Saturday, December 26, 2009

Big Brother is Listening

Good habit is what aids men in directing their will towards the good....
(Lord Francis Bacon, Statesman and Philosopher)

For any criminal defence lawyer who ever suspected Big Brother was eavesdropping on his or her solicitor-client communications, your suspicions may not be unwarranted.

In the case of R. v. Jamie Bacon, evidence was presented that Surrey, British Columbia prison officials recorded upwards of 37 solicitor-client telephone calls, and listened to a number of them for at least several seconds prior to turning down the volume. Bacon's lawyer, Kimberly Eldred argued the contravention of the solicitor-client relationship was completely unacceptable considering the accused was only entitled to call his lawyer, and nobody else. What is even more troubling is that every time Ms. Eldred called, an electronic message was played indicating that her solicitor-client communications would "not" be monitored or recorded.

Responding to the allegations, State officials advanced the usual line of ridiculous excuses. Explanations ranged from the typical "oops, we didn't mean to" variety, to those in the "it's not a big deal" category. According to deputy warden Steve Phillips, lets not get our knickers in a twist, for they only listened to a few calls for several seconds before realizing Mr. Bacon was chatting with his lawyer. Though some may not appreciate the scatology, "bullshit" is really the most apt characterization of Phillips' position.

To be fair, I suppose even the most ethical State agent could stumble upon a solicitor-client conversation once, or perhaps even twice in the right circumstances, but there is no good faith when it happens 37 times on a telephone number registered to the inmate's lawyer. With this in mind, it is difficult to minimize Ms. Eldred's contention that the system enabled intelligence gathering of a clandestine nature.

The broader question concerns whether this discovery of obvious impropriety in Surrey, British Columbia is the exception or the norm?

In Calgary, Alberta, most defence lawyers understand speaking to clients on telephones is a dangerous proposition. Why do I say this, because we don't trust police are not listening. Even more troubling, some of us don't trust that a great many warrants are validly granted.

Loosely speaking, Calgary is "wired". The use of wiretaps and other electronic surveillance is becoming evermore prevalent. Unfortunately, in light of what many defence lawyers know about the process of acquiring warrants, there are legitimate concerns that search warrants are granted with the level of judiciousness defined by our common law . Though I may be derided for saying so, there appears to be an ever increasing lackadaisical approach on the part of judicial officers to authorizing all types of search warrants, including those to intercept private communications. As a criminal defence lawyer, I have probably analyzed more warrants and affidavits to obtain search warrants than a great number of magistrates, and it always baffles me when I see a warrant granted after a judicial officer has spent a whopping 10 - 20 minutes reading dozens of pages packed full of information, before granting a search to permit police to invade privacy on reasonable grounds.

Some searches are highly intrusive. On the basis of a search warrant police can enter a private dwelling house, draw DNA, listen to conversations on a telephone, plant tracking devices and may even be entitled to covertly enter a particular place on multiple occasions for the purpose of fishing for evidence. Many search warrants are driven by confidential source data -- information which an accused can never unravel except in rare cases where innocence is at stake. Participate in the preverbal defence lawyer photocopier chatter, and you may even hear concerns that so-called confidential informants are fabricated "Fuzzy Dunlops" or perhaps even police officers who overheard conversations captured over a wire. Even more troubling, I am aware of at least two cases where judges authorized search warrants on the basis of "unsworn" information. This is by definition, Big Brother.

In light of what is arguably a more relaxed approach to granting search warrants, it is highly conceivable that more searches are taking place. Searches of a clandestine variety (such as those captured on a phone tap) may never be discovered by anybody outside the police, crown or the authorizing magistrate, but the information uncovered may be limitless. Since just about every wiretap contains a basket clause enabling police to extend a search to encapsulate other telephones captured by the initial tap, the scope of any wiretap investigation can grown to leviathan proportions.

Unconstitutional searches of the non-clandestine variety are also becoming more common. For example, the initial search of Mr. Bacon's residence was conducted without a search warrant.

In Calgary, defence lawyers are accustom to seeing this type of conduct. It is not particularly unusual for police to enter private spaces without warrants and later -- through the trained eloquence of a Crown Prosecutor -- try to convince judges they were fixed with a good faith belief they were entitled to do so. Interestingly, this is precisely what the Crown argued in Mr. Bacon's case.

Since the Charter of Rights has been in existence for greater than three-decades, I often have a difficulty believing in this so-called good faith. Many, however, do not. Prosecutors advance good faith arguments on a regular basis; but given the casual approach involved in some of the conduct they seek to justify on good faith, one is left to wonder about the sincerity of their position. After all, there is a difference between making argument for the sake of argument and making argument on the basis of sound principle.

Whatever the case, the prying ears of prison officials monitoring solicitor-client protected communications (a hallmark of our legal system) highlights just how casual State authorities are when it comes to disregarding our most basic Constitutional protections. When police stroll into a home without a warrant, search people without valid grounds to arrest or obtain search warrants on the basis of inflammatory information designed to bamboozle the authorizing magistrate, citizens should immediately become concerned about the State's interest in protecting the Constitutional rights of Canadians. Though anybody can justify shortcutting basic principles in the name of crime prevention, such tyranny of good intentions leads our civilization down a stark path to just plain tyranny.

Obviously these are bad habits that must be avoided.

David G. Chow
Criminal Defence Lawyer

Thursday, December 3, 2009

Don't Throw Good Money After Bad Police Work

Although the judgment was delivered November 19, 2009 the public is just now beginning to get some media coverage of a recent decision staying the prosecution of two individuals alleged to have taken part in a serious sexual assault of a then 15 year old girl.

For my purposes here, I write not so much about the "striking" largely unexplained 38 month delay which led the court to conclude that the Crown had failed to prosecute the case in a reasonable time; Justice McIntyre has done a thorough job of that already.

I write to express disgust for the apparent lack of ability to read on the part of the Calgary Police Service and also to raise the question of why the Police Act bars professional discipline of a police officer that goes undiscovered for more than 12 months.

So, point #1 - Is the CPS as an organization metaphorically illiterate? I ask this because the official comment by the CPS Staff Sergeant responsible for the sex crimes unit is:

"We have dedicated some resources to identifying what did take place within our court decision...[We're] working with our Crown prosecutors as well to make sure
that whatever did transpire does not occur again."

Seriously? You need to dedicate some resources to try to figure out what happened? Why not just rely on the immense public resources that have already been devoted and memorialized in McIntyre J.'s detailed written reasons. If you need me to come by during morning parade and read it aloud to you, I will:

"On October 30, 2008 the Crown directed Detective Cunningham to get the Emergency Chart and Patient Care Records."

"In a letter dated November 10, 2008, defence counsel requested disclosure of the missing documentation."

"On November 19, 2008, defence counsel reiterated in an e-mail his concerns with the lack of disclosure and gave notice of his intention to apply to the Court for an adjournment and costs unless the disclosure obligations of the Crown were met."

"On December 8, 2008, the Crown asked Detective Cunningham to get the missing Patient Care Records and Emergency Chart."

"On May 22, 2009, the Crown made a third request to Detective Cunningham to get the Patient Care Records and the Emergency Chart. The Crown stated this was a priority."

"On June 3, 2009, the Crown e-mailed Detective Cunningham asking, for the fourth time, for the Emergency Chart and the Patient Care Records."

"On June 4, 2009, Detective Cunningham advised Crown counsel in an e-mail that production of records before trial was not likely. She stated that in the past police have waited 8 months or more for those records and that she would have to obtain the consent [of the complainant]."

"On the same day Detective Cunningham...obtained two consents, one for the Patient Care Records and one for the Emergency Chart. The patient care records were obtained within 3 days."

"On June 15, 2009, the trial was to begin. Crown counsel advised that the trial could not go ahead..."

"On June 16, 2009, Detective Cunningham provided the...consent to the Rockyview General Hospital for the Emergency Chart. On June 19, 2009...the records were ready to be picked up."

Now, in case all of the above leaves you in some sort of confusion, let me spell it out...Detective Cunningham was completely derelict in her Constitutional, statutory and common law duties to obtain and provide relevant evidence for disclosure. Detective Cunningham blew this prosecution. If she had any explanation, the time to give it was during the stay application...not during some pathetic after the fact internal review for CPS to try to figure out what might possibly have gone wrong here.

Detective Cunningham did absolutely nothing to secure vital evidence and as a result the trial could not proceed. When she finally got around to requesting the Patient Care Records...more than 7 months after she was first specifically tasked to do so by the took all of 3 days to get them. Inexplicably, she waited until the day after the trial was adjourned to even ask for the Emergency Chart...another 12 days after getting the consent for same...and that item was also available for pick up within 3 days.

One can only conclude that 3 days appears to be the turnaround time for the Calgary Health personnel and that if CPS has waited 8 months to get such disclosure in the past it may well be because THEY SIMPLY FORGOT TO ASK!!!!

But don't take my word for it...again, the Court has already noted:

"...The PCR records were in existence for almost 5 years, but were only disclosed on June 11, 2009, a few days before the set date of trial. Similarly, the lab report was in existence since October 20, 2004, and disclosed on June 1, 2009."

"The missing reports were not only important for the defence but were essential for the Crown's case."

"...It is difficult to understand why Detective Cunningham acted lackadaisically, especially after the Crown had made four requests and considering that Detective Cunningham was under the impression that it could take eight months to get some of the documents."

The failure of the CPS to simply acknowledge their complete and utter responsibility in this matter is perhaps largely based on fear of civil liability. A fear that is not unreasonable in the circumstances, in my view.

Nobody is perfect and I truly hope that Detective Cunningham can find forgiveness for her mistakes in this matter...but for the CPS to act as though there is some difficulty discerning what went wrong here is offensive to the justice system and to the victim in this case.

Point #2 really is one that I raise for consideration...not one that arises directly on the facts of this case, but because this case demonstrates how it could truly be possible for police misconduct to not be discovered by a victim of that misconduct until numerous years after it occurs.

In order to sue for money (a personal remedy) for police wrongdoing, you have two years from the date that you knew or ought reasonably to have known that you had a valid claim. If the officer covers up the wrongdoing by fraud, your deadline could extend up to 10 years after the fact.

But, in order for the public to have recourse against a wrongdoing police officer (i.e. professional discipline under the Police Act) the complaint must be filed within 12 months of the date of the wrongdoing...and too bad if you couldn't possibly have known that it happened within that time period.

In my view, if any additional resources need to be allocated as a result of this case, it is toward the costs of re-drafting the Police Act and the Police Service Regulation so that officers who commit serious wrong can not avoid accountability for it if they can just keep it hidden for a calendar year.

If we truly want to avoid this situation from occurring again, then we must take steps to ensure that actual people who cause such situations are held to account.

Michael Bates
Calgary Criminal Defence Lawyer

Monday, September 28, 2009

Defending the Defence

Although I'm no stranger to the visceral "how can you represent guilty people?" that often follows my answer to the cocktail-party pleasantry querie "and what do you do for a living?" it still struck me as odd to read famous Canadian lawyer Edward Greenspan's statement in a recent Sun column:

"I have spent a good part of my career defending my career."

The statement is odd really for two reasons - that an individual as successful and accomplished as Mr. Greenspan would still find it necessary to publicly justify what he does, and that the justification is necessary because as a defence lawyer, Mr. Greenspan helps people in times of great need.

Think about it. When is a citizen more vulnerable than when they have been physically nabbed by an armed government agent and taken to a place to be held against their will? Now consider that the hypothetical citizen is likely in this predicament because he or she is impecunious, mentally ill, or addicted to drugs or alcohol (or both).

So why the pervasive public scorn of criminal defence lawyers? How dare we help such people? Particularly, how dare we do so and expect to make a higher hourly wage than what a fast-food restaurant manager makes?

Who is Mr. Greenspan to complain that Legal Aid rates in Ontario have risen 15% in 20 years while inflation has risen nearly 75% in the same time period? How is it unfair that since 1997 Crown prosecutors' wages in Ontario have increased over 100%? Why should we care that legal aid programs across the country are in crisis like Mr. Greenspan says?

Does a doctor treating a patient for lung cancer have to justify to the public why they would be willing to help such a person with their self-inflicted ailment? Do we question the fair remuneration of the doctor for such services? What about a bankruptcy trustee helping out a debtor who has clearly just chosen to default on their financial obligations?

As defence lawyers, we should not have to defend what we do. Our society benefits greatly from our efforts whether it appreciates that fact or not. That said, as defence lawyers we should not hesitate to defend what we do. More of us need to make public statements educating the public on our role in the system, and more importantly, on the significant personal sacrifices that we often make in service of our clients and by extension in service of public order and the principles of a free and democratic society.

As citizens, we should not have to roused from apathetic comas by sensational legal aid boycotts to be reminded that Canadian justice is built on principles of fairness and due process...including the notion of allowing persons accused of crimes to meaningfully defend against the allegations of the State.

As I have commented on previously, we cannot just say that we acknowledge the importance of an effective legal aid system for the proper administration of justice, we must actually be willing to devote sufficient public funds to such a system:

To Mr. Greenspan, I am still young and idealistic. I choose to believe that a day will come when society in general will not only resile from it's aggressive disdain for criminal defence lawyers (as we continue to observe wrongful convictions and police misconduct become regular elements in Canadian criminal justice) but will also recognize the utility of a fair allocation of resources to a strong legal aid program.

While I am bothered by your time spent in defending the defence, I am truly grateful for your efforts and I pledge to follow your example.

Michael Bates
Calgary Criminal Defence Lawyer

Friday, September 18, 2009

The Hypocritical Approach to Investigating and Prosecuting

My comments in this case are based upon the information made available. If the police or the crown have additional or better information -- details that could dissipate the scepticism -- they are obligated share it. Otherwise, a healthy dose of public cynicism is much deserved.

Let’s add two and two together. Healthy dog is outside with its owners as it runs up to another animal with a ball in its mouth. It is kicked and dies moments later. In the words of officer Trevor Daroux: "Facts are facts and nothing's going to change ...”.

Arguably, nothing was ever going to change. Having regard to comments made by police at the outset of this investigation -- including the Chief -- the outcome of this case was preordained.

What makes this case interesting is that it was perpetrated by a nameless off-duty police officer. Cynicism surrounding this case is not so much about the incident as it is with the investigation and non-prosecution. I believe this writer predicted this outcome long ago....

Just for a moment, let me defend the officer by saying, if another dog threatened my dog in an aggressive manner, I would certainly defend my dog. I wouldn’t measure the nicety of my blow. As I said in this Blog’s first article, “A Token Investigation? The Investigation into the Death of Harley the Dog”:

Objectively speaking, if the evidence demonstrates that the officer was defending his own dog from Harley, then he cannot be faulted for doing what he did. Surely the officer could not be expected to measure the nicety of his blow in defence of his own animal?

I maintain this position. If the officer was defending his animal, he cannot be expected to react with all the niceties naturally occurring in the ordinary course of human behavior.

But to say this case rests largely upon the necropsy is, in this writer’s view, a most troubling red herring. Though scientific verification is important to this case, it does not resolve the issue.

At the outset, consider the Crown Prosecutor’s report: ". . . the evidence does not support excessive force and rather that the accused was protecting his dog and or property."

When analyzing this case, it is important for the reader to consider the legislative provisions. Section 445 of the Criminal Code of Canada stipulates: “Everyone who willfully and without lawful excuse (a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose….is guilty of an offence punishable on summary conviction”.

Though the necropsy is certainly a valuable piece of evidence to this case, it is not necessarily determinative. That pathologists were unable to medically determine the precise cause of death is certainly germane to the investigation. But it is not conclusive. In fact, had the necropsy reviewed significant trauma, it would have arguably made absolutely no difference to the officer’s defence. A person who defends him or herself with a single blow to another creature can hardly be said to be acting excessively, UNLESS HE OR SHE OUGHT NOT TO HAVE ADMINISTERED THAT BLOW IN THE FIRST PLACE.

In the initial reports, Harley’s owner, Doug Shields had important information. According to him, he only looked away for a split second as he was walking off the curb to fetch Harley, before he heard his dog yelp. His dog died soon after. According to the news, he did not see or hear anything consistent with aggressive animal behavior. According to witness Tom Short, there was no attack. The ball Harley had in his mouth was just inches away from where he died.

According to veterinarians the officer’s dog was not injured. Not a single tooth mark.

So, lets add-up what the medical science in this case cannot seem to reconcile: A healthy dog, doing what dogs do, approaches another dog. It is kicked and it dies moments later. Regardless of the level of trauma, common sense mathematics suggests that the dog died as a result of being kicked. Notwithstanding the necropsy, death by blunt force trauma is the only reasonable inference available.

Let’s add up a common sense interpretation of this incident. In the split second when Harley is apparently out of sight, nobody other than the officer sees or hears anything consistent with an animal attack. The officer, who fled the scene and later claimed his dog was attacked (a claim many police and crown would characterize as "convenient" had it been an ordinary citizen), was not corroborated by injuries to his own animal.

If the hypocrisy has not become abundantly clear, let us crystallize it now. The Calgary Court Centre is inundated with cases where police charge and crowns prosecute everyday citizens who claim self defence. They do so because other witnesses claim otherwise. As stated by many-a-crown: "let the judge decide".

Now, I am not saying the officer does not have a valid self defence (or defence of others) type claim. I am saying, however, that it appears he avoided prosecution in a case where it is highly unlikely any ordinary citizen would have. By way of final comment, suspects who leave the scene – who in the words of many-a-crown prosecutor, demonstrate post offence conduct consistent with flight – are almost always treated with more skepticism than those who remain.

This leaves yet another wicked, questionable question: Do police get treated differently when they allegedly do wrong? Was this a token investigation? In the words of former defence lawyer, Anthony Mannagh, "it's only a conspiracy if it's not true".

Citizens should remember, they can commence prosecutions privately! If the facts are as Mr. Shield's, Mr. Short and others say, then maybe a private prosecution is the only way there will be any justice for all....

David G. Chow
Calgary Criminal Lawyer

Wednesday, September 16, 2009

Minimum Punishments for Immoral Fraudsters

I am not a supporter of minimum sentences. Though they certainly send a public message that government is “tough on crime”, they effectively abrogate the ability of prosecutors and judges to assess a particular offence in the circumstances and mete out punishment that is appropriate to the crime. I have always been of the view that over punishing people for moral bad luck is improper. I look at cases, such as R. v. Morrissey – an accidental shooting – and I see a situation where the minimum punishment has absolutely no correlation to the moral blameworthiness of the offender.

In Morrissey the offender was drinking alcohol with his best friend and shooting a long rifle at a cabin where the two were staying. Later in the evening, after his friend went to bed, Mr. Morrissey entered the cabin, carrying the rifle and jumped on the bottom bunk of a bunk-bed. In doing so, he accidentally discharged the rifle. His best friend was killed. Despite having no past criminal record and absolutely no intention to injure or kill his friend, Mr. Morrissey was found guilty of criminal negligence causing death with a firearm and was sentenced to the statutory minimum of four years incarceration in a Federal Penitentiary. Suffice it to say, the trial judge did now want to send him to jail for that long in the circumstances of the case.

In the circumstances, it is in my view, difficult to argue with the learned trial judge’s position. Mr. Morrissey’s acts were certainly criminally negligence; they were certainly thoughtless and fraught with all of the trappings of being a human being – a creature capable of making mistakes – but they were hardly intentional or morally reprehensible. Even if Mr. Morrissey lives to a ripe old age, he will have spent a considerable percentage of his life imprisoned in a school for miscreants.

This is why I am always troubled when I see Parliament lobbying for votes in the arena of criminal justice. In my mind, “tough on crime” type rhetoric is just about the easiest platform to attract public confidence, but the rhetoric may not always be based on sound principle. It is easy to legislate minimum penalties, but when otherwise good people, such as Mr. Morrissey are the subject of minimum sanctions, the system is arguably guilty of over punishing. Though the pain and suffering from injury and death at the hands of our fellow human will always exist in a society where human beings live together, we have to remember that not all of it is caused by the immoral scoundrel.

Having said all of this, it is difficult to imagine that immoral fraudsters, such as those perpetrating the much publicized Ponzi schemes are anything other than long term, intentional actors; whose conduct was anything but a split-second accident or momentary lapse of bad judgment. It is also worth noting that many fraudsters are white collar individuals, without criminal records. Some of these fraudsters come from middle to upper class families; have attended ivy-league schools and had good jobs. Most importantly, some of these fraudsters were fortunate enough to have enough social advantages such that they really have no real excuse to pillage the savings of honest hard working folks. It is for all of these reasons that Parliament may actually be on the right track legislating minimum punishments in certain white collar crimes.

With this in mind, however, I am sincerely hopeful that government will enact laws that are aimed at the true immoral fraudster. I fear in an over zealous attempt to attract voters on the eve of an election, the government will craft legislation that will not only capture those involved in serious fraud (such as Ponzi schemes) but may capture a host of other people who are either negligent or perhaps even obtusely reckless in conducting their affairs.

To that end, I am mindful that economic life is becoming ever more complicated. The Tax Act is nothing short of daunting magnum-opus of rules which no ordinary citizen can hope to comprehend. In my view, the sheer number of pages and rules in the law make the law virtually incomprehensible. Even those trained to interpret the law – lawyers and judges – are often at odds and are apt to make errors in their analysis. With our law growing to such magnitude, the risk is that it can be used as a sword by those interested in striking down their enemies; rather than a shield to be used only to protect citizens of this country. Minimum punishments that capture citizens of paper cases in the wrong circumstances can have a devastating effect upon those afflicted.

My point is, though we might agree that minimum punishments for immoral fraudsters are long overdue, as citizens we should actively participate in the dialogue pertaining to the drafting of this legislation. I say we should do this so as not to create a class of citizen who will serve minimum sanctions for engaging Morrissey-esque type behavior. With the vast number of laws creating paper offences -- ranging from the Criminal Code, to the Tax Act, to the Bankruptcy Act and more – I fear that minimum punishments in some cases may not fit the moral blameworthiness of the crime.

By way of final comment, I wonder when citizens will stand up to government by asking them to be accountable in the same way as ordinary citizens. I wonder when citizens will pursue government for fraudulently mismanaging tax payer dollars? Can you say minimum punishment?

David G. Chow
Calgary Criminal Lawyer

Thursday, September 10, 2009

The Ultimate Breach of Public Trust

Though some citizens may not agree with every law enacted by government; and though some citizens (such as this writer) are of the view that our country employs a disgusting number of government officials who justify their salaried existence on the dime of a seemingly ever decreasing private industry – an industry who struggles evermore to carry this country on its shoulders like Atlas carrying the world – there is nevertheless an expectation that all Canadians will obey the law, no matter how ridiculous that law may be. This includes government officials.

So when the government breaks the law, especially those laws which it is responsible for enacting, there is no other way to describe the conduct other than to say it is a most serious and hypocritical breach of public trust. After all, if government is not expected to obey the law, why should Canadians obey it?

In an epoch where broken promises by elected officials are seemingly accepted as the norm, Canada’s Federal Conservatives arguably stretched the bounds of immorality to a whole new level when they apparently broke their own election law in 2008.

On May 3rd, 2007 Bill C-16 received royal assent. It introduced the following amendment to Canada’s Election Act:

“…a general election must be held on the third Monday in October in the fourth calendar year following a previous general election, with the first general election to be held on Monday, October 19, 2009”.

According to the Library of Parliament, Legislative Summaries:

Fixed election dates are part of a general package of measures designed…to make Parliament more accountable and democratic. Part of the reason that this issue has been embraced by many people is that it is seen as a way of counteracting the pervasive cynicism that exists towards politics and politicians. It is also perhaps – like many proposals that involve direct democracy, with which it is often linked – reflective of the American influence on Canadian political institutions and practices.

The argument is that fixed election dates would remove an unfair advantage that the government possesses in being able to decide on the date for an election. It would create a level playing field for all participants in the electoral process, by removing the uncertainty and perceived bias in favour of the governing party. This would facilitate planning for election officials, as well as political parties and candidates. It is also argued that, indirectly, fixed election dates would help relax party discipline and allow freer votes, as the Prime Minister and cabinet would no longer be able to use the threat of an election to keep their caucus in line. At the same time, by ensuring that an election could be held earlier in the event that the government clearly did not have the support of the majority of the House of Commons, the concept of confidence that underlies the parliamentary system of government would be preserved.

Of course, in 2008, the Harper government forced voters to the polls in what lawyer Peter Rosenthal charitably characterized as “the most unfair snap election in Canadian history”.

I say Mr. Rosenthal’s characterization is “charitable” because the adjective “unfair” simply fails to properly convey the reality that what the government did was arguably illegal and in stark contravention to the very purpose underlying the Bill C-16 amendment to Canada’s Election Act.

The government defends these allegations, saying the Governor General calls elections, not the Prime Minister. In my mind, however, this is a distinction without a difference; for it matters not whether the convention is that the Prime Minister can ask the Governor General to dissolve parliament and call an election, or whether the Governor General simply does so on his or her own motion, the bottom line is, somebody in government broke the law.

Arguably, the Prime Minister is a “party” to breaking his own election law because he asked the Governor General to declare an election. He effectively asked the Governor General to break the law. The Governor General is guilty of breaking the law, because she ought to have declined on grounds that the law says she has no authority in the circumstances to accede to the Prime Minister’s request. She ought to have said something along the lines of: “Mr. Harper, I simply can’t do what you ask because Canada’s Election Act says I can’t do it. See you in October 2009”.

In Canada, it is reasonable to expect the highest level of integrity on the part of our government. After all, we entrust government officials to effectively govern. This means managing our money, appointing qualified people to assist in managing our society and properly managing our relations abroad. If the government cannot be entrusted to at the very minimum take the high road with respect to the laws of this land, then how can it be entrusted to manage anything in our society?

When government breaks the law, a most troubling question is left begging: how do we have trust in anything the government does? How do we trust that it spends our money wisely? How do we trust that it appoints judges and other officials on merit? How do we trust its judgment in awarding government contracts? How do we trust the laws it seeks to enact?

Simply stated, when government breaks the law, we can't trust it. Good thing Mr. Harper hasn't passed minimum sentences or abrogated conditional sentence orders for contravening the Elections Act!

David G. Chow
Calgary Criminal Lawyer

Monday, September 7, 2009

Sixty Days Since Harley's Death

It has been two months to the day since Harley the Dog was kicked to death by an off-duty Calgary Police Officer; and surprise surprise still no word -- not a peep -- from police, prosecutors and media responsible for investigating this event. No charges laid, nobody exonerated, no suspect even named. Of course, the justification for not naming “the suspect” is because he has not been charged, but of course, as any literate reader of the news understands, suspects and even witnesses are often named before charges have been laid. Alas I digress….

In 60 days since the date of the incident local authorities simply haven’t said whether they are charging or exonerating. In a world where charges get laid against ordinary citizens within hours (or even minutes) of the event, one might be a little cynical as to why it is taking so long to figure this one out.

But perhaps that is exactly the strategy.

As I said in an article on July 23rd, 2009, “The Code of Silence – Investigation into the Death of Harley the Dog Fading Away”, “[a]s each day passes, and as Harley’s death at the hands (or the boot, as the case may be) of the anonymous boy in blue fades from memory due to the passage of time, it becomes more a certainty that I was right…”; time will ease the reaction to a troubling event, to the extent that we might forget it even happened at all.

The very first post on this discussion board was titled, “A Token Investigation – Investigation into the Death of Harley the Dog”.

This article addressed a number of rather cavalier comments made by police and others with respect to this case, and questioned whether the investigation was just a formality that would lead by design to nothing whatsoever. Of course, the information relative to this case has been sent to an out-of-jurisdiction Prosecutor approximately 1 ½ months ago. To be fair, perhaps the assigned Crown has been away on holidays, after all, it is summer and many lawyers are away.

Regardless, the passage of time reinforces this writer’s cynicism that there will never be any meaningful closure to this case.

Today’s article is to remind us, the case is still out there….. We are waiting…

David G. Chow
Calgary Criminal Defence Lawyer

Sunday, September 6, 2009

In Defence of our System of Justice

I will never say our justice system is perfect. I will never say it succeeds all of the time in successfully prosecuting accused, sentencing offenders or redressing the hurt experienced by victims of crime. In fact, with respect to rectifying a wrong, it is often the case that despite their deepest desire to alleviate the pain and suffering from loss, prosecutors and judges can do nothing other than realize that the criminal law has no ability to turn back the clock. The laws of theoretical physics have no real world application in criminal justice. Suffice it to say, maximum sentences can never reincarnate the dead; they can never erase the memories perpetrated by the conduct of those living or acting outside of the rules of ordinary society.

Despite the imperfections of our criminal law, however, it is my view that our system of justice is predicated upon praiseworthy rules and principles that for the most part, ought to be lauded rather than criticized. Though the system is not perfect, it exists to protect all Canadians -- both law abiding and yes, law breaker. Historically speaking, our system of justice is founded on principles such as those discussed by Thomas Paine in his classic work, Common Sense and the Rights of Man.

Our forefathers understood government is a necessary evil, existing in a limited form only to prevent free society from descending into anarchy. Our founding fathers understood that more government equals less freedom. To curtail State power, Canada's criminal justice system has historically attempted to limit government power. It is for this reason that I defend our criminal justice system against those who think such as Larry Law who commented on a worthy article written in today's Calgary Herald by Jason Van Rassel:

On behalf of all participants in our criminal justice system, I am sure it would not be misplaced for me to extend our sympathies to all victim's of crime and their families and friends.

In a rather vitriolic tone, Larry Law wrote the following:

Until we resolve the incompetence, corruptness and dishonesty within our Canadian Justice System, which is run by the lawyers and judges, without accountability, our society will witness an increasing amount of injustice to the victims. I speak to all victims of criminal and civil crimes, which endure the incompetence, dishonesty and corruption of our lawyers and judges. I can state unequivocally, that if Canadians are forced to endure this type of mediocre justice over too long a period of time - expect vigilantism to take care of the problem, which would be a sad state of affairs for our Canadian society. The media has a influential roll in not allowing vigilantism to run our justice system, if they do the research required to expose the criminals in our society.

I take great exception to the blanket label referencing lawyers and judges as "incompetent", "corrupt" and "dishonest". I take great exception to the blanket claim that Canadians must endure mediocre justice.

With this, I do not claim that our criminal justice system has never been mediocre, or less. After all, it is a human system, and human beings by nature are perfectly capable of being mediocre or worse. But human beings are capable of being stellar, and that is what many judges and lawyers aspire to be.

What I glean from Larry Law, and others like him, is that whenever an accused is found "not guilty" it is because lawyers and judges are either incompetent, dishonest or corrupt. What I glean from him is that lawyers and judges are essentially inherently evil folk, who wish our society to be plagued by miscreants and near-do-wells.

This is simply not true.

When I look upon most of the judges and lawyers operating within our system of justice, I see people who are concerned about our civilization - who are concerned about victims of crime -- who want our streets to be safe -- who want the guilty to be punished and the innocent to be free. I look at many of these people, and I see great courage applying praiseworthy principles, with such valour that they understand the axioms underlying our system of justice mean more to our way of life as Canadians than simply detaining, convicting, locking-up and throwing away the key just because some lobbyist or law enforcement official says so. They understand that accusing a person is not synonymous with the person actually doing the misdeed. They understand that people have been wrongly convicted in this country. They understand that Canadian justice has locked up innocent men and women for things they did not do. They understand that punishment must be reasonable and fair -- and most of all, must fit the crime. When punishing, they understand that criminal justice cannot turn back the clock and must acknowledge the offender is also a human being, not an animal.

With this in mind, I say it takes great courage to be truly just.

Think about it. To appease the irrational Larry Law, how easy would it be for every prosecutor to pursue every accused, no matter how weak the case and every time to seek the highest sentence available. How is that fair, reasonable or just? To appease the irrational Larry Law, how easy would it be for every judge to convict every accused and sentence every accused to the highest sentence available. In the minds of the Larry Law's of the world, such persons would be competent, honest and incorrupt. But is that really what they are? In my mind it is the opposite. Prosecutors and jurists that convict for the sake of conviction are the antithesis of what it means to be just.
This is why I say, in criminal justice, it takes greater courage and conviction to be truly just than to be unreasonably harsh.

With respect to criminal defence lawyers, the Larry Laws of the world are part of a class of citizen that would ask every honest, practicing defence lawyer, "how do you defend people like that"? To this I answer, the competent, honest and incorrupt defence lawyer does so because "...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".

When we talk about victims, if our criminal justice system was to operate in the manner desired by Larry Law, it would risk creating a new class of victim -- and in my mind, that is precisely what our system of justice must assiduously work to prevent.

David G. Chow
Calgary Criminal Defence Lawyer

Friday, September 4, 2009

Taking the High Road

It is oftentimes difficult to appreciate how special our criminal justice system truly is – especially in light of a number of recent incidents in Calgary. From reading daily news reports about shootings, home invasions, sexual assaults and murder it is admittedly difficult to look beyond immediate emotions of fear and disgust. Each and every day, police, crown, defence lawyers, judges and yes, even many victims of crime look to ensure justice is done. In so doing, it takes incredibly special people to apply the rule of law rather than the rule of emotion.

Some are more special than others.

With this, I want to take a moment to acknowledge Calgary Staff Sgt. Joel Mathews, who was one of a number of police participating in the investigation of an alleged sexual assault in Calgary’s downtown core.

Rather than being goaded into making some kind of overly dramatic remark in response to a troubling incident – such as commenting about how Calgary’s downtown is unsafe, thus requiring more public funding for police officers – Sgt. Mathews does as admirable job of accurately characterizing our City:

"I've been in the downtown for 2 1/2 years and something of this nature happens very rarely”, he said.

His comment was not lengthy, but his words were true.

In a City with approximately one-million people living in close proximity to each other, by sheer force of numbers alone intolerable things will happen. That is reality. As troubled as we may be about this incident, we can take solace in the fact that the police properly responded, made an arrest and then their representative – an entrusted public officer – fairly commented in the media about the quality of our downtown core. Responding to a terrible event, Sgt. Mathews took the rational approach. With his comments, he alleviated irrational fears that Calgary’s inner City is a cauldron of danger by conveying the truth: incidents such as this happen “very rarely”.

Thank you for reminding us that despite the multitude of crime stories that sell the minds of Canadians, the reality is, Calgarians live in a safe place.

David G. Chow
Calgary Criminal Defence Lawyer

Who is Throwing Mud in Your Eye?

"I don't want it to appear as though we're picking on Mr. Tran", said Sgt. Gord Eriksson to a reporter in August 2009. "The fact he is constantly arrested and re-arrested is his doing, not ours."

This comment was delivered in response to yet another allegation of breaching release conditions by alleged gangster, Jackie Tran. Of course, what the informed citizen knows is that Mr. Tran was properly exonerated of those breaches, thus begging the question whether the local pariah was actually responsible for his own doing.

Adding to the public smear campaign in Tran’s most recent court skirmish, Canada Boarder Services has now apparently decided to stoop to the ridiculous in an effort to convince the court and the public that Tran is a danger to the community. That is the only way to characterize the allegation by Canada Border Services Officer Pete Strathakos that Tran is a danger because he was cited for a bylaw infraction for “splashing ducks” whilst rafting down the Bow River.

Now I really like ducks – as I do all animals – but you have got to be kidding!

Sadly, from reading various commentaries, stooping to the ridiculous has actually had an impact upon some Canadians, including Calgary Sun columnist Rick Bell.

Now, just for a moment, let me speak seriously on this issue. I am not saying Tran should not be deported. After all, he has a 2004 conviction for trafficking drugs, for which I understand he served a penitentiary sentence. Fairly interpreting the Canadian rules supports the conclusion that he is a candidate for deportation. But in our society, we operate by the rule of law. We allow people to make their case so that a fair and meaningful decision can be made. To do otherwise is to advocate for an arbitrary system of justice, premised upon the irrational rather than a reasonable application of rules that exist to protect the interests of all Canadians; not just alleged bad guys.

What makes our civilization special is the manner in which we enforce our criminal law. For it is easy to listen to overly dramatic remarks by public officials, such as law enforcement officers, and to conclude that the person they say is the bad guy is indeed a bad guy. But as I have said over and over and over again, people in this country have been wrongly convicted. Wrongly convicted on allegations driven by over zealous law enforcement! With this in mind, I suspect some people have even been wrongly deported.

True justice demands that all reasonable steps are taken to ensure the wrong outcome does not happen.

In Mr. Tran’s case, I grow skeptical that anybody other than Mr. Tran, Mr. Sharma and those applying the law have any real interest in seeing that justice is truly done. Admittedly, I am cynical person. But when I read comments from law enforcement officers such as Sgt. Eriksson; and when I read submissions by hearing officers, such as Mr. Strathakos that Tran is a danger because he splashed a duck while floating down the river, I grow more convinced that these groups will stoop to all levels to achieve an agenda.

In Mr. Tran’s case, Lady Justice demands more of her angels than merely alleging the devil threw mud in someone’s eye.

David G. Chow
Calgary Criminal Lawyer

Wednesday, September 2, 2009

The Hannibal Lecter Type Sideshow A Dangerous Slippery Slope

Though I have never been targeted in open court by an unruly client for being ill-prepared, I have been in court on numerous occasions where accused and lawyers have been silenced by the judge, the accused and each other. Oftentimes the silencing is justified and sometimes it is not.

The reality of our criminal justice system is that it is administered by human beings – individuals with varying degrees of patience, intellectual aptitude and who on occasion have a bad day. The other reality of our justice system is that accused persons are sometimes railroaded into accepting certain outcomes by persons who have little or no true vested interest in their struggle.

Defence lawyers (especially the relatively beleaguered bunch in Calgary), crown counsel and judges sometimes marginalize the accused in effort to deal with cumbersome case loads. In fact, there may be any number of reasons an accused is marginalized. Though I state the obvious, some accused persons have serious psychological problems. Some are emotionally compromised, others have cognitive deficits, while others are actually reasonably intelligent individuals who are being railroaded by under prepared defence lawyers, cynical prosecutors and/or judge’s who are acting less than judicious.

For justice to be done, it must be seen to be done. It is for this reason that I have serious difficulties about a Canton Municipal Court judge ordering an accused’s mouth duct-taped shut in open court in response to persistent claims by the accused that his counsel was ill-prepared.

Now to be fair, I am speaking on the basis of what appears to be a highly edited and typically informationally deficient news article. I assume the accused, Harry Brown, was told to be quiet. I assume he was told that he would have an opportunity to address the court. I assume the judge may have even given him a stern warning and perhaps raised his voice in response to the constant interruptions by the accused. Perhaps Mr. Brown even had a history – not unlike many accused in Calgary – of being openly disrespectful in court.

Having said all of this, this is criminal “justice”. To adopt a rather pithy age old adage: “if you can’t take the heat, get out of the kitchen”. Just as police officers are expected to have a high degree of tolerance for the persons they encounter as part of their job, crown are expected to be quasi Ministers of Justice and as such, highly ethical in all facets of their job, and just as the job of the defence lawyer is to do his or her level best acting for the accused, judge’s are expected to be judicious. Judges must not only be judicious in their decision making but must convey the appearance of true justice all times. My opinion is, having an armed sheriff duct tape a person's mouth in open court does not approach this high standard.

The question is, knowing that the justice system is infected with people from all walks of life, how is it judicious to make a Hannibal Lecter type sideshow by ordering an accused’s mouth duct taped in open court? What’s next, install a steel mask and roll him in on a dolly?

Though many readers may have a brief chuckle over this article, the botom line is, this type of judicial conduct is unacceptable and should never be tolerated by citizens existing under the rule of law.

David G. Chow
Criminal Defence Lawyer

Wednesday, August 26, 2009

Police Spokespersons Have A Responsibility to Properly Inform Public Debate

As trusted public servants police certainly have a duty to communicate with the public through the media. But in so doing, they also have a responsibility to communicate honestly, professionally, with integrity and ought not to improperly use the media as a mechanism for conducting trials or hearings in the court of public opinion. With this in mind, it is necessary to comment on irresponsible and arguably contemptuous communications by Calgary Police Staff Sgt. Gord Eriksson.

In the above captioned article, Sgt. Eriksson is quoted as saying:

"I don't want it to appear as though we're picking on Mr. Tran".
"The fact he is constantly arrested and re-arrested is his doing, not ours."

Suffice it to say, this is a misleading statement. According to various adjudicator rulings, previous arrests of Mr. Tran were not "his doing".

In March 2009, Mr. Tran was released for allegedly breaching a bail condition requiring him to live with his mother:

According to the Immigration Review Board (IRB), the fact that Tran's mother was required by necessity to move to a different location was not his fault. In the words of the IRB adjudicator, Geoff Rempell:

"Your mother was put in a difficult position because Child Protective Services was not willing to allow your sister to remain in the same residence as you were living. In my view, your mother's decision should not impact you".

In November 2008 Tran was breached on allegations that he was out past his curfew.

In this case police alleged they saw Mr. Tran out of his residence after curfew, but after hearing evidence from a person who testified it was him and not Tran, and after considering the police officer did not observe the prominent scar on the forehead of the person alleged to be Tran, IRB adjudicator Marc Tessler concluded it was a case of mistaken identity.

Therefore, Sgt. Eriksson was wrong to suggest the arrests were Mr. Tran's doing.

All of this information relating to Mr. Tran's previous IRB hearings was readily available and probably known by Sgt. Eriksson before he made the rather block-headed comment to the media on August 24th, 2009. Given Mr. Tran has twice been exonerated of police allegations, one might actually think there is information to support the proposition that the police are indeed picking on him.

I sometimes wonder why spokespersons for the police (such as Sgt. Eriksson) fail to take a more professional approach to addressing the media. For example, why not say, "Mr. Tran has been arrested for breaching his release conditions. We need to find out why this happened". After all, practically speaking, isn't it quite possible that Mr. Tran has a reasonable explanation? I mean, ordinary people, going about their everyday affairs miss work, school and appointments, and not all of them do so because they are lazy or without reasonable excuse. Maybe Mr. Tran was in a car accident? Maybe the electricity to his home went out and his alarm clock did not ring? Maybe he became violently ill? Maybe he thought the meeting was on Tuesday, not Monday? With this in mind, it is important to remember that breaching bail conditions is a mens rea offence. That is to say, it requires intentionality.

Now I am not saying Mr. Tran was not in breach. I really don't know whether he was or not. What I am saying is that citizens need to be more objective assessing information presented by the media. Additionally, citizens need to hold public officials (such as Sgt. Eriksson ) accountable for improperly conveying information informing public debate. Staff Sgt. Eriksson is more than an opinionated blogger voicing his thoughts on websites such as this. He is a public servant, whose very status in society carries considerable weight in the mind of ordinary citizens. As such, his responsibility demands more thoughtful comments than those delivered in this case.

David G. Chow
Calgary Criminal Lawyer

Tuesday, August 25, 2009

It Takes Great Courage to be Truly Principled

From reading today's newspaper I see that Keegan Troy Spearchief was granted judicial interim release on August 24th, 2009.

Since this case will likely instigate some kind of public outcry, such as the vicious attack on our system of justice by blogger's such as this:

I want to take a few moments to discuss bail.

In Canada, our Constitutional protections mandate a presumption in favour of judicial interim release. The underpinnings of this principle flow from the basic legal tenet that all persons are presumed innocent until proven guilty. This means that every person who is "charged" with an offence is presumed to be innocent of that charge. As citizens become overly excited or offended about accused people being released from custody, they should remember that those people are innocent in the eyes of the law at the time of their bail hearing. This includes Mr. Spearchief.

Now, just for a moment, imagine the accused is truly innocent. Imagine, the person did not commit the crimes alleged. Now imagine that innocent person having to spend days, months or even years in jail awaiting his or her opportunity to demonstrate that innocence. Now imagine that person is you.

Believe it or not, truly innocent people spend time in jail on charges they did not commit. Obvious examples include David Milgaard, Thomas Sophonow, Herald Druken et al. Those are just some high profile examples. Those charged with less serious offences that do not attract the public eye are scattered across this country. And yes, people with lengthy criminal records can even be truly innocent.

People are often convicted in the news media long before their case ever goes to trial. Mr. Spearchief's High Risk Offender designation increases his likelihood of conviction in the court of public opinion. Though there is not been reported a single piece of real evidence proving Ryan Jensen actually murdered and mutilated Jasmine Fiore, he has been labelled "killer" and "murderer" in numerous newscasts. In the eyes of many citizens sitting on the court of public opinion, both Mr. Spearchief and Mr. Jensen would have been convicted, sentenced and jailed (or worse) before a modicum of evidence was ever proven in a court of justice? Alas, I digress...

Returning to the case of Spearchief, I glean from news reports that he has been charged with a relatively minor index offence (trespassing) and at least one relatively minor and technical breach. I also understand that he was taken into custody on July 27th, 2009 - meaning that he has spent just short of two months behind bars on all things considered minor allegations. Now, aside from the fact that he is innocent until proven guilty, we also need to question whether spending time in jail, awaiting trial, would result in him being over-sentenced even if he was convicted of all of these relatively minor infractions. Remember, pre-trial detention is not punishment.

More importantly, however, we also need to consider whether Mr. Spearchief actually breached the terms of his initial bail. As I understand, he was released by police on the trespass allegations, only to be gated on allegations that he breached bail by not looking for work. I understand that his defence lawyer presented evidence at the bail hearing that he was looking for work. Meaning, he did not breach!

With this in mind, the Provincial Court Judge may not have had a real basis to revoke Mr. Spearchief's original bail which was granted by a justice of the peace. To this end, a bail judge must follow the rules set out in s. 524 of the Criminal Code. This includes a rule that the judge must have "reasonable grounds" to believe a condition of the original bail order was breached in order to justify revoking the orginal bail order.

In any event, considering the nature of the allegations, the extent of the punishment available if convicted and the fact that he may not have breached in the manner alleged, it is appears legally impermissible to quarrel with the bail judge's decision in this case.

As law abiding citizens, it is easy to play armchair judge. It is easy to say, convict'em all, detain'em all, punish them all; but to be a true crusader for the principles engrafted in our justice system takes real courage.

Does anybody really think judge's who release accused persons do so easily? Judges live in this community too! They are law abiding, principled folks. A great many judges grant bail, acquit and sentence on the basis of the courageous application of the rule of law. Instead of being labelled Judas in the court of public opinion, they should be rewarded for their staunch adherence to the principles that shield all Canadians from the horrific prospects of wrongful conviction and persecution by the State.

David G. Chow
Calgary Criminal Lawyer

Saturday, August 22, 2009

Alberta Court of Appeal Brings Temporary Closure to the DRA Debate

A digital recording ammeter (DRA) is a device installed on the electrical line of a home for the purpose of measuring and recording the target residence’s electrical usage. DRAs are often used to investigate residences suspected to contain marijuana grow operations.

The reason a DRA is an effective tool for these types of investigations is because marijuana grow operations typically utilize higher than average electricity to power lights and fans necessary to facilitate plant growth. For example, during the “seeding phase” of a marijuana grow (usually lasting up to four weeks), it is very important to maintain high humidity levels and medium to high light intensity. To quicken the seeding phase, a 12 hour lighting cycle is generally used to induce sexing. A DRA will not only measure the level of power consumption, but can supply information about power consumption pattern within the residence. Therefore, it can determine whether power is consumed in 12 or 18 hour cycles consistent with the presence of a plant grow operation. Cycles for marijuana grows (as with other perfectly legal plant grown operatoins) are designed to mimic a 24 hour day.

In the world of criminal justice, there has been much debate as to whether the use of DRAs constitutes a search pursuant to section 8 of the Canadian Charter of Rights and Freedoms. In Alberta, the Court of Appeal’s decision in R. v. Gomboc 2009 ABCA 276 may, at least temporarily, provide some closure to the issue.

Writing for the majority, Mr. Justice Peter Martin held that the use of digital recording ammeters (DRAs) constitutes a search pursuant to section 8 of the Charter. At the heart of the debate was whether persons have a reasonable expectation of privacy in this kind of information. After acknowledging various jurisprudence about the sanctity of the home, Martin J.A. aptly stated at paragraphs 21 and 22:

In my opinion, the expectation of privacy extends beyond simply the information as to the timing and the amount of electricity used. It is also objectively reasonable to expect that the utility would not be co-opted by the police to gather additional information of interest only to the police, without judicial authorization. Indeed, I expect that the reasonable, informed citizen would be gravely concerned, and would object to the state being allowed to use a utility to spy on a homeowner in this way.

It is useful to recall that the appellant’s relationship with the utility provider was born of modern necessity; it was not feasible for him to generate his own electricity or to go without. So the appellant agreed to a standard electrical service arrangement with Enmax, whereby the latter would supply electricity to the his home in exchange for payment for that service. In this way, Enmax received access to the appellant’s property to install the necessary equipment to supply his house with electricity, and continued to have restricted access to check and maintain the equipment. It is reasonable to infer that access would not otherwise have been allowed.

In arriving at his decision, Martin recognized, a pair of realities: (1) It is a basic need for Canadian citizens to use electricity and (2) in our modern world surveillance encompasses more than just the cliché stakeout. Today, surveillance encapsulates a variety of techniques, some which involve gathering information about citizens within non-private domains, and other techniques which are potentially more intrusive. Granted, DRA can supply investigators with information suggestive of the presence of a plant grow operation (which by the way, is not always an illegal marijuana grow); but as Martin J.A. recognized, it can also provide insight into biographical information about the occupants of a home. Given that people must contract by necessity with their local energy provider to get power, they should not by sheer modern necessity be required to consent to a loss of the right to privacy within their own home sanctuary.

Whatever the case, closure on the DRA issue is sure to be relatively short-lived; for of the three member panel, Mr. Justice Cliff O’Brien delivered a strong, well reasoned and interesting dissent. For this reason, it is highly likely the issue will ultimately be decided by what has in recent years been a heavily divided, and somewhat inconsistent, Supreme Court of Canada.

In the meantime, police should obtain prior judicial authorization (a search warrant) if they want to use DRAs. Since the prior judicial authorization process is theoretically the mechanism by which the privacy interests of all Canadians is protected from unjustified State intrusion, it is hard for me to imagine that obtaining a warrant before intruding on a citizen's home sanctuary is anything less than proper.

David G. Chow
Calgary Criminal Defence Lawyer

Thursday, August 20, 2009

More Wicked, Questionable Questions

Self preservation is a natural human inclination. So when a police officer covers up misconduct by fabricating reports justifying a decision to use force, perhaps we should not be surprised. However, police are highly trusted public servants. They are the people citizens rely upon for protection. They are the symbol of morality and justice. So when police fabricate an incident to protect their own self interest, there must be consequences. A Dziekanski-esque cover-up is never acceptable.

I have defended and prosecuted cases where video surveillance did not corroborate allegations by police that the accused was resisting or being assaultive. I have even prosecuted cases where video imagery was tampered with. Though these are rare occurrences, they do exist.

Having said this, LET ME BE PATENTLY CLEAR reiterating a point that I have made time and time again: THE VAST MAJORITY OF POLICE OFFICERS ARE HONEST, HARD WORKING FOLKS, who exercise a proper degree of discretion most of the time and possess such moral fortitude that they own up to mistakes, even if it means supplying information or evidence harming the prosecutions case. So when I criticize police in articles such as this, I am really targeting a small percentage of the police force. It is unfortunate that all of the fine officers potentially get painted with a single brush, but that is why I want the one or two readers of this site not to take things out of context. The reality is, every group or population has the preverbal bad apple.

In what appears to be a consistent theme flowing from the use of Tasers, police have come under fire for yet another incident where the justification for using the weapon has been disconfirmed by video surveillance.

According to Officer Erik Hansen’s report, the accused (Pawlowski) stepped back and took a threatening stance while he was being fingerprinted. According to Hansen’s report

“Twice he (Pawloski) pulled his hand away and I cautioned him to keep his fingers flat on the scanner. The third time he pulled back his hand, stepped back, focused on me and took a stance as if to attack me. I then grabbed Pawlowski around his neck and shoulders and drove him to the floor.”
Really?? Video obtained by the Associated Press apparently shows otherwise.

The video, which has no sound, shows Pawlowski slightly raising his right arm when Hansen roughly drives him to the floor and two other officers shoot Pawlowski with stun guns. Police then charged Pawlowski with interfering with an officer. Also, the video shows that Pawlowski had no time to focus his attention on the officer before being attacked and tasered.

Being assaulted by police is serious. Being criminally charged by police for something one did not do is even more serious. But being falsely charged so the offending officer can deflect blame due to his or her assaultive behaviour? In this writer’s view, that is one of the most heinous crimes against the public interest imaginable!

It is not enough to merely beat up or taser a citizen (or both), the citizen must be saddled with the risk of being convicted for something he or she did not do? Frightening….

For many citizens, a criminal charge is a catastrophic event. The citizen must now confront the possibility that he or she will lose a job or be restricted in travel. They are painted with the stigma of being “an accused” and face imminent risk of conviction.

Justice is far from perfect. Believe it or not, people are wrongly convicted. We like to believe otherwise because that belief allows us to sleep soundly at night, but the belief is naivety. Justice is a human system. There is no consistent application of reasonable doubt, and even if there was, evidence is often the presented product of witnesses – some who are better than others. Police are professional witnesses.

Better, however, does not necessarily mean more reliable or more credible. By virtue of their position alone, police officers often receive a tremendous amount of deference by courts. When they testify, the default position is that it is true. When they make a notation or record information as part of their investigation, the default position is that the information is reliable.

When police fabricate – as they apparently did in Mr. Pawloski’s case and as Millington and others did in Dziekanski’s case – the risk to the integrity of our system of justice is catastrophic.

The question is, how many false allegations have been perpetrated by self interested officers that were never uncovered because there was no video? How many citizens have been wrongly convicted in these circumstances?

These are yet more wicked, questionable little questions.

David G. Chow
Calgary Criminal Lawyer

Tuesday, August 18, 2009

Code of Silence -- A One Way Application

Question: Why does law enforcement seem to have no difficulty naming suspects and accused persons who are not police officers; but when it comes to police, the offending officer's name is a secret?

In a recent article titled "Cop Charged with Assault", aside from a being a Calgary Police Officer, his or her identity remains anonymous.

Though police spokespersons and other government officials are prepared to publically name gang members and other accused, and may even be prepared to reveal damning allegations which undoubtedly turn the public (along with any potential jury) against an accused,

(see for example:

there seems to be a general unwillingness to name suspect or accused police or to openly reveal the nature of the case against them.

We still don't know the identity of the police officer who kicked and killed Harley the Dog. I have suggested that the investigation into the death of Harley would eventually slip from the minds of the once outraged public, and indeed that appears to be the case.

See: "A Flicker of Life on the Case of Harley the Dog


"A Token Investigation - The Investigation into the Death of Harley the Dog"

The public should become ever more concerned about the code of silence relative to alleged police misconduct. At the very least, there ought to be some consistency in its application.

David G. Chow
Calgary Criminal Lawyer

Anthropocentric Justification for Murder

Perhaps it should come as no surprise in our anthropocentric world that Alberta Fish and Wildlife has turned to mass murder in effort to control bear incursions on the Conklin dump. After all, we are human beings. We have decided to fan out like viruses, creating urban sprawls that dramatically impinge upon the living space of other creatures of this earth. It doesn’t matter whether we kill majestic sea creatures to satisfy our appetite for sushi and other exotic fish; and it doesn’t matter that we constantly build condominium projects, roads and other human infrastructure in nature’s paradise. If the inhabitants of those worlds cross our path (and heaven forbid if they annoy or inconvenience us) – kill em all!

In the last week, Alberta Fish and Wildlife has shot and killed 12 bears for being what they are – animals.

No longer afraid of humans, black bears are visiting the Conklin dump to scavenge for a meal. To satisfy their insatiable need to survive, the bears have decided to do what comes naturally – find easily accessible food. It may even be that their natural food is not as readily available because of their ever decreasing habitat. Whatever the case, we shoot them for no other reason other than doing what animals do. It’s not even like they attacked any humans or other animals, like the rogue Grizzly bears did in the case of Ms. Killam.

Even though officials captured a pair of Grizzlys, Ms. Killam continues to live in trepidation.

"What's stopping other bears from coming down?”, puzzles Ms. Killam. “How do I know there's not another bear out there?"

Well, I can pretty much assure Ms. Killam and every other human, there are other bears out there!

Newsflash, we share this Hillbilly’s Paradise with other animals.

Sometimes our interests collide. If you swim in the ocean, then you should expect big fish to be swimming nearby too! If you live on this earth, especially close to wildlife habitats, you should expect other animals to exist nearby too!

Newsflash, animals do not exist with the same anthropocentric ideals that human beings do. Newsflash, they need to eat to survive. They can't attend the local grocer to purchase a meal. So, they might eat garbage or even other ready prepared meals, like donkeys.

The coyote’s that roam near my house undoubtedly hunt and eatdogs and cats. They would even eat minen if was an easy meal. I accept this as a natural consequence of residing near a ravine. That is why I am watchful and careful with my pets.

I am not saying I want bears in my backyard or that I am prepared to give up my pet as easy dinner. I am saying that I accept the laws of nature and the laws of man do not always coincide. Accordingly, to protect my interests I keep watch on my animals -- ever aware that other wildlife lives nearby. I accept inherent natural dangers with this co-existence. To this end, I think Sustainable Resource Development spokesperson Dave Ealey is absolutely correct:

"People should be alert when living, working and playing in bear country."

I also think we need to accept the natural consequences of operating a dump near bear country. I do not agree that killing the wildlife is the answer. It’s not like the bear population has grown out of control, like disease infested rodents. In fact, the issue is not disease at all. The issue is fear and/or inconvenience.

Interestingly, we don’t slaughter Calgary’s Homeless population for picking through garbage in this City’s back alleys. Aside from the fact that animals are often bigger, stronger and have sharper teeth than humans, I fail to see that there is a major distinction. So, perhaps we need to rethink loading our guns to blast the life out of creatures that are doing what comes natural to them. Perhaps we should rethink murdering animals because they are trying to survive in an ever more anthropentric world.

By the way, I really do like donkeys.

David G. Chow
Calgary Criminal Defence Lawyer

Sunday, August 16, 2009

Setting the Record Straight - The Marginalization of Calgary Criminal Defence "Firms"

I want to take a moment to deflect the quasi-marginalization of defence law firms by lawyer David Andrews in a Calgary Herald Article titled: “Dreams of Setting Up a Law Firm”

I do so because I don’t want clients of any other defence lawyer in Calgary to be left with the impression lawyers within firms, or associations or even those who operate independently under their own shingle are not able to provide excellent representation due to their business designation. Despite the category under which they practice, most defence lawyers do make efforts to better themselves (and the interests of clients) by maintaining close knit relationships with other lawyers both within their own practice and outside of it.

At the outset, the reader should understand that in criminal law, some “firms” (to use the language loosely) are labeled “an independent association of law practitioners”. For example, Fagan & Chow, Roulston Snukal and Dunn McKay are independent associations. That they are independent associations, however does mean the lawyers within those associations do not often work as a team or collaborate to prepare individual files with the best interests of clients in mind. Other lawyer groups, such as Ruttan Bates and Dartnell Lutz are true law partnerships, in the sense that they share business assets and profits. Independent Associations may or may not do this. Again, lawyers within both these groups often collaborate or work as a team to deal with specific legal issues. Other lawyers operate as single, independent entities; either leasing space or sharing space within an office environment. Again, however, many of these lawyers collaborate with other lawyers to keep abreast of changing developments in the law and prepare cases.

Taken literally, Andrew’s comments in the Calgary Herald may leave the reader of that article with the impression that any organization of criminal lawyers not operating inline with his firm model are not a true criminal law firm. For as he says, “In Calgary, there is no true criminal law firm”. This is simply incorrect. To this end, let’s analyze his comments:

“Our clients pay us. They hire us to go into court and fight for them. Often we're aggressive, and setting aside that and working toward a common goal is a challenge when we're all gunslingers by nature. Our personalities are that of the gunslinger. To set that aside and focus on working as a team is always a challenge, but everyone's so committed to the idea."

Now, I want to be fair in my interpretation. I take Andrews to mean that clients pay his group – meaning Stewart, Andrews et al, to do work’; and getting all the lawyers together for the purpose of advancing the “crimimm” concept required commitment to the idea. Doubtless, this was probably a challenge. Mr. Andrews goes on to say:

"In Calgary, there is no true criminal law firm. The law firms in criminal law in Calgary tend to be a loose association of lawyers who share space as opposed to being a true firm. So if you want to be a criminal lawyer in Calgary, you just have to hang out your shingle (and) if you're lucky somebody will rent you some space, start from zero. Try to find a client and hopefully that client will think you did a good job for him and refer people to you. That's how you build a practice in Calgary."

Now Andrews is wrong to say there are no “true” criminal law firms in Calgary. There are in fact many true criminal law firms in this city. The main difference between the “firms” is how they decide to conduct and designate their business. Some, such as Dartnell Lutz and Ruttan Bates, may share assets, expenses, legal expertise and split profits. Some are “independent associations of law practitioners” – and as such, likely do not share assets or profits but may share expenses. Regardless, whether the firm is a partnership or an independent association it still works to provide the best service to clients. Many independent associations are committed to sharing ideas, collaborating on trial strategy, assisting with in-court agencies and distributing research. Many firms are organized because they are like minded in these goals. Fagan & Chow has always been committed to this approach; as has a great many other independent associations, such as Dunn McKay, Virk Saini and Roulston Snukal. Many solely independent practitioners, such as Michael Kiss, have forged close relationships with other independent associations and law partnerships. The point is, even though many criminal lawyers operate independently or pursuant to a different business model, they do not necessarily operate alone. Certainly most lawyers work to provide top level service to their clients.

"Calgary has a tremendous criminal defence bar”, says Andrews. “They're supportive. They're friendly. And they're excellent lawyers. But I always had a belief that something we could do to distinguish ourselves from everyone else and really provide a good service to our clients would be to actually work as a firm."

Mr. Andrews is correct: Calgary has an exceptional criminal defence bar. But when he says, it is his belief that his group is distinguishable from everyone else in terms of being able to provide good service to clients because they work as "a firm", is to marginalize all of the firms operating as part of Calgary’s criminal defence bar. To say he is model is the only “true firm” and that it provides really good service to clients, is essentially to say that untrue firms (as he designates them) cannot provide the same level of service.

Mr. Andrews also seems to be saying that his group can provide better service because it works together. He says his group has put aside the “gunslinger” mentality to bridge the gap between independent lawyer and team. Surely he doesn’t mean that the other lawyers within criminal law firms do not work together? Lawyer Karen Molle, for example, in the Dunn McKay firm provides invaluable advice and experience to every member in that shop. In fact, Ms. Molle has provided erudite advice to many lawyers outside of that firm; ironically including Mr. Stewart and Mr. Andrews. If Andrews means lawyers don’t share money, he might be right. But if he means they don’t work together to best service clients, he is wrong.

Interestingly, if Mr. Andrews’ concept is that all clients in his firm are collectively thrown into a single cauldron of clients, then each individual client better understand that his or her lawyer of choice may not be the lawyer he or she gets. The client who pays good money to hire Charlie Stewart, Q.C. but gets somebody else may be in for a big surprise. In my shop, when clients want David Chow, they get David Chow.

I commend the “immicrim” or “crimimm” idea. I think there is a close connection between criminal law and immigration law. I applaud Mr. Andrews for his efforts in advertising the concept. Undoubtedly, the close linkage between the two disciplines creates a natural fit. The slogan “crimimm” is not too shabby either.

Where I have a problem is with the inaccurate and arguably insulting statement that there are no true criminal law firms in Calgary. I’m sure the other aforementioned firms would be surprised to hear they are not a “true criminal law firm”. Fagan & Chow practices exclusively criminal law. As does Roulston Snukal, Dunn McKay and Virk Saini. Furthermore, I take issue with the insinuation that the other firms in the criminal bar do not operate with a team concept in mind; for clearly many do. I take exception to the insinuation that other firms may not supply the best service to clients because they are not true firms. Again, I am sure many criminal defence lawyers would agree.

Perhaps Mr. Andrews and his group are structuring their firm differently. Independent Associations are structured differently than true partnerships. But just because it is structured differently does not necessarily mean it is structured better. And it is inappropriate for Mr. Andrews to imply it is so with respect to his concept – especially since his highly advertised concept has yet to even open its doors for business.

Advertising business is smart business, but doing so at the expense of competitors and colleagues? I don't think Andrews had bad intentions with what he said, but the communication deserves a response. That is what I have done here....

David G. Chow
Criminal Defence Lawyer

Friday, August 14, 2009

Credit Where Credit Is Due? Lobby For More Police - Truth or Ruse?

I live in a quiet and peaceful suburban Calgary community. Since a relative large number of police actually reside in my neighborhood, I know they are present. Even so, I have to admit, I wouldn’t mind seeing a marked presence in the area on a more regular basis. I see absolutely no downside to members of our local constabulary politely interacting with the community, with the aim of making their presence known in an effort to deter criminal behavior, and at the same time increase public confidence in our police force.

Though I have observed the odd police vehicle roaming my neighborhood during daylight hours, I have never seen one at night. Since I suspect most criminal behavior occurs when it is dark, I think I am on fairly solid ground to say that is the time when we need police the most. Now I admit, I sleep at night, so it is possible they are silently patrolling my neighborhood whilst I am snuggled away in the locked security of my home. Having said this, of all the late night walks I have taken; time spent on the patio sipping beer under the moonlight while watching the traffic roll by on what is perhaps my communities busiest road (if you could even call it busy), I have never observed a marked police presence after daylight hours.

Interestingly, of all the time I have spent downtown, I noticed that the seemingly overwhelming police presence during daylight hours literally fades away once the sun goes down. I spend time downtown, and I have to say, my experience is that there is only a fraction of the police on downtown streets at night, than during the day. I have a hard time believing criminal behavior in Calgary’s downtown is at its highest at this time. After all, Calgary’s downtown during daylight hours is populated by working folk in suits, city workers standing idle on the side of the road and construction workers laboring on any number of Calgary’s downtown projects. Now, when the Cecil Hotel was operating, there was a lot of rather suspicious behavior taking place, but now that it’s gone?

I appreciate the government is telling us crime in the downtown core has decreased. Certainly I have no reason to disbelieve those who say so. But I wonder, how much of the decrease in crime is as a result of the closure of what was perhaps Calgary’s most notorious hotel? According to Mayor Bronconnier, after the closure of the Cecil, crime decreased by a whopping 85%!

Today, Calgary’s police lobby sells us that crime is down in our city centre because of increased police presence.

To fair, it probably is. But the question is how much and why? Is it really down because the government has decided to increase tax payer dollars in support of law enforcement, or is it because crime has moved elsewhere in response to the closure of a downtown criminal epicenter?

In the word's of columnist Rick Bell: "It's on to Step Two. In the city budget to be debated in November, the police are up for 67 more officers though Hanson worries about getting the numbers. No reductions are in the cards despite the city cutting $38 million out of next year's bottom line".

If crime has moved elsewhere, then it seems some of the virtual leviathan of police officers stationed in Calgary’s downtown can simply be diverted to those areas which have suffered an increase due to the closure of the Cecil.

(Tangentially speaking, has anyone ever wondered about the propriety of the Cecil’s closure? I mean, the City takes away the Hotel's operating license and then purchases the property? Hmmmm??? Alas, I digress…).

Police Chief, Rick Hansen, is a lobbyist. Like so many top government appointments, his job is to secure tax payer funding for his organization. He now looks to secure tax payer funding for yet more police on grounds that we need to stack a uniformed presence in Calgary suburbs. Essentially, he says that more police equates into a reduction of crime. He points to results in Calgary’s downtown core. But is he taking credit where it’s due? Or is he bootstrapping his position to an occurrence that has little to do with the increased police presence?

Assessing the police lobby, I think it is important for citizens to understand a couple of realities. Many years ago, I was a Crown prosecutor, working out of an office in Rocky Mountain Plaza. From my 15th floor vantage point, City Hall was to the South, the old Provincial Courthouse was across the street to the east, and just a couple blocks west was the district 1 police station and the Andrew Davidson building. The epicenter for criminal justice was located within just a few blocks of the Cecil Hotel. I have no trouble saying, the area where my office was located was definitely one the seediest areas I have EVER been in.

From my 15th floor vantage point, I could actually observe a lot of rather suspicious behavior -- both on the sidewalk beside my building, in Olympic Plaza (right across the street from City Hall) and on the streets just one block east of the District 1 police station.

What is my point? Despite the sheer presence of law enforcement officials and police, there is little doubt that crime was exceedingly high in that area. Exceedingly high within a couple city blocks of Calgary’s biggest police station, where the numbers of police either patrolling streets, attending the district office or going to court was monumental. I am sure anybody who worked in that area before the closure of the Cecil would not disagree. From this I surmise that the sheer numbers of police, government and law enforcement apparently had little impact on the criminal element. So, back to the question: is crime really decreasing in Calgary’s downtown because of a higher police presence?

To be fair, I think the answer is probably yes. But the next question is how much? How much of it is attributed to a heightened police presence and how much is attributed to other things? Is Calgary’s top police lobbyist taking credit where it’s not due?

David G. Chow
Calgary Criminal Lawyer

Thursday, August 13, 2009

Reasonable Apprehension of Bias - Police Investigating Police

“The RCMP's watchdog says it's time to halt the practice of the federal police force investigating its own members in cases of serious injury or death”.

The official RCMP response to the Report on Police Policing the Police is that the report is “…unduly negative and in some instances quite misleading”.

Now, I am not going to summarize all of the findings in the Report; nor am I going to brief the RCMP official response. The question as to whether police should investigate themselves is in my view an obvious NO.

We live in a society of nepotism. We live in a world where it is often not what you know, but who you know that results in advancement through various social, political, judicial, employment and other circles. Many circles are governed by a schoolyard type mentality, where you don’t report on your peers or are at the very least loath to do so. There is little doubt that police – and others – fall into this category. They are protectionist.

On this point, I want to be fair to the police. Aside from being more public, armed with weapons and invested with a tremendous amount of trust and social responsibility, they are no different than a great many other groups. Lawyers are primarily policed by other lawyers (i.e., the law society). Though some might say judges are policed in court by lawyers, they are really ultimately policed by themselves. Judicial policing comes in the form of Appellate Courts and the seldom used Judicial Counsel. Though crown prosecutors are lawyers, and subject to the law society, they are primarily policed by Crown prosecutors.

My point is, anybody who has worked in any kind of work or office environment knows the internal workings of the environment create a form of kinship between those working together. With this in mind, does it really ever make any sense to have peers investigate peers in anything?

In law we use a term called “reasonable apprehension of bias”. In short, this concept asks whether a reasonable and ordinary person, fixed with knowledge and understanding of the issues, would perceive bias on the part of another. Reasonable apprehension of bias does not require the high standard of proving “actual bias”; rather it is concerned with the reasonable perception of bias. Understanding the reality of nepotism, kinship, friendship and interests in common, is it not reasonable to assume that there would be bias when police investigate police?

Notwithstanding this issue requires far more analysis than I am prepared to give it here, the question still remains. It is one of those wicked, questionable questions.

David G. Chow
Calgary Criminal Lawyer