Earth - A Hillbilly's Paradise

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

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

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?

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

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

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?

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