...And Justice For All

Skyreporter: A Worthwhile Read...

2011-04-12T10:46:00.000-07:00

With an election on the horizon, I encourage all interested and politically motivated Canadians whose wishlist includes pithy writing, astute commentary and interesting reporting beyond the listless everyday media to review Arthur Kent's website: skyreporter.com

I particularly enjoyed Mr. Kent's most recent article:

HARPER VS. HOOKERS AS CANADA AVOIDS AFGHAN VOTE DEBATE

The article discusses a number of important and interesting connections between Canada's work abroad in the name of "freedom" and good governance within our own country. By way of example, Kent writes:

One Canadian veteran of the campaign to create good governance in Afghanistan tells Skyreporter:

“How can we look someone like Karzai in the face and tell him he has to do a better job when Harper shows complete contempt of parliament here?”

The current Canadian election was triggered, in part, when the Speaker of the House of Commons ruled that Harper and his ministers were in contempt of parliament for misleading members over the cost of an anti-crime bill.

Now a leaked draft report by Canada’s Auditor General states that the government misled parliament to secure a $50 million slush fund, doled out by Harper’s industry minister to pet projects in his own constituency.

The money was purloined from a border facilities program and redirected under the guise of preparing for last year’s G8 summit (see “West Adopts Taliban Lunacy To Help Secure Leaders’ Photo Op” on page 2 of Recent Stories).

“You can't just talk the talk, you have to walk the walk as well,” says the specialist, who asks to remain unnamed while he continues his work in the region.

To read the entire article, visit: www.skyreporter.com

Holy Bill Of Rights, Batman!

2011-01-10T13:32:00.000-08:00

BOOM! WHAM! POW! BAM!

These are just a few descriptors used to illustrate the mighty fist of the comic book superhero striking a blow for justice in a world infested with villainy.

“I say thee nay”, bellows the Mighty Thor as the Thunder God smites enemies with his Uru hammer. CRACK!

“Hulk smash”. KABOOM!

“Whatever is fair in love and war is also fair in crime fighting”, retorts the Batman. WHAMO!

Just days into 2011 and yet another unnamed police officer is caught on camera administering some gratuitous street justice.

“B.C. cop caught on tape allegedly kicking man in the face”: http://www.ctvbc.ctv.ca/servlet/an/local/CTVNews/20110107/bl_kelowna_brutality_110107/20110107?hub=BritishColumbiaHome

On-lookers were shocked.

In the words of an unnamed witness, “he [the police officer] kicked him so hard. He never fought”.

SMACK!

The target of the kick was next observed sporting the bloodied evidence of the steel-toed boot of criminal justice.

“Holy Bill Of Rights, Batman”!

Sadly, this incident in Kelowna, British Columbia is not an isolated event – not even close. Recent months have born witness to a graphic display of wanton violence by police against those whom they have a duty to protect. I watched in disgust as Cst. Desmond Sandhoe unleashed a fury of aggravated closed fist strikes to the body and face of a prisoner in full view of a camera at the Lac La Biche R.C.M.P. detachment.

SMASH! POW!

http://www.edmontonjournal.com/sports/Biche+RCMP+officer+pleads+guilty+appalling+assault/3891371/story.html

I was again unnerved to watch the actions of Ottawa police performing a series of aggressive manoeuvres whilst executing an undignified strip search of prisoner Stacey Bonds. A knee to the lower body, followed by a forced take down of the prisoner by multiple officers represents just a few actions critically denounced by Justice Lajoie.

BOOM! BING!

http://www.cbc.ca/canada/ottawa/story/2010/11/25/ottawa-bonds-video-115.html

I was dismayed to watch a police officer unceremoniously shove a disabled woman to the pavement in full view of shocked Vancouverites walking along a local sidewalk.

DONK! BLAMMO!

Rather than remaining to offer assistance to the woman, later identified as having cerebral palsy, the great triumvirate of police simply continued their shoulder-to-shoulder stride, cutting a path through the people using the pedestrian walkway. The officer’s pathetic excuse, “I thought she was going for my gun”.

http://www.ctvbc.ctv.ca/servlet/an/local/CTVNews/20101207/bc_cop_charged_101207/20101207?hub=BritishColumbiaHome

Of course, there was also Robert Dziekanski. Need I say more? ZAP!

Holy shenanigans, Batman!

Aside from several unnamed Calgary police charged with criminal offences in 2010, Calgaryians have yet to witness the iron fist of our boys in blue captured in Technicolor. As a criminal defence lawyer, however, I assure you, I have unfortunately born witness to such things. Whether it is due to a complete absence of investigative reporting in Calgary, a biased media, a corrupt police department, a good cover-up or a combination of all of the above, the evidence of such conduct has yet to be exposed via the powerful medium of videotape. And though I cannot divulge things I know to be true because of my involvement as a member of the criminal bar, I can tell you that such violence exists. I have seen it both as a Prosecutor and a criminal defence lawyer.

That said, perhaps the best evidence of violence within the Calgary Police Service is not resting within the binary code of digital video or police reports disclosed to the crown; rather, it is expressed with brutal efficiency by pseudonym author, John Smith, in his 2008 publication, “The Wolf and the Sheep Dog”.

“They break the law and we try to catch them”, Smith writes. “But running after you are caught is going to get your ass kicked. Those are the rules”.

“We called it ‘the one-punch rule’, you run and every cop involved with the foot chase gets a punch after you get caught”.

A reading of “The Wolf and the Sheepdog” leaves one with the indelible impression that its writer is prepared to twist logic and defy sanity in the name of justifying violence. Just a few short lines following the aforementioned passage, the writer laments his inexperience as justification for failing to administer some worthy street justice. A mistake he will not make a second time.

“Just as I finished yelling my totally asinine threat he just stopped and laid down. He went into the fetal position and started begging not to get hit”.

“What am I to do”? ...

“My partner looks at the guy and lets him know that he is lucky that I caught him, otherwise she would have kicked the shit out of him”.

In other words, the compliant prisoner barely avoided: BOOM! WACK! POW! BONK! BING!

No mercy, Batman!

Reading “The Wolf and the Sheep Dog”, one quickly learns mercy was rarely given. But before regaling you with more superhero tales about the author beating citizens in the name of justice, let me tell you a little about the book and its writer.

The book purportedly depicts true events. To highlight the introductory words of the author:

The calls and situations depicted in this book are only based on actual events.

My name has been changed and my co-worker’s names are false ones.

I am still an active member of a police force and because of laws and personal safety I have to keep my identity a secret....

This book contains my first five years on the street. I consider myself lucky to be able to be at the right place and time to be involved in such calls.

To be waist deep in “the Shit”.

This is my story.

Despite the fact that the pseudonym author/Calgary policeman actually accomplished a great achievement writing his book, nobody said he was necessarily artistic or even particularly intelligent. The book is infected with scatology, littered in slang and composed with grade-school simplicity. Perhaps most troubling, it teaches nothing other than some of Calgary’s finest are little more than bloodthirsty ruffians who use their authority to administer physical violence against those whom they are entrusted to protect. Forgo any notions of higher principle, police responsibility, integrity, or higher cultural and moral values; for “The Wolf and the Sheepdog” paints many members of the Calgary Police Service as nothing short of armed thugs.

Perhaps even more shocking, it paints its author and members of the CPS as “criminal”.

Discovering the real identity of pseudonym writer “John Smith” was just about as easy as surmising Clark Kent without glasses is Superman. Even Inspector Gadget could have unravelled this mystery. Simply “Google” a few rudimentary search terms and the author’s real name, police badge number, telephone number and other personal information is revealed. Even more baffling is that it was the author who exposed himself!

Holy stupid, Batman!

It is not without some irony that the author actually had the audacity to promote his book by messaging MacLean’s Magazine in relation to their “The Best of Film, TV and Books in 2008”.

Holy “it’s hard to be humble”, Batman!

http://www2.macleans.ca/2008/12/24/the-best-of-08-in-film-tv-and-books/

To Brian Bethune:

Good day, my name is John Brix-Maffei and I am a Canadian Author as well as a Canadian Police Constable. I have written a book called “The Wolf and The Sheepdog” published by Authorhouse and distributed through Ingram. I would be honored to send you a copy of the book for your review and critique.

The Wolf and The Sheepdog was created to allow the reader a look into the emotional and philosophical world of policing. The reader gains a valuable insight into a subculture that has been hiding in the shadows, a world of violence, victims and turmoil. Through “The Wolf and Sheepdogs” short stories the reader will be transported into a world that goes far beyond Televisions “Badge, Bottle, Gun” stereotype.

The Wolf and The sheepdog has been well received in the early stages of its release and has been quoted as; “Taking the lid off of policing”, by Gerry Forbes on CJ92, “Truly an eye opening event,“ by Jason Elles on Sirius Satellite Radio, “Raw, powerful and moving,” by Dave Rutherford on AM 770.

I hope that you enjoy the short stories that I have created in “The Wolf and The Sheepdog”.

Please feel free to call me at 1(403) 710 - 8698, my wife Angela at 1(403)567-0495, or contact me at my email if you have any further questions.

pol3530@calgarypolice.ca or memorialpainting@gmail.com

See also: http://www.amazon.com/Christmas-Dinosaur-Angela-Brix-Maffei/dp/1438904991

Perhaps Gerry Forbes said it best; the book indeed takes “the lid off of policing”.

Reading The Wolf and the Sheepdog, I continuously pictured a series of comic book frames, wherein the self portrayed hero, Cst. John Brix-Maffei was walloping enemies into submission, whilst bellowing cheesy one-liners, such as “it’s Matrix Time”.

Though he self promotes his book with Maclean’s Magazine as “...a look into the emotional and philosophical world of policing”, I take great umbrage with the use of the word “philosophical”; rather, I prefer to characterize Mr. Brix-Maffei’s work as more closely akin to an inculpatory admission of criminality and noble cause corruption by a Calgary police officer serving in the line of duty.

Just seventeen pages into the book, Mr. Maffei essentially confesses to having committed an aggravated assault against a suspect.

According to the Criminal Code of Canada, “every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant”.

As Mr. Brix-Maffei approaches a motorist just recently involved in a head-on collision with his police cruiser, he sees “a beautiful star-shaped imprint on the front window...caused from [the driver’s] head bouncing off of it”.

Now confession.

“I know that blows to the head will be most effective right now, because he has already sustained damage to his head from impacting the window”. “A quick glance at his hands on the steering wheel tells me that he has no weapons. Game time!”

“My left fist slams into his face, causing his nose to bend and suddenly pop under the force. My right fist lines up for a second blow”.

BAM! POP!

“I can already see blood flowing from his nose”.

“Fucking eh...”, he writes, “I broke his nose....The right fist hits solid on his jaw, causing his head to spin violently away from me. He is fucked; I have two or three seconds now. His brain is bouncing off of his cranial cavity and I have two or three seconds to cause more damage to this fuck before his brain even recovers from that blow”.

WHAM! SMASH!

Holy planned and deliberate violence, Batman!

With writing like this, who needs video?

Well, Mr. Brix-Maffei does not merely confess to brutalizing people, he also confesses to doctoring notes and police reports to avoid accountability. After pondering intentionally ramming the suspect’s vehicle, Brix-Maffei queries, “Did I breach policy? You bet, you have to get permission to ram a vehicle from your supervisor”.

“Will I get a negative paper? I hope the fuck not, this is where my talent for articulation comes in”.

Of course, an event captured on video seldom requires “talent for articulation”.

“Did I lie”, ponders Brix-Maffei. “No”.

“Lies are those that affect the innocent”.

Holy noble cause corruption, Batman!

Has John Brix-Maffei ever been charged with a criminal assault? To my knowledge, the answer is no. Yet “The Wolf and the Sheep Dog” is saturated with stories of wanton violence by a man who is still employed as a Calgary Police Officer. The resounding theme is how the enemies of Brix-Maffei are “fucked”.

I drive my right fist into his kidneys. I set into him and push my fist deep. I can feel my fist sink in up to my wrist before he bends and contorts to avoid any more damage.

He is fucked. His face is contorted in pain. His mouth is gaping, trying to drag in air. Air that was knocked out of him when I slammed into him, precious air that was wrung out of his lungs even more when I drove my fist into him.

I have landed the damaging blows that will allow me to give him the hurt as long as I want to.

My elbow slices into his face. His head snaps to the left and I feel his long hair whip across his face.

I send in another body shot to keep his mind confused. My left fist slams into his sternum. Nothing comes out of his mouth. No groan, no gasp of air or he will die.

The bright white paint of panic is smeared across his face.

POW! CRACK! ARGGGGGG!

Meanwhile, Brix-Maffie has the wherewithal to yell “stop resisting and you won’t get hurt”.

As he writes, these are words designed to “cultivate the minds” of witnesses.

“I know that if someone’s watching, my verbal queues will let them know that we are fighting a bad guy who is fighting with us. The verbal direction will also cultivate their minds. They will believe what I yell out”.

The Wolf and the Sheep Dog consists of 386 pages of brutal and wanton violence confessed with artistic flare by a Calgary Police Officer. Brix-Maffei’s stories are seldom heroic or even brave. Many of the beatings are cowardly excesses of police violence against those who are vulnerable. The book does not, as Brix-Maffei claims, allow the reader insight into the emotional and philosophical world of policing; rather, it is a disgusting and immoral confession which sullies the entire Calgary Police Department.

Comic book heroes are seldom gratuitous. They are manufactured with an ingrained sense of morality that recognizes the need for justice to be, wherever at all possible, peaceful. As Professor David Paciocco writes in his book, “Getting Away with Murder”, “the quality of a nation’s civilization can largely be determined by the methods it uses in the enforcement of its criminal law”. If Brix-Maffei’s conduct at all represents even a small minority of Calgary police officers – and by accounts it does – then I fear the quality of our civilization rests on the boot heels of police power.

“I look at my partner”, writes Brix-Maffei, “who starts to look around in all directions. He is looking for bystanders, for eyes that may watch us. He gives me a nod and I know it is time for me to make sure this loser doesn’t try this again”.

“I move over to this guy lying on the ground, hands cuffed behind his back. His look of delight changes to a look of fear as he knows I am so ready to open a can of shit on him”.

BOOM! BOFF! POW! SLAM!

Holy who are the real criminals, Batman?

David G. Chow
Calgary Criminal Lawyer
MOLLE ROULSTON CHOW

www.calgarydefence.com

You should have let me in on this. We could have planned it, prepared it, pre-sold the movie rights! - Riddler

Setting the Record Straight

2010-12-31T10:36:00.000-08:00

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:

http://www.assembly.ab.ca/ISYS/LADDAR_files/docs/hansards/han/legislature_27/session_3/20101129_1930_01_han.pdf

David G. Chow
Molle Roulston Chow
Calgary Criminal Lawyer

www.calgarydefence.com

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

2010-12-09T05:48:00.000-08:00

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....

________________________________________________________

toministryofjustice@gov.ab.ca

ccpm@pm.gc.ca,
Anders.R@parl.gc.ca,
RobAnders@telus.net,
dale.hodges@calgary.ca,
peace.river@assembly.ab.ca,
submit@theherald.canwest.com,
calnews@calgarysun.com,
Newsroom@globeandmail.com,
matthew.grant@assembly.ab.ca,
kevin.martin@sunmedia.ca

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.

Bravo!!!

________________________________________________________________

David G. Chow
MOLLE ROULSTON CHOW
Calgary Criminal Lawyer

www.calgarydefence.com

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

2010-11-08T09:09:00.000-08:00

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.

http://www.assembly.ab.ca/ISYS/LADDAR_files/docs/bills/bill/legislature_27/session_3/20100204_bill-027.pdf

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 ministryofjustice@gov.ab.ca

RE: BILL 27: THE POLICE AMENDMENT ACT 2010

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.

Discoverability

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.

Sincerely,

David G. Chow
MOLLE ▪ ROULSTON ▪ CHOW
Criminal Defence Lawyers

DGC/dc

Cc: Rob Anders (MP): E-mail: Anders.R@parl.gc.ca and E-mail: RobAnders@telus.net
Cc: Dale Hodges (Alderman): Email: dale.hodges@calgary.ca
Cc: Frank Oberle (Solicitor General and Minister of Public Security): peace.river@assembly.ab.ca

Cc: The Calgary Herald: E-mail: submit@theherald.canwest.com
Cc: The Calgary Sun: E-mail: calnews@calgarysun.com
Cc: The Globe and Mail: Newsroom@globeandmail.com
Cc: Stephen Harper (Prime Minister): E-mail: pm@pm.gc.ca
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)

www.calgarydefence.com

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

2010-08-11T00:21:00.000-07:00

... 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
MOLLE ROULSTON CHOW
Calgary Criminal Defence Lawyers

www.calgarydefence.com

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

2010-08-03T05:56:00.000-07:00

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?

http://www.ctv.ca/CTVNews/Canada/20080529/scc_judge_080529/

http://en.wikipedia.org/wiki/Thomas_Cromwell_(Canadian_jurist)#cite_note-5

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
Molle Roulston Chow
Calgary Criminal Defence Lawyer

wwww.calgarydefence.com

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

http://www.vancouversun.com/news/Flawed+ruling+means+police+have+knock+first/3371288/story.html

News Media an Exclusive Playground for Pro-Police Lobby

2010-07-17T09:18:00.000-07:00

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.

http://www.cbc.ca/canada/calgary/story/2010/07/14/calgary-police-budget-ad-cuts-letter-herald-penn-west.html

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%.

http://www.cbc.ca/canada/calgary/story/2009/01/22/cgy-cecil-hotel-crime-down.html

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.

http://www.calgarysun.com/news/columnists/rick_bell/2009/08/14/10459661-sun.html

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.

http://www.cbc.ca/canada/calgary/story/2010/07/07/calgary-police-budget-cuts-council-hanson-beat.html

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.

http://andjusticeforall-calgary.blogspot.com/2009/08/credit-where-credit-is-due.html

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.

http://www.calgarycrimestoppers.org/sponsors/

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).

http://www.downtowncalgary.com/about/partners.html

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
Molle Roulston Chow
Calgary Criminal Defence Lawyers
www.calgarydefence.com

A Token Non-Apology by Immoral Fraudsters

2010-06-16T20:04:00.001-07:00

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.

http://www.calgaryherald.com/RCMP+apology+linked+actions+Mounties+Memo/3162099/story.html

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"

http://www.calgarydefence.com/resources/

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
Molle Roulston Chow
Calgary Defence Lawyers

www.calgarydefence.com

Sometimes "Real" Justice Feels Really Bad

2010-06-15T05:54:00.000-07:00

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: http://www.calgarysun.com/news/alberta/2010/06/09/14327851.html

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":

http://www.calgaryherald.com/news/assault+convictions+swarming+beating+Calgary+teen/3153889/story.html?cid=megadrop_story

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

www.calgarydefence.com

Appearances Deceiving? Or just a little too Casual

2010-06-12T07:07:00.000-07:00

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: http://calgarycriminallawyer.blogspot.com/2010/06/real-life-is-not-hollywood.html

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": http://www.cbc.ca/canada/calgary/story/2010/06/09/calgary-suv-dead-crash-house-asirt.html

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: http://www.cbc.ca/canada/calgary/story/2010/06/09/calgary-suv-dead-crash-house-asirt.html#ixzz0qeNXPpmM

David G. Chow
Calgary Defence Lawyer
Molle Roulston Chow

www.calgarydefence.com

Does our Government Fear the People?

2010-06-08T09:00:00.000-07:00

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": http://www.nationalpost.com/m/story.html?id=3060917

See "Opposition to Spending Audit could bite MPs in the Wallet": http://www.calgaryherald.com/business/expenses+under+microscope/3061268/story.html

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: http://www.edmontonjournal.com/news/Restitution+does+nifty+around+civil+liberties/2696207/story.html

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?

See: http://www.calgarysun.com/news/alberta/2009/08/04/10354476-sun.html

When Government uses fear to legitimize the expansion of police powers to intrude on the private lives of citizens, does it fear the people?
http://www.calgaryherald.com/news/City+hopes+warning+stickers+Calgary+payphones+will+discourage+criminal+activity/1790663/story.html

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?

http://calgarycriminallawyer.blogspot.com/2010/04/do-as-rick-and-alison-saynot-as-they-do.html

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

http://calgarycriminallawyer.blogspot.com/2010/03/it-ought-to-be-illegal-to-dowell.html

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
www.calgarydefence.com

Robber Barons

2010-06-03T20:43:00.000-07:00

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

http://andjusticeforall-calgary.blogspot.com/2009/08/proof-that-traffic-safety-enforcement.html

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.

http://www.calgaryherald.com/Calgary+police+budget+takes+fines+drop+while+increases/3096301/story.html

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

wwww.calgarydefence.com

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

2010-06-01T07:08:00.000-07:00

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.

http://www.nationalpost.com/most-popular/story.html?id=3084666

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:

...it 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
www.calgarydefence.com

Credibility Imperilled: The Impact of Sgt. Roskam’s Conduct on the Administration of Justice

2010-05-23T19:16:00.000-07:00

I’ve been meaning to write for months. Unfortunately, though well intentioned, the hours have turned to days, days to weeks and weeks to months. Each time I’ve sat to write on the latest issue, it has become stale dated and not worth the ink (or the bits, as the case may be). However, the April 30th, 2010 story in the National Post, “Bogus RCMP Wiretap Memos Derail Drug Case” continues to leave a bad taste in my craw; and though I realize many have already commented on the issue, I nevertheless feel a brief additional word is worthwhile.

As a former Crown Prosecutor, now criminal defence lawyer, I have the grave misfortune of working in a job that permits access to a world of information not known by the general public. I spend my days forging through disclosure in criminal cases, and notwithstanding I am pleased to tell you most cases involve information conveyed by honest and reliable players in the disclosure process, I am displeased to tell you there are indeed occasions where this is not so.

In Canada, disclosure issues range from innocent omissions of pertinent but relatively innocuous information to the intentional withholding or fabrication of important material germane to the accused’s ability to make full answer and defence. Fortunately, most disclosure issues fall within the innocent omission category. Innocent omissions that go undiscovered may nevertheless have a dramatic impact upon an accused’s right to a fair trial.

Disclosure issues do not only occur in the so-called high profile cases, but happen in ever day ones as well. The vast majority of the time these occurrences do not find their way into the spotlight of public attention. On most occasions, problems are rectified in a timely manner prior to the conclusion of the trial; oftentimes, however, they are not. It is not unusual for disclosure problems to be ignored by timid defence counsel or minimized by Prosecutors taking the view that inquiries are more akin to irrelevant fishing expeditions than legitimate requests aimed at full answer and defence. Sometimes disclosure issues are marginalized by trial judges who can’t find quite enough evidence to call foul or enough courage to cry it.

Naivety in criminal justice is an essential tool for protecting the system from being disgraced from within. After all, if we start believing lawyers incompetent, judges politically motivated, police liars, then what confidence can we have convictions are necessarily right? In Alberta, it is not unusual for inexperienced defence lawyers to take complex and serious cases far beyond their competency level. It is not unusual for Crown Prosecutors to run cases on the basis of some policy or learning objective not truly connected with the public interest or reasonable prospect of conviction. It is not unusual for police to gather specific evidence aimed at a target whilst ignoring inquiries that might exonerate the subject. It is not unusual for judges, who as lawyers had neither criminal law nor trial experience to hear cases and make decisions directly affecting the liberty of persons or perhaps even the Constitutional rights for all Canadians. Notwithstanding the short term benefits of bending what are often perceived as pedantic and impractical rules to secure a particular end may seem compelling to justify convicting an alleged wrongdoer, the long term impact of such noble cause corruption may be difficult to foresee.

Wrongful conviction is the ultimate consequence of a breakdown in the criminal justice system. The much publicized wrongful conviction cases of David Milgaard, Thomas Sophonow, Guy Paul Morin , Randy Druken, Kyle Wayne Unger, Herman Kaglik and William Mullins Johnson (just to name a few) remind us about the devastating toll inflicted by the criminal law upon innocent Canadians. These people were convicted of serious crimes and spent significant time in jail. To appreciate the horror, imagine spending just one day incarcerated, and then multiply that horror times twenty-three years. Twenty-three is the number of years Milgaard spent behind bars. Milgaard’s conviction was driven by a combination of factors, including the erroneous eyewitness identification of his friend, Nichol John. After acquiring Nichol John’s evidence, police ignored the more viable candidate, Larry Fisher. Of course, Larry Fisher was ultimately convicted for the slaying of Gail Miller.

In September 1996 an inquiry was launched into the wrongful conviction of Guy Paul Morin. The inquiry determined that police, prosecutors and forensic experts had been inept at best and at worse might have fabricated or altered evidence. Recently, William Mullins-Johnson was exonerated after a twelve year ordeal. The government’s forensic expert, Dr. Charles Smith, was responsible for his conviction.

See “Wolf in Sheep’s Clothing – Advocates as Experts”: http://www.calgarydefence.com/resources/

As Canadians, can we tolerate a system responsible for wrongly convicting anyone? With that in mind, it is worth asking: how many wrongful convictions have occurred in the innumerable minor criminal cases occurring each day across Canada? In my view, it would be extremely naive to believe the answer is even close to none? How many convictions have been obtained on the basis of honest but mistaken eyewitness identification, expert opinions by police officers or other agents paid by the government, false confessions, the suppression of evidence, the fabrication of disclosure or any number of other errors in criminal justice? You might even ask, how many guilty pleas were entered by accused persons on the basis of a simple cost-benefit analysis where the danger of losing at trial, or spending time in custody awaiting trial was simply too great to ignore a respectable plea bargain offered by the Crown?

It is for all of the aforementioned reasons that I am both disturbed and shocked about the story in the National Post: “Bogus RCMP Wiretap Memos Derail Drug Case”.

http://www.nationalpost.com/story.html?id=2968012

I am shocked because the behaviour discussed in this story is that which dramatically increases the likelihood of wrongful convictions. My concern is not so much about the kind of information fabricated, but that is was.

This news release tells a tale about a senior R.C.M.P. officer (Sgt. Roskam) who intentionally fabricated disclosure.

In November 2009 Sgt. Roskam was cross-examined by defence counsel Michael Lacy in an Ontario drug trafficking trial. Answering questions from the defence, Sgt. Roskam admitted to creating a false R.C.M.P. memorandum relating to live monitoring of targets pursuant to an Authorization to Intercept Private Communications. The real memorandum created by a different R.C.M.P. officer expressed concerns investigators were not adhering to the requirements of the court order.

http://www.nationalpost.com/story.html?id=2968012#ixzz0oTpXWYOi

As reported in the National Post:

"You knew when you were creating this document that you were committing what you believed to be a criminal offence, right," asked defence lawyer Mr. Lacy.

"Hmm, hmm," responded Sgt. Roskam, who then answered "yes" when pressed on whether his actions may have violated the law. The senior officer described it as "bad judgment" to produce the fake memo.

To say Roskam exercised “bad judgement” is a rather convenient understatement. In fact, the word “criminal” is probably a closer expression of the truth. Section 380 of the Criminal Code of Code makes it a criminal offence for everyone who by deceit, falsehood or other fraudulent means...defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service. In R. v. Stinchcombe, [1991] S.C.J. No. 3 the Supreme Court of Canada was clear that disclosure is not the property of the Crown to be used in securing convictions, but is the property of the public to ensure justice is done. Section 397 of the Criminal Code makes it a criminal offence for a person to, with intent to defraud, destroy, mutilate, alter, falsify or make a false entry in a book, paper, writing, valuable security or document. Though criminal prosecutions for falsifying police documents are undoubtedly extremely rare, I see no reason why either the provisions of the Criminal Code or the common law do not apply in Sgt. Roskam’s case.

The classical definition of “fraud” is to “deprive by deceit” with the intention of inducing a person to his or her injury. This can include fraudulently inducing another to engage in a particular course of action. To “deceive” by falsehood is to induce a state of mind. In R. v. Renard (1974), 17 C.C.C. (2d) 355 the Ontario Court of Appeal held that a person may be defrauded by “being deprived of something and he may be deprived of something either by being fraudulently induced to part with it or by having that to which he is entitled fraudulently diverted or withheld...”. Arguably, the fraud committed by Sgt. Roskam was to deprive the Crown of information necessary for it to assess both the public interest and the reasonable prospect of conviction. Roskam’s so-called bad judgment was intended to deprive the accused of disclosure germane to his right to make full answer and defence. The fabrication was also designed to deprive the public of the knowledge that its police service was failing to comply with court orders limiting the scope of invasive search techniques intimately connected with privacy rights. In this writer’s view, the fact the fraud was uncovered is probably rarer than the fact that such fraud occurs.

Notwithstanding Roskam’s admission to the mens rea of a criminal fraud, the Crown determined there was no reasonable prospect of conviction. It concluded the situation was limited only to the Sault Ste. Marie case. Now to dispel conspiracy theories or other nefarious interpretations of Crown discretion, it is important to understand that Roskam’s admission under oath at trial could not be levelled against him in a criminal fraud prosecution. As a witness, Roskam is shielded by rules in the Canada Evidence Act and the Canadian Charter of Rights and Freedoms. These rules prevent his evidence from being used against him, unless there is an allegation of perjury. To be clear, these protections exist for the valid purpose of encouraging truth in the trial process.

Regardless of whether the Crown is able to prosecute Roskam, what was uncovered is nevertheless highly disturbing. And though Roskam conveniently insisted to “acting on his own”, I have serious difficulties believing this. Surely the memos he created were not for his personal amusement? Surely they were meant to be read by others? After all, isn’t that the purpose of a memorandum? With this in mind, I am left to wonder whether Sgt. Roskam is taking the proverbial bullet for others whose conduct is far from beyond reproach.

Speculation aside, this case also informs us some police are prepared to ignore Court orders in pursuit of their objectives. This potentially implicates more officers than just Roskam and others who might have been aware of the conflicting memorandums. Sgt. DiVito, for example, was aware monitors were ignoring the Court’s order. For his candour, it appears he was transferred to a different unit. This still begs the question: was DiVito responsible for reporting this issue to others outside the police service? What about all the police officers in receipt of DiVito’s memorandum who intentionally remained silent so to protect the integrity of the police investigation? ? If we are serious about preventing wrongful conviction, surely loyalty to the “old boys club” is not a priority?

Of the thousands of police investigations occurring each year, does anybody seriously believe the Sault Ste. Marie case stands alone?

Recent events have demonstrated police are prepared to fabricate evidence to protect themselves from the consequences of their own wrongdoing. Constable Kwesi Millington and his fellow officers lied about the threat posed by Robert Dziekanski which necessitated tasering the man to death. Interestingly, despite the shocking videotape evidence, the Crown declined to prosecute the officers for their conduct. Sound familiar?

See: “The Wrong Way of Worldmaking: One Lawyer’s Opinion about the Dziekanski Inquiry”: http://www.calgarydefence.com/resources/

Though I certainly do not wish to be repetitive, my closing remarks in the aforementioned article aptly apply to Sgt. Roskam’s case:

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.

Submitted by:

David G. Chow
Molle Roulston Chow
Calgary Criminal Lawyer
www.calgarydefence.com

Big Brother is Listening

2009-12-26T10:25:00.000-08:00

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

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

http://www.vancouversun.com/Judge+satisfied+Jamie+Bacon+phone+calls+intercepted+error/2349545/story.html

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

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

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

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

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

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

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

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

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

http://www.vancouversun.com/news/Crown+argues+Bacon+search+should+stand/2310458/story.html

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

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

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

Obviously these are bad habits that must be avoided.

David G. Chow
Criminal Defence Lawyer
www.calgarydefence.com

Don't Throw Good Money After Bad Police Work

2009-12-03T09:02:00.000-08:00

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

http://www.cbc.ca/canada/calgary/story/2009/12/02/calgary-rape-charges-stayed-trial-delay.html

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

http://www.albertacourts.ab.ca/jdb/2003-/qb/criminal/2009/2009abqb0674.cor1.pdf

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Michael Bates
Calgary Criminal Defence Lawyer

Defending the Defence

2009-09-28T23:30:00.000-07:00

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

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

http://www.calgarysun.com/comment/columnists/edward_greenspan/2009/09/28/11159951-sun.html

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

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

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

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

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

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

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

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

http://calgarycriminallawyer.blogspot.com/2006/11/legal-aid-top-priority-for-albertans.html

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

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

Michael Bates
Calgary Criminal Defence Lawyer

The Hypocritical Approach to Investigating and Prosecuting

2009-09-18T05:37:00.000-07:00

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

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

http://www.calgarysun.com/news/alberta/2009/09/18/10971581-sun.html

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

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

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

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

http://andjusticeforall-calgary.blogspot.com/2009/07/token-investigation-investigation-into.html

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

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

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

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

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

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

http://communities.canada.com/vancouversun/blogs/soundoff/archive/2009/07/08/434439.aspx

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

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

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

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

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

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

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

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com

Minimum Punishments for Immoral Fraudsters

2009-09-16T06:55:00.000-07:00

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

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

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

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

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

http://www.calgarysun.com/news/canada/2009/09/16/10929691-sun.html

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

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

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

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

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com

The Ultimate Breach of Public Trust

2009-09-10T03:47:00.000-07:00

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

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

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

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

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

http://www.elections.ca/content.asp?section=loi&document=amendc16&dir=leg/fel&lang=e

According to the Library of Parliament, Legislative Summaries:

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

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

http://www2.parl.gc.ca/Sites/LOP/LegislativeSummaries/Bills_ls.asp?lang=E&ls=c16&source=library_prb&Parl=39&Ses=1

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

http://www.nationalpost.com/most-popular/story.html?id=1971675

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

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

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

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

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

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

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com

Sixty Days Since Harley's Death

2009-09-07T07:25:00.000-07:00

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

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

But perhaps that is exactly the strategy.

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

http://andjusticeforall-calgary.blogspot.com/2009/07/code-of-silence-investigation-into.html

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

http://andjusticeforall-calgary.blogspot.com/2009/07/token-investigation-investigation-into.html

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

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

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

David G. Chow
Calgary Criminal Defence Lawyer

www.calgarydefence.com

In Defence of our System of Justice

2009-09-06T10:09:00.000-07:00

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

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

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

http://www.calgaryherald.com/news/March+unites+murder+victims+families/1967438/story.html

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

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

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

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

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

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

This is simply not true.

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

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

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

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

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

David G. Chow
Calgary Criminal Defence Lawyer

www.calgarydefence.com

Taking the High Road

2009-09-04T05:54:00.000-07:00

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

Some are more special than others.

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

http://www.calgarysun.com/news/alberta/2009/09/04/10745971-sun.html

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

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

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

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

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

David G. Chow
Calgary Criminal Defence Lawyer

www.calgarydefence.com

Who is Throwing Mud in Your Eye?

2009-09-04T05:04:00.000-07:00

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

http://www.calgarysun.com/news/alberta/2009/08/26/10614291-sun.html

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

http://andjusticeforall-calgary.blogspot.com/2009/08/police-spokespersons-have.html

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

http://www.calgarysun.com/news/alberta/2009/09/03/10729776-sun.html

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

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

http://www.calgarysun.com/news/columnists/rick_bell/2009/09/03/10729786-sun.html

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

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

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

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

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

David G. Chow
Calgary Criminal Lawyer
MOLLE CHOW & KISS

www.calgarydefence.com

The Hannibal Lecter Type Sideshow A Dangerous Slippery Slope

2009-09-02T07:31:00.001-07:00

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

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

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

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

http://www.calgarysun.com/news/world/2009/09/01/10704836.html

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

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

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

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

David G. Chow
Criminal Defence Lawyer

www.calgarydefence.com

Police Spokespersons Have A Responsibility to Properly Inform Public Debate

2009-08-26T07:21:00.000-07:00

As trusted public servants police certainly have a duty to communicate with the public through the media. But in so doing, they also have a responsibility to communicate honestly, professionally, with integrity and ought not to improperly use the media as a mechanism for conducting trials or hearings in the court of public opinion. With this in mind, it is necessary to comment on irresponsible and arguably contemptuous communications by Calgary Police Staff Sgt. Gord Eriksson.

http://www.calgarysun.com/news/alberta/2009/08/26/10614291-sun.html

In the above captioned article, Sgt. Eriksson is quoted as saying:

"I don't want it to appear as though we're picking on Mr. Tran".
"The fact he is constantly arrested and re-arrested is his doing, not ours."

Suffice it to say, this is a misleading statement. According to various adjudicator rulings, previous arrests of Mr. Tran were not "his doing".

In March 2009, Mr. Tran was released for allegedly breaching a bail condition requiring him to live with his mother:

http://calgary.ctv.ca/servlet/an/local/CTVNews/20090327/CGY_Tran_Release_090327/20090327/?hub=CalgaryHome

According to the Immigration Review Board (IRB), the fact that Tran's mother was required by necessity to move to a different location was not his fault. In the words of the IRB adjudicator, Geoff Rempell:

"Your mother was put in a difficult position because Child Protective Services was not willing to allow your sister to remain in the same residence as you were living. In my view, your mother's decision should not impact you".

In November 2008 Tran was breached on allegations that he was out past his curfew.

http://www.cbc.ca/canada/calgary/story/2008/11/14/tran-tessler-custody-release.html

In this case police alleged they saw Mr. Tran out of his residence after curfew, but after hearing evidence from a person who testified it was him and not Tran, and after considering the police officer did not observe the prominent scar on the forehead of the person alleged to be Tran, IRB adjudicator Marc Tessler concluded it was a case of mistaken identity.

Therefore, Sgt. Eriksson was wrong to suggest the arrests were Mr. Tran's doing.

All of this information relating to Mr. Tran's previous IRB hearings was readily available and probably known by Sgt. Eriksson before he made the rather block-headed comment to the media on August 24th, 2009. Given Mr. Tran has twice been exonerated of police allegations, one might actually think there is information to support the proposition that the police are indeed picking on him.

I sometimes wonder why spokespersons for the police (such as Sgt. Eriksson) fail to take a more professional approach to addressing the media. For example, why not say, "Mr. Tran has been arrested for breaching his release conditions. We need to find out why this happened". After all, practically speaking, isn't it quite possible that Mr. Tran has a reasonable explanation? I mean, ordinary people, going about their everyday affairs miss work, school and appointments, and not all of them do so because they are lazy or without reasonable excuse. Maybe Mr. Tran was in a car accident? Maybe the electricity to his home went out and his alarm clock did not ring? Maybe he became violently ill? Maybe he thought the meeting was on Tuesday, not Monday? With this in mind, it is important to remember that breaching bail conditions is a mens rea offence. That is to say, it requires intentionality.

Now I am not saying Mr. Tran was not in breach. I really don't know whether he was or not. What I am saying is that citizens need to be more objective assessing information presented by the media. Additionally, citizens need to hold public officials (such as Sgt. Eriksson ) accountable for improperly conveying information informing public debate. Staff Sgt. Eriksson is more than an opinionated blogger voicing his thoughts on websites such as this. He is a public servant, whose very status in society carries considerable weight in the mind of ordinary citizens. As such, his responsibility demands more thoughtful comments than those delivered in this case.

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com

It Takes Great Courage to be Truly Principled

2009-08-25T06:56:00.000-07:00

From reading today's newspaper I see that Keegan Troy Spearchief was granted judicial interim release on August 24th, 2009.

http://www.globaltvbc.com/world/High+risk+Calgary+offender+granted+bail/1924607/story.html

Since this case will likely instigate some kind of public outcry, such as the vicious attack on our system of justice by blogger's such as this:

http://www.calgarysun.com/news/alberta/2009/08/12/10435311-sun.html

I want to take a few moments to discuss bail.

In Canada, our Constitutional protections mandate a presumption in favour of judicial interim release. The underpinnings of this principle flow from the basic legal tenet that all persons are presumed innocent until proven guilty. This means that every person who is "charged" with an offence is presumed to be innocent of that charge. As citizens become overly excited or offended about accused people being released from custody, they should remember that those people are innocent in the eyes of the law at the time of their bail hearing. This includes Mr. Spearchief.

Now, just for a moment, imagine the accused is truly innocent. Imagine, the person did not commit the crimes alleged. Now imagine that innocent person having to spend days, months or even years in jail awaiting his or her opportunity to demonstrate that innocence. Now imagine that person is you.

Believe it or not, truly innocent people spend time in jail on charges they did not commit. Obvious examples include David Milgaard, Thomas Sophonow, Herald Druken et al. Those are just some high profile examples. Those charged with less serious offences that do not attract the public eye are scattered across this country. And yes, people with lengthy criminal records can even be truly innocent.

People are often convicted in the news media long before their case ever goes to trial. Mr. Spearchief's High Risk Offender designation increases his likelihood of conviction in the court of public opinion. Though there is not been reported a single piece of real evidence proving Ryan Jensen actually murdered and mutilated Jasmine Fiore, he has been labelled "killer" and "murderer" in numerous newscasts. In the eyes of many citizens sitting on the court of public opinion, both Mr. Spearchief and Mr. Jensen would have been convicted, sentenced and jailed (or worse) before a modicum of evidence was ever proven in a court of justice? Alas, I digress...

Returning to the case of Spearchief, I glean from news reports that he has been charged with a relatively minor index offence (trespassing) and at least one relatively minor and technical breach. I also understand that he was taken into custody on July 27th, 2009 - meaning that he has spent just short of two months behind bars on all things considered minor allegations. Now, aside from the fact that he is innocent until proven guilty, we also need to question whether spending time in jail, awaiting trial, would result in him being over-sentenced even if he was convicted of all of these relatively minor infractions. Remember, pre-trial detention is not punishment.

More importantly, however, we also need to consider whether Mr. Spearchief actually breached the terms of his initial bail. As I understand, he was released by police on the trespass allegations, only to be gated on allegations that he breached bail by not looking for work. I understand that his defence lawyer presented evidence at the bail hearing that he was looking for work. Meaning, he did not breach!

With this in mind, the Provincial Court Judge may not have had a real basis to revoke Mr. Spearchief's original bail which was granted by a justice of the peace. To this end, a bail judge must follow the rules set out in s. 524 of the Criminal Code. This includes a rule that the judge must have "reasonable grounds" to believe a condition of the original bail order was breached in order to justify revoking the orginal bail order.

In any event, considering the nature of the allegations, the extent of the punishment available if convicted and the fact that he may not have breached in the manner alleged, it is appears legally impermissible to quarrel with the bail judge's decision in this case.

As law abiding citizens, it is easy to play armchair judge. It is easy to say, convict'em all, detain'em all, punish them all; but to be a true crusader for the principles engrafted in our justice system takes real courage.

Does anybody really think judge's who release accused persons do so easily? Judges live in this community too! They are law abiding, principled folks. A great many judges grant bail, acquit and sentence on the basis of the courageous application of the rule of law. Instead of being labelled Judas in the court of public opinion, they should be rewarded for their staunch adherence to the principles that shield all Canadians from the horrific prospects of wrongful conviction and persecution by the State.

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com

Alberta Court of Appeal Brings Temporary Closure to the DRA Debate

2009-08-22T04:16:00.000-07:00

A digital recording ammeter (DRA) is a device installed on the electrical line of a home for the purpose of measuring and recording the target residence’s electrical usage. DRAs are often used to investigate residences suspected to contain marijuana grow operations.

The reason a DRA is an effective tool for these types of investigations is because marijuana grow operations typically utilize higher than average electricity to power lights and fans necessary to facilitate plant growth. For example, during the “seeding phase” of a marijuana grow (usually lasting up to four weeks), it is very important to maintain high humidity levels and medium to high light intensity. To quicken the seeding phase, a 12 hour lighting cycle is generally used to induce sexing. A DRA will not only measure the level of power consumption, but can supply information about power consumption pattern within the residence. Therefore, it can determine whether power is consumed in 12 or 18 hour cycles consistent with the presence of a plant grow operation. Cycles for marijuana grows (as with other perfectly legal plant grown operatoins) are designed to mimic a 24 hour day.

In the world of criminal justice, there has been much debate as to whether the use of DRAs constitutes a search pursuant to section 8 of the Canadian Charter of Rights and Freedoms. In Alberta, the Court of Appeal’s decision in R. v. Gomboc 2009 ABCA 276 may, at least temporarily, provide some closure to the issue.

Writing for the majority, Mr. Justice Peter Martin held that the use of digital recording ammeters (DRAs) constitutes a search pursuant to section 8 of the Charter. At the heart of the debate was whether persons have a reasonable expectation of privacy in this kind of information. After acknowledging various jurisprudence about the sanctity of the home, Martin J.A. aptly stated at paragraphs 21 and 22:

In my opinion, the expectation of privacy extends beyond simply the information as to the timing and the amount of electricity used. It is also objectively reasonable to expect that the utility would not be co-opted by the police to gather additional information of interest only to the police, without judicial authorization. Indeed, I expect that the reasonable, informed citizen would be gravely concerned, and would object to the state being allowed to use a utility to spy on a homeowner in this way.

It is useful to recall that the appellant’s relationship with the utility provider was born of modern necessity; it was not feasible for him to generate his own electricity or to go without. So the appellant agreed to a standard electrical service arrangement with Enmax, whereby the latter would supply electricity to the his home in exchange for payment for that service. In this way, Enmax received access to the appellant’s property to install the necessary equipment to supply his house with electricity, and continued to have restricted access to check and maintain the equipment. It is reasonable to infer that access would not otherwise have been allowed.

In arriving at his decision, Martin recognized, a pair of realities: (1) It is a basic need for Canadian citizens to use electricity and (2) in our modern world surveillance encompasses more than just the cliché stakeout. Today, surveillance encapsulates a variety of techniques, some which involve gathering information about citizens within non-private domains, and other techniques which are potentially more intrusive. Granted, DRA can supply investigators with information suggestive of the presence of a plant grow operation (which by the way, is not always an illegal marijuana grow); but as Martin J.A. recognized, it can also provide insight into biographical information about the occupants of a home. Given that people must contract by necessity with their local energy provider to get power, they should not by sheer modern necessity be required to consent to a loss of the right to privacy within their own home sanctuary.

Whatever the case, closure on the DRA issue is sure to be relatively short-lived; for of the three member panel, Mr. Justice Cliff O’Brien delivered a strong, well reasoned and interesting dissent. For this reason, it is highly likely the issue will ultimately be decided by what has in recent years been a heavily divided, and somewhat inconsistent, Supreme Court of Canada.

In the meantime, police should obtain prior judicial authorization (a search warrant) if they want to use DRAs. Since the prior judicial authorization process is theoretically the mechanism by which the privacy interests of all Canadians is protected from unjustified State intrusion, it is hard for me to imagine that obtaining a warrant before intruding on a citizen's home sanctuary is anything less than proper.

David G. Chow
Calgary Criminal Defence Lawyer

www.calgarydefence.com

More Wicked, Questionable Questions

2009-08-20T08:47:00.001-07:00

Self preservation is a natural human inclination. So when a police officer covers up misconduct by fabricating reports justifying a decision to use force, perhaps we should not be surprised. However, police are highly trusted public servants. They are the people citizens rely upon for protection. They are the symbol of morality and justice. So when police fabricate an incident to protect their own self interest, there must be consequences. A Dziekanski-esque cover-up is never acceptable.

I have defended and prosecuted cases where video surveillance did not corroborate allegations by police that the accused was resisting or being assaultive. I have even prosecuted cases where video imagery was tampered with. Though these are rare occurrences, they do exist.

Having said this, LET ME BE PATENTLY CLEAR reiterating a point that I have made time and time again: THE VAST MAJORITY OF POLICE OFFICERS ARE HONEST, HARD WORKING FOLKS, who exercise a proper degree of discretion most of the time and possess such moral fortitude that they own up to mistakes, even if it means supplying information or evidence harming the prosecutions case. So when I criticize police in articles such as this, I am really targeting a small percentage of the police force. It is unfortunate that all of the fine officers potentially get painted with a single brush, but that is why I want the one or two readers of this site not to take things out of context. The reality is, every group or population has the preverbal bad apple.

In what appears to be a consistent theme flowing from the use of Tasers, police have come under fire for yet another incident where the justification for using the weapon has been disconfirmed by video surveillance.

http://www.calgarysun.com/news/world/2009/08/20/10531156.html

According to Officer Erik Hansen’s report, the accused (Pawlowski) stepped back and took a threatening stance while he was being fingerprinted. According to Hansen’s report

“Twice he (Pawloski) pulled his hand away and I cautioned him to keep his fingers flat on the scanner. The third time he pulled back his hand, stepped back, focused on me and took a stance as if to attack me. I then grabbed Pawlowski around his neck and shoulders and drove him to the floor.”
Really?? Video obtained by the Associated Press apparently shows otherwise.

The video, which has no sound, shows Pawlowski slightly raising his right arm when Hansen roughly drives him to the floor and two other officers shoot Pawlowski with stun guns. Police then charged Pawlowski with interfering with an officer. Also, the video shows that Pawlowski had no time to focus his attention on the officer before being attacked and tasered.

Being assaulted by police is serious. Being criminally charged by police for something one did not do is even more serious. But being falsely charged so the offending officer can deflect blame due to his or her assaultive behaviour? In this writer’s view, that is one of the most heinous crimes against the public interest imaginable!

It is not enough to merely beat up or taser a citizen (or both), the citizen must be saddled with the risk of being convicted for something he or she did not do? Frightening….

For many citizens, a criminal charge is a catastrophic event. The citizen must now confront the possibility that he or she will lose a job or be restricted in travel. They are painted with the stigma of being “an accused” and face imminent risk of conviction.

Justice is far from perfect. Believe it or not, people are wrongly convicted. We like to believe otherwise because that belief allows us to sleep soundly at night, but the belief is naivety. Justice is a human system. There is no consistent application of reasonable doubt, and even if there was, evidence is often the presented product of witnesses – some who are better than others. Police are professional witnesses.

Better, however, does not necessarily mean more reliable or more credible. By virtue of their position alone, police officers often receive a tremendous amount of deference by courts. When they testify, the default position is that it is true. When they make a notation or record information as part of their investigation, the default position is that the information is reliable.

When police fabricate – as they apparently did in Mr. Pawloski’s case and as Millington and others did in Dziekanski’s case – the risk to the integrity of our system of justice is catastrophic.

The question is, how many false allegations have been perpetrated by self interested officers that were never uncovered because there was no video? How many citizens have been wrongly convicted in these circumstances?

These are yet more wicked, questionable little questions.

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com

Code of Silence -- A One Way Application

2009-08-18T07:01:00.000-07:00

Question: Why does law enforcement seem to have no difficulty naming suspects and accused persons who are not police officers; but when it comes to police, the offending officer's name is a secret?

In a recent article titled "Cop Charged with Assault", aside from a being a Calgary Police Officer, his or her identity remains anonymous.

http://www.calgarysun.com/news/alberta/2009/08/18/10493741-sun.html

Though police spokespersons and other government officials are prepared to publically name gang members and other accused, and may even be prepared to reveal damning allegations which undoubtedly turn the public (along with any potential jury) against an accused,

(see for example: http://jasonvanrassel.wordpress.com/2009/08/12/bolsa-bombshell/)

there seems to be a general unwillingness to name suspect or accused police or to openly reveal the nature of the case against them.

We still don't know the identity of the police officer who kicked and killed Harley the Dog. I have suggested that the investigation into the death of Harley would eventually slip from the minds of the once outraged public, and indeed that appears to be the case.

See: "A Flicker of Life on the Case of Harley the Dog

http://andjusticeforall-calgary.blogspot.com/2009/07/flicker-of-light-on-case-of-harley.html

and

"A Token Investigation - The Investigation into the Death of Harley the Dog"

http://andjusticeforall-calgary.blogspot.com/2009/07/token-investigation-investigation-into.html

The public should become ever more concerned about the code of silence relative to alleged police misconduct. At the very least, there ought to be some consistency in its application.

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com

Anthropocentric Justification for Murder

2009-08-18T06:37:00.000-07:00

Perhaps it should come as no surprise in our anthropocentric world that Alberta Fish and Wildlife has turned to mass murder in effort to control bear incursions on the Conklin dump. After all, we are human beings. We have decided to fan out like viruses, creating urban sprawls that dramatically impinge upon the living space of other creatures of this earth. It doesn’t matter whether we kill majestic sea creatures to satisfy our appetite for sushi and other exotic fish; and it doesn’t matter that we constantly build condominium projects, roads and other human infrastructure in nature’s paradise. If the inhabitants of those worlds cross our path (and heaven forbid if they annoy or inconvenience us) – kill em all!

In the last week, Alberta Fish and Wildlife has shot and killed 12 bears for being what they are – animals.

http://www.calgarysun.com/news/alberta/2009/08/18/10493736-sun.html

No longer afraid of humans, black bears are visiting the Conklin dump to scavenge for a meal. To satisfy their insatiable need to survive, the bears have decided to do what comes naturally – find easily accessible food. It may even be that their natural food is not as readily available because of their ever decreasing habitat. Whatever the case, we shoot them for no other reason other than doing what animals do. It’s not even like they attacked any humans or other animals, like the rogue Grizzly bears did in the case of Ms. Killam.

http://www.calgarysun.com/news/alberta/2009/08/18/10493726-sun.html

Even though officials captured a pair of Grizzlys, Ms. Killam continues to live in trepidation.

"What's stopping other bears from coming down?”, puzzles Ms. Killam. “How do I know there's not another bear out there?"

Well, I can pretty much assure Ms. Killam and every other human, there are other bears out there!

Newsflash, we share this Hillbilly’s Paradise with other animals.

Sometimes our interests collide. If you swim in the ocean, then you should expect big fish to be swimming nearby too! If you live on this earth, especially close to wildlife habitats, you should expect other animals to exist nearby too!

Newsflash, animals do not exist with the same anthropocentric ideals that human beings do. Newsflash, they need to eat to survive. They can't attend the local grocer to purchase a meal. So, they might eat garbage or even other ready prepared meals, like donkeys.

The coyote’s that roam near my house undoubtedly hunt and eatdogs and cats. They would even eat minen if was an easy meal. I accept this as a natural consequence of residing near a ravine. That is why I am watchful and careful with my pets.

I am not saying I want bears in my backyard or that I am prepared to give up my pet as easy dinner. I am saying that I accept the laws of nature and the laws of man do not always coincide. Accordingly, to protect my interests I keep watch on my animals -- ever aware that other wildlife lives nearby. I accept inherent natural dangers with this co-existence. To this end, I think Sustainable Resource Development spokesperson Dave Ealey is absolutely correct:

"People should be alert when living, working and playing in bear country."

I also think we need to accept the natural consequences of operating a dump near bear country. I do not agree that killing the wildlife is the answer. It’s not like the bear population has grown out of control, like disease infested rodents. In fact, the issue is not disease at all. The issue is fear and/or inconvenience.

Interestingly, we don’t slaughter Calgary’s Homeless population for picking through garbage in this City’s back alleys. Aside from the fact that animals are often bigger, stronger and have sharper teeth than humans, I fail to see that there is a major distinction. So, perhaps we need to rethink loading our guns to blast the life out of creatures that are doing what comes natural to them. Perhaps we should rethink murdering animals because they are trying to survive in an ever more anthropentric world.

By the way, I really do like donkeys.

David G. Chow
Calgary Criminal Defence Lawyer

www.calgarydefence.com

Setting the Record Straight - The Marginalization of Calgary Criminal Defence "Firms"

2009-08-16T15:18:00.000-07:00

I want to take a moment to deflect the quasi-marginalization of defence law firms by lawyer David Andrews in a Calgary Herald Article titled: “Dreams of Setting Up a Law Firm”

http://www.calgaryherald.com/life/Dreams+setting+firm/1898291/story.html

I do so because I don’t want clients of any other defence lawyer in Calgary to be left with the impression lawyers within firms, or associations or even those who operate independently under their own shingle are not able to provide excellent representation due to their business designation. Despite the category under which they practice, most defence lawyers do make efforts to better themselves (and the interests of clients) by maintaining close knit relationships with other lawyers both within their own practice and outside of it.

At the outset, the reader should understand that in criminal law, some “firms” (to use the language loosely) are labeled “an independent association of law practitioners”. For example, Fagan & Chow, Roulston Snukal and Dunn McKay are independent associations. That they are independent associations, however does mean the lawyers within those associations do not often work as a team or collaborate to prepare individual files with the best interests of clients in mind. Other lawyer groups, such as Ruttan Bates and Dartnell Lutz are true law partnerships, in the sense that they share business assets and profits. Independent Associations may or may not do this. Again, lawyers within both these groups often collaborate or work as a team to deal with specific legal issues. Other lawyers operate as single, independent entities; either leasing space or sharing space within an office environment. Again, however, many of these lawyers collaborate with other lawyers to keep abreast of changing developments in the law and prepare cases.

Taken literally, Andrew’s comments in the Calgary Herald may leave the reader of that article with the impression that any organization of criminal lawyers not operating inline with his firm model are not a true criminal law firm. For as he says, “In Calgary, there is no true criminal law firm”. This is simply incorrect. To this end, let’s analyze his comments:

“Our clients pay us. They hire us to go into court and fight for them. Often we're aggressive, and setting aside that and working toward a common goal is a challenge when we're all gunslingers by nature. Our personalities are that of the gunslinger. To set that aside and focus on working as a team is always a challenge, but everyone's so committed to the idea."

Now, I want to be fair in my interpretation. I take Andrews to mean that clients pay his group – meaning Stewart, Andrews et al, to do work’; and getting all the lawyers together for the purpose of advancing the “crimimm” concept required commitment to the idea. Doubtless, this was probably a challenge. Mr. Andrews goes on to say:

"In Calgary, there is no true criminal law firm. The law firms in criminal law in Calgary tend to be a loose association of lawyers who share space as opposed to being a true firm. So if you want to be a criminal lawyer in Calgary, you just have to hang out your shingle (and) if you're lucky somebody will rent you some space, start from zero. Try to find a client and hopefully that client will think you did a good job for him and refer people to you. That's how you build a practice in Calgary."

Now Andrews is wrong to say there are no “true” criminal law firms in Calgary. There are in fact many true criminal law firms in this city. The main difference between the “firms” is how they decide to conduct and designate their business. Some, such as Dartnell Lutz and Ruttan Bates, may share assets, expenses, legal expertise and split profits. Some are “independent associations of law practitioners” – and as such, likely do not share assets or profits but may share expenses. Regardless, whether the firm is a partnership or an independent association it still works to provide the best service to clients. Many independent associations are committed to sharing ideas, collaborating on trial strategy, assisting with in-court agencies and distributing research. Many firms are organized because they are like minded in these goals. Fagan & Chow has always been committed to this approach; as has a great many other independent associations, such as Dunn McKay, Virk Saini and Roulston Snukal. Many solely independent practitioners, such as Michael Kiss, have forged close relationships with other independent associations and law partnerships. The point is, even though many criminal lawyers operate independently or pursuant to a different business model, they do not necessarily operate alone. Certainly most lawyers work to provide top level service to their clients.

"Calgary has a tremendous criminal defence bar”, says Andrews. “They're supportive. They're friendly. And they're excellent lawyers. But I always had a belief that something we could do to distinguish ourselves from everyone else and really provide a good service to our clients would be to actually work as a firm."

Mr. Andrews is correct: Calgary has an exceptional criminal defence bar. But when he says, it is his belief that his group is distinguishable from everyone else in terms of being able to provide good service to clients because they work as "a firm", is to marginalize all of the firms operating as part of Calgary’s criminal defence bar. To say he is model is the only “true firm” and that it provides really good service to clients, is essentially to say that untrue firms (as he designates them) cannot provide the same level of service.

Mr. Andrews also seems to be saying that his group can provide better service because it works together. He says his group has put aside the “gunslinger” mentality to bridge the gap between independent lawyer and team. Surely he doesn’t mean that the other lawyers within criminal law firms do not work together? Lawyer Karen Molle, for example, in the Dunn McKay firm provides invaluable advice and experience to every member in that shop. In fact, Ms. Molle has provided erudite advice to many lawyers outside of that firm; ironically including Mr. Stewart and Mr. Andrews. If Andrews means lawyers don’t share money, he might be right. But if he means they don’t work together to best service clients, he is wrong.

Interestingly, if Mr. Andrews’ concept is that all clients in his firm are collectively thrown into a single cauldron of clients, then each individual client better understand that his or her lawyer of choice may not be the lawyer he or she gets. The client who pays good money to hire Charlie Stewart, Q.C. but gets somebody else may be in for a big surprise. In my shop, when clients want David Chow, they get David Chow.

I commend the “immicrim” or “crimimm” idea. I think there is a close connection between criminal law and immigration law. I applaud Mr. Andrews for his efforts in advertising the concept. Undoubtedly, the close linkage between the two disciplines creates a natural fit. The slogan “crimimm” is not too shabby either.

Where I have a problem is with the inaccurate and arguably insulting statement that there are no true criminal law firms in Calgary. I’m sure the other aforementioned firms would be surprised to hear they are not a “true criminal law firm”. Fagan & Chow practices exclusively criminal law. As does Roulston Snukal, Dunn McKay and Virk Saini. Furthermore, I take issue with the insinuation that the other firms in the criminal bar do not operate with a team concept in mind; for clearly many do. I take exception to the insinuation that other firms may not supply the best service to clients because they are not true firms. Again, I am sure many criminal defence lawyers would agree.

Perhaps Mr. Andrews and his group are structuring their firm differently. Independent Associations are structured differently than true partnerships. But just because it is structured differently does not necessarily mean it is structured better. And it is inappropriate for Mr. Andrews to imply it is so with respect to his concept – especially since his highly advertised concept has yet to even open its doors for business.

Advertising business is smart business, but doing so at the expense of competitors and colleagues? I don't think Andrews had bad intentions with what he said, but the communication deserves a response. That is what I have done here....

David G. Chow
Criminal Defence Lawyer

www.calgarydefence.com

Credit Where Credit Is Due? Lobby For More Police - Truth or Ruse?

2009-08-14T06:52:00.000-07:00

I live in a quiet and peaceful suburban Calgary community. Since a relative large number of police actually reside in my neighborhood, I know they are present. Even so, I have to admit, I wouldn’t mind seeing a marked presence in the area on a more regular basis. I see absolutely no downside to members of our local constabulary politely interacting with the community, with the aim of making their presence known in an effort to deter criminal behavior, and at the same time increase public confidence in our police force.

Though I have observed the odd police vehicle roaming my neighborhood during daylight hours, I have never seen one at night. Since I suspect most criminal behavior occurs when it is dark, I think I am on fairly solid ground to say that is the time when we need police the most. Now I admit, I sleep at night, so it is possible they are silently patrolling my neighborhood whilst I am snuggled away in the locked security of my home. Having said this, of all the late night walks I have taken; time spent on the patio sipping beer under the moonlight while watching the traffic roll by on what is perhaps my communities busiest road (if you could even call it busy), I have never observed a marked police presence after daylight hours.

Interestingly, of all the time I have spent downtown, I noticed that the seemingly overwhelming police presence during daylight hours literally fades away once the sun goes down. I spend time downtown, and I have to say, my experience is that there is only a fraction of the police on downtown streets at night, than during the day. I have a hard time believing criminal behavior in Calgary’s downtown is at its highest at this time. After all, Calgary’s downtown during daylight hours is populated by working folk in suits, city workers standing idle on the side of the road and construction workers laboring on any number of Calgary’s downtown projects. Now, when the Cecil Hotel was operating, there was a lot of rather suspicious behavior taking place, but now that it’s gone?

I appreciate the government is telling us crime in the downtown core has decreased. Certainly I have no reason to disbelieve those who say so. But I wonder, how much of the decrease in crime is as a result of the closure of what was perhaps Calgary’s most notorious hotel? According to Mayor Bronconnier, after the closure of the Cecil, crime decreased by a whopping 85%!

http://www.cbc.ca/canada/calgary/story/2009/01/22/cgy-cecil-hotel-crime-down.html

Today, Calgary’s police lobby sells us that crime is down in our city centre because of increased police presence.

http://www.calgarysun.com/news/columnists/rick_bell/2009/08/14/10459661-sun.html

To fair, it probably is. But the question is how much and why? Is it really down because the government has decided to increase tax payer dollars in support of law enforcement, or is it because crime has moved elsewhere in response to the closure of a downtown criminal epicenter?

In the word's of columnist Rick Bell: "It's on to Step Two. In the city budget to be debated in November, the police are up for 67 more officers though Hanson worries about getting the numbers. No reductions are in the cards despite the city cutting $38 million out of next year's bottom line".

If crime has moved elsewhere, then it seems some of the virtual leviathan of police officers stationed in Calgary’s downtown can simply be diverted to those areas which have suffered an increase due to the closure of the Cecil.

(Tangentially speaking, has anyone ever wondered about the propriety of the Cecil’s closure? I mean, the City takes away the Hotel's operating license and then purchases the property? Hmmmm??? Alas, I digress…).

Police Chief, Rick Hansen, is a lobbyist. Like so many top government appointments, his job is to secure tax payer funding for his organization. He now looks to secure tax payer funding for yet more police on grounds that we need to stack a uniformed presence in Calgary suburbs. Essentially, he says that more police equates into a reduction of crime. He points to results in Calgary’s downtown core. But is he taking credit where it’s due? Or is he bootstrapping his position to an occurrence that has little to do with the increased police presence?

Assessing the police lobby, 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 epicenter 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 behavior -- 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?

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com

Reasonable Apprehension of Bias - Police Investigating Police

2009-08-13T08:12:00.000-07:00

“The RCMP's watchdog says it's time to halt the practice of the federal police force investigating its own members in cases of serious injury or death”.

http://www.vancouversun.com/RCMP+watchdog+wants+investigation+rules/1884653/story.html

The official RCMP response to the Report on Police Policing the Police is that the report is “…unduly negative and in some instances quite misleading”.

http://www.rcmp-grc.gc.ca/news-nouvelles/speeches-stat-discours-decl/20090729-cpc-cpp-eng.htm

Now, I am not going to summarize all of the findings in the Report; nor am I going to brief the RCMP official response. The question as to whether police should investigate themselves is in my view an obvious NO.

We live in a society of nepotism. We live in a world where it is often not what you know, but who you know that results in advancement through various social, political, judicial, employment and other circles. Many circles are governed by a schoolyard type mentality, where you don’t report on your peers or are at the very least loath to do so. There is little doubt that police – and others – fall into this category. They are protectionist.

On this point, I want to be fair to the police. Aside from being more public, armed with weapons and invested with a tremendous amount of trust and social responsibility, they are no different than a great many other groups. Lawyers are primarily policed by other lawyers (i.e., the law society). Though some might say judges are policed in court by lawyers, they are really ultimately policed by themselves. Judicial policing comes in the form of Appellate Courts and the seldom used Judicial Counsel. Though crown prosecutors are lawyers, and subject to the law society, they are primarily policed by Crown prosecutors.

My point is, anybody who has worked in any kind of work or office environment knows the internal workings of the environment create a form of kinship between those working together. With this in mind, does it really ever make any sense to have peers investigate peers in anything?

In law we use a term called “reasonable apprehension of bias”. In short, this concept asks whether a reasonable and ordinary person, fixed with knowledge and understanding of the issues, would perceive bias on the part of another. Reasonable apprehension of bias does not require the high standard of proving “actual bias”; rather it is concerned with the reasonable perception of bias. Understanding the reality of nepotism, kinship, friendship and interests in common, is it not reasonable to assume that there would be bias when police investigate police?

Notwithstanding this issue requires far more analysis than I am prepared to give it here, the question still remains. It is one of those wicked, questionable questions.

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com

Educate Not Terrorize

2009-08-12T06:49:00.000-07:00

In the August 12th, 2009 edition of the Calgary Sun, columnist Jeremy Loome wrote an interesting article titled “High-Caliber Programs Solve Gun Woes”. Loome is clearly not a supporter of handguns. He even makes the rather absurd comment that he would not attend a barbeque hosted by a handgun owner because of the likelihood of being shot.

Despite his clear distaste for guns, however, Loome writes a fairly informative article surprisingly suggesting that gun control advocates are wrong. The premise of his article is essentially that guns are not the root cause of problems, rather anti-social behavior is rooted in economic and social issues, which education, not abolishing firearms would solve. He draws from the experience of gun populations, such as those in Vermont. According to his article, Vermont has some of the least strict gun control laws in North America. In Vermont, anybody can carry a concealed weapon and anybody can buy a gun without a background check. Vermont’s gun crime rate is amongst the lowest in the United States and several points lower than gun control paradise, Canada.

The Swiss have an armed population – in fact, each household is expected to have a gun, with ammunition. From their perspective, an armed citizenry, dedicated to protecting itself is more effective than a paid military. Citizens with a vested interest in their country have a greater stake than paid mercenaries. Swiss gun crime is amongst the lowest in the world.

Loome concludes that tax payer dollars invested in the ineffectual and now virtually defunct gun registry would have been better spent educating Canadians on the root causes of crime. It is hard to argue with his point.

Gun ownership is about balancing costs with benefits. From a democratic perspective, firearms represent the great equalizer. In a true democracy, the government exists for the people, and if the government steps out of line, democracy expects the people to purge the government. Firearm ownership sits at the very heart of this principle, for an unarmed population has little ability to resist the despotic will of a heavily armed State. Firearms also equalize differences between young and old, male and female, criminal and law abiding.

With firearms possession there are costs. Just like more cars on the road equals more accidents, the greater the number of guns in society translates into more accidental shootings. Just because something poses a risk, however, does not mean it is necessary to remove the thing altogether. After all, we license motorists and allow them to hurdle themselves down highways at high rates of speed on a quotidian basis.

Taking away guns does not solve criminal behavior. Criminals will either obtain guns or find other weapons to do the deed. The question is, why should law abiding Canadians necessarily be the only unarmed group? When the State tells us they are the only ones allowed to carry firearms, citizens should be worried. The heart of democracy is that citizens can, if necessary, resist the State. My point is, lets educate instead of terrorize. Lets do what Loome suggests: “…combat the poverty based roots of crime”. That seems to be a sensible and democratic objective.

David G. Chow
Criminal Defence Lawyer

www.calgarydefence.com

New Dial-and-Drive Legislation

2009-08-11T06:58:00.000-07:00

Just in case the readership on this discussion board consists of more persons than just me(and on occasion, Michael Bates), it is appropriate for me to post on the subject of new laws targeting the specter of unsafe driving arising from cellular telephone use. I do so to demonstrate that my hypocrisy has limitations.

http://www.calgarysun.com/news/columnists/michael_platt/2009/08/11/10422141-sun.html

As you may recall, I have recently criticized police for engaging in tax collection in the guise of traffic safety:

http://andjusticeforall-calgary.blogspot.com/2009/08/proof-that-traffic-safety-enforcement.html

Though I am concerned about government adding yet another law to the books, and am rather perturbed that I will no longer be able to conduct business whilst sitting at the seemingly innumerable untimed red lights littering Calgary roads, I have to admit that talking on the phone or driving with my 5 month old puppy gleefully looking out the window from the comfort of my lap represents a definitive safety hazard. Unlike a great many laws, legislated by inept government officials trying to justify their salaried and pensionable existence on the back of an ever decreasing, yet highly taxed private industry, officials who lobbied for laws allowing police to genuinely target the root cause of distracted and ultimately unsafe driving have in my mind, legislated much needed additional powers for real traffic safety enforcement. Additionally, for those engaged in the much publicized “dial-a-dope” drug trafficking trade, watch out, for police can now stop you for talking on your cellular telephone.

Notwithstanding the benefits of this new legislation, I remind citizens, that with each law passed, government effectively equips itself with greater power to intrude upon the existence of any Canadian.

Put your feet on a park bench, you can talk to law enforcement. Drive to fast, talk to law enforcement. Have a cracked tail light, talk to law enforcement. Talk on your cell phone while operating a motor vehicle, talk to law enforcement. This list goes on and on and on….

Some laws, however, are necessary. If they are broken, it is proper to talk to law enforcement. So, I agree, drive while distracted – talk to law enforcement.

David G. Chow
Calgary Criminal Defence Lawyer

www.albertaimpaireddrivingdefence.com

Earth - A Hillbilly's Paradise

2009-08-10T14:12:00.000-07:00

From reading articles about the duck poachers

http://www.calgarysun.com/news/columnists/michael_platt/2009/08/10/10412096-sun.html

there are at least two certainties relative to this unfortunate event:

(1) David Fraser is genuinely remorseful; and
(2) David Fraser and the other two fellas involved in the senseless murdering of wildlife are ignorant as ignorant can be.

Seriously, whenever a citizen is trekking through the back country armed with a firearm, shooting at living creatures one has to wonder whether the act is not only legal but moral.

Now, I understand the need to cull certain wildlife from farmer’s fields. Absent pest control, gophers pose risk to both agriculture and domestic animals. The risk is not just about a horse or cow stepping in a gopher hole, or about prairie dogs chowing-down on agriculture, it is about disease and pestilence spreading from an overgrown gopher population. But shooting ducks leisurely sunning themselves on a local watering hole? That’s just not the same thing. That is a distinction with a massive difference.

To be fair to the Fraser boys, I have strong suspicion that they are no different than a gaggle of other hillbillies worldwide senselessly blasting wildlife without consideration. They are, however, the ones that in an odd moment of innocent-ignorance posted their rampage on the internet for all to see. And its not just metrosexual yuppies incensed over this tragedy; for I have spoken to a number of law abiding firearms owners who are disgusted as well. They are angered because of the senseless death and perhaps even torture of beautiful creatures, but also because this kind of activity adds support to those lobbying for abolishing firearm ownership altogether. A lobby that many, including this writer, does not support.

Having said all of this, I think we should take a moment to recognize what appears to be a genuine display of remorse on the part of David Fraser. As human beings, we are of course highly anthropocentric creatures. Often, we see the world only through human eyes, with little recognition for what it is like to be something other than what we are. Interestingly, without much adieu, human beings senselessly cull the oceans of wonderous creatures on a quotidian basis. For instance, to satisfy our insatiable urge for exotic foods, we torture sharks for their fins. Sharks are perhaps the earth’s greatest survivor. The Great White Shark is a miracle of consistency. A creature that has survived "unevolved" for millions of years. Today, these splendid creatures find themselves tangled to death in fishing nets, bait lines and some have even been hunted by a host of pathetic testosterone junkies sitting in the safety of armored boats while they chum the water with one hand and drink a beer with the other. Manly I tell ya!

I guess my point is at least twofold. Firstly, as much as we are angered at the Fraser’s, we should at the very least acknowledge David Fraser for taking responsibility and in so doing, showing us that he is human. Like all humans, he is a creature capable of making mistakes. He apparently recognizes what he did was wrong. At least he is conscious. That makes him far different from scads of other people who don’t even understand or care to appreciate their moral shortcomings. Secondly, when we look at this incident, we should not only extend our concern for the senseless conduct that led to the death of ducks; we should also reflect upon the countless other creatures we destroy without much adieu. For we kill billions of other creatures with far less consideration than the carnage wrought by the Frasers.

Indeed, Earth is a hillbilly's paradise.

David G. Chow
Criminal Defence Lawyer

www.calgarydefence.com

Moral Culpability versus Result Orientated Reasoning -- A Brief Reflection on the Case of Daniel Tschetter

2009-08-06T05:52:00.000-07:00

Moral culpability or moral blameworthiness sits at the heart of punishment in criminal cases. In legal parlance, the mens rea of a crime is the intention on the part of the wrongdoer to commit the criminal act. Manslaughter cases, such as the prosecution of Daniel Tschetter, involve a difficult analysis to determine what the offenders actual moral culpability is.

In Alberta, jurists rely upon a case called R. v. KKL or more often referred to as R. v. Laberge to assess moral blameworthiness in manslaughter cases. In Laberge, the Alberta Court of Appeal essentially created three primary categories of moral culpability. At the bottom end of the range -- or the lowest category of moral blameworthiness -- are close to accidental acts. The question is, did the offender's conduct create a situation whereby the oconduct was likely to cause bodily harm that was neither trivial nor transitory. In the middle range are acts where the offender was reckless or wilfully blind to the extent that he ought to have known that there was a risk of serious bodily injury. At the upper end of the range is whether the offender knew or proceeded recklessly in the face of the risk that his or her acts would result in life-threatening injuries in a manner just short of the intent to kill required to elevate the act to murder. Of course, a true application of Laberge involves a more complex analysis, but this general outline suffices to make the point. Moral culpability is on a spectrum.

Manslaughter always involves the death of another human being. The human toll is high, as is the toll exerted on the living. With this in mind, we should always remember that criminal justice cannot reincarnate or repair the loss of life. All criminal justice can do is punish the wrongdoer in a manner appropriate to the act and the blameworthiness associated with that act. There is little doubt that Mr. Tschetter did not intend to kill anybody. Like so many human beings he engaged in a form of conduct that is inherently dangerous and on the findings of fact in this case, did so in a criminal manner.

The interesting aspect in this case is that Mr. Tschetter's moral culpability arguably does not increase with the death toll. Arbuably, blameworthiness is the same regardless of whether one person died or more. Put another way, the unfortunate, unintended consequences of an act does not necessarily change the moral blameworthiness associated with the act itself. The reason I say this is to remind citizens that punishment must reflect the moral blameworthiness of the crime. Where the end result is catastrophic -- as it was in the Tschetter case -- we should be cautious penalizing on result alone.

Though I appreciate this may sound rather cold, the reality is, true justice recognizes the distinction between the degree of moral blameworthiness and the result.

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com

Proof that Traffic Safety Enforcement is Really Tax Collection

2009-08-05T06:32:00.000-07:00

Again, following up Kerry Diotte's article in the Saturday edition of the Calgary Sun, I thought it was interesting that there was yet another brief newsflash seemingly supporting some of his research and commentary in today's edition:

http://www.calgarysun.com/news/alberta/2009/08/05/10365846-sun.html

As a reminder, Diotte's editorial can be found at

http://www.calgarysun.com/comment/2009/08/02/10340131-sun.html

And yet another article on an unexplained traffic accident from yesterdays newspaper can be located at

http://www.calgarysun.com/news/alberta/2009/08/04/10354476-sun.html

Interstingly, today's article suggests that police were on a crackdown over the weekend targeting "unsafe" drivers. According to the article, of approximately 2756 traffic related charges in Calgary and area, approximately 2186 tickets for "speeding". Of the 2186 speeding tickets handed out by police, the article informs that a WHOPPING 2 tickets were for "over the top speeding". The remaining 550 or so tickets were for a variety of other traffic violations, ranging from seatbelt violations, impaired driving, careless driving, stunting and presumably other traffic safety or administrative offences, such as failing to carry a copy of one's license. On this note, one is left to wonder whether the "careless driving" tickets simply accompanied the 2 drivers who were over the top speeding?

Anyway, let me understand, according to my math 79% of the unsafe driving crackdown resulted in speeding tickets, of which less than .1% (2 of 2186) were for over the top -- presumably dangerous -- speeding.

In a world where 1+1 necessarily equals 2 and where 2 is necessarily the smallest even prime number, I think this information comes remarkably close to NECESSARILY supporting the view that police are not really conducting traffic safety enforcement measures, but are really conducting tax collection measures. They do so, however, under the guise of public safety.

If law enforcement was truly interested in safety, it might have ticketed far fewer drivers patrolling highways actively searching for those engaged in actual unsafe driving. Instead, safety is justification for standing at the side of the road waving motorists in for speed infractions captured on Laser -- infractions that arguably have little or nothing to do with unsafe driving.

David G. Chow
Calgary Criminal Defence Lawyer

www.calgarydefence.com

(In)Justice is also blind?

2009-08-04T17:18:00.000-07:00

I just don't know how to fairly comment on this story, because I don't want to improperly place criticism at the feet of the Calgary Police Service for a situation that was apparently started by incredibly uneducated private security personnel:

http://www.calgaryherald.com/entertainment/Gallery+Punjabi+concert+cancelled/1855359/story.html

However, I do note that CPS officers were apparently part of the privately paid security force on the night in question:

Pay duty police hired for the show called in on-duty officers to help disperse the crowd outside and clear the hall of concertgoers
http://www.calgaryherald.com/entertainment/Legal+action+looms+after+Calgary+concert+halted+over+kirpan/1856823/story.html

What is simply impossible for me to ignore is the outrageously bad optics of the photos accompanying Jason Van Rassell's article - not even attempting to count officers I can spot inside the convention centre and further down the sidewalk - in the immediate foreground there are 8 "white" male police officers facing a crowd of understandably upset "brown" concert-goers.

I put quotes around "white" and "brown" since pure skin appearance tells us little about a person's actual ethnicity and after all, I am commenting on the simple optics of the situation.

What this writer rhetorically poses is whether this scene, apparently borne out of ignorance or intolerance or possibly both, is a function of the culture of fear being propogated by government through popular media in this City.

For, it seems to me that the mere presence of a kirpan on the person of a peaceful citizen is in no way threatening...and certainly does not justify State intervetion to the level of having:

"Police officers [ring] the entrances to the convention centre, and the HAWCS helicopter [circle] overhead."

Why have the citizens of this City become so accustomed to such police involvement in our daily lives? There appears to have been no crime committed whatsoever and yet reactions by "security" people working hard to make people "safe" led to a huge destabilization of the peaceful nature of the event.

In fact, it would appear that it was the peaceful and law-abiding mindset of the kirpan wearing "offenders" and the later ejected concert atendees which prevented a full-scale riot.

(This is why I am reluctant to too quickly attack the official CPS presence, because regardless of how the situation escalated, it did pose a potential risk of getting out of control once the large crowd was forced out into the street by security)

Newsflash - to all Calgarians (not just overzealous security officers) - the overwhelming majority of the million or so others we share this City with are non-violent, non-threatening, and generally trustworthy individuals. If it were not so, law and order would surely be powerless to do anything about it.

Security and police personnel - be on your toes at all times, no doubt, but for crying out loud, consider a boring and uneventful night to be a success...don't look for trouble where none really is. Perhaps if Lady Injustice were as blind as her twin sister, we wouldn't see so much of her meddling in the routine affairs of law-abiding citizens.

Michael Bates

http://www.ruttanbates.com/

Accidents Do Happen

2009-08-04T07:31:00.000-07:00

In light of Kerry Diotte's Saturday commentary

http://andjusticeforall-calgary.blogspot.com/2009/08/perspective-on-traffic-safety.html

I thought this article was worth a brief mention:

http://www.calgarysun.com/news/alberta/2009/08/04/10354476-sun.html

This writer has stated over and over again that human beings -- subject to the condition of being human -- are prone to error. Even police officers can make mistakes.

Though we really have no information in this story as to how the accident happened, and the police haven't made the standard statement -- i.e., something along the lines of "we suspect alcohol is a factor" -- nor have they blamed speed as the demon cause of the crash, we are left to wonder whether this accident was caused by some criminalized or tortious manner of driving, or whether it was just a mistake. We may never know. Having said this, unless more information is revealed, there is no reason to think the collision was anything other than an accident. I just hope nobody was hurt.

David G. Chow
Calgary Criminal Defence Lawyer

wwww.albertaimpaireddrivingdefence.com

Perspective on Traffic Safety

2009-08-02T07:49:00.001-07:00

In terms of adding just a bit of perspective on traffic safety, I thought this article by Kerry Diotte was worth mention:

http://www.calgarysun.com/comment/2009/08/02/10340131-sun.html

In this commentary, Diotte cites some research demontrating that the demonization of speed and drunk driving as the root of traffic safety problems is misplaced. Driver error is actually the root cause of 90% of collisions. From this he queries, why all the resources invested into monitoring fast drivers? He poses what many drivers will consider to be the most obvious answer: the government is looking to generate revenue by conducting speed enforcement. Meaning, speed enforcement is not really about traffic safety, but about taxing citizens. Citing studies and commentary from the National Motorist Association, Diotte agrees that if government is truly interested in lowering crashes on public highways, police should be patrolling for incidents of bad driving, not just incidents of fast driving.

I thought this was an interesting article because it bluntly addressed the multitude of articles suggesting speed and impaired driving are the monster causes of injury and death on Canada's roadways. In fact, just a few pages before Mr. Diotte's article is a commentary titled "High Time To Get Drunks Off the Road":

http://www.calgarysun.com/comment/editorial/2009/08/02/10340111-sun.html

Diotte argues from an intuitively obvious perspective -- that is, I suspect most drivers will concede that the vast majority of close calls have been caused by driver error, failure to pay attention and a lack of due diligence, not speed or drunkeness. Indeed, how many drivers have made lane changes without shoulder checking? How many drivers have been looking for an address and in so doing, followed another vehicle too closely? How many people have zipped through stop signs and yield signs because they were not familiar with the area or just made a near catastrophic mistake?

The point is, whenever human beings participate in anything, the human condition adds to the possibility of error. Take millions of human beings and put them behind the wheel of armored motor cars, and the errors can be devastating. Error doesn't make people bad, or criminal, or immoral -- it just makes them human. If we want to minimize the impact of poor judgment, mistake and bad driving on highways, then it seems Diotte and others are correct, police need to invest more energy into watching for incidents of bad driving, not just fast driving.

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com

Use of Taser's Above Reproach?

2009-08-01T06:06:00.000-07:00

It really does seem that maintaining public confidence in anything is for government agencies to say they are going to abide by some kind of regulated standard, without the need to tell the public what the standard is. For example, since the release of the Braidwood report in the Dziekanski inquiry, Calgary Police now openly laud new regulations allegedly creating uniformity in the use of tasers in this province. What those uniform measures are, however, remains largely a mystery.

http://www.calgarysun.com/news/alberta/2009/08/01/10333931-sun.html

Despite some claims that stun guns are only used pursuant to s. 25 of the Criminal Code of Canada,

http://www.edmontonjournal.com/news/Alberta+powers+stun+guidelines/1835464/story.html

recent decisions, such as R. v. Dianocky suggest otherwise. Of course, when speaking of taser use, spokespersons for the various police agencies neglect to advise of situations where the instrument was used improperly. Interestingly, though these situations exist, this writer cannot think of a single criminal charge arising in this province from the misuse of these instruments.

Edmonton defence lawyer, Tom Engel’s comments are noteworthy:

He noted that Braidwood recommended restricting the use of Tasers to situations in which a suspect is causing someone bodily harm or about to cause someone bodily harm, which would conform to the Criminal Code of Canada. But Engel said the Alberta rules allow police to deploy the Taser on someone who is threatening to resist arrest or resisting arrest merely by hanging onto a stationary object or pulling away from a police officer.

"In my view, their policy is illegal," he said. "It's counselling officers to break the law. It's telling them they can use the Taser without any regard to whether serious pain will be caused if they don't use it. That's what British Columbia is saying: You can't use this Taser unless it is necessary to prevent serious harm."

Indeed, police have extensive training and are able to employ a number of other tactics besides using a Taser. In this writer’s view, we should not forget that police in this country performed their job exceedingly well before the Taser. Canada is not a country plagued by officer deaths in the line of duty, and it never has been. So why the Taser? How many citizens were shot with firearms by police before the Taser? I suggest not too many.

The public needs to be vigilant not to forget about the situations that are brought into the spotlight of attention. It is short memory, apathy and fear that allows cases like Robert Dziekanski to fade into the shadows. In the words of psychologist Michael Webster: "The community will get complacent. They will go back to sleep and this research that's required won't take place. There won't be any urgency to get any good solid data."

When looking at how police employed the taser in Dziekansi, there is no question they did so notwithstanding there was no real threat to anybody, let alone the officers. Also, the police LIED in their justification.

"The Wrong Way of Worldmaking Making: One Lawyer's Opinion about the Dziekanski Inquiry": http://ccdlaforum.blogspot.com/2009/03/wrong-way-of-worldmaking-one-lawyers.html

As citizens, we must keep in mind that people get charged everyday because police have the discretion and opportunity to do so, be we almost NEVER hear about the troubling things they do in the line of duty (or outside the line of duty, as the case may be). How often are video cameras present to expose the lies and inappropriate conduct of officers such as Millington in the Dziekanski inquiry? ALMOST NEVER! It is rare to have this behavior exposed. That exposure is rare, however, does not mean the behavior is not relatively common place.

To know whether the rules governing the use of tasers are reasonable, we have to know what they are. To understand whether law enforcement is acting outside the rules, requires knowing the rules they are to act within. With this in mind, citizens must begin to police the police. The use of force must have limits, and must always be used reasonably in the circumstances of the case.

As I have always maintained, though the vast majority of police officers are hard working folk, interacting politely and cooperatively with members of the public, there are some who do not. As our police forces grow in number, the numbers of those who act outside expectations grows. When they protect themselves by lying, like Millington did in Mr. Dziekanski’s case, the only way to expose them is for the public to step forward in a vigilant crusade to ensure law enforcement acts in a manner consistent with the values of Canadian society.

As citizens, we have a responsibility. Public confidence in the administration of justice demands police behavior be above reproach. When mistakes are made, they must own up to them. A Millington-esque fabrication is never acceptable.

David G. Chow
Criminal Defence Lawyer

www.calgarydefence.com

Right to Disclosure an Oxymoron!

2009-07-31T06:02:00.000-07:00

The Accused’s Charter protected right to make full answer and defence and the right to full disclosure in support of this right has essentially been obliterated by Canada’s top court: R. v. Bjelland 2009 SCC 38.

http://scc.lexum.umontreal.ca/en/2009/2009scc38/2009scc38.html

Some defence lawyers have been arguing that disclosure rules enunciated in landmark decisions, such as R. v. Stinchcombe have only been honored in the breach. The Supreme Court has essentially ruled 4-3 in favor of honoring this right in precisely this manner.

Bjelland solidifies the proposition that the only real remedy for late disclosure -- even as late as on the day of trial -- is an adjournment. The only way a court can consider a remedy beyond an adjournment is if the accused demonstrates he or she has suffered prejudice, beyond mere delay, as a result of the late production of materials. I guess the majority in Bjelland has an incredibly short memory. For in R. v. Grant (decided just a week prior to this case), the Supreme Court stated things like, the conduct of police must be considered by society to be "above reproach". Doesn't the same principle apply to the conduct of Prosecution services? When it comes to disclosure, I would have thought it was reasonable for every practicing lawyer and judge in criminal justice to have a strong appreciation for Stinchcombe and the obligations it imposes. Today, the Crown can simply hand over new materials on the day of trial and the only meaningful remedy in most cases is to have the trial later.... Will our Supreme Court further denigrate the laws by placing the "burden of the rush" (see R. v. Antinello) on the accused in the future?

Additionally, even though an accused has the right to a preliminary inquiry pursuant to rules that Parliament has enacted in the Criminal Code of Canada, the Supreme Court has entrenched the proposition that there is no right to cross examine a witness, even a key witness at a preliminary inquiry. Indeed, this is true. However, Rothstein for the majority misapprehends this proposition as it was initially discussed by Martin J.A. in Ariv. Consider Martin J.A.'s remarks and the majority's interpretation on this point:

... We are not prepared to hold and, in our view, are not entitled to hold, that the failure to provide the opportunity to cross examine, even a key witness, prior to the giving of evidence by that witness at the trial, per se, contravenes the Charter, where full disclosure of the Crown’s case and of the witness’s evidence has been made. [Martin J.A. in Ariv]

I agree with the principle expressed by Martin J.A. There is no independent Charter right to cross examine a witness at a preliminary inquiry. [Rothstein in Bjelland]

Martin J.A.’s comments went beyond the simplistic misreading that Rothstein attributes. Martin J.A. said there is no right to cross-examine (which is true) where “full disclosure of the Crown’s case and the witness’s evidence has been made”.

In Bjelland's case, there was not full disclosure before the first day of trial, let alone the preliminary inquiry. To ignore this seminal part of Martin J.A.'s comment is to allow the prosecution carte blanche to hide disclosure up until the commencement of trial, which may render nugatory any steps to ascertain important information at earlier proceedings, such as preliminary hearings. Also, the accused's defence strategy may change dramatically if the information or evidence changes in even a small way. Failure to recognize the preliminary inquiry as an important part of the trial process is to trivialize this proceeding. Trial practioners understand this.

In Bjelland, there was no disclosure relative to the new witnesses before preliminary inquiry. The disclosure came on the day of trial. The trial judge did not accept the Crown’s explanation for the tardy disclosure. He found that the crown’s concerns for the safety of witnesses (which might provide a valid reason for delaying production of disclosure) were NOT well founded.

In any event, this is a troubling case. It represents a fastball strike-one against the accused’s right to disclosure as part of his or her right to make full answer and defence. It is a curveball strike-two against the reasonable expectation that the Crown be duly diligent in making timely production of such materials. It is a change-up strike-three against society’s expectation that our Charter rights are to be meaningful.

Shame shame shame....

David G. Chow
Criminal Defence Lawyer

www.calgarydefence.com

A Flicker of Light in Harley's Case

2009-07-30T13:18:00.000-07:00

There has been a development in the investigation into the police officer who allegedly kicked and killed Harley the Dog.

http://www2.canada.com/calgaryherald/news/city/story.html?id=a91e56e6-bb61-4568-b18f-d60bf68b5a3e

Ordinarily, police are responsibile for laying charges. Given the alleged eyewitness statement of Tom Short:

http://andjusticeforall-calgary.blogspot.com/2009/07/repostcode-of-silence-investigation.html

I am left to wonder why police themselves did not charge. By the way, Alberta does not operate on a system of Crown Charge Approval; meaning that in the exceedingly vast majority of cases, the Police decide when charges will and will not be laid. In this case, there seems to be a different approach. The question is why?

Admittedly, perhaps the different approach is simply because the accused is a police officer? But does this warrant a different approach? Perhaps it is because the evidence collected by investigators is difficult to balance and requires a second opinion in order to ascertain whether charges should be laid?

To this end, consider: assuming investigators have actually collected statements from Harley's family/owners and from others, like Tom Short and his son; and assuming they have collected a statement from the accused, who left the scene after the killing; if the perpetrator was an ordinary citizen, would he have been charged by police on this investigation, without crown charge approval? I suggest the answer is yes....

When will we learn the truth? Ever?

Well... at least there is some light on the case. Not enough to really see anything, but enough to know that the lights haven't yet gone out....

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com

Praise For HAWCS Newsworthy?

2009-07-30T07:22:00.000-07:00

Advertising for mundane police work worth a full half page in a Calgary Sun edition where other more newsworthy articles were left informationally vacant is worth comment.

http://www.calgarysun.com/news/alberta/2009/07/30/10310416-sun.html

In this news story, HAWCS gets top honours for locating an impaired driving suspect using infrared technology.

Eventually, Dutnall and Ng using the infrared thermal imager and orbiting for about 40 minutes in the area, homed in on a heat source under a street along a very steep ridge overlooking Sunnyside.

At the time, Ng hoped the heat source wasn't a rock, which can actually hold heat, Cave said.

"This guy was not running down the street, but hunkered down in thick bush," she said of the onerous task of finding him.

"Without that camera, they could never have caught this guy ... I was completely impressed."

With the assistance of police on the ground, including the canine unit, the suspect was taken into custody.

"It was really good work for picking up on that little flicker of heat source," Cave said.

You've got to be serious? What's next, "lawyer gets top honours for using criminal code"? "Judge gets top honours for using a pen?". "Iginla gets top honours for wearing skates"? Using the tools we have been given to do our job is akin to putting the right foot in front of the left when walking. I find it extremely difficult to get really excited about on duty police officers using tools of the trade to fly around and look for red flickers. I am, however, impressed with the collective work of all of the officers, combined with a high level of due diligence in capturing the suspect. But, isn't this what we should reasonably expect from all members of our local constabulary?

Next week’s story: "Law enforcement lauded for using handcuffs".

There were a number of informationally vacant stories in today's edition of the Sun. As a citizen, I would rather have real information, germane to important stories rather than those designed to pat law enforcement on the back for doing seemingly simple and expected tasks.

Where is the follow-up on the death of Harley the Dog???

http://andjusticeforall-calgary.blogspot.com/2009/07/token-investigation-investigation-into.html

http://andjusticeforall-calgary.blogspot.com/2009/07/repostcode-of-silence-investigation.html

David G. Chow
Calgary Criminal Defence Lawyer

www.calgarydefence.com

Risk Yourself To Save Yourself Criminal Conviction?

2009-07-30T06:18:00.000-07:00

Reports on this case are rather sparse, but what this news report does not mention is that the driver of the MDX sped away from the scene at a high rate of speed:

http://www.calgarysun.com/news/alberta/2009/07/30/10310336-sun.html

Nevertheless, "[Judge] O'Gorman said once gunplay began, the teen would have been aware there was a .45-calibre restricted handgun in the car, which police later found in a hidden compartment.

"From that time on, it would've been impossible for any occupant of that vehicle not to be aware they were in the middle of a firefight," he said.

"Beyond 1:27 a.m. (when the shootout took place), knowledge of a handgun is established beyond a reasonable doubt," O'Gorman said.

Knowledge of the handgun and whether it was "feasible" to exit the motor vehicle are two completely separate questions. The key question is, how much time passed after 1:27am when the shootout took place and the time the youth was located in the motor vehicle and whether it was feasibe in the interim for the young person to extricate himself from an environment where he knew a handgun was present?

Now, my concern is with the message sent to members of the public in a sparse report on a conviction such as this. To be fair, everybody must understand, a journalists written product is often edited to such an extent that large segments of important information are removed to allow the article to fit on a page with other articles and advertisements. In this case, there is just no information about the "feasibility" question.

From reading this case, one might think that knowledge of the handgun was the only important factor. It is not. The interesting aspect of this case concerns whether it was feasible for the young person to safely extricate himself. There is no information in this regard. And since the vehicle he was in was driven by somebody else, and had just been tangled in a gunfight, one wonders whether the young person had a real opportunity to get out?

Jump young man, jump!!!!

David G. Chow
Calgary Criminal Lawyer

http://www.calgarydefence.com/

Courtesy Instills Confidence

2009-07-25T21:35:00.000-07:00

Of all the talking I do about the atrocious conduct of police, I think it's important to say that the vast majority of them are hard working folks, trying to do good work in difficult circumstances. Now, when my wife got a speeding ticket for engaging in her usual driving habits, I was so very impressed with the officer's conduct who issued the much deserved citation. For starters, he was courteous. Also, he communicated very very well. My point is, despite being ticketed for speeding, the interaction with this member of the local constabulary was very pleasant. And that is the way it should be... In my experience dealing with the police, that is usually how it goes...

David G. Chow
Calgary Criminal Lawyer

www.calgarydefence.com

Repost:Code of Silence Investigation into the Death of Harley Fading From Memory

2009-07-25T07:34:00.000-07:00

This post was published on the July 23rd, 2009 section of ...And Justice For All. I am reposting because it got lost rather quickly behind a number of other posts. I do so not because it is so well written, researched or artistic; rather, I do so because it is, in my view, important:

http://andjusticeforall-calgary.blogspot.com/2009/07/code-of-silence-investigation-into.html

As a citizen, I am demanding an update on this investigation!!! I have been combing newspapers and internet, intensely interested in some kind of further comment from Calgary's Polcie force into the alleged attack by one of its members -- who despite the many suspects who are actually named in the papers, remains anonymous. In so doing, I came across this comment by Tom Short -- who was allegedly present when Harley was killed:

http://communities.canada.com/vancouversun/blogs/soundoff/archive/2009/07/08/434439.aspx

I was there on Holiday from Los Angeles with my wife and son. Harley did not attack the Police Officers dog. Harley had a black ball in his mouth and it was lying about 10 inches from his mouth in the street where he died. My son works at a Veterinarian Hospital here in Los Angeles and we tried to help but it was evident that Harley died instantly as he deficated on the spot.The officer knew that he killed Harley and he said he deserved it. He left the scene even though he was asked to stay to speak to the authorities. If it was a justified killing-why didn't he stay? Obviously a dog should be on a leash, but this guy was way out of line. He also knew we were looking for him and he was hiding. He only came forward because he saw flyers all over the place and knew he'd eventually be caught. This Police Officer is either a loose cannon or at the very least needs serious training because he didn't assess the situation like a professional. I told the police officers that responded to mention in the report that Harley had a ball in his mouth. They said it was a valid and very important factor that would indicate that he wasn't attacking. They said it would be in the report. I hope it is. I read that the officer was commended for coming forward after 2 days of letting people suffer. The acting Deputy Chief needs to rethink how to approach this situation. I belive the Calgary Humane Society /SPCA has a picture of Harley lying in the gutter with the ball next to his mouth. I hope this story doesn't die away. I love Canadians and you deserve to have only the finest Police Officers.

The first post ever published on this blog related to the death of Harley. In that post, I suggested in the title that perhaps it would be a "token investigation".

http://andjusticeforall-calgary.blogspot.com/2009/07/token-investigation-investigation-into.html

As each day passes, and as Harley's death at the hands of the anonymous boy in blue fades from memory due to the passage of time, it becomes more a certainty that I was right....

If Tom Short is right, however, then it appears that we may have a CRIMINAL law enforcement officer walking in our midst? Sleep well Calgarians.... you are safe... sleep well....

David G. Chow
Calgary Criminal Defence Lawyer

http://www.calgarydefence.com/

Good Police Work Saves Possible Wrongful Conviction

2009-07-24T06:12:00.000-07:00

I commend Strathmore RCMP for their diligence investigating a Strathmore sexual assault allegation. Though our society should certainly have concerns about the young storyteller's depiction of events, I also commend her for owning up to the fabrication.

http://www.calgarysun.com/news/alberta/2009/07/24/10244486-sun.html

These cases are difficult to investigate, prosecute, defend and judge. A good story can go a long way to wrongful conviction. I know the police are considering charging the girl with public mischief, but I submit that the public interest would not be served in this case. We need to encourage witnesses to be truthful, even if it means being truthful sooner rather than later. There is fine line in such decisions; for on one hand, we don't want to promote the continuation of a lie to avoid charges. On the other hand, we want consequences for those who mislead authorities and send police on wild goose chases.

I agree with Patrick Webb: "We are at least satisfied she came forward and didn't let it drag out and possibly lead to the arrest of innocent people."

David G. Chow
Calgary Criminal Defence Lawyer

http://www.calgarydefence.com/

Red Herring and Speculation Not News

2009-07-24T05:51:00.000-07:00

Certainly, impaired driving can be deadly. Nobody doubts the carnage on Canadian highways wrought by impaired drivers. But if you are going to write a story on the frustrations of impaired driving premised upon recent accidents on Alberta highways, lets write the story and convey the frustration in cases where impaired driving has been confirmed....

http://www.calgarysun.com/news/alberta/2009/07/24/10244476-sun.html

The above captioned story severely criticizes impaired driving as a major problem, citing a number of recent tragic accidents. Now I am not saying alcohol or drugs were not a factor, but there is no information in these stories that there is evidence to support the conclusion that the drivers were in fact impaired.

In the crash in Leduc, Alberta, the following is reported: "[a]lcohol has not been ruled out as a factor in the crash which happened three hours after Leduc RCMP put out a press release decrying impaired-driving related charges, many involving repeat offenders, in the area, said Sgt. Jennifer Turner".

So, alcohol has not been "ruled out". We don't even know from this article whether it has been "ruled in", let alone whether there is evidence that the driver "was impaired". Ruling something out does not mean it is present.

In a fatal crash on the Blood Reserve the following is reported: "[w]itnesses said hard liquor and beer bottles were at the scene, while RCMP said alcohol and speed are suspected factors in the crash".

A thousand suspicions does not mean something is a factor. More importantly, a thousand suspicions does not mean the driver was in fact impaired.

Finally, with respect to the terrible crash in Washington, the following is reported: "Sunday night, two recent Calgary grads, Mikelle Hendrickson and Kylie Doxtater, died in a crash in Washington state where police said they found marijuana in the SUV".

Finding drugs in a car does not necessarily mean the driver was impaired.

My point is, every example in this article to support the undeniable carnage of impaired driving, involves ZERO confirmation of evidence to support impaired driving. To report in such a manner is a grave disservice to those under investigation in these incidents. To say "alcohol has not been ruled out" in an article designed to highlight the problems of impaired driving is a Red Herring. To say that something is "suspected" is only slightly better than pure speculation.

More caution needs to be taken when writing these articles....

David G. Chow
Calgary Criminal Lawyer

http://www.calgarydefence.com/

The Code of Silence - Investigation into the Death of Harley The Dog Fading Away?

2009-07-23T07:02:00.000-07:00

As a citizen, I am demanding an update on this investigation!!! I have been combing newspapers and internet, intensely interested in some kind of further comment from Calgary's Polcie force into the alleged attack by one of its members -- who despite the many suspects who are actually named in the papers, remains anonymous. In so doing, I came across this comment by Tom Short -- who was allegedly present when Harley was killed:

http://communities.canada.com/vancouversun/blogs/soundoff/archive/2009/07/08/434439.aspx

I was there on Holiday from Los Angeles with my wife and son. Harley did not attack the Police Officers dog. Harley had a black ball in his mouth and it was lying about 10 inches from his mouth in the street where he died. My son works at a Veterinarian Hospital here in Los Angeles and we tried to help but it was evident that Harley died instantly as he deficated on the spot.The officer knew that he killed Harley and he said he deserved it. He left the scene even though he was asked to stay to speak to the authorities. If it was a justified killing-why didn't he stay? Obviously a dog should be on a leash, but this guy was way out of line. He also knew we were looking for him and he was hiding. He only came forward because he saw flyers all over the place and knew he'd eventually be caught. This Police Officer is either a loose cannon or at the very least needs serious training because he didn't assess the situation like a professional. I told the police officers that responded to mention in the report that Harley had a ball in his mouth. They said it was a valid and very important factor that would indicate that he wasn't attacking. They said it would be in the report. I hope it is. I read that the officer was commended for coming forward after 2 days of letting people suffer. The acting Deputy Chief needs to rethink how to approach this situation. I belive the Calgary Humane Society /SPCA has a picture of Harley lying in the gutter with the ball next to his mouth. I hope this story doesn't die away. I love Canadians and you deserve to have only the finest Police Officers.

The first post ever published on this blog related to the death of Harley. In that post, I suggested in the title that perhaps it would be a "token investigation".

http://andjusticeforall-calgary.blogspot.com/2009/07/token-investigation-investigation-into.html

As each day passes, and as Harley's death at the hands of the anonymous boy in blue fades from memory due to the passage of time, it becomes more a certainty that I was right....

If Tom Short is right, however, then it appears that we may have a CRIMINAL law enforcement officer walking in our midst? Sleep well Calgarians.... you are safe... sleep well....

David G. Chow
Calgary Criminal Defence Lawyer

http://www.calgarydefence.com/

The Private Lives of Citizens Continuously More Exposed?

2009-07-23T06:06:00.000-07:00

So, let me understand, the obvious groups -- law enforcement, Crown Prosecutors, Corrections Officials and Court Staff -- have access to a justice online system allowing them to check for things such as warrants, court dates, criminal records and other justice related information -- and other less obvious groups such as charity organizations working in the justice system do as well. It is even rumored that some judges have access. Interestingly, Criminal Defence Lawyers, tasked with the responsibility of defending clients do not?

Now, it is reported that Lottery Officials have access as well.

http://www.calgarysun.com/news/canada/2009/07/23/10230586-sun.html

As reported in the Calgary Sun: "Lottery officials tipped off police after coming across the warrant through the standard investigation jackpot winners undergo".

The question is, how many groups have been endowed with access to such information? It is one thing for a member of the public to do a criminal record check. A criminal record is public document. But a warrant check? That takes a different level of informational access.

If it is true that Lottery officials have access to such information, then who else? And when it comes to the private lives of citizens, how accessible should such information be? It is one thing to go to your local courthouse and check on a criminal record, but in my view it is completely another to have that data -- and a host of other data -- readily available on your desktop computer. If that is true, I have concerns.

Even if people or groups go to the police to check information, how much information should your local constabulary reveal?

These are wicked, questionable little questions....

David G. Chow
Calgary Criminal Defence Lawyer

http://www.calgarydefence.com/

Our Best Wishes...

2009-07-22T08:02:00.000-07:00

http://www.calgaryherald.com/news/Calgarians+killed+Washington+state+crash/1812723/story.html

Longtime Calgary Crown Prosecutor, Danny Elliott is the father of Lena Elliott who was seriously injured in a car accident in Washington State over the weekend. Two young Calgarians were killed in the crash and another, seriously injured. The Calgary Criminal Defence Bar and Crown Prosecutor's Office is united in support for Danny and his family. Our thoughts and prayers go out to his daughter Lena. Our heartfelt sympathies extend to both the Hendrickson, Doxtator and Harms families....

Calgary is a Safe Place to Live...

2009-07-22T06:06:00.001-07:00

So apparently Calgary is a safe place to live. That is exactly what a number of us have been saying

http://ccdlaforum.blogspot.com/2009/07/in-alberta-first-they-came-by-david-g.html

http://calgarycriminallawyer.blogspot.com/2009/07/nameless-unreasoning-unjustified-terror.html

... and now a police officer has joined the choir....

What is the cause of Calgary's drop in crime? Is it due to the increased number of boys in blue on Calgary streets?

http://www.calgaryherald.com/news/Violent+crime+falls+Calgary/1815312/story.html

Is due to the fact that an aging Canadian population commits fewer offences?

http://calgary.ctv.ca/servlet/an/local/CTVNews/20090721/CGY_crime_calgary_090721/20090721/?hub=CalgaryHome

I suppose the most banal comment I can make is that it is probably all of the above. However, I do think that Canadians are good folk and this is a wholesome country. Whenever we take millions of people and situate them in close proximity to each other, the reality is, there will always be a small number who act outside the rules of ordinary society. But our country, and indeed the City of Calgary, is a safe place to live. I want to take a moment to credit Calgary Police Inspector Kevin Brookwell who finally said what needed to be said. Despite the year long fear mongering by his Chief, Rick Hansen and Alberta's Justice Minister, Alison Redford and a host of others, Brookwell makes the point:

"When you talk to some Calgarians, there still is a perception that Calgary is unsafe and when you have a number of high-profile, high-media (coverage) events that happened in 2008, you'll still get that perception. But the numbers, and what's happening here, would indicate that for the most part Calgarians are safe," said Brookwell.

Indeed, for the most part, Calgarians are very safe....

David G. Chow
Criminal Defence Lawyer

www.calgarydefence.com

Sometimes Justice Means No Justice For All

2009-07-21T05:45:00.000-07:00

The reaction is to the think police dropped the ball

http://www.calgarysun.com/news/alberta/2009/07/21/10203966-sun.html

but there is nothing to suggest that they are not doing the very best job they can do in a difficult situation.

Though I am really not intending to borrow a rather apt concept from TV's Law and Order, I do think it is worth saying that our justice system is composed of a number of distinct, yet equally important groups. The police, crown, defence lawyers, judges and witnesses are important players responsible for ensuring justice is done. At the first stage of any criminal proceeding are police - whose important responsibility is to fully investigate allegations of criminal wrongdoing. A full, fair and complete investigation should always leave them with reasonable grounds to believe they have the right person. Investigating crime is hard, painstaking work. It requires diligence, perserverence and ingenuity. Unfortunately, in a country with over 30 million people, sometimes even the best police work does not get the man.

I have no comment on the quality of the police investigation in the Banff attacks. All I can say is, sometimes doing things right means getting nobody all....

Thankfully, I think it is fair to say that police get it right most of the time. And most of the time, they get their man (or woman, as the case may be)....

David G. Chow
Criminal Defence Lawyer

http://www.calgarydefence.com/

Judge's Comments Reviewed and Transparent

2009-07-20T06:14:00.000-07:00

Given some of my concerns about the lack of judicial transparency in Canada's judicial appointment process, I found this article rather interesting (though quite devoid of informational content):

http://www.calgarysun.com/news/world/2009/07/20/10191526-sun.html

At the outset, let me say that I am not in support of an elected judiciary. This is the appointment process in the United States. This process is problematic because a judge may feel he or she needs to determine cases based upon their appointment platform rather than based on a judicious interpretation of the law. Having said this, I do like the fact that a judge's credentials and views are exposed prior to the appointment. In this case, Sonia Satomayor's nomination is under close scrutiny due to her remarks that a "wise Latina" might come to a better conclusion that a "white male". Though I was initially unimpressed by this comment, upon further reflection it occurred to me, in certain circumstances, it may be absolutely true. Indeed, a wise Latina might actually come better conclusions (if better means more culturally sensitive) than a white male. I am a white male who has no clue what it's actually like to be a Latino, Native or Black. So, though the comments may create an initial gut reaction, ethnic diversity on the bench is important, because judge's must bring a wealth of experience into the law. In our system of stare decisis, collective wisdom is ideally the basis for all judgments.

Of course, the nomination and ultimate appointment should always be based on merit -- which due to the lack of transparency in the appointment process in this country is even more uncertain....

David G. Chow
Criminal Defence Lawyer

www.calgarydefence.com

Quit Hitting Yourself -- Funny Kids Game or not too funny Police Tactic?

2009-07-19T06:32:00.000-07:00

Well, maybe it's me... maybe I don't have much of a sense of humour, or any at all.

http://www.calgarysun.com/news/columnists/gerry_forbes/2009/07/19/10185071-sun.html

If the jokes weren't truth, they might be funny, but the jokes represent the truth and as such, they are a little too close to the rather flippant manner in which SOME (not all) CPS go about the business of interacting with Calgaryians.

Seriously, imagine the reality of what many citizens have experienced: being proned, face digging into the concrete, with arms roughly pulled behind the back. Handcuffs are used, so tight that the steel cuts to the bone. The citizen says things like, they are too tight; it hurts; please loosen them only to be told things such as:

"Relax, the handcuffs are tight because they are new. They'll stretch out after you wear them for awhile."

This joke is akin to the kids game, "quit hitting yourself", which actually finds its way into the occasional interaction involving police and citizen. I have heard and read reports of precisely this. Citizen is proned out and is consistently told, "quit resisting, quit resisting" (and of course they are not) -- all the while the officer continues to dig the knee into the small of the back -- amongst other things...

And when the citizen wants to complain, it is told things such as:

"So you want to talk to the shift supervisor? I don't think it will help because I'm the shift supervisor."

You get the point of that one...

Not too funny....

But when the occasional complaint goes public, the Chief, Calgary Police Association President and others will be quick to extol the virtues of the alleged, offending officer -- maybe even before the investigation has been completed. Again, not too funny....

Incidentally, has anybody heard of what has happened with the investigation into the death of Harley the dog?

http://andjusticeforall-calgary.blogspot.com/2009/07/token-investigation-investigation-into.html

We are waiting... and I am not laughing...

David G. Chow
Calgary Criminal Defence Lawyer

http://www.calgarydefence.com/

Oscar De La Hoya is available...

2009-07-18T20:55:00.000-07:00

For all of those people who are quick to say how sweet things are in Canadian jails, take the time to read the report on the Fatality Inquiry into the death of Drumheller inmate Jarret Jabs in the midst of a riot in 2001.

http://justice.gov.ab.ca/downloads/documentloader.aspx?id=49154

Here's a quick summary from a CBC report:

Jarrett Jabs, 21, was beaten, stabbed, and finally slashed through the jugular vein in his neck during a riot at the Drumheller Institution in southern Alberta in 2001.
He had locked himself in his cell, but inmates pried off a welded panel and tripped the locking system to open the door — a skill some learned from assisting prison electricians.
The report from a 2007 fatality inquiry into the death was released on Friday. Provincial court Judge Frank Maloney recommended that inmates new to a prison should get an orientation session to the informal rules that govern inmates.
Maloney noted that Jabs, a car thief who was serving time for breaching release conditions, was seen as "weak" and "somewhat naïve to the inmate codes and expectations."
Two days after arriving at the Drumheller prison, an inmate yelled and labelled Jabs "a rat" or an informant. The inquiry heard that because he didn't stand up for himself and fight the name-caller, Jabs set himself up to be bullied by the other prisoners.

http://www.cbc.ca/canada/calgary/story/2009/07/17/alberta-jabs-inquiry-inmate-rules-drumheller.html

Now, anecdotally, we all know that prison populations are far exceeding the original intended capacities of the buildings, corrections staff are short-handed, and there really never is a government department that couldn't benefit from extra funding.

That said, nobody seems to even believe that there is an available option that would see guards and counsellors be put into an operational position to be able to prevent the next "weak", "naive" inmate from being extricated from his locked cell and brutally murdered.

The best we can come up with is give new guys some lessons in convict ettiquette? So fewer inmates will want to kill them?

While I appreciate that the inquiry judge was trying to note that a little education might help an individual stay safe while in prison (and that this was not his only recommendation), what seems to be missed is that one of the key factors, if not the critical factor, in the targeted killing of this guy was that he was arbitrarily and falsely dubbed a "rat" when some other inmate yelled that at him and he failed to viciously attack his accuser.

What I'm getting at is that if the recommended, "So, You're a Federal Inmate...Now What?" program had already existed, and if Mr. Jabs had been a good student, he would have known to use violence to deal with a potential problem and may well have either got himself killed much earlier in his prison term, or managed to find himself an accused murderer as a result of his being punished for non-violent property crimes.

To me this makes little sense, and in fairness, the inquiry judge did seem critical of an apparent "giving up" by corrections officials in thinking that the Drumheller Institution could even be made to be a less violent place:

With an inmate population in the order of 12,500 nationally, CSC would, if all of the inmates were in one place, be only a small town, yet would be one plagued by a per capita homicide and suicide rate that is eight times the national average. Perhaps such violence is to be expected when troubled individuals are concentrated in one place, but, at times, CSC seems to be almost resigned to the level of violence. When threats are made between inmates, the repercussions are not disciplinary so much as conciliatory, bringing in inmate representatives in attempts to calm the tensions. In short, staff do not seem to be in charge of certain aspects of running the facilities, sometimes leaving inmate control in the hands of inmates. Similarly, some inmates become acutely fearful that they may be targets for such violence and, as a result, historically sought refuge by "checking in" to segregation or protective custody.

Prisons should never be places where "staff do not seem to be in charge of certain aspects of running the facilities, sometimes leaving inmate control in the hands of inmates." The government simply must fix this situation and fix it now...especially as they continue to slash away at the sentencing provisions of the Criminal Code that would allow non-violent offenders to stay out of jail and continue to add mandatory minimum sentences thereby ensuring a huge increase in the number of "rookie inmates" in the years to come.

Being a realist, and knowing the pace of government reform, however, in the meantime I think that hiring quality individuals to do the inmate orientations is the best bet. I mean, if you get called a "goof" or a "rat" and it falls on you to prevent your subsequent murder it would at least be nice to know your government gave you a fighting chance with some Golden Gloves quality training.

Michael Bates
www.ruttanbates.com

To Exclude or Not to Exclude

2009-07-18T09:45:00.000-07:00

On July 17th, 2009, the Supreme Court of Canada relesaed 5 rulings pertaining to the application of s. 24(2) of the Canadian Charter of Rights and Freedoms.

http://scc.lexum.umontreal.ca/en/index.html

In R. v. Grant, [2009] S.C.C. 32 the Court clarified principles germane to s. 24(2) of the Charter:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter‑infringing state conduct, (2) the impact of the breach on the Charter‑protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits. At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. At the third stage, a court asks whether the truth‑seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown’s case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.

Unlike rights violations in the United States, where fruit obtained from the poison tree is automatically excluded, Canada does not apply the same general rule. The worry I have with the current 24(2) regime is a kind of acceptance of so called trivial breaches. To allow the State to infringe on Charter Rights, even just a little, may result in a dangerous slippery slope....

David G. Chow
Criminal Defence Lawyer

www.calgarydefence.com

We Charge Just Because?

2009-07-17T05:34:00.001-07:00

Even though the owner had his dog on a leash he will be charged "anyway" for biting another dog and chomping a good samaritan who lent a helping hand.

http://cnews.canoe.ca/CNEWS/Canada/2009/07/17/10166436-sun.html

At the outset, I think it is important to remember that dogs are dogs, and some are more unpredictable than others. Following the annual smattering of news reports on dog attacks, it certainly seems pit bulls are involved in a great many of them. With this in mind, Pit Bull owners should probably be on high alert, all of the time.

But in this case, two dog owners approach each other whilst walking their hounds. Both dogs are on a leash. Now, I don't know exactly what happened, but I imagine that dogs -- being dogs -- sniffed each other and unfortunately the pitbull bit the other dog on the ear.

The question is, how responsible is the dog handler in this case? Things happen fast. Perhaps both dog owners were happy to let their dogs sniff each other? Since the dog was on a leash, I imagine the owner had, at the very least, a high degree of control over the animal? Perhaps, if the owner did not have this control, the bite would have been in a more serious location?

A good samaritan than puts her hands between two dogs and is not surprisingly bitten.

No doubt, all of this is troubling. I can't imagine how I would feel or how I would react if another dog bit my puppy. But this is precisely why I don't allow my puppy near other dogs -- and in particular pitbulls.

Now I am not saying that the owner of the pitbull should not be ticketed. However, I am concerned about a by-law enforcement position that sounds like nothing more than the owner will be ticketed for the sake of being ticketed. Consider the by-law enforcement officer's remarks:

He said the situation could have been prevented if each owner took control of their dog before it escalated and if the woman stayed out of the confrontation.
"We see this all the time," he said.

"Unless you're a trained professional, no one should stick their hand in the middle of two dogs."

But he said charges will be laid against the pit bull owner for not having control of the dog and causing injury to a human.

"But we're laying charges anyway because a bite is a bite," he said.
Neither dog was injured.

So let me get this straight, each owner is responsible for letting their animals get too close to each other. The good samaritan is responsibile for putting her hand in a bad spot. Dogs are dogs and both were leashed. But the owner will get ticketed "anyway".

In life, sometimes things happen. Not all bad or worrisome things that happen deserve reprimand by law enforcement. Some bad things carry lessons on their own. Sometimes we should be greatful it wasn't worse and let bygons be bygons.... Humans can learn lessons without the State issuing fines or charges....

Assaulting Transit Staff Good Legal Sport?

2009-07-16T06:54:00.000-07:00

Gone are the days of true investigative journalism. Today’s motto: simply write whatever piece of imbalanced, un-researched tripe you want, attach a catchy title – preferably one that is foreboding so as to capture the reader’s attention – click “save”, then “print” and publish. Research is too hard. Asking questions of anybody who might provide some perspective, insight or knowledge is too difficult. Journalism is now apparently about going to the complainant or lobby group and taking their word as gospel – no matter how obtuse it may be -- and unleashing it on an angry and frightened public.

The newest public lobbying by interest groups now comes from the Calgary Transit Authority campaigning for tough anti-violence laws to protect transit employees.

http://www.calgarysun.com/news/alberta/2009/07/16/10152661-sun.html

They are asking to be treated just like police, firefighters and emergency responders when it comes to attracting charges in the Criminal Code of Canada. Mike Mahar, President of the Amalgamated Transit Union 583 is lobbying for “stiffer” penalties.

Now, there is certainly no concerns protecting transit staff from violent attacks. The problem is this statement:

"They would fall immediately under the Criminal Code as opposed to a misdemeanour. Currently, if one of our members is assaulted, for the police to pursue charges we're always instructed that the employee needs to press charges and that wouldn't be the case if the code was changed."

Firstly, “assault” is always a Criminal Code offence. Any person who assaults another person is liable for prosecution pursuant to s.266 of the Criminal Code of Canada. Transit employees are no different. Additionally, through the common law, criminal justice has long recognized the vulnerability of certain persons engaged in certain types of work. The Criminal Code has a specific charge for assaulting a police officer. Even though there is no specific charge for assaulting a taxi driver, the common law recognizes higher sentences for those assaulted during the course of their employment. Transit drivers are in no different a position.

Interestingly, the Criminal Code does not have a specified offence for assaulting a firefighter or emergency medical staff. Like transit employees, the charge is under s. 266.

To suggest that assaults against transit staff do not fall “immediately” within the Criminal Code is wrong. It is true to say that the staff member needs to provide information to the police capable of supporting a charge for assault. Police are responsible for investigating and pursuing charges. There is no change to the Criminal Code that will confer this responsibility on law enforcement – for they already have it. Having said this, police may not lay charges because they can’t locate the offender or they do not have sufficient evidence to justify charging the offender. Keep in mind, those who threaten or assault transit drivers probably do so and immediately flee the bus or C-train. The police can’t just charge for the sake of charging. Not only must an offence be made out, but the alleged wrongdoer must be identified.

On this latter point, I agree that transit vehicles equipped with cameras (like Taxi cabs) is a good idea. It may deter this type of behavior and when it happens, it may supply police with an investigative tool to find and charge the perpetrator.

To say that those who assault transit staff are not susceptible to “automatic criminal charge” is to leave the impression that assaulting your bus driver is presently legal sport. That is not true. If the police can identify the assailant and the evidence supports the charge, I am sure they will lay it.

David G. Chow
Calgary Criminal Defence Lawyer

http://www.calgarydefence.com/

Hear No Evil? The Extension of the Calgary Big Brother Program

2009-07-15T06:16:00.000-07:00

"It's to take away the anonymity," said Calgary Alderman John Mar. "Whoever you call, if you're trying to use it for an illegitimate use, we can track it and we can forward that information on to the proper authorities."

http://www.calgarysun.com/news/alberta/2009/07/15/10138456-sun.html

Floating the typical safety, security, law and order platform, the City of Calgary has joined forces with City Police in yet another Big Brother type initiative. In addition to seizing vehicles from suspected neer-do-wells, fingerprinting those using the Calgary Drop in Centre as a sanctuary from harsh weather, harassing citizens in local nightclubs to determine whether they are enjoying a beverage with a gang member, the City will now record your telephone conversations on selected payphones to determine whether you are up to no good.

"We want to to show Calgary is being aggressive and moving forward and taking away the tools used by criminals," said Mar.

http://www.calgaryherald.com/news/City+hopes+warning+stickers+Calgary+payphones+will+discourage+criminal+activity/1790663/story.html

Is there any end to the intrusion on privacy rights in this City and Province?

Telus' corporate response that citizens need not worry about someone eavesdropping on their conversations should provide absolutely no assurance. For the bottom line is, to determine whether a caller is "up to no good" obviously requires listening to conversations -- many of which may be completely innocuous. Put another way, determining whether the caller is making a drug deal over a payphone obviously requires eavesdropping and any suggestion by Telus to the contary is simply misleading!

At some point citizens of this country need to resist law and order initiatives sold on the campaign of safety and security in order to protect the civil rights that all citizens are afforded. To borrow a rather apt comment from Calgary defence lawyer Michael Bates:

"Alberta is undeniably a safe place to live and we need not accept every politician's sounding of alarms as genuine and we need not accept police officers being given more power to curtail liberties as a positive outcome. The only thing we have to fear is fear itself...and just how much freedom a government can take from its citizens when they are afraid".

http://calgarycriminallawyer.blogspot.com/2009/07/nameless-unreasoning-unjustified-terror.html

Apparently the government can take a lot....

Big Brother is listening...

David G. Chow
Criminal Defence Lawyer

http://www.calgarydefence.com/

Guilty Pleas Must be Real

2009-07-14T06:11:00.000-07:00

Although it is not suprising that Heather Anderson was shocked that Michael Rabeau was allowed to rescind his guilty pleas to killing a 4 month old Husky puppy

http://www.edmontonsun.com/news/alberta/2009/07/14/10124676-sun.html

it was absolutely the right decision by Provincial Court Judge Frank Maloney. Ms. Anderson is correct, that "[g]uilty pleas should be made to stay" -- most of the time. However, if the guilty plea does not support the essential elements of the offence or when the accused argues he should be sentenced more leniently because he was defending himself, then a judge has a responsibilty to ensure the guilty plea is proper. A judge is an argus of justice, and as such, is not sitting merely to rubber stamp guilty pleas.

The more troubling question concerns the guilty plea itself. If Mr. Rabeau was indeed defending himself, then why did he plead guilty?

David G. Chow
Criminal Defence Lawyer

www.calgarydefence.com

Law And Order In Calgary - July 5th - July 11th/2009

2009-07-13T05:58:00.000-07:00

It is worth reviewing the Law and Order statistics published in the July 13th, 2009 Edition of the Calgary Sun. From my review of these statistics, it appears the occurrence of relatively minor nuicance type offences was higher during Stampede Week than most other weeks throughout the year. However, despite the daily grind of fear mongering by law enforcement officials,

http://ccdlaforum.blogspot.com/2009/07/in-alberta-first-they-came-by-david-g.html

http://calgarycriminallawyer.blogspot.com/2009/07/nameless-unreasoning-unjustified-terror.html

a review of the district by district law enforcement stats should comfort Calgaryians that our City -- though not perfect -- is very safe.

The highlight offence in District One (the downtown) was involved a pushing incident, while the most noteworthy crimes in other districts ranged from stealing sunglasses (district 2), stealing a laptop from a local coffee house (district 3), a bank robbery (district 7) and some kids who started a fire at a local school (district 6). Car prowlings top the list of most prevalent crimes.

David G. Chow
Criminal Defence Lawyer
http://www.calgarydefence.com/

Not So Fast Shanoff

2009-07-12T08:16:00.000-07:00

In a column titled “Not So Fast Eddy”, Alan Shanoff criticized defence lawyer Edward Greenspan for comments reminding us what “an acquittal means”. Mr. Shanoff’s criticism is essentially that just because an accused is found “not guilty”, does not necessarily mean he is “innocent”. “People are free to believe what they want”, writes Shanoff, “either before, during or after the trial and no legal presumption can change that”.

http://www.torontosun.com/comment/columnists/alan_shanoff/2009/07/12/10104191-sun.html

In the purest sense of the concept of innocence, Mr. Shanoff is correct – a “not guilty” verdict is not synonymous with real innocence. Events written into the fabric of the universe do not necessarily correspond with human belief or our interpretation of them. Assessing possible reasons as to why an accused is found “not guilty” Mr. Shanoff speculates:

Perhaps the jury believed the accused is guilty but had a nagging reasonable doubt. Perhaps the jury wrongly chose not to believe a witness.

Maybe

Perhaps the jury wanted to hear from a witness who didn't testify. Maybe the jury just didn't understand the evidence. Maybe the jury didn't like a witness. Maybe the closing argument of the prosecution just didn't cut it.

Mr. Shanoff conveniently forgets to add the most important possibility: Perhaps the evidence actually demonstrated the accused was innocent or perhaps the jury actually believed the accused was an innocent man.

My point is, though a not guilty verdict is not equivalent to a verdict of innocence, it is wrong for people, like Mr. Shanoff, to conveniently disregard the most important possibility in a trial: that the accused may be innocent “in fact”. Most importantly, I think we should all be just a little concerned about any suggestion that the presumption of innocence and proof beyond a reasonable doubt are little more than technical rules allowing guilty people to go free. These principles do not exist merely to protect the accused, they exist to protect the innocent!

Just as a finding of not guilty does not necessarily mean the person is innocent, a finding of guilt also does not necessarily mean the person is guilty. Believe or not, Canada’s criminal justice system has actually convicted innocent people. David Milgaard lost in excess of two-decades of his life on this planet after being wrongly convicted for murder.

Indeed, people can believe whatever they want. The Vikings believed in Norse Gods. People once believed the world was flat. A jury believed David Milgaard was guilty. Belief is not synonymous with truth. Mr. Shanoff apparently believes Michael Jackson is a pedophile. If Mr. Shanoff really wants to disparage a person after his death by insinuating he is a pedophile, perhaps he should offer some evidence on the subject. Belief without more is irrelevant.

David G. Chow
Calgary Criminal Defence Lawyer
http://www.calgarydefence.com/

A Token Investigation? - The Investigation into the Death of Harley the Dog

2009-07-11T16:48:00.000-07:00

Just a few short weeks ago, my dog Socrates ("Soci") was hit by a car and killed after he escaped from our back yard. Though neither my wife nor I saw the accident, we had to deal with the devastation of losing our baby boy, who had been a fixture in our lives for just short of a decade. The images of carrying his lifeless body back to our home will forever be etched into my mind.

Today, our home is not the same....

The driver who struck him left the scene. Despite the fact that our residence was just 2 houses away, on the other side of the street, nobody knocked on our door, or approached either of us as we walked -- panick stricken -- back and forth along our street calling his name and shinning a flashlight into every yard we passed. We didn't even discover he had died until the next morning, when a neighbour received the flyer posted by my wife and made what was obviously a difficult telephone call. To make matters worse, our puppy suffered the indignity of having his lifeless body stored in a garbage bag in a strangers garage. He was picked up off the road after the driver who hit him vacated the scene. Suffice it to say, we are still reeling from the loss....

When I read the story about Mr. Shields and Ms. Dunne's golden lab, Harley, being kicked and killed by an off-duty police officer, I was flooded waves of emotion.

http://ca.news.yahoo.com/s/cbc/canada_calgary_calgary_police_officer_dog_death

http://calgary.ctv.ca/servlet/an/local/CTVNews/20090707/cgy_dog_kick_090707/20090707/?hub=CalgaryHome

I have some appreciation for how angry and upset they must be. At one moment, Harley was with his family, the next he we was dead. Given Harley apparently died within 30 seconds of being struck, I imagine he must have been in considerable distress as the unnamed, off-duty police officer walked away. Though I am concerned about the officer's reaction, objectively speaking, I must agree with Deputy Chief, Trevor Daroux who commented: "it's difficult to speculate in an emotionally-charged situation why people do what they do." Though we have high expectations of police officers, it is important to remember, they are people too.

Objectively speaking, if the evidence demonstrates that the officer was defending his own dog from Harley, then he cannot be faulted for doing what he did. Surely the officer could not be expected to measure the nicety of his blow in defence of his own animal? But at the moment, we really have very little detail about what actually transpired. Suffice it to say, the case needs to be diligently investigated. It is with respect to the investigation that I have some concerns. To this end, consider the following hypothetical questions:

If Harley's killer was an ordinary fellow who coldly left the scene after kicking the animal, I wonder whether the police decision to hold-off charging would have been the same? I wonder whether Det. John Dooks would still characterize the man as "...the victim"?

http://cnews.canoe.ca/CNEWS/Canada/2009/07/08/10062126-sun.html

Moreover, had the man not been a police officer, I wonder whether Mr. Dooks would even make such a comment before the investigation was complete? I mean isn't the investigation fairly important to determining who "the victim" really is? Given Harley is a dog, who only knows how to be a dog, isn't he a victim no matter how the investigation turns?

Equally troubling are Rick Hansen's comments about the incident on the QR77 Morning Show with Bruce Kenyon on July 8th, 2009? Rather than making a more appropriate, less deterministic statement, such as: "I can't comment on the situation until the investigation is complete" or "I will leave it to the good judgment of experienced investigators and prosecutors to determine whether charges will be laid", Mr. Hansen says people "rush to judgment" and that he doubts there was any intent on the part of the officer to hurt the animal. Surely Mr. Shields and Ms. Dunne have a different perspective on the incident? Again, before pre-determining whether there was any intent or not, isn't it important to allow the investigation to properly run its course?

Given comments by the Police Association President and Calgary's top cop, I openly wonder whether this investigation is predetermined? Can you say nepotism?

Whatever the case, whether this police officer is vindicated or not, in my opinion, it still takes a cold human being to walk away from an animal in distress -- especially one that is distressed because you put your boot to it....

By way of final comment , there is an important lesson in this tragedy. All canine owners (including myself) should be highly diligent ensuring that their dogs are leashed. Had Harley been leashed, he would probably still be alive. Had my dog been leashed, he would probably still be alive too....

David G. Chow
Criminal Defence Lawyer
www.calgarydefence.com