Big Brother is Listening

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.calgary-law.com

Don't Throw Good Money After Bad Police Work

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

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

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.calgary-law.ca

Minimum Punishments for Immoral Fraudsters

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

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

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