CRIMINAL DEFENCE LAWYER'S FORUM

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

2009-08-04T12:11:00.000-07:00

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

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

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

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

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

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

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

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

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

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

Submitted by:

David Andrews
Calgary Criminal Defence Lawyer

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

2009-07-10T23:18:00.000-07:00

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

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

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

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

Reverend Martin Niemoller, "First They Came"
_______________________________________________________

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

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

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

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

With this in mind, I begin...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Everything comes with a cost.

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

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

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

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

Should we really be surprised with Ms. Redford?

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

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

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

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

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

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

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

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

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

And then they came for me...

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

Submitted by:

David G. Chow

Criminal Defence Lawyer
http://www.calgarydefence.com/

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

[xix] http://ccdlaforum.blogspot.com/2008/11/lest-we-forget.html
[xx] http://ccdlaforum.blogspot.com/2008/09/who-is-george-j-gaschler-qc-judicial.html
[xxi] http://www.qp.alberta.ca/574.cfm?page=v03p5.cfm&leg_type=Acts&isbncln=9780779737369
[xxii] http://calsun.canoe.ca/News/Columnists/Bell_Rick/2008/08/31/6621796-sun.php
[xxiii] http://www.cbc.ca/canada/calgary/story/2009/02/27/cgy-gangs-roundtable-transcript.html: If the onus is put on the police, not only to show that we found them with a gun or they're found at a shoot-up but also prove to us that they're a member of an organized crime group and all that, all that's going to do is we're on trial and it's time to shift, to put the bad guy on trial again.
[xxiv] http://calgarycriminallawyer.blogspot.com/2009/07/nameless-unreasoning-unjustified-terror.html
[xxv]http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20061002/question_period_061002/20061002?hub=TopStories
[xxvi] http://www.justice.gc.ca/eng/news-nouv/ja-nj/2009/doc_32378.html
[xxvii]http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20061002/question_period_061002/20061002?hub=TopStories
[xxviii]http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20061002/question_period_061002/20061002?hub=TopStories
[xxix] http://calsun.canoe.ca/News/Alberta/2009/03/02/8595421.html
[xxx] Ibid.
[xxxi] http://www.cbc.ca/canada/calgary/story/2009/02/27/cgy-gangs-roundtable-transcript.html
[xxxii] http://www.edmontonsun.com/news/alberta/2009/05/20/9512946.html

The Philosopher's Defence (by Weston Rudd)

2009-06-28T05:57:00.000-07:00

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

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

The Alberta Initiative Against Privacy (by David Andrews)

2009-05-21T20:14:00.000-07:00

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

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

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

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

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

http://www.ffwdweekly.com/article/news-views/news/proposed-bar-law-alarms-privacy-advocates-3709/

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

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

Bill 46- Gunshot and Stab Wound Mandatory Disclosure Act

http://www.calgaryherald.com/news/Doctors+enlisted+Alberta+gangs/1560671/story.html
http://www.edmontonjournal.com/Health/Tattle+could+compromise+doctors+critics/1568249/story.html

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

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

http://www.edmontonjournal.com/news/tobacco+injured+crooks+told/1587652/story.html

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

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

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

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

Submitted by:

David Andrews

Edited by:
David G. Chow

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

2009-05-01T06:13:00.000-07:00

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

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

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

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

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

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

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

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

Submitted by:

David Andrews
Barrister & Solicitor

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

2009-04-12T10:28:00.000-07:00

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

Madame Chief Justice Beverley McLachlin²

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

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

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

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

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

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

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

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

Some have chided Doppelganger for using biological information obtained from garbage found on the fringe of private property. Alberta's Justice Minister said, "what I fail to understand is why Doppelganger would stoop to such ends when it has a library of genetic profiles voluntarily submitted by numerous persons, including myself and Calgary's Chief of Police".

Alberta's voluntary DNA collection program began as a springboard for discussion about proposed legislation requiring all Canadians to submit a DNA profile for storage on a nationwide database. After all, if government officials are prepared to submit, why not all Canadians?

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

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

Submitted by:

David G. Chow
Barrister
Fagan & Chow

www.faganandchow.com

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

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

2009-04-09T10:35:00.000-07:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Submitted by:

David G. Chow
Barrister
Fagan & Chow

http://www.faganandchow.com/

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

The Wrong Way of Worldmaking: One Lawyer's Opinion About the Dziekanski Inquiry (by David G. Chow)

2009-03-13T09:49:00.000-07:00

"A possible world is given by the descriptive conditions we associate with it"[i]. But as Nelson Goodman queries: "In just what sense are there many worlds? What distinguishes genuine from spurious worlds? What are world's made of? How are they made? ... And how is worldmaking related to knowing?"[ii]. From reading excerpts of Constable Kwesi Millington's testimony in the Dziekanski inquiry, it seems that his world is more spurious then genuine; and that his evidence, along with that of his fellow Mounties, belongs in fiction 101, not in a place where truth, or at the very least, "truthlikeness" is expected.

Philosopher Karl Popper coined the term "truthlikeness" to express the idea that one theory of the world may have better correspondence with reality -- or be closer to the truth -- than another theory. Where a "true" proposition is something that is "in fact" the case; a "truthlikeness" proposition is something close to being the case, but not necessarily true. In Kwesi Millington's world, Robert Dziekanski "...had a stapler open" and was in a "combative stance"[iii]. Mapped onto the backdrop of disturbing video of an incident where Mr. Dziekanski was tasered numerous times during an incident involving the Royal Canadian Mounted Police, there is one apparent truth -- "truthlikeness" for Millington (and his fellow police officers) was nothing short of a blatant and intentional lie.

There are many disturbing aspects to Mr. Dziekanski's case. That he died while being tasered and manhandled by members of Canada's police force is certainly troubling. Much has been made about the safety, viability and effectiveness of tasers as non-lethal weapons. Concerns have been expressed regarding the handling of a non-English speaking visitor and some have even questioned airport policy with respect to handling persons such as Mr. Dziekanski. Indeed, one is left to wonder why an interpreter was not made available at some point during his 10 hour ordeal. Had somebody bothered to make efforts to facilitate communication in Polish, they would have understood Mr. Dziekanski to be asking rational questions, such as "how long do I have to wait?"[iv]. In this writer's view, however, as interesting and important as all of these issues are, the primary concern is the fact that members of Canada's police force fabricated reports to justify the use of the taser in the circumstances. The bottom line is, fabrication of evidence by anybody, but in particular law enforcement officials, is a breach of a most sacred trust, and as such, simply cannot be tolerated!

In the Dzieknaski inquiry, the fabrication was not limited exclusively to the report of Constable Millington, but extended to all of the officer's involved in the melee. As Ian Mulgrew of the Vancouver Sun reported: "Millington [was] the third of ...four RCMP officers who confronted Dziekanski to testify and each ... recited a near identical story using similar language ... shown to be misleading on the same key points"[v]. When pressed in cross-examination about a lack of corroboration between his notes and the video, Constable Millington consistently testified: "I was wrong about that"[vi]. A rather convenient response which begs the question: but for the video, would we have ever known about the events leading up to Mr. Dziekanski's death? Would Mr. Dziekanski's memory have been forever tarnished by misleading details reported by police? Perhaps even more troubling, if Constable Millington and his fellow officers were prepared to mislead in this case, how many other cases have they been responsible for creating misleading reports or supplying misleading evidence? How many people have been convicted on the basis of their testimony? How many judge's gave their evidence the benefit of being supplied on the basis of notes or reports made contemporaneously at the time of the investigation? How many other police officers have fabricated similarly? "The immediate, obvious damage is in the questions now sure to be raised about the credibility of other Mounties who present statements of facts within our justice system"[vii]. In the immortal words of Friedrich Nietzshe, "... what questions has this will to truth not laid before us! What strange, wicked, questionable questions!"[viii].

Our criminal justice system has mechanisms to ferret-out the deceiver, but they are far from perfect. Full, fair and frank disclosure of material information allows Prosecutors to make critical evaluations about the case, including the all important decision as to whether to prosecute at all. And when a decision is made to prosecute, cross-examination with the benefit of full disclosure is a powerful tool for exposing frailties in the evidence. But even when conducted with preparation and skill, effective cross-examination can still fail to create reasonable doubt in the mind of a trial judge. Of course, findings of fact are ultimately made by trial judges -- who are themselves human beings, susceptible to human frailty and coloured by individual experience. The deception meter varies from judge to judge. An acquittal before one judge is a conviction before another. Reasonable doubt in one case, is proof beyond a reasonable doubt in another. Suffice it to say, though inconsistency is a reality of our criminal justice system, the more honest the evidence, the more likely fidelity to the truth.

The criminal justice system places a great deal of trust in its law enforcement officials. As Judge Bagnall stated in R. v. Langlois, [2004] B.C.J. 1372 (B.C.P.C.) a police "...officer holds the trust of his community every time he goes to work"[ix]. This trust relationship is more than merely a tenuous bond between society and police, but is the cornerstone of any civilization purporting to function on the basis of civil liberty and the rule of law. When law enforcement officials actively disseminate misleading information or falsify police reports, they not only jeopardize the rights of the people they are empowered to protect, but endanger the innocent and tarnish the sanctity of our system of justice.

Inquiry head Thomas Braidwood heard testimony from all four officers involved in the tasering of Robert Dziekanski. Laughably, all four testified that they were "scared" and felt "threatened" by the 40 year old Polish-speaking man, whom they spent a grand total of 30 seconds with in the same room before shooting him with a pair of taser darts and administering 50 000 volts. In the seconds prior to the first taser deployment, Dziekanski never meaningfully threatened the police as they cornered him en masse against a desk. Over the next 31 seconds Constable Millington shocked Mr. Dziekanski another three times, including a "push stun" while three police officers held him down. Millington testified that he administered the "second shock" because Dziekanski was still "moving and struggling" and the third because he was "still resisting". Dziekanski was "push stunned" because Millington thought his taser "wasn't working" properly. Perhaps what is more shocking than the 50 000 volts injected four times into Mr. Dziekanski is Millington's ridiculous rationalization for an obviously irrational act! Surely it does not defy logic that a human being would be moving and struggling, or perhaps "writhing", against pain inflicted by darts piercing the skin and 50 000 volts coursing through the body. In light of what was plainly visible to any seeing Cyclops was that Dziekanski dropped to the ground immediately after being tasered the first time. The taser was unquestionably working! Given Millington's training, which surely must have involved, at minimum a taser demonstration, Dziekanski's reaction was actually little different than the reaction of experienced police officers subjected to a taser shock as part of their officer schooling (with the exception of course that Dziekanski didn't have two fellow police officers gently helping him to the ground after he was jolted)[x].

Even if Millington and his fellow officers could justify the first taser shock, the second, third and fourth deployments were nothing short of torture.

The Oxford Dictionary defines "torture" as "the infliction of severe pain as punishment or means of coercion"[xi]. Of course, Millington never testified that he used the weapon for kicks or that he deployed it without grounds (which would have been closer to the truth); instead, he rested his laurels on the oft cited and misused doctrine of officer safety. As stated by Calgary lawyer Gregory R. Dunn: "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"[xii].

Notwithstanding the exceedingly small number of officer injuries or deaths occurring in the line of duty, the doctrine is routinely cited and accepted without much adieu by courts across Canada. Constable Kwesi Millington essentially chanted the mantra "officer safety" at the inquiry as the basis for electrocuting Mr. Dziekanski. As he said, "[h]e had the stapler open, his other fist raised. He was in a combative stance as we call it and was approaching the officers, I believe, with the intent to attack, so I deployed the taser at that point"[xiii]. In stark contradiction to Millington's testimony, the video showed Dziekanski surrounded by police, with his back to a desk and his arms somewhere at or below his midsection. Within 30 seconds of being in the same room and without a single identifiable act of aggression against any officer, Millington deployed the taser.

Constable Millington and his fellow officer are liars -- and let us not denigrate Robert Dziekanski's memory or the lessons that must be taken from this inquiry by characterizing their testimony or their conduct in creating misleading police reports in any other way. Indeed, there may be a possible world where Mr. Dziekansky "approached" the officers in a "combative stance" with "raised fists" and armed with a stapler, but in this world, that didn't happen!

But for the video, there may have many possible worlds and Millington's ways of worldmaking may have been gospel -- but in the real world, captured on video, there is only one world -- and in that world, Mr. Dziekansky was a non-English speaking visitor who had effectively been detained for upwards of ten hours at the Vancouver Airport -- and when people entrusted to help him arrived (the police), he died. And to cover themselves, they lied. That is the tragic truth, or at the very least, the tragic “truthlikeness” of Robert Dziekanski's death.

So what lessons can be learned from this dreadful incident? What repercussions, if any, should befall those responsible?

Prior to the inquiry, the British Columbia Crown determined that no charges would be laid against Constable Millington and his colleagues. Presumably, the decision not to prosecute was premised upon a review of disclosure, including the misleading police reports; but now that disturbing flaws have been identified in these materials, one wonders whether this is still the right decision? If police can avoid meaningful responsibility by creating misleading reports, then what deters any law enforcement official from simply doctoring notes, tainting an investigation or disclosing nothing at all? Surely shifting the cost-benefit pendulum to favour the creative use of fiction as a means of avoiding meaningful accountability cannot be condoned? After all, a system of justice that does not seek justice against itself is no justice at all.

Submitted by:

David G. Chow
FAGAN & CHOW
Barristers
http://www.faganandchow.com/

[i] Kripke, Saul, Naming and Necessity, Harvard University Press, 1972: pg. 44.
[ii] Goodman, Nelson, Ways of Worldmaking, Hacket Publishing Company, 1978: pg. 1.
[iii] Ian Bailey, The Globe And Mail, March 3rd, 2009, pg. A1. See also: http://www.theglobeandmail.com/servlet/story/RTGAM.20090302.wtaserwitness0302/BNStory/National/home
[iv]http://www.theprovince.com/Dziekanski+final+words+translated+from+Polish+inquiry/1245317/story.html
[v]http://www.vancouversun.com/news/vancouver/Appalling+testimony+draws+guffaws+from+gallery/1347381/story.html
[vi] Gary Mason, Globe And Mail, Tuesday March 3rd, 2009, pg. A4. See also http://www.theglobeandmail.com/servlet/story/RTGAM.20090302.wtaser-mason0303/BNStory/National
[vii] http://thechronicleherald.ca/Columnists/1110582.html
[viii] Nietsche, Friedrich, "Beyond Good and Evil", Basic Writings of Nietzsche, The Modern Library, New York, 1992: pg. 199.
[ix] R. v. Langlois, para. 23.
[x] see http://www.youtube.com/watch?v=ACUjnJBHIZc and http://www.youtube.com/watch?v=F9Z7PfCjCm0&NR=1
[xi] The Oxford Paperback Dictionary, 4th Edition, 1994.
[xii] Gregory R. Dunn, “Remembering Freedom – The Doctrine of Officer Safety”, http://ccdlaforum.blogspot.com/2008_11_01_archive.html
[xiii] Ian Bailey, The Globe And Mail, pg. A1.

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

2008-12-01T00:03:00.000-08:00

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)

2008-11-17T19:19:00.000-08:00

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)

2008-11-09T23:02:00.000-08:00

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)

2008-10-16T07:04:00.000-07:00

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)

2008-09-30T10:13:00.000-07:00

"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)

2008-09-04T22:10:00.000-07:00

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

Action Before Awarness -- Lessons from Joseph Conrad, John Gray and Kenneth Parks (by David G. Chow)

2008-08-28T22:08:00.000-07:00

In Joseph Conrad’s novel, Lord Jim, a seaman (Jim) is confronted with a mortal choice: jump into a lifeboat and be saved or drown with the ship. As the battered boat seems about to sink, Jim unconsciously leaps to the safety of a lifeboat occupied by the ship’s captain and its officers. The ship’s cargo of eight-hundred pilgrims is left to fate. Ironically, the vessel is towed to safety, leaving Jim to forever ponder his actions: Did he really choose to jump or was he pushed by events?

In our criminal justice system, the notion that we are authors of our actions is paramount. The Crown must always prove the accused acted voluntarily. In R. v. Parks, [1992] S.C.J. No. 71 (S.C.C.), Kenneth James Parks attacked and killed his mother-in-law and seriously injured his father-in-law while sleepwalking. Mr. Parks was acquitted because he was possessed in an involuntary, somnambulistic state. Mr. Justice LaForest courageously characterized the acquittal in the following terms:

It may be that some will regard the exoneration of an accused through a defence of somnambulism as an impairment of the credibility of our justice system. Those who hold this view would also reject insane automatism as an excuse from criminal responsibility. However, these views are contrary to certain fundamental precepts of our criminal law: only those who act voluntarily with the requisite intent to commit an offence should be punished by criminal sanction. The concerns of those who reject these underlying values of our system of criminal justice must accordingly be discounted[1].

Criminal justice is a real life morality play. Each day those alleged to have contravened one or more of a seemingly innumerable array of offences – everything from criminal code violations to simple by-laws designed to control human behavior – prostrate themselves before a system designed to pass judgment upon whether they should be held morally accountable. If an accused is guilty, the degree of moral blameworthiness is assessed.

This article presupposes that criminal responsibility, like moral accountability, requires persons to be the authors of their own actions. Using philosophy and science as a springboard for analysis, this paper explores voluntary action and intentionality in relation to criminal culpability. In light of certain theories about voluntariness and intentionality, the question is whether criminal culpability is attached in cases where arguably none exists.

If we imagine a continuum, on one end we have individuals who clearly contemplate their actions and voluntarily carry them out without any real external influence. These persons are obviously morally accountable for their conduct. If their behavior offends a principle of the criminal law, they may be subject to criminal sanction. At the other end of the spectrum, we have automated, somnambulistic type action which is by all accounts involuntary. Neither our system of criminal justice nor any theory of ethics equating moral responsibility with voluntary action attaches moral blameworthiness in these circumstances. Between these extremes are actions performed under duress, reflexive type action and non-reflexive unconscious acts committed prior to conscious awareness.

To further complicate matters, the criminal law also requires actions be intentional. The infiltration of intentionality into the voluntariness equation creates additional problems, for some actions, such as those performed whilst under duress may be intentional but not voluntary, where other actions, such as those committed reflexively may be involuntary and by implication unintentional. If the degree of voluntariness and intentionality is inextricably connected to the degree of moral blameworthiness, then it is important for players in the criminal justice system to fully appreciate each of these factors. The focus of this discussion is action performed prior to conscious awareness.

Philosopher John Gray effectively argues that many seemingly voluntary actions committed under the auspices of conscious awareness are in fact involuntary, unconscious acts. As he says, “[o]ur acts are end points in long sequences of unconscious responses”, arising “…from a structure of habits and skills that is almost infinitely complicated”[2]. Drawing from the work of scientists such as Benjamin Libet, Gray postulates that we do not act in the way we think we do. Though the human brain processes upwards of 14 million bits of information per second, the bandwidth of consciousness is only around eighteen bits; meaning that we are actually only conscious of about a millionth of the information utilized by the brain at any given point in time. Additionally, neuroscientific research has demonstrated that the electrical impulse from the brain initiating action occurs about a half-second before a conscious decision is made – a phenomena seriously jeopardizing the notion that moral agents may be acting voluntarily in certain circumstances. With this in mind, one puzzles: was Lord Jim able to act otherwise than he did? If the impulse prompting the jump was initiated a half-second prior to Jim becoming consciously aware of the decision, one wonders whether Jim truly decided anything at all.

In the theatre of justice, Lord Jim’s jump is reenacted regularly. Whether the jump is a punch, push, shove or a kick, in certain circumstances the action may be initiated outside the purview of consciousness. Given the basic axiom that culpable action must be intentional and voluntary – the fact that some actions may be performed outside the spotlight of consciousness may impact decisions in certain kinds of criminal cases. For example, in R. v. Bennett, [2006] A.J. No. 540 (Alta. P.C.) the accused was convicted after trial on the basis of a single punch that knocked the victim unconscious. By all accounts, the assault appeared to have been a single, unplanned and momentary act. This begs the question: if the impulse to punch was initiated a half-second prior to Mr. Bennett becoming conscious of the decision, did he truly decide anything at all? Put another way: was the act actually voluntary in the sense that it was driven by a conscious agent, capable in that instant of choosing otherwise? John Gray would suggest that perhaps the answer is no. In his words, “[w]hen we are on the point of acting, we cannot predict what we are about to do. Yet when we look back we may see our decision as a step on a path on which we were already bound” [3].

Of course, criminal culpability is premised upon evidence and proof. In the absence of evidence, a judge is not entitled to conjure answers to murky questions such as whether the accused was a voluntary actor or not. Strict adherence to evidentiary requirements demanding proof in criminal cases is a core value in our criminal justice system. Indeed, it is the mechanism by which we guard against wrongful conviction.

The Parks case offers useful insight for thinking differently about voluntariness and intentionality. Kenneth Parks was relieved of criminal responsibility for the charge of murder based upon the defence of automatism. The events leading up to the killing were anything but instantaneous. While asleep, Mr. Parks drove his vehicle 23 kilometers to the residence of his parents-in-law, entered the home, killed his mother-in-law and seriously injured his father-in-law while they slept. After the killing, Mr. Parks awoke to a real life nightmare. Realizing what he had done, he drove to the local police detachment and confessed:

I just killed someone with my bare hands; Oh my God, I just killed someone; I’ve just killed two people; My God, I’ve just killed two people with my hands; My God, I’ve just killed two people. My hands; I just killed two people. I killed them; I just killed two people; I’ve just killed my mother-and father-in-law. I stabbed and beat them to death. It’s all my fault.

There is no question Kenneth Parks was the weapon that caused the death and injury to his parents-in-law. The physical evidence along with the confession seemingly supplied an overwhelming case for the Crown. Though the blood on his hands corroborated the blood in his confession, it was the blood in his dreams that resulted in him being acquitted. Performing in obedience to a primordial circadian rhythm, Kenneth Parks’ actions were neither voluntary nor intentional.

Philosophy and science offer criminal law potentially novel ways of thinking about complex issues. Though ordinary views of intentionality and voluntariness apply most of the time, there are occasions where it may be prudent to think differently. The criminal law struggles to keep pace with medical, scientific and philosophical developments; in some cases, antiquated views relating to commonly held beliefs about important issues such as voluntariness and intentionality may result in improper sentencing or perhaps even wrongful conviction. If Kenneth Parks could perform such uncharacteristic action while asleep, is it really so hard to believe that in some cases persons might perform uncharacteristic action in the flash of a moment prior to conscious awareness? This paper suggests the answer is no. If there is any truth to this proposition, then it is important for all participants in the criminal justice system to keep an open mind as to the realities of the human condition – even if such considerations smack against commonly held beliefs about complex phenomena such as intention and voluntariness.

Perhaps thinking differently would have made a difference to the defence of Mr. Bennett? Perhaps it would have made a difference to Lord Jim? “Stuck in an incessant oscillation between the perspective of an actor and that of a spectator, Lord Jim is unable to decide what it is he has done. He hopes to dredge from consciousness something that will end his uncertainty. He is in search of his own a character. It is a vain search”[4].

Submitted by:

David G. Chow
Fagan & Chow
Barristers

http://www.faganandchow.com/

[1] R. v. Parks, [1992] S.C.J. No. 71 (S.C.C.) at para. 54.
[2] Gray, John. Straw Dogs – Thoughts on Humans and Other Animals. Granta Books, London, 2002: pg. 69.
[3] Gray, pg. 67.
[4] Gray, pg. 67.

Musings of an Irrational Fear Mongerer - Gangs, Greyhounds and Mother Nature (by David G. Chow)

2008-08-07T18:24:00.000-07:00

I am afraid, so very afraid. I have come to learn that my so-called peaceful life in Calgary, Alberta is actually a series of near death experiences.

As I look to the west I see a rolling mass of black cloud charging towards the city. The recent string of tornados and lighting strikes in Calgary and surrounding area leave me to wonder whether it’s only a matter time before I am victimized by nature’s wrath. Statistically speaking, the odds of being struck by lighting are approximately 1:280,000[1]. Statisticians are obviously not aware that Calgarians are at increased risk; after all, let us not forget mother-nature attacked four homes in just a matter of seconds in July 2006[2]. She brazenly struck on July 10th, 2008, setting ablaze a northwest Calgary home[3] and continued her rampage just eight days later by assaulting yet another dwelling[4]. Is there no end to nature’s “rain” of terror?

Mother-nature despises many things, but in particular, she is especially adverse to golfers and those who use electronic listening devices. In July 2007 experts warned about lighting strike injuries accompanying the use of electronic equipment. As reported in the International Herald Tribune: “Listen to an iPod during a storm and you might get more than electrifying tunes”[5].

From my second storey vantage point, I see an oblivious young man walking outside, wearing headphones and carrying an aluminum hockey stick. Does he not know death lurks from above?

Rather than attract the fellow’s attention I quickly duck away from the window. Please do not think I am indifferent to saving lives. But for the fact that the young person is an Asian male, I would have certainly shouted for him to run for cover. However, as an informed Calgarian, I am aware of all the risks. I have learned from recent media reports that shouting “run for cover” to any person (especially a young Asian male), can result in dire consequences.

Let me explain.

In the not too distant past Calgary was a peaceful city of just a few hundred thousand people. Today, Calgary’s population has burgeoned to approximately a million people – of which a large portion I believe are members of various criminal organizations using our once tranquil prairie-mountain haven as a destination for conducting a host of nefarious activities. As media reports flooded newspapers and television stations over the past few years, my trepidation over the likelihood of being innocently victimized by roving gangs has increased exponentially. As if I don’t have enough to worry about already!

Fear of Mother Nature, terrorism, cancer, killer bees, fire ants, the Norwalk virus, online sexual predators, offline sexual predators, Greyhound Buses, sinister men everywhere and now gangs comprise just some of the fears carted about in my trepidation backpack. From various media sources I have come to learn that life is really just a number of near misses. If I am not hit by lightning, surely I will be infected by the Norwalk virus, stung to death by killer bees, eaten alive by fire ants or just victimized by a sinister man somewhere? Add terrorism and gangs to the mix, and I am no longer sure I can live safely in this metropolis. After all, as one journalist reported: “Like a terrorist attack on Canadian soil, it's only a matter of when, not if, some innocent Calgarian gets caught in the crossfire of rival gangsters”[6]. I am an innocent Calgarian.

I watch as the young Asian saunters away and thank my lucky stars; for in a heroic moment to save the young fella from the zap of doom I could have been caught in a hail of bullets unleashed by a gun wielding gangster. “Whew”, that was close.

From this I pause to reflect upon what I am sure are a number of near misses over recent days. Just yesterday, while exiting my Jeep Rubicon, I observed what appeared to be a 20 year old Black Male wearing a dark hoodie exiting a high-end SUV whilst talking on a cellular telephone. This fellow was also sporting a stylish wristwatch which I recently saw in a local department store selling for $300.00. Immediately I was reminded of Police Chief Rick Hanson’s warning to parents: “If parents are not intelligent enough to ask where their son got a $300.00 watch or a new SUV, then there is a real problem”[7].

Though I am not a parent, I am no fool. Assuredly that dial-a-doping young gangster was living off the proceeds of crime. What was this man doing in downtown Calgary? How could a 20 year old black male possibly afford to talk on a cellular telephone during expensive daytime hours? What was he doing with a cellular telephone anyway? Why was he wearing a dark hoodie? How could he pay for that expensive SUV? How did he buy that $300.00 wristwatch? Instinctively, my thumb moved towards the 9-1-1 speed-dial on my mobile phone.

Fortunately, no bullets were exchanged on this occasion, but I fear next time I may not be so lucky. The hour hand on my Breitling tells me I am late for an appointment, no time to wait for police.

Returning to the moment, I observe a Calgary Transit bus pickup the young Asian who still carries the aluminum hockey stick. I observe at least a half-dozen or so unsuspecting passengers seated throughout the bus. The young person may have escaped Mother Nature, but who is going to protect passengers from what is potentially a hockey stick wielding maniac?

As a result of a recent brutal incident on a Greyhound bus, I am told there are serious concerns about bus line security. If security is an issue on Greyhounds, similar concerns must exist for other forms of public transit or any other place, for that matter, where strangers exist in close proximity? The Canadian Press reports that there have been five violent incidents, one resulting in death, on Greyhound buses over the last eight-years[8]. Public transit systems are used by hoards of strangers; many of which are likely knife wielding, gun-toting killers, capable of instantaneously turning savage upon unsuspecting passengers. It strikes me that I should not only stop taking Greyhounds, but rethink public transit and even avoid the dark confines of movie theatres, nightclubs, auditoriums and places such as McMahon Stadium and the Saddledome altogether. The bus rolls away. Oh the horror!

Let’s get serious.

Apparently there have been 12 deaths linked to gang warfare in Calgary over the last six years[9]. To date, not a single bystander has been killed or injured in the conflict. Since 2001, there has not been a single terrorist attack on North American soil. Since 2000, there have been only five victims of violent incidents on Greyhound buses.

In the words of Barry Glassner, “[a] single anomalous event can provide us with multiple groups of people to fear”[10]. By the same token, a single anomalous occurrence can provide us with multiple events to fear. Interestingly, one is left to wonder whether we fear the right things or whether we should even be afraid at all.

In 2004, there were 2,434 fatal motor vehicle accidents in Canada and 148,866 collisions resulting in injury[11]. Despite the high number of fatal motor vehicle crashes, people drive cars without hesitation.

There are an average of 10 Canadians killed by lighting every year[12]. Though there are exponentially more deaths by lighting strike than violent incidents on Greyhound buses, citizens arguably appear to be more afraid of taking the bus than walking in the rain. The CBC reports that there have been 20 deaths associated with Tasers since 2003[13]-- far more than deaths and injuries combined from violent acts on the Greyhounds during this same period. What should we fear more, riding a Greyhound or interacting with a member of the local constabulary?

The purpose of this article is to caution readers against becoming unreasonably absorbed into a culture of fear. George Gerbner, Dean-emeritus of the Annenberg School of Communication at the University of Pennsylvania highlights aspects of fear culture in a theory labeled “mean world syndrome”. Essentially, “[w]atch enough brutality on TV and you come to believe you are living in a cruel and gloomy world in which you feel vulnerable and insecure”[14]. Though various media sources communicate information to the public, the information communicated often lacks balance and perspective. Regrettably the imbalanced conveyancing of information does not promote effective dialogue. Rather, it potentially promotes unreasonable fear mongering resulting in the adoption of extreme measures to fix relatively anomalous problems. When citizens come to believe they may be next, the risk is, they may “…accept and even welcome…repressive measures such as more jails, capital punishment, harsher sentences – measures that have never reduced crime… – if that promises to relieve…anxieties”[15].

If anxiety grows enough, what measures will be accepted in the name of safety and security? Random searches of the person, home or automobile? Arbitrary detention under the rubric of public safety? Mandatory curfews? If worried enough, perhaps citizens will even agree to voluntarily submit samples of their DNA so State authorities can biologically test for evil genes? May as well identify a problem before it becomes one -- right? Even if things do not regress so far, maybe citizens will just live in such constant and perpetual fear of each other that they’ll simply miss out on enjoying life. That seems rather ironic, doesn’t it?

Submitted by:

David G. Chow
Barrister
Fagan & Chow
http://www.faganandchow.com/

[1] http://www.lightningsafety.com/nlsi_pls/probability.html
[2] http://www.cbc.ca/canada/calgary/story/2006/07/26/lightning-strikes.html
[3] http://www.cbc.ca/canada/calgary/story/2008/07/10/lightning-fire.html
[4] http://www.cbc.ca/canada/calgary/story/2008/07/18/lightning-house-fire.html
[5] http://www.iht.com/articles/2007/07/13/business/ipod.php
[6] http://calsun.canoe.ca/News/Columnists/Martin_Kevin/2008/07/10/6115176-sun.php
[7] http://www.canada.com/calgaryherald/story.html?id=978491b5-e903-4a2c-9e67-9da1fbb6910e
[8] http://canadianpress.google.com/article/ALeqM5j3RObRdkVj4vAV6-aKQzkeC7SajA
[9] http://www.660news.com/news/local/article.jsp?content=20080727_121007_5024
[10] Glassner, Barry, The Culture of Fear, (Basic Books, New York) 1999: pg. xiii.
[11] http://www.tc.gc.ca/roadsafety/tp/tp3322/2004/page1.htm
[12] http://www.sirc.ca/press_releases/30_30_cards.cfm
[13] http://www.cbc.ca/news/interactives/map-tasers-canada/
[14] Glassner, pg. 44.
[15] Ibid., 45.