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"