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
Wednesday, August 26, 2009
Tuesday, August 25, 2009
It Takes Great Courage to be Truly Principled
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
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
Saturday, August 22, 2009
Alberta Court of Appeal Brings Temporary Closure to the DRA Debate
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
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
Thursday, August 20, 2009
More Wicked, Questionable Questions
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
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
Tuesday, August 18, 2009
Code of Silence -- A One Way Application
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
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
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
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
Sunday, August 16, 2009
Setting the Record Straight - The Marginalization of Calgary Criminal Defence "Firms"
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
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
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