Friday, December 31, 2010

Setting the Record Straight

To update my post dated December 3rd, 2010, I offer a sincere thank you to Minister Oberle for responding to my previous correspondence. Correspondence dated December 3rd, 2010 was received by my office on December 16th, 2010. Also, I thank Honorable Brian Mason of Calgary Buffalo for his representations resisting the passage of Bill 27: The Police Amendment Act on November 29th, 2010.

See Alberta Hansard:

David G. Chow
Calgary Criminal Lawyer
Calgary Criminal Lawyer

Thursday, December 9, 2010

Falling on Deaf Ears: Government fails to respond to citizen's concerns

This post is a follow-up to my previous post expressing concerns about the Alberta Government's Police Amendment Act 2010.

Pasted below is a copy of further communication dated December 3rd, 2010 to representatives from the various levels of Government, including Alberta's Minister of Justice (Alison Redford), Alberta's Solicitor General (Frank Oberle) and others.

Aside from the fact that the Police Amendment Act 2010 was approved by our Government and now only awaits the rubber stamp otherwise known as Royal Accent, my mini-campaign to inspire a modicum of consideration for the ultimate impact of shielding police from meaningful accountability has apparently fallen on deaf ears.

What is troubling is that not a single member on any level of Government (Municipal, Provincial or Federal) bothered to reply to a citizen they represent with even a form, "thank you for your interest", response.

A Government that is prepared to simply ignore citizens whom it represents is not democratic. Though I appreciate Ms. Redford may not be able to respond to every Albertan who corresponds with her, I doubt very much that either she or Mr. Oberle are so inundated with mail that they could not make even a "form" response in the instant case? Interestingly, as a member of the Law Society of Alberta, Ms. Redford was arguably obligated to respond, and still did not.

Additionally, given our communities are represented by Alderman (Mr. Hodges) and Members of Parliament (such as Mr. Anders), who are tasked with the important responsibility of representing their constituents, I see absolutely no excuse on their part.

These people are employed by the taxpayer to represent Canadians. In the case of Ms. Redford, for her $209,000 per year of taxpayer money, a form letter bearing her signature, stamped by one of her underlings, was minimally required.

Whether or not you agree with my views on the Police Amendment Act 2010 or anything else, I encourage all citizens to become active in the governing of this country. In my view, an apathetic citizenry is the catalyst for an undemocratic government. In the years ahead, we may not like what we see....

For what it's worth, I don't like now....


dateFri, Dec 3, 2010 at 7:02 AM
subjectRe: Bill 27: Police Amendment Act 2010 - Criticism

This correspondence is to express my deepest concerns that not a single member of my Government (Federal, Provincial or Municipal) took the time to even forward a "form" letter or "form" email regarding my response to the Police Amendment Act 2010.

Let me be perfectly clear, I did not truly expect anything more than some kind of pre-fabricated -- "thank you for your input" -- meaningless response, but I actually received less than that....

To my chagrin, I noticed the Alberta Provincial Government rammed the legislation through earlier this week, with not so much as a meaningful press release to the citizens of Alberta. I discovered the legislation had been rammed through whilst reading the Vancouver Sun.

Though I suspect nobody in any level of Government in Alberta sees any difficulty in this process, for those who actually care, I say governance in so-called democratic systems reliant upon the ignorance of the bewildered masses is no democracy at all. More importantly, I see any government that declines to make even a form response to a citizen of this country who expresses concerns about a government initiative -- a citizen whom they represent -- as a government standing in opposition to the vary tenets of democracy. A government that fails to properly and meaningfully inform citizens of its actions, intentions and initiatives is a government existing for itself, not for the people. Finally, a government that would seemingly rather keep citizens existing in a state of ignorance operates in contradiction to the fundamental precepts of democracy.

It appears the only thing that is transparent about Government is the fact that Government is not transparent at all.



David G. Chow
Calgary Impaired Driving Lawyer
Calgary Criminal Lawyer

Monday, November 8, 2010

Letter to Alison Redford, Stephen Harper et al re Bill 27: Police Amendment Act 2010

Pasted below is a copy of correspondence sent to Ms. Alison Redford (Alberta Minister of Justice), Stephen Harper (Prime Minister of Canada) et al. The purpose of this letter is to highlight my concerns with respect to Bill 27: The Police Amendment Act 2010.

It is important all citizens understand this proposed legislation represents an attempt by the Alberta Government to insulate police from accountability.

In reading the correspondence hereto follow, please understand that any criticisms leveled against police within the letter are not intended to diminish what I otherwise perceive to be outstanding service by the majority of police officers who honorably serve in the line of duty. Comments are directed in response to a small number of incidents where, all things considered, a discrete group of police officers must be held accountable for their actions. It would be highly inappropriate, if not offensive to paint the many good officers protecting the public interest with the same brush as those who do not.

In my opinion, notwithstanding the fact that legitimate citizen complaints against police only involve a small number of incidents, an appropriate system of accountability must nevertheless exist to ensure that the relatively small number of incidents do not increase in frequency.

I encourage all Canadians to speak out against Bill 27 by contacting their local MP or Alderman.


Alison Redford
Minister of Justice (Alberta)
Alberta Justice, 3rd Floor, Bowker Building
9833 - 109 Street
Edmonton, Alberta
T5K 2E8

Sent via Fax: (780) 422-6621

Sent by Email


I write to you for the purpose of expressing my concerns with respect to Bill 27: Police Amendment Act 2010. I have had the opportunity to review comments offered by the Criminal Trial Lawyers’ Association (CTLA - Edmonton) and entirely agree with their submissions.

That said I am left to wonder about the purpose of the proposed changes; especially in light of the fact that the majority of the amendments in relation to the public complaint process appear not to serve the public interest.

A plain reading of amendments to sections 19, 20, 42.1(1), 43, 45 and 47 suggest that the Alberta Government has tabled legislation creating substantial barriers to a citizen’s ability to complain or maintain a complaint about police misconduct, abuses or excesses. Given the great power bestowed upon police, I see any attempt by the Government to shield law enforcement from public complaint as a troubling step towards a society that does not fit into the notion of what is free, democratic or “Canadian”.

So that my comments hereto follow are properly contextualized, please understand that I start from the proposition police are employed in a position of trust. Given police are equipped with weapons, special equipment, powers to interfere with a citizen’s liberty through detention and arrest along with the authority to exercise tremendous discretion enforcing a seemingly endless sea of laws, there is perhaps no greater fiduciary relationship than that owed by police to the citizens they serve. Perhaps Dixon J. stated it best in Gabrielson v. Hindle, [1987] A.J. No. 1758 (Alta. Q.B.):

The police forces are given a very special niche in our society. They represent us in the protection of our property and our well-being from abuses and ravages of those who commit crime. They are given special powers and a corresponding standard of conduct is demanded of them. Police powers are to be used intelligently, fairly, and without rancour or favour. There are some rough people wandering around our country and the police must be alert to ensure that the appropriate measure of law enforcement is available to impose the will and requirement of the State upon such persons. It is for this reason that police are permitted to carry arms. They are selected for physical prowess. They are well trained in the use of weapons and martial arts and are provided with the best equipment, including highly and efficient communication systems. But notwithstanding all of these, good police work stems to a very large extent through the use of common sense and from gaining of, and retention of the respect of the public.

So with all privileges go responsibility.

With all the privileges, there must also be accountability.

Section 38(1) of the Police Act, R.S.A. 2000, c. P-17 recognizes the special role of police in our society. According to s. 38, every police officer has the authority, responsibility and duty to encourage and assist the community in preventing crime and to encourage and foster a cooperative relationship between the police and community. This cannot be merely a high sounding objective, it must be meaningful.

I fail to understand how legislation insulating police who abuse their authority from a citizen’s complaint encourages and fosters cooperative relationships between the police and public. The very existence of an open, tolerant and reasonably flexible citizen’s complaint process supplies a valuable safeguard against abuses by those acting in the line of duty. By significantly diminishing the ability of a complainant to lodge and/or maintain a grievance through a principled citizen’s complaint process creates a reasonable apprehension that Government is prepared to protect law enforcement from having its excesses scrutinized by those empowered to defend the public interest.

The irony is Government exists to represent the public interest; yet the Alberta Government tables legislation which arguably offends its public interest mandate.

Why is the Alberta Government interested in insulating police from accountability?

Though the CTLA has succinctly and effectively expressed many of my concerns, I am compelled to add a few additional comments.

Section 20

Section 20 of the Police Amendment Act 2010 stipulates a wide range of circumstances whereby a complaint can be dismissed. An action can be dismissed if a complainant “fails to attend”, “fails to answer questions”, fails to produce an item required; is “unable” to participate, “refuses” to participate, fails to “follow processes” or fails to conduct himself or herself in an appropriate manner.

It does not take a particularly active imagination to envision a plethora of reasonable circumstances to justify any combination of “failures” that may now result in the dismissal of a complaint. By way of example, perhaps the complainant is remanded in custody? Perhaps the complainant has somehow been rendered incapacitated such that he or she cannot participate? What if the complainant has been incapacitated as a result of the actions of police? Perhaps the complainant is out of the country or cannot produce an item required due to an unfortunate event, such as fire, flood, theft or the seizure of materials by police who are the subject of the complaint? Perhaps the complainant has been accused by the police of a crime and must now exercise his or her Constitutional right to silence?

Though I could certainly compose a much more exhaustive list of examples, I think the point is made.

The fact that an action may be dismissed if a complainant fails to conduct himself in an appropriate manner is highly problematic; for there is no rational nexus between the conduct of a complainant in a proceeding and the alleged police conduct underlying the accusation. An unruly complainant may nevertheless have a highly legitimate grievance. To dismiss a justified grievance simply because a complainant somehow offends a Government tribunal, or falls into error adhering to process is antagonistic to the notion that the conduct underlying the complaint ought to be determined on the basis of all available evidence. In criminal law, courts consistently refuse to permit form to rule over substance; yet it appears the Alberta Government is prepared to protect law enforcement in precisely this manner.

Section 42

Section 42.1(1) unreasonably restricts the class of complainant. A complaint may now only be brought by a “person” who was the subject of the conduct complained of, an agent of a person who was the subject of the conduct complained of, or a person who was present at the time of the incident and witnessed the conduct complained of, or a person who was in a personal relationship with the subject of the conduct complained of and suffered loss, damage, distress, danger or inconvenience as a result of the conduct.

This class limitation unduly restricts other persons or organizations acting in the public interest from launching a justified grievance. There are a many reasons why the subject of the conduct complained of may not complain. Perhaps the target of the police conduct is afraid to lodge a complaint? Perhaps the target is accused by police of a crime and due to the practical realities of criminal justice, will not file a grievance out of fear police will place undue pressure on Prosecutors to pursue conviction in an effort to protect themselves from sanction through the citizen’s complaint process? Though I am certain you will dismiss the latter example, my experience suggests police interference is a legitimate concern.

Whatever the case, it is ironic that the legislation effectively prevents a myriad of public officials, who represent the public interest, from lodging a complaint on behalf of the people whom they serve.

By way of example, Government employs Crown Prosecutors to act in the public interest. What if a Prosecutor became aware of information justifying a hearing into police misconduct? By operation of s. 42.1(1), absent authority to act as an agent, Crown’s are incapable of filing a grievance because they do not fit into the class of persons entitled to make a complaint.
Similar logic applies to any number of other groups acting in the public interest. These groups include police and other law enforcement officials, civil liberties organizations, the CTLA, city Alderman, a Mayor or even the Attorney General of Alberta, the Solicitor General of Alberta or the Prime Minister of Canada. That the Prime Minister of Canada or the Minister of Justice of Alberta (or others) would have to obtain specific authorization to act as an agent for an aggrieved party in order to advance a public interest complaint is not only absurd, it is inconsistent withthe function of public office.

In the words of the CTLA, “[t]here is no basis for this [amendment] other than to disenfranchise those who are powerless to complain or afraid or who otherwise will not complain”.

Section 43

Section 43 stipulates that if a complainant refuses or fails to participate in an investigation the commission may dismiss the complaint. Though I appreciate dismissal due to non-participation is permissive, the amendment is nevertheless impractical and arguably draconian in scope. As aforementioned, there may be any number of justified reasons explaining a complainant’s non-participation in the complaint process. What is troubling is that a complaint can be dismissed even where evidence demonstrates the grievance to be justified. This defies both logic and common sense.


It is laudable the amendments address “discoverability”. However, the one-year limitation to complain of police abuse is half the period for almost any other litigant who has a civil grievance. There are many good reasons to extend the limitation for launching a citizen’s complaint against police from one year to two years.

To begin with, any participant in criminal justice understands that straightforward criminal cases routinely take greater than a year to complete. With this in mind, it is also important to recognize that the party complaining of police misconduct may also be an accused in criminal proceedings involving the very same police officers he or she complains of. It is worth highlighting that an accused may have a plethora of legitimate reasons to refrain from lodging his or her complaint until the completion of the criminal proceedings. To reiterate, perhaps the complainant has been instructed by counsel to exercise his or her right to remain silent.

Surely a principled system of accountability will not require an aggrieved party, who is also an accused, to waive his or her Constitutional rights in order to lodge and/or maintain a potentially legitimate complaint against the police?

To continue, perhaps the complainant fears reprisal from the officers complained of, or perhaps the aggrieved party is concerned police will use their connections with the criminal justice system to influence the prosecution of the case? My experience as a former Crown Prosecutor and now full time practicing criminal defence lawyer confirm these are not fictional concerns. The very fact Crown Prosecutors routinely consult with investigators prior to resolving cases underscores the wisdom of delaying making a complaint until after the ultimate conclusion of the case.

All things considered, given the practical realities of criminal justice, a one year limitation may result in grave injustice. Trepidation lodging an immediate complaint out of fear of continued police abuse, reprisal or interference with the prosecution may delay or perhaps even stop a complaint from ever registering. Moreover, a one-year limitation arguably encourages highly abusive conduct – such as laying criminal charges by the offending police for the purpose of silencing the complainant.

A principled system of accountability cannot support these possibilities.

Section 45

Section 45(4) provides that the Chief of Police may dispose of a complaint if he or she is “of the opinion” the grievance is not serious. This is shocking!

Aside from the fact that it appears the Alberta Government is prepared to legislate a form of nepotism, the practical reality is there exists a reasonable apprehension of bias in circumstances where those complained of are essentially authorized to dismiss complaints about themselves. What a citizen or independent tribunal might view as “serious” may differ markedly from what the Police Chief views as serious. In the circumstances, I question whether any aggrieved party could ever feel they received a fair hearing when their complaint was dismissed by the leader of the very group about which they complain.

At the end of the day, I question the Alberta Government’s motive for the amendments. Politically, morally and legally, it is inconsistent to our purportedly free and democratic society to enact laws shielding law enforcement from accountability. This is what Bill 27: The Police Amendment Act 2010 accomplishes.

Though I becoming more inclined to think our legal principles are little more than high sounding, yet empty and meaningless rhetoric, I nevertheless naively believe, as Ritter J stated in R. v. Cornell, [2009] A.J. No. 448 that “Canada is not a Police State”. When my Government proposes brazen laws such as Bill 27: The Police Amendment Act 2010, it becomes increasingly more difficult to hold fast to such naivety.


David G. Chow
Criminal Defence Lawyers


Cc: Rob Anders (MP): E-mail: and E-mail:
Cc: Dale Hodges (Alderman): Email:
Cc: Frank Oberle (Solicitor General and Minister of Public Security):

Cc: The Calgary Herald: E-mail:
Cc: The Calgary Sun: E-mail:
Cc: The Globe and Mail:
Cc: Stephen Harper (Prime Minister): E-mail:
Cc: Tom Engel (Criminal Trial Lawyers’ Association)
Cc: Michael Bates (Criminal Defence Lawyer)
Cc: Karen B. Molle (Criminal Defence Lawyer)
Cc: Tonii K. Roulston (Criminal Defence Lawyer)
Cc: Deborah Hatch (Criminal Trial Lawyers’ Association)

Wednesday, August 11, 2010

Oh Canada! We stand on guard for thee...

... it is difficult to imagine a more important guarantee of freedom to a democratic society than that of freedom of expression. A democracy cannot exist without the freedom to express new ideas and to put forward opinions about the functioning of public institutions. These opinions may be critical of existing practices in public institutions and of the institutions themselves. However, change for the better is dependent upon constructive criticism. Nor can it be expected that criticism will always be muted by restraint. Frustration with outmoded practices will often lead to vigorous and unpropitious complaints. Hyperbole and colourful, perhaps even disrespectful language, may be the necessary touchstone to fire the interest and imagination of the public, to the need for reform, and to suggest the manner in which that reform may be achieved.

The concept of free and uninhibited speech permeates all truly democratic societies. Caustic and biting debate is, for example, often the hallmark of election campaigns, parliamentary debates and campaigns for the establishment of new public institutions or the reform of existing practices and institutions. The exchange of ideas on important issues is often framed in colourful and vitriolic language. So long as comments made on matters of public interest are neither obscene nor contrary to the laws of criminal libel, citizens of a democratic state should not have to worry unduly about the framing of their expression of ideas. The very lifeblood of democracy is the free exchange of ideas and opinions. If these exchanges are stifled, democratic government itself is threatened.
History has repeatedly demonstrated that the first step taken by totalitarian regimes is to muzzle the media and then the individual in order to prevent the dissemination of views and opinions that may be contrary to those of the government. The vital importance of freedom of expression cannot be overemphasized. It is important in this context to note that s. 2(b) of the Charter is framed in absolute terms, which distinguishes it, for example, from s. 8 of the Charter, which guarantees the qualified [page183] right to be secure from unreasonable search. The rights entrenched in s. 2(b) should therefore only be restricted in the clearest of circumstances.

Stated by Cory J in R. v. Kopyto (1987), 24 O.A.C. 81 and cited with approval by L'Heureux-Dube in Committed for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139 (S.C.C.).

Enough said...

David G. Chow
Calgary Drug Lawyer
Calgary Criminal Defence Lawyers

Tuesday, August 3, 2010

Rise Against! A Response to the Supreme Court of Canada's tacit endorsement of an Orwellian Police State

To sin by silence when we should protest makes cowards out of men.
Ella Wheeler Wilcox

In my narcissistic universe, I suspect I am not so unlike other souls looking out at the world through the lens of my own subjective experiences. Certainly, I see the world from a highly personalized and anthropocentric perspective, where the universe exists as a prop on the stage in the theatre of my life. In each scene, I am both the protagonist and antagonist; indeed, there are no scenes in which I am absent.

Seldom do I appreciate the sheer wonder of my existence on this planet.

I take for granted the complex machinery which is my body. I am generally ungrateful for the intricate patterns of electrical signals firing in my mind that give form, shape and substance to my thoughts. I fail to appreciate the Earth supplies my body with the essentials for life – the air I breathe, the food I devour – and that the universe is the home of this planet and its inhabitants.

I write on this webpage, ever critical of the Courts, our society, our Government, our Country – more often than not failing to acknowledge the great family which is Canada – failing to acknowledge a country where I can write on this website with relative freedom from repercussion from others who may look to censor my speech.

I acknowledge all of these things, because I am compelled to say that Canada is no longer the free country, existing on principles designed to protect human dignity, freedom and the rule of law that it once was. Without meaning to be particularly over dramatic – but appreciating I may be interpreted as such – I am compelled to say that more often than not, I feel as if my ability to exist free from the Government, securely in my own home, on the streets or even to write with relative freedom on this webpage is ever compromised by a series of minute incursions by the Government and its henchmen on fundamental civil liberties. And though I acknowledge that I have a high degree of personal investment in the most recent Supreme Court abomination – and as such, my comments to follow are likely to be marginalized as lacking objectivity – I say that the case of R. v. Jason Michael Cornell is illustrative of an academically inept, principally deficient, emotionally compromised Supreme Court of Canada that has lost its way in a world acculturated in fear.

At the outset, let me say, I encourage everyone to read Mr. Justice Fish's minority judgment. It is erudite, well written, principled and it makes sense. That said, I have a plethora of concerns with the majority decision.

The majority judgment is in my opinion, both academically deficient and principally dishonest. It ignores decades of rational jurisprudence restricting the State’s ability to enter a citizen home unannounced. It tacitly ignores provisions in the Controlled Drugs and Substances Act (CDSA) governing the use of force by police. It twists the limits of interpretation surrounding the rudimentary requirement that police have a copy of the search warrant “on their person” when entering a citizen’s sanctified domain. The decision endorses negligent police decision making, and in so doing authorizes the State to engage in violent behaviour based upon its own generalized concerns regardless of the actual evidence available to the police at the time of the search. It endorses police terrorist tactics in terms of sanctioning the use of balaclavas – the cliché symbol of criminality embedded into the collective consciousness of Canadians.

Like criminals who use masks to conceal their identity, police can use balaclavas for a similar purpose. If masked, a citizen could conceivably never properly identify police officers who act outside the rules of acceptable conduct. In a word, the majority decision is Orwellian in scope. To borrow a phrase highlighted in a British Columbia Free Press release, the Supreme Court has endorsed “Vader” police tactics.

Let me explain.

To begin with, let us do what Cromwell J and the majority of the Supreme Court of Canada simply failed to do – acknowledge the most seminal principle restricting the police use of force – Section 12 of the Controlled Drugs and Substances Act.

Section 12 clearly stipulates police may only use as much force “as is necessary” in the circumstances when conducting an arrest or search in drug cases. I hasten to note that nowhere does the majority even use words directly proximate to those in section 12 of the CDSA. And forgive me for saying it is absolutely mind boggling Canada’s highest Court, presumably staffed with Canada’s greatest and most principled legal minds, would simply ignore what is perhaps the most important and clearly articulated legal maxim governing the police use of force in drug warrant cases.

The majority commits a second puzzling error of law in its interpretation of the common law jurisprudence relating to “knock and announce”. To this end, Chief Justice Brian Dickson (as he then was) adopted then Quebec Court of Appeal Justice Louis Lebel’s dissent in R. v. Genest when he eloquently stated:

Fears for the safety of the searchers and possibility of violence can be reasons for the use of force in the execution of a search warrant. But the consideration of the possibility of violence must be carefully limited. It should not amount to a carte blanche for the police to ignore completely all restrictions on police behaviour. The greater the departure from the standards of behaviour required by the common law and the Charter, the heavier the onus on the police to show why they thought it was necessary to use force in the process of arrest or a search. The evidence to justify such behaviour must be apparent on the record, and must have been available to the police at the time they chose their course of conduct. The Crown cannot rely on ex post facto justifications.

Throughout both oral and written submissions, the Appellant and the various interveners on his behalf, (Ryan Dalziel for British Columbia Civil Liberties and Christopher Wayland for the Canadian Civil Liberties Association), consistently highlighted the “necessity requirement” outlined in both the CDSA and the leading common law jurisprudence. Despite being spoon-fed the proper legal test, the majority conveniently endorsed an erroneous and conveniently limited Government articulation of the legal standard that police need only have a “reasonable concern” about the possibility of violence or safety to the police, public or the evidence to justify the use of force. A plain reading of both the CDSA and Genest clearly says this is only a partial application of the correct legal test. That is to say, a plain reading of the both the common law and the legislation demands that once police have a reasonable concern about the possibility of violence or the destruction of evidence, they must then demonstrate it was “necessary” to use force in the manner in which they did. The mere articulation of concerns is not sufficient, for the concerns may not demonstrate why it was “necessary” to elevate the level of aggression.

The majority ultimately lays the onus of demonstrating the search was unreasonable at the feet of the accused. They do so notwithstanding the Supreme Court’s clear expression in Genest that “[t]he greater the departure from the standards of behaviour required by the common law and the Charter, the heavier the onus on the police to show why they thought it was necessary to use force in the process of arrest or a search”.

Indeed, in most instances, the Applicant bears the onus of demonstrating the Charter breach. That said, Genest was decided post-Collins, and it suggests, where there is a deviation from knock and announce there must be an evidentiary framework capable of justifying why it was necessary for police to use force as they did. This is not to say the Applicant does not bear the onus of demonstrating the unreasonableness of the manner of search, but where there is deviation from the civilized knock and announce rule, the Applicant has discharged its onus, and the heavier the burden on police to demonstrate why they thought it was necessary to use force in the process of the search.

The majority indirectly justifies the manner of search on the fact that police had a warrant to search the residence. In so doing, they fail to appreciate the warrant authorized only the search for drugs, not the use of violent police tactics in the execution of the warrant. There is a distinction between having reasonable grounds to believe drugs are in the house, and the manner in which the State goes about collecting the evidence believed to exist on the premises.

As Madame Justice Fruman aptly remarked in Crampton v. Walton, [2005] A.J. No. 178 (Alta. C.A.), the issuance of a search warrant is not a “… carte blanche to the police to execute the warrant in any manner, with any level of aggression and with any type of restraint or detention they see fit”.

To suggest police can simply storm a house based upon their own generalized safety concerns is to, as Justice Casey Hill asserted in R. v. N.M.H. endorse “…a broad strike zone associated with public safety of “better safe than sorry” assigned to police discretion.... Police actions must be authorized by law. Discretion cannot be unreasonably exercised or at odds with statutory and common law limits”.

The manner of conducting law enforcement is therefore not solely determined against a backdrop of possible risk to those serving in the line of duty. It is determined upon a reasonable approach to law enforcement, including a risk assessment, reasonably made on the basis of all of the information and intelligence available at the time. Whenever police conduct any kind of search, and in particular, a search of a private dwelling, they are acting on a legally permissible degree of supposition, not certitude. The fact that the police could be wrong highlights the need for them to conduct business in a peaceful and civilized way.

British Columbia intervener, Ryan Dalziel eloquently argued that “generalized concerns” should never suffice. Indeed this makes sense.

Doubtless, police work is inherently dangerous. Merely investigating any offence, including run-of-the-mill traffic infractions, presents with inherent dangers (as remote as they may be). In Cornell’s case, neither he nor his mother had any history of criminal behaviour or violence. Even the purported gang member who entered the Cornell home just four times over 30 days was in police custody approximately 1 hour prior to the search. That person had no criminal record at the time of the investigation. In months of surveillance, the other alleged gangster of interest was never observed to enter the Cornell residence. There was no intelligence suggesting the Cornell’s were members or even real associates of any organized crime group. Indeed, they were not. Those are the facts; and despite those facts, the majority determined no reviewable error relative to the police decision to storm the home paramilitary style.

The majority unacceptably marginalized the Appellant’s argument about the complete lack of communication between the tactical team and investigators responsible for supplying the information required for TAC to determine whether force was necessary. To this end, Cromwell says, “the appellant submits that the search should be held unreasonable because there was some missing paperwork and lack of communication within the Calgary Police Service”.

From this passage, it is clear Cromwell has little or no appreciation for the importance of the “risk assessment” (or as he calls, missing paperwork). The risk assessment document is paramount, for it outlines police intelligence used to support of the conclusion that it was “necessary” to elevate the level of aggression during the search. In the instant case, the risk document was more than merely “missing paperwork”, it was non-existent paperwork. That is to say, it was not completed until after the police stormed the Cornell home. Let me say that again, the so-called missing paperwork did not even exist at the time the tactical team breached the Cornell residence! It was created ex post facto.

Even more troubling, the risk assessment did not even factor in the Cornell’s as people. That is to say, they were not mentioned anywhere within the paperwork! The entire risk assessment discussed two alleged gang members – without actual criminal records for violence – one of which was never observed in the Cornell home, the other who was observed to only visit the residence four times over thirty days and who was in police custody at the time of the search. Cromwell and the majority of the Supreme Court agreed with the majority at the Alberta Court of Appeal that the risk assessment and the lack of communication was a “moot point”.

Frankly, considering the legal requirement that police must demonstrate why they thought it was “necessary” to use force as they did, this interpretation is baffling.

If investigators responsible for communicating information capable of supporting the necessity requirement never communicated the information required to ground the “necessity” assessment, then how could those responsible for deciding to use force ever properly make the decision that it was actually “necessary” to use violence when they were never fixed with the relevant information? The only information supplied by investigators to the tactical team was a little bit of detail about the alleged gangsters (who were not reasonably anticipated to be in the house at the time) and the location of the residence “address-wise”. Surely this does not meet the heavy onus on the police to demonstrate why they thought the use of force was necessary. By all accounts, it appears the police put little thought into the subject at all.

In this writer’s view, this is frightening. Imagine, unbeknownst to you, your home is visited occasionally by somebody under police surveillance. If your door was kicked-in; your house stormed by men in dark clothing wearing masks with firearms drawn; your family physically engaged by the intruders who turned out to be police, wouldn’t you at minimum want to know that law enforcement actually made best efforts to factor you and your family into their decision to storm your home paramilitary style prior to doing it?

I wonder how Cromwell and his merry bunch would feel if they were in Lorraine Cornell’s shoes?

As a citizen of this country, I have the minimum expectation that when law enforcement engages in violence during the execution of their duties, they do so only after having rationally considered the need to do so within the framework of their particular circumstances. I do not disagree police require latitude to make such decisions. After all, they are the people making decisions in the moment.

But the Cornell case was not a split-second scenario where all of the exigencies of the situation were erupting in a manner of seconds, or even minutes. It was a case where law enforcement was blessed with the benefit of time. And they did not even take the time to factor-in the family residing in the home or even to complete a rather sparse two-page document so that they could demonstrate a certain level of thoughtful consideration that masked unannounced forced entry into a dwelling house with machine guns was necessary.

I could certainly wax-on at length about a myriad of other problems with Cromwell’s decision. Suffice it to say, however, my words are meaningless, especially to the extent that they can help Jason Michael Cornell. So let me speak, just for a moment about this young man. I say to all who prefer result orientated reasoning, you can take solace in the fact that Jason Cornell was indeed in possession of the drugs. He never denied it.

From this, let me respond to all of the bloggers and tough on crime critics who have applauded the gaoling of a “drug pusher”. You are simply wrong on a couple of key points! Jason Cornell is not, was not, and never has been a drug dealer. In 2005 he was a 19 year old kid who made the imprudent decision to hold drugs for a friend because he wanted to belong. At the time, he was a 19 year old without a criminal history, living paycheque to paycheque with his mother, working full-time driving a forklift. While he was accepting rides, taking the bus and hauling crates in a local warehouse, his high school friends were driving luxury cars, wearing designer clothes, sleeping-in and spending their evenings commiserating with friends. Since the charges, he has become a father and in every respect a loving parent.

When I spoke to him after the Supreme Court decision, he said “I have to do the time. It’s not like I’m not guilty. I am. Thank you for trying. Thank you and Mike for giving me some extra time with my daughter”.

As these words were being spoken, Jason was packing his belongings for storage at his mother’s house; as he was readying to voluntarily surrender himself to jail. No police officer had to pick him up. He surrendered on his own.

When assessing this case and what it means to all Canadians, simply suppose the police were wrong when they stormed the Cornell home. That is to say, they did not find drugs. Now ask yourself, if every other fact remained the same, would you still applaud the police use of aggression?

This appeal was about what I perceived to be a violation of a series of simple legal maxims designed to protect all Canadians. Looking into my crystal-ball let me tell you what this decision means for Canadians.

Post Cornell, no police officer who initially storms a home in Canada is required to have the search warrant on his or her person. Having regard to the language of s. 29 of the Criminal Code of Code, this is shocking. In present day, where paper can be easily photocopied, folded and inserted into a pocket, it is troubling to think our highest court would actually legally endorse police to enter a home without a copy of the search warrant on their person. In a situation where a citizen might view surprise entry by masked men as a home invasion by armed criminals rather than police engaged in law enforcement duties, it is simply shocking that at least some of the police storming the Cornell home were not required to carry the very instrument that may derail resistance from the home’s occupant. In my perspective, I say again, this is shocking!

After all, how hard is it to carry a copy of two or three page document? Is it heavy? Is it awkward? Is it difficult to reproduce? Does paper present with any qualities that make it generally impracticable or unfeasible to carry when conducting a search? I challenge anybody to prove that it does!

It is interesting that Cromwell and the majority conveniently forgot about a packed vault of jurisprudence, including Genest, that warns against justifying Charter infringements ex post facto. Yet, when Cromwell says, "nobody asked to see a copy of the warrant", he offends this most rudimentary legal maxim.

In light of all of these errors, I am left to wonder if McLachin, Charron and Rothstein read the same judgment I did.

The case of Jason Cornell will now be brandished by Crown Prosecutors from coast to coast to justify the police use of force in the execution of search warrants. Based upon the facts of this case, it’s difficult to conceive of a situation where the police cannot storm a home wearing balaclavas with guns drawn, without carrying a copy of the search warrant.

Arguably, the Supreme Court has lit a beacon for carte blanche use of force by law enforcement to use any manner of force, any degree of arrest or detention that they see fit. History warns about sanctioning such conduct. But if a Police State is what they had in mind...congratulations!

As far as Canadian Courts are concerned, Cornell’s case is at the end of the line. But I say, the case should not disappear from our collective consciousness. This case is about our society’s willingness to tolerate brute police behaviour, or as it has been aptly described by others, our tolerance of “Vader” police tactics. To sanction such State conduct is to take a leap closer to the creation of an Orwellian Police State, where citizens exist at the mercy of those in the service of Government.

What this case signals is that it is time for Canadians to wake from their slumber – to rise against those who wish to incrementally diminish the fundamental freedoms upon which this Country was formed. A citizen’s dwelling house has hitherto received special recognition by Canadian courts. I say, rise against those who seek to marginalize the sanctity of home. I say rise against Government initiatives to pack courts with partisan supporters by relying on the opaqueness of the appointment process. Did you know Cromwell was appointed to the Supreme Court notwithstanding he was never questioned by an ad hoc Parliamentary committee?

We must demand State compliance with our fundamental civil liberties. We must demand transparency in the appointment of our judiciary, for in secrecy, our Government can create a partisan bench, appointed upon political affiliation rather than demonstrable legal merit.

Ironically, more often than not, demanding State compliance with our Charter rights occurs in circumstances involving the ignoble deviant. For it is through the purview of our criminal law that civil liberties are most often engaged.

It takes great courage to protect civil rights on the basis of Charter violations against those whom we seek to punish. I say the signature of an intelligent and principled society is one that will not permit State transgressions, even against those accused of crime. Finally, I say the majority of our Supreme Court of Canada has failed to meet this standard.

I am often asked, how do you defend people whom you know are guilty? I respond: “easily”. For by forcing the State to convict even those who may be guilty on principled grounds is to ensure that an overzealous Government will not convict the innocent on unprincipled grounds.

Thomas Jefferson once powerfully stated “tyranny exists when the people fear the Government; freedom exists when the Government fears the people”. In R. v. Cornell, I fear our Supreme Court has tacitly endorsed the former.

David G. Chow
Calgary Criminal Lawyer
Calgary Criminal Defence Lawyer

Further Reading: "Flawed Ruling Means Police Don't Have to Knock First"

Saturday, July 17, 2010

News Media an Exclusive Playground for Pro-Police Lobby

Oh, people can come up with statistics to prove anything, 14 percent of all people know that.

Homer Simpson

The word “news” is a misnomer that really ought to be substituted with more appropriate language such as, propagandists, advertorialists, fear mongerers , cheap salespersons.

The word “cheap” aptly describes the so-called reporting transmitted in newspapers and airways across Canada, and in particular, in Calgary, Alberta. A daily read of Calgary’s local media highlights the complete lack of investigative reporting by second rate authors and purveyors of misinformation or half-truths.

Reporting about budget cuts to the Calgary Police Service underscores my point.

Following this story like shark’s tracking a chum line, the news media has appropriately informed Calgarians about anticipated budget cuts to Calgary’s Police Service, but in so doing, it has apparently been baited by self-serving informers who use news as a platform to advance their particular cause. Rather than providing a balanced perspective, replete with information so that citizens can determine whether their tax dollars ought to be slashed from the police budget, the “news” has seemingly become a near exclusive medium for the police lobby to campaign for public support. A daily read of Calgary’s local newspapers – the Calgary Sun and Calgary Herald – supports the argument that these mediums are little more than sounding boards for various preferred lobby groups such as the CPS.

Now, I am not saying the news should stop speaking with these various groups. Rather, I am saying they should stop blindly reporting information without conducting a measure of real investigative journalism.

For example, if one was to blindly accept Police statistics that the reported 32% reduction in property crime was solely due to increased numbers of beat patrol cops it would be easy to feel trepidation about the impact budget cuts would have on public safety. These statistics, however, could be highly misleading.

Just for a moment, let’s rewind the clock to December 9th, 2008 when the City of Calgary revoked the business license for the downtown Cecil Hotel. Now fast-forward just a little more than a month, to Mayor Dave Bronconnier’s comments reported by the CBC on January 22nd, 2009 where he informed us that since the City’s 10.9 million dollar purchase of the Cecil Hotel, crime in the area dropped by 85%.

In that same article, Louise Gallagher, a spokesperson for the Calgary Drop-In Centre aptly commented that since the Hotel’s closure drug dealing and other crime may not be “as visible” but it’s still there. To be fair, Police Chief Rick Hanson also recognized the “visibility” issue when he said, “we’re not naive enough to think the crime has gone away”.

For the purpose of this exercise, let us begin by looking at Mayor Bronconnier’s use of statistics.

Essentially, he lauds the City of Calgary’s decision to revoke the notorious Hotel’s business license and then justifies the 10.9 million dollar use of municipal tax dollars to purchase the property by suggesting the expenditure was worthwhile because it resulted in an 85% reduction in crime in the area. This is certainly a prima facie compelling statistic.

During this same period, the Calgary Police Department was lobbying for more public money to fund additional manpower and police initiatives for 2010 and 2011.

This lobby continued in 2010 with the CPS ringing the public safety alarm in response to a looming 5% budget cut resulting in a 14.8 million dollar shortfall to police coffers. According to police, this cut will result in 120 fewer police, tabulated as 55 current positions and 65 positions in 2011.

A recent ad “in support of the Calgary Police” argues that increased police presence has resulted in a decline in drug activity and other crime on Calgary streets. The ad suggests a 32% reduction in property crime, a 21% reduction in person crimes (whatever that means) and a 26% reduction in disorder events. The purpose of the ad is to garner public support to protect the police budget.

Again, on the surface, these statistics are compelling, but in the words of Homer Simpson, “statistics can be used to prove anything, 14% of all people know that”.

Well, I am not saying these statistics are incorrect or even necessarily inappropriate. What I am saying is that on the information provided, I cannot reasonably decide for myself whether these statistics are misleading or inappropriately used. For example, I have a difficulty reconciling a reduction in drug crimes or a 32% reduction in property crimes with the alleged 85% reduction in crime in the area of the former crime hotspot, the Cecil Hotel.

As a lifelong resident of Calgary, I take “citizen’s notice” that the Cecil Hotel was nothing short of a visible cesspool where a plethora of criminal offences were committed in plain view of anybody who stood and watched for long enough. In fact, when my mountain bike was stolen from outside the epicentre of Calgary’s Red Mile on 17th Avenue south west – Melrose – I simply attended at the Cecil Hotel and within about 15 minutes of scanning the inhabitants, found the bike at the liquor store in the parking lot. It was in plain view. I didn’t need Magnum P.I., Starsky and Hutch or any other brand of super detective to locate my stolen property.

While merely walking the area, I observed a number of individuals who were clearly intoxicated in a public place (a possible “disorder event”); other persons possibly dealing drugs or engaged in what appeared to be prostitution (a possible “person crime”).

This leads to my second point: eliminating a plain view crime hotspot provided an easy mechanism for claiming crime reduction, for the alleged criminal activity is no longer visible and thus not as easily tabulated. Put another way, the alleged reduction in certain types of crime, such as drug trafficking, may be closely connected to the elimination of a high crime hot spot where such activity was easily observed.

Doubtless, police patrolling in District 1 (downtown) conducted a high number of criminal investigations and arrests in the area of the Cecil. In a sense, despite the Cecil’s reputation and the problems associated with the area, it acted as a kind of crime containment where investigations were logically directed and arrests often made. The activity ordinarily conducted in the neighbourhood of the Cecil Hotel has likely distributed elsewhere, and in so doing, may be more difficult to detect.

The point is, there is a close connection between crime statistics, crime reporting and crime detection.

The Cecil provided fertile grounds for crime reporting and detection, the reduction of which logically corresponds to a statistical reduction in criminal activity.

To say the reduction (or the level of reduction) is necessarily caused by increased police presence may be just about as specious as saying the existence of limestone on City streets protects citizens from being invaded by wildlife.

Again, dialogue in a Simpson’s episode illustrates the point.

After a single bear wandering into town has drawn an over-reaction from the residents of Springfield, Homer stands outside his house and muses, “Not a bear in sight. The Bear Patrol is working like a charm!”

Lisa Simpson responds: “That’s specious reasoning, dad. By your logic, I could claim that this rock keeps tigers away.”

Confused, Homer responds: “Hmm; how does it work?”

Lisa: “It doesn’t work; it’s just a stupid rock!”

Homer: “Uh-huh.”

Lisa: “… but I don’t see any tigers around, do you?”

Homer: “Lisa, I want to buy your rock…”

The point is, increasing the police budget has not necessarily resulted in decreased crime (at least to the extent claimed by the police lobby), just as eliminating the Cecil Hotel has not necessarily decreased the total amount of overall crime in Calgary – for the Cecil crime has probably re-distributed to other communities. But eliminating a visible hotspot may have impacted the number of crimes “reported” thus creating a fallacious statistic pertaining to the number of crimes committed; thus begging the question: has increased police presence really resulted in a meaningful decrease in crime?

In a 2009 article titled “Credit where credit is due: lobby for more police truth ruse” I mused over the police lobby for additional officers.

To that end, I stated:

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 epicentre 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 behaviour -- 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?

Suffice it to say, I continue to have difficulty resolving the question.

Unfortunately, our Calgary media is so devoid of meaningful investigative reporting that we cannot count on it to inform us in any meaningful way. I am left to feel as if we are in an informational abyss where fast food reporting by indolent news agencies leaves us susceptible to being duped by lobby groups using statistics out of context to advance their agenda.

Speaking about context, the message about police cutbacks has been delivered in a rather interesting way. Phrased by Chief Hanson et al, the 5% reduction will result in 120 lost positions, including 65 positions slated for 2011. Analyzed properly,however,of the alleged 120 positions in jeopardy, only 55 of those positions directly pertain to the time period of the so-called crime reduction; for the 65 additional officers budgeted for 2011 had yet to start walking the beat. So, the police haven’t really lost 120 positions; they have lost 55.

This begs the question, how many of those 55 officers how many were assigned to beat patrol? How many of those officers were placed on City streets to allow others to engage in administrative duties? How many officers currently on administrative duties or engaged in special projects could be re-diverted back to City streets?

As a citizen, I can say in no uncertain terms, the Calgary Police appear to be using their additional resources to conduct a form of armed tax collection; for the sheer number of speed traps and traffic patrols appears to have increased dramatically. In my experience our police department appears to be highly concerned about traffic safety in areas outside Calgary’s jurisdiction, for the police conduct speed trap enforcement on the borders exiting the City on a quotidian basis. Is there really a connection between controlling traffic exiting the City and public safety “in" Calgary?

How many of the 65 new officers were slated for traffic duty? How many were slated for beat patrol? How many were slated for other tasks not associated with street presence?

The point is, the police lobby tells us they are “losing” 120 officers, when in fact, they are really only losing 55.

Now I see that a lobby group has actually paid $10,000.00 for an advertisement in the Calgary Herald “in support of the police”. Let’s take a look at the group responsible for paying for the ad.

Calgary Crime Stoppers is an agency sponsored by a number of groups, including Penn West Energy and the Alberta Government.

The ad was also funded by the Calgary Downtown Association (CDA). The CDA is a group consisting of downtown businesses interested in supporting the vitality of Calgary’s downtown core – certainly a laudable objective. For the purpose of this article, it is interesting to recognize that Keith Luft of Penn West Energy sits on the board of directors. The CDA’s partners consist of the Calgary Herald (the newspaper where the ad was posted) and the City of Calgary (the municipality whose Mayor is presently advocating to increase the police budget).

By the way, Penn West Energy also funded the ad.

I am not a reporter, let alone an investigative journalist, but I was nevertheless able to find a number of rather incestuous connections between the various groups funding the advertisement in support of the police. I located this information in just under 15 minutes.

The point is, the news media has arguably become so tragically dependent upon scraps left behind from its various primary sources (such as the Government or as some of us like to call it, "the Regime") that it either fails or declines to engage in even a minimal amount of true journalism designed to inform public debate.

It would be interesting for somebody to more fully investigate the police budget. How are funds really being used? Are they being spent on police officers or on other projects not highlighted for public attention. By way of example, in recent months the Alberta Government has dramatically decreased Legal Aid funding and in response, Legal Aid has changed its financial eligibility requirements and significantly cutback on certificates for funding lawyers to represent citizens in need. The Government has underscored an approximate 30% increase in lawyer costs associated with certificates, but they have not highlighted the fact that Legal Aid infrastructure (such as costs for leasehold improvements) increased by in excess of 1500% percent; that special projects increased by upwards of 120%; that there has been stupendous increases in other departments within Legal Aid having little or nothing to do with lawyers or the people Legal Aid was designed to help.

What if the Calgary Police Budget was managed in ways similar to Legal Aid? What if the police spent millions of tax dollars engaged in special projects or buying expensive motor vehicles and other equipment not reasonably required to conduct either good or efficient police work?

I mean, it was reported that the Calgary Police Department sent 150 officers to the G-20 in Ontario for the purpose of providing security. They sent 75 officers to the Winter Olympics in Vancouver, British Columbia. But when it comes to spending tax payer dollars to police our growing metropolis, the Chief claims the alleged loss of 55 officers is going to have an impact on public safety?

A convenient commment.

Though I appreciate what I am about to say suffers from its own logical frailties, if Calgary can afford to send 150 officers to Ontario, they arguably do not really need the 120 officers purportedly slated to be cutback to a reduced budget.

It is worth recognizing the Calgary Police Service represents the single largest expense for the municiplaity, so why should they be any different than any other Government department required to cutback in tough times?

Will there really be any meaningful impact on public safety? I am sure in 2011 the police lobby will present statistics to claim it so.

Unfortunately, it appears we cannot really count on our news media to expose these types of issues or to inform public debate.

David G. Chow
Calgary Criminal Lawyer
Calgary Criminal Defence Lawyers

Wednesday, June 16, 2010

A Token Non-Apology by Immoral Fraudsters

The Access to Information request confirms the R.C.M.P 'apology' for the death of Polish immigrant Robert Dziekanski fits squarely into the category of apology type: "I'm sorry you are offended" -- meaning, not really sorry at all.

When juxtaposed against the April 1st, 2010 feeble attempt at an apology by R.C.M.P Deputy Commissioner, Gary Bass, it has become perfectly clear that the members of Canada's national law enforcement agency are prepared to lie about just about anything.

On March 13th, 2009, I wrote an article titled, "The Wrong Way of Worldmaking: One Lawyer's Opinion about the Dziekanski Inquiry"

At this time, concerns were expressed about apparent lies told by Kwesi Millington and his fellow R.C.M.P officers about the tasering death of the Polish immigrant. There was little correspondence between the concoction offered by the R.C.M.P. and the shocking video captured by a citizen at the Vancouver airport. As was concluded in the Wrong Way of Worldmaking article:

If police can avoid meaningful responsibility by creating misleading reports, then what deters any law enforcement official from simply doctoring notes, tainting an investigation or disclosing nothing at all? Surely shifting the cost-benefit pendulum to favour the creative use of fiction as a means of avoiding meaningful accountability cannot be condoned? After all, a system of justice that does not seek justice against itself is no justice at all.

The captured email of Deputy Commissioner Gary Bass highlights the fact that when the R.C.M.P is expected to seek justice against itself, it will do so in the most disingenuous way -- a manner that actually perpetuates lies, insults the intended recipient of the purported apology and offends the integrity of our justice system -- which expects its law enforcement officials to act with integrity, not like immmoral fraudsters willing to say just about anything to cover their collective behinds.

David G. Chow
Calgary Criminal Lawyer
Calgary Defence Lawyers

Tuesday, June 15, 2010

Sometimes "Real" Justice Feels Really Bad

Criminal law is a field where it is difficult to feel good about, well... much of anything.

Our society is saturated with incidents of alleged criminal behaviour, ranging on a long spectrum from relatively minor infractions by ordinary citizens, to the most disturbing kind of conduct committed by people apparently acting far outside the moral boundaries of everyday society. To our chagrin, we even see law enforcement officials -- police officers -- charged with committing criminal offences. Sometimes, these allegations occur while the officer is actually on duty.

See for example:

As a practitioner in criminal law and indeed as a citizen, I extend my deepest sympathies to the family of the Strathcona teen who was assaulted and seriously injured. Doubtless, the family received little consolation from the trial of a pair of teens charged with assaulting and seriously injuring their teenage son. The two teenagers ultimately plead guilty to reduced charges, "causing a disturbance" and "possession of a weapon dangerous to the public". The more serious assault allegations were withdrawn.

See Calgary Herald: "No Assault Convictions in Swarming Beating of Calgary Teen":

I extend my deepest regrets to the teen, Blair Palmer, who sustained serious injury as a result of the incident.

What a terrible toll for this young man and his family.

In light of everything that happened, I would understand if the Palmer family blamed the criminal justice system for the outcome -- but I am so impressed they do not.

In the words of Robert Palmer,

"I'm not going to blame the system, the police or the Crown. The system is an awfully easy target . . . If you're going to blame someone, put it squarely on the shoulders of the people who did this and did nothing to stop it. And put it squarely on the shoulders of people who were there and witnessed it and didn't say a word. They know who they are and they have to live with this for the rest of their lives."

Indeed, the system is an easy target, but in this case, not a warranted target.

Doubtless the police and crown did everything to prosecute those it believed responsible for Blair Palmer's injuries. Doubtless, the Crown made a very difficult, yet highly ethical decision to withdraw the more serious allegations based upon the evidence available.

Though this is not a feel good outcome, in our society which prosecutes criminals according to the rule of law and adheres to the presumption of innocence requiring the Crown to present evidence of proof "beyond a reasonable doubt", this was the right outcome. For I firmly believe, if there was better evidence in this case, the Crown would not have made the decision it did.

At the end of days, when there is a reckoning and the fabric of the universe is unspun, perhaps real justice will be served; but for the purpose of our human system, there is no fault in adhering to axioms designed to ensure the propriety of criminal convictions.

That is what the Crown did in this case. That is what police did in this case.

I have always said that in criminal justice it is easy to charge everything; prosecute everything; seek the highest penalty for everything; give the highest penalty for everything; but the mark of courage in our justice system is to evaluate a case in difficult circumstances and apply a truly principled approach.

Sometimes such an approach means not to prosecute at all....

David G. Chow
Calgary Criminal Lawyer
Molle Roulston Chow

Saturday, June 12, 2010

Appearances Deceiving? Or just a little too Casual

Rarely have the writer of Calgary Criminal Lawyer Weekly and I disagreed. We have hitherto never openly disagreed in opinions voiced on our respective blogs.

I suppose there is a first for everything -- or at least a partial first.

"Real Life is Not Hollywood" -- by Michael Bates:

At the outset, let me mark a point of agreement.

Did Cst. Lind "let" the 18 year old die, or somehow contribute to his demise as a result of indifference? No.

I agree Lind is not responsible for the young person's death. I agree, there is no evidence the officer was driving dangerously (in fact the reported evidence is to the contrary); that he rammed the SUV off the road or that he did anything else to cause the crash other than do his job. He did not even pursue the vehicle with emergency lights and sirens. A prudent decision in the circumstances.

I agree, the person may have in fact been dead already.

Overall, I agree with Mr. Bates and others: this is real life, not Hollywood.

But when faced with a burning SUV, an allegation that the vehicle "fled" police and a probable criminal investigation, I would expect -- even in real life -- the investigating officer to act with a little more urgency than what was reflected in the video. The officer's rather lackadaisical saunter from the front of his marked police unit, to the trunk, to the burning SUV and around the car struck me as simply just too casual an approach in the circumstances.

Even if the passenger was already dead, one might think removing the presumptively lifeless body from the wreck would have been a priority? Surely paramedics are not going to administer emergency treatment whilst the body remains in a burning vehicle? Surely preserving what was left of the person inside of the motor vehicle from the possible scorching effects of a spreading vehicle fire is important?

I certainly appreciate the passenger may have been involved in some kind of illegal activity (though since he/she was not the driver, one might still wonder about that); but even criminals, or ordinary persons who exercised a period of incredibly poor judgment ought to be spared the indignity of having their remains potentially desecrated by fire. Let us remember, these people have family too. In my mind, removing the body deserved greater priority than what was displayed; for it seemed to me, that in four minutes, the fire could have spread. And just what if -- what if -- the passenger could have been saved by timely emergency medical treatment?

Now, I am not saying Cst. Lind sauntered his way to the vehicle and then declined to immediately remove the passenger because he was carrying out some kind of street justice, or was operating with some kind of "you get what you deserve" attitude. I am not saying he was even obligated to remove the body or that its removal was even the most immediate priority. Afterall, I am not a policeman. I wasn't at the scene. But even though I want to be cautious acting as an armchair cop, the situation in my mind demanded more urgency than the energyless exhibition displayed on what Mr. Bates correctly characterized as a poor quality homevideo.

See CBC News article, "2 Die Fleeing Calgary Police":

Though I wonder about the frequency of car thieves setting vehicles ablaze when pursued by police, Calgary Police Association President John Dooks makes a logical point: "The officer's duties are first of all to check on people in the area, the residents of the building ... even determine if there's anybody in the vehicle...".

Indeed, this makes sense.

However, merely "checking" is not enough; for the entire purpose of making the determination is so appropriate action can be taken. If the situation calls for it -- ensuring a person does not remain in a potentially harmful situation potentially entails quick and decisive action where it can be safely taken by emergency responders.

Now I am not saying Cst. Lind ought to have placed himself unreasonably in harm's way. Indeed, though the video certainly clearly shows a smoldering fire, there is nothing depicted to suggest imminent explosion. What I am saying is that it appeared a little more urgency would not have been unreasonable. At the very least, it might have mitigated concerns that the approach was just a little too casual in the circumstances.

Let me end by saying, this is not about superhero antics, or running around at the expense of keeping a level head; it is about the responsiveness of emergency responders. It is difficult to deny a cautious initial approach within the first minute, but in the other three?

Unfortunately, viewing this case from the outside, we do not have all of the information. Viewing this case through the eyes of this poor quality home video, however, and I cannot fault those for their opinion that the response lacked the degree of urgency required....

I agree we should be concerned about the family, friends and loved ones who are doubtless presently experiencing tragic loss. Viewing the situation through their eyes -- coupled with potential "what ifs" -- I sincerely hope three minutes would have made no difference....

Read more:

David G. Chow
Calgary Defence Lawyer
Molle Roulston Chow

Tuesday, June 8, 2010

Does our Government Fear the People?

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.
Thomas Jefferson

Question: Does any branch of Canadian government, whether it is Municipal, Provincial or Federal, truly fear the people?

Given Canada purports to be a country of free people, where its Government acts on behalf of its citizens, this question, as juxtaposed against the powerful statement by Thomas Jefferson, is important. For if our Government does not fear the people, one is left to wonder whether Canadians really exist in a free and democratic society, or whether such belief is becoming more illusion than reality.

Now, I am not saying Canada is not a wonderful place to live; or that citizens in our country do not exist as relative free people. What I am saying is that we need to be ever vigilant in asking questions that enliven the collective consciousness so that our Government remains honest and our liberty does not become illusory.

In querying whether our Government fears its citizens, it is productive to apply this basic question to everyday events identified in the media and elsewhere.

For example:

When our elected representatives refuse to make transparent spending the hard earned money of Canadians, do they fear the people?

See "Harper Sidesteps Audit Fray":

See "Opposition to Spending Audit could bite MPs in the Wallet":

It is important to remember, the Government does not earn its own money. By operation of law, it takes money from its citizens and presumably spends it in the best interests of the people. And it is not just about spending the money of Canadians, it is about spending dollars that have been extracted from the labour of Canadians. So when the Government has become so indifferent to its citizens, where it simply declines to reasonably disclose Government spending -- and in particular -- expense accounts, it is questionable whether it fears those from whom it is collecting its revenues.

When our Government enacts laws to pillage the private property of its citizens or uses such laws to pursue citizens without grounds to do so, does it fear the people?

See "Restitution Act does a Nifty End-Run around Civil Liberties:

In the Thompson case, the Alberta government pursued the legitimately owned private property of a law abiding senior citizen. But for the efforts of Ms. Thompson and her lawyers, Michael Bates and Karen Molle, it arguably would have done everything in its power to claim her property. In any event, there was no evidence to the contrary.

In pursuing Ms. Thompson, the Government was not contrite; it offered little or no care for a Canadian who did nothing in her life other than work hard, obey the law and make Alberta a better place to live. It was only after a Justice of the Court of Queen's Bench ruled against the government that it offered a token apology.

Does this conduct strike anybody as a Government acting in fear of the people?

When Government is in the business of creating and enforcing criminal and quasi-criminal offences for the purpose of generating additional revenues, does it fear the people?


When Government uses fear to legitimize the expansion of police powers to intrude on the private lives of citizens, does it fear the people?

When Government is prepared to make everyday citizens charged with crimes the local pariah by publicly denouncing them in the press, but keeps secret the identity of law enforcement officials who have offended the law, does it fear the people?

When Government actually proposes a bill making it illegal for citizens not to vote, does it fear the people?

Arguably, the everyday conduct of various levels of Government suggests that it does not fear the people. That said, whether citizens are afraid of the Government or not, the next question is, should they be?

Of course, in the words of Thomas Jefferson, "People should not be afraid of their Governments. Governments should be afraid of the people".

In this writer's view, Government acting without fear of the people, is Government acting on the edge of tyranny.

David G. Chow
Calgary Criminal Defence Lawyer
Molle Roulston Chow

Thursday, June 3, 2010

Robber Barons

You might recall an article posted on this blog last year titled "Proof that Traffic Enforcement is Really Tax Collection:

Though our local constabulary will justify detaining drivers on the basis of traffic safety, today's article in the Calgary Herald "Calgary Police Budget Takes 4M dollar hit as fines drop and Overtime Increases" is further proof that Joe Citizen's opinion about the purpose of traffic enforcement is true: the Boy's in Blue are not really concerned about safety -- they are worried about the bottom line.

Hiring police and extra police is costly.

Paying pensions and overtime is costly.

Driving Dodge Chargers, Ford F150 pickup trucks, Harley Davidson Road King Motorcycles, SUVs and host of other vehicles (including Airplanes and Helicopters) to supplement the fleet of Crown Victorias is most certainly expensive.

With this in mind, do some of these vehicle purchases smack of a complete lack of utility?

Seriously, motorcycles in Calgary? Really?

It seems difficult to justify a two wheeled vehicle purchase considering the weather in this City seldom permits their operation.

From a dollars and cents perspective, if a new Road King sells for over $20,000, it is not difficult to imagine a tricked out model, equipped with sirens, special compartments, navigation gear, along with other devices costs more. In my opinion, that's a very frivolous use of tax dollars for single occupant motor carriages capable of operating only about 5 months per year.

It's no wonder when the Sheriff of Nottingham comes knocking, many Canadians -- including this writer -- wish for a modern day Robin Hood.

Of course, the cost of employing and equipping our local constabulary is but a fraction of the cost Canadians pay to fund the veritable gaggle of other Government services. As a taxpayer in private industry I am often outraged about paying half my income in various taxes, only to see my dollars hard at work with three government workers watching another government worker leisurely do his job.

Worse, I practice in an industry where Government workers constantly tell me how much more money I make compared to them. Lets set the record straight, I probably bill more money than the highest paid Crown Prosecutor, but trust me when I tell you, the Crown's employer ensures I do not get to keep those earnings. Private industry pays Corporate Tax, personal tax, municipal tax, rent, staff, professionals to assist us in paying our taxes, along with a frightening number of other business expenses. Everyday expenses such as parking or filling the photocopier with paper must be closely monitored. Calgary Prosecutors get funded to park in heated underground ground garages to the tune of approximately $427.00/month. So where my monthly parking is $457.00, the Prosecutor lamenting his or her miserable salaried existence pays just $30.00. So my cost is fifteen times that of the Crown for the pleasure of attending the nightmare otherwise known as the Calgary Court Centre. Did I mention people standing around?

Of course, every full time Government employee has a pension, health benefits, flex days, paid holidays and a myriad of other unappreciated advantages. Private industry certainly gets write-offs, but it's important to remember, given the average corporate tax is 14%, every justiable write-off only really saves fourteen cents on the dollar. And just so people aren't confused, even if the savvy businessperson keeps money in the corporation, upon retirement the government will simply take 36% of whatever is drawn personally. Bottom line, Government always gets paid.

And it must always get paid, for wasting money doesn't come cheap. Paying pensions for Members of Parliament who abused their expense accounts requires plenty of quan.

And when Government doesn't get enough from robbing Canadians at tax time, it simply steals more by justifying penalties through various criminal, quasi-criminal and regulatory infractions.

So when I read an article that police are 1.4 million dollars below their budgeted annual ticket revenue of 33.9 million dollars, I simply can't help but wonder whether the consistent lobby for more cops is so they can pillage more dollars from the general public. I fear that as the Calgary Police Department scrambles to generate the revenue shortfall, our streets will be laden with no tolerance armed tax collectors, stopping hoards of motorists for questionable infractions.

After all, where is the money going to come from? Though I imagine City Hall will simply approve further tax increases, I am quite certain they would rather use the extra money to top up their expense accounts, build decorative bridges and continue work on the neverending construction debacle otherwise known as Glenmore Trail.

Again, I pose the question: is traffic enforcement really about safety? More importantly, one might wonder whether our Government is in the business of criminalizing (or quasi-criminalizing )conduct so they can meet the bottom line.

David G. Chow
Calgary Criminal Lawyer
Molle Roulston Chow

Tuesday, June 1, 2010

The House that Zuck Built - Privacy in a Social Networking Age

As a defence lawyer, all I can say is finally - it’s about time people started becoming aware of the importance of their personal privacy and the need to protect it.

For years I have been scolding staff at my office and others about the dangers of social networking sites such as Facebook. I have even gone so far as to implement policies prohibiting the use of such sites on company computers and absolutely forbid any discussion or posting about me or my business on any social networking site (including Facebook). Of course, a concern was that social networking sites distracted staff from their duties, but that was not the actual reason for the policy implementation. The policy was initiated to stop the potential breach of my privacy interests where even an unintended blunder leaked in a most innocuous way could create a problematic privacy or confidentiality issue.

When it comes to informational privacy, it seems to me most citizens conceptualize the dangers in terms of identity theft or fraud scams designed to drain wealth from unsuspecting victims. But the reality is, insight into a person’s private life is highly viewer dependent. For example, as a criminal defence lawyer, it is not unusual for me to investigate those involved in a particular case by conducting surveillance on their social networking pages. Most of the time, the information gathered supplies nothing more than useful insight into the person, but given that social networking sites are a hotbed for users to vent frustrations or chat about personal issues, it is not unusual to obtain information directly related to the Prosecution’s case – or to the defence of it, for that matter.

Let me put it this way, if information collected from social networking sites is used by me, what about the police, Government, Corporate America, internet predators or others?

I am certainly not a Luddite. Unlike many of my elders, I do not find computers to be so foreign that I am instantaneously defeated by a mouse pointer and a keyboard. I generally understand how to navigate the internet – and am reasonably confident that I do so in relative safety.

That said, I sometimes find the internet to be a rather unsettling place. Like the ocean, I can’t see what’s around me. Like my motor vehicle, I do not truly understand its inner workings. Like many plebeian internet users, I navigate “the web” with a kind of blind faith that information on my computer is protected by the virus scanner and spyware detector running surreptitiously in the background, and that my firewall will repel any unwanted intruders. But the truth is, other than to say these programs are “ON”, I really understand nothing about them.

I know the internet is populated by hackers and techno-wizards capable of ripping through a basic firewall in seconds. I know my greatest protection on “the net” comes with the fact that I am online with a million other users, so the risk of being specifically targeted is diminished by the mere fact of the herd. Privacy in numbers!

With this in mind, however, I do not think it is overly dramatic to say: to be online line is to do so “at your own risk”. In other words, let the user beware!

Knowing this, I feel it is even more important to make best efforts to keep personal information private.

The internet is a tool of convenience – and just like I operate with a kind of blind faith that software on my computer is doing its job, I certainly operate with a kind of blind trust that the companies I do business with on the internet will do their level best to protect my privacy interests.

Social networking sites, however, are in the business of transparency, not privacy. Stated mildly, it seems to me the corporate interests of social networking sites are to promote the ultimate disintegration of the right to privacy, not to protect it.

It is one thing to provide information to your bank or to Canada’s online passport renewal – but it’s completely another to release it to social networking sites such as Facebook for the mere pleasure of having digital friends.

In the National Post article, “Matt Hartley: Facebook Founder Mark Zuckerberg to be Blamed for Privacy Mess”, it was suggested that the “big mess” surrounding Facebook’s privacy issues should fall “squarely on the shoulders” of the company’s chief executive, Mark Zuckerberg.

Though I certainly do not agree with Mr. Zuckerberg that an open world is necessarily a better world, I do not think the privacy mess falls squarely on his shoulders. Rather it falls on those who gave their personal information to the social networking giant.

Facebook always struck me as a kind of Orwellian product designed to transcend privacy barriers. However, to say its creator is responsible for the privacy fiasco is to scapegoat a shrewd businessperson by deflecting the blame away from the 500 million Facebook users who gave up their personal information to have friends. Sadly, the closest contact many will have with their so-called Facebook friends is a live camera shot, a lot of typed transmissions and perhaps a conversation communicated over a digitized data stream, played through speakers on a personal computer.

In criminal justice, notions of privacy are evolving. In cases such as R. v. Plant, [1993] 3 S.C.R. 281 the Supreme Court of Canada recognized privacy was a protean concept. In R. v. Tessling, [2004] S.C.J. No. 62, the Supreme Court wrestled with the distinctions between personal, territorial and informational privacy. Informational privacy was at the forefront in R. v. Patrick, [2009] S.C.J. No. 17 (S.C.C.). Though the Supreme Court acknowledged in Patrick the importance of informational privacy, they refused to recognize it to the extent of limiting anybody (including the State) from simply sifting through and taking a citizen’s garbage, even while it remains on his or her own property. Recently, in R. v. Morelli, [2010] S.C.J. No. 8 the majority of the Supreme Court of Canada recognized privacy interests in data stored on a home computer. In excluding the evidence seized due to a lack of police reasonable and probable grounds to search, the Court characterized the search as occurring in the most private place within the home. In the words of Fish J.A. at paragraph 105: is difficult to imagine a more intrusive invasion of privacy than the search of one's home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.

To understand privacy is something we should not easily part with, it is important to understand that privacy in our modern world encompasses more than merely being left alone in our own home sanctuary. Perhaps the Facebook fiasco is a fortuitous reminder of the importance of protecting individual privacy interests – the need for broad thinking about the scope of such interests – and the need not to become complacent about caring for them.

Protecting privacy is not only about defending against identity thieves, government, police or Corporate America from using our personal details; it is more broadly about defending the interest as a fundamental principle intrinsic to living in a free and democratic society. Accordingly, defending the right necessitates undying and perpetual vigilance, which might mean foregoing guilty pleasures in favour of preserving the long term integrity of the interest against minute incursions over time capable of eroding it altogether. For the risk of giving up a little privacy here and selling a little there may be to risk losing it completely.

With this in mind, perhaps it is to time to topple the house that Zuck built?

David G. Chow
Calgary Criminal Defence Lawyer