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.”
Monday, November 17, 2008
Sunday, November 9, 2008
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
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
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