Friday, July 31, 2009

Right to Disclosure an Oxymoron!

The Accused’s Charter protected right to make full answer and defence and the right to full disclosure in support of this right has essentially been obliterated by Canada’s top court: R. v. Bjelland 2009 SCC 38.

Some defence lawyers have been arguing that disclosure rules enunciated in landmark decisions, such as R. v. Stinchcombe have only been honored in the breach. The Supreme Court has essentially ruled 4-3 in favor of honoring this right in precisely this manner.

Bjelland solidifies the proposition that the only real remedy for late disclosure -- even as late as on the day of trial -- is an adjournment. The only way a court can consider a remedy beyond an adjournment is if the accused demonstrates he or she has suffered prejudice, beyond mere delay, as a result of the late production of materials. I guess the majority in Bjelland has an incredibly short memory. For in R. v. Grant (decided just a week prior to this case), the Supreme Court stated things like, the conduct of police must be considered by society to be "above reproach". Doesn't the same principle apply to the conduct of Prosecution services? When it comes to disclosure, I would have thought it was reasonable for every practicing lawyer and judge in criminal justice to have a strong appreciation for Stinchcombe and the obligations it imposes. Today, the Crown can simply hand over new materials on the day of trial and the only meaningful remedy in most cases is to have the trial later.... Will our Supreme Court further denigrate the laws by placing the "burden of the rush" (see R. v. Antinello) on the accused in the future?

Additionally, even though an accused has the right to a preliminary inquiry pursuant to rules that Parliament has enacted in the Criminal Code of Canada, the Supreme Court has entrenched the proposition that there is no right to cross examine a witness, even a key witness at a preliminary inquiry. Indeed, this is true. However, Rothstein for the majority misapprehends this proposition as it was initially discussed by Martin J.A. in Ariv. Consider Martin J.A.'s remarks and the majority's interpretation on this point:

... We are not prepared to hold and, in our view, are not entitled to hold, that the failure to provide the opportunity to cross examine, even a key witness, prior to the giving of evidence by that witness at the trial, per se, contravenes the Charter, where full disclosure of the Crown’s case and of the witness’s evidence has been made. [Martin J.A. in Ariv]

I agree with the principle expressed by Martin J.A. There is no independent Charter right to cross examine a witness at a preliminary inquiry.
[Rothstein in Bjelland]

Martin J.A.’s comments went beyond the simplistic misreading that Rothstein attributes. Martin J.A. said there is no right to cross-examine (which is true) where “full disclosure of the Crown’s case and the witness’s evidence has been made”.

In Bjelland's case, there was not full disclosure before the first day of trial, let alone the preliminary inquiry. To ignore this seminal part of Martin J.A.'s comment is to allow the prosecution carte blanche to hide disclosure up until the commencement of trial, which may render nugatory any steps to ascertain important information at earlier proceedings, such as preliminary hearings. Also, the accused's defence strategy may change dramatically if the information or evidence changes in even a small way. Failure to recognize the preliminary inquiry as an important part of the trial process is to trivialize this proceeding. Trial practioners understand this.

In Bjelland, there was no disclosure relative to the new witnesses before preliminary inquiry. The disclosure came on the day of trial. The trial judge did not accept the Crown’s explanation for the tardy disclosure. He found that the crown’s concerns for the safety of witnesses (which might provide a valid reason for delaying production of disclosure) were NOT well founded.

In any event, this is a troubling case. It represents a fastball strike-one against the accused’s right to disclosure as part of his or her right to make full answer and defence. It is a curveball strike-two against the reasonable expectation that the Crown be duly diligent in making timely production of such materials. It is a change-up strike-three against society’s expectation that our Charter rights are to be meaningful.

Shame shame shame....

David G. Chow
Criminal Defence Lawyer

Thursday, July 30, 2009

A Flicker of Light in Harley's Case

There has been a development in the investigation into the police officer who allegedly kicked and killed Harley the Dog.

Ordinarily, police are responsibile for laying charges. Given the alleged eyewitness statement of Tom Short:

I am left to wonder why police themselves did not charge. By the way, Alberta does not operate on a system of Crown Charge Approval; meaning that in the exceedingly vast majority of cases, the Police decide when charges will and will not be laid. In this case, there seems to be a different approach. The question is why?

Admittedly, perhaps the different approach is simply because the accused is a police officer? But does this warrant a different approach? Perhaps it is because the evidence collected by investigators is difficult to balance and requires a second opinion in order to ascertain whether charges should be laid?

To this end, consider: assuming investigators have actually collected statements from Harley's family/owners and from others, like Tom Short and his son; and assuming they have collected a statement from the accused, who left the scene after the killing; if the perpetrator was an ordinary citizen, would he have been charged by police on this investigation, without crown charge approval? I suggest the answer is yes....

When will we learn the truth? Ever?

Well... at least there is some light on the case. Not enough to really see anything, but enough to know that the lights haven't yet gone out....

David G. Chow
Calgary Criminal Lawyer

Praise For HAWCS Newsworthy?

Advertising for mundane police work worth a full half page in a Calgary Sun edition where other more newsworthy articles were left informationally vacant is worth comment.

In this news story, HAWCS gets top honours for locating an impaired driving suspect using infrared technology.

Eventually, Dutnall and Ng using the infrared thermal imager and orbiting for about 40 minutes in the area, homed in on a heat source under a street along a very steep ridge overlooking Sunnyside.

At the time, Ng hoped the heat source wasn't a rock, which can actually hold heat, Cave said.

"This guy was not running down the street, but hunkered down in thick bush," she said of the onerous task of finding him.

"Without that camera, they could never have caught this guy ... I was completely impressed."

With the assistance of police on the ground, including the canine unit, the suspect was taken into custody.

"It was really good work for picking up on that little flicker of heat source," Cave said.

You've got to be serious? What's next, "lawyer gets top honours for using criminal code"? "Judge gets top honours for using a pen?". "Iginla gets top honours for wearing skates"? Using the tools we have been given to do our job is akin to putting the right foot in front of the left when walking. I find it extremely difficult to get really excited about on duty police officers using tools of the trade to fly around and look for red flickers. I am, however, impressed with the collective work of all of the officers, combined with a high level of due diligence in capturing the suspect. But, isn't this what we should reasonably expect from all members of our local constabulary?

Next week’s story: "Law enforcement lauded for using handcuffs".

There were a number of informationally vacant stories in today's edition of the Sun. As a citizen, I would rather have real information, germane to important stories rather than those designed to pat law enforcement on the back for doing seemingly simple and expected tasks.

Where is the follow-up on the death of Harley the Dog???

David G. Chow
Calgary Criminal Defence Lawyer

Risk Yourself To Save Yourself Criminal Conviction?

Reports on this case are rather sparse, but what this news report does not mention is that the driver of the MDX sped away from the scene at a high rate of speed:

Nevertheless, "[Judge] O'Gorman said once gunplay began, the teen would have been aware there was a .45-calibre restricted handgun in the car, which police later found in a hidden compartment.

"From that time on, it would've been impossible for any occupant of that vehicle not to be aware they were in the middle of a firefight," he said.

"Beyond 1:27 a.m. (when the shootout took place), knowledge of a handgun is established beyond a reasonable doubt," O'Gorman said.

Knowledge of the handgun and whether it was "feasible" to exit the motor vehicle are two completely separate questions. The key question is, how much time passed after 1:27am when the shootout took place and the time the youth was located in the motor vehicle and whether it was feasibe in the interim for the young person to extricate himself from an environment where he knew a handgun was present?

Now, my concern is with the message sent to members of the public in a sparse report on a conviction such as this. To be fair, everybody must understand, a journalists written product is often edited to such an extent that large segments of important information are removed to allow the article to fit on a page with other articles and advertisements. In this case, there is just no information about the "feasibility" question.

From reading this case, one might think that knowledge of the handgun was the only important factor. It is not. The interesting aspect of this case concerns whether it was feasible for the young person to safely extricate himself. There is no information in this regard. And since the vehicle he was in was driven by somebody else, and had just been tangled in a gunfight, one wonders whether the young person had a real opportunity to get out?

Jump young man, jump!!!!

David G. Chow
Calgary Criminal Lawyer

Saturday, July 25, 2009

Courtesy Instills Confidence

Of all the talking I do about the atrocious conduct of police, I think it's important to say that the vast majority of them are hard working folks, trying to do good work in difficult circumstances. Now, when my wife got a speeding ticket for engaging in her usual driving habits, I was so very impressed with the officer's conduct who issued the much deserved citation. For starters, he was courteous. Also, he communicated very very well. My point is, despite being ticketed for speeding, the interaction with this member of the local constabulary was very pleasant. And that is the way it should be... In my experience dealing with the police, that is usually how it goes...

David G. Chow
Calgary Criminal Lawyer

Repost:Code of Silence Investigation into the Death of Harley Fading From Memory

This post was published on the July 23rd, 2009 section of ...And Justice For All. I am reposting because it got lost rather quickly behind a number of other posts. I do so not because it is so well written, researched or artistic; rather, I do so because it is, in my view, important:

As a citizen, I am demanding an update on this investigation!!! I have been combing newspapers and internet, intensely interested in some kind of further comment from Calgary's Polcie force into the alleged attack by one of its members -- who despite the many suspects who are actually named in the papers, remains anonymous. In so doing, I came across this comment by Tom Short -- who was allegedly present when Harley was killed:

I was there on Holiday from Los Angeles with my wife and son. Harley did not attack the Police Officers dog. Harley had a black ball in his mouth and it was lying about 10 inches from his mouth in the street where he died. My son works at a Veterinarian Hospital here in Los Angeles and we tried to help but it was evident that Harley died instantly as he deficated on the spot.The officer knew that he killed Harley and he said he deserved it. He left the scene even though he was asked to stay to speak to the authorities. If it was a justified killing-why didn't he stay? Obviously a dog should be on a leash, but this guy was way out of line. He also knew we were looking for him and he was hiding. He only came forward because he saw flyers all over the place and knew he'd eventually be caught. This Police Officer is either a loose cannon or at the very least needs serious training because he didn't assess the situation like a professional. I told the police officers that responded to mention in the report that Harley had a ball in his mouth. They said it was a valid and very important factor that would indicate that he wasn't attacking. They said it would be in the report. I hope it is. I read that the officer was commended for coming forward after 2 days of letting people suffer. The acting Deputy Chief needs to rethink how to approach this situation. I belive the Calgary Humane Society /SPCA has a picture of Harley lying in the gutter with the ball next to his mouth. I hope this story doesn't die away. I love Canadians and you deserve to have only the finest Police Officers.

The first post ever published on this blog related to the death of Harley. In that post, I suggested in the title that perhaps it would be a "token investigation".

As each day passes, and as Harley's death at the hands of the anonymous boy in blue fades from memory due to the passage of time, it becomes more a certainty that I was right....

If Tom Short is right, however, then it appears that we may have a CRIMINAL law enforcement officer walking in our midst? Sleep well Calgarians.... you are safe... sleep well....

David G. Chow
Calgary Criminal Defence Lawyer

Friday, July 24, 2009

Good Police Work Saves Possible Wrongful Conviction

I commend Strathmore RCMP for their diligence investigating a Strathmore sexual assault allegation. Though our society should certainly have concerns about the young storyteller's depiction of events, I also commend her for owning up to the fabrication.

These cases are difficult to investigate, prosecute, defend and judge. A good story can go a long way to wrongful conviction. I know the police are considering charging the girl with public mischief, but I submit that the public interest would not be served in this case. We need to encourage witnesses to be truthful, even if it means being truthful sooner rather than later. There is fine line in such decisions; for on one hand, we don't want to promote the continuation of a lie to avoid charges. On the other hand, we want consequences for those who mislead authorities and send police on wild goose chases.

I agree with Patrick Webb: "We are at least satisfied she came forward and didn't let it drag out and possibly lead to the arrest of innocent people."

David G. Chow
Calgary Criminal Defence Lawyer

Red Herring and Speculation Not News

Certainly, impaired driving can be deadly. Nobody doubts the carnage on Canadian highways wrought by impaired drivers. But if you are going to write a story on the frustrations of impaired driving premised upon recent accidents on Alberta highways, lets write the story and convey the frustration in cases where impaired driving has been confirmed....

The above captioned story severely criticizes impaired driving as a major problem, citing a number of recent tragic accidents. Now I am not saying alcohol or drugs were not a factor, but there is no information in these stories that there is evidence to support the conclusion that the drivers were in fact impaired.

In the crash in Leduc, Alberta, the following is reported: "[a]lcohol has not been ruled out as a factor in the crash which happened three hours after Leduc RCMP put out a press release decrying impaired-driving related charges, many involving repeat offenders, in the area, said Sgt. Jennifer Turner".

So, alcohol has not been "ruled out". We don't even know from this article whether it has been "ruled in", let alone whether there is evidence that the driver "was impaired". Ruling something out does not mean it is present.

In a fatal crash on the Blood Reserve the following is reported: "[w]itnesses said hard liquor and beer bottles were at the scene, while RCMP said alcohol and speed are suspected factors in the crash".

A thousand suspicions does not mean something is a factor. More importantly, a thousand suspicions does not mean the driver was in fact impaired.

Finally, with respect to the terrible crash in Washington, the following is reported: "Sunday night, two recent Calgary grads, Mikelle Hendrickson and Kylie Doxtater, died in a crash in Washington state where police said they found marijuana in the SUV".

Finding drugs in a car does not necessarily mean the driver was impaired.

My point is, every example in this article to support the undeniable carnage of impaired driving, involves ZERO confirmation of evidence to support impaired driving. To report in such a manner is a grave disservice to those under investigation in these incidents. To say "alcohol has not been ruled out" in an article designed to highlight the problems of impaired driving is a Red Herring. To say that something is "suspected" is only slightly better than pure speculation.

More caution needs to be taken when writing these articles....

David G. Chow
Calgary Criminal Lawyer

Thursday, July 23, 2009

The Code of Silence - Investigation into the Death of Harley The Dog Fading Away?

As a citizen, I am demanding an update on this investigation!!! I have been combing newspapers and internet, intensely interested in some kind of further comment from Calgary's Polcie force into the alleged attack by one of its members -- who despite the many suspects who are actually named in the papers, remains anonymous. In so doing, I came across this comment by Tom Short -- who was allegedly present when Harley was killed:

I was there on Holiday from Los Angeles with my wife and son. Harley did not attack the Police Officers dog. Harley had a black ball in his mouth and it was lying about 10 inches from his mouth in the street where he died. My son works at a Veterinarian Hospital here in Los Angeles and we tried to help but it was evident that Harley died instantly as he deficated on the spot.The officer knew that he killed Harley and he said he deserved it. He left the scene even though he was asked to stay to speak to the authorities. If it was a justified killing-why didn't he stay? Obviously a dog should be on a leash, but this guy was way out of line. He also knew we were looking for him and he was hiding. He only came forward because he saw flyers all over the place and knew he'd eventually be caught. This Police Officer is either a loose cannon or at the very least needs serious training because he didn't assess the situation like a professional. I told the police officers that responded to mention in the report that Harley had a ball in his mouth. They said it was a valid and very important factor that would indicate that he wasn't attacking. They said it would be in the report. I hope it is. I read that the officer was commended for coming forward after 2 days of letting people suffer. The acting Deputy Chief needs to rethink how to approach this situation. I belive the Calgary Humane Society /SPCA has a picture of Harley lying in the gutter with the ball next to his mouth. I hope this story doesn't die away. I love Canadians and you deserve to have only the finest Police Officers.

The first post ever published on this blog related to the death of Harley. In that post, I suggested in the title that perhaps it would be a "token investigation".

As each day passes, and as Harley's death at the hands of the anonymous boy in blue fades from memory due to the passage of time, it becomes more a certainty that I was right....

If Tom Short is right, however, then it appears that we may have a CRIMINAL law enforcement officer walking in our midst? Sleep well Calgarians.... you are safe... sleep well....

David G. Chow
Calgary Criminal Defence Lawyer

The Private Lives of Citizens Continuously More Exposed?

So, let me understand, the obvious groups -- law enforcement, Crown Prosecutors, Corrections Officials and Court Staff -- have access to a justice online system allowing them to check for things such as warrants, court dates, criminal records and other justice related information -- and other less obvious groups such as charity organizations working in the justice system do as well. It is even rumored that some judges have access. Interestingly, Criminal Defence Lawyers, tasked with the responsibility of defending clients do not?

Now, it is reported that Lottery Officials have access as well.

As reported in the Calgary Sun: "Lottery officials tipped off police after coming across the warrant through the standard investigation jackpot winners undergo".

The question is, how many groups have been endowed with access to such information? It is one thing for a member of the public to do a criminal record check. A criminal record is public document. But a warrant check? That takes a different level of informational access.

If it is true that Lottery officials have access to such information, then who else? And when it comes to the private lives of citizens, how accessible should such information be? It is one thing to go to your local courthouse and check on a criminal record, but in my view it is completely another to have that data -- and a host of other data -- readily available on your desktop computer. If that is true, I have concerns.

Even if people or groups go to the police to check information, how much information should your local constabulary reveal?

These are wicked, questionable little questions....

David G. Chow
Calgary Criminal Defence Lawyer

Wednesday, July 22, 2009

Our Best Wishes...

Longtime Calgary Crown Prosecutor, Danny Elliott is the father of Lena Elliott who was seriously injured in a car accident in Washington State over the weekend. Two young Calgarians were killed in the crash and another, seriously injured. The Calgary Criminal Defence Bar and Crown Prosecutor's Office is united in support for Danny and his family. Our thoughts and prayers go out to his daughter Lena. Our heartfelt sympathies extend to both the Hendrickson, Doxtator and Harms families....

Calgary is a Safe Place to Live...

So apparently Calgary is a safe place to live. That is exactly what a number of us have been saying

... and now a police officer has joined the choir....

What is the cause of Calgary's drop in crime? Is it due to the increased number of boys in blue on Calgary streets?

Is due to the fact that an aging Canadian population commits fewer offences?

I suppose the most banal comment I can make is that it is probably all of the above. However, I do think that Canadians are good folk and this is a wholesome country. Whenever we take millions of people and situate them in close proximity to each other, the reality is, there will always be a small number who act outside the rules of ordinary society. But our country, and indeed the City of Calgary, is a safe place to live. I want to take a moment to credit Calgary Police Inspector Kevin Brookwell who finally said what needed to be said. Despite the year long fear mongering by his Chief, Rick Hansen and Alberta's Justice Minister, Alison Redford and a host of others, Brookwell makes the point:

"When you talk to some Calgarians, there still is a perception that Calgary is unsafe and when you have a number of high-profile, high-media (coverage) events that happened in 2008, you'll still get that perception. But the numbers, and what's happening here, would indicate that for the most part Calgarians are safe," said Brookwell.

Indeed, for the most part, Calgarians are very safe....

David G. Chow
Criminal Defence Lawyer

Tuesday, July 21, 2009

Sometimes Justice Means No Justice For All

The reaction is to the think police dropped the ball

but there is nothing to suggest that they are not doing the very best job they can do in a difficult situation.

Though I am really not intending to borrow a rather apt concept from TV's Law and Order, I do think it is worth saying that our justice system is composed of a number of distinct, yet equally important groups. The police, crown, defence lawyers, judges and witnesses are important players responsible for ensuring justice is done. At the first stage of any criminal proceeding are police - whose important responsibility is to fully investigate allegations of criminal wrongdoing. A full, fair and complete investigation should always leave them with reasonable grounds to believe they have the right person. Investigating crime is hard, painstaking work. It requires diligence, perserverence and ingenuity. Unfortunately, in a country with over 30 million people, sometimes even the best police work does not get the man.

I have no comment on the quality of the police investigation in the Banff attacks. All I can say is, sometimes doing things right means getting nobody all....

Thankfully, I think it is fair to say that police get it right most of the time. And most of the time, they get their man (or woman, as the case may be)....

David G. Chow
Criminal Defence Lawyer

Monday, July 20, 2009

Judge's Comments Reviewed and Transparent

Given some of my concerns about the lack of judicial transparency in Canada's judicial appointment process, I found this article rather interesting (though quite devoid of informational content):

At the outset, let me say that I am not in support of an elected judiciary. This is the appointment process in the United States. This process is problematic because a judge may feel he or she needs to determine cases based upon their appointment platform rather than based on a judicious interpretation of the law. Having said this, I do like the fact that a judge's credentials and views are exposed prior to the appointment. In this case, Sonia Satomayor's nomination is under close scrutiny due to her remarks that a "wise Latina" might come to a better conclusion that a "white male". Though I was initially unimpressed by this comment, upon further reflection it occurred to me, in certain circumstances, it may be absolutely true. Indeed, a wise Latina might actually come better conclusions (if better means more culturally sensitive) than a white male. I am a white male who has no clue what it's actually like to be a Latino, Native or Black. So, though the comments may create an initial gut reaction, ethnic diversity on the bench is important, because judge's must bring a wealth of experience into the law. In our system of stare decisis, collective wisdom is ideally the basis for all judgments.

Of course, the nomination and ultimate appointment should always be based on merit -- which due to the lack of transparency in the appointment process in this country is even more uncertain....

David G. Chow
Criminal Defence Lawyer

Sunday, July 19, 2009

Quit Hitting Yourself -- Funny Kids Game or not too funny Police Tactic?

Well, maybe it's me... maybe I don't have much of a sense of humour, or any at all.

If the jokes weren't truth, they might be funny, but the jokes represent the truth and as such, they are a little too close to the rather flippant manner in which SOME (not all) CPS go about the business of interacting with Calgaryians.

Seriously, imagine the reality of what many citizens have experienced: being proned, face digging into the concrete, with arms roughly pulled behind the back. Handcuffs are used, so tight that the steel cuts to the bone. The citizen says things like, they are too tight; it hurts; please loosen them only to be told things such as:

"Relax, the handcuffs are tight because they are new. They'll stretch out after you wear them for awhile."

This joke is akin to the kids game, "quit hitting yourself", which actually finds its way into the occasional interaction involving police and citizen. I have heard and read reports of precisely this. Citizen is proned out and is consistently told, "quit resisting, quit resisting" (and of course they are not) -- all the while the officer continues to dig the knee into the small of the back -- amongst other things...

And when the citizen wants to complain, it is told things such as:

"So you want to talk to the shift supervisor? I don't think it will help because I'm the shift supervisor."

You get the point of that one...

Not too funny....

But when the occasional complaint goes public, the Chief, Calgary Police Association President and others will be quick to extol the virtues of the alleged, offending officer -- maybe even before the investigation has been completed. Again, not too funny....

Incidentally, has anybody heard of what has happened with the investigation into the death of Harley the dog?

We are waiting... and I am not laughing...

David G. Chow
Calgary Criminal Defence Lawyer

Saturday, July 18, 2009

Oscar De La Hoya is available...

For all of those people who are quick to say how sweet things are in Canadian jails, take the time to read the report on the Fatality Inquiry into the death of Drumheller inmate Jarret Jabs in the midst of a riot in 2001.

Here's a quick summary from a CBC report:

Jarrett Jabs, 21, was beaten, stabbed, and finally slashed through the jugular vein in his neck during a riot at the Drumheller Institution in southern Alberta in 2001.

He had locked himself in his cell, but inmates pried off a welded panel and tripped the locking system to open the door — a skill some learned from assisting prison electricians.

The report from a 2007 fatality inquiry into the death was released on Friday. Provincial court Judge Frank Maloney recommended that inmates new to a prison should get an orientation session to the informal rules that govern inmates.

Maloney noted that Jabs, a car thief who was serving time for breaching release conditions, was seen as "weak" and "somewhat naïve to the inmate codes and expectations."

Two days after arriving at the Drumheller prison, an inmate yelled and labelled Jabs "a rat" or an informant. The inquiry heard that because he didn't stand up for himself and fight the name-caller, Jabs set himself up to be bullied by the other prisoners.

Now, anecdotally, we all know that prison populations are far exceeding the original intended capacities of the buildings, corrections staff are short-handed, and there really never is a government department that couldn't benefit from extra funding.

That said, nobody seems to even believe that there is an available option that would see guards and counsellors be put into an operational position to be able to prevent the next "weak", "naive" inmate from being extricated from his locked cell and brutally murdered.

The best we can come up with is give new guys some lessons in convict ettiquette? So fewer inmates will want to kill them?

While I appreciate that the inquiry judge was trying to note that a little education might help an individual stay safe while in prison (and that this was not his only recommendation), what seems to be missed is that one of the key factors, if not the critical factor, in the targeted killing of this guy was that he was arbitrarily and falsely dubbed a "rat" when some other inmate yelled that at him and he failed to viciously attack his accuser.

What I'm getting at is that if the recommended, "So, You're a Federal Inmate...Now What?" program had already existed, and if Mr. Jabs had been a good student, he would have known to use violence to deal with a potential problem and may well have either got himself killed much earlier in his prison term, or managed to find himself an accused murderer as a result of his being punished for non-violent property crimes.

To me this makes little sense, and in fairness, the inquiry judge did seem critical of an apparent "giving up" by corrections officials in thinking that the Drumheller Institution could even be made to be a less violent place:

With an inmate population in the order of 12,500 nationally, CSC would, if all of the inmates were in one place, be only a small town, yet would be one plagued by a per capita homicide and suicide rate that is eight times the national average. Perhaps such violence is to be expected when troubled individuals are concentrated in one place, but, at times, CSC seems to be almost resigned to the level of violence. When threats are made between inmates, the repercussions are not disciplinary so much as conciliatory, bringing in inmate representatives in attempts to calm the tensions. In short, staff do not seem to be in charge of certain aspects of running the facilities, sometimes leaving inmate control in the hands of inmates. Similarly, some inmates become acutely fearful that they may be targets for such violence and, as a result, historically sought refuge by "checking in" to segregation or protective custody.

Prisons should never be places where "staff do not seem to be in charge of certain aspects of running the facilities, sometimes leaving inmate control in the hands of inmates." The government simply must fix this situation and fix it now...especially as they continue to slash away at the sentencing provisions of the Criminal Code that would allow non-violent offenders to stay out of jail and continue to add mandatory minimum sentences thereby ensuring a huge increase in the number of "rookie inmates" in the years to come.

Being a realist, and knowing the pace of government reform, however, in the meantime I think that hiring quality individuals to do the inmate orientations is the best bet. I mean, if you get called a "goof" or a "rat" and it falls on you to prevent your subsequent murder it would at least be nice to know your government gave you a fighting chance with some Golden Gloves quality training.

Michael Bates

To Exclude or Not to Exclude

On July 17th, 2009, the Supreme Court of Canada relesaed 5 rulings pertaining to the application of s. 24(2) of the Canadian Charter of Rights and Freedoms.

In R. v. Grant, [2009] S.C.C. 32 the Court clarified principles germane to s. 24(2) of the Charter:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter‑infringing state conduct, (2) the impact of the breach on the Charter‑protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits. At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. At the third stage, a court asks whether the truth‑seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown’s case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.

Unlike rights violations in the United States, where fruit obtained from the poison tree is automatically excluded, Canada does not apply the same general rule. The worry I have with the current 24(2) regime is a kind of acceptance of so called trivial breaches. To allow the State to infringe on Charter Rights, even just a little, may result in a dangerous slippery slope....

David G. Chow
Criminal Defence Lawyer

Friday, July 17, 2009

We Charge Just Because?

Even though the owner had his dog on a leash he will be charged "anyway" for biting another dog and chomping a good samaritan who lent a helping hand.

At the outset, I think it is important to remember that dogs are dogs, and some are more unpredictable than others. Following the annual smattering of news reports on dog attacks, it certainly seems pit bulls are involved in a great many of them. With this in mind, Pit Bull owners should probably be on high alert, all of the time.

But in this case, two dog owners approach each other whilst walking their hounds. Both dogs are on a leash. Now, I don't know exactly what happened, but I imagine that dogs -- being dogs -- sniffed each other and unfortunately the pitbull bit the other dog on the ear.

The question is, how responsible is the dog handler in this case? Things happen fast. Perhaps both dog owners were happy to let their dogs sniff each other? Since the dog was on a leash, I imagine the owner had, at the very least, a high degree of control over the animal? Perhaps, if the owner did not have this control, the bite would have been in a more serious location?

A good samaritan than puts her hands between two dogs and is not surprisingly bitten.

No doubt, all of this is troubling. I can't imagine how I would feel or how I would react if another dog bit my puppy. But this is precisely why I don't allow my puppy near other dogs -- and in particular pitbulls.

Now I am not saying that the owner of the pitbull should not be ticketed. However, I am concerned about a by-law enforcement position that sounds like nothing more than the owner will be ticketed for the sake of being ticketed. Consider the by-law enforcement officer's remarks:

He said the situation could have been prevented if each owner took control of their dog before it escalated and if the woman stayed out of the confrontation.
"We see this all the time," he said.

"Unless you're a trained professional, no one should stick their hand in the middle of two dogs."

But he said charges will be laid against the pit bull owner for not having control of the dog and causing injury to a human.

"But we're laying charges anyway because a bite is a bite," he said.
Neither dog was injured.

So let me get this straight, each owner is responsible for letting their animals get too close to each other. The good samaritan is responsibile for putting her hand in a bad spot. Dogs are dogs and both were leashed. But the owner will get ticketed "anyway".

In life, sometimes things happen. Not all bad or worrisome things that happen deserve reprimand by law enforcement. Some bad things carry lessons on their own. Sometimes we should be greatful it wasn't worse and let bygons be bygons.... Humans can learn lessons without the State issuing fines or charges....

Thursday, July 16, 2009

Assaulting Transit Staff Good Legal Sport?

Gone are the days of true investigative journalism. Today’s motto: simply write whatever piece of imbalanced, un-researched tripe you want, attach a catchy title – preferably one that is foreboding so as to capture the reader’s attention – click “save”, then “print” and publish. Research is too hard. Asking questions of anybody who might provide some perspective, insight or knowledge is too difficult. Journalism is now apparently about going to the complainant or lobby group and taking their word as gospel – no matter how obtuse it may be -- and unleashing it on an angry and frightened public.

The newest public lobbying by interest groups now comes from the Calgary Transit Authority campaigning for tough anti-violence laws to protect transit employees.

They are asking to be treated just like police, firefighters and emergency responders when it comes to attracting charges in the Criminal Code of Canada. Mike Mahar, President of the Amalgamated Transit Union 583 is lobbying for “stiffer” penalties.

Now, there is certainly no concerns protecting transit staff from violent attacks. The problem is this statement:

"They would fall immediately under the Criminal Code as opposed to a misdemeanour. Currently, if one of our members is assaulted, for the police to pursue charges we're always instructed that the employee needs to press charges and that wouldn't be the case if the code was changed."

Firstly, “assault” is always a Criminal Code offence. Any person who assaults another person is liable for prosecution pursuant to s.266 of the Criminal Code of Canada. Transit employees are no different. Additionally, through the common law, criminal justice has long recognized the vulnerability of certain persons engaged in certain types of work. The Criminal Code has a specific charge for assaulting a police officer. Even though there is no specific charge for assaulting a taxi driver, the common law recognizes higher sentences for those assaulted during the course of their employment. Transit drivers are in no different a position.

Interestingly, the Criminal Code does not have a specified offence for assaulting a firefighter or emergency medical staff. Like transit employees, the charge is under s. 266.

To suggest that assaults against transit staff do not fall “immediately” within the Criminal Code is wrong. It is true to say that the staff member needs to provide information to the police capable of supporting a charge for assault. Police are responsible for investigating and pursuing charges. There is no change to the Criminal Code that will confer this responsibility on law enforcement – for they already have it. Having said this, police may not lay charges because they can’t locate the offender or they do not have sufficient evidence to justify charging the offender. Keep in mind, those who threaten or assault transit drivers probably do so and immediately flee the bus or C-train. The police can’t just charge for the sake of charging. Not only must an offence be made out, but the alleged wrongdoer must be identified.

On this latter point, I agree that transit vehicles equipped with cameras (like Taxi cabs) is a good idea. It may deter this type of behavior and when it happens, it may supply police with an investigative tool to find and charge the perpetrator.

To say that those who assault transit staff are not susceptible to “automatic criminal charge” is to leave the impression that assaulting your bus driver is presently legal sport. That is not true. If the police can identify the assailant and the evidence supports the charge, I am sure they will lay it.

David G. Chow
Calgary Criminal Defence Lawyer

Wednesday, July 15, 2009

Hear No Evil? The Extension of the Calgary Big Brother Program

"It's to take away the anonymity," said Calgary Alderman John Mar. "Whoever you call, if you're trying to use it for an illegitimate use, we can track it and we can forward that information on to the proper authorities."

Floating the typical safety, security, law and order platform, the City of Calgary has joined forces with City Police in yet another Big Brother type initiative. In addition to seizing vehicles from suspected neer-do-wells, fingerprinting those using the Calgary Drop in Centre as a sanctuary from harsh weather, harassing citizens in local nightclubs to determine whether they are enjoying a beverage with a gang member, the City will now record your telephone conversations on selected payphones to determine whether you are up to no good.

"We want to to show Calgary is being aggressive and moving forward and taking away the tools used by criminals," said Mar.

Is there any end to the intrusion on privacy rights in this City and Province?

Telus' corporate response that citizens need not worry about someone eavesdropping on their conversations should provide absolutely no assurance. For the bottom line is, to determine whether a caller is "up to no good" obviously requires listening to conversations -- many of which may be completely innocuous. Put another way, determining whether the caller is making a drug deal over a payphone obviously requires eavesdropping and any suggestion by Telus to the contary is simply misleading!

At some point citizens of this country need to resist law and order initiatives sold on the campaign of safety and security in order to protect the civil rights that all citizens are afforded. To borrow a rather apt comment from Calgary defence lawyer Michael Bates:

"Alberta is undeniably a safe place to live and we need not accept every politician's sounding of alarms as genuine and we need not accept police officers being given more power to curtail liberties as a positive outcome. The only thing we have to fear is fear itself...and just how much freedom a government can take from its citizens when they are afraid".

Apparently the government can take a lot....

Big Brother is listening...

David G. Chow
Criminal Defence Lawyer

Tuesday, July 14, 2009

Guilty Pleas Must be Real

Although it is not suprising that Heather Anderson was shocked that Michael Rabeau was allowed to rescind his guilty pleas to killing a 4 month old Husky puppy

it was absolutely the right decision by Provincial Court Judge Frank Maloney. Ms. Anderson is correct, that "[g]uilty pleas should be made to stay" -- most of the time. However, if the guilty plea does not support the essential elements of the offence or when the accused argues he should be sentenced more leniently because he was defending himself, then a judge has a responsibilty to ensure the guilty plea is proper. A judge is an argus of justice, and as such, is not sitting merely to rubber stamp guilty pleas.

The more troubling question concerns the guilty plea itself. If Mr. Rabeau was indeed defending himself, then why did he plead guilty?

David G. Chow
Criminal Defence Lawyer

Monday, July 13, 2009

Law And Order In Calgary - July 5th - July 11th/2009

It is worth reviewing the Law and Order statistics published in the July 13th, 2009 Edition of the Calgary Sun. From my review of these statistics, it appears the occurrence of relatively minor nuicance type offences was higher during Stampede Week than most other weeks throughout the year. However, despite the daily grind of fear mongering by law enforcement officials,

a review of the district by district law enforcement stats should comfort Calgaryians that our City -- though not perfect -- is very safe.

The highlight offence in District One (the downtown) was involved a pushing incident, while the most noteworthy crimes in other districts ranged from stealing sunglasses (district 2), stealing a laptop from a local coffee house (district 3), a bank robbery (district 7) and some kids who started a fire at a local school (district 6). Car prowlings top the list of most prevalent crimes.

David G. Chow
Criminal Defence Lawyer

Sunday, July 12, 2009

Not So Fast Shanoff

In a column titled “Not So Fast Eddy”, Alan Shanoff criticized defence lawyer Edward Greenspan for comments reminding us what “an acquittal means”. Mr. Shanoff’s criticism is essentially that just because an accused is found “not guilty”, does not necessarily mean he is “innocent”. “People are free to believe what they want”, writes Shanoff, “either before, during or after the trial and no legal presumption can change that”.

In the purest sense of the concept of innocence, Mr. Shanoff is correct – a “not guilty” verdict is not synonymous with real innocence. Events written into the fabric of the universe do not necessarily correspond with human belief or our interpretation of them. Assessing possible reasons as to why an accused is found “not guilty” Mr. Shanoff speculates:

Perhaps the jury believed the accused is guilty but had a nagging reasonable doubt. Perhaps the jury wrongly chose not to believe a witness.


Perhaps the jury wanted to hear from a witness who didn't testify. Maybe the jury just didn't understand the evidence. Maybe the jury didn't like a witness. Maybe the closing argument of the prosecution just didn't cut it.

Mr. Shanoff conveniently forgets to add the most important possibility: Perhaps the evidence actually demonstrated the accused was innocent or perhaps the jury actually believed the accused was an innocent man.

My point is, though a not guilty verdict is not equivalent to a verdict of innocence, it is wrong for people, like Mr. Shanoff, to conveniently disregard the most important possibility in a trial: that the accused may be innocent “in fact”. Most importantly, I think we should all be just a little concerned about any suggestion that the presumption of innocence and proof beyond a reasonable doubt are little more than technical rules allowing guilty people to go free. These principles do not exist merely to protect the accused, they exist to protect the innocent!

Just as a finding of not guilty does not necessarily mean the person is innocent, a finding of guilt also does not necessarily mean the person is guilty. Believe or not, Canada’s criminal justice system has actually convicted innocent people. David Milgaard lost in excess of two-decades of his life on this planet after being wrongly convicted for murder.

Indeed, people can believe whatever they want. The Vikings believed in Norse Gods. People once believed the world was flat. A jury believed David Milgaard was guilty. Belief is not synonymous with truth. Mr. Shanoff apparently believes Michael Jackson is a pedophile. If Mr. Shanoff really wants to disparage a person after his death by insinuating he is a pedophile, perhaps he should offer some evidence on the subject. Belief without more is irrelevant.

David G. Chow
Calgary Criminal Defence Lawyer

Saturday, July 11, 2009

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

Just a few short weeks ago, my dog Socrates ("Soci") was hit by a car and killed after he escaped from our back yard. Though neither my wife nor I saw the accident, we had to deal with the devastation of losing our baby boy, who had been a fixture in our lives for just short of a decade. The images of carrying his lifeless body back to our home will forever be etched into my mind.

Today, our home is not the same....

The driver who struck him left the scene. Despite the fact that our residence was just 2 houses away, on the other side of the street, nobody knocked on our door, or approached either of us as we walked -- panick stricken -- back and forth along our street calling his name and shinning a flashlight into every yard we passed. We didn't even discover he had died until the next morning, when a neighbour received the flyer posted by my wife and made what was obviously a difficult telephone call. To make matters worse, our puppy suffered the indignity of having his lifeless body stored in a garbage bag in a strangers garage. He was picked up off the road after the driver who hit him vacated the scene. Suffice it to say, we are still reeling from the loss....

When I read the story about Mr. Shields and Ms. Dunne's golden lab, Harley, being kicked and killed by an off-duty police officer, I was flooded waves of emotion.

I have some appreciation for how angry and upset they must be. At one moment, Harley was with his family, the next he we was dead. Given Harley apparently died within 30 seconds of being struck, I imagine he must have been in considerable distress as the unnamed, off-duty police officer walked away. Though I am concerned about the officer's reaction, objectively speaking, I must agree with Deputy Chief, Trevor Daroux who commented: "it's difficult to speculate in an emotionally-charged situation why people do what they do." Though we have high expectations of police officers, it is important to remember, they are people too.

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? But at the moment, we really have very little detail about what actually transpired. Suffice it to say, the case needs to be diligently investigated. It is with respect to the investigation that I have some concerns. To this end, consider the following hypothetical questions:

If Harley's killer was an ordinary fellow who coldly left the scene after kicking the animal, I wonder whether the police decision to hold-off charging would have been the same? I wonder whether Det. John Dooks would still characterize the man as "...the victim"?

Moreover, had the man not been a police officer, I wonder whether Mr. Dooks would even make such a comment before the investigation was complete? I mean isn't the investigation fairly important to determining who "the victim" really is? Given Harley is a dog, who only knows how to be a dog, isn't he a victim no matter how the investigation turns?

Equally troubling are Rick Hansen's comments about the incident on the QR77 Morning Show with Bruce Kenyon on July 8th, 2009? Rather than making a more appropriate, less deterministic statement, such as: "I can't comment on the situation until the investigation is complete" or "I will leave it to the good judgment of experienced investigators and prosecutors to determine whether charges will be laid", Mr. Hansen says people "rush to judgment" and that he doubts there was any intent on the part of the officer to hurt the animal. Surely Mr. Shields and Ms. Dunne have a different perspective on the incident? Again, before pre-determining whether there was any intent or not, isn't it important to allow the investigation to properly run its course?

Given comments by the Police Association President and Calgary's top cop, I openly wonder whether this investigation is predetermined? Can you say nepotism?

Whatever the case, whether this police officer is vindicated or not, in my opinion, it still takes a cold human being to walk away from an animal in distress -- especially one that is distressed because you put your boot to it....

By way of final comment , there is an important lesson in this tragedy. All canine owners (including myself) should be highly diligent ensuring that their dogs are leashed. Had Harley been leashed, he would probably still be alive. Had my dog been leashed, he would probably still be alive too....

David G. Chow
Criminal Defence Lawyer