Wolf in Sheep's Clothing - Advocates as Experts (by David G. Chow)

The genesis of the Inquiry into Pediatric Forensic Pathology in Ontario (the Goudge Inquiry) originated with the shocking discovery that renowned pathologist Dr. Charles Smith had drawn erroneous conclusions in several infant death cases resulting in wrongful convictions. As outlined in the Chief Coroner’s Review, there were significant issues in 20 of 45 cases in which Dr. Smith proffered an expert opinion, 12 of which resulted in findings of guilt[1]. Though Dr. Smith certainly planted a Judas Kiss on persons such as William Mullins-Johnson, the betrayal of Canada’s criminal justice system was deeper and farther reaching than his opinions alone. In the words of the Honourable Stephen T. Goudge, “[t]he tragic story of pediatric forensic pathology in Ontario from 1981 to 2001 is not just the story of Dr. Smith. It is equally the story of failed oversight”[2]. The Inquiry revealed that Chief Coroner Dr. James Young and Deputy Chief Coroner, Dr. James Cairns actively protected Dr. Smith[3]. Justice Goudge concluded, a kind of “symbiotic relationship” developed to the point where “[a]ny possibility of objective assessment [or meaningful peer review] was made …more difficult by the working relationship between the three men”[4].

From an Alberta perspective, the Ontario inquiry may seem like a series of remote incidents, attributed primarily to the shortcomings of a single person, in an isolated field of medical practice, quarantined in the province of Ontario. In reality, however, the Goudge Inquiry places the practice of forensic pathology and indeed the practice of accepting expert opinion evidence as a whole on red alert.

In legal parlance, expert opinion evidence is admissible to furnish the Court with scientific information which is likely outside the ken of a judge or jury[5]. The admission of expert opinion is subject to a critical assessment of the reliability of the evidence, its necessity in assisting the trier of fact, the absence of any other exclusionary rule and a properly qualified expert[6]. Assessing expert opinion evidence can be a daunting task. As Mr. Justice Sopinka recognized, “[t]here is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves”[7].

Before opinion evidence is receivable, the proposed expert must be qualified to supply evidence in the area(s) in which the party is seeking opinion. Given the impressiveness of the witness’s credentials, combined with the probable lack of understanding by the court in the field in which the expert seeks to be qualified, it may be difficult, if not impossible for judges to sniff-out the proverbial wolf in sheep’s clothing. The Goudge Inquiry highlights precisely this point. Dr. Charles Smith was qualified to give opinion evidence in the field of pediatric forensic pathology at least 45 times in his professional career. Though hindsight certainly revealed that he was not qualified to give this evidence, upwards of 45 judges qualified him as an expert in response to 45 requests by Crown Prosecutors[8]. This begs the question: is the law concerning qualifying experts sufficient to protect against the unqualified witness?

To protect the judicial process from the wolf in sheep’s clothing, the Court must assiduously exercise its gatekeeper function. This is no easy task; for the information must be assessed by untutored lawyers and lay judges, who themselves may be impressed by the witness’s credentials, but have little understanding of what it means to actually be qualified to give evidence in the area. To further complicate matters, judges are asked to inquire as to whether the information is outside the understanding of the ordinary person. This evaluation requires judges to plumb the depths of their own understanding and even where the information is beyond their appreciation, they must engage in a rather idiosyncratic inquiry as to whether the information offered by the expert is outside the ken of the ordinary person. In a sense, the law demands that ordinary people who may not understand assess the understanding of ordinary people.

Oftentimes disagreement concerning the admissibility of expert opinion evidence is resolved in favour of weight – that is, the evidentiary significance of admissible evidence is left to be decided by the trier of fact. Leaving such evidence to weight, however, does little to protect the plebeian ear from receiving information that may be shielded from effective cross-examination or critical judicial assessment precisely because the expert antecedents and evidence is outside the ken of ordinary understanding. And to contort the problem even further, parties in proceedings often seek to qualify experts who may, due to their various affiliations, have a stake in one opinion over another. Accordingly, even an eminently qualified witness may have to be excluded from giving evidence simply because of his or her investment in a particular theory or organization.

The debate is that of advocate versus expert. The advocate-expert debate is not really concerned with whether the witness is qualified per se or whether the witness can offer an opinion, it concerns the issue of whether the evidence is simply advocacy dressed up as expert opinion. As Justice Wright aptly stated in R. v. Montague, [2007] O.J. No. 1594 (Ont. S.C.J.): “[w]hile most experts tendered by the Court today are not truly independent there comes a point where the expert is recognized as being an advocate of a position to such an extent that his impartiality cannot be relied upon. The place of such a person is at counsel table, not the witness box”[9].

Disgraced pathologist Dr. Charles Smith gave evidence from the witness box when his place was at counsel table. When finally called to answer for his opinions, Dr. Smith admitted that he never received any formal instruction in giving expert evidence and that “…he believed his role was to act as an advocate for the Crown and to make a case look good”[10]. In terms of expert opinion, Dr. Smith’s evidence fits squarely within the dangerous kind warned by Mr. Justice Sopinka in R. v. Mohan. Dr. Smith’s evidence resulted in the conviction of persons such as William Mullins-Johnson. It was, however, little more than empty opinion dressed up in scientific language and delivered through a mouthpiece with impressive antecedents. Twenty-twenty hindsight means little compared to the 12 years that Mr. Mullins-Johnson lost while incarcerated in a Federal Penitentiary. In an interview with Macleans’s Magazine, Mr. Mullins-Johnson commented: “…convicts begin to think—that the only place they [can] function is in prison. I would not fall into these terminologies or these behaviours. I had to conform a bit, to survive…[b]ut I would not treat that place as a place where I belonged. I never belonged there”[11]. As much as Mr. Mullins-Johnson did not belong in gaol, Dr. Smith did not belong in the witness box.

Prosecutors use experts in a variety of fields; fingerprint identification, drug trafficking, accident reconstruction, toxicology, blood spatter, D.N.A. and forensic pathology, just to name a few. In many cases, experts are State agents who have devoted entire careers to government service and whose livelihood depends upon a government paycheque. The inherent danger in qualifying such persons comes not only from the possibility that they may be biased in favour of activities conducted during years of service to one master, but also from the possibility that the master continues to pull the strings. On this latter point, in 2008, the Federal Government “muzzled” its environment experts from speaking freely on issues of environmental concern. The directive was initiated to ensure that all experts communicate along “approved lines”[12]. As revealed in the Goudge Inquiry, when the Chief Coroner finally decided to conduct vigilant oversight of Dr. Smith’s cases, the aim was“…to protect the reputation of the office” not to remedy harm perpetrated against the public interest. Perhaps most interesting, in 2007, Cst. Joe Slemko, a world-recognized blood spatter expert with the Edmonton Police Service was publicly criticized by the department for acting for the defence in a number of cases. As reward for supplying expert evidence that actually led to the exoneration of one accused, Cst. Slemko was convicted by his employer of insubordination and informed that he would not receive his 20-year exemplary service medal. This was startling considering he had an untarnished career as a peace officer. According to the Edmonton Police Service “…officers are barred from any business activity that might reasonably be expected to impair their judgment, independence or unbiased performance of police duty”. The Department’s view was that Cst. Slemko was “free to testify as an independent consultant for the prosecution”, but could not speak to a defence lawyer without prior approval of the police service[13].

This position is disconcerting, to say the least; for other than supplying evidence that may undermine the State’s interest in convicting the accused, how does testifying for the defence impair the officer’s judgment, independence or unbiased performance? Why should he be restricted to only assisting the prosecution? Is it because his assistance to the defence may be prejudicial to the Prosecution’s theory of the case? In the words of Arthur Schafer, the director of the University of Manitoba’s Centre for Professional and Applied Ethics, “[w]hat strikes me about this situation is the dramatic misconception of the Edmonton Police Service about the role of the police and the Crown”[14]. As reports concerning Cst. Slemko leaked to the public, the Edmonton Police Service was compelled to respond. Was the response generated with approval along party lines? Citizens should remember that what happens behind closed doors may be far different than what is communicated to the public or in court.

True expert opinion is neutral. It is not invested in one side of the case or another; rather, its aim is to ensure impartial and unbiased opinion based upon a foundation of proven evidence. A true expert, such as Cst. Slemko, gives due consideration to other possibilities, even if it means discounting his or her own views.

In colloquial terms an advocate is somebody who supports or recommends a particular cause. It matters not whether the witness recommends a cause because it stalwartly and exclusively supports a particular position or recommends because it acts in the service of one master – advocacy is advocacy. Defence counsel, for example, is an advocate for the accused. To borrow a rather powerful quote, from an unknown author:

Our adversary system requires no less than that defense counsel become a "brother in arms" to the accused in this battle. Defense counsel must be prepared to stand a fight for his client against public outcry; he must stand and fight for his client throughout his trial; and he must stand and fight for his client at the time final judgment is entered. Such a system is not efficient. It is not designed for "swift justice". Indeed, some would say that it is not designed for "justice" at all. But if posterity judges a free society by how it treats its individual members, it should be of considerable consolation to us all that our system does not require an accused to stand alone[15].

By contrast, the Crown is an advocate for the public interest. Prosecutors are tasked with the difficult responsibility of assessing each case both in terms of reasonable likelihood of conviction and public interest. This duty is onerous; doubtless forcing individual Crowns to set aside their human inclination to win cases in favour of a deeper and more profound sense of the public good. In some cases, the Crown must advocate for the rights of the accused by choosing not to prosecute. Mr. Justice Rand astutely commented on the role of the Crown in Boucher v. The Queen[16]:

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

The State juggernaut consists of a multitude of players, including government officials, doctors, lawyers (such as prosecutors) and law enforcement officers. The most regular participants in criminal justice are police officers. Since police are responsible for investigating and laying charges on reasonable grounds, they are by implication, advocates for the prosecution. Police are tasked with the responsibility of investigating crime. Ideally, every investigation is as much about collecting evidence to support conviction as it is to exonerate the innocent. In a great many cases, however, collecting evidence is conducted in pursuit of a single-minded theory of the case, aimed at convicting a suspected wrongdoer. Countless criminal proceedings are run on the basis of incomplete investigation or improperly obtained evidence. It is not unusual that once some evidence supporting a theory is obtained, simple steps to confirm or strengthen the hypothesis are ignored. An experienced practitioner need only reflect on the myriad of cases where no photolineups were completed, fingerprints analyzed, D.N.A. collected or witnesses interviewed to appreciate this point. Arguably, police officers are trained to “think dirty” – that is, they approach every case with a “high index” of suspicion[17]. Indeed, investigators should approach cases in this way, but in so doing, they should also approach with a high motivation to ascertain the truth. Unfortunately, the search for truth is often abandoned to incomplete investigation, left to be reconciled by lawyers and judges in court.

In a great many cases, the Crown seeks to qualify police as experts to supply opinion evidence to support conviction. Police officers are most often experts of choice in areas such as fingerprint identification, accident reconstruction, blood spatter, organized crime, and drug trafficking. Given the role of police in criminal investigations, qualifying them as experts is nothing short of dangerous. Like any human being, police are susceptible to their own life experiences. When the experience is dedicated to the apprehension and collection of evidence to convict suspected wrongdoers, it is hard to imagine that a dyed-in-the-wool police officer would not, at the very least, have a reasonable apprehension of bias (if not actual bias) in favour of evidence supporting conviction. To illustrate, consider the following thought experiment:

Imagine an automobile driver who, unknowingly, wears spectacles of red glass. He would find it difficult to tell the difference between red, yellow or green traffic lights and he would be in constant danger of an accident. It is of no help to him that some or for that matter even most of the lights he perceives as red really happen to be red. The danger to him comes from the inability to differentiate and separate what his “red projection” imposes on him[18].

For police officers the red projection is reflected in a body of training and experience that is largely, if not exclusively law enforcement based. If they are equipped with spectacles in the form of years of training and experience by other members who have been similarly trained on the basis of similar experience, what assurances can the Court have that the evidence offered is truly neutral and not merely a police officer’s biased opinion in support of conviction?

Though we may be reluctant to accept that participants in our criminal justice system may be impossibly tainted by the roles they play within the system, coming to terms with this reality is important so that we can properly protect the integrity of the judicial process against infiltration by wolves in sheep’s clothing. Criminal justice is a human system, and as such, is susceptible at all levels to varying degrees of human frailty. And it is not just police; lawyers, witnesses and even judges are predisposed to their own nature. Even the best intentioned witness may not appreciate their own deficiencies. In the words of legendary American jurist, Benjamin N. Cardozo:

A brief experience on the bench was enough to reveal to me all sorts of cracks and crevices and loopholes in my own opinions when picked up a few months after delivery and reread with due contrition. The persuasion that one’s own infallibility is a myth leads by easy stages and with somewhat greater satisfaction to a refusal to ascribe infallibility to others[19].

A claim that one is unbiased does not make it so. Lessons from the Goudge Inquiry and other cases should not be viewed as unique incidents in history, to be shrugged-off as unfortunate, rare and isolated occurrences within the criminal justice system. Rather, these events should be viewed as reflections as the way things were, how they are, and if we fail to learn, how they will be. Again, in the words of Benjamin Cardozo, “…in illuminating the past, [history] illuminates the present, and in illuminating the present, illuminates the future”[20]. What is the future for expert opinion in criminal justice? At the very least, it should not be a future where advocates are permitted to infiltrate the flock as wolves in sheep’s clothing.

Submitted by:

David G. Chow
Fagan & Chow
Barristers
www.faganandchow.com

[1] The Honourable Stephen T. Goudge, “Report in the Inquiry into Pediatric Forensic Pathology in Ontario”, 2008: pg. 7.
[2] Ibid., 20.
[3] Ibid., 32.
[4] Ibid., 33.
[5] See R. v. Abbey, [1982] 2 S.C.R. 24 (C.C.C.) and R. v. Mohan, [1994] S.C.J. No. 36 (S.C.C.)
[6] R. v. Mohan, [1994] S.C.J. No. 36 (S.C.C.)
[7] Mohan, pg. 9 at para. 19.
[8] Goudge Inquiry, pg. 13.
[9] Pg. 6 at para. 26.
[10] Ibid.
[11] http://www.macleans.ca/article.jsp?content=20080306_153930_1656&page=2
[12] http://www.canada.com/vancouversun/news/story.html?id=47bf0fba-b98f-43fb-89fb-58b6464a7b24&k=65248
[13] http://www.canada.com/edmontonjournal/news/story.html?id=40486b34-a05b-4f91-9c5c-87149885d2cd&k=65918
[14] Ibid.
[15] http://www.ccdla.ca/cdla_website_-_july_22_08_005.htm
[16] [1955] S.C.R. 16 at pp. 23-24 (also cited in Stinchcombe, supra at p. 5)
[17] See Goudge Inquiry, pg. 33.
[18] Whitmont, Edward C. “The Evolution of the Shadow”. Meeting the Shadow. Penguin Putnam Inc. New York, (1991): 14.
[19] Cardozo, Benjamin N. The Nature of the Judicial Process. Yale University Press. U.S.A., (1921): pg. 30.
[20] Ibid., 53.

Remembering Freedom: The Doctrine and the Myth of Officer Safety (by Gregory R. Dunn)

As a bit of a military enthusiast I religiously attend or watch the annual Remembrance Day celebrations to honor the service men and women who were instrumental keeping this country free. This November 11th, my wife and I were watching the national ceremony in Ottawa on television. In the prelude before the customary moment of silence, the commentators rambled on while the camera man panned across fragile vets from the Second World War, to progressively younger generations who likely served in more recent conflicts, Korea, Bosnia and today, Afghanistan. Flashing across my television I saw the winter greens of the Army, light and dark hues of blue from the Air Force and Navy, and then, oddly the unmistakable scarlet the Royal Canadian Mounted Police. At first I thought nothing of it, but my wife, perks up in her chirpy style and commented: Why are the Mounties there ? They never fought in any wars. In a few minutes her query hardened in my mind until I found myself asking the question indeed: Why were civilian police officers taking part in remembrance ceremonies ? Isn’t Remembrance Day for MILITARY veterans?

Eternally seeing the red crusaders at every Government of Canada/CBC/taxpayer funded function I never took a moment to direct my mind to question the image often portrayed that police officer and military servicemen are collectively “men and women of service”. We are all told and know the police and military share similar traditions, uniforms and values. But do they really? Traditions and uniforms maybe, but values? Although police officers look like soldiers, dress like soldiers, can march (sometimes) like soldiers, history would suggest that on values, the military and civilian police forces are not the same and in fact are rather disparate. Boiled down the most basic juxtaposition on values: Soldiers risk their safety in an effort to protect freedom; Police officers compromise freedom in an effort to preserve safety.

Confused? Not what Rick Bell told you? Well, perhaps we can have some context. The militaries of free nations have historically enlisted and motivated men with mantras designed to do just that, to enlist and motivate. Words such as duty, honor, glory and service come to mind. However, out of the slogans and catch phrases that have been used over the last century there is one which stands out, one which speaks as strongly to the youth of today as it did in 1915, that of freedom. Freedom is why we fought German imperialistic aggression in World War I, freedom is why we fought Nazi atrocities in World War II and freedom is why we have sent our troops into harms way ever since. One just needs to check out old recruiting posters to get a sense of the galvanizing power of the beacon of liberty: from the first world war a US navy recruiting poster reads “Follow the flag to freedom”[1]; a British recruiting poster of the same era states “No price can be too high when honor and freedom are at stake[2]”; a Canadian recruiting poster from the second world war reads “For Canada and Empire and Freedom”[3].

Civilian police forces however, preach a much different sermon, and it is that of safety. Just surf through the Calgary City Police website and you will see hot buttons that read: “Safety in the Streets”; “Internet Safety Presentation” and “For Safety’s Sake”[4]. Nowhere to be found is there a commitment towards freedom or liberty. I find this troubling. Now, there is nothing wrong with working towards a safer community, there is nothing wrong with having that “zippity do da” feeling that you can walk anywhere at anytime and not get your purse snatched. However, what is disconcerting is when safety becomes so obtrusive that it serves to compromise liberty. In Calgary, in Alberta and perhaps to a lesser extent across the rest of the nation, I’m afraid we are well past compromise; liberty is under siege and sliding towards the dangerous road of surrender. Enter the maligned doctrine of “officer safety”.


The doctrine of officer safety is the latest and most intrusive practical manifestation of our institutional zealous fixation on issues of safety and its sheer commonality of use has reached near leviathan proportions. Sit in one of the trial courtrooms in the gleaming and sanitized Calgary Courts Centre and you will invariably hear from the well coached mouths of Calgary’s Finest all about the dangers of police work. So dangerous is the job of the police officer that special precautions must be taken to avoid grievous bodily harm or death. Oddly enough these special precautions taken to ensure “officer safety” have just the opposite effect on the liberty and freedoms of citizens.


As defence counsel I see the doctrine being utilized on a daily basis by police officers, prosecutors and judges alike to justify conduct that can only be characterized as otherwise just plain illegal During the course of trial the doctrine of “officer safety” is relied upon so often as to seemly justify every aspect of a police officer’s conduct from beginning to end; from the initial “traffic stop” all the way to the district 6 cavity search, all done in “good faith” and for the legitimate reason of “officer safety”. Make no mistake, this is not simply a rare and isolated search of some “nobody crack head” that can be brushed off with a dismissive sniff and waive of the hand, there likely are thousands of systematic illegal intrusions into the lives of ordinary citizens that never make it under the heat lamp of the judicial process. What we are witnessing in the courtroom is but a quantum of the tip of what is a very large, very dark, very dangerous iceberg.

The problem is not a static one, it is one which has grown significantly over the last decade. Not only has the frequency of “officer safety” concerns seemingly increased among testifying officers as of late, the consistency of such evidence adduced in courts by uniformed police, day after day, invariably causes pressure on the system to accommodate; pressure on the law to respond and develop, and pressure on Judges to accept such evidence without serious critical evaluation. By way of illustration of growing jurisprudential accommodation of “officer safety” evidence, twenty years ago you had to have “reasonable and probable grounds” to arrest and search. Today, a search incidental to “investigative detention” gives the good officer one free pat down for basically any trite reason that he can manufacture in the 8 months prior to trial. Vehicle searches ? Just arrest the motorist for an outstanding traffic violation, then go ahead and search vehicle. A man’s house is his castle, surely a warrant is required ? Not anymore, officers need to “clear” the residence to ensure there are no booby traps.

On an evidentiary level, defence counsel combating the “officer safety” card must walk a very thin tightrope; say too little and the judge decides the officer’s evidence on safety concerns is “uncontradicted”; say too much and you’re a spoiled, insensitive creampuff who simply doesn’t understand the real danger of police work. By way of anecdotal illustration, during my first few years of practice I sat in court and heard one of Calgary’s preeminent Barristers obtain a discharge on a charge of possession of crack cocaine. The cocaine was found by a police officer hidden in some junkie’s mouth. The basis of the lighter than usual sentence was because the officer justified his search of the accused’s mouth on the basis that “in his experience individuals have been known to hide weapons in their mouths”. The fact that a plea was opted for over simply running a trial speaks to the collective confidence, or lack thereof, in the judiciary being able to, or willing to, separate the “wheat from the chaff” on matters of the kind.

One might still ask: “well Dunn, you’re not a cop, how the hell do you know its’ not as dangerous as they say”? Good point. Just so I’m not seen as being flippant or insensitive to the inherit dangers of police work, lets check out the cold hard numbers. Amongst the world’s most dangerous jobs, a police officer must place somewhere? Not really. According to Bureau of Labor Statistics data the most dangerous job was fishing, logging was second, aircraft pilots were third followed by steel workers. Ranchers, truck drivers and construction workers also made the top 10. Police officers did not place, not even in the United States which generally sees higher levels of violent crime directed towards figures of authority. An article from CNN citing the data notes: “Statistically speaking, farmers -- with a fatality rate of 41.1 -- are more than twice as likely to die on the job than police officers (18.2)[5]

Well, perhaps Calgary is an especially dangerous place with the seemingly recent explosion of violent crime ? Are fatalities incidents for members of the Calgary Police Service higher then other departments from cities of comparable size? From the inception of the Calgary Police Service a total of 11 officers have been killed in the line of duty. Eleven. By comparison:

Dallas Police Department (pop. 1.2 million approx) – 78[6]
San Antonio Police Department (pop. 1.3 million approx) – 48[7]
St. Louis Metropolitan Police Department (pop. 353,000 approx) – 163[8]
Officers Killed this YEAR in Texas – 9[9]
Officers Killed this YEAR in California – 9[10]
Officers Killed this YEAR in Pennsylvania - 6 [11]
Officers Killed in the LAST 6 MONTHS in Afghanistan - 720[12]
Boy Scouts of America Killed this YEAR to date – 8[13]

The bottom line is the numbers simply do not support the allegation that police officers in Calgary, Alberta, Canada are faced with significant officer safety challenges specifically resulting in unusual levels of on duty fatalities. Rates of officers killed on duty in Calgary are 14% of that in Dallas Texas, 23% of that of San Antonio Texas, and 7% of that of St Louis Missouri. In 6 months police officers in Afghanistan lost 65 times the total amount of officers that the Calgary Police Service has ever lost, and if you amortize it on a yearly basis the fatality rate is 600 times higher. Even the Boy Scouts of America, pursuing generally benign activates such hiking, canoeing and camping this year have seen approximately a 6 ½ times greater activity related death rate than the CPS. I haven’t heard but I don’t believe the Boy Scouts are asking for significant safety concessions from the trees and the river or the animals of the forest. I have no intention to minimize or trivialize the dangers that Calgary police officers face in doing a difficult job, however the issue is whether those safety concerns are of such proportions to justify the significant shadow over freedom that the doctrine of “officer safety” casts.


Freedom and safety are both desirable ends in a free and democratic society. They are however often diametrically opposed, safety comes with corresponding limits on freedom. Abroad soldiers of our young nation have fought, and continue to fight, for freedom, jeopardizing and sacrificing their own safety in pursuit of the higher cause. Here at home it is in the Courts of Justice that these two principles most often collide, where the freedom and safety are measured on that great balance. As defence lawyers we are not neutral in the struggle, it is the flag of freedom, the standard of liberty that we carry. Our skirmishes are distilled into legalistic battles, Charter motions, section 8 and 9 violations, applications for exclusion under 24(2). Legal “mumbo jumbo” for the masses and for the pages of Calgary Sun, but for the few of us who fight for the cause they are the weapons of war. They are the rifles, and the tanks; they are the well used boots and heavy Kevlar vests. Each and every day we scrape and scrap, one against many, the individual pitted against the state, defending the reviled against the esteemed, all in the greater hope that in doing so we maintain the line in the sand, that we do lose what past generations have won.

Gregory Dunn
Dunn & McKay, Criminal Defence Lawyers

[1] http://www.history.navy.mil/photos/images/h93000/h93748k.jpg

[2] http://pw20c.mcmaster.ca/files/pw20c_images/00000887.jpg

[3] http://www.lermuseum.org/ler/mh/wwii/imagewindow/rifles.html.

[4] http://www.calgarypolice.ca/community/hate_bias.html

[5] http://edition.cnn.com/2007/US/Careers/01/08/cb.danger/index.html

[6] http://en.wikipedia.org/wiki/Dallas_Police_Department

[7] http://www.sanantonio.gov/sapd/tribute.asp?res=1280&ver=true

[8] http://www.slmpd.org/

[9] http://www.odmp.org/

[10] Ibid

[11] Ibid

[12]http://www.theglobeandmail.com/servlet/story/RTGAM.20080916.wafghanpolice0916/BNStory/Afghanistan/home

[13] My own research. Don’t worry about it.

Afterward

By way of interest, in answer to my wife’s query (as well as mine) as to “why members of the Royal Canadian Mounted Police entitled to attend at Remembrance Day celebrations”? I received that answer from a rather astute blogger who e-mailed me with the historical background. I have effectively reproduced in a slightly modified form.

“Many members of the NWMP (Northwest Mounted Police) were given a 'leave of absence' to fight with the 2cd Battalion CMR (Canadian Mounted Rifles) and the Lord Strathcona's Horse during the second Boer War in South Africa. The NWMP staff raised and mostly paid for the equipping of the CMR and they made up the majority of that regiment, and then, as a result of their service to the British Crown, the Northwest Mounted Police were granted the right, by King Edward Vll, to use the prefix "Royal" therein by, on 24 June 1904 they became the Royal Northwest Mounted Police (RNWMP).A squadron of RNWMP volunteers was raised by staff and served with the CLH (Canadian Light Horse) in August of 1914 and served in France until the end of the war. In 1918 A Squadron was raised to serve in France and B Squadron gave Service with the Canadian Expeditionary Force (Siberia). In 1939 (World War II) the now RCMP (1 Provost Company thereof) volunteered for service with the Canadian Provost Corps throughout that war.RCMP have served in most peace keeping units we have sent overseas and they arecurrently in Afghanistan. In addition, the RCMP are entitled to display their Guidon as a legitimate "Regiment of Dragoons" with their battle honours listed upon it.”

Lest We Forget (by David G. Chow)

On the 11th hour of the 11th day of the 11th month all Canadians should pause to remember the thousands of men and women who sacrificed their lives for our freedom. The soldiers who braved historic battlefields such as Vimy Ridge, Passchendaele, Dieppe, Normandy or the Atlantic Ocean, gave themselves so citizens of this Country could enjoy life free from oppression and tyranny. These were men and women of action, not words; and it is because of them that in our civilization there is often little distinction between action and word. Rather than raising a weapon, citizens today may raise a pen; rather than engaging in physical combat, citizens may debate with ideas; rather than having freedom determined at the end of a gun or the heel of a boot, it is determined by a rule of law – to be assiduously protected – out of respect for our way of life and those who made the ultimate sacrifice to help us get here. As inscribed on the Monument to Canadian Fallen at Confederation Park in Ottawa, “We Will Never Forget You Brave Sons of Canada”.

November 11th is the day dedicated to remember those who sacrificed during the First World War, the Second World War, the Korean War, the Afghanistan conflict and during Canada’s many other peacekeeping missions. It strikes me, however, that after paying homage to our fallen heroes on November 11th, we should take a moment – on another day – to remember those who were sacrificed because our system failed. Woven into history are important lessons for the future.

For example, let us not forget that Democratic Canadians were responsible for interning more than 22,000 Japanese Canadians during the Second World War[1]. Some of these citizens were combat veterans of the Canadian Expeditionary Force. Some had even been decorated for bravery during the fighting on the Western Front in the First World War. Despite citizenship in a free, democratic and multi-cultural Canada, they were collected and scurried off to internment camps. In the words of MP, Ian MacKenzize, “It is the government’s plan to get these people out of B.C. as fast as possible. It is my personal intention, as long as I remain in public life, to see they never come back here. Let our slogan be for British Columbia: No Japs from the Rockies to the seas”.

Just for a moment, let that frightening slogan resonate in your mind. It mattered not that most if not all of the interned Japanese Canadians were not spies of the Japanese government. It mattered not that there was no evidence of treason to the point that even the Royal Canadian Mounted Police felt that the public’s fears were unwarranted. It mattered not that most of the Japanese in British Columbia were naturalized or native-born citizens. Japanese Canadians were fired from their jobs, excised from their homes and lost the right to partake in the ocean’s scenic beauty along a protected 160 km strip on the Pacific Coast. In the words of Japanese Canadian, Ken Adachi: “Born in Canada, brought up on big-band jazz, Fred Astaire and the novels of Rider Haggard, I had perceived myself to be as Canadian as the beaver. I hated rice. I had committed no crime. I was never charged, tried or convicted of anything. Yet I was fingerprinted and interned”. The sad irony is, while our brave soldiers littered battlegrounds across Europe to protect Holocaust victims of a land not their own, the Government of Canada enacted legislation ordering the internment of its own people. Despite a lack of evidence or proof of guilt of any crime, Ian MacKenzie, a Member of Parliament stated on a national CBC Broadcast, “No Japs from the Rockies to the seas”.

The Japanese Canadian Internment is a grim reminder of a chequered past, where our civilization was prepared to infringe upon the human rights of its citizens in response to irrational fears on public safety. Though citizens today are not particularly concerned about a Japanese submarine emerging of the coast of British Columbia or a Japanese fisherman leaking information about Canada’s coastline to an Axis enemy, we should not forget that despite our noblest traditions, we have in the past been responsible for the tragic abrogation of the civil liberties of our own citizens. Even the so-called pillar of democracy, the United States of America, is not without its lessons. During the McCarthy era, for example, the search for communists during the cold war saw thousands of citizens rounded-up, interrogated, accused and even convicted for crimes they did not commit. The McCarthyist search for communists is considered by many to be the most famous witch hunt of the 20th Century[2].

When Ken Adachi was fingerprinted and interned, he had committed no crime. Perhaps the most frightening thought for any citizen is being arrested, charged and convicted for a crime they did not commit. Yet even with the Canadian Charter of Rights firmly engrafted into our criminal law, Canada’s justice system is not without its casualties. Thomas Sophonow spent four years in jail for a crime he did not commit. Though he was compensated by the Manitoba government, he said “no compensation can pay for all the years”[3]. In 1990, another Winnipeg resident, James Driskell was imprisoned for life after he was convicted of first-degree murder. He spent twelve years behind bars and was not exonerated until February 15th, 2007, when the Justice Department finally acknowledged that the jurors at his trial had been “seriously misled” on the reliability of key witnesses and the failure on the part of prosecutors to disclose information[4]. In 1995, Randy Druken was convicted of murdering his girlfriend on the basis of evidence from a jailhouse informer. Though Druken was released in 1999 after the informer claimed police pressured him into making a false statement, he spent four years in jail faced with constant danger from inmates who savagely punished those convicted of killing women and children. Druken later stated, “there were times that…I even wanted to kill myself. And again, I had to think of reasons why not to”[5]. David Milgaard spent 23 years of his life in jail for the murder of Gail Miller. He was falsely identified by a casual friend. After his release, Mr. Milgaard stated “There is no justice in being locked up behind bars for something you have not done…. How would you feel if no one would tell the truth about you?”[6].

David Milgaard, Thomas Sophonow, James Driskell and a host of others such as Gregory Parsons, Guy Paul Morin, Donald Marshal, Steven Truscott, and Herman Kaglik stand as firm reminders of the frailties of criminal justice. Herman Kaglik spent over 4 years behind bars after being wrongly convicted for sexually assaulting his niece. He was convicted on a single witnesses’ testimony and later exonerated through DNA evidence. After his release, Mr. Kaglik commented: “It was a daily grind of fighting for your life and trying to convince people you were innocent”[7]. Recently, Mr. William Mullins-Johnson was found to be wrongly convicted on the basis of the expert opinion evidence of Dr. Charles Smith. When given opportunity to address his accuser, Mr. Mullins-Johnson told Dr. Smith: “You put me in an environment where I could have been killed any day for something that never happened. You destroyed my family, my brother’s relationship with me and my niece that’s still left and my nephew that’s still living. They hate me because of what you did to me”[8]. Though Dr. Charles Smith was certainly labelled Judas at the Inquiry into Pediatric Forensic Pathology in Ontario, the Honourable Stephen T. Goudge properly reminded us that the wrongful conviction of Mr. Mullins-Johnson and others was as much as product of Dr. Smith as it was failed oversight.

Our system of justice is built upon the presumption of innocence along with other principles designed to make the presumption meaningful. Recent attacks on the justice system, and in particular, the law of bail, by those such as Alberta Justice Minister, Ms. Alison Redford are just a little troubling because they demonstrate an apparent willingness by those responsible for justice in this province to reduce legal protections for those accused of crime. If history has taught us anything, it’s that people in Canada can be accused, charged, convicted and even incarcerated for doing absolutely nothing wrong. Notwithstanding that Ms. Redford’s message may be high on catch phrases, such as “catch and release” and “revolving door” the message is frighteningly low on substance. “We need to write vigorous legislation” she says, “[i]f people don’t like it they can challenge it. The fear of a Charter challenge should not stop us from passing legislation that makes sense”[9]. This begs the question: what makes sense? Should parliament write potentially unconstitutional legislation to ensure that those who are “presumed innocent” are kept behind bars?

Journalists such as Rick Bell obviously think so. In his words, “[i]t’s Alison against Goliath, with the giant being the weak-kneed Canadian criminal justice system[10]”.

Police Chief Rick Hansen obviously thinks so too. “How much protection does the average citizen deserve…”[11]?

Alberta’s Minister of Public Security, Fred Lindsay also thinks so. As he says, “[t]he justice system operates on a principle of innocent until proven guilty. Sometimes they go overboard”[12] .

Well I feel safer already. The talking heads stand united!

According to Ms. Redford, “it’s fine to be presumed innocent until proven guilty” and “[i]t’s fine if we have to keep more people in jail”. In fact, as she says, “I want to keep more people in remand”[13]. David Milgaard had a chequered past. According to Ms. Redford, I guess “it’s fine” that he was jailed? But hang on, wasn’t he innocent?

The message of this article is to suggest that before charging ahead with unintelligent and dramatic plans to overhaul a system with the aim of making it easier to incarcerate citizens, we should remember those who were sacrificed because our system failed. And it’s not “fine” that it did. How much protection does the average citizen deserve? How about enough to ensure that no citizen is ever wrongfully convicted, interned or persecuted for something they did not do?

Lest we forget.

Submitted by:

David G. Chow
Fagan & Chow
www.faganandchow.com


[1] http://en.wikipedia.org/wiki/Japanese_Canadian_internment
[2] http://en.wikipedia.org/wiki/Witch-hunt
[3] Nash, Jay Robert. I Am Innocent – A Comprehensive Encyclopedic History of the World’s Wrongly Convicted Persons. DA Capo Press. Cambridge, 2008: pg. 246.
[4] Ibid, pg. 247.
[5] Ibid, pg. 248.
[6] Boer, Peter. Wrongfully Convicted – The Innocent in Canada. Quagmire Press. 2007, pg. 55.
[7] Nash, Jay Robert. I Am Innocent – A Comprehensive Encyclopedic History of the World’s Wrongly Convicted Persons. DA Capo Press. Cambridge, 2008: pg. 248.
[8] The Honourable Judge Stephen T. Goudge. Inquiry into Pediatric Forensic Pathology in Ontario. Pg. 5. http://www.goudgeinquiry.ca/
[9] http://calsun.canoe.ca/News/Columnists/Bell_Rick/2008/08/31/6621796-sun.php
[10] http://calsun.canoe.ca/News/Columnists/Bell_Rick/2008/10/31/7262146-sun.php
[11] Ibid.
[12] Ibid.
[13] http://calsun.canoe.ca/News/Columnists/Bell_Rick/2008/08/31/6621796-sun.php

Hostile Environment for Criminals - At What Cost? (by David G. Chow)

This article was written on November 11th, 2007, in response to Premier Ed Stelmach's address to Albertans. The article was forwarded to both the Calgary Herald and Calgary Sun, but was not published in either newspaper. In light of the barrage of recent "catch and release" type media reports and the plethora of troubling remarks by Alberta's Minister of Justice, Ms. Alison Redford, Calgary's Chief of Police, Rick Hansen, journalists such as Rick Bell and Alberta Court of Queen's Bench Justice Wachowich, it is the writer's view that the article continues to have significance.

_________________________________________________


“A catch and release system works for fish. It doesn’t deter crime”

-- Alberta Premier, Ed Stelmach

On November 6th, 2007 Alberta Premier, Ed Stelmach delivered a stern message to persons alleged to have committed criminal offences: “We must take criminals off our streets – and keep them off!” The Premier’s message comes in the wake of a barrage of violent incidents, some involving firearms and many linked to organized crime. The message was simple, the rhetoric predictable – lets make our province and our country “…a hostile environment for criminals”.

There is little doubt that most ordinary citizens laud the objective. After all, crime control is central to the free and democratic existence of all Canadians. Absent crime control, life, in the immortal words of Thomas Hobbes would be “nasty, brutish and short”. In the world today, fear of a nasty, brutish and short existence is omnipresent. Perhaps the word “trepidation” aptly defines Western society. Fear of terror, fear of crime, fear of drugs, fear of gangs, fear of poverty, fear of sickness, fear of environmental catastrophe, fear of nuclear devastation and now fear of Pakistan represent just a small bundle of fears currently stowed in our collective consciousness. In a highly politicized world where the media is the message, capitalizing on fear is an industry. Manufacture it, market it, ease the collective consciousness by convincing citizens you can stop it and the populace will applaud your efforts. Perhaps they will even award you a second term in office! The message of this article is to caution citizens against being duped by the rhetoric.

The problem with speechifying is that though it contains a message, it often fails to convey information accurately, honestly and in context. The problem with Premier Stelmach’s November 6th, 2007 message – where he reminded Canadians about the need to “…preserve Alberta’s traditional values” — is that he failed to account for Alberta’s traditional values.

Traditionally, Alberta jurists have played a prominent role in the interpretation and development of both our Canadian Charter of Rights and Freedoms and Canadian criminal law. For the most part, the Alberta way has been focused upon the application of the rule of law and the preservation of civil liberties. Jurists such as former Alberta Court of Appeal Justice Milt Harradence were pioneers, whose torch is carried today by many members of Alberta’s legal community. In the spirit of Canada’s democratic traditions, Alberta jurists have zealously applied our most sacred legal principles, which include the presumption of innocence, the right to a fair trial and the right not to be deprived of reasonable bail without just cause. If our legal traditions are any reflection of traditional Alberta values, citizens of this province do not value otherwise.

Premier Stelmach’s address, which includes a proposal to “overhaul the bail system” follows on the heels of several opportunistic – get tough on crime – type comments by a plethora of high ranking officials, including Calgary’s Mayor, its Chief of Police and Alberta’s Minister of Justice. The Premier’s words were strong – perhaps even captivating – but on any objective analysis his message is nothing short of false rhetoric.

In just a few choice phrases, the Premier demonstrated an appalling lack of understanding of our most sacred legal traditions. For starters, the presumption of innocence is a hallmark of both the Canadian criminal justice system and our free and democratic society. Premier Stelmach’s comment, “the catch and release system works for fish, …it doesn’t deter crime” completely ignores the fact that all persons, even those with atrocious criminal records, are innocent until proven guilty. Premier Stelmach also apparently misunderstood that “deterrence” is a principle of sentencing, not bail. Surely Canada’s legal tradition has never been to punish the innocent?

The noble traditions of Canada’s criminal justice system have long recognized that public confidence in the bail process is not to be measured against the irrational, ill-informed or overly excitable citizen; rather it is to be gauged against the backdrop of ordinary, reasonable, fair-minded members of society, who are informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the prosecution. It appears that Premier Stelmach is not a member of this latter group.

Is the detention of the accused necessary to ensure his or her attendance in court? Is the accused a substantial likelihood to commit a criminal offence if released? Would confidence in the administration of justice be so imperiled if the accused was released from custody? These are the appropriate questions as to whether a person should be granted bail. Strict application of these principles is the method by which the presumption of innocence is protected. The presumption of innocence is not just an Alberta tradition, it is a democratic tradition.

For Albertan’s to have faith in the criminal justice system it is imperative to protect the rights of the innocent. Any deviation from this objective stands in stark contrast to our way of life – a way of life which should not be abandoned in a fit of trepidation over the seemingly endless barrage of media reports telling Canadians how are society is falling prey to crime. Canadians should remember that our criminal justice system cannot fix the ills of the world. Our justice system is reactive, not proactive; and does not operate in place of good old-fashioned family values. Canadians should also recognize that since the Canadian Charter of Rights and Freedoms only applies to relationships involving individuals and the State, it is perhaps ironic that the rights and freedoms of all law abiding citizens in Canada are protected through the prosecution of alleged criminals. In many instances the plight of the ignoble deviant champions the cause of all citizens to prosper in a free and democratic society. It is the principled application of law to such instances that separates Canadian society from the dystopic civilizations wherein in the tyranny of the few reigns over the many.

Indeed, most Canadians will agree that this country should be a hostile environment for criminals. However, making Canada such a place should not come at the expense of our civil liberties or our democratic way of life. In the words of former Chief Justice of the Supreme Court of Canada, Antonio Lamer: “Members of the public generally become conscious of the importance of protecting the rights and freedoms of the accused only when they are in some way brought close to the system either personally or through the experience of friends or family[1]”. What if the criminal justice system somehow touched you?

Submitted by:

David G. Chow
Barrister
Fagan & Chow
www.faganandchow.com


[1] R. v. Collins, [1987] 1 S.C.R. 265 at 282.

Do you feel lucky punk? - Prosecuting Consequences (by David G. Chow)

"I know what you're thinking. "Did he fire six shots or only five?" Well, to tell you the truth, in all this excitement I kind of lost track myself. But being as this is a .44 Magnum, the most powerful handgun in the world, and would blow your head clean off, you've got to ask yourself a question: Do I feel lucky?....Well, do ya punk?"

Dirty Harry[1]

Getting behind the wheel of a car is like playing Russian-Roulette – engage the transmission, step on the gas and take your chances. The urban landscape is crawling with armored vehicles, operated at high speeds by human beings subject to the frailties of the human condition. A momentary lapse of attention, an unexpected event or something as simple as minor negligence can result in dire consequences. Notwithstanding the highly publicized carnage on Canada’s highways, citizens happily enter motor carriages without a second thought as to their likelihood of surviving the commute. With so many people sharing limited space, accidents happen. Sometimes accidents are avoidable and sometimes they are not. Accidents can happen to the best of us.

Criminal culpability in Canada is premised upon the notion that people are the intentional authors of their own actions. From a criminal justice perspective, a person cannot be sanctioned for something he or she did not do. The actus reus of an offence must be proven beyond a reasonable doubt. By the same token, a person cannot be punished for something he or she did not intend to do. In many cases the actus reus of the offence is clear, but the mens rea of the crime involves much deeper considerations. This is especially so for allegations of criminal driving. Generally speaking, intentionality involves an assessment of what was transpiring in the actor’s mind at the time of the impugned conduct. Assessing the inner workings of the mind, however, involves deeper, more complex considerations than merely observing or supplying evidence of the act itself. Since motorists seldom intend to injure or kill their fellow citizens, the mens rea of driving offences is often difficult to assess.

From a morality perspective, a person cannot be morally assessed for what is not their fault or for occurrences beyond their control; yet people are regularly prosecuted for crimes of result, rather than crimes of intent. In a civilization where morality is legislated through various laws designed to control human behavior, there are serious questions as to whether prosecutions arising from some allegations of impugned conduct – such as problematic driving – are more logically connected to the result rather than the conduct itself? This paper focuses upon the question: if the underlying conduct would not be criminalized but for an intervening tragic event, should the accused be convicted or even prosecuted at all? This paper suggests that in some cases people are prosecuted and even convicted for behavior in which moral accountability is the same regardless of the consequences.

On August 18th, 2008, Angela Ta was found not guilty of careless driving and other Traffic Safety Act offences in a collision that killed six-year old Jenna Chang. In a carefully worded written decision, Judge Catherine Skene said: “Based on the evidence and testimony that I did have before me, there is evidence to suggest that the two pedestrians stepped off the sidewalk and/or curb, on to the roadway…into the path of Ta’s vehicle when Ta’s vehicle was so close that it was impracticable for the driver to yield the right of way”. As reported by the Calgary Herald, an understandably emotional Wei Chang, the girl’s father said “[i]t’s just very sad…very tough,…[t]his case, justice is not served…”[2]. The Crown obviously agreed, for they appealed the learned trial judge’s decision[3].

R. v. Bjerknes and Conroy began as a prosecution for criminal negligence causing death. Ultimately, both accused were acquitted of criminal negligence and the lesser included offences of dangerous driving causing death and dangerous driving causing bodily harm in relation to a collision involving a pedestrian who stepped suddenly and without prior warning into the path of an oncoming motorcycle travelling approximating 70 km/hour in a 50 km zone. In acquitting the accused of causing death and bodily injury, Mr. Justice Peter McIntyre aptly stated: “In my view, the legal cause of…death was his jaywalking. I doubt the result would have been any different had the accused not been speeding”[4].

The cases of Bjerknes and Ta beg the question: would there have been a prosecution had there not been an intervening tragic event? More precisely, had the pedestrian not stepped in front of Ms. Ta’s vehicle, would she have been prosecuted for careless driving and other Traffic Safety Act offences? Had the pedestrian not impeded the progress of Mr. Bjerknes, would he have been charged with criminal negligence causing death? Arguably the answer is no.

In R. v. J.B., [2003] A.J. No. 508 (Alta. P.C.) the accused was prosecuted for dangerous driving causing death when he lost control of his motorcycle while travelling at speeds up to 84 km/hour in a 50 km zone. In acquitting the accused, Judge Sandra Hamilton astutely commented: "Speed is often a factor in motor vehicle accidents. However, speed is clearly frequently engaged in without any resultant accident. Tragically, as a result of J.B.'s speeding, a family has lost a beloved son and J.B. has lost his best friend. That terrible consequence, however, does not of itself elevate the unlawful behavior of speeding to the crime of dangerous driving. It is not the case that the thousands of people in this country who hurtle down the roads at excessive speeds daily are a mere consequence away from criminality[5]".

Though Judge Hamilton was ideally correct, the reality is, in some cases people are a mere consequence away from criminality. Mr. Bjerknes, for example, was convicted of dangerous driving, even though it is arguably unlikely that he would have been prosecuted for criminal negligence or dangerous driving had the accident not occurred. It is beside the point that he may have been liable for speeding, or stunting or some other traffic violation; for there is a distinction between actual criminal behavior and violating one of any number of a seemingly innumerable array of traffic safety laws. To prove the point, the reader need only draw upon personal experience. Simply reflect upon your travels during the morning commute to the office. One would be hard pressed to seriously dispute the fact that at any given moment a veritable gaggle of motorists are hurtling down the street at speeds exceeding the posted limit. Some are even talking on cellular telephones, fiddling with the radio, conducting multiple lane changes while doing a myriad of other things other than keeping their hands at the ten-and-two position and their eyes firmly fixed on the road. Unless the driving is outrageous, most ordinary citizens simply accept minor rule breaking and may even become upset and scold authorities when they enforce a perceived trivial law. Watch the road long enough and you might even see a member of the local constabulary breaking the rules too.

Certainly traffic tickets are issued for minor infractions, such as speeding, but the State is not actively corralling trivial rule breakers and charging them with criminal driving offences. I am sure most people, including lawyers, police, prosecutors, judges, politicians – including our outspoken Minister of Justice – have broken the rules of the road on occasion and perhaps even got a little lucky along the way. Putting it mildly, to say otherwise would be just a little hypocritical. But what if a motorist wasn’t so lucky? What if during the hurried morning commute, the motorist, while sipping his or her coffee and travelling 20 km/hour over the posted speed limit collides with a child that appeared instantaneously from in between a pair of parked cars? Assume for the moment the collision was unavoidable. Should the unlucky motorist be prosecuted for careless driving, dangerous driving or criminal negligence? Other than the collision, what is it about the driving pattern that elevates the responsibility owed by the driver in these circumstances? Obviously there was no actual intent to collide with the child. That the driver was speeding and sipping coffee does not necessarily make the driving dangerous or even careless. Accident or no accident, it seems our lead footed example is only guilty of breaking a relatively trivial Traffic Safety Act law. Yet on occasion, people in similar circumstances, such as J.B., are charged and prosecuted for more serious crimes than they deserve.

Even if many accused are relieved of criminal responsibility after trial, cases such as Bjerknes, Ta and J.B. illustrate that citizens are indeed a mere consequence away from being hauled before the criminal justice system on the basis of an event rather than the underlying conduct. If the accused would not have been charged with the criminal driving offence but for the accident, there are serious concerns as to the real basis for the prosecution.

Anytime an accused is brought before the criminal justice system, there is a chance of conviction. A truly honest lawyer will tell his or her client, “you roll the dice each and every time you go to trial, there are no guarantees”. A fundamental protection for all citizens against the possibility of wrongful conviction is vested both in the Crown’s discretion not to prosecute as well as their discretion to direct the nature of the prosecution. To be fair, in R. v. Ta the Crown very properly exercised her discretion not to prosecute criminally, choosing rather to pursue charges under to the Traffic Safety Act. Regrettably, the same cannot be said in all cases. J.B. was prosecuted for dangerous driving causing death. Astonishingly, Bjerknes and Conroy were prosecuted for criminal negligence causing death. Given the varying degrees of discretion exercised by individuals conducting business in the criminal justice system, J.B., Bjerknes and Conroy were arguably unlucky that the exercise of discretion was not in their favor.

Luck plays an important role in human interactions. Surprisingly, good and bad luck is critical to a comprehensive analysis of moral responsibility. The concept of moral luck presupposes that people cannot be morally assessed for what is not their fault or for occurrences beyond their control. In the words of philosopher Thomas Nagel, “[w]here a significant aspect of what someone does depends on factors beyond his control, yet we continue to treat him in that respect as an object of moral judgment, it can be called moral luck. Such luck can be good or bad”[6]. To illustrate, Nagel imagines a motorist who after failing to have his brakes checked, accidentally runs over a child who unexpectantly enters the path of his vehicle. With this in mind, he says:

"…if the driver was guilty of even a minor degree of negligence – failing to have his brakes checked recently, for example – then if that negligence contributes to the death of the child, he will not merely feel terrible. He will blame himself for the death. And what makes this an example of moral luck is that he would have to blame himself only slightly for the negligence itself if no situation arose which required him to brake suddenly and violently to avoid hitting a child. Yet the negligence is the same in both cases, and the driver has no control over whether a child will run into his path[7]".

Nagel argues there are four ways in which natural objects of moral assessment are subject to luck. Constitutive luck concerns the kind of person you are. Human beings, for example, are constructed from a genetic code transmitted from their parents. In addition to being biological creatures, people are constructed from environment and upbringing. A second kind of luck concerns circumstances. What kind of problems and situations is the moral agent confronted with? As Nagel says, “[t]he things we are called upon to do, the moral tests we face, are importantly determined by factors beyond our control. It may be true of someone that in a dangerous situation he would behave cowardly or heroic fashion, but if the situation never arises, he will never have the chance to distinguish or disgrace himself in this way, and his moral record will be different”[8]. The other two kinds of luck have to do with causes and effects of action. How are situations determined as a result of antecedent circumstances? What are the consequences of actions performed? It is the latter kinds of luck – causes and effects – that are pertinent to this discussion.

In all the circumstances, it was unlucky that the pedestrian unexpectantly obstructed the path of Mr. Bjerknes as he was driving down a busy street. But for this unfortunate, intervening event, Bjerknes and Conroy would very likely have proceeded to their intended destination without incident. Certainly both individuals were guilty of problematic driving. Like thousands of motorists propelling themselves on highways across Canada, they exceeded the posted limit by approximately 20 km/hour. Both motorcyclists revved their engines loudly and accelerated quickly for upwards of five intersections. At each intersection they properly and lawfully brought their vehicles to a halt. Arguably, they raced each other as they accelerated quickly from intersection to intersection. Though both motorcyclists occasionally weaved from lane to lane, they never impeded other users of the roadway. The collision occurred when the pedestrian stepped-out unexpectantly from in between two parked cars. All witnesses unanimously agreed that the collision was instantaneous. Doubtless, Bjerknes did not intend to collide with the pedestrian, in fact, he attempted to avoid the collision. For his efforts, Bjerknes was thrown from his motorcycle. Whether the collision occurred or not, the negligence is the same and Bjerknes had no control over the pedestrian stepping into his path.

What makes this an instance of institutional bad luck is that the accused was prosecuted for criminal negligence causing death for behavior, that but for the collision, would not likely have resulted in any criminal prosecution whatsoever. In fact, it is doubtful that a peace officer would have charged the Bjerknes and Conroy criminally had the extent of the case been an observed driving pattern without the collision. By the same token, what makes this an instance of institutional good luck was that the case was heard by a wise member of the judiciary, capable of fully comprehending the law and making tough decisions. What makes this a case of moral bad luck is that Bjerknes and Conroy sustained increased moral accountability for an instance of fate rather than intentional conduct. Simply stated, they had no control over the pedestrian stepping into Bjerknes’ path.

As Nagel commented “…it is not enough to say merely that our basic moral attitudes towards ourselves and others are determined by what is actual; for they are also threatened by the sources of that actuality, and by the external view of action which forces itself on us when we see how everything we do belongs to a world that we have not created”[9]. Is there really any difference in the world of criminal responsibility? If a moral agent is threatened by sources of actuality outside of his or her control, surely it is not inconceivable that the target of a criminal prosecution may be subject to similar instances arising from participation in a world that he or she did not create.

Though this discussion may seem like some kind of philosophical black magic importing pedantic views into a pragmatic criminal justice system, in this writer’s view, it is precisely the opposite. To be truly pragmatic, participants in the criminal justice system ought to be encouraged to be internally sincere and not to attach criminal culpability for conduct engaged by a multitude of others, including themselves. Unfortunately, not every decision in criminal justice is as honest, erudite and practical as that of Judge Hamilton in R. v. J.B. Make no mistake, sometimes decisions go the other way. In such cases, one is left to wonder whether justice has truly been served.

Get behind the wheel of your car, engage the transmission, step on the gas and take your chances. Do you feel lucky punk?

Submitted by:

David G. Chow

Barrister

Fagan & Chow

www.faganandchow.com

________________________________________________________________

[1] http://en.wikipedia.org/wiki/Dirty_Harry
[2] http://www.canada.com/calgaryherald/news/story.html?id=a523a353-e261-4ad8-aa1f-ac1bcd840315
[3] http://edmontonsun.com/News/Alberta/2008/09/18/6800796-sun.html
[4] http://www.canada.com/calgaryherald/news/city/story.html?id=1fd2741a-8cab-4b00-b1f8-b866040c4b33
[5] Para. 8.
[6] Thomas Nagel, “Moral Luck”, Mortal Questions, Cambridge University Press, 1979: pg. 26.
[7] Ibid., 29.
[8] Ibid., 34.
[9] Ibid., 38.

Who is George J. Gaschler, Q.C.? - The Judicial Appointment Process (by David G. Chow)

Who is George J. Gaschler, Q.C.?

According to the Alberta Government website Mr. Gaschler, Q.C. is Calgary’s newly minted Provincial Court, Criminal Division gavel slinger, who will, after a brief stint of shadowing Judges, such as prolific jurist Judge Allan Fradsham, will be delivering his brand of justice to those responsible for the much publicized plague of crime on Calgary’s City streets. At the outset, let me be clear, this article is not saying that Mr. Gaschler, Q.C. will not be, as Justice Minister Alison Redford stated in her July 30th, 2008 news release, an “outstanding individual”[1], nor am I claiming that he will not be a fair minded, legally oriented judge, interested in ensuring that real justice is done on a quotidian basis. Rather, my difficulty is that aside from the rather brief resume highlighted on the Alberta Government’s Website, I know absolutely nothing about George J. Gaschler, Q.C.. More importantly, as a citizen interested in being informed on issues in criminal justice, I was never apprised that Mr. Gaschler, Q.C. was even on a short list of potential candidates. Not surprisingly, as a citizen, I was never given an opportunity to be educated on such important decisions by our Alberta Government, nor was I ever offered an opportunity to contribute to dialogue on important issues such as who will sit in judgment of citizens of this Province.

Now, perhaps some readers will think, “pray-tell, why does a virtual nobody such as David Chow need to know”? Well, it seems to me that in a so-called democracy the views of the citizenry are important; and in my view, springing important appointments, such as who will be a judge, on an unsuspecting populace is far from a democratic, fair or right minded process. So back to my original question: who is George J. Gaschler, Q.C.?

I decided to do a little research.

The Alberta Government Website advises that Mr. Gaschler, Q.C. spent much of his career practicing law in Fort Macleod, Alberta in the area of land expropriation, irrigation and civil litigation. He was also counsel for the Lethbridge Police Association, was an ad hoc prosecutor in Lethbridge and spent three years prosecuting by-law infractions for the City of Calgary. Interestingly, this is just about the only information available on Calgary’s newest judicial appointment. The same information is essentially posted on the City of Calgary Website[2], and is again plagiarized on a website titled “nationtalk.ca”[3]. Now, don’t let the title of the website fool you, for there was no talk about the judicial appointment on “Nationtalk”. In fact, the post on Nationtalk happened after the appointment already occurred. No debate. No discussion. No dialogue.

Despite the resume, a question remains: why George J. Gaschler, Q.C. as Provincial Court Judge?

In my view the answer is not really gleaned by merely reviewing Mr. Gaschler Q.C.’s resume. That he has many long of years of service, or that he is Queen’s Counsel or that he toiled as Appellate Counsel in the early to mid-1980’s in cases such as R. v. Hruby, [1980] A.J. No. 574 (Alta. C.A.) and R. v. Vermeer, [1985] A.J. No. 429 (Alta. C.A.) is of little assistance. . Like many possible candidates, there is little question that his long years of dedication to the Alberta Bar make him a solid candidate. In my mind, the genuine answer to the question, why George Gaschler, Q.C. for Provincial Court Judge comes not so much from his resume, but from his views and insight into issues of Constitutional law and criminal justice. For example, what is his view on the Canadian Charter of Rights and Freedoms? What does Mr. Gaschler, Q.C. think of the seemingly never-ending proliferation of media reports telling the citizenry that Alberta’s principled, hard working judges are gutless purveyors of a catch-and-release system of justice? Does newly minted Judge Gaschler, Q.C. understand the principles of bail? Does he appreciate the presumption of innocence? How would Mr. Gaschler, Q.C. handle everyday dilemmas in criminal justice, such as excluding evidence that will ultimately lead to the exoneration of the accused knowing full well that the individual is probably guilty? Unfortunately, no such information is readily forthcoming.

Though answers to such questions may appear patently obvious to those with an acute understanding of the criminal law, they are far from so. Indeed, it is not uncommon for participants in the criminal justice system to arrive at vastly different conclusions as to how to deal with similar issues in similar circumstances. Differences in opinion do not merely exist between Crown and Defence, but exist between individual members of the judiciary.

Doubtless, Judge’s are expected to uphold the law and the Constitution. They are expected to understand the rights of all citizens – and surely must appreciate the irony that the rights of all free citizens in Canada are protected through the prosecution of the ignoble deviant. Judges must be courageous – individuals with a high moral compass capable of astutely understanding and applying the principles underlying our criminal justice system. Ideally, judges ought not to be political – for in today’s social climate, politics and lobbying by special interests groups – which includes organizations such as the police, Crown, Government or even the newly formed CDLA – are pervasive. Therefore, the judicial appointment must not be political; rather, it ought to be a strictly merit based appointment, based upon a history of principled service, erudite practice and free of political patronage.

Back to the question, who is George J. Gaschler, Q.C.?

It strikes me that perhaps this isn’t even the right question? Perhaps I am advocating a judicial selection model too closely synonymous with the American system – a paradigm where members of the judiciary are elected rather than appointed. A rather astute lawyer reminded me that such a process may itself be dangerous, for if a judge is too closely tied to a particular political platform, then he or she may be incapable of deviating from that platform as circumstances arise on a case by case basis, thus politicizing the decision making process. Fair enough. So perhaps the better question is who appointed George J. Gaschler Q.C. and why?

Judicial independence is to be assiduously protected. However, according to the Alberta Government Website, judicial appointments are made by the Lieutenant Governor in Council with recommendation of the Provincial Court Nominating Committee. The 11 member Provincial Court Nominating Committee reviews candidates supplied by the Alberta Judicial Council and provides a list of appointees to the Minister of Justice. The Provincial Court Nominating Committee is comprised of two members from the Court of Queen’s Bench, two members specifically appointed by the Minister of Justice and a mixture of representatives from the Alberta Provincial Court, Law Society of Alberta, the Canadian Bar Association along with other undisclosed members of the legal profession and public.

Again, I decided to do a little research.

The Alberta Government Website tells me that the Provincial Court Nominating Committee “provides recommendations to the Minister of Justice on the appointment of individuals to the Provincial Court of Alberta. The committee members are appointed by the Minister of Justice”[4]?

Wait a minute, committee members are appointed by the Minister of Justice”?

The Minister of Justice – in this case, Ms. Alison Redford – is a politically appointed government official. According to the Alberta Justice Website, the provincial Minister of Justice is the senior law officer of the Crown”[5]. So, as I understand, the Minister of Justice selects members to sit on the Provincial Court of Alberta nominating committee. The Provincial Court Nominating Committee then returns a list of potential candidates to the Minister of Justice, who ultimately makes the judicial appointment? In layman’s terms, Alberta’s Minister of Justice reviews a list of candidates that he or she supplied to a committee that he or she selected and then makes a judicial appointment from that list. Forgive me for thinking the process is just a little incestuous.
So who are the members of the Provincial Court Nominating Committee? What relationship do they have with the Minister of Justice or other government officials? What relationship do they have with the batch of candidates returned for consideration to the Minister of Justice? What relationship do candidates have with the Minister of Justice or to the political party itself? What political contributions have been made by prospective candidates or committee members?
Though I am quite certain this information exists, somewhere, it is certainly not readily and easily accessible to members of the public. Various Alberta Government Websites essentially supply boiler plate information with little or no substance. I get the feeling that democracy exists in an informational vacuum, where citizens looking for easy answers to important questions such as why George J. Gaschler, Q.C. for Provincial Court Judge or who sits on the Provincial Court Nominating Committee will be met by a barricade of substance-less boiler plate designed to deflect answers to simple questions.

Perhaps the easiest way to assess a judicial appointment in this Province is to take a hard look at our Minister of Justice; in this case, Ms. Alison Redford? After all, the Minister of Justice appoints the nominating committee, who is responsible for recommending candidates to the Minister of Justice who is responsible for the judicial appointment.
Ms. Redford was recently highlighted in Rick Bell’s journalistic abomination, “No Hugs for Thugs”[6]. In the spirit of today’s news media, Mr. Bell – with the assistance of Ms. Redford – thoroughly lambasted criminal justice in Calgary, even going so far to say “[w]ho except out-of-touch judges, doesn’t know that catch and release only works for fish[7]”. A convenient comment considering that the “catch and release” metaphor was coined by Premier Ed Stelmach, who appointed Alison Redford as Minister of Justice on March 13th, 2008. In his book, Necessary Illusions, Noam Chomsky argued that “…the media serve the interests of the State and corporate power, which are closely interlinked, framing their reporting and analysis in a manner supportive of established privilege and limiting debate and discussion accordingly”[8]. This comment aptly applies to Mr. Bell’s article, as well as just about every other press release on justice in recent months. Calgary’s news media has been responsible for reporting a seemingly endless tirade of complaints on justice, including a series of one-sided dialogues by Calgary’s Chief of Police and his various minions. Perhaps not surprisingly, there has been almost a total absence of counter-dialogue from the other side of the debate. No comment from the defence bar, Alberta Civil Liberties Association, Association of the Wrongfully Convicted or anybody else who might conceivably balance perspective.

“No hugs for thugs” is essentially a full page love in with Justice Minister Alison Redford. Like so many Rick Bell articles, it is little more than a propaganda story designed to inspire irrational emotions from unsuspecting members of the public. Sadly, Justice Minister Alison Redford appeared more than ecstatic to participate in the propogandization of important issues.

What exactly did she say?

With a rather dismissive tone she said: “It’s fine to be presumed innocent until proven guilty, but a bail hearing is not like a trial and the reason we have bail is to ensure those people who are not likely to reoffend and will show up for their court date can, in some cases, continue to work”. Considering Ms. Redford’s purported civil rights background[9], it is just a little startling that she comes across as so dismissive of the presumption of innocence. “It’s fine to be presumed innocence until proven guilty…”? Adjectives like “fine” arguably communicate something closer to general annoyance than staunch support for a fundamental precept of Canada’s justice system. “[T]he reason we have bail is ensure those people who are not likely to reoffend and will show up for their court date can, in some cases, continue to work”? Odd, for I was not aware that contributing to Alberta’s economy was a necessary precondition for obtaining judicial interim release”?

Perhaps most frightening are Ms. Redford’s remarks on the Canadian Charter of Rights and Freedoms. “[W]e need to write vigorous legislation”, she says. “If people don’t like it they can challenge it. The fear of a Charter challenge should not stop us from passing legislation that makes sense”.

Aside from the fact that Parliament obviously should not be writing unconstitutional legislation, this remark ironically brings us full circle back to the initial question: Who is George J. Gaschler, Q.C.?

Judges are responsible for deciding Constitutional issues, and as such, are responsible for determining whether a particular piece of government legislation violates the Canadian Charter of Rights and Freedoms. The question is: if Judges have been nominated by an appointment process on the basis of a recommendation from a stacked judicial selection committee and ultimately appointed by government officials such as Alison Redford, what confidence can our civilization have that the judicial appointment will assiduously work to uphold important things such as Constitutional rights? Put another way, if a judicial appointment is a political henchmen (and I am not saying Mr. Gaschler Q.C. is in fact this person), arguably the government can write any number of unconstitutional laws with relative confidence that such laws will be upheld by its appointed representatives on the bench. Arguably, when Ms. Redford says, “if people don’t like it they challenge it”, she really means, go ahead challenge it, because our people will ensure you won’t succeed anyway. Judicial independence is a myth. Sadly, even if judges such as Mr. Gaschler Q.C. and others are not actually influenced by the incestuous politics underlying judicial appointments, the perception of political patronage nevertheless exists?

Who is George J. Gaschler, Q.C.? We really don’t know. Doubtless, however, we will soon find out.



[1] http://alberta.ca/home/NewsFrame.cfm?ReleaseID=/acn/200807/240947596F5B7-9F92-E368-2444C374CA7EF234.html
[2]http://content.calgary.ca/CCA/City+Hall/Business+Units/Law+Department/Legal+Staff+Profiles/Prosecutions+Research+and+Administration/George+Gaschler+QC.htm
[3] http://www.nationtalk.ca/modules/news/article.php?storyid=12035
[4] http://www.justice.gov.ab.ca/organization/default.aspx?id=896
[5] http://www.justsolgen.gov.ab.ca/organization/justice_system.aspx?id=3164
[6] http://calsun.canoe.ca/News/Columnists/Bell_Rick/2008/08/31/6621796-sun.php
[7] http://calsun.canoe.ca/News/Columnists/Bell_Rick/2008/08/31/6621796-sun.php
[8] Chomsky, Noam, Necessary Illusions – Though Control in Democratic Societies. Anansi Press Ltd, Concord, Ontario: pg. 10.
[9] http://www.assembly.ab.ca/net/index.aspx?p=mla_bio&rnumber=08


Submitted by:

David G. Chow
Fagan & Chow
Barrister