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

Wednesday, August 12, 2009

Educate Not Terrorize

In the August 12th, 2009 edition of the Calgary Sun, columnist Jeremy Loome wrote an interesting article titled “High-Caliber Programs Solve Gun Woes”. Loome is clearly not a supporter of handguns. He even makes the rather absurd comment that he would not attend a barbeque hosted by a handgun owner because of the likelihood of being shot.

Despite his clear distaste for guns, however, Loome writes a fairly informative article surprisingly suggesting that gun control advocates are wrong. The premise of his article is essentially that guns are not the root cause of problems, rather anti-social behavior is rooted in economic and social issues, which education, not abolishing firearms would solve. He draws from the experience of gun populations, such as those in Vermont. According to his article, Vermont has some of the least strict gun control laws in North America. In Vermont, anybody can carry a concealed weapon and anybody can buy a gun without a background check. Vermont’s gun crime rate is amongst the lowest in the United States and several points lower than gun control paradise, Canada.

The Swiss have an armed population – in fact, each household is expected to have a gun, with ammunition. From their perspective, an armed citizenry, dedicated to protecting itself is more effective than a paid military. Citizens with a vested interest in their country have a greater stake than paid mercenaries. Swiss gun crime is amongst the lowest in the world.

Loome concludes that tax payer dollars invested in the ineffectual and now virtually defunct gun registry would have been better spent educating Canadians on the root causes of crime. It is hard to argue with his point.

Gun ownership is about balancing costs with benefits. From a democratic perspective, firearms represent the great equalizer. In a true democracy, the government exists for the people, and if the government steps out of line, democracy expects the people to purge the government. Firearm ownership sits at the very heart of this principle, for an unarmed population has little ability to resist the despotic will of a heavily armed State. Firearms also equalize differences between young and old, male and female, criminal and law abiding.

With firearms possession there are costs. Just like more cars on the road equals more accidents, the greater the number of guns in society translates into more accidental shootings. Just because something poses a risk, however, does not mean it is necessary to remove the thing altogether. After all, we license motorists and allow them to hurdle themselves down highways at high rates of speed on a quotidian basis.

Taking away guns does not solve criminal behavior. Criminals will either obtain guns or find other weapons to do the deed. The question is, why should law abiding Canadians necessarily be the only unarmed group? When the State tells us they are the only ones allowed to carry firearms, citizens should be worried. The heart of democracy is that citizens can, if necessary, resist the State. My point is, lets educate instead of terrorize. Lets do what Loome suggests: “…combat the poverty based roots of crime”. That seems to be a sensible and democratic objective.

David G. Chow
Criminal Defence Lawyer

Tuesday, August 11, 2009

New Dial-and-Drive Legislation

Just in case the readership on this discussion board consists of more persons than just me(and on occasion, Michael Bates), it is appropriate for me to post on the subject of new laws targeting the specter of unsafe driving arising from cellular telephone use. I do so to demonstrate that my hypocrisy has limitations.

As you may recall, I have recently criticized police for engaging in tax collection in the guise of traffic safety:

Though I am concerned about government adding yet another law to the books, and am rather perturbed that I will no longer be able to conduct business whilst sitting at the seemingly innumerable untimed red lights littering Calgary roads, I have to admit that talking on the phone or driving with my 5 month old puppy gleefully looking out the window from the comfort of my lap represents a definitive safety hazard. Unlike a great many laws, legislated by inept government officials trying to justify their salaried and pensionable existence on the back of an ever decreasing, yet highly taxed private industry, officials who lobbied for laws allowing police to genuinely target the root cause of distracted and ultimately unsafe driving have in my mind, legislated much needed additional powers for real traffic safety enforcement. Additionally, for those engaged in the much publicized “dial-a-dope” drug trafficking trade, watch out, for police can now stop you for talking on your cellular telephone.

Notwithstanding the benefits of this new legislation, I remind citizens, that with each law passed, government effectively equips itself with greater power to intrude upon the existence of any Canadian.

Put your feet on a park bench, you can talk to law enforcement. Drive to fast, talk to law enforcement. Have a cracked tail light, talk to law enforcement. Talk on your cell phone while operating a motor vehicle, talk to law enforcement. This list goes on and on and on….

Some laws, however, are necessary. If they are broken, it is proper to talk to law enforcement. So, I agree, drive while distracted – talk to law enforcement.

David G. Chow
Calgary Criminal Defence Lawyer

Monday, August 10, 2009

Earth - A Hillbilly's Paradise

From reading articles about the duck poachers

there are at least two certainties relative to this unfortunate event:

(1) David Fraser is genuinely remorseful; and
(2) David Fraser and the other two fellas involved in the senseless murdering of wildlife are ignorant as ignorant can be.

Seriously, whenever a citizen is trekking through the back country armed with a firearm, shooting at living creatures one has to wonder whether the act is not only legal but moral.

Now, I understand the need to cull certain wildlife from farmer’s fields. Absent pest control, gophers pose risk to both agriculture and domestic animals. The risk is not just about a horse or cow stepping in a gopher hole, or about prairie dogs chowing-down on agriculture, it is about disease and pestilence spreading from an overgrown gopher population. But shooting ducks leisurely sunning themselves on a local watering hole? That’s just not the same thing. That is a distinction with a massive difference.

To be fair to the Fraser boys, I have strong suspicion that they are no different than a gaggle of other hillbillies worldwide senselessly blasting wildlife without consideration. They are, however, the ones that in an odd moment of innocent-ignorance posted their rampage on the internet for all to see. And its not just metrosexual yuppies incensed over this tragedy; for I have spoken to a number of law abiding firearms owners who are disgusted as well. They are angered because of the senseless death and perhaps even torture of beautiful creatures, but also because this kind of activity adds support to those lobbying for abolishing firearm ownership altogether. A lobby that many, including this writer, does not support.

Having said all of this, I think we should take a moment to recognize what appears to be a genuine display of remorse on the part of David Fraser. As human beings, we are of course highly anthropocentric creatures. Often, we see the world only through human eyes, with little recognition for what it is like to be something other than what we are. Interestingly, without much adieu, human beings senselessly cull the oceans of wonderous creatures on a quotidian basis. For instance, to satisfy our insatiable urge for exotic foods, we torture sharks for their fins. Sharks are perhaps the earth’s greatest survivor. The Great White Shark is a miracle of consistency. A creature that has survived "unevolved" for millions of years. Today, these splendid creatures find themselves tangled to death in fishing nets, bait lines and some have even been hunted by a host of pathetic testosterone junkies sitting in the safety of armored boats while they chum the water with one hand and drink a beer with the other. Manly I tell ya!

I guess my point is at least twofold. Firstly, as much as we are angered at the Fraser’s, we should at the very least acknowledge David Fraser for taking responsibility and in so doing, showing us that he is human. Like all humans, he is a creature capable of making mistakes. He apparently recognizes what he did was wrong. At least he is conscious. That makes him far different from scads of other people who don’t even understand or care to appreciate their moral shortcomings. Secondly, when we look at this incident, we should not only extend our concern for the senseless conduct that led to the death of ducks; we should also reflect upon the countless other creatures we destroy without much adieu. For we kill billions of other creatures with far less consideration than the carnage wrought by the Frasers.

Indeed, Earth is a hillbilly's paradise.

David G. Chow
Criminal Defence Lawyer

Thursday, August 6, 2009

Moral Culpability versus Result Orientated Reasoning -- A Brief Reflection on the Case of Daniel Tschetter

Moral culpability or moral blameworthiness sits at the heart of punishment in criminal cases. In legal parlance, the mens rea of a crime is the intention on the part of the wrongdoer to commit the criminal act. Manslaughter cases, such as the prosecution of Daniel Tschetter, involve a difficult analysis to determine what the offenders actual moral culpability is.

In Alberta, jurists rely upon a case called R. v. KKL or more often referred to as R. v. Laberge to assess moral blameworthiness in manslaughter cases. In Laberge, the Alberta Court of Appeal essentially created three primary categories of moral culpability. At the bottom end of the range -- or the lowest category of moral blameworthiness -- are close to accidental acts. The question is, did the offender's conduct create a situation whereby the oconduct was likely to cause bodily harm that was neither trivial nor transitory. In the middle range are acts where the offender was reckless or wilfully blind to the extent that he ought to have known that there was a risk of serious bodily injury. At the upper end of the range is whether the offender knew or proceeded recklessly in the face of the risk that his or her acts would result in life-threatening injuries in a manner just short of the intent to kill required to elevate the act to murder. Of course, a true application of Laberge involves a more complex analysis, but this general outline suffices to make the point. Moral culpability is on a spectrum.

Manslaughter always involves the death of another human being. The human toll is high, as is the toll exerted on the living. With this in mind, we should always remember that criminal justice cannot reincarnate or repair the loss of life. All criminal justice can do is punish the wrongdoer in a manner appropriate to the act and the blameworthiness associated with that act. There is little doubt that Mr. Tschetter did not intend to kill anybody. Like so many human beings he engaged in a form of conduct that is inherently dangerous and on the findings of fact in this case, did so in a criminal manner.

The interesting aspect in this case is that Mr. Tschetter's moral culpability arguably does not increase with the death toll. Arbuably, blameworthiness is the same regardless of whether one person died or more. Put another way, the unfortunate, unintended consequences of an act does not necessarily change the moral blameworthiness associated with the act itself. The reason I say this is to remind citizens that punishment must reflect the moral blameworthiness of the crime. Where the end result is catastrophic -- as it was in the Tschetter case -- we should be cautious penalizing on result alone.

Though I appreciate this may sound rather cold, the reality is, true justice recognizes the distinction between the degree of moral blameworthiness and the result.

David G. Chow
Calgary Criminal Lawyer

Wednesday, August 5, 2009

Proof that Traffic Safety Enforcement is Really Tax Collection

Again, following up Kerry Diotte's article in the Saturday edition of the Calgary Sun, I thought it was interesting that there was yet another brief newsflash seemingly supporting some of his research and commentary in today's edition:

As a reminder, Diotte's editorial can be found at

And yet another article on an unexplained traffic accident from yesterdays newspaper can be located at

Interstingly, today's article suggests that police were on a crackdown over the weekend targeting "unsafe" drivers. According to the article, of approximately 2756 traffic related charges in Calgary and area, approximately 2186 tickets for "speeding". Of the 2186 speeding tickets handed out by police, the article informs that a WHOPPING 2 tickets were for "over the top speeding". The remaining 550 or so tickets were for a variety of other traffic violations, ranging from seatbelt violations, impaired driving, careless driving, stunting and presumably other traffic safety or administrative offences, such as failing to carry a copy of one's license. On this note, one is left to wonder whether the "careless driving" tickets simply accompanied the 2 drivers who were over the top speeding?

Anyway, let me understand, according to my math 79% of the unsafe driving crackdown resulted in speeding tickets, of which less than .1% (2 of 2186) were for over the top -- presumably dangerous -- speeding.

In a world where 1+1 necessarily equals 2 and where 2 is necessarily the smallest even prime number, I think this information comes remarkably close to NECESSARILY supporting the view that police are not really conducting traffic safety enforcement measures, but are really conducting tax collection measures. They do so, however, under the guise of public safety.

If law enforcement was truly interested in safety, it might have ticketed far fewer drivers patrolling highways actively searching for those engaged in actual unsafe driving. Instead, safety is justification for standing at the side of the road waving motorists in for speed infractions captured on Laser -- infractions that arguably have little or nothing to do with unsafe driving.

David G. Chow
Calgary Criminal Defence Lawyer

Tuesday, August 4, 2009

(In)Justice is also blind?

I just don't know how to fairly comment on this story, because I don't want to improperly place criticism at the feet of the Calgary Police Service for a situation that was apparently started by incredibly uneducated private security personnel:

However, I do note that CPS officers were apparently part of the privately paid security force on the night in question:

Pay duty police hired for the show called in on-duty officers to help disperse the crowd outside and clear the hall of concertgoers

What is simply impossible for me to ignore is the outrageously bad optics of the photos accompanying Jason Van Rassell's article - not even attempting to count officers I can spot inside the convention centre and further down the sidewalk - in the immediate foreground there are 8 "white" male police officers facing a crowd of understandably upset "brown" concert-goers.

I put quotes around "white" and "brown" since pure skin appearance tells us little about a person's actual ethnicity and after all, I am commenting on the simple optics of the situation.

What this writer rhetorically poses is whether this scene, apparently borne out of ignorance or intolerance or possibly both, is a function of the culture of fear being propogated by government through popular media in this City.

For, it seems to me that the mere presence of a kirpan on the person of a peaceful citizen is in no way threatening...and certainly does not justify State intervetion to the level of having:

"Police officers [ring] the entrances to the convention centre, and the HAWCS helicopter [circle] overhead."

Why have the citizens of this City become so accustomed to such police involvement in our daily lives? There appears to have been no crime committed whatsoever and yet reactions by "security" people working hard to make people "safe" led to a huge destabilization of the peaceful nature of the event.

In fact, it would appear that it was the peaceful and law-abiding mindset of the kirpan wearing "offenders" and the later ejected concert atendees which prevented a full-scale riot.

(This is why I am reluctant to too quickly attack the official CPS presence, because regardless of how the situation escalated, it did pose a potential risk of getting out of control once the large crowd was forced out into the street by security)

Newsflash - to all Calgarians (not just overzealous security officers) - the overwhelming majority of the million or so others we share this City with are non-violent, non-threatening, and generally trustworthy individuals. If it were not so, law and order would surely be powerless to do anything about it.

Security and police personnel - be on your toes at all times, no doubt, but for crying out loud, consider a boring and uneventful night to be a success...don't look for trouble where none really is. Perhaps if Lady Injustice were as blind as her twin sister, we wouldn't see so much of her meddling in the routine affairs of law-abiding citizens.

Michael Bates

Accidents Do Happen

In light of Kerry Diotte's Saturday commentary

I thought this article was worth a brief mention:

This writer has stated over and over again that human beings -- subject to the condition of being human -- are prone to error. Even police officers can make mistakes.

Though we really have no information in this story as to how the accident happened, and the police haven't made the standard statement -- i.e., something along the lines of "we suspect alcohol is a factor" -- nor have they blamed speed as the demon cause of the crash, we are left to wonder whether this accident was caused by some criminalized or tortious manner of driving, or whether it was just a mistake. We may never know. Having said this, unless more information is revealed, there is no reason to think the collision was anything other than an accident. I just hope nobody was hurt.

David G. Chow
Calgary Criminal Defence Lawyer

Sunday, August 2, 2009

Perspective on Traffic Safety

In terms of adding just a bit of perspective on traffic safety, I thought this article by Kerry Diotte was worth mention:

In this commentary, Diotte cites some research demontrating that the demonization of speed and drunk driving as the root of traffic safety problems is misplaced. Driver error is actually the root cause of 90% of collisions. From this he queries, why all the resources invested into monitoring fast drivers? He poses what many drivers will consider to be the most obvious answer: the government is looking to generate revenue by conducting speed enforcement. Meaning, speed enforcement is not really about traffic safety, but about taxing citizens. Citing studies and commentary from the National Motorist Association, Diotte agrees that if government is truly interested in lowering crashes on public highways, police should be patrolling for incidents of bad driving, not just incidents of fast driving.

I thought this was an interesting article because it bluntly addressed the multitude of articles suggesting speed and impaired driving are the monster causes of injury and death on Canada's roadways. In fact, just a few pages before Mr. Diotte's article is a commentary titled "High Time To Get Drunks Off the Road":

Diotte argues from an intuitively obvious perspective -- that is, I suspect most drivers will concede that the vast majority of close calls have been caused by driver error, failure to pay attention and a lack of due diligence, not speed or drunkeness. Indeed, how many drivers have made lane changes without shoulder checking? How many drivers have been looking for an address and in so doing, followed another vehicle too closely? How many people have zipped through stop signs and yield signs because they were not familiar with the area or just made a near catastrophic mistake?

The point is, whenever human beings participate in anything, the human condition adds to the possibility of error. Take millions of human beings and put them behind the wheel of armored motor cars, and the errors can be devastating. Error doesn't make people bad, or criminal, or immoral -- it just makes them human. If we want to minimize the impact of poor judgment, mistake and bad driving on highways, then it seems Diotte and others are correct, police need to invest more energy into watching for incidents of bad driving, not just fast driving.

David G. Chow
Calgary Criminal Lawyer

Saturday, August 1, 2009

Use of Taser's Above Reproach?

It really does seem that maintaining public confidence in anything is for government agencies to say they are going to abide by some kind of regulated standard, without the need to tell the public what the standard is. For example, since the release of the Braidwood report in the Dziekanski inquiry, Calgary Police now openly laud new regulations allegedly creating uniformity in the use of tasers in this province. What those uniform measures are, however, remains largely a mystery.

Despite some claims that stun guns are only used pursuant to s. 25 of the Criminal Code of Canada,

recent decisions, such as R. v. Dianocky suggest otherwise. Of course, when speaking of taser use, spokespersons for the various police agencies neglect to advise of situations where the instrument was used improperly. Interestingly, though these situations exist, this writer cannot think of a single criminal charge arising in this province from the misuse of these instruments.

Edmonton defence lawyer, Tom Engel’s comments are noteworthy:

He noted that Braidwood recommended restricting the use of Tasers to situations in which a suspect is causing someone bodily harm or about to cause someone bodily harm, which would conform to the Criminal Code of Canada. But Engel said the Alberta rules allow police to deploy the Taser on someone who is threatening to resist arrest or resisting arrest merely by hanging onto a stationary object or pulling away from a police officer.

"In my view, their policy is illegal," he said. "It's counselling officers to break the law. It's telling them they can use the Taser without any regard to whether serious pain will be caused if they don't use it. That's what British Columbia is saying: You can't use this Taser unless it is necessary to prevent serious harm."

Indeed, police have extensive training and are able to employ a number of other tactics besides using a Taser. In this writer’s view, we should not forget that police in this country performed their job exceedingly well before the Taser. Canada is not a country plagued by officer deaths in the line of duty, and it never has been. So why the Taser? How many citizens were shot with firearms by police before the Taser? I suggest not too many.

The public needs to be vigilant not to forget about the situations that are brought into the spotlight of attention. It is short memory, apathy and fear that allows cases like Robert Dziekanski to fade into the shadows. In the words of psychologist Michael Webster: "The community will get complacent. They will go back to sleep and this research that's required won't take place. There won't be any urgency to get any good solid data."

When looking at how police employed the taser in Dziekansi, there is no question they did so notwithstanding there was no real threat to anybody, let alone the officers. Also, the police LIED in their justification.

"The Wrong Way of Worldmaking Making: One Lawyer's Opinion about the Dziekanski Inquiry":

As citizens, we must keep in mind that people get charged everyday because police have the discretion and opportunity to do so, be we almost NEVER hear about the troubling things they do in the line of duty (or outside the line of duty, as the case may be). How often are video cameras present to expose the lies and inappropriate conduct of officers such as Millington in the Dziekanski inquiry? ALMOST NEVER! It is rare to have this behavior exposed. That exposure is rare, however, does not mean the behavior is not relatively common place.

To know whether the rules governing the use of tasers are reasonable, we have to know what they are. To understand whether law enforcement is acting outside the rules, requires knowing the rules they are to act within. With this in mind, citizens must begin to police the police. The use of force must have limits, and must always be used reasonably in the circumstances of the case.

As I have always maintained, though the vast majority of police officers are hard working folk, interacting politely and cooperatively with members of the public, there are some who do not. As our police forces grow in number, the numbers of those who act outside expectations grows. When they protect themselves by lying, like Millington did in Mr. Dziekanski’s case, the only way to expose them is for the public to step forward in a vigilant crusade to ensure law enforcement acts in a manner consistent with the values of Canadian society.

As citizens, we have a responsibility. Public confidence in the administration of justice demands police behavior be above reproach. When mistakes are made, they must own up to them. A Millington-esque fabrication is never acceptable.

David G. Chow
Criminal Defence Lawyer