain, culture is information and information is culture.

All information has fairly specific connections to the time and milieu in which it is shared . The flow of information from brain to brain is limitless, but contexting information is the by-product of a number of complex phenomena, such as the control systems through which information is delivered, the emotional response to the information received and the receiver's own understanding of the world based upon its knowledge, experience and cultural savvy. Today, information is transmitted through a variety of readily available sources, such as newspaper, television, radio and internet. Perhaps more than other age, human beings are subject to information, and as such, perhaps more than any other age, culture is malleable.

Issues pertaining to public safety and security, such as those naturally occurring in criminal justice, often inspire strong emotional reactions. After all, criminal justice is sated with horrific and all too often tragic stories of senseless suffering and loss. However, notwithstanding the exceedingly low probability of being dramatically affected by crime, the reality is, by sheer force of numbers alone there is a likelihood that people will be injured or killed by the remotest of occurrences. Thanks to a torrent of instantaneous communications our perception of susceptibility to risk may be unreasonably heightened. In the words of Dan Gardner, "[o]ne of the most consistent findings of risk perception is that we overestimate the likelihood of being killed by the things that make evening news and underestimate those that don't. What makes the evening news? The rare, vivid and catastrophic killers. Murder, terrorism, [gangsterism],fire and flood"[ii]. What doesn't make the news are everyday stories devoid of emotional content.

Though medical maladies such as asthma and heart disease kill more people each year than stray bullets fired by gangsters, there is arguably greater fear of being gunned down in a crossfire than suffering a heart attack. Though the casualties of Calgary's six year gang war pale in comparison to those suffered in one day by New Yorkers in nine-eleven, death by everyday occurrences, such as motor vehicle collisions, far outweighs either ruinous event. Indeed, motor vehicle accidents account for thousands of injuries and deaths annually, yet people fearlessly hurdle themselves down Canadian highways on a quotidian basis. Despite the fact that it is almost an absolute certainty that no citizen will be killed, let alone injured, targeted or even in the general proximity of a showdown between rival gangs, the Alberta government and its law enforcement agencies consistently tell us we are at risk. The question is, are they being honest about the extent of the risk? According to defence lawyer, Michael Bates, the answer is no. In his words, "Alberta's Minister of Justice ... and our increasingly politicized [...law enforcement officials] 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"[iii]. Having regard to the plethora of fear mongering type comments unleashed by various officials over past months, it is hard to argue with his point.

On December 13th, 2008, the Calgary Police Service's designated gang expert, Sergeant Gavin Walker warned citizens of southeast Calgary communities about being caught in the crossfire of rival gangsters. "There are a number of restaurants and establishments where people go to socialize in, "he said, "they attract criminals as well as law-abiding citizens. It is that mix that's a huge concern because these guys, they're not kids playing games. They're out there targeting and actively trying to assassinate their rivals"[iv]. "When [citizens] see things that make them ask questions... about the safety of the situation, the most immediate thing they should do is get themselves to a position of safety and phone 911” [v].

Certainly there is no difficulty reminding citizens to be aware of their surroundings. "Be cautious" is always prudent, if not even mundane advice. We should be cautious crossing the street, operating heavy machinery, taking medications and watching what we eat. But being overly concerned about gangsters "targeting" and "actively trying to assassinate each other" while we enjoy a bowl of noodles is overly dramatic. Getting to safety and dialling 911 whenever questions are asked about the "safety of the situation" is in this writer's view, overkill. After all, how many times has any citizen been in any establishment where they felt unsafe or uneasy in the presence of some long haired, heavily tattooed, boisterous and language depraved male who caused no real problems other than generating irrational fear premised upon personal stereotypes?

Some Anthropologists refer to this as the "rule of typical things"-- a phenomena where the interpreter of information assesses data against its perception of what is typical. Perhaps the best example in Western culture, and in particular, the United States, applies to the "typical" black man. Studies have shown that white people instinctively view the typical black man as a criminal and conversely, the typical criminal as black. Even those who do not do so consciously, do so unconsciously[vi]. In Canada, we might exchange "black man" for "native male" or perhaps in Calgary, we might add "tattooed Asian male driving a Honda", but the point remains, people use cognitive tools, such as the rule of typical things, to assess any given situation, and the assessment may not be reasonable. Interpreting Sgt. Walker literally means police should be called whenever they question the safety of the situation. Surely this is overly dramatic advice? I mean, if a citizen overhears a conversation about murdering the guy at the next table or even simply observes a firearm, I agree, take cover; but dialling 911and becoming an agent of the State responsible for providing information so that the police have an excuse to harass the well-dressed, heavily tattooed Asian male driving the supped-up Acura is simply unreasonable.

"Being aware" is not synonymous with "being afraid". Though citizens can be aware without being frightened, the message about getting to safety and calling the police whenever a question is asked about the "safety of the situation" is more synonymous with being afraid than being aware. Despite the fact that the overwhelming majority of Calgaryians have never even observed a gunfight (or any kind of skirmish between gangsters for that matter), and despite the fact that Calgary's gang population comprises just 0.0004% of Calgary inhabitants, and notwithstanding the fact there has only been a couple dozen deaths in over six years and less than a half-dozen bystanders injured or killed in this city, Sgt. Walker tells us that we should still be afraid. "I think it should be frightening to everyone", he says, "when criminals can operate, gather weapons, and not feel that there’s any risk to themselves"[vii]. On January 7th 2009, Calgary's Chief of Police, Rick Hansen echoed Walker's sentiment: "People in this community" he said, "have a right to expect that they can go into a restaurant and have a meal and not be at risk"[viii].

Even if it was true that criminals operate without feeling risk to themselves (which I think is not), does not mean that they operate at such meaningful risk to Canadians that we should be frightened while enjoying dinner at a local noodle-house. Even though Sgt. Walker does not come out and directly say, "citizen, you will be shot", the message is that the gang war has grown to such an extent that innocent people are at meaningful risk of being injured or killed in a crossfire. His dialogue with south-east Calgary residents is nothing short of fear mongering at its best. We should remember, just because the appointed police gang expert says it is so, does not make it so.

Fear mongering by those cloaked in authority and vested with public trust is dangerous. For "[w]hen citizens come to believe that they may be next, the risk is, they may accept and even welcome...repressive measures such as more jails, capital punishment, harsher sentences -- measures that have never reduced crime...-- if that promises to relieve anxieties"[ix].

On April 23rd, 2009, Alberta Solicitor General and Minister of Public Safety, Fred Lindsay echoed the safety-first line when commenting on proposed legislation banning gangsters from bars: "Entertainment spots", he said, "are supposed to be places where you can go and have a good time. The last thing someone wants to worry about is getting caught in the middle of a violent incident"[x]. Living in a condensed population of a million or so people, it is certainly possible that anyone may be caught in the middle of a violent incident, in any establishment, at any time. To reiterate, by sheer force of numbers alone, there always exists the possibility that a person may be injured or killed in some anomalous occurrence. But this does not mean that we are at such meaningful risk that we should be afraid, or that the threat is so significant that it should be at the forefront of our minds. Yet this is what Mr. Lindsay is selling. Essentially, he says Calgary needs legislation banning gangsters from bars because there is meaningful risk to citizens being caught in a violent incident between rival groups. To this I query, how many citizens have ever observed any kind of conflict between rival gangs? Though I have no statistical data on the subject, I suspect that the number is infinitesimal. If I am right, the risk is exceedingly low. Despite what is almost certainly negligible risk, Mr. Lindsay sells relatively high fear. The question is why?

More recently, Alberta Minister of Justice, Alison Redford and Calgary's Chief of Police, Rick Hansen, openly lauded legislation banning so called armoured "killing machines" from roaming Alberta highways. Again, reciting public safety as justification for the new law, Ms. Redford clearly intimated that armoured cars pose a safety threat to other drivers"[xi]. Echoing Ms. Redford, Rick Hansen said: "It's what they facilitate that's dangerous. It allows them the protection and in their eyes the safety to drive around and do the hits and not the retribution, as long as they're safely ensconced in one of those vehicles"[xii].

Again, I pose a question: other than military, police and security vehicles, how many armoured cars have you -- the reader -- ever observed in this city? Perhaps more importantly, how many armoured vehicles has law enforcement encountered in this province? Astonishingly, according to Chief Hansen, the answer is none! But he assures us, "[w]e know they're there, we just haven't come across any of them,"[xiii]. In response, perhaps Liberal justice critic Kent Hehr said it best: "If I were cynical, I might conclude that this is a measure designed to feed off public fears."

More broadly speaking, if one were cynical, one might think that much of the dialogue by law enforcement on issues of criminal justice is designed to feed off public fears. The rather honest, albeit block-headed admission by Chief Hansen takes fear mongering to an all new level. For now we should not only be worried about exposure to exceedingly low probability occurrences, such as being gunned down in a local restaurant or nightclub, but we should be concerned about the mere notion of travelling next to armoured cars operated by gangsters who are out doing "hits" and seeking "retribution".

When those endowed with public trust tell us these things, no wonder why citizens are afraid! Information is the tool for understanding the world. Tools of understanding become part of our apparatus for understanding, which is to say that the tools of understanding -- the information -- becomes part of us. The problem is not the information, but our reaction to it. When the reaction is emotional and not rational, the real risk is that measures designed to cope with uneasiness may not be the most appropriate in the circumstances.

Then they came for the law as I understood it to be, and I didn't speak up because I didn't feel safe...

Canada's legal culture is premised upon a presumption of innocence, which is to say that any person accused of committing a criminal offence is presumed innocent until proven guilty. The onus of proof rests upon the State. That is to say the Crown must prove, beyond a reasonable doubt that the accused committed the offence alleged. As the Supreme Court recognized in R. v. Lifchus,[1997] 3 S.C.R. 320, "[t]he onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is inextricably linked to the presumption of innocence"[xiv] . Mr. Justice Cory poetically described this linkage in the following terms: "If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law."[xv].

As any practitioner in criminal justice understands, proving a case beyond a reasonable doubt can be difficult. And it should be; for it is hard to imagine a greater calamity than to be accused and prosecuted for a crime. In the words of an unknown author: "[p]erhaps the greatest calamity that can befall a human being in our society is to be charged with a criminal offence. Based on mere accusations, the government, through the machinery of criminal prosecution, focuses its formidable powers against the individual. Amassed against the accused will be the prosecutor, the police and often times the general public"[xvi]. In present day Alberta, the government, with the support of various law enforcement agencies, actively campaigns to make investigating and prosecuting citizens easier. Easier, however, does not necessarily make the measures right, or consistent with the fundamental values underlying our system of justice.

In recent months, the Alberta government has either enacted or is in the process of aggressively lobbying for various crime measures on the basis of public safety. Legislation permitting police to search and seize armoured vehicles; laws prohibiting alleged gang members from frequenting nightclubs; measures allowing the government to seize property obtained by crime, bail reform and abrogating 2:1 credit for pre-trial custody comprise just some of the initiatives pursued by current Justice Minister, Alison Redford. As proven by recent legislation targeting so-called armoured killing machines, the Alberta government is not merely prepared to design laws to deal with real problems, it is prepared to deal with fictional ones as well. Many citizens might think, "well...I don't drive an armoured killing machine, so why should I be concerned"? After all, if one hasn't done anything wrong, one has nothing to worry about - right?

Wrong. The answer to this type of thinking is more complicated than one might think.

At the outset, it is important to remember, every law enacted by government empowers the State to invade the private lives of citizens. Seemingly simple by-laws, such as those prohibiting citizens from placing their feet on park benches, allows State agents to interfere with the so-called wrongdoer. Everyday sanctions, such as tickets to pay fines not only provide a means for collecting sin taxes, but they represent a useful mechanism for collecting information about the person taxed. Depending upon the kind of infraction, the law may even allow for a search, or perhaps even detention or arrest[xvii].

Also, the more loosely law is drafted, the more power State agents have to exercise their discretion. With respect to Alberta's forthcoming armoured vehicle regulation, one might ask, what does "armoured" mean? Does the brush-guard on the front of your truck count? What happens if a person has after market body aesthetics or security roll-shutters capable of covering the windows? Notwithstanding it is highly unlikely any of these modifications are bullet proof, or that they will meaningfully increase the weight of the vehicle, mere appearance may provide law enforcement the opportunity to harass you on your morning commute. Some State agent might even issue a ticket, which many-a-citizens will simply pay to save the cost of wasting time in sin-tax court. Worse still, the law enforcement officer might even search your vehicle or perhaps have it towed on speculation that it weighs too much. The point is, more law equals more power to the government. More power to the government equals more power granted to State agents to interfere with the everyday lives of citizens.

Everything comes with a cost.

Canada is a free and democratic society. Our legal system operates on longstanding principles -- the presumption of innocence, proof beyond a reasonable doubt and axioms engrafted in the Canadian Charter of Rights and Freedoms. Consistently applying these principles requires incredible energy, perseverance and intellectual fortitude; for when confronted with a great many incidents in criminal justice, it may be easier to take shortcuts rather than being strong on principle. Notwithstanding disturbing behaviour on the part of a small number of Canadians, it is important that we treat even those accused of committing the most heinous offences with principle. For in the word's of Professor David Paciocco, “the quality of a nation’s civilization can largely be determined by the methods it uses in the enforcement of its criminal law”[xviii]. So whenever we scold judges, prosecutors or even defence lawyers for being "soft on crime", we might question whether they are soft on crime or strong on principle?

Notwithstanding the centuries of principle woven into the fabric of our criminal law, shortcutting the rules is precisely what the Alberta government is selling. Arguably, Alberta Justice Minister, Alison Redford, has done so with alarming bravado. To this end, she has made a number of rather dismissive comments about the presumption of innocence, such as: "[i]t's fine to be presumed innocent until proven guilty[xix]". Worse yet, she has made cavalier remarks about enacting potentially unconstitutional laws. "We need to write vigorous legislation", she said, [and]... if people don't like it, they can challenge it"[xx]. Aside from the fact that she states the obvious , the issue is not whether legislation is challengeable or that it may even be struck at some point in the future. The issue is whether the government is making a sincere effort to write constitutional laws that make sense! In this writer's view, it is catastrophically unprincipled for any government to enact any law for the short term benefit of capturing unlucky citizens (and in the case of Alberta, alleged gangsters) until somebody has the wherewithal to muster a meaningful legal challenge?

Consider Alberta's recently enacted, Victims Restitution and Compensation Payment Act[xxi]. This Act permits the Government to seize assets from persons suspected of acquiring property by any illegal act and to dispose of it on proof on a balance of probabilities. Aside from the fact that there already exists proceeds of crime legislation allowing for the restraint and seizure of property within the Criminal law, it is nevertheless interesting that pursuant to the Provincial legislation, the Government can actually dispose of the accused's property even though the respondent/accused is never criminally prosecuted. To be more precise, s. 18(4) stipulates that the Court may grant a property disposal order notwithstanding that the respondent has never been charged with, found guilty of convicted of or otherwise held responsible for any illegal act in relation to any matter related to the property in respect of which the property disposal order is being granted. So let me understand, the Government can take a person's stuff on grounds that he or she has committed criminal acts, but it need not prosecute them criminally? Does this even make sense? I suppose if the State wishes nothing more than to extort property from citizens by prosecuting them on a weaker standard of proof so as to increase the likelihood of gleaning the benefits of a disposal order, then the measure is laudable. Of course I am being facetious.

This is not the only problem with the Act. Within sections 47 and 48 of the legislation, the Alberta government has actually insulated itself and its agents from any action (including a claim for costs) by an aggrieved party for any negligence or abuse of discretion on its part. Aside from the fact that such protections are patently unfair, they appear in direct contradiction to s. 24(1) of the Canadian Charter of Rights and Freedoms. Section 24(1) mandates that upon finding a Charter breach, a court of competent jurisdiction has the discretion to impose any just remedy (including costs) in the circumstances. So, bravo Ms. Redford! You have not only written potentially unconstitutional legislation, but have gone to great lengths to do so in contradiction to your public mandate -- to write "legislation that makes sense"[xxii].

Should we really be surprised with Ms. Redford?

Ms. Redford's view is "...that law should respond to what's going on in society"[xxiii]. Though this statement appears relatively innocuous, it should nevertheless be analyzed with extreme caution. The law is not a malleable instrument for conveniently addressing perceived social problems or instances of injustice. Equally, the law is not a frivolous instrument to be used for combating low risk occurrences at the expense of the fundamental freedoms enjoyed by all Canadians. Most importantly, the law is not an instrument to be used as a tool for allaying irrational fears perpetrated by our own government, the police or other interest groups. Having said this, I readily acknowledge that law must evolve to reflect our changing social climate, but it must do so principally and with minimal or no damage to our core legal values. With this in mind, I echo Mr. Bates': "[l]ets 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 reject as false the choice between our safety and our ideals"[xxiv].

Then they came for those responsible for applying and interpreting the laws, and I didn't say anything because I wanted them to tell those responsible for applying and interpreting the laws how to protect me....

Judicial independence is the principle that courts in Canada are independent from government or outside influence. As Mr. Justice Dickson stated in Beauregard v. Canada, [1986] 2 S.C.R. 56:

Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider -- be it government, pressure group, individual or even another judge -- should interfere in fact, or attempt to interfere with the way in which a judge conducts his or her case and makes his or her decision.

Given Canadian judges are appointed by the governing political party -- whether it be provincial or federal -- it is questionable whether any judge in Canada is truly, in the purest sense of the word "independent". Every political party exists on a political platform, and as such, its choices are often representative of the party's political attitude. Despite this, a great many Canadian jurists have undoubtedly been meritoriously appointed to various courts across Canada based upon years of dedicated service and intellectual aptitude. Concerns regarding the lack of transparency in the judicial appointment process, however, have ignited accusations of political patronage. Indeed, it is sometimes difficult to understand why some candidates are appointed and others are not.
For example, former Provincial Court and Court of Queen's Bench judge, now appellate court justice, J.D. Bruce McDonald, has in the past been targeted as a "patronage" appointment. His years of loyal service and financial contribution to the Reform Party, Canadian Alliance and Progressive Conservative Party triggered the debate[xxv]. To be clear, the question is not really whether any judicial appointment is a supporter of a particular political party or even whether the appointment is somehow connected with a high ranking government official; rather, the question is whether the appointment is strictly patronage based -- meaning without merit.

Since being appointed to the Provincial bench in 2004, it is interesting that perhaps no other judge has been tracked so quickly through the various levels of court in Alberta than Justice McDonald. This begs the question: why ? Was it his years of service as a Provincial Court and Court of Queen's Bench Judge? The answer it seems is no; for numerous other Provincial Court and Court of Queen's Bench judges have served much longer. Was it his glowing qualifications, making him the obvious choice as compared to other candidates? The answer is uncertain. According to the Department of Justice 2009 news release, he obtained a bachelor of arts in 1969, a bachelor of laws in 1972 and was admitted to the bar in 1973[xxvi]. Suffice it to say, this published list of qualifications in no way distinguishes him from any other lawyer who has been practicing since the year after I was born. Was it the large number of erudite and landscape changing judgments written since his appointment to the Provincial Bench? I suppose the answer is a matter of interpretation; but given the extensive archive of decisions on a range of important subjects written by other judges, the question is left begging. Or were his various appointments prompted by a healthy mixture of financial contributions, fundraising efforts and undying loyalty to the Conservative government? In 2006, Justice Minister Vic Toews responded to accusations of political patronage, stating: "We appointed him to the Queen's Bench on the basis of his demonstrable legal ability"[xxvii]. If that was so, then why not any number of other more experienced judges, with a more comprehensive resume of erudite judicial decision making? A very good argument can be made that jurists such as Judge Allan Fradsham, along with a host of other Provincial Court and Court of Queen's Bench judges have demonstrated greater and more remarkable legal ability over a much longer period of time. Judge Allan Judge Fradsham has even written an annotated Rules of Court and taught for many years at the University of Calgary -- not too shabby. In 2006, Mr. Toews suggested that J.D. Bruce McDonald was initially appointed by a "different government". Though technically true, Mr. Toews seemingly forgot to mention that the government was essentially the provincial counterpart of his Federal Conservative party.

Accordingly, there remains many unanswered unsettling, wicked, questionable questions. Questions that Canadians should find easy answers, yet none seem readily available. In 2006, when Mr. Toews was pressed to provide the "list" of judicial candidates for inspection by the opposition, "House Speaker Peter Milliken said there is nothing requiring the government to table the document at this time"[xxviii]. If there is truly interest in transparency, why not disclose the list? If a candidate is a merit appointment, why the secrecy?

In Alberta, the transparency problem is exacerbated by a government that seems to have little, if any appreciation for our culture of judicial independence. Alberta Justice Minister, Alison Redford has actually publicly stated the need to have "real conversations" with courts about what society expects. Specifically, she stated, "[o]ne 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"[xxix]. "In the last three or four years", she added, "legislators have been absent from that discussion"[xxx]. Given the apparent foolishness of the comment, it actually occurred to me that perhaps it was a slip of the tongue, except the Justice Minister chanted a similar mantra in a CBC Roundtable discussion with Jim Brown. "But from my perspective, having been a minister for less than a year, it seems to me that the dialogue could be a lot more dynamic between the courts and the legislatures in terms of what the laws are. Bring the public into this, and bring stakeholders into this, and make sure that the police are involved in this"[xxxi]. So, if I understand correctly, Ms. Redford is actually suggesting that legislators and police should have real conversations with Alberta jurists about what the laws are, and presumably how they should be interpreted. It doesn't take a particularly active imagination to hypothesize what a "real conversation" with Ms. Redford and Mr. Hansen would consist of. Detain em all!

On this topic, it is worth briefly commenting about recently appointed Court of Queen's Bench Justice Ron Stevens. Though he was appointed by the Federal Tories (not the Provincial Conservative party), he was Alberta's Deputy Premier and considered to be Ed Stelmach's "Calgary lieutenant"[xxxii]. Prior to his appointment, I am reasonably certain he sat across the table from Ms. Redford on many occasions. I wonder whether Ms. Redford ever had a "real conversation" with Mr. Stevens about what society expects to be the standard and consequences for committing criminal acts? Yet another wicked, questionable question!

And then they came for me...

Trepidation is a powerful tool for allowing government to enact potentially repressive measures to allay public safety concerns. Certainly, government is expected to be reasonably responsive to social problems, which includes those associated with criminals and gangsters. Every response, however, comes with a potential cost. When the costs come in the form of compromises to individual liberty or the core values underlying the enforcement of our laws,citizens should seriously ask whether it is worth it. For every measure potentially brings the State closer to being empowered to invade the private lives of law abiding citizens. Absent exceedingly strong grounds to do so, this is a compromise I am unwilling to make....

Submitted by:

David G. Chow

Criminal Defence Lawyer

[i] Hall, Edward T. The Silent Language. Random House Inc., New York, 1990: pg. 20.
[ii] Gardner, Dan. Risk: The Science and Politics of Fear. McClelland and Stewart, Ontario, 2008: 66.
[iii]Michael Bates, "...nameless, unreasoning, unjustified terror...": http://calgarycriminallawyer.blogspot.com/2009/07/nameless-unreasoning-unjustified-terror.html
[iv] Gangs a Serious Problem in Calgary: http://www.secalgarynews.com/news/se-calgary/gangs-a-serious-problem-in-se-calgary/
[v] Gangs a Serious Problem in Calgary: http://www.secalgarynews.com/news/se-calgary/gangs-a-serious-problem-in-se-calgary/
[vi] Gardner, pg. 50.
[vii] Ibid
[viii] We are Going After Them Hard: http://www.canadaspace.com/CBC.php?/canada/calgary/story/2009/01/07/cgy-gang-violence.html
[ix] http://ccdlaforum.blogspot.com/2008/08/musings-of-fear-mongerer-gangs.html
[x] "Calgary Police Seek to Ban Gangsters from Bars: http://www.vancouversun.com/news/Calgary+police+seek+gangsters+from+bars/1522468/story.html
[xi] Alberta Challenges Ottawa to Ban Killing Machines: http://www.calgaryherald.com/news/Alberta+challenges+Ottawa+killing+machines/1730770/story.html
[xii] Ibid.
[xiii] Ibid.
[xiv] Lifchus, para. 13.
[xv] Ibid., para. 27.
[xvi] Homepage of the Law Office of David G. Chow: http://www.calgarydefence.com/
[xvii] See http://ccdlaforum.blogspot.com/2009/04/making-bad-big-brother-relationship.html
[xviii] Paciocco, David M., Getting Away With Murder – The Canadian Criminal Justice System, (Irwin Law: Toronto, Ontario, Canada, 1999), p. 11.

[xix] http://ccdlaforum.blogspot.com/2008/11/lest-we-forget.html
[xx] http://ccdlaforum.blogspot.com/2008/09/who-is-george-j-gaschler-qc-judicial.html
[xxi] http://www.qp.alberta.ca/574.cfm?page=v03p5.cfm&leg_type=Acts&isbncln=9780779737369
[xxii] http://calsun.canoe.ca/News/Columnists/Bell_Rick/2008/08/31/6621796-sun.php
[xxiii] http://www.cbc.ca/canada/calgary/story/2009/02/27/cgy-gangs-roundtable-transcript.html: If the onus is put on the police, not only to show that we found them with a gun or they're found at a shoot-up but also prove to us that they're a member of an organized crime group and all that, all that's going to do is we're on trial and it's time to shift, to put the bad guy on trial again.
[xxiv] http://calgarycriminallawyer.blogspot.com/2009/07/nameless-unreasoning-unjustified-terror.html
[xxvi] http://www.justice.gc.ca/eng/news-nouv/ja-nj/2009/doc_32378.html
[xxix] http://calsun.canoe.ca/News/Alberta/2009/03/02/8595421.html
[xxx] Ibid.
[xxxi] http://www.cbc.ca/canada/calgary/story/2009/02/27/cgy-gangs-roundtable-transcript.html
[xxxii] http://www.edmontonsun.com/news/alberta/2009/05/20/9512946.html

Sunday, June 28, 2009

The Philosopher's Defence (by Weston Rudd)

Okay, I'll forgive you if you didn't like my catchy title. I won't forgive you, however, if quit reading this post because of my painfully obvious deficiency in the humour department.
While not likely humorous, this post is supposed to be thought provoking, and tries to accomplish this by asking a fundamental question about the metaphysical foundation of the criminal law. At the risk of oversimplifying, metaphysics is the study of any question about reality which cannot be answered by scientific observation and experimentation. One such question is the question of free will: are humans rational agents capable of exercising control over their actions and decisions (1)? The criminal law presumes this to be the case, and, in fact, is so certain this presumption is correct that it is prepared to mete out punishment to those who make decision to act in an ‘illegal’ manner. The problem for the criminal law, however, is that the notion of free will, being a metaphysical notion, cannot be studied by scientific observation and experimentation. Incarceration is a hefty consequence to impose on a person when the justification for such consequence (free will) is not testable.
In a paper entitled For the law, neuroscience changes nothing and everything (2), Joshua Greene and Jonathan Cohen explain that the decision making process occurs in the human brain, and that at some point in the near future, sophisticated neural scanners may be able to track “the neural activity and connectivity of every neuron in a human brain”. This ability would enable us to “trace the cause-and-effect relationships between individual neurons”. By observing this relationship, we would be capable of seeing that “deciding” is an organic event in the brain, as opposed to an illusory process that occurs in the mind. Greene and Cohen state that humans:
feel as if we are uncaused causers, and therefore granted a degree of independence from the deterministic flow of the universe, because we are unaware of the deterministic processes that operate in our own heads. Our actions appear to be caused by our mental states, but not by physical states of our brains, and so we imagine that we are metaphysically special, that we are non-physical causes of physical events. This belief in our specialness is likely to meet the same fate as other similarly narcissistic beliefs that we have cherished in our past: that the Earth lies at the centre of the universe, that humans are unrelated to other species, that all of our behaviour is consciously determined, etc.
That this “narcissistic” belief is a fundamental premise of the criminal law can be seen in the comments of Lord Denning in Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386, at p. 409, wherein it is recognized that sleepwalking gave rise to a defence of automatism:
No act is punishable if it is done involuntarily: and an involuntary act in this context -- some people nowadays prefer to speak of it as "automatism" -- means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking (my emphasis).
Lord Denning, no dummy in the world of jurists, demonstrates the common metaphysical notion that the mind is somehow distinct from the body, and because the “mind” was not engaged, no criminal responsibility should follow. If Greene and Cohen are correct, science will eventually demonstrate that the “mind” will never be engaged, since the mind does not exist. The entire process (both decision to act and action) is the result of neurons firing in the brain (not the mind), and as noted by Greene and Cohen:
There are many causes that impinge on behaviour, but all of them – from the genes you inherited, to the pain in your lower back, to the advice your grandmother gave you when you were six – must exert their influence through the brain. Thus, your brain serves as a bottleneck for all the forces spread throughout the universe of your past that affect who you are and what you do. Moreover, this bottleneck contains the events that are, intuitively, most critical for moral and legal responsibility.
Undoubtedly, many of us will be very uncomfortable with the notion that we may not hold the rudders of our lives as we previously imagined. If the decisions we each make are as a result of our genes and the neural connections in our brains, as opposed to some metaphysical notion like thoughts in our mind, then how are any of us to be proud of our achievements or ashamed of our failures?
While it is troubling to think that science may establish a testable basis for dismissing the notion of free will (thereby throwing responsibility for criminal actions into disarray) consider the following thought experiment. Imagine that a group of scientists clone a serial killer. These scientists then raise this clone in a tightly controlled environment and ensure that everything that happened to the serial killer in his life happens to the clone at the exact same stage of the clone’s life. Eventually, the scientists put the clone in the situation that resulted in the serial killer’s first murder. Predictably, the clone also commits murder. The question that arises from this thought experiment is whether the clone has legal responsibility for this murder. Arguably, the clone should not be responsible for this murder since he was not the author of his own life, but was merely the victim of a cruel science experiment. The next question, then, is how is this clone different from any of us? While it is unlikely that we are being controlled by a superior intelligence (I say “unlikely” to avoid the protestations of the Matrix fans), each decision we make is the product of the sum total of our genes and all of our experiences (none of which we choose). Accordingly, if one of us were to commit a criminal act, would we be any more responsible for this act than the clone was for the murder?
This is a tough question, and I anticipate that regardless of the answer, it would capture the heated attention of many a citizen. While the average citizen would likely vociferously object to a person evading responsibility for an act due to sophisticated scientific and philosophical arguments, and politicians would likely scramble to enact legislation to deal with this horrible spectre, as criminal lawyers it is our job to ensure that regardless of the social consequence, when this argument comes of age, it is given its due.

(1) http://www.wikipedia.org/wiki/Free_will
(2) http://www.wjh.harvard.edu/~jgreene/GreeneWJH/GreeneCohenPhilTrans-04.pdf

Thursday, May 21, 2009

The Alberta Initiative Against Privacy (by David Andrews)

I don’t usually pay a lot of attention to our Provincial Government. Given that the electors in Alberta prefer near unanimous consent among their legislators and Provinces don’t have the power to legislate in the area of Criminal Law, I haven’t seen much need to pay attention. I suppose I should, given that our Provincial Government does not agree with the Constitutional principles I was taught at Law School (a law school located in Edmonton I might add). It seems to me that the Alberta government is determined to make criminal law in whatever way they can, and there is no shortage of creative thinking in this province on the subject. I get the sense that maybe they make policy by calling up Rick Bell every couple of days, saying “Rick, what should we do about crime” and then draft up a Bill based on his suggestions. As conflicted as I am about paying taxes and caring about civil liberties at the same time, I don’t always feel like I am getting good value for my money from my Government with the knowledge that I will pay for someone to challenge these laws and a Court to rule on them and the inevitable conclusion that they weren’t constitutional in the first place. Rather than creating unconstitutional laws, I just wish they would have spent taxpayer money fixing the sinkholes that block my orderly travel to the Courthouse in the mornings.

I had mixed feelings when I read that Ron Stevens was stepping down to become a Judge. Though I don’t always share his politics I always respected his intellect and during his tenure as Minister of Justice we were relatively free of the silly pandering and sometimes frightening laws that are currently before the Legislative Assembly. On the other hand, he is expected to become a Judge in Cow town and I welcome smart Judges on the local bench; even if they have a long history of loyalty to the Conservative party. I often find that if they are smart and intellectually honest (which is his reputation) then they often make for good criminal jurists who respect the principles of the Charter (unlike one elevated appointment who was heard to say at a dinner party that he didn’t believe in the Canadian Charter of Rights and Freedoms).

I note that Stevens appointed some good judges in this province. Judges who when they analyze Charter litigation find that whatever they may have thought before they got there – sometimes the evidence has to be excluded. Who is Judge Gaschler? Turns out he’s someone I am comfortable appearing in front of on any case any day – so long as I and my client make an effort to be on time, but I digress). The point of this commentary is to speak about privacy in Alberta.
There is an overall assault on privacy in this Province by the Government of Alberta.

This government seems to believe that it not only does not have an obligation to protect the privacy interests of the citizens of the province, but that it interferes with their agenda. In the view of the Alberta government, crime control is a fair trade-off for the ability to go to a bar and enjoy a drink without having to reveal personal information, to consult with your family doctor and not have that information available to every person working in the healthcare system in the province, or that if you are shot or stabbed you don’t have give up your Dr. /patient confidentiality. Of course, if you are shot or stabbed, you can look forward to a bill.

Bill 42 – Bar owners taking patrons IDs; Crime Prevention vs. Privacy


Two friends (Call them Chow and Bates) meet regularly one night a week at a local bar to watch some hockey or sports. The bar owner now has the right to go beyond simply viewing identification to ensure they are not underage; but under Bill 42, the bar can take a copy and create a record of that identification, including the age, current address and picture. Police have publically stated that there is no law enforcement purpose to this information. Really – are they serious? A record now exists of where we go, who we are and who we associate with. The potential for abuse is significant. Who has access to and control over this information? Can they sell it to marketers? Will they supply it to the Government, insurers or other interested parties on request? The Big Brother notion is that it monitors our habits. The practical result is that it allows bars to trade this information – to whom is the question. I would assume that the local tavern’s best patrons are the biggest drinkers and perhaps the most likely to get rowdy, so I suspect this works against their interests to actually enforce it. The drink hard, play hard attitude in this province means there is just too much money at stake for bar-owners to use this for any purpose but to selectively enforce the law – but it will be a handy marketing tool.
It also says a police officer who has reason to believe that a patron is a gang member can eject the patron from a private establishment. So now an armed agent of the State can eject a customer for no other reason than the fact they are suspected of certain antisocial behavior (as opposed to all the other anti-social behavior that legally happens in bars). I can see it now: a bar owner has to stand there and watch his best patron ejected from his establishment because a police officer believes he is a gang member (although now that CPS has acknowledged they use the term too liberally, perhaps organized criminals can drink in peace after all).

But what if the aforementioned Chow and Bates attend their watering hole regularly to watch play-off hockey? And so does someone who is suspected or even known to be a gangster? The police gather the records (which they can do without warrant) and discover that Chow and Bates are always in the same bar as said gangster on the same night at the same time? We know what road this goes down; Chow and Bates are now know engaging in some very suspicious behavior given their temporal connections to said gangster in the mind of the police, sometime later – perhaps after the search warrant has been executed while Bates is playing Barbie’s with his daughter (and Chow, I know more likely than you would think) it comes to light that they were watching the hockey game. Sorry? If the gangster does happen to shoot them on the way out the bar – rest assured, the police will know so they can get on the case without delay:

Bill 46- Gunshot and Stab Wound Mandatory Disclosure Act


It’s telling that Calgary police couldn’t cite any incidents of a shooting or stabbing that they weren’t aware of. My experience is that the police attend all the hospitals when there is a serious incident because that is ordinarily the first place people go when they are shot or stabbed. The only thing they ever learn is that a person was stabbed or shot and if that person chooses to disclose, who the assailant was. The confidentiality between patient and doctor protects people insofar as they can tell the medical staff everything they need to know to treat them without fear that the information will be used against them. That is a basic principle.
On a side note, we have all seen gangster movies where the person injured in a shootout goes to some dodgy underground clinic maintained by a doctor who has lost their license. I wonder if that will be the result? I also worry about the self-inflicted gunshot (suicide attempt) patients going to jail instead of getting help as a result.

If you are keeping count, we have now turned bar owners and health-care providers into agents of the state. Should we worry about how to pay for the impending litigation; here’s a solution:
Bill 48 – Bill 48, the Crown’s Right of Recovery Act; would allow the province to make criminals pay for medical attention resulting from crimes, including drunk driving


This is my favorite... As much as the Government likes to portray criminals as an endless source of cash - they are usually the least able to pay. I will mention that this violates the Canada Health Act but the Government doesn't care about that. They are determined to waste our money on politically expedient legislation that is practically useless.

I can hardly wait for Legal Aid to have to ask for a significant increase in its budget to defend its clients against the fact that they can’t afford to pay the hospital bill they received after the doctor who treated them, called the police to report that they were in the emergency room for treatment for a gunshot room.

I know it is popular to compare the current attack on Privacy and the fear-mongering about crime (all of these Bills are liberally described as tools to prevent gang activity) to the rise of Nazism in Europe in the late 30’s. I appreciate that Orwell was describing that same progression in his various literary warnings. I however, unlike Chow, do not think the analogy is appropriate. I spent last summer touring Concentration camps in Poland, Schindlers factory in Krakow, the rise of the Third Reich in Berlin, the Jewish ghetto in Prague and the Anne Frank house in Amsterdam (Lest you think I am completely morbid, I also toured Prada/Etro/Armani in Italy and generally ignored the history of Fascism there – though I did spend some time at the Vatican – draw whatever conclusion you like). The critical distinction I would make is that Jews were targeted about something they had no control over, an ethnic or religious history that was inherent to them. Gangsters and criminals in general, although the current straw man in favor to justify the erosion of rights, make a choice to break the law. I do not say that it justifies what I am implicitly criticizing – but that it does a disservice to the holocaust to make the comparison.

I always think of us Albertans as freedom loving folks- content to have just a little less involvement by the State in our personal lives. And yet our Government seems determined to collect as much information, share it and remove our privacy in it as it can. I somehow don’t think that the Iconic cowboy on his horse in the coulees of southern Alberta or the self-described redneck up north really had that in mind when he said he was a pretty conservative guy. I guess I am left with a burning question: are Albertan’s really prepared to sacrifice their private lives in the name of safety and security? In my mind, that is just not the Alberta way.

Submitted by:

David Andrews

Edited by:
David G. Chow

Friday, May 1, 2009

A. Alan Borovoy - In Defence of Civil Liberties (by David Andrews)

I am sitting in my office this afternoon feeling unmotivated when I have no real excuse. It is the last day of April and I have a significant enough tax bill to cause me to reflect on both my good fortune and how hard I am going to have to work to pay it (I know spend less, save more would solve this annual problem, but I digress). As a result A. Alan Borovoy is foremost in my thoughts.

It’s hard to believe but Mr. Borovoy is retiring his post as General Counsel for the Canadian Civil Liberties Association after 30 years of service. He is an institution and like all institutions I always just assumed he would continue on and be there to speak out when Governments, in the name of crime control or efficiency, found unexpected or creative new ways to circumvent the Charter and the basic Human Rights I sometimes take for granted.

And take them for granted I do. For example, I often think of Privacy as a good; sometimes I place a high priority on it (I like the fact that my communications on my Blackberry are encrypted thus making it hard for anyone to snoop or listen in); sometimes I don’t (I am endlessly amused by Facebook). In other words I like being able to control privacy, placing a high value on it but sometimes being willing to give some up for the sake of convenience – an average Canadian.

Borovoy was never an average Canadian. I first read “When Freedoms Collide: The case for our Civil Liberties” when I was an undergraduate student at the University of Winnipeg. His reasoning was scrupulous and I felt inspired by his rigorous logic. I was barely aware that most of the things he was talking about were really even issues. I had never thought much about Pornography, hate literature, affirmative action, employment practices, the scope of police powers, the right to privacy, or the protection of the mentally ill (okay, I had thought about pornography – but not in relation to the intellectual notion of freedom of speech). As I formed my own Political philosophy and set of guiding principles – what I thought was important, Borovoy was a guiding light. In a recent interview he said he was never one to privately buttonhole, but rather to publicly agitate.

That last statement gave some pause for thought. It was always my admiration for the public agitators like Borovoy that lead me to my chosen career, but I have noticed myself becoming more of a private buttonholer. Borovoy and Civil Libertarians are never content to follow conventional wisdom. They can be irritating, they are rarely ‘polite’ and sometimes the threat of hurt feelings has to give way to winning the argument when we debate fundamental freedoms and liberties. Borovoy once set up a booth on a street in Toronto and charged people a dollar to sign a petition that said the police should be allowed to beat confessions out of suspects. I thought how quaint; an era, maybe the 60’s when people would pay to sign such a petition (It was a fundraising tactic for the CCLA). I contrast that to the news today: in the last few days reports are that The Alberta Government has co-opted bar owners into collecting personal information from patrons in case they might be gang members, and ‘streamlined’ our personal health information so that we no longer have the option of keeping any part of our health records private (so if your family Dr. treats you for say depression - the emergency room personal can see that 20 years later when you go in for a broken bone or whatever). The potential for abuse is rife. I envision a production order for lab results sent to the hospital resulting in the release of an entire medical history).

When Borovoy was asked he said the single greatest current threat to civil liberties in Canada was the introduction of Mandatory Minimum Sentences (see the amendments to the Criminal Code for Firearms charges). That eliminating discretion would disallow Judges to take into account personal circumstances. An interesting response. I have always had mixed feeling about this given that in Alberta the Court of Appeal routinely prescribes ‘guideline’ sentences (tariffs) because the Judges don’t even respect Judicial Discretion in this province, so you can see why it is easy to be a little cynical about the whole thing. This year it is gangs, last year it was child pornographers, then it was child lurers, before that identity thieves. There is always another bogeyman around the corner that is the worst single threat to our way of life ever known to law enforcement that justifies a draconian reaction in the interest of saving the innocent lambs from the criminal lions.

I have these buddies who agitate when they see Civil Liberties being diminished and attacked. Sometimes people find them aggressive and confrontational – which is often true. I think that Mr. Borovoy would be proud to know them and encourage them (for the sake of discretion I will only refer to them as Mr. Chow and Mr. Bates – of course discretion has little to do with civil liberties). They frequently refuse to accept the Status Quo and they often react quite angrily when they see the constant erosion of basic rights I mentioned earlier. They are the definition of the public agitator that Borovoy talked about.

I suppose that I am comforted by the fact that they exist given that I was shocked to learn that Borovoy was laying down his cards and giving up the holy game of poker so-to-speak. I was thinking about it only in terms of my responsibility in all of this. Here I am, the son of a M├ętis single Mother and the first person in that family to graduate from university thinking about voting conservative because of my tax bill and forgetting that my Mothers whole plan in life for me was that I would someday do well enough to be able pay taxes. Borovoy’s retirement came to mind because for a brief moment I was becoming complacent. Forgetting that I live in a country where I am possible and that I can speak up for civil liberties, I have that ability. I have that right. Should police be able to tap our phones and open our email? Should women have the access to abortions on demand? Is a breathalyzer test an unacceptable invasion of privacy? Do hate-mongers have the right to publish their views? Should the mentally ill be treated against their will? I have the right to say something about all of those questions! And none of those questions will be resolved by the private buttonholing of politicians and judges. It wasn’t Borovoys ‘relationship’ with a Crown, or his desire to not ‘be like the guys in Edmonton’ that resolved the issue of whether the government should be allowed to censor books and movies. This is tough and serious business, Human rights are important and it takes tough serious people to stand up for them. When these issues arise we are too quick to dismiss them as ‘philosophical’. I am a pragmatic man, but my job is not always done well by pragmatists. Sometimes what is right and wrong is a very philosophical question, but it is important to how we treat strikers, welfare recipients and the mentally ill, what scope we put on police powers. The pragmatic approach doesn’t often serve us well and now that Borovoy is gone I am hopeful that there are some people around who can step into those big shoes, it will take more than one or two to fill them.

Submitted by:

David Andrews
Barrister & Solicitor

Sunday, April 12, 2009

Madame Chief Justice Beverley McLachlin² (by David G. Chow)

A fictional news-story with real possibility[i]:

Madame Chief Justice Beverley McLachlin²

Move over Dolly[ii], local biotechnology laboratory Doppelganger has made a colossal leap for humankind, creating Canada's first ever human clone from abandoned DNA collected from garbage. Since the Supreme Court's ruling on trash in 2009 (R. v. Patrick[iii]), investigators for the biotechnology giant have seized mammoth quantities of information from trash located on the fringe of properties across Canada. Ironically, Canada's first bio-baby was cloned from DNA obtained from the garbage of Madame Chief Justice Beverley McLachlin, who sat on the unanimous court panel which decided there was no reasonable expectation of privacy in garbage abandoned for collection at the property line.

"This isn't just any baby McLachlin", pipes Doppelganger spokesperson Reginald Pompernickel, "this is an uber-child".

"You see, not only did we collect the Chief Justice's DNA from discarded biological material, we managed to cobble together a host of additional information which aided in the construction of what we expect to be a near perfect biological specimen".

Though Pompernickel was unwilling to divulge particulars, Doppelganger insiders report that its scientists managed to identify and eliminate a host of potentially problematic genetic maladies.

"Put it this way", beams Pompernickel, "do you think the six million dollar version of Beverley McLachlin is going to be an asthmatic"?

Over the years, collecting bags of information has become an industry for more than sanitation engineers, bottle pickers, identity thieves, mischievous children, alley cats and police. The Government of Canada has recently begun surveying waste to discover important demographic trends. Last month, the Alberta Government tabled legislation extending rules on trash to permit specially designated Waste Officers to enter onto private property to collect any garbage in plain view of the public. Calgary's Mayor lauded the initiative, saying "waste in plain view on private property is an eyesore for those enjoying the splendour of our public streets".

The garbage debate has percolated steadily since the Supreme Court of Canada trashed Russell Stephen Patrick's appeal on April 9th, 2009. And things are sure to heat up, as lawyers for both Canada's top judge and Ontario's Child Welfare Services prepare a host of legal challenges against Doppelganger. Chief spokesperson for the Supreme Court of Canada, Ingrid Ingersporin expressed her concerns on behalf of Justice Beverley McLachlin: "her Ladyship was shocked to learn that her information was used in this way and is presently considering her legal position".

Doppelganger's in-house counsel, Artemis Ledingbringer responded: "Unfortunately for the Chief Justice, she had done everything she could to commit her bags of waste to the municipal collection system. They were unprotected and within easy reach of anyone walking in the public space along her property line and therefore, she had objectively abandoned her privacy interest in the contents of her garbage. According to Madame Justice McLachlin, and every other Supreme Court Justice, since she abandoned her property, Doppelganger had every right to collect it. What we do with it is our business".

Some have chided Doppelganger for using biological information obtained from garbage found on the fringe of private property. Alberta's Justice Minister said, "what I fail to understand is why Doppelganger would stoop to such ends when it has a library of genetic profiles voluntarily submitted by numerous persons, including myself and Calgary's Chief of Police".
Alberta's voluntary DNA collection program began as a springboard for discussion about proposed legislation requiring all Canadians to submit a DNA profile for storage on a nationwide database. After all, if government officials are prepared to submit, why not all Canadians?

"All I can say about that", responded Pompernickel, "is that it is not always cost-effective to perfect certain genotypes".

Though the Chief Justice may be concerned about her six-million dollar double, it appears she has good genes.

Submitted by:

David G. Chow
Fagan & Chow


[i] Though this article is completely fictitious it represents, in the writer's view, a sardonic response to the the Supreme Court's decision in R. v. Russell Stephen Patrick. I am hoping this spoof will inspire dialogue on what I perceive to be serious privacy related problems emanating from the Supreme Court judgment. Additionally, I am grateful to lawyer Michael Bates who supplied me with the rather witty title for this exposition: Madame Chief Justice Beverley McLachlin².
[ii] http://en.wikipedia.org/wiki/Dolly_the_sheep
[iii] [2009] S.C.J. No. 17 (S.C.C.)

Thursday, April 9, 2009

Making Bad - The Big Brother Relationship Between Regulating Behaviour and the Infosphere (By David G. Chow)

It’s 10:21am in Puerto Vallarta. The sun smiles upon the ocean lapping gleefully against the sugary sands. From my twenty-fourth floor perch I watch a man with sun drenched skin sporting a tangled web of dishevelled dreadlocks emerge from a pop-tent erected just meters away from waves licking the coastline. He stretches while meandering towards the blue-green waters of the Pacific, submerging himself knee-deep in the salty water. He has been there all week. After sunset his beachfront refuge is marked by a small fire, the thump of bass pounding rhythmically from a portable radio and the occasional echo of drunken laughter. By day the man lounges with Apollo and frolics with Poseidon and by night he dances with Dionysus. His friends, a combination of locals and toothless drifters – one a former member of an East Los Angeles street gang – join him for a taste of Jose Cuervo and campfire wieners.

It’s 7:47am in Puerto Vallarta. From my twenty-fourth floor vantage I see the deep blue of the man’s pop-tent billowing easily in the morning breeze. The earth is virtually unchanged. The sands extend for miles, the ocean remains an endless expanse and all things below are but tiny flecks passing across my retina. The world is simple and serene – its beauty nothing more than the touch of sunlight glinting warmly off sand particles as they are captured by the slow cadence of the Pacific’s fingers dragging them into the deep blue yonder. As I watch the waves gently foam along the coastline it strikes me that the universe has no appreciation for the laws of man. The earth’s gravitational pull applies to all things on this planet. Gaia turns on her axis and rotates around the sun. As the sands are captured by Poseidon’s staccato rhythm they are moments later catapulted back to shore by the perpetual movement of the currents. The Albatross is as much a part of the earth’s seemingly endless cycle of decay and renewal as the algae coalescing along the rocks, the plankton bobbing near the surface of the ocean, the sands and the grass paving the earth’s floor, the tiny particles of hydrogen, oxygen and carbon dioxide floating in the atmosphere and the man with the blue tent now lounging in nature’s warm embrace.

This is Mexico. A tourist Mecca, but nevertheless considered by the developed Western world to be a developing country. Not all of the water is purified, not all roads are paved, cable television is not nearly as abundant or robust as the endless smattering of images crossing television screens in the United States or Canada and the average family does not own more than one car per person, or even one for that matter. In Puerto Vallarta, however, a man is free to camp beneath the sun and moon just meters away from the ocean, under the hulking omnipresence of multi-million dollar towers occupied predominately by affluent outlanders seeking reprieve from their more hostile Northern climates. And the truth is, though Canadians have at their disposal the freedom to watch endless hours of television, walk long stretches of shopping malls and have easy access to any number of motor cars capable of vomiting large quantities of harmful gasses into the earth’s atmosphere, they don’t have the freedom to pitch a tent in just any local park or public place.

Substitute khaki shorts for a fleece, sunscreen for a toque and imagine this same man, sporting the same dreadlocks and leathery skin living in a pop-tent under the shadow of rows of condominiums lining Princes Island Park in Calgary, Alberta. In your mind’s eye, imagine this man spends his days lounging by the Bow River and his evenings imbibing alcoholic beverages with locals whilst listening to the drawl and twang of Canadian country singer Paul Brandt. I suspect before the close of his first evening this man would attract the ire of any number of uptight Calgarians concerned about the safety and sterility of their downtown haven. Unlike the beach dweller in Puerto Vallarta, who incidentally was not once bothered by the Policia or the Federales, a squatter in Princes Island Park would almost certainly be accosted by any number of a veritable gaggle of law enforcement officials, including City Police, Bylaw enforcers, Sheriffs, Parks and Recreation officers or perhaps even an employee of Fish and Wildlife Services. The sheer number of potential ticketable sins carbon-copied in triplicate is staggering.

The least serious offences are municipal infractions, which include violations of Calgary's Parks and Pathways Bylaw, Public Behaviour Bylaw and Community Standards Bylaw. Conviction generally attract specified penalties, but could result in fines up to $10,000.00 or up to 6 months imprisonment in default of payment. The next serious offences are Provincial infractions, such as those found in Alberta's Gaming and Liquor Act. Convictions for these quasi-criminal offences can attract fines up to $10,000.00, up to 6 months imprisonment or a combination of both fine and imprisonment. Of course, the most serious offences are those legislated in the Criminal Code of Canada. Though the Federal scheme only demands payment of fines up to $2,000.00 (a mere pittance when compared against the municipal or provincial legislation) and a maximum 6 months imprisonment, the accused is liable to winning the lifetime stigma of a criminal record -- the existence of which can be an insurmountable barrier to many of life's great rewards. Even a minor criminal record can be a major impediment to a multitude of pursuits, such as employment, education and travel. But the reality is, punishment after conviction is only the final result of the hurt capable of being wrought upon individuals by State agents enforcing even the most trivial Government decree.

The purpose of this paper is not to suggest that Canadians should tolerate the invasion of tent cities in local parks; rather, it is to discuss the Big Brother[i] relationship between the regulation of human behaviour and the collection of personal information by the Government. The aim is to highlight at least some of the dangers to civil liberties caused by living in an over regulated information society. At end of the day, the question remains: how much law is too much?

Criminal records are public documents. Information technology, however, allows the State to accumulate near limitless non-public data on individuals, including records pertaining to whether a particular person has been charged with an offence, investigated for a crime, questioned by police, been the subject of a complaint, been in the mere presence of another person with a criminal record or has even been the victim of a crime. The State knows where you live, work, how many people you live with, what you drive, whether you prefer to fund catholic or public schools, whether you own firearms and has the means to access a wealth of other personal data including your internet surfing habits, telephone records, health records and credit information. The kind and quantity of information capable of being gathered and stored is mind boggling -- in fact, most people probably have no idea how much data various organizations, including the Government, have stored on a hard drive no bigger than a desktop computer.

The very machines used to gather, store and analyze personal information evolved from computer technology first invented by Herman Hollerith, the German born founder of IBM ("International Business Machines"). Hollerinth's idea was motivated by a desire to develop a machine that could "count people as they had never been counted before, with a magical ability to identify and quantify"[ii]. A prototype of Hollerinth's tabulating machine was constructed in 1884. It had the ability to sort and resort information contained on punch cards to ultimately render a portrait of an entire population or even isolate a single person from the whole. Punch cards were a kind of primitive hard drive, whose informational storage capacity was limited only by the number of punch-holes designating certain traits. The irony is, IBM was an American company whose technology was first seized upon by Nazi Germany to profile its entire population, which included identifying any person with a Jewish background.

But Canadians are different! Our Government wouldn't dare utilize information technology to profile its population for insidious ends. Or would it? Does it even recognize the end as being insidious?

Returning to our notional man seeking refuge in Princes Island Park, the hurt wrought by issuing any number of tickets designed to control human behaviour is pervasive. The first and most obvious injury is caused by State agents commanding the man to vacate his riverfront sanctuary. He must now seek shelter elsewhere. Doubtless, the Ticketer will supply him with the address of Calgary's local drop-in centre -- a downtown oasis populated by an assortment of people, ranging from backpackers and drifters to scallywags afflicted by a host of serious psychological and substance abuse issues. As the man navigates his way to this ne'er-do-well's paradise, data collected prior to his release is digitally transmitted to a database where it is stored on an information grid capable of being accessed by a plethora of government personal. Though the short-term utility of this information may only suffice to ticket the man, the long-term value of monitoring through the infosphere is all-encompassing. For example, should the man be accused of any future offences, the term "no fixed address" is a powerful tool for justifying pre-trial detention. After all, a person without a home is less likely to attend court. Should the man fail to pay fines, his information will happily be updated to reflect a warrant pre-authorizing the State to arrest and jail him for days in default of payment. The reality is, for most citizens living outside the daily grind of western culture, secondary taxation equals hardship; jail is the only real way to make right the wrong of violating a government diktat. When the man is arrested, he will be subject to the humiliation of being searched, handcuffed and carted away in a mobile cage like a stray animal, before being processed like inventory in a local department store and locked away with hoards of other alleged criminals and social misfits. He may even be subject to a more intrusive strip search or body cavity search.

Even after society has exacted its pound of flesh, our notional man is forever tattooed with information labelling him misfit or perhaps even criminal. Police now have records to justify prolonged questioning, detention, a variety of searches (including those for officer safety) and perhaps even arrest. All of this for violating any number of seemingly trivial government decrees. At least to this writer, it is nothing short of alarmingly draconian that the State has so many tools to collect information capable of being used to interfere with the private lives of citizens.

A person's label in the infosphere is directly related to the level of tolerance, suspicion and exercise of discretion by law enforcement officials. Those with criminal records are subject to increased scrutiny. Those without criminal records may be the lucky benefactors of the exercise of discretion. There is thus a kind of symbiotic relationship between information and regulation. The more information collected about a person, the more likely it is the State will regulate that person; the more a person is regulated, the more information the State collects. And make no mistake, due to the vast array of legislation designed to regulate human behaviour, the Government is well situated to collect enormous amounts of information about its citizens.

As any honest practitioner in criminal justice understands, law enforcement officials take advantage of their power to enforce the various municipal, provincial and federal laws to conduct a kind of micro-census of Canadians. Many citizens, for example, might be surprised to learn that the primary objective of a simple traffic stop is not necessarily to ticket motorists for violating traffic safety legislation; rather it is to survey the occupants of the motor vehicle. This kind of micro-census renders a wealth of otherwise inaccessible data, including a description of the vehicle's occupants as well as information on who associates with who. Though most passengers in motor vehicles probably have no obligation to answer questions from inquisitive members of the local constabulary, the majority of ordinary citizens simply acquiesce. And notwithstanding that a person's association with anybody might be completely innocuous, if you are unlucky enough to be in the presence of Rotten Johnny, you may find yourself labelled on a government database as an associate of miscreants and near-do-wells.

When "...one-half million [German] census takers, recruited from the ranks of the nationally minded..." began collecting information about its citizens on June 16th, 1933, "[p]opulation statistics...crossed the fiery border from a science of anonymous masses to the investigation of individuals"[iii]. Today, the combination of information technology and the regulation of human behaviour in Canadian society effectively allows the State to conduct a less obvious, but no less detailed census of its population. In a civilization where citizens can be investigated, charged and punished merely for "...placing their feet on the top or surface of any table... in any public place"[iv], it is hard to imagine that it is truly possible for any person to exist independently outside the watchful eye of Big Brother. Since law enforcement officers can only act in the execution of their duty -- more law equals more power in the hands of those responsible for enforcing it.

Freedom requires a legal system and a rule of law, but there are limits. With the proliferation of so many rules designed to control human behaviour, one is left to wonder whether lawmakers (intentionally or not) are jeopardizing the rights of all Canadians to live in a free and democratic society. When law has amassed to such an extent that State agents are seemingly able by colour of right to invade the private lives of citizens for trivial things (such as exercising our God given right to exist under the stars), it seems to this writer that the future of our free and democratic society is on the verge of a dystopian nightmare.

It's 6:06pm in Calgary, Alberta. On the front page of my desk is the front page of the April 4th, 2009 edition of the Calgary Herald. It starkly reads, "Crime in Your community...Attempted Murders up 414%"[v]. Reminded of a quote by Homer Simpson -- "Oh, people can come up with statistics to prove anything; 14% of people know that" -- I laugh silently. The humorous interlude is short lived; for as I read the article I am disgusted by yet another tragically deficient press release seemingly concocted to convince me that I am living in a dangerous community. If I didn't know any better, I would agree wholeheartedly with the various doomsayers calling for more powerful legislation authorizing law enforcement officials to police our unsafe metropolis.

My mind returns the man camping on the sands of Puerto Vallarta. I imagine him diving into waves gently crashing against the shoreline. In Princes Island Park, Calgary, Alberta, Canada, the penalty for such nefarious conduct could attract a fine of up to $10,000.00[vi]. In Mexico, that man swims free....

Submitted by:

David G. Chow
Fagan & Chow


[i] See George Orwell’s famous dystopic novel, 1984.
[ii] Black, Edwin. IBM And The Holocaust - The Strategic Alliance Between Nazi German and America's Most Powerful Corporation. Crown Publishers, New York, 2001: pg. 24.
[iii] Ibid.,pg. 56 and 57.
[iv] Section 6(2) of Calgary's Public Behaviour Bylaw
[v] http://www.calgaryherald.com/news/Violent+crimes+rise+while+break+thefts+fall/1464174/story.html
[vi] Section 14 of Calgary's Parks and Pathways Bylaw