Helps Law Offices

The Dazzling Effect of Forensics in Court

2011-09-08T17:36:00.000-07:00

Television series such as CSI and Bones have expanded the popularity of forensic evidence over the past decade. Such series often focus on forensics as being the key to finding criminals. The forensic techniques used in such series yield such accurate results. The truth is that forensics often does not yield decisive and accurate results. Forensic science is prone to errors, mistakes and inaccuracies. Over the past several years over 200 people have had their convictions overturned, in which approximately 50% of such cases the overturning of the conviction was based on bad forensic analysis (Brad Reagan, Popular Mechanics, August 2009). There is an ever growing list of individuals who have been wrongfully convicted because of erroneous forensic analysis.

Wrongful convictions occur because jurors put too much weight on scientific experts; it is almost as if they believe their evidence is infallible because of what jurors have seen on television on series such as CSI. It is known as the “CSI effect” because on such television series, forensics experts are never wrong and they yield instant results. Where as in reality, forensic labs are overburdened, understaffed and under intense pressure to deliver accurate results.

Many critics have even called the science behind the forensic part as resting on shaky ground. A vast amount of well established forms of evidence are the result of subjective analysis by individuals with minimum training. There is really no science involved. For example, in Canada, the forensics labs are anchored by the Royal Canadian Mounted Police (R.C.M.P.). The forensic analysts are hired directly by the RCMP who monitor and host the national forensic database. It is trained police officers who collect the forensic evidence, not individual forensic experts who are called in. All of the forensic work is done by the police themselves. Bite marks, blood spatter patterns, ballistics, fingerprinting and hair, fiber and handwriting analysis are all done by the police internally. It is also important to note that these forensic police officers do not have specialty degrees but are instead chosen to be members of the forensic unit after working as a patrol member for several years (usually six years). Candidates are then required to go through a three year apprenticeship and 2 exams.

An example of a faulty forensic science is fingerprint analysis. As recent studies suggest that “friction ridge analysis” which is central to fingerprint identification has no statistically valid model (Brad Reagan, Popular Mechanics,August 2009). While fingerprints may be unique, not having a statistically valid model of analyzing them can produce inaccurate results. Yet when it comes to testifying in court, fingerprint analysts testify as if they are absolutely certain of their results. For example, in a 2006 study conducted at the University of Southampton, six veteran fingerprint experts were asked to re-examine fingerprints they had already examined without knowing that they were examining the same fingerprints and only two of them came up with the same conclusion as the first analysis (Brad Reagan, Popular Mechanics, August 2009). Clearly, fingerprint analysis is not an accurate science to say the least.

Not all forensic sciences are faulty. Academics believe that forensic techniques that grew out of organic chemistry and microbiology have a strong scientific foundation. Chromatography and DNA are examples of such sciences that are fairly accurate (Brad Reagan, Popular Mechanics, August 2009). These sciences developed over long periods of time where as the not so good forensic sciences are fairly new, yet they are still being used in court. Fingerprint and ballistic evidence has been around for a while, yet such evidence should be considered with caution as such sciences are still prone to mistakes. Bite marks, foot prints, tire tracks, handwriting, and blood stain analysis all suffer from confounding variables and as a result, such evidence should be considered with caution. Only time will make forensic science into an actual accurate science that could be used in court. However, nobody really knows when and how forensic science will become accurate so there are no more wrongful convictions.

The moral of the story is that forensic science is not accurate. When considering it in court, it should be taken with a grain of salt. Even though forensic science has come a long way from the ‘good old days’, it is still not infallible. All evidence should be weighed; keeping in mind that forensic science on television is different from reality, and that forensic science is not perfect. We don’t need any more wrongful convictions in society!

B.C. Needs More Natives on Juries

2011-08-29T17:43:00.000-07:00

It is a well known fact that Aboriginals are overrepresented in the Canadian criminal justice system, but recent reports suggest that Native people are underrepresented in juries across Canada. Reports suggest that aboriginal jurors are rare, even in communities where there is a significant Aboriginal presence in the community. The British Columbia Civil Liberties Association (BCCLA) has decided to take on the issue. David Eby, the head of the BCCLA notes that Aboriginals are expressing concerns that while the jails are full of Native people, the judges, lawyers and juries are predominately white. The Native community feels that they are not being judged by their peers.

Concerns were expressed to then Attorney General Barry Penner, who stated that all efforts are made to include Aboriginal’s in juries. Jurors in British Columbia are chosen from a list compiled by Elections B.C. and therefore all eligible voters are included in the juror list. The Globe and Mail reported on August 22, 2011 that "the province of British Columbia has a policy on the books designed to ensure that Reserve residents who have chosen not to be enumerated are included in the jury, but that policy is dated and it may not have been fully implemented." After receiving such information Mr. Penner contacted 191 Aboriginal bands in an attempt to have more Aboriginals sitting on juries. Four bands out of the six that replied have provided names for the purposes of possible jury duty.

While some may not see this as a pressing issue, I on the other hand do. I believe that it is important for individuals going through the system to be tried in front of their peers. I believe that it is important to recognize that Aboriginals are not subjected to the same issues as society at large; often Aboriginals face significant barriers and disadvantages throughout their lives. I believe that no other individual is in a position to accurately understand what they are going through or what may have led them to commit a criminal offence except an individual that has faced the same systemic barriers as them.

Remembering Jack

2011-08-23T13:37:00.000-07:00

The Honourable Jack Layton, PC, leader of the Official Opposition of Her Majesty the Queen passed away on August 22, 2010 at 4:45 ET at his home in Toronto, Ontario with his family by his side. He was only 61 years old. Unfortunately, his second battle with cancer took his life. Jack, as he was known to Canadians, was the man responsible for single handedly rejuvenating the NDP Party in Canada. In just a few elections, Jack was able to lead the NDP from having a few seats in Parliament to becoming the Official Opposition in Canada for the first time in history in May of 2011. He was a lifelong politician, following in the footsteps of his father and grandfather. Before becoming a Member of Parliament, Jack was a Toronto city councilor.

Many of us remember Jack for his political contributions to Canada and his quest for a better Canada. Even though he was a great politician, he was an even better man. His friends and family can attest to his great personality, and his loving and caring demeanor. In his last few days, Jack penned a letter addressed to all Canadians. In that emotion filled letter, Jack told Canadians that “Canada is a great country, one of the hopes of the world. We can be a better one-a country of greater equality, justice and opportunity.” His letter urged Canadians to move forward and further improve our country. In the last few lines of his letter, Jack told Canadians that “love is better than anger. Hope is better than fear. Optimism is better than despair. So let us be loving, hopeful and optimistic. And we’ll change the world.” Those were the last words of a man that battled cancer and lost. Perhaps, then it was Jack’s optimism that was his greatest attribute because even though he may have lost his battle with cancer, he urged Canadians to continue with their fight telling them “please don’t be discouraged that my own journey hasn’t gone as well as I hoped. You must not lose your own hope. Treatments and therapies have never been better in the face of this disease. You have every reason to be optimistic, determined and focused on the future.” These words highlight, how great of a man Jack Layton was.

The passing of Jack Layton has brought Canadians together, no matter what political party they belong to. Tributes from Prime Minister Stephen Harper, Governor General David Johnston, and former Prime Minister Paul Martin are just amongst the few tributes that have poured in for Jack. You may not have agreed with the policies of Jack Layton, but I am sure it would prove to be a difficult task to find a person that didn’t respect Jack Layton.

My dearest sympathies go out to the Layton family and those that knew Jack personally. It is a great loss to politics, this country and society in general to lose a man like Jack Layton.

Assisted Suicide Challenge Comes to Halt in BC Supreme Court

2011-08-17T17:57:00.000-07:00

Seventeen years ago, Sue Rodriguez began a debate on assisted suicide that is currently making waves in the province of British Columbia. Rodriguez who had amytrophic lateral sclerosis also known as Lou Gehrig’s disease took her challenge of legalizing assisted suicide all the way to the Supreme Court of Canada in 1993. Ms. Rodriguez believed that it was her right to have access to assisted suicide. The Supreme Court of Canada did not see it that way and upheld s.241 (b) of the Criminal Code- which provides a 14 year maximum penalty for assisted suicide as being constitutional. A 5-4 divided court was an indication of how divided not only the top court was but the country was as well. The issue has been constantly debated by lawyers and legal academic everywhere, yet there appears to be no consensus on what the actual right answer is to the question of whether assisted suicide should remain illegal or become legal.

Today, the Supreme Court of British Columbia provided an answer to the Farewell Foundation’s bid to challenge s. 241(b) of the Criminal Code as being unconstitutional. Madam Justice Lynn Scott shot down the request of the Farewell Foundation, who were hoping that assisted suicide would become illegal so the agency would be able to provide such services to individuals who wished to use them. The Farewell Foundation intended on using non-medical practitioners and counselors to provide such services. However, the Farewell Foundation was fighting for both medically assisted suicide and non-medically assisted suicide. Either way their challenge was halted in the Supreme Court of British Columbia. In rejecting the arguments of the Farewell Foundation, Justice Smith urged the Farewell Foundation to join the BC Civil Liberties Association’s (BCCLA) quest for legalizing assisted suicide. The BCCLA is currently fighting for Gloria Taylor, a Kelowna woman who is dying of Lou Gehrig’s disease. The Farewell Foundation has stated that they will seek “intervenor status” in the BCCLA matter as it will continue to allow them to take their cause up in the courts.

While the Farewell Foundation may not have got the result that they wanted, they have rekindled a debate that will undoubtedly be followed closely. Only time will tell whether the BCCLA can help Ms. Taylor take her cause all the way up to the Supreme Court of Canada and overturn a decision that has stood for 17 years. Who knew that Sue Rodriguez would trigger a debate in 1993 that is still being discussed and litigated to today. Who knows when this discussion will actually come to an end.

Provincial Court Judge Blasts RCMP over Charter Violations

2011-07-29T17:00:00.000-07:00

In the case of R. v. Ho, Hou, Huang, Li and Zhou 2011 BCPC 0186, provincial court Judge P.R. Meyers blasted the RCMP for violating the Charter rights of the accused. In his reasons for judgment, Judge Meyers stated that the RCMP “ignored and flaunted the accuseds’ Charter of Rights and did so consistently over a 14 month period.” The accused individuals were charged with producing ecstasy and possessing ecstasy for the purpose of trafficking.

Over the course of the 14 month investigation there were several gross Charter violations by the RCMP. Judge Meyers notes that these Charter violations included the RCMP’s “initial choice to apply for a Telewarrant rather than to apply to a Justice or Judge in person, to knowing that the suspects probably would not speak or understand English very well but yet not bothering to arrange to have interpreters there to explain to them the reasons for their arrest and what their Charter rights were, to not showing or reading the Warrants to the occupants of two of the house, to leaving two of the accused half-naked, outdoors in the middle of the winter to be hosed down with cold water while in view of their neighbours, to not knowing that they had a legal obligation to file a Report in the Richmond Court Registry within 7 days of the execution of the Warrants.” The Judge noted that it was almost as if the searches had taken place before the Charter existed. He further noted that “the officers in charge, just did not seem to care” and that the “officers in charge of this investigation, operated throughout, in “bad faith”. Judge Meyer ruled that all evidence obtained must be excluded as a remedy under s.24(2) of the Charter.

Judge Meyer sent a clear message to the police, that is that the rights of individuals must be respected regardless of the fact that they have committed a crime. It is important for us citizens to know that our rights will be protected no matter what, but especially when the police search our homes, where we have a reasonable expectation of privacy. Judge Meyer noted in regards to the police not filing a report after the search of the homes of the accused individuals that “it is fundamental to the rights of people who are about to have their homes searched by the police to know that the courthouse in their area will have all of the legal documents pertaining to the intrusion of their privacy, available for them to inspect.” Our privacy in our home should be protected and if the police are going to invade our privacy we should be able to hold them to account on inspection of their search documents.

I hope that the police will learn from this experience and realize that the rights in the Charter are absolute, not arbitrary or temporary. The police can’t just decide that they aren’t going to respect the rights of citizens under the Charter. The rights must be respected at all times no matter what the situation. I am glad to see the courts upholding the rights afforded to us under the Charter.

Game 7: Disappointment after Disappointment

2011-06-17T16:44:00.000-07:00

Wednesday June 15, 2011 will forever be remembered as the day the Vancouver Canucks lost 4-0 to the Boston Bruins on home ice, in game number seven of the Stanley Cup Finals, giving Boston their first Stanley Cup victory since 1971-1972. Vancouver was left without hoisting the cup for the third time in franchise history. The day will not only be remembered as the day our beloved Canucks lost the Stanley Cup, but also the day in which the city of Vancouver broke out in a massive riot. Multiple businesses were damaged along the Georgia Street and Granville Street corridor. Companies such as the Hudson’s Bay Company, Bank of Montreal (BMO), London Drugs, Sears and many other smaller businesses had significant damage done to them. Not only were their windows broken but goods and products were also damaged and stolen. Garbage cans and vehicles, including two police cars were also lit on fire. The police were clearly unable to contain the 100,000 plus that gathered downtown to watch the all important hockey game.

Without being able to control the massive crowd, the police were forced to use the Riot Act. The Riot Act was originally brought into force by an Act of Parliament of Great Britain in 1715. As a colony of Britain, the law was incorporated into Canadian law and was later put on statutory footing. The Riot Act is found in ss.32-33 and ss.64-69 of the Criminal Code of Canada. A proclamation, worded as follows will be read out to the crowd, during a riot: “Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life.” In essence, the Riot Act attempts to prevent unlawful assemblies of 12 or more people. Sad to say, the Riot Act was not successful in dispersing the large crowd that had gathered downtown Vancouver. A significant amount of damage was caused in the downtown core, and the costs for the damage are currently unknown, but are sure to be in the couple of million dollar range.

Questions are being asked as to how the city of Vancouver and its police department could have better handled the situation. Some critics are pointing the finger at the mayor and the city management staff claiming that they did not believe that there would be a riot and therefore they did not provide the police department with enough funds to adequately staff the downtown core for the hockey game. Others are pointing their fingers at the Vancouver police department for being ill-prepared for the riot and for taking too long to react to the situation.

Perhaps the finger should be pointed at the hooligans who engaged in such shameful behaviour. I don’t know what was more disappointing, losing in the Stanley Cup finals to Boston or the riot that tarnished the reputation of our world class city. Due to the actions of the few that wanted to riot, media outlets across the globe blasted our city as being violent. I only hope that the city could regain its reputation as a friendly, world class city. We have held successful mega events such as the Olympics in Vancouver and I hope that in the future we can continue to hold such large events in a successful manner without any negative consequences.

New Conservative Legislation Not Likely to Make Trials More Fair and Efficient

2011-06-15T11:57:00.000-07:00

Justice Minister Rob Nicholson introduced the first crime bill since the Tories won a majority government. The Fair and Efficient Criminal Trials Act, as its title indicates sets out to make criminal trials more efficient and fair. Measures introduced at reaching this goal include appointing a case management judge for improving case management. Under the current common law, only a judge can rule on preliminary issues at trial. However, with the new Act, a Case Management Judge would be able to rule on preliminary matters. The Conservative government believes that having this position would allow the presentation of evidence to the trier of fact to proceed without interruption, to the extent possible, thereby reducing the overall duration of proceedings. The Case Management Judge would be able to amongst other things promote a fair and expeditious trial, ensure that the evidence is presented without interruption, impose deadlines on parties, assist the parties to narrow their focus on the relevant issues and relevant witnesses, encourage the parties to make admissions and reach agreements, adjudicate upon any issues that can be adjudicated at that stage, and they would be able to hear guilty pleas and hand down sentences. The Case Management Judge would be able to adjudicate on issues such as admissibility of evidence, disclosure, expert witness, change of venue, Canadian Charter of Rights and Freedoms and severance of accused or counts on the indictment. The individual would also adjudicate on issues that the trial judge may refer to them, such as presentation of evidence of merits.

Other changes that attempt to reduce duplication include allowing for joint hearings of preliminary motions involving similar evidence that arises from related but separate trials. The new crime bill also calls for allowing a court to delay the enforcement of a severance order by allowing a preliminary issue pertaining to more than one accused or count to be adjudicated by one judge only, prior to severance, thus preventing unnecessary duplication. Currently, once a severance order has been made, the issues are heard separately. The Criminal Code would also be amended so that when a mistrial is declared and a new trial ordered, decisions on certain preliminary issues continue to bind the parties unless the court is satisfied that it is not in the interests of justice. Furthermore, the new bill will also allow for direct indictments to be amended for technical errors where as currently a new direct indictment must be preferred, along with the written consent of the Attorney General or Deputy Attorney General. Another proposal of the bill is that a new bail hearing will no longer be held when an accused is subject to a bail or detention order for an offence and a direct indictment is preferred charging the same offence or an included offence.

Proposed changes for improving criminal procedure include swearing fourteen jurors, so jurors do not drop below ten, which is the Criminal Code minimum for valid verdicts. The fourteen jurors would be subject to a random selection process that will determine, after the judge’s charge to the jury, which jurors will deliberate. Other proposed amendments include that jurors be systematically be called into court by their number instead of their name; this would allow for their identity to be protected and allow them to do their job without fear. Lastly, a proposed amendment to s.536.3 of the Criminal Code, would resolve the discrepancy between the English and French version of the section, which calls for the party requesting a preliminary inquiry to provide the other party and the court with a detailed list of witnesses.

While, there is no doubt in my mind that the criminal justice system needs to work more efficiently, I do not believe that all the changes the Conservative governments are introducing will lead to the efficiency of the criminal justice system. For example, I don’t believe that it is a wise thing for judges to be hearing evidential matters of two unrelated trials in one hearing as there is a potential for a judge to be affected in his or her decision making. It is important to keep in mind that under the Charter of Rights and Freedoms everyone has the right to be tried by an independent and impartial tribunal. As for the improvement in procedures, involving indictments, jurors, and the case management judge, I believe that they have the potential to increase the efficiency of the criminal justice system. What these reforms are essentially based on is the government saving money instead of actually fixing the criminal justice system and its delays. What is needed, is more funding so the courts can have more resources to deal with matters and make sure that they are dealt in a swift and efficient manner.

Two Judges of the Supreme Court of Canada Set to Retire

2011-06-15T11:45:00.000-07:00

Fresh off his victory of forming a majority government, Stephen Harper will have an opportunity to put his stamp on the Supreme Court of Canada (SCC). Justice Ian Binnie, 72, and Madam Justice Louise Charron, 60, are both set to retire from the country’s top court on August 30, 2011.

Binnie was born in Montreal and holds law degrees from both the University of Toronto and Cambridge University. He has been sitting on the top court since 1998. Before his appointment to the SCC, he was an associate Deputy Minister of Justice and a senior partner at the law firm McCarthy Tetreault.

Charron was born in Sturgeon Falls, Ontario and she earned her law degree from the University of Ottawa. She is a former assistant Crown attorney and district court judge. She served on the Ontario Court of Appeal since 1995 until her appointment to the top court in 2004. Charron is retiring from the SCC at the age of 60, well before the mandatory retirement age of 75.

With two new appointments to the top court, Harper’s decision could impact legal decisions for years to come. Harper, being a Conservative will most likely look to appoint individuals who are conservative in nature and those that favour the policies of Mr. Harper and his government. Harper’s appointment decision is very important as four of the current nine judges are set to retire by 2015, meaning that Harper will have appointed more than half of the Supreme Court of Canada before the end of his current term. The potential implications of this are profound as the country’s top court could become a conservative stronghold, simply reinforcing the plans of the Conservative government, which could potentially curtail the rights and freedoms enjoyed by us under the Charter of Rights and Freedoms. Of course, all of this is contingent upon the fact of who Mr. Harper appoints to the SCC.

It is highly likely that both new justices will be appointed from Ontario and that one will be a woman. Speculation in the legal community is that Ontario Court of Appeal judges Andromache Karakatsanis and Robert Sharpe are the front runners for the appointment to the country’s top court. Karakatsanis, a former public servant, of Greek descent is believed to take a deferential approach to legislation- which the Conservative government will no doubt approve of. However, Karakatsanis is also considered to be a candidate for the Chief Justice of Ontario when the position becomes available. Robert Sharpe is a leading academic, who is a former law dean at the University of Toronto. Both judges are bilingual, conservative in nature, and appear to be favoured by Conservative ministers and backbenchers.

Other potential candidates for the job include Mr. Justice Marc Rosenberg of the Ontario Court of Appeal, who many believe is the leading legal mind regarding criminal law in the country. However, he may not be appointed to the SCC because he is a critic of Conservative crime policies, which would be a loss to Canadian Jurisprudence as a whole. Madame Justice Gloria Epstein, also of the Ontario Court of Appeal could also potentially be appointed, however she is also considered to be in the mix for being a future Chief Justice of Ontario. Other names being thrown around included Federal Court of Appeal Judge David Stratas, a former Bay Street expert on constitutional matters and Judge MacPherson of the Ontario Court of Appeal who is a former dean of law at Osgoode Hall Law School at York University.

Other questions that remain as to whether or not the next justices will be questioned by a House of Commons Committee, a process that Harper used in 2006, but not in 2008 when appointing Thomas Cromwell. Time will only tell who Mr. Harper appoints to the nation’s top court, but either way his decisions on the appointments to the SCC will undoubtedly have a lasting outcome on legal decisions for years to come.

R v. Sinclair: A Case Analysis

2011-06-15T11:29:00.000-07:00

On October 8, 2010, the Supreme Court of Canada (SCC) released the highly anticipated decision in the matter of R v. Sinclair 2010 SCC 35. In that case, Mr. Sinclair, during the course of a police interrogation implicated himself for murder. He also made incriminating statements to an undercover police officer who had been placed in a cell with him and later re-enacted the whole scenario at the crime scene for the police. During the course of the interview Sinclair asked on several occasions to speak to his legal counsel and or have them present during the interview. He was informed that he was not allowed to have his lawyer present during questioning and subsequently was denied access to speak to legal counsel over the phone. Sinclair’s only contact with a lawyer came when he was first arrested and approximately two hours into his interview. Both conversations lasted for approximately three minutes.

I, as counsel for Mr. Sinclair, put forward the argument that s.10(b) of the Charter of Rights and Freedoms imposes a duty on the police to discontinue questioning a detainee who has exercised the right to counsel when the detainee indicates a desire to speak with counsel again. It was further argued that s.10(b) requires the police to respect a detainee’s request to have counsel present during a custodial interrogation. These arguments were rejected at trial and by a unanimous British Columbia Court of Appeal (BCCA). A bare majority (5-4) of the Supreme Court of Canada (McLachlin C.J., Deschamps, Charron, Rothstein and Cromwell JJ.) agreed with the BCCA and stating that s.10(b) if the Charter does not mandate the presence of defence counsel throughout a custodial interrogation. In essence, the SCC rejected the rule adopted by the US Supreme Court in Miranda v. Arizona, 384 U.S. 136 (1966). The US Supreme Court has held that you are allowed to have a lawyer present during interrogations by government agents such as the police. Furthermore, it was held by the SCC that a request to consult counsel during the interview is not sufficient to re-trigger the s.10(b) right. The SCC majority held that the right will only be re-triggered when an objectively observable change in circumstances suggest that reconsultation with counsel is necessary in order for the detainee to have the information relevant to choosing whether or not to cooperate with the police investigation. A non-exhaustive list of situations where a second consultation with a lawyer might be required includes new procedures involving detainees (line ups & polygraphs), change in jeopardy (change in the nature of charges) and reason to question the detainee’s understanding of his s.10(b) right.

The minority decision of the SCC (Lebel, Fish and Abella JJ) state that they would allow the appeal on the above grounds on the basis that the detainee is arguably in the power of the police and the purpose of s.10(b) is to restore a power balance between the detainee and the police in the coercive atmosphere of the police investigation. The minority believe that the purpose of s.10(b) is to protect the accused and not to merely inform him or her of their legal rights. Justice Ian Binnie, who has his own dissenting judgment states that the purpose of s.10(b) is to be afforded meaningful legal assistance. Binnie notes that “it cannot reasonably be said….that the 360 seconds of legal advice [Sinclair] received in two initial phone calls before the police began their work was enough to exhaust his s.10(b) guarantee.” Binnie further stated that objective circumstances that give rise to a need to talk to legal counsel include but are not limited to the extent if prior contact wih counsel, the length of the interview at the time of the request, extent of other information (true or false) provided to the police, whether an issue of a legal nature has arisen in the course of the interrogation. It is important to note that Binnie agreed with the majority by declining to adopt the submission that s.10(b) requires the presence of counsel during the interrogation.

I believe that the Supreme Court of Canada has made it more difficult for defence counsel to do their job. Defence lawyers across the country will have to advise their clients to put their head down and say nothing, as otherwise they risk incriminating themselves as they will be at the mercy of a clever police officer. Along with the decisions in Singh, Oickle and Hebert the country’s top court has made it clear that the power during interrogations clearly rests with the police. Unfortunately, this could result in a significant amount of false confessions which could lead to false imprisonments and wrongful convictions. I believe that it is absolutely imperative that individuals in police custody have the right to have legal counsel present during investigations. Furthermore, accused individuals should have a continuous right to access legal counsel. I firmly believe that the courts should re-examine this issue and hopefully an appropriate balance between the rights of individuals and police powers could be struck.

Article Misses Key Aspect of Sentencing?

2010-12-09T17:52:00.000-08:00

According to an article in the Globe and Mail today (Kirk Makin, “Top Court Urged to Overhaul Sentencing,” Thursday, December 9, 2010) three of five judges on an Alberta Court of Appeal panel claimed there is a lack of confidence in the judiciary stemming from “wide disparities in sentences.” The Globe’s justice reporter, Kirk Makin, that the Conservative government may utilize the panel’s opinion in their plan to push minimum sentences.

The three judges on the panel who made up the majority – Chief Justice Catherine Fraser, Mr. Justice Jean Cote, and Mr. Justice Jack Watson – commented that Courts of Appeal in Canada should rein in sentencing by trial judges. Moreover, the majority urged both the Supreme Court of Canada and parliament to react to apparent disparities in sexual assault cases.

The particular sentence that the Alberta Court of Appeal panel was reviewing was a case in which an Aboriginal man, Jordan Arcand, committed a sexual assault against a friend of his who was passed out after they had been drinking. The judges said that Mr. Arcand’s sentence, handed out by Judge P.L. Adilman, Court of Queeen’s Bench Alberta, of 90 days was “based on outdated myths and stereotypes” about sexual assaults.

One wonders, however, to what degree the panel acknowledged the role that Gladue considerations played in Judge Adilman’s sentencing. The fact that Gladue factors should have been considered with regard to Mr. Arcand’s sentence is not discussed at all. If the trial judge did take into account the systemic issues leading to overrepresentation of Aboriginal peoples in the criminal justice system he was doing his job correctly. The article also fails to examine to what degree courts are taking seriously their obligations to Aboriginal offenders at sentencing and whether this is having an impact on terms of imprisonment.

It seems that once again, outmoded ways of thinking are erasing the significant facts about the criminalization of Aboriginal peoples in Canada.

I don't want to say "I told you so" but....

2010-11-19T17:20:00.000-08:00

They didn't listen to defence counsel. They didn't listen when defence counsel and the BCCLA told them that a system without recourse to the courts causes this kind of trouble and now, the police have recalled 2,200 Approved Screening Devices used at roadside to test people's breath alcohol. We told them citizen's rights would be violated and that there would be a violation of due process.

They didn't listen to us.

These are the machines responsible for the suspensions. By now, hundreds of people have received these suspensions. And the machines aren't working.

This is what happens when you remove due process.

To the Superintendent of Motor Vehicles; to Jamie Graham; to the police I say this: Shame on you. Your totalitarian attitude has lead to a situation where you've infringed due process without recourse for hundreds, if not thousands of citizens.

Disgusting. Maybe now, citizens will rise up and decry the loss of their rights.

Communities Advised to Report 'Radicalized Youth'

2010-10-18T12:04:00.000-07:00

The Harper government has advised racialized communities, targeting Muslims, apparently associated with ‘radicalized youth’ to report young people who voice strong political or religious perspectives to security forces.

At a news conference on October 3, 2010 Public Safety Minister, Vic Toews stated, “We are very concerned about the radicalization of Canadian youth and then becoming not only radicalized but then going to fight jihad, becoming militarily trained and then of course coming back to Canada.”

Mr. Toews was responding to a Globe and Mail story about three University of Manitoba students who disappeared three years ago after travelling to Pakistan leading to an international terrorism investigation. According to the Globe and Mail, Miawand Yar, Ferid Imam and Muhannad al-Ferekh flew out of Canada in early 2007 to Pakistan via Europe. What happened to them after they reached the border region of Waziristan, Pakistan, a known al-Qaeda and Taliban stronghold, is unknown.

In defending the government’s appeal to specific communities to turn over young people who may hold strong views Mr. Toews added, “I want to stress, again, that it's so very important that we have co-operation from the groups where these individuals are coming out of so that our security authorities can better assess the situation and protect Canadians.”

Using Somali Canadians as an example to bolster the government’s racist position, Mr. Toews said, “Some months ago, the Somali community approached the security authorities here in Canada expressing concern about their youth that had gone from Toronto overseas to fight jihad.” He added, “I want to say that this is perhaps the most effective means of protecting Canadians against a terrorist threat.”

Not surprisingly, there have been negative reactions from members of some Muslim communities. Shahina Siddiqui, the executive director of the Islamic Social Services Association, responded by suggesting that the Minister’s comments could incite suspicion from non-Muslim Canadians directed at Muslims and within Muslim communities themselves. Further, she expressed concern that it paints an inaccurate picture that Muslim Canadians do not cooperate with law-enforcement more generally.

The federal government’s perspective as expressed through Mr. Toew’s comments suggests a Conservative agenda to turn non-Muslim Canadians against cultural communities in the country and members of those communities against one another. It also points to a more general perspective that to hold ‘radical’ or different political and religious opinions is wrong and, moreover, dangerous.

Clearly, given the Federal government’s take that holding divergent views makes one ‘radicalized’ and, therefore, potentially dangerous this is indeed a perilous time to think outside Harper’s box.

'Truth In Sentecing' Act Does No Favours for Poor and Aboriginal Peoples

2010-09-27T15:59:00.000-07:00

An internal report submitted to cabinet in 2009 singled out Aboriginal, poor, and illiterate peoples as potentially being profoundly negatively affected by the implementation of Bill C-25. The so-called Truth in Sentencing Act, which came into effect in February of 2010, changed the policy on credit given for time served prior to sentencing. The Bill mandates that judges can only award equal credit for time served in custody while awaiting trial at conviction. The only exception to this is in special circumstances when they submit written reasons in an attempt to have 1.5 pre-sentence time credited for an individual.

Canadian media have recently gained access to the July 2009 preliminary report conducted by Justice Canada through the Access to Information Act. The internal report cited that in 582 cases of people awaiting trial across Canada, those held in custody in Winnipeg and Whitehorse had to wait longer for their trial dates than in-custody accused in Vancouver and Toronto.

In my experience, in custody accused are waiting 3-6 months for a trial date in Vancouver. If they’re waiting longer in Winnipeg and Whitehorse, that’s a disgrace. All accused are presumed innocent, including those who are waiting for a trial.

It is never the well-heeled that are disadvantaged by this kind of legislation. The Tories are putting the publicity value of being “tough on crime” in front of the rights of individuals, again.

Attorney General of BC Announces Public Inquiry Into Police Investigation of Robert Pickton

2010-09-13T17:43:00.000-07:00

On Thursday, September 9, 2010 the Attorney General of B.C., Mike de Jong, announced a public inquiry into the police investigation of Robert Pickton. The inquiry will focus on examining how the police handled reports that women were disappearing from the Downtown Eastside and taken to Pickton’s farm outside of Port Conquitlam, B.C.

In 2007 Pickton was convicted of six charges of second-degree murder in the deaths of six women, which occurred between the late 1990s and 2002. He was accused in twenty other charges, but the Crown chose only to proceed on the charges that would most likely lead to conviction.

The Crown and Vancouver Police Department suspected as early as 1997 that Pickton was involved in the disappearance and deaths of sex trade workers from Vancouver’s Downtown Eastside. Although the V.P.D. has admitted that they made mistake during the investigation they also directed blame at the R.C.M.P., which has jurisdiction over the area that Pickton’s farm is located. The R.C.M.P has not responded to these allegations.

The Public Inquiry Act governs public inquiries in B.C. The government is not obliged to act on any of the recommendations that result from the public inquiry. Both the Vancouver Police Department and the R.C.M.P. have responded positively in support of the inquiry.

Mr. de Jong has not indicated who will head the inquiry or when the inquiry will begin.

SCC Rules in Landmark Case that Monetary Compensation Is Appropriate in Cases of Charter Violations

2010-07-28T13:33:00.000-07:00

On July 23, 2010, the Supreme Court of Canada ruled in City of Vancouver and the Province of British Columbia v. Ward, that monetary compensation is appropriate when an individual’s rights have been violated under the Canadian Charter of Rights and Freedoms.

It is the first time in history that Canada’s highest court has said that damages are an appropriate remedy in cases where an individual’s charter rights have been violated.

Ward involved a situation in which Ward was wrongfully arrested by Vancouver Police Department members who were acting on a tip that an unknown person had planned to throw a pie at then Prime Minister Jean Chretien at a public event in Vancouver. The VPD arrested Mr. Ward and strip searched him once he was in a prison cell. He was released several hours later when the police realized that they had caught the wrong person.

The Supreme Court of Canada, led by Chief Justice Beverly McLachlin ruled that Mr. Ward’s section 7, 8, and 9 rights under the Charter had been violated by the police. The fundamental question in this case was whether monetary damages for compensation should be awarded in cases of abusive and tortuous conduct by the police. Canada’s highest court ruled that damages can be an appropriate remedy for a violation of Charter Rights under s. 24 (1) of the Canadian Charter of Rights and Freedoms. Although Mr. Ward was only awarded a small amount of money, the principle that his case set was huge.

The Supreme Court of Canada is sending a clear message to authorities. The police must not abuse their powers and they must act in good faith when investigating crimes and seeking out possible suspects. They must remember that the Canadian Charter of Rights and Freedoms is absolute; it does not disappear or not apply to people in Canada when the police are investigating a crime. The Charter applies at all times, whether the police are investigating a murder or a mischief call.

The Court has sent a clear message to Canadians, stating that your rights mean something in this country. Your rights are not arbitrary; they are not contingent on circumstances or situations but they are absolute. Authorities across the nation will have to realize that the Charter stands for the rights of citizens and if they fail to respect those rights, they will be issuing a lot more than apologies.

BC Government Appeals BC Supreme Court Decision on Jamie Bacon

2010-07-21T14:31:00.000-07:00

Attorney General and Solicitor General, Mike de Jong, announced yesterday that the B.C. government will be appealing the decision of B.C. Supreme Court Justice Mark McEwan.

On June 9, 2010, Mr. Justice McEwan criticized the prison warden at the Surrey Pre-Trial Centre for violating Mr. Bacon’s section 7 right under the Canadian Charter of Rights and Freedoms. Justice McEwan went as far as saying that prison warden Debbie Hawboldt aided the police in keeping Bacon in isolation and restricting his phone calls. Mr. Justice McEwan concluded that Bacon was subjected to inhumane conditions while he was held at the Surrey Pre-Trial Centre.

Even while Mike de Jong announced that the B.C. government will be appealing the decision of Justice McEwan, the lawyer for Jamie Bacon contends that Bacon is still subjected to inhumane treatment while locked behind bars.

Jamie Bacon is accused of murder in one of the biggest serial murder cases in B.C. history. That said, significant questions remain as to the repeated attack of the government and the police on Mr. Bacon: Is this a classic case of pressing hard on the accused to make him break? Are the police trying to send a message to gangsters in the lower mainland?

While I do not condone any violence, including gang violence, I believe that everyone should be treated fairly by the criminal justice system.

Mr. Bacon is only accused of murder in the ‘Surrey Six’ murders. He has not been found guilty; the presumption of innocence remains. We must follow the proper process to determine innocence or guilt, not simply start labeling people as criminals once they have been arrested.

The fact that the police would take an unfair advantage over an accused when all the resources of the state are arrayed against him is the first step towards a totalitarian state. We must not subject people to inhumane treatment while in custody. This goes against everything Canada stands for.

Only time will tell the outcome of this case. A fundamental question in this case: will the criminal justice system succumb to the will of the government and the police or will the courts tell the police and the government to stay within their boundaries? All criminal cases are, to some extent, about this question. I trust and rely on our judges to check the power of the state; otherwise, every citizen’s rights are on the line.

“Truth in Sentencing” Act Will Cost More than Original Estimate

2010-06-23T14:21:00.000-07:00

According to the CBC, a report from the parliamentary budget officer contends that the new legislation, The Truth In Sentencing Act, will cost more than the original estimate of $2 billion: $1 billion just to implement the program; and, billions of dollars more to maintain the program.

Parliamentary budget officer Kevin Page said on Tuesday June 22, 2010 that the construction of new correctional facilities will cost $1.8 billion and a further $618 million is needed to annually to operate such correctional facilities.

Public Safety Minister Vic Toews disagrees with the findings of the parliamentary budget officer. Towes believes that while it is true that more individuals will spend time in prison, however new prisons will not be needed because provincial prisoners will be moved to federal prisoners and individuals with lighter sentences will be released into the community. Conversely Page states that Canada lacks the space necessary to keep such a high volume of prisoners, and that 13 new prisons will have to be constructed in order to allow such legislation to be implemented effectively.

The estimated cost of running prisons in Canada will be likely in the range of $2.8 billion a year, which is a substantial jump from the $2.2 billion we are currently paying. This does not include the cost of building new prisons – an estimated $1.8 billion?

Furthermore, it is believed that the cost of correctional services will double by the year 2015-2016 as the cost will jump from $4.4 billion a year to $9.5 billion a year.

While the government can’t agree on the exact cost of this legislation, one thing is certain: it will cost us taxpayers a significant amount of money.

Where the feds generate funding for such a plan? A tax increase? By shorting transfer payments to provinces, which could result in lower budgets for health and education? That’s ridiculous. Putting someone who is no danger to the community in custody BEFORE they’ve been found guilty is bad enough; making us pay for it is a travesty.

Accused individuals have a right to a speedy trial, and if they are not provided with such a right there should be some sort of compensation in the form of two for one credit. Either way you look at this legislation, it does more harm than it does good for the public or the accused.

Alleged Gangster’s Rights Violated in Prison

2010-06-09T15:52:00.000-07:00

Justice Mark McEwan said in a lengthy ruling released on June 9, 2010 that alleged gangster Jamie Bacon’s constitutional rights were violated when he was subjected to inhumane conditions when he was held at the Surrey Pre-trial Centre. The prison warden directly violated Jamie Bacon’s section 7 right under the Canadian Charter of Rights and Freedoms. Section 7 of the Charter of Rights and Freedoms states that “everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

According to the Vancouver Sun, Jamie Bacon was kept in inhumane conditions which included being kept in isolation for 23 hours a day, having his phone rights taken away and having his visits curtailed without any reason. Justice McEwan stated that the condition in which Jamie Bacon was kept in clearly “threatened the security of his person (which includes both a physical and psychological dimension) by the unlawful deprivation of his rights for a unlawful purpose.” He further noted that the corrections guards acted for the police in keeping Jamie Bacon in such horrendous conditions – this appears to indicate some sort of collaboration between the two agencies.

It is important to keep in mind that while Jamie Bacon has been charged and arrested for his role in the infamous “Surrey Six” murders, he has not been proven guilty in the court of law. No human being should have their rights violated. These rights are absolute; they are not contingent upon a set of criteria or circumstances. These rights are the cornerstone of democracy. I also believe that this ruling sets limits on what government agencies such as the police can do. I think the majority of the people will agree with me when I say that we should not live in a society where the police can do whatever they like. There must be limits on police powers. This gross violation of human rights could have happened to anyone, and therefore it is important to remember that there must be a balance between the rights of the police to investigate – but that the rights of a citizen charged, but convicted of no crime, must be paramount.

BC Gets Tough on Drinking and Driving

2010-05-05T18:02:00.000-07:00

Solicitor General Mike de Jong introduced new legislation on drinking and driving that will make British Columbia the toughest in Canada on impaired drivers.With the new legislation any individual who fails a roadside screening with a blood alcohol level above 0.08 could be hit with a penalty $3,750* along with an automatic three month driving ban and a 30 day vehicle impoundment.

Costs for Having a Blood Alcohol Level Over 0.08 on a Roadside Screening Device
Administrative Penalty $500
License Reinstatement Fee $250
Towing & Impoundment Fee for 30 days $700
Responsible Driver’s Program Fee $880
Ignition Interlock Device Fee (1 Year) $1,420
Total $3,750

The new legislation also includes penalties for impaired drivers who blow in the warning range of 0.05-0.08:
1.a $200 fine and a three day driving ban for the first incident in five years;
2.a $300 fine and a seven day ban for the second incident in five years; and
3.a $400 fine and 30 day driving ban for the third incident in five years.

Individuals who blow in the warning range of 0.05 to 0.08 will also be hit with a $250 driver reinstatement fee and be charged a $150 for having their vehicle impounded for three days.

People who are caught three times in one year for blowing in the warning range or those individuals who blow over 0.08 will also be required to participate in the Responsible Driver Program and use an ignition interlock device, which measures a driver’s blood alcohol level every time they start their vehicle, for a period of one year. The new legislation also states that individuals who refuse to provide a breath sample will also face a 90 day driving prohibition and a $500 fine.

The new drinking and driving legislation is designed to not need the approval of Crown Counsel making it very likely that impaired drivers will be hit with the most severe penalties possible. What this actually means, however, is that first time impaired drivers will NOT be facing charges. That’s outrageous. It takes away the certainty that the Justice System is meant to instill: a democratic process which safeguards individuals from state intrusion. Instead, it trades the certainty of the justice system for an arbitrary process that will not be subject to the same safeguards and that’s just wrong.

Conservative ‘Truth in Sentencing’ Act will cost Canadian Taxpayers Billions

2010-05-05T17:44:00.000-07:00

On February 22, 2010, the Truth in Sentencing Act which eliminates two for one credit for time spent in custody before sentencing was passed into law. Two for one time – so called “dead time – was credited for two reasons: first, because there are no rehabilitative programs available for people on remand and second, because remission – time off for “good behaviour” that sees prisoners reintegrated into society by having control over them through supervision and halfway houses – is not available for time before sentencing.

This Act is a bad idea. It’s not “truth” in sentencing. It’s the Conservatives making themselves look better to a scared and sometimes uninformed public.The cases of R v. Mills, R v. Wust and R v. Rezaie are perfect examples of why two for one credit has been awarded and illustrate the principles that judges rely on. My case out of our Court of Appeal, R v. Calder Berg, awarded dead time to my client who had been denied dead time and it’s a great read.

We now find out that this “tough on crime” agenda will cost taxpayers billions of dollars. Several media sources – including the National Post and the Vancouver Sun- indicate that this will cost Canadians a total of $10 billion over the next five years. 10 Billion! What could we buy with 10 billion dollars? Especially when we could use the help in the form of transfer payments to assist with schools, social housing and to combat child poverty? We should all be outraged.
Future plans of the Conservative government include eliminating automatic statutory release after an individual has served two thirds of their sentence and imposing more mandatory minimum sentences for drug related offences.

Only time will tell how much this get tough on crime agenda will cost Canadians. In the United States, generally the largest lobbyists for the infamous “three strikes: you’re out” law was the CONSTRUCTION INDUSTRY. That should give anyone a reason to look at who is actually benefiting from these new laws.

An Open Letter to Mike DeJong, Solicitor General, Premier Gordon Campbell, and Colin Hansen

2010-02-20T14:54:00.000-08:00

Well, the Olympics are almost over, so that means it's BUDGET TIME. Legal aid funding is on the chopping block - again! If it is cut, this will be the ninth successive time that it has been cut since 2000. It's a travesty.

If, like me, you believe that Legal aid funding is crucial to an operating democracy, there is still time to let your voice be heard. Email GORDON CAMPBELL: Premier@gov.bc.ca; MIKE DEJONG: 'mike.dejong.mla@leg.bc.ca'; or COLIN HANSEN: 'colin.hansen.mla@leg.bc.ca'.

Here is what I wrote:

Dear Sirs,

I write to request that funding for the Legal Services Society AT LEAST remain at current levels for the 2010-2011 budget year. Legal aid services in this province are at crisis levels and Legal Services Society staff are overworked, underpaid and often doing three or four job descriptions. The tariff has been cut multiple times since the first cuts in 2000; my count is at least five times, including internal policy shifts. Legal aid is an ESSENTIAL service to a working, corruption-free democracy and the tariff cannot be cut any further.

The flood of unrepresented people in our courts have shown that your short-term thinking in cutting the tariff the first time is actually costing the province MORE money – more court time means more judges’ salaries, more sheriffs on shift, more clerks and administration and more courtrooms have to be open to expedite the amount of people in the system. LSS recently cut coverage for all category 1 offences (breaches) including for those where the Crown was asking for jail time. This has resulted in more people going into custody when they have a viable defence in law. This should horrify any right-thinking, reasonable person. It should also point out the futility of short term solutions, as it results in the state having to house and control an ever-expanding inmate population - costing the state more and more every year as the cost of food and essentials continues to climb.

I understand your government would like to be perceived as “tough on crime”. I understand the majority of British Columbia’s population believes in funding the police and Attorney General services and doesn’t believe in funding “freeloaders” on the criminal justice system. I can also say that my job is perceived as being just a barrier to jailing criminals. However, I implore you to look south of the border to the United States and their Innocence Project – how many of those people might have been saved decades of their lives by being properly represented in court? We are facing the same situation here as on major case files LSS has refused funding for private investigators, transcripts, junior counsel, and all manner of disbursements, citing lack of funding. Of course, Crown has all these resources available to them. The meager resources of an unrepresented (or underrepresented) accused are no match for a well-funded state.

I am not unrealistic; I understand that the economic downturn and poor attendance at the Olympics have resulted in a terrible climate for the province as a whole. I ask that you keep LSS funding at the same level as last year, with an inflationary adjustment. Should you choose to cut LSS funding, I project the legal aid boycott currently going on in Kamloops will expand to the rest of the province. I will be a proud supporter of that boycott.

I am a criminal defence lawyer here in Vancouver, called since 2004. I worked at the Legal Services Society through UBC Law in 2000-2003. I am a proud member of a profession that works quietly and selflessly in probono services across the province. I have had to minimize the amount of legal aid files I take. It is not financially feasible to take legal aid files. Lawyers all over the province are turning away from legal aid files because they cannot pay their taxes and their staff with what we are being paid.

The legal aid situation in this province is a travesty. Keeping the funding at its’ current levels is, in my opinion, the least you can do.

Regards,
Lisa Jean Helps

Happy New Year!!

2010-01-09T16:29:00.000-08:00

Hello Everyone,

Happy New Year to all of my readers, both through Cannabis Culture and through the blog! We have some big cases coming up this year, and I think you can expect to see an analysis of the new Vancouver no-cellphones-while-driving legislation shortly! But, just for fun, I give you Batman. My job is much closer to Law And Order than you'd imagine, but it'd be way easier with Batman on for the VPD or RCMP. A "crimefighter" who doesn't play by the Charter of Rights and who relies on violence to achieve his goal? Oh, yes. All the evidence in those trials would be excluded.

Enjoy!

Innocent Until Proven Guilty: Why It's Important

2009-12-07T14:44:00.000-08:00

In 1999, Sherry Sherret-Robinson faced the worst thing a mother can face: her son, Joshua, was found dead in his crib. The pathologist, Dr. Charles Smith, testified that, due to hemorrages in Joshua's neck, and a fractured skull, that he was murdered. Sherry Sherret-Robinson was convicted of killing Joshua by smothering him. She has served 10 years in jail for doing so.

Today, after the joint submissions of Crown and Defence, based on new expert evidence, the Ontario Court of Appeal ruled that Ms. Sherret-Robinson should be acquitted. The new reports suggest there was no skull fracture and the neck hemorrhages were in fact caused by Smith during the autopsy.The experts concluded there was no basis in the pathology to support Smith's inference the baby was deliberately smothered or suffocated, but that it can't be ruled out.

Instead, the autopsy findings and the fact that Joshua had numerous layers of blankets under, around and on top of him, "reasonably support the conclusion that death occurred by an accidental asphyxial means in an unsafe sleeping environment."

How sad. That's why, whenever people ask how I can defend someone I "know" is guilty, I always respond that because I'm not God, I never "know". Not being a pathologist, Dr. Smith's evidence might have seemed very persuasive to me and to Ms. Sherret-Robinson's lawyer.

In Memoriam - 4 Police Officers Shot Dead in Washington State.

2009-11-30T14:32:00.000-08:00

Our hearts here at Helps Law Offices go out to all the officers in the Pierce County, Washington, today, especially the Pierce County Sheriffs and the Lakewood Police Department.

The officers — three men and a woman from the Lakewood Police Department — were attacked at 8:15 a.m. local time yesterday. Two of the officers were shot and killed as they sat at a table. Another one was shot standing up. The fourth officer fought with the gunman and made it outside and was able to get off some shots. They were about to go on shift. All of them were doing paperwork and enjoying each other's company.

Working in the justice system is hard, no matter who you are. As an advocate, my job is to ensure my client is treated fairly and is given the best possible defence, because the Crown has the burden of proving the case. I have met police officers that I thought were sleazy jerks; police have often come across counsel that are sleazy jerks. By and large, however, most police officers are trying to do their jobs competently. I've met some real heroes, too.

No one should be in jeopardy of death for their jobs. To be put in a situation where you are in the line of fire is one thing and I know plenty of wives and husbands of police officers who accept that their spouse is in mortal danger on a regular basis. That's different than this. These officers weren't on an active investigation; they weren't chasing a suspect in hot pursuit; they didn't enter a situation to help someone only to find it was more dangerous than they anticipated - they were having coffee. They were catching up on the administrative part of their job. They were alive - and then they died. It's sickening.

May they rest in peace.

Legal System in Crisis - Mr. Justice Rosenberg's Thoughts.

2009-11-30T13:46:00.000-08:00

A big Helps Law Offices kudos goes out today to the great Mr. Justice Rosenberg for pointing out the flaws in our bail system and how innocent until proven guilty has fallen by the wayside. The Globe and Mail carried their article about it today. In addressing the Criminal Lawyer's Association luncheon Friday, this judge (who has, in my opinion, consistently kept out of the spotlight but who is one of the great legal minds of our time) became the conscience of the Canadian legal system.

Mr. Justice Rosenberg should be commended for taking the contrary view in a public debate that has increasingly favoured mandatory minimum jail sentences, withholding of bail on grounds where the public might be offended if the accused is released and a hysteria over "rampant crime" - when the crime rate has actually fallen.

It's true that marginalized populations are far more represented in the prison system than anywhere else. It's a crime. Aboriginal offenders, in spite of R v. Gladue just don't get a fair shake. We need to stop ignoring that Canada, for all our first world values and peacekeeping leadership on a world stage, has two worlds: a first world realm and a third world, quietly concealed on reserves and reservations.

He also commented on Legal Aid as being "a cornerstone of the system". If only Legal Services in British Columbia were properly funded. Any legal aid funding for serious matters is done at a rate of $83.90 an hour and all funding is capped - so often when a lawyer does an application properly on legal aid they're losing money. The system as it stands rewards the lawyers that do a poor job. It's why most lawyers I know who do legal aid are picky - because, in essence, it doesn't pay the overhead. It's a way of doing probono - an honour to the profession. 83.90 an hour?? You can't get this guy:

in to fix ANYTHING for 83.90 an hour!! More than that, the services offered do NOT assist those - like first offenders - who really need it. The tariff is so underfunded that there are unrepresented litigants facing significant lifetime consequences who are not receiving the help they need. It's a crisis.

Mr. Justice Rosenberg should be commended on his moral and ethical stance on these issues. It is imperative that we stop hiding behind Conservative governments to shirk our responsibilities. Legal Aid should be a priority in government funding; bail should not be denied for a fear of an uninformed public and mandatory minimums tie up trial time that would not otherwise be spent because discretion has been removed from judges.

Congratulations, Mr. Justice Rosenberg. Thank you for a reasoned entry into a debate that should be informed and passionate.

Vaguely Misquoted, but still: point made!

2009-11-27T19:07:00.000-08:00

The Province printed what I wrote yesterday - albeit misquotedly. The writer, Mr. Bopp, was completely sarcastic when he said "what's next?"

Oh, well. Misquotes are always happening. I'm always surprised when I'm in a courtroom and what's printed matches what happened.

The only person I've never been misquoted by is Susan Lazaruk of the Province. She wrote about me the day that Mr. Mercer was acquitted of first degree murder after spending five years in jail. I was justifiably proud that day.

Amnesty Calls for Inquiry into Canada's Policies on Afghan Detainees

2009-11-25T17:01:00.000-08:00

Fascinating news on the human rights front: Amnesty International is claiming that Canada has been, as far back as 2002, transferring detainees over to Afghan authorities, a situation that critics say puts prisoners at risk of being tortured.

Public opinion seems to be summed up by E. Bopp in his letter to the Vancouver Province today.

Mr. Bopp in yesterday’s Province writes in regard to the “alleged cruel and inhuman treatment” of captured Taliban fighters when turned over to Afghan authorities in Kandahar: “Can extending the reach of Canada's all-purpose Charter of Rights and Freedoms to Taliban detainees be far behind?” To this, I can only answer with great fervor and conviction: “I hope not”.

The Canadian Charter of Rights and Freedoms is the greatest piece of legislation in Canadian history. It is a shield that protects the least of us from the weight of the state being brought to bear against us – keeps our homes, our conversations and our person safe from random intrusion from the government. It gives Canada, as an operating democracy, the moral weight to stand up on the world stage against tyranny, fear and fascism. Handing over detained prisoners to a government where there is no assurance that they will be treated with humanity so that we don’t have to deal with them in a just and fair manner is just wrong.

Mr. Bopp puts the words “cruel and inhuman” in quotation marks, and uses the word allegedly perhaps because he does not believe that Afghanistan’s government is torturing detainees. Amnesty International says they are. That’s good enough for me. Canada should be the first nation to step forward and say that it’s wrong – not a nation facilitating these abuses.

For the record, I am a (metaphorically) card-carrying member of the BC Civil Liberties Association and of Amnesty (oh, and of Lawyer's Rights Watch Canada, and of all sorts of other "lefty-liberal" organizations). They perform an essential function in our society - to stand up for those that society generally feels are the least of us. Without this, rights could be eroded to the point that the state becomes more powerful than the individuals or voices of opposition can be.

How Time Passes!

2009-11-25T16:51:00.001-08:00

So much has happened since May, I can hardly explain it all.

I had my first vacation in years, heading to Portugal, Greece and London. Friends had babies, my brother got engaged, and my fabulous assistant Melina became permanent and full time. I lost my beloved granddad but when I look out the window to Woodward's, I see, rising from the ashes, the place that my grandparents worked for 50+ years. Bittersweet, how this city is changing!

Lots of changes around the office have resulted in a lot of time out of the office and in court. We've won a ton of cases! If you've seen me in the news, you'll know that we've had a lot of success with murder, fraud, and sexual assault cases, and we won a landmark case on prisoner's rights in custody at the BC Court of Appeal. As always, our success rate in Impaired Driving and Driving Prohibitions remains very high.

As time marches on, I learn a lot every day. I'm lucky for the friends and colleagues (and friend-collegues!) who keep me going.

Posts will be more frequent, I promise!

The Greatest of Us to the Least of Us: Judge Stansfield dies, age 57

2009-05-08T22:41:00.000-07:00

It is with sadness that I write about the passing of the Honourable Judge Hugh Stansfield, Chief Justice of the Provincial Court of British Columbia. He passed away yesterday at 57 years old and leaves behind a wife and four sons, men who I hope are like their father.

Many professional colleagues will write of his fairness, his devotion to his ideals and his sense of fair play, good nature and quest to make the courts more accessible and understandable for the public. They will write about his quest to implement a downtown community court to deal with habitual offenders, a project that came to fruition this year. Many of them will write about his defence of judges and their discrection in sentencing. There is not much I can add to that, other echoing those comments.

I articled in the Kelowna area in 2003. As one of only two articling students in the region, I was often surrounded by counsel who were not interested in assisting young counsel (the converse of that, of couse, are the now-lifelong friends who did assist and guide, all of whom I'm grateful for) but the Honourable Judge Stansfield never failed to stop and talk to me. When on the bench, he was unfailingly patient and polite. Three days after my call to the bar, I was in Kelowna and he asked to speak to me in Chambers. When I arrived in Chambers, he congratulated me on my call and asked me what I planned to do. I discussed my future plans and what I was looking forward to. He listened to me.

The greatest gift that someone in a position of power or authority can bestow is respect and kindness. I hope the Honourable Judge Stansfield knew that I appreciated every minute he ever gave to me. I hope that I can always carry that standard forward to students, articling students and junior counsel.

I also hope he secretly knew that a lot of the Kelowna Registry staff called him "Judge Clooney" for his good looks, smile and affable nature. I hope it pleased him.

My thoughts and sympathies are with his family.

The Coming Aporkalypse and Second Coming of the Carbolic Smoke Ball!

2009-05-01T21:42:00.001-07:00

All this crazy talk about the Virulent Swine Flu - the coming Aporkalypse! - has put me in mind of one of the great cases in legal history and shows us that the more things change, the more they stay the same.

Walk into any Shoppers Drug Mart or London Drugs and there are signs everywhere - a Vitamin C product has a printed poster above it - "Perfect for Fighting Off the Flu!" - a hand sanitizer - "Frequent Use reduces Chances of Getting Swine Flu!". Sure, we may know more than we did in 1891 about preventing the flu, but really, when you get down to it, the fear of disease has always been used to promote the consuming of products.

In 1891, the Carbolic Smoke Ball Company made a product called the "smoke ball". It claimed to be a cure for the flu. The smoke ball was a rubber ball with a tube attached. It was filled with carbolic acid. The tube was then inserted into the user's nose. It was squeezed at the bottom to release the gases into the nose of the user. This would cause the nose to run, and hopefully flush out the cold. (In fact, we now know that the inflammation to the nasal passages caused by the device would have probably increased susceptibility to catching influenza - but they didn't know that in 1891!).

The Company published advertisements in theLondon newspapers on November 13, 1891, claiming that it would pay £100 to anyone who got sick with influenza after using its product according to the instructions set out in the advertisement.

“£100 (about $15, 000 today!!) reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks, according to the printed directions supplied with each ball.

£1000 is deposited with the Alliance Bank shewing our sincerity in the matter.

During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball.

One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10s. post free. The ball can be refilled at a cost of 5s. Address: “Carbolic Smoke Ball Company, “27, Princes Street, Hanover Square, London.”

Mrs Louisa Elizabeth Carlill saw the advertisement, bought one of the balls and used three times daily for nearly two months until she contracted the flu on January 17, 1892. She claimed £100 from the Carbolic Smoke Ball Company. They ignored two letters from her husband, a lawyer.

On a third request for her reward, they replied with an anonymous letter that if it is used properly the company had complete confidence in the smoke ball's efficacy, but "to protect themselves against all fraudulent claims" they would need her to come to their office to use the ball each day and checked by the secretary. Mrs Carlill brought a claim to court. The barristers representing her argued that the advertisement and her reliance on it was a contract between her and the company, and so they ought to pay. The company argued it was not a serious

The U.K. Court of Appeal unanimously rejected the company's arguments and held that there was a fully binding contract for £100 with Mrs Carlill. Among the reasons given by the three judges were (1) that the advert was a unilateral offer to all the world (2) that satisfying conditions for using the smokeball constituted acceptance of the offer (3) that purchasing or merely using the smokeball constituted good consideration, because it was a distinct detriment incurred at the behest of the company and, furthermore, more people buying smokeballs by relying on the advert was a clear benefit to Carbolic (4) that the company's claim that £1000 was deposited at the Alliance Bank showed the serious intention to be legally bound.

If only someone would advertise a miracle product in this way today!

Credit Where Credit Is Due

2009-05-01T21:24:00.000-07:00

One of the first things I meant to mention on the blog is that the photograph of me taken above is by Paul Couvrette, an amazing Ottawa-based photographer who has been shooting portraits of dignitaries and celebrities in Ottawa (including the Time Magazine cover of Belinda Stronach and all the Justices of the Supreme Court of Canada) for more than 20 years. I love it. Copyright stays with him, of course. I can't recommend his work highly enough. It was taken last year when I was arguing R v. R.E.M at the Supreme Court of Canada.

And a link to Paul.

He made me feel gorgeous. Thanks again, Paul and everyone at Couvrette Photography!

Talking in Live Theatre Performances is a Crime... or is it?

2009-04-28T16:48:00.000-07:00

Hey, y'all.

I don't have a lot of pet peeves (okay, I do, but I'm not going to share most of them on this blog) but the one major one I can't stand is people who talk/Blackberry/text during a movie or play. What is wrong with you?? Are you that narcissistic that you have to talk all the time? Don't you know that if you're in a live theatre performance that the actors on stage - no matter how far away your crummy seats are - can hear you??

I know we can hear you, because every year I'm a part of the Lawyer Show, a charity fundraiser that benefits the performing arts in Vancouver. This year, I was the fairy 'Dandylion" in Shakespeare's Midsummer Nights' Dream as performed at the Waterfront Theatre. In 2008, I was a cigarette girl in the classic comedy "Once In a Lifetime". So yeah, I'm a pro. And you should shut up.

I was at a wonderful performance of the Royal City Musical Theatre's "A Chorus Line" - a musical I very much enjoy and a great performance of it - when the couple behind me began to talk. Loudly. They weren't older, nor did they misunderstand something. At one point, the woman said that she didn't think the "fat one" was right for the part of Maggie. Charming. The usher came over and shushed them but they continued to talk.

I started contemplating what I could ask the police to charge them with and considered these options:

1. Indecent Acts, s. 173: Nope. You have to expose your genitals, not your appalling lack of manners.

2. Disturbance, s. 175: Maybe. I was disturbed, all right. The section provides that "everyone who, not being in a dwelling house, causes a disturbance in or near a public place ... by fighting, shouting, screaming, swearing, singing or using insulting or obscene language ... is guilty of an offence punishable on summary conviction". The standard for Crown charge approval is a reasonable likelihood of conviction - I'm not sure this would meet that standard for charge approval - but it might be worth getting them hauled out of the theatre in handcuffs to teach them some manners!

3.Disturbing religious worship, s. 176(2): Damn. Even I can't argue for this section, even though I know all the words to "Wicked", "The Last Five Years", "In the Heights", "A Chorus Line", and every Rogers and Hammerstein musical.

4. Criminal Harrassment, s. 264: The section provides that "no person shall ... engage in conduct that causes another to fear for the safety or the safety of anyone known to them" - okay, so that's out, too. Although I did fear for the safety of the couple behind me.

I probably could have asked the ushers to kick them out. When you get right down to it, I was singing so loud along with the cast that I didn't even notice.

No, I didn't. I knew all the words, but that's not cool. I wouldn't do that, it's not mannerly. And besiders, it appears that I could be charged with causing a disturbance!

The Lawyer, away from Law

2009-04-22T22:39:00.000-07:00

Sometimes, the day is entirely about the law.
Sometimes, life (happily!) intercedes.

Two events: first, the author was invited to participate in a studio visit this evening with local artist Evan Lee. Evan is well known to contemporary art circles in Vancouver, but this was my first brush with his work. His new project, soon to be seen at Monte Clark in Toronto, is an amazing collection of photographs which are homages to digital photos posted on flickr or other image sites. The work fits in with his general scope, it appears, in terms of experimenting with ways that images convey a time and place that are significant in the moment and what that moment looks like when recreated at a different time. The inadvertent flash not accounted for by the original snapshot photographer becomes a centrepiece around which the artist explores the idea of the specific to the general, that which is private being put on show, but in a way that takes the personal out of the photograph and places it firmly in public domain.

I loved them.

The centrepiece of the work - a large combining of each separate images that, as a whole, make up the refracted individual pieces - illustrates the piece as whole and parts. Exceptional! I am also a huge fan of his "40 Armoured Cars" and the illustration at the top of this piece, "Every Part From a Contaflex Camera, disassembled by the artist during winter, 1998".

The second event: my favorite Vancouver bookstore was in the National Post today at "Ask a Bookseller: Pulpfiction Books" link here:

I love their blog, and I think that if you're a reader at all, you should have some familiarity with their shop. I can't say enough good things.

Hey, it can't all be murder and mayhem. You have to sometimes take a break and see things that take your breath away. Oh, and have a really good cup of tea. I recommend the London Fog at JJ Bean, and one of their Chocolate Chip Zucchini Muffins to go with it.

I'm out for the rest of the week, working on exciting facta and generally doing appellate (appeals) odds and ends. Reach me through the office if needed!

Right to Silence - an update!

2009-04-21T17:57:00.000-07:00

As an aside, I am very excited to be pursuing this issue at the Supreme Court of Canada on May 12, 2009 in a case called R v. Sinclair. In Sinclair, the issue will be whether an accused should have the right to a second access to counsel if they request it or whether they can have a lawyer present with them at the time of an interrogation. The law in Canada, unlike in the United States, is that an accused is permitted one access to counsel and counsel are not permitted in the interrogation room with an accused.

We want to be more like the United States in the ability to protect a client's rights and their access to counsel.

How crazy is that?? :-)

I'll keep you... posted!

You have the right to remain silent - use it!

2009-04-21T16:59:00.000-07:00

Now that that's out of the way, constant reader (well, okay, since yesterday reader) and one of my fave family members Rob C. writes to ask:

Hey Cuz,

How about this for a blog question...

Do the police in Canada have to read me my rights like they do on the American cop shows?

R

ANSWER: Well, Rob, the short answer is yes, they do. But they won't be doing it with pithy one-liners and taking their sunglasses on and off (remember, it's still Vancouver or Toronto or Montreal or Halifax or Canada - are there really enough days to take sunglasses on and off?).

In both Canada and America, the proscribed process for an arrest is very similar. In Canada, criminal law is federal; in the United States, the criminal law is state by state but in both countries, the recommended process is the same country-wide. Both countries have a Supreme Court that makes law for the entire country.

The States has adopted a process outlined in what is now considered the landmark case of Arizona v. Miranda (hence "Miranda rights"). In that case, an immigrant named Ernesto Miranda was accused of rape and was held without his fifth and sixth amendment rights (the right to remain silent and the right to have an attorney present) being explained to him. He gave a confession after two hours of interrogation. At trial, he was convicted and appealed to the Arizona Supreme Court. The Arizona Supreme Court ruled that the confession was admissible. The U.S. Supreme Court reversed the Arizona Supreme Court and held that statements obtained from defendants during interrogations in police-dominated atmosphere without full warning of right to remain silent and right to counsel violated the Fifth and Sixth Amendments and were inadmissible. Generally, the police read or recite a standard warning to an accused that is based on the guidelines in Miranda, and is recited to every accused at the time of arrest.

In Canada, a number of pieces of jurisprudence have developed the law in this regard. The right to silence is protected under section 7 of the Canadian Charter of Rights and Freedoms. The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence. Prior to an accused being informed of their right to legal counsel, any statements they make to police are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible.

Although an accused has the right to remain silent and may not be compelled to testify against himself, where an accused freely chooses to take the witness stand and testify, there is no further right to silence and no general restriction on what kinds of questions they may be required to answer. This may be contrasted with the US right to refuse to answer incriminating questions under the 5th Amendment even while on the witness stand. However section 13 of the Canadian Charter of Rights and Freedoms guarantees that a witness may not have any incriminating evidence they gave as testimony used against them in separate proceedings. In effect, a person can be compelled to give involuntary self-incriminating evidence but only where that evidence is to be used against a third party.

A leading case on the right to silence was R. v. Hebert, which held that the accused cannot be tricked into divulging any information until they consult with a lawyer.

The police in Canada actually have a card that they carry, where they give the following information to an accused at the time of arrest:

1. Why the accused is being arrested;
2. Whether the accused wants to talk to a lawyer;
3. That free legal aid is available; and
4. A "secondary warning" which details that the accused is under no obligation to speak to the police.

Hope that answers your question in a lot of detail, Rob!

420 in Vancouver

2009-04-20T17:41:00.000-07:00

It is indeed April 20, 2009 today; 420 is a universal in joke for all you blunt smokers out there. I saw about 20 people lined up waiting for the HQ of the BC Marijuana Party to open this morning. Usually, the store isn't so crowded so early!

Some myths about the origin of "420" are totally busted:

Police dispatch code for smoking pot is 420. The number 420 is not police radio code for anything, anywhere. Checks of criminal codes suggest that the origin is neither Californian nor federal. The Canadian Criminal Code s. 420 is about illegally or fraudulently buying military supplies from a member of the Canadian Armed Forces.

There are approximately 420 active chemicals in marijuana. Actually, there are approximately 315 active chemicals in marijuana. This number goes up and down depending on which plant is used. (Thank you "about.com" for this statistic!)

April 20th is National Pot Smokers Day. Well, it is now; but that wasn't the origin.

April 20th is Hitler's birthday. Yes, it is his birthday. This is a great example of a cause and effect being muddled together. The two have NOTHING to do with one another, as the term didn't come into use until the 70's.

April 20th is the date of the Columbine school shootings. This happened after the term was already in use.

4:20 is tea time for pot-smokers in Holland. FAIL! Not true. Hollandaises (or, as they're more commonly known, "the Dutch") have their tea with the rest of Europe - whenever they damn well please.

According to the editor of High Times, Steven Hager, 420 originated in 1971 with a group of a dozen students, who wanted to pass the word when they would meet to smoke without parents and teachers realizing what they were talking about. They would meet at the school's statue of Louis Pasteur at 4:20 p.m.

Who is Louis Pasteur? from wikipedia: Louis Pasteur (December 27, 1822 – September 28, 1895) was a French chemist and microbiologist born in Dole. He is best known for his remarkable breakthroughs in the causes and prevention of disease. His experiments supported the germ theory of disease, also reducing mortality from puerperal fever (childbed), and he created the first vaccine for rabies. He was best known to the general public for inventing a method to stop milk and wine from causing sickness - this process came to be called Pasteurization. He is regarded as one of the three main founders of microbiology, together with Ferdinand Cohn and Robert Koch. Pasteur also made many discoveries in the field of chemistry, most notably the molecular basis for the asymmetry of certain crystals.^[1] He is buried beneath the Institute Pasteur, a rare honor in France, where being buried in a cemetery is mandatory save for the fewer than 300 "Great Men" who are entombed in the Panthéon.

I don't think Louis Pasteur smoked marijuana, but I could be wrong.

So remember, kids: In Canada, possession of marijuana is illegal. So is dealing, and yes, technically, you can be busted for Possession for the purposes of trafficking for sharing a joint. The possibility of this happening is low; but it's still possible thast you can be charged.

If you're arrested, know your rights:

1. The police will try to ask you who owns the drugs and try to talk to you. You do not have to tell them anything! Under s. 7 of the Charter, you have the right to remain silent. If they're trying to talk to you, you probably can't make things better by talking to them. Exercise your right to silence!

2. You have the right to talk to a lawyer of your choice! If you already have a lawyer, insist that you want to speak to that lawyer, or if you've heard of a good lawyer, that you want to talk to them. Legal aid is great if you need general advice - but it's harder for the police to prove that you got all your rights if you didn't speak to your lawyer.

3. The police can't search you unless they have reasonable and probable grounds for an arrest. They can detain you for investigative reasons, but that does not mean they can do more than pat you down. Any police officer who asks to look in your car or in your backpack cannot do it unless you say it's okay - and saying no does not give them the right to arrest you! Do not let them look in your personal possessions.

I believe very strongly that each one of us has the right to be safe and free of police interference in our lives. Exercise your rights if you're stopped or arrested by the police.

2007-03-06T20:47:00.000-08:00

Welcome to the Helps Law Offices Blog! I look forward to posting questions, concerns and updates here, as well as giving you a general overview of criminal law issues that concern everyone. Anything posted on this blog is solely my opinion - my office, other lawyers in my office and our staff are not responsible for anything I write.

It seems to me that more and more, our society's values - that which makes us Canadians, rather than the U.S. citizens - are coming under siege from some unexpected places. The Supreme Court of Canada has recently ruled for a narrow interpretation of the laws surrounding wiretaps (R v. Lising and Pires), the United States has received cooperation from the RCMP in arresting Marc Emery, and Parliament is legislating to restrict the discretion of judges and to add mandatory minimums that are proven to do nothing to deter crime (Bills C-9 and C-10).

Since becoming a criminal defence lawyer, I've had numerous people coming up to me and telling me that my work does nothing for society as a whole. I don't believe that at all. There is nothing more important than the protection of everyone's rights. If you can take away the rights of people accused of a crime, then your society isn't working; the rights enshrined in the Canadian Charter of Rights and Freedoms must be guaranteed to everyone for society to work properly. That's what I do, and why I'm proud to be a criminal lawyer. Please check back often for new posts and new issues. I'm always glad to answer questions at info@helpslaw.com.