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