Saturday, December 26, 2009

Big Brother is Listening

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Obviously these are bad habits that must be avoided.

David G. Chow
Criminal Defence Lawyer

Thursday, December 3, 2009

Don't Throw Good Money After Bad Police Work

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Michael Bates
Calgary Criminal Defence Lawyer