Monday, September 28, 2009

Defending the Defence

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

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

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

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

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

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

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

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

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

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

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

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

Michael Bates
Calgary Criminal Defence Lawyer

Friday, September 18, 2009

The Hypocritical Approach to Investigating and Prosecuting

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

David G. Chow
Calgary Criminal Lawyer

Wednesday, September 16, 2009

Minimum Punishments for Immoral Fraudsters

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

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

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

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

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

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

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

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

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

David G. Chow
Calgary Criminal Lawyer

Thursday, September 10, 2009

The Ultimate Breach of Public Trust

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

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

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

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

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

According to the Library of Parliament, Legislative Summaries:

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

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

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

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

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

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

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

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

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

David G. Chow
Calgary Criminal Lawyer

Monday, September 7, 2009

Sixty Days Since Harley's Death

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

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

But perhaps that is exactly the strategy.

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

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

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

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

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

David G. Chow
Calgary Criminal Defence Lawyer

Sunday, September 6, 2009

In Defence of our System of Justice

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

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

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

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

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

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

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

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

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

This is simply not true.

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

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

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

With respect to criminal defence lawyers, the Larry Laws of the world are part of a class of citizen that would ask every honest, practicing defence lawyer, "how do you defend people like that"? To this I answer, the competent, honest and incorrupt defence lawyer does so because "...if posterity judges a free society by how it treats its individual members, it should be of considerable consolation to us all that our system does not require an accused to stand alone".

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

David G. Chow
Calgary Criminal Defence Lawyer

Friday, September 4, 2009

Taking the High Road

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

Some are more special than others.

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

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

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

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

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

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

David G. Chow
Calgary Criminal Defence Lawyer

Who is Throwing Mud in Your Eye?

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

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

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

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

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

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

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

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

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

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

David G. Chow
Calgary Criminal Lawyer

Wednesday, September 2, 2009

The Hannibal Lecter Type Sideshow A Dangerous Slippery Slope

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

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

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

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

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

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

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

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

David G. Chow
Criminal Defence Lawyer