Tuesday, April 12, 2011

Skyreporter: A Worthwhile Read...

With an election on the horizon, I encourage all interested and politically motivated Canadians whose wishlist includes pithy writing, astute commentary and interesting reporting beyond the listless everyday media to review Arthur Kent's website: skyreporter.com

I particularly enjoyed Mr. Kent's most recent article:


The article discusses a number of important and interesting connections between Canada's work abroad in the name of "freedom" and good governance within our own country. By way of example, Kent writes:

One Canadian veteran of the campaign to create good governance in Afghanistan tells Skyreporter:

“How can we look someone like Karzai in the face and tell him he has to do a better job when Harper shows complete contempt of parliament here?”

The current Canadian election was triggered, in part, when the Speaker of the House of Commons ruled that Harper and his ministers were in contempt of parliament for misleading members over the cost of an anti-crime bill.

Now a leaked draft report by Canada’s Auditor General states that the government misled parliament to secure a $50 million slush fund, doled out by Harper’s industry minister to pet projects in his own constituency.

The money was purloined from a border facilities program and redirected under the guise of preparing for last year’s G8 summit (see “West Adopts Taliban Lunacy To Help Secure Leaders’ Photo Op” on page 2 of Recent Stories).

“You can't just talk the talk, you have to walk the walk as well,” says the specialist, who asks to remain unnamed while he continues his work in the region.

To read the entire article, visit: www.skyreporter.com

Monday, January 10, 2011

Holy Bill Of Rights, Batman!


These are just a few descriptors used to illustrate the mighty fist of the comic book superhero striking a blow for justice in a world infested with villainy.

“I say thee nay”, bellows the Mighty Thor as the Thunder God smites enemies with his Uru hammer. CRACK!

“Hulk smash”. KABOOM!

“Whatever is fair in love and war is also fair in crime fighting”, retorts the Batman. WHAMO!

Just days into 2011 and yet another unnamed police officer is caught on camera administering some gratuitous street justice.

“B.C. cop caught on tape allegedly kicking man in the face”: http://www.ctvbc.ctv.ca/servlet/an/local/CTVNews/20110107/bl_kelowna_brutality_110107/20110107?hub=BritishColumbiaHome

On-lookers were shocked.

In the words of an unnamed witness, “he [the police officer] kicked him so hard. He never fought”.


The target of the kick was next observed sporting the bloodied evidence of the steel-toed boot of criminal justice.

“Holy Bill Of Rights, Batman”!

Sadly, this incident in Kelowna, British Columbia is not an isolated event – not even close. Recent months have born witness to a graphic display of wanton violence by police against those whom they have a duty to protect. I watched in disgust as Cst. Desmond Sandhoe unleashed a fury of aggravated closed fist strikes to the body and face of a prisoner in full view of a camera at the Lac La Biche R.C.M.P. detachment.



I was again unnerved to watch the actions of Ottawa police performing a series of aggressive manoeuvres whilst executing an undignified strip search of prisoner Stacey Bonds. A knee to the lower body, followed by a forced take down of the prisoner by multiple officers represents just a few actions critically denounced by Justice Lajoie.



I was dismayed to watch a police officer unceremoniously shove a disabled woman to the pavement in full view of shocked Vancouverites walking along a local sidewalk.


Rather than remaining to offer assistance to the woman, later identified as having cerebral palsy, the great triumvirate of police simply continued their shoulder-to-shoulder stride, cutting a path through the people using the pedestrian walkway. The officer’s pathetic excuse, “I thought she was going for my gun”.


Of course, there was also Robert Dziekanski. Need I say more? ZAP!

Holy shenanigans, Batman!

Aside from several unnamed Calgary police charged with criminal offences in 2010, Calgaryians have yet to witness the iron fist of our boys in blue captured in Technicolor. As a criminal defence lawyer, however, I assure you, I have unfortunately born witness to such things. Whether it is due to a complete absence of investigative reporting in Calgary, a biased media, a corrupt police department, a good cover-up or a combination of all of the above, the evidence of such conduct has yet to be exposed via the powerful medium of videotape. And though I cannot divulge things I know to be true because of my involvement as a member of the criminal bar, I can tell you that such violence exists. I have seen it both as a Prosecutor and a criminal defence lawyer.

That said, perhaps the best evidence of violence within the Calgary Police Service is not resting within the binary code of digital video or police reports disclosed to the crown; rather, it is expressed with brutal efficiency by pseudonym author, John Smith, in his 2008 publication, “The Wolf and the Sheep Dog”.

“They break the law and we try to catch them”, Smith writes. “But running after you are caught is going to get your ass kicked. Those are the rules”.

“We called it ‘the one-punch rule’, you run and every cop involved with the foot chase gets a punch after you get caught”.

A reading of “The Wolf and the Sheepdog” leaves one with the indelible impression that its writer is prepared to twist logic and defy sanity in the name of justifying violence. Just a few short lines following the aforementioned passage, the writer laments his inexperience as justification for failing to administer some worthy street justice. A mistake he will not make a second time.

“Just as I finished yelling my totally asinine threat he just stopped and laid down. He went into the fetal position and started begging not to get hit”.

“What am I to do”? ...

“My partner looks at the guy and lets him know that he is lucky that I caught him, otherwise she would have kicked the shit out of him”.

In other words, the compliant prisoner barely avoided: BOOM! WACK! POW! BONK! BING!

No mercy, Batman!

Reading “The Wolf and the Sheep Dog”, one quickly learns mercy was rarely given. But before regaling you with more superhero tales about the author beating citizens in the name of justice, let me tell you a little about the book and its writer.

The book purportedly depicts true events. To highlight the introductory words of the author:

The calls and situations depicted in this book are only based on actual events.

My name has been changed and my co-worker’s names are false ones.

I am still an active member of a police force and because of laws and personal safety I have to keep my identity a secret....

This book contains my first five years on the street. I consider myself lucky to be able to be at the right place and time to be involved in such calls.

To be waist deep in “the Shit”.

This is my story.

Despite the fact that the pseudonym author/Calgary policeman actually accomplished a great achievement writing his book, nobody said he was necessarily artistic or even particularly intelligent. The book is infected with scatology, littered in slang and composed with grade-school simplicity. Perhaps most troubling, it teaches nothing other than some of Calgary’s finest are little more than bloodthirsty ruffians who use their authority to administer physical violence against those whom they are entrusted to protect. Forgo any notions of higher principle, police responsibility, integrity, or higher cultural and moral values; for “The Wolf and the Sheepdog” paints many members of the Calgary Police Service as nothing short of armed thugs.

Perhaps even more shocking, it paints its author and members of the CPS as “criminal”.

Discovering the real identity of pseudonym writer “John Smith” was just about as easy as surmising Clark Kent without glasses is Superman. Even Inspector Gadget could have unravelled this mystery. Simply “Google” a few rudimentary search terms and the author’s real name, police badge number, telephone number and other personal information is revealed. Even more baffling is that it was the author who exposed himself!

Holy stupid, Batman!

It is not without some irony that the author actually had the audacity to promote his book by messaging MacLean’s Magazine in relation to their “The Best of Film, TV and Books in 2008”.

Holy “it’s hard to be humble”, Batman!


To Brian Bethune:

Good day, my name is John Brix-Maffei and I am a Canadian Author as well as a Canadian Police Constable. I have written a book called “The Wolf and The Sheepdog” published by Authorhouse and distributed through Ingram. I would be honored to send you a copy of the book for your review and critique.

The Wolf and The Sheepdog was created to allow the reader a look into the emotional and philosophical world of policing. The reader gains a valuable insight into a subculture that has been hiding in the shadows, a world of violence, victims and turmoil. Through “The Wolf and Sheepdogs” short stories the reader will be transported into a world that goes far beyond Televisions “Badge, Bottle, Gun” stereotype.

The Wolf and The sheepdog has been well received in the early stages of its release and has been quoted as; “Taking the lid off of policing”, by Gerry Forbes on CJ92, “Truly an eye opening event,“ by Jason Elles on Sirius Satellite Radio, “Raw, powerful and moving,” by Dave Rutherford on AM 770.

I hope that you enjoy the short stories that I have created in “The Wolf and The Sheepdog”.

Please feel free to call me at 1(403) 710 - 8698, my wife Angela at 1(403)567-0495, or contact me at my email if you have any further questions.

pol3530@calgarypolice.ca or memorialpainting@gmail.com

See also: http://www.amazon.com/Christmas-Dinosaur-Angela-Brix-Maffei/dp/1438904991

Perhaps Gerry Forbes said it best; the book indeed takes “the lid off of policing”.

Reading The Wolf and the Sheepdog, I continuously pictured a series of comic book frames, wherein the self portrayed hero, Cst. John Brix-Maffei was walloping enemies into submission, whilst bellowing cheesy one-liners, such as “it’s Matrix Time”.

Though he self promotes his book with Maclean’s Magazine as “...a look into the emotional and philosophical world of policing”, I take great umbrage with the use of the word “philosophical”; rather, I prefer to characterize Mr. Brix-Maffei’s work as more closely akin to an inculpatory admission of criminality and noble cause corruption by a Calgary police officer serving in the line of duty.

Just seventeen pages into the book, Mr. Maffei essentially confesses to having committed an aggravated assault against a suspect.

According to the Criminal Code of Canada, “every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant”.

As Mr. Brix-Maffei approaches a motorist just recently involved in a head-on collision with his police cruiser, he sees “a beautiful star-shaped imprint on the front window...caused from [the driver’s] head bouncing off of it”.

Now confession.

“I know that blows to the head will be most effective right now, because he has already sustained damage to his head from impacting the window”. “A quick glance at his hands on the steering wheel tells me that he has no weapons. Game time!”

“My left fist slams into his face, causing his nose to bend and suddenly pop under the force. My right fist lines up for a second blow”.


“I can already see blood flowing from his nose”.

“Fucking eh...”, he writes, “I broke his nose....The right fist hits solid on his jaw, causing his head to spin violently away from me. He is fucked; I have two or three seconds now. His brain is bouncing off of his cranial cavity and I have two or three seconds to cause more damage to this fuck before his brain even recovers from that blow”.


Holy planned and deliberate violence, Batman!

With writing like this, who needs video?

Well, Mr. Brix-Maffei does not merely confess to brutalizing people, he also confesses to doctoring notes and police reports to avoid accountability. After pondering intentionally ramming the suspect’s vehicle, Brix-Maffei queries, “Did I breach policy? You bet, you have to get permission to ram a vehicle from your supervisor”.

“Will I get a negative paper? I hope the fuck not, this is where my talent for articulation comes in”.

Of course, an event captured on video seldom requires “talent for articulation”.

“Did I lie”, ponders Brix-Maffei. “No”.

“Lies are those that affect the innocent”.

Holy noble cause corruption, Batman!

Has John Brix-Maffei ever been charged with a criminal assault? To my knowledge, the answer is no. Yet “The Wolf and the Sheep Dog” is saturated with stories of wanton violence by a man who is still employed as a Calgary Police Officer. The resounding theme is how the enemies of Brix-Maffei are “fucked”.

I drive my right fist into his kidneys. I set into him and push my fist deep. I can feel my fist sink in up to my wrist before he bends and contorts to avoid any more damage.

He is fucked. His face is contorted in pain. His mouth is gaping, trying to drag in air. Air that was knocked out of him when I slammed into him, precious air that was wrung out of his lungs even more when I drove my fist into him.

I have landed the damaging blows that will allow me to give him the hurt as long as I want to.

My elbow slices into his face. His head snaps to the left and I feel his long hair whip across his face.

I send in another body shot to keep his mind confused. My left fist slams into his sternum. Nothing comes out of his mouth. No groan, no gasp of air or he will die.

The bright white paint of panic is smeared across his face.


Meanwhile, Brix-Maffie has the wherewithal to yell “stop resisting and you won’t get hurt”.

As he writes, these are words designed to “cultivate the minds” of witnesses.

“I know that if someone’s watching, my verbal queues will let them know that we are fighting a bad guy who is fighting with us. The verbal direction will also cultivate their minds. They will believe what I yell out”.

The Wolf and the Sheep Dog consists of 386 pages of brutal and wanton violence confessed with artistic flare by a Calgary Police Officer. Brix-Maffei’s stories are seldom heroic or even brave. Many of the beatings are cowardly excesses of police violence against those who are vulnerable. The book does not, as Brix-Maffei claims, allow the reader insight into the emotional and philosophical world of policing; rather, it is a disgusting and immoral confession which sullies the entire Calgary Police Department.

Comic book heroes are seldom gratuitous. They are manufactured with an ingrained sense of morality that recognizes the need for justice to be, wherever at all possible, peaceful. As Professor David Paciocco writes in his book, “Getting Away with Murder”, “the quality of a nation’s civilization can largely be determined by the methods it uses in the enforcement of its criminal law”. If Brix-Maffei’s conduct at all represents even a small minority of Calgary police officers – and by accounts it does – then I fear the quality of our civilization rests on the boot heels of police power.

“I look at my partner”, writes Brix-Maffei, “who starts to look around in all directions. He is looking for bystanders, for eyes that may watch us. He gives me a nod and I know it is time for me to make sure this loser doesn’t try this again”.

“I move over to this guy lying on the ground, hands cuffed behind his back. His look of delight changes to a look of fear as he knows I am so ready to open a can of shit on him”.


Holy who are the real criminals, Batman?

David G. Chow
Calgary Criminal Lawyer
Calgary DUI Lawyer


You should have let me in on this. We could have planned it, prepared it, pre-sold the movie rights! - Riddler

Friday, December 31, 2010

Setting the Record Straight

To update my post dated December 3rd, 2010, I offer a sincere thank you to Minister Oberle for responding to my previous correspondence. Correspondence dated December 3rd, 2010 was received by my office on December 16th, 2010. Also, I thank Honorable Brian Mason of Calgary Buffalo for his representations resisting the passage of Bill 27: The Police Amendment Act on November 29th, 2010.

See Alberta Hansard:


David G. Chow
Calgary Criminal Lawyer
Calgary Criminal Lawyer


Thursday, December 9, 2010

Falling on Deaf Ears: Government fails to respond to citizen's concerns

This post is a follow-up to my previous post expressing concerns about the Alberta Government's Police Amendment Act 2010.

Pasted below is a copy of further communication dated December 3rd, 2010 to representatives from the various levels of Government, including Alberta's Minister of Justice (Alison Redford), Alberta's Solicitor General (Frank Oberle) and others.

Aside from the fact that the Police Amendment Act 2010 was approved by our Government and now only awaits the rubber stamp otherwise known as Royal Accent, my mini-campaign to inspire a modicum of consideration for the ultimate impact of shielding police from meaningful accountability has apparently fallen on deaf ears.

What is troubling is that not a single member on any level of Government (Municipal, Provincial or Federal) bothered to reply to a citizen they represent with even a form, "thank you for your interest", response.

A Government that is prepared to simply ignore citizens whom it represents is not democratic. Though I appreciate Ms. Redford may not be able to respond to every Albertan who corresponds with her, I doubt very much that either she or Mr. Oberle are so inundated with mail that they could not make even a "form" response in the instant case? Interestingly, as a member of the Law Society of Alberta, Ms. Redford was arguably obligated to respond, and still did not.

Additionally, given our communities are represented by Alderman (Mr. Hodges) and Members of Parliament (such as Mr. Anders), who are tasked with the important responsibility of representing their constituents, I see absolutely no excuse on their part.

These people are employed by the taxpayer to represent Canadians. In the case of Ms. Redford, for her $209,000 per year of taxpayer money, a form letter bearing her signature, stamped by one of her underlings, was minimally required.

Whether or not you agree with my views on the Police Amendment Act 2010 or anything else, I encourage all citizens to become active in the governing of this country. In my view, an apathetic citizenry is the catalyst for an undemocratic government. In the years ahead, we may not like what we see....

For what it's worth, I don't like now....




dateFri, Dec 3, 2010 at 7:02 AM
subjectRe: Bill 27: Police Amendment Act 2010 - Criticism

This correspondence is to express my deepest concerns that not a single member of my Government (Federal, Provincial or Municipal) took the time to even forward a "form" letter or "form" email regarding my response to the Police Amendment Act 2010.

Let me be perfectly clear, I did not truly expect anything more than some kind of pre-fabricated -- "thank you for your input" -- meaningless response, but I actually received less than that....

To my chagrin, I noticed the Alberta Provincial Government rammed the legislation through earlier this week, with not so much as a meaningful press release to the citizens of Alberta. I discovered the legislation had been rammed through whilst reading the Vancouver Sun.

Though I suspect nobody in any level of Government in Alberta sees any difficulty in this process, for those who actually care, I say governance in so-called democratic systems reliant upon the ignorance of the bewildered masses is no democracy at all. More importantly, I see any government that declines to make even a form response to a citizen of this country who expresses concerns about a government initiative -- a citizen whom they represent -- as a government standing in opposition to the vary tenets of democracy. A government that fails to properly and meaningfully inform citizens of its actions, intentions and initiatives is a government existing for itself, not for the people. Finally, a government that would seemingly rather keep citizens existing in a state of ignorance operates in contradiction to the fundamental precepts of democracy.

It appears the only thing that is transparent about Government is the fact that Government is not transparent at all.



David G. Chow
Calgary Impaired Driving Lawyer
Calgary Criminal Lawyer


Monday, November 8, 2010

Letter to Alison Redford, Stephen Harper et al re Bill 27: Police Amendment Act 2010

Pasted below is a copy of correspondence sent to Ms. Alison Redford (Alberta Minister of Justice), Stephen Harper (Prime Minister of Canada) et al. The purpose of this letter is to highlight my concerns with respect to Bill 27: The Police Amendment Act 2010.


It is important all citizens understand this proposed legislation represents an attempt by the Alberta Government to insulate police from accountability.

In reading the correspondence hereto follow, please understand that any criticisms leveled against police within the letter are not intended to diminish what I otherwise perceive to be outstanding service by the majority of police officers who honorably serve in the line of duty. Comments are directed in response to a small number of incidents where, all things considered, a discrete group of police officers must be held accountable for their actions. It would be highly inappropriate, if not offensive to paint the many good officers protecting the public interest with the same brush as those who do not.

In my opinion, notwithstanding the fact that legitimate citizen complaints against police only involve a small number of incidents, an appropriate system of accountability must nevertheless exist to ensure that the relatively small number of incidents do not increase in frequency.

I encourage all Canadians to speak out against Bill 27 by contacting their local MP or Alderman.


Alison Redford
Minister of Justice (Alberta)
Alberta Justice, 3rd Floor, Bowker Building
9833 - 109 Street
Edmonton, Alberta
T5K 2E8

Sent via Fax: (780) 422-6621

Sent by Email ministryofjustice@gov.ab.ca


I write to you for the purpose of expressing my concerns with respect to Bill 27: Police Amendment Act 2010. I have had the opportunity to review comments offered by the Criminal Trial Lawyers’ Association (CTLA - Edmonton) and entirely agree with their submissions.

That said I am left to wonder about the purpose of the proposed changes; especially in light of the fact that the majority of the amendments in relation to the public complaint process appear not to serve the public interest.

A plain reading of amendments to sections 19, 20, 42.1(1), 43, 45 and 47 suggest that the Alberta Government has tabled legislation creating substantial barriers to a citizen’s ability to complain or maintain a complaint about police misconduct, abuses or excesses. Given the great power bestowed upon police, I see any attempt by the Government to shield law enforcement from public complaint as a troubling step towards a society that does not fit into the notion of what is free, democratic or “Canadian”.

So that my comments hereto follow are properly contextualized, please understand that I start from the proposition police are employed in a position of trust. Given police are equipped with weapons, special equipment, powers to interfere with a citizen’s liberty through detention and arrest along with the authority to exercise tremendous discretion enforcing a seemingly endless sea of laws, there is perhaps no greater fiduciary relationship than that owed by police to the citizens they serve. Perhaps Dixon J. stated it best in Gabrielson v. Hindle, [1987] A.J. No. 1758 (Alta. Q.B.):

The police forces are given a very special niche in our society. They represent us in the protection of our property and our well-being from abuses and ravages of those who commit crime. They are given special powers and a corresponding standard of conduct is demanded of them. Police powers are to be used intelligently, fairly, and without rancour or favour. There are some rough people wandering around our country and the police must be alert to ensure that the appropriate measure of law enforcement is available to impose the will and requirement of the State upon such persons. It is for this reason that police are permitted to carry arms. They are selected for physical prowess. They are well trained in the use of weapons and martial arts and are provided with the best equipment, including highly and efficient communication systems. But notwithstanding all of these, good police work stems to a very large extent through the use of common sense and from gaining of, and retention of the respect of the public.

So with all privileges go responsibility.

With all the privileges, there must also be accountability.

Section 38(1) of the Police Act, R.S.A. 2000, c. P-17 recognizes the special role of police in our society. According to s. 38, every police officer has the authority, responsibility and duty to encourage and assist the community in preventing crime and to encourage and foster a cooperative relationship between the police and community. This cannot be merely a high sounding objective, it must be meaningful.

I fail to understand how legislation insulating police who abuse their authority from a citizen’s complaint encourages and fosters cooperative relationships between the police and public. The very existence of an open, tolerant and reasonably flexible citizen’s complaint process supplies a valuable safeguard against abuses by those acting in the line of duty. By significantly diminishing the ability of a complainant to lodge and/or maintain a grievance through a principled citizen’s complaint process creates a reasonable apprehension that Government is prepared to protect law enforcement from having its excesses scrutinized by those empowered to defend the public interest.

The irony is Government exists to represent the public interest; yet the Alberta Government tables legislation which arguably offends its public interest mandate.

Why is the Alberta Government interested in insulating police from accountability?

Though the CTLA has succinctly and effectively expressed many of my concerns, I am compelled to add a few additional comments.

Section 20

Section 20 of the Police Amendment Act 2010 stipulates a wide range of circumstances whereby a complaint can be dismissed. An action can be dismissed if a complainant “fails to attend”, “fails to answer questions”, fails to produce an item required; is “unable” to participate, “refuses” to participate, fails to “follow processes” or fails to conduct himself or herself in an appropriate manner.

It does not take a particularly active imagination to envision a plethora of reasonable circumstances to justify any combination of “failures” that may now result in the dismissal of a complaint. By way of example, perhaps the complainant is remanded in custody? Perhaps the complainant has somehow been rendered incapacitated such that he or she cannot participate? What if the complainant has been incapacitated as a result of the actions of police? Perhaps the complainant is out of the country or cannot produce an item required due to an unfortunate event, such as fire, flood, theft or the seizure of materials by police who are the subject of the complaint? Perhaps the complainant has been accused by the police of a crime and must now exercise his or her Constitutional right to silence?

Though I could certainly compose a much more exhaustive list of examples, I think the point is made.

The fact that an action may be dismissed if a complainant fails to conduct himself in an appropriate manner is highly problematic; for there is no rational nexus between the conduct of a complainant in a proceeding and the alleged police conduct underlying the accusation. An unruly complainant may nevertheless have a highly legitimate grievance. To dismiss a justified grievance simply because a complainant somehow offends a Government tribunal, or falls into error adhering to process is antagonistic to the notion that the conduct underlying the complaint ought to be determined on the basis of all available evidence. In criminal law, courts consistently refuse to permit form to rule over substance; yet it appears the Alberta Government is prepared to protect law enforcement in precisely this manner.

Section 42

Section 42.1(1) unreasonably restricts the class of complainant. A complaint may now only be brought by a “person” who was the subject of the conduct complained of, an agent of a person who was the subject of the conduct complained of, or a person who was present at the time of the incident and witnessed the conduct complained of, or a person who was in a personal relationship with the subject of the conduct complained of and suffered loss, damage, distress, danger or inconvenience as a result of the conduct.

This class limitation unduly restricts other persons or organizations acting in the public interest from launching a justified grievance. There are a many reasons why the subject of the conduct complained of may not complain. Perhaps the target of the police conduct is afraid to lodge a complaint? Perhaps the target is accused by police of a crime and due to the practical realities of criminal justice, will not file a grievance out of fear police will place undue pressure on Prosecutors to pursue conviction in an effort to protect themselves from sanction through the citizen’s complaint process? Though I am certain you will dismiss the latter example, my experience suggests police interference is a legitimate concern.

Whatever the case, it is ironic that the legislation effectively prevents a myriad of public officials, who represent the public interest, from lodging a complaint on behalf of the people whom they serve.

By way of example, Government employs Crown Prosecutors to act in the public interest. What if a Prosecutor became aware of information justifying a hearing into police misconduct? By operation of s. 42.1(1), absent authority to act as an agent, Crown’s are incapable of filing a grievance because they do not fit into the class of persons entitled to make a complaint.
Similar logic applies to any number of other groups acting in the public interest. These groups include police and other law enforcement officials, civil liberties organizations, the CTLA, city Alderman, a Mayor or even the Attorney General of Alberta, the Solicitor General of Alberta or the Prime Minister of Canada. That the Prime Minister of Canada or the Minister of Justice of Alberta (or others) would have to obtain specific authorization to act as an agent for an aggrieved party in order to advance a public interest complaint is not only absurd, it is inconsistent withthe function of public office.

In the words of the CTLA, “[t]here is no basis for this [amendment] other than to disenfranchise those who are powerless to complain or afraid or who otherwise will not complain”.

Section 43

Section 43 stipulates that if a complainant refuses or fails to participate in an investigation the commission may dismiss the complaint. Though I appreciate dismissal due to non-participation is permissive, the amendment is nevertheless impractical and arguably draconian in scope. As aforementioned, there may be any number of justified reasons explaining a complainant’s non-participation in the complaint process. What is troubling is that a complaint can be dismissed even where evidence demonstrates the grievance to be justified. This defies both logic and common sense.


It is laudable the amendments address “discoverability”. However, the one-year limitation to complain of police abuse is half the period for almost any other litigant who has a civil grievance. There are many good reasons to extend the limitation for launching a citizen’s complaint against police from one year to two years.

To begin with, any participant in criminal justice understands that straightforward criminal cases routinely take greater than a year to complete. With this in mind, it is also important to recognize that the party complaining of police misconduct may also be an accused in criminal proceedings involving the very same police officers he or she complains of. It is worth highlighting that an accused may have a plethora of legitimate reasons to refrain from lodging his or her complaint until the completion of the criminal proceedings. To reiterate, perhaps the complainant has been instructed by counsel to exercise his or her right to remain silent.

Surely a principled system of accountability will not require an aggrieved party, who is also an accused, to waive his or her Constitutional rights in order to lodge and/or maintain a potentially legitimate complaint against the police?

To continue, perhaps the complainant fears reprisal from the officers complained of, or perhaps the aggrieved party is concerned police will use their connections with the criminal justice system to influence the prosecution of the case? My experience as a former Crown Prosecutor and now full time practicing criminal defence lawyer confirm these are not fictional concerns. The very fact Crown Prosecutors routinely consult with investigators prior to resolving cases underscores the wisdom of delaying making a complaint until after the ultimate conclusion of the case.

All things considered, given the practical realities of criminal justice, a one year limitation may result in grave injustice. Trepidation lodging an immediate complaint out of fear of continued police abuse, reprisal or interference with the prosecution may delay or perhaps even stop a complaint from ever registering. Moreover, a one-year limitation arguably encourages highly abusive conduct – such as laying criminal charges by the offending police for the purpose of silencing the complainant.

A principled system of accountability cannot support these possibilities.

Section 45

Section 45(4) provides that the Chief of Police may dispose of a complaint if he or she is “of the opinion” the grievance is not serious. This is shocking!

Aside from the fact that it appears the Alberta Government is prepared to legislate a form of nepotism, the practical reality is there exists a reasonable apprehension of bias in circumstances where those complained of are essentially authorized to dismiss complaints about themselves. What a citizen or independent tribunal might view as “serious” may differ markedly from what the Police Chief views as serious. In the circumstances, I question whether any aggrieved party could ever feel they received a fair hearing when their complaint was dismissed by the leader of the very group about which they complain.

At the end of the day, I question the Alberta Government’s motive for the amendments. Politically, morally and legally, it is inconsistent to our purportedly free and democratic society to enact laws shielding law enforcement from accountability. This is what Bill 27: The Police Amendment Act 2010 accomplishes.

Though I becoming more inclined to think our legal principles are little more than high sounding, yet empty and meaningless rhetoric, I nevertheless naively believe, as Ritter J stated in R. v. Cornell, [2009] A.J. No. 448 that “Canada is not a Police State”. When my Government proposes brazen laws such as Bill 27: The Police Amendment Act 2010, it becomes increasingly more difficult to hold fast to such naivety.


David G. Chow
Criminal Defence Lawyers


Cc: Rob Anders (MP): E-mail: Anders.R@parl.gc.ca and E-mail: RobAnders@telus.net
Cc: Dale Hodges (Alderman): Email: dale.hodges@calgary.ca
Cc: Frank Oberle (Solicitor General and Minister of Public Security): peace.river@assembly.ab.ca

Cc: The Calgary Herald: E-mail: submit@theherald.canwest.com
Cc: The Calgary Sun: E-mail: calnews@calgarysun.com
Cc: The Globe and Mail: Newsroom@globeandmail.com
Cc: Stephen Harper (Prime Minister): E-mail: pm@pm.gc.ca
Cc: Tom Engel (Criminal Trial Lawyers’ Association)
Cc: Michael Bates (Criminal Defence Lawyer)
Cc: Karen B. Molle (Criminal Defence Lawyer)
Cc: Tonii K. Roulston (Criminal Defence Lawyer)
Cc: Deborah Hatch (Criminal Trial Lawyers’ Association)


Wednesday, August 11, 2010

Oh Canada! We stand on guard for thee...

... it is difficult to imagine a more important guarantee of freedom to a democratic society than that of freedom of expression. A democracy cannot exist without the freedom to express new ideas and to put forward opinions about the functioning of public institutions. These opinions may be critical of existing practices in public institutions and of the institutions themselves. However, change for the better is dependent upon constructive criticism. Nor can it be expected that criticism will always be muted by restraint. Frustration with outmoded practices will often lead to vigorous and unpropitious complaints. Hyperbole and colourful, perhaps even disrespectful language, may be the necessary touchstone to fire the interest and imagination of the public, to the need for reform, and to suggest the manner in which that reform may be achieved.

The concept of free and uninhibited speech permeates all truly democratic societies. Caustic and biting debate is, for example, often the hallmark of election campaigns, parliamentary debates and campaigns for the establishment of new public institutions or the reform of existing practices and institutions. The exchange of ideas on important issues is often framed in colourful and vitriolic language. So long as comments made on matters of public interest are neither obscene nor contrary to the laws of criminal libel, citizens of a democratic state should not have to worry unduly about the framing of their expression of ideas. The very lifeblood of democracy is the free exchange of ideas and opinions. If these exchanges are stifled, democratic government itself is threatened.
History has repeatedly demonstrated that the first step taken by totalitarian regimes is to muzzle the media and then the individual in order to prevent the dissemination of views and opinions that may be contrary to those of the government. The vital importance of freedom of expression cannot be overemphasized. It is important in this context to note that s. 2(b) of the Charter is framed in absolute terms, which distinguishes it, for example, from s. 8 of the Charter, which guarantees the qualified [page183] right to be secure from unreasonable search. The rights entrenched in s. 2(b) should therefore only be restricted in the clearest of circumstances.

Stated by Cory J in R. v. Kopyto (1987), 24 O.A.C. 81 and cited with approval by L'Heureux-Dube in Committed for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139 (S.C.C.).

Enough said...

David G. Chow
Calgary Drug Lawyer
Calgary Criminal Defence Lawyers


Tuesday, August 3, 2010

Rise Against! A Response to the Supreme Court of Canada's tacit endorsement of an Orwellian Police State

To sin by silence when we should protest makes cowards out of men.
Ella Wheeler Wilcox

In my narcissistic universe, I suspect I am not so unlike other souls looking out at the world through the lens of my own subjective experiences. Certainly, I see the world from a highly personalized and anthropocentric perspective, where the universe exists as a prop on the stage in the theatre of my life. In each scene, I am both the protagonist and antagonist; indeed, there are no scenes in which I am absent.

Seldom do I appreciate the sheer wonder of my existence on this planet.

I take for granted the complex machinery which is my body. I am generally ungrateful for the intricate patterns of electrical signals firing in my mind that give form, shape and substance to my thoughts. I fail to appreciate the Earth supplies my body with the essentials for life – the air I breathe, the food I devour – and that the universe is the home of this planet and its inhabitants.

I write on this webpage, ever critical of the Courts, our society, our Government, our Country – more often than not failing to acknowledge the great family which is Canada – failing to acknowledge a country where I can write on this website with relative freedom from repercussion from others who may look to censor my speech.

I acknowledge all of these things, because I am compelled to say that Canada is no longer the free country, existing on principles designed to protect human dignity, freedom and the rule of law that it once was. Without meaning to be particularly over dramatic – but appreciating I may be interpreted as such – I am compelled to say that more often than not, I feel as if my ability to exist free from the Government, securely in my own home, on the streets or even to write with relative freedom on this webpage is ever compromised by a series of minute incursions by the Government and its henchmen on fundamental civil liberties. And though I acknowledge that I have a high degree of personal investment in the most recent Supreme Court abomination – and as such, my comments to follow are likely to be marginalized as lacking objectivity – I say that the case of R. v. Jason Michael Cornell is illustrative of an academically inept, principally deficient, emotionally compromised Supreme Court of Canada that has lost its way in a world acculturated in fear.

At the outset, let me say, I encourage everyone to read Mr. Justice Fish's minority judgment. It is erudite, well written, principled and it makes sense. That said, I have a plethora of concerns with the majority decision.

The majority judgment is in my opinion, both academically deficient and principally dishonest. It ignores decades of rational jurisprudence restricting the State’s ability to enter a citizen home unannounced. It tacitly ignores provisions in the Controlled Drugs and Substances Act (CDSA) governing the use of force by police. It twists the limits of interpretation surrounding the rudimentary requirement that police have a copy of the search warrant “on their person” when entering a citizen’s sanctified domain. The decision endorses negligent police decision making, and in so doing authorizes the State to engage in violent behaviour based upon its own generalized concerns regardless of the actual evidence available to the police at the time of the search. It endorses police terrorist tactics in terms of sanctioning the use of balaclavas – the cliché symbol of criminality embedded into the collective consciousness of Canadians.

Like criminals who use masks to conceal their identity, police can use balaclavas for a similar purpose. If masked, a citizen could conceivably never properly identify police officers who act outside the rules of acceptable conduct. In a word, the majority decision is Orwellian in scope. To borrow a phrase highlighted in a British Columbia Free Press release, the Supreme Court has endorsed “Vader” police tactics.

Let me explain.

To begin with, let us do what Cromwell J and the majority of the Supreme Court of Canada simply failed to do – acknowledge the most seminal principle restricting the police use of force – Section 12 of the Controlled Drugs and Substances Act.

Section 12 clearly stipulates police may only use as much force “as is necessary” in the circumstances when conducting an arrest or search in drug cases. I hasten to note that nowhere does the majority even use words directly proximate to those in section 12 of the CDSA. And forgive me for saying it is absolutely mind boggling Canada’s highest Court, presumably staffed with Canada’s greatest and most principled legal minds, would simply ignore what is perhaps the most important and clearly articulated legal maxim governing the police use of force in drug warrant cases.

The majority commits a second puzzling error of law in its interpretation of the common law jurisprudence relating to “knock and announce”. To this end, Chief Justice Brian Dickson (as he then was) adopted then Quebec Court of Appeal Justice Louis Lebel’s dissent in R. v. Genest when he eloquently stated:

Fears for the safety of the searchers and possibility of violence can be reasons for the use of force in the execution of a search warrant. But the consideration of the possibility of violence must be carefully limited. It should not amount to a carte blanche for the police to ignore completely all restrictions on police behaviour. The greater the departure from the standards of behaviour required by the common law and the Charter, the heavier the onus on the police to show why they thought it was necessary to use force in the process of arrest or a search. The evidence to justify such behaviour must be apparent on the record, and must have been available to the police at the time they chose their course of conduct. The Crown cannot rely on ex post facto justifications.

Throughout both oral and written submissions, the Appellant and the various interveners on his behalf, (Ryan Dalziel for British Columbia Civil Liberties and Christopher Wayland for the Canadian Civil Liberties Association), consistently highlighted the “necessity requirement” outlined in both the CDSA and the leading common law jurisprudence. Despite being spoon-fed the proper legal test, the majority conveniently endorsed an erroneous and conveniently limited Government articulation of the legal standard that police need only have a “reasonable concern” about the possibility of violence or safety to the police, public or the evidence to justify the use of force. A plain reading of both the CDSA and Genest clearly says this is only a partial application of the correct legal test. That is to say, a plain reading of the both the common law and the legislation demands that once police have a reasonable concern about the possibility of violence or the destruction of evidence, they must then demonstrate it was “necessary” to use force in the manner in which they did. The mere articulation of concerns is not sufficient, for the concerns may not demonstrate why it was “necessary” to elevate the level of aggression.

The majority ultimately lays the onus of demonstrating the search was unreasonable at the feet of the accused. They do so notwithstanding the Supreme Court’s clear expression in Genest that “[t]he greater the departure from the standards of behaviour required by the common law and the Charter, the heavier the onus on the police to show why they thought it was necessary to use force in the process of arrest or a search”.

Indeed, in most instances, the Applicant bears the onus of demonstrating the Charter breach. That said, Genest was decided post-Collins, and it suggests, where there is a deviation from knock and announce there must be an evidentiary framework capable of justifying why it was necessary for police to use force as they did. This is not to say the Applicant does not bear the onus of demonstrating the unreasonableness of the manner of search, but where there is deviation from the civilized knock and announce rule, the Applicant has discharged its onus, and the heavier the burden on police to demonstrate why they thought it was necessary to use force in the process of the search.

The majority indirectly justifies the manner of search on the fact that police had a warrant to search the residence. In so doing, they fail to appreciate the warrant authorized only the search for drugs, not the use of violent police tactics in the execution of the warrant. There is a distinction between having reasonable grounds to believe drugs are in the house, and the manner in which the State goes about collecting the evidence believed to exist on the premises.

As Madame Justice Fruman aptly remarked in Crampton v. Walton, [2005] A.J. No. 178 (Alta. C.A.), the issuance of a search warrant is not a “… carte blanche to the police to execute the warrant in any manner, with any level of aggression and with any type of restraint or detention they see fit”.

To suggest police can simply storm a house based upon their own generalized safety concerns is to, as Justice Casey Hill asserted in R. v. N.M.H. endorse “…a broad strike zone associated with public safety of “better safe than sorry” assigned to police discretion.... Police actions must be authorized by law. Discretion cannot be unreasonably exercised or at odds with statutory and common law limits”.

The manner of conducting law enforcement is therefore not solely determined against a backdrop of possible risk to those serving in the line of duty. It is determined upon a reasonable approach to law enforcement, including a risk assessment, reasonably made on the basis of all of the information and intelligence available at the time. Whenever police conduct any kind of search, and in particular, a search of a private dwelling, they are acting on a legally permissible degree of supposition, not certitude. The fact that the police could be wrong highlights the need for them to conduct business in a peaceful and civilized way.

British Columbia intervener, Ryan Dalziel eloquently argued that “generalized concerns” should never suffice. Indeed this makes sense.

Doubtless, police work is inherently dangerous. Merely investigating any offence, including run-of-the-mill traffic infractions, presents with inherent dangers (as remote as they may be). In Cornell’s case, neither he nor his mother had any history of criminal behaviour or violence. Even the purported gang member who entered the Cornell home just four times over 30 days was in police custody approximately 1 hour prior to the search. That person had no criminal record at the time of the investigation. In months of surveillance, the other alleged gangster of interest was never observed to enter the Cornell residence. There was no intelligence suggesting the Cornell’s were members or even real associates of any organized crime group. Indeed, they were not. Those are the facts; and despite those facts, the majority determined no reviewable error relative to the police decision to storm the home paramilitary style.

The majority unacceptably marginalized the Appellant’s argument about the complete lack of communication between the tactical team and investigators responsible for supplying the information required for TAC to determine whether force was necessary. To this end, Cromwell says, “the appellant submits that the search should be held unreasonable because there was some missing paperwork and lack of communication within the Calgary Police Service”.

From this passage, it is clear Cromwell has little or no appreciation for the importance of the “risk assessment” (or as he calls, missing paperwork). The risk assessment document is paramount, for it outlines police intelligence used to support of the conclusion that it was “necessary” to elevate the level of aggression during the search. In the instant case, the risk document was more than merely “missing paperwork”, it was non-existent paperwork. That is to say, it was not completed until after the police stormed the Cornell home. Let me say that again, the so-called missing paperwork did not even exist at the time the tactical team breached the Cornell residence! It was created ex post facto.

Even more troubling, the risk assessment did not even factor in the Cornell’s as people. That is to say, they were not mentioned anywhere within the paperwork! The entire risk assessment discussed two alleged gang members – without actual criminal records for violence – one of which was never observed in the Cornell home, the other who was observed to only visit the residence four times over thirty days and who was in police custody at the time of the search. Cromwell and the majority of the Supreme Court agreed with the majority at the Alberta Court of Appeal that the risk assessment and the lack of communication was a “moot point”.

Frankly, considering the legal requirement that police must demonstrate why they thought it was “necessary” to use force as they did, this interpretation is baffling.

If investigators responsible for communicating information capable of supporting the necessity requirement never communicated the information required to ground the “necessity” assessment, then how could those responsible for deciding to use force ever properly make the decision that it was actually “necessary” to use violence when they were never fixed with the relevant information? The only information supplied by investigators to the tactical team was a little bit of detail about the alleged gangsters (who were not reasonably anticipated to be in the house at the time) and the location of the residence “address-wise”. Surely this does not meet the heavy onus on the police to demonstrate why they thought the use of force was necessary. By all accounts, it appears the police put little thought into the subject at all.

In this writer’s view, this is frightening. Imagine, unbeknownst to you, your home is visited occasionally by somebody under police surveillance. If your door was kicked-in; your house stormed by men in dark clothing wearing masks with firearms drawn; your family physically engaged by the intruders who turned out to be police, wouldn’t you at minimum want to know that law enforcement actually made best efforts to factor you and your family into their decision to storm your home paramilitary style prior to doing it?

I wonder how Cromwell and his merry bunch would feel if they were in Lorraine Cornell’s shoes?

As a citizen of this country, I have the minimum expectation that when law enforcement engages in violence during the execution of their duties, they do so only after having rationally considered the need to do so within the framework of their particular circumstances. I do not disagree police require latitude to make such decisions. After all, they are the people making decisions in the moment.

But the Cornell case was not a split-second scenario where all of the exigencies of the situation were erupting in a manner of seconds, or even minutes. It was a case where law enforcement was blessed with the benefit of time. And they did not even take the time to factor-in the family residing in the home or even to complete a rather sparse two-page document so that they could demonstrate a certain level of thoughtful consideration that masked unannounced forced entry into a dwelling house with machine guns was necessary.

I could certainly wax-on at length about a myriad of other problems with Cromwell’s decision. Suffice it to say, however, my words are meaningless, especially to the extent that they can help Jason Michael Cornell. So let me speak, just for a moment about this young man. I say to all who prefer result orientated reasoning, you can take solace in the fact that Jason Cornell was indeed in possession of the drugs. He never denied it.

From this, let me respond to all of the bloggers and tough on crime critics who have applauded the gaoling of a “drug pusher”. You are simply wrong on a couple of key points! Jason Cornell is not, was not, and never has been a drug dealer. In 2005 he was a 19 year old kid who made the imprudent decision to hold drugs for a friend because he wanted to belong. At the time, he was a 19 year old without a criminal history, living paycheque to paycheque with his mother, working full-time driving a forklift. While he was accepting rides, taking the bus and hauling crates in a local warehouse, his high school friends were driving luxury cars, wearing designer clothes, sleeping-in and spending their evenings commiserating with friends. Since the charges, he has become a father and in every respect a loving parent.

When I spoke to him after the Supreme Court decision, he said “I have to do the time. It’s not like I’m not guilty. I am. Thank you for trying. Thank you and Mike for giving me some extra time with my daughter”.

As these words were being spoken, Jason was packing his belongings for storage at his mother’s house; as he was readying to voluntarily surrender himself to jail. No police officer had to pick him up. He surrendered on his own.

When assessing this case and what it means to all Canadians, simply suppose the police were wrong when they stormed the Cornell home. That is to say, they did not find drugs. Now ask yourself, if every other fact remained the same, would you still applaud the police use of aggression?

This appeal was about what I perceived to be a violation of a series of simple legal maxims designed to protect all Canadians. Looking into my crystal-ball let me tell you what this decision means for Canadians.

Post Cornell, no police officer who initially storms a home in Canada is required to have the search warrant on his or her person. Having regard to the language of s. 29 of the Criminal Code of Code, this is shocking. In present day, where paper can be easily photocopied, folded and inserted into a pocket, it is troubling to think our highest court would actually legally endorse police to enter a home without a copy of the search warrant on their person. In a situation where a citizen might view surprise entry by masked men as a home invasion by armed criminals rather than police engaged in law enforcement duties, it is simply shocking that at least some of the police storming the Cornell home were not required to carry the very instrument that may derail resistance from the home’s occupant. In my perspective, I say again, this is shocking!

After all, how hard is it to carry a copy of two or three page document? Is it heavy? Is it awkward? Is it difficult to reproduce? Does paper present with any qualities that make it generally impracticable or unfeasible to carry when conducting a search? I challenge anybody to prove that it does!

It is interesting that Cromwell and the majority conveniently forgot about a packed vault of jurisprudence, including Genest, that warns against justifying Charter infringements ex post facto. Yet, when Cromwell says, "nobody asked to see a copy of the warrant", he offends this most rudimentary legal maxim.

In light of all of these errors, I am left to wonder if McLachin, Charron and Rothstein read the same judgment I did.

The case of Jason Cornell will now be brandished by Crown Prosecutors from coast to coast to justify the police use of force in the execution of search warrants. Based upon the facts of this case, it’s difficult to conceive of a situation where the police cannot storm a home wearing balaclavas with guns drawn, without carrying a copy of the search warrant.

Arguably, the Supreme Court has lit a beacon for carte blanche use of force by law enforcement to use any manner of force, any degree of arrest or detention that they see fit. History warns about sanctioning such conduct. But if a Police State is what they had in mind...congratulations!

As far as Canadian Courts are concerned, Cornell’s case is at the end of the line. But I say, the case should not disappear from our collective consciousness. This case is about our society’s willingness to tolerate brute police behaviour, or as it has been aptly described by others, our tolerance of “Vader” police tactics. To sanction such State conduct is to take a leap closer to the creation of an Orwellian Police State, where citizens exist at the mercy of those in the service of Government.

What this case signals is that it is time for Canadians to wake from their slumber – to rise against those who wish to incrementally diminish the fundamental freedoms upon which this Country was formed. A citizen’s dwelling house has hitherto received special recognition by Canadian courts. I say, rise against those who seek to marginalize the sanctity of home. I say rise against Government initiatives to pack courts with partisan supporters by relying on the opaqueness of the appointment process. Did you know Cromwell was appointed to the Supreme Court notwithstanding he was never questioned by an ad hoc Parliamentary committee?



We must demand State compliance with our fundamental civil liberties. We must demand transparency in the appointment of our judiciary, for in secrecy, our Government can create a partisan bench, appointed upon political affiliation rather than demonstrable legal merit.

Ironically, more often than not, demanding State compliance with our Charter rights occurs in circumstances involving the ignoble deviant. For it is through the purview of our criminal law that civil liberties are most often engaged.

It takes great courage to protect civil rights on the basis of Charter violations against those whom we seek to punish. I say the signature of an intelligent and principled society is one that will not permit State transgressions, even against those accused of crime. Finally, I say the majority of our Supreme Court of Canada has failed to meet this standard.

I am often asked, how do you defend people whom you know are guilty? I respond: “easily”. For by forcing the State to convict even those who may be guilty on principled grounds is to ensure that an overzealous Government will not convict the innocent on unprincipled grounds.

Thomas Jefferson once powerfully stated “tyranny exists when the people fear the Government; freedom exists when the Government fears the people”. In R. v. Cornell, I fear our Supreme Court has tacitly endorsed the former.

David G. Chow
Calgary Criminal Lawyer
Calgary Criminal Defence Lawyer


Further Reading: "Flawed Ruling Means Police Don't Have to Knock First"