Criminal Law Archives - Page 3 of 4

Supreme Court: No Warrant to Swab Your Genitals? No Problem!

August 30, 2016 By Melody Izadi

In a logically confusing and weakly justified ruling rendered on June 23, 2016, the majority of the justices of the Supreme Court of Canada in R. v. Saeed decided that upon arrest, without warrant or consent, when Mr. Saeed was commanded to drop his trousers and a cotton-tipped swab was wiped along the length of his penis and around the head of his penis, somehow, his rights under the Charter of Rights and Freedoms were not infringed.

Mr. Saeed was charged and convicted of sexual assault causing bodily harm and unlawful touching for a sexual purpose. One of the key pieces of evidence relied upon by the Crown to secure a conviction was the DNA of the complainant found on Mr. Saeed’s penis several hours after the assault. The DNA was found after a warrantless penile swab was conducted at the police detachment after Mr. Saeed’s arrest. The defence sought to exclude the results of the penile swab on the basis that it contravened Mr. Saeed’s section 8 rights under the Charter to privacy and to be free from unreasonable search and seizure. The Supreme Court held that Mr. Saeed’s rights were not infringed, and the police were acting within their ambit of evidence gathering.

The majority also held that the invasive search was justified because the procedure was lawful. “It’s quick and painless” says the Supreme Court, and “it’s not penetrative.” What ought to be shocking to the Canadian public is this: prior to the penile swab, Mr. Saeed was placed in a dry cell (meaning no toilet or sink) and his hands were cuffed to a metal pipe behind his back; he was forced to sit on the floor without changing positions for over an hour; he was not allowed to use the washroom or drink any water; he was eventually commanded to expose his genitals so that a swab could be taken from his penis; and at no point did Mr. Saeed consent to the swab.

Justice Abella, was the only Justice who found a breach of Mr. Saeed’s Charter rights and would have remedied the breach by excluding the evidence under section 24(2) of the Charter. Justice Abella found it significant that Mr. Saeed was in police custody for several hours and no steps were ever taken by the police to obtain a general warrant or a telewarrant for the invasive search of his genitals.

The majority on the other hand found no breach whatsoever of Mr. Saeed’s rights. Justice Moldaver reasoned that because it was the complainant’s DNA that was sought via a penile swab and not Mr. Saeed’s, Mr. Saeed did not have “a significant privacy interest in the complainant’s DNA, any more than [he had] a significant privacy interest in drugs that have passed through [his] digestive system.” However, if there was evidence to suggest that there was drug residue on an accused person’s penis, asking the individual to drop their pants to search for it would certainly be a breach of section 8, and quite frankly, outrageous. In addition, a drug test is worlds apart from the invasiveness of a penile swab, because, after a penile swab, the accused’s DNA would be transferred onto the swab, and thus would be in the hands of investigators. Moldaver, J. briefly acknowledges this reality, but dismisses it by stating coldly that if the accused’s DNA is obtained, “the accused’s DNA cannot be used for any purpose.” This of course assumes that it would somehow always be disclosed if the accused’s DNA is used by investigators.

The majority also held that the invasive search was justified because the procedure was lawful. “It’s quick and painless” says the Supreme Court, and “it’s not penetrative. The cotton swab touches only the accused’s outer skin. It does not cause pain or physical discomfort. It does not pose any risk to the accused’s health.” This may be so. However, unjustified strip searches have the same lack of injury to the accused, but have been found to breach the section 8 rights of an accused. This also assumes that “the accused’s health” only encompasses the accused’s physical well-being.

In this case, the Supreme Court has decided that if an officer has reasonable and probable grounds to think there is evidence on your genitals, you can be chained to a pipe for a few hours, in a dry cell without food or drink, and have your genitals swabbed at the command of the officers, and this does not violate your rights under the Charter of Rights and Freedoms. Perhaps if the accused had been a woman in this case, socially constructed gender binaries would have helped magnify the inappropriateness and invasiveness of having an individual’s genitals investigated without consent or a warrant, and authorized by nothing more than reasonable and probable grounds. Would the Supreme Court have come to the same conclusion? Because, a warrantless search of an individual’s genitals without their consent is a clear breach of Section 8 of the Charter.

The Production of Cell Tower Records Breaches Canadians’ Privacy Rights

June 28, 2016 By Melody Izadi

Justice Sproat of the Ontario Superior Court of Justice in R. v. Rogers Communications Partnerships [2016] O.J. No. 151 has ruled that police cannot seek the production of cellphone records of thousands of Canadians in order to pursue investigations. This means that the personal information of Canadian cellphone users cannot be in the hands of police without specific reasons. In addition, and at the request of Telus and Rogers, the Court created guidelines so that future production orders would not infringe the privacy interests of Canadian citizens. It remains to be seen what ripple effects these guidelines will have on our right to privacy.

It’s quite clear that as technology continues to develop, new topical legal issues are raised in courtrooms and litigated nation-wide. Whether it is legislation or common law, the laws around gathering evidence via cell records and other technologies still remain underdeveloped, much like an apple blossom begins to bloom before it becomes a firm, crisp apple.

New legislation was passed, courtesy of the Harper government and reflects the then-government’s inclination to support more power for police to search cellphones without legal roadblocks in order to gather evidence. The Protecting Canadians from Online Crime Act came into force on March 10, 2015 and gives police a shocking amount of leeway to search Canadians’ cellphones and cell records.

Every time we use our cellphones, it’s as if we’re leaving a technological fingerprint that is frozen in time and can be uncovered if necessary. Certainly, as our laws develop in an attempt to catch up to today’s technological advances, the police have tried to take advantage of the lacunas in the law. They sought to further investigations by gathering evidence created by cellphone usage and use that evidence against accused persons. However, the police have only been given some leeway by the courts, and the right to privacy seems to (thankfully) still be championed and safeguarded by Canadian judges. For instance, in 2013 the Ontario Court of Appeal in R. v. Fearon 2013 ONCA 106 held that a search warrant is necessary to search a cellphone that is “locked” or password protected, and a search of a password protected phone as a means to arrest would be otherwise unlawful.

In R. v. Rogers Communications Partnerships, the police obtained production orders that required Rogers and Telus to produce records of all of the cellphone, tower and subscriber records within a certain area in order to further an investigation into a string of jewelry robberies. The police wanted these records so that they could identify every individual who used a cellphone near the jewelry store at the time in question. In order to comply with the orders, Telus advised the Court that it would be required to disclose the personal information of at least 9,000 customers. Detective Douglas Cole of the York Regional Police Service testified that these records were invaluable because they could reveal the names of all individuals accessing cell towers close to the crime scenes.

But Justice Sproat recognized the sensitivity of the information at stake. The private information that is created and stored using cellular phones should not be accessed freely by the state, because, as his Honour held:

“common sense indicates that Canadians have a reasonable expectation of privacy in the records of their cellular phone activity. Whether and when someone chooses to contact a divorce lawyer, a suicide prevention hotline, a business competitor or a rehabilitation clinic obviously implicates privacy concerns. The location of a person at a particular time also raises privacy concerns. Was the person at the Blue Jays game instead of at work?”

Justice Sproat held that, not only do Rogers and Telus have legal standing to assert the privacy interests of their clients (us), but that the information we disclose to them ought to be kept private. Justice Sproat held that, not only do Rogers and Telus have legal standing to assert the privacy interests of their clients (us), but that the information we disclose to them ought to be kept private. He found that the overly broad production orders requested by the police infringed Section 8 of the Charter of Rights and Freedoms:

“I appreciate that cellphone data is not right up there with Wikileaks and Ashley Madison in terms of information likely to be hacked and published. It remains that it is information Canadians certainly regard as private. The law supports this conclusion.”

What’s significant to note is how the law has been forced to respond to a new wave of breaches created by the developments in technology, and the influx of evidentiary links that can be made using this technology. Every time we use our cellphones, it’s as if we’re leaving a technological fingerprint that is frozen in time and can be uncovered if necessary. But how the police are able to obtain that data and when, is still a matter for our courts to decide. And so far, our courts seem to decide in line with our Charter right to privacy.

Missing the Mark: Why the Post-Ghomeshi Outrage Makes Little Sense

May 3, 2016 By Melody Izadi

Almost everyone has an opinion about one of the most followed trials in Canadian history. The Jian Ghomeshi trial left a trail of furious people in its path like an F5 tornado that veered off course. Many of those who are angry about the Ghomeshi trial allege that there was an injustice— that the Ghomeshi trial is proof that rape myths still run rampant in our court system. However, those who opine that “women’s rights” have been trampled by this case are not only wrong, but also seem to have a narrow, uninformed view of the outcome. This problematic viewpoint that many Canadians share has spread across the country like a viral outbreak, and has infected the Canadian population with poor judgment.

The result of each cross-examination of the complainants in the Ghomeshi trial led to a public outcry for sexual assault case reform, and defence counsel Marie Henein was demonized for discrediting the complainants. A popular opinion seems to be that a complainant’s word should, absent cross-examination and any resulting damage, be enough for a conviction. Because, as the nay sayers argue, a decimating cross-examination in a sex assault case undermines “women’s rights” and causes irreparable harm.

What the public lacks, it seems, is an understanding of the term “credibility” in a court of law. It’s quite clear in his reasons for judgment that Justice Horkins found Ghomeshi not guilty not because the complainants were women, or because there was no direct evidence, or because he is a rape myth supporter, but because each of the complainants showed a serious lack of honesty and candour in their testimony at trial. If Canadians are in support of a system of justice that can convict people based on testimony from witnesses who have been clearly shown to withhold information (and outright lie), then what is the point of having an adversarial system of justice at all? Why even have a trial? Why not skip the whole thing and convict people after statements are given to police?

This case was not a perpetuation of rape myths or false social constructions of the ideal victim. This case was about the basic principles of credibility in a courtroom and the strength of the evidence the Judge had before him. What these angry Canadians should be considering is what damage has been done to “women’s rights” when three complainants come forward to report an historically under-reported crime, and choose to do so without being forthcoming or honest. The damage to the credibility of the three complainants was not done by fancy lawyer tricks, and Mr. Ghomeshi was not found not guilty because of a “technicality.” Rather, the women were found to have lied about things that were at the very core of their statements and at the very heart of their complaints. Their actions (and inactions) were far more than just a minor inconsistency between their testimony at trial and their statements to police. Had Justice Horkins convicted any individual on such evidence, our justice system would be a mockery of what it’s been designed to be.

The term “women’s rights” has been nestled between quotation marks in this article because the way it has been used by many Canadians when talking about the Ghomeshi case implies some sort of one-size-fits-all approach. In reality, the concept of “women’s rights” has not only been compartmentalized, but it is a widely accepted notion in academia that a conversation about “women’s rights” cannot be devoid of class, race, ability, sexuality and so on. In the Ghomeshi trial, three English-speaking, middle-class women, with many resources and opportunities afforded to them (including representation by their own counsel) arrived in court and chose to give evidence that was not honest.

If Canadians are in support of a system of justice that can convict people based on testimony from witnesses who have been clearly shown to withhold information (and outright lie), then what is the point of having an adversarial system of justice at all? Why even have a trial?What’s ironic about the post-Ghomeshi “women’s rights” championing has been the targeted anger towards Marie Henein. Marie Henein has been labelled as a “traitor” to her own gender even though she showcased her competence, vigor, talent and advocacy. Women should champion Marie Henein’s mere existence in our legal system, and should be gently reminded that she is a successful woman in a society that is not yet absent of patriarchy, sexism and unequal opportunity and pay. She has flourished in a career path that most women leave after a few years of practice. In addition, if any of Marie Henein’s Twitter assassins were accused of sexual assault, or if any of their husbands, fathers, or sons were accused, and complainants testified against the accused in a similar fashion as the complainants did in the Ghomeshi trial, two things would be profoundly certain: (1) they would want Marie Henein to represent them or their loved one; and (2) they would be outraged if they or their loved one was convicted on the word of complainants who were dishonest about extremely relevant information, in an extremely important matter.

This case was not a perpetuation of rape myths or false social constructions of the ideal victim. This case was about the basic principles of credibility in a courtroom and the strength of the evidence the Judge had before him. Any future complainant who braves the humiliation of having to testify in court will not be scarred or tainted by the Ghomeshi decision— not to worry, verdicts of guilty will still be found in the courts. But this country cannot support convictions on less than truthful evidence. This country cannot support convictions when there is reasonable doubt. This country cannot support or give credence to people in our society who take an oath to tell the truth, but instead, figuratively spit in the face of the court. Otherwise, our court system would just be, in the words of Lucy DeCoutere, “theatre at its best.”

Making a Mockery of the Justice System

March 1, 2016 By Melody Izadi

The new Netflix obsession, Making a Murderer, is a sensation. Blogs, news programs, articles, magazines, newspapers and water cooler conversations are all immersed in the quest to answer the eternal question: did he do it?

The evidence seems to point in both directions. The Netflix documentary itself shines heavy light on the absurdity and outrageousness of the prosecution against Steven Avery. It’s hard to walk away from viewing the documentary and not be fairly certain that the police officers engaged in at least some miscarriages of justice, and at least had some hand in what and how evidence was found in the case. To put it in simple terms, the evidence against the officers and the portions of the trial included in the documentary clearly highlighted that the police were, at the very least, being sketchy. Suddenly finding the victim’s car key in plain view after numerous searches, with none of the victim’s DNA but some of the accused’s DNA, is extremely suspicious, if not an obvious indication that the evidence was planted. As Steven’s trial lawyers pointed out in the documentary, if the police are willing to plant the key, what else would they be capable of fabricating?

Then we have the post-documentary backlash from prosecutor Ken Kratz and others, reporting that many important and compelling pieces of evidence were omitted from the documentary. For instance, there is the alleged fact that Avrey had phoned the victim’s place of business several times that day and specifically requested her attendance on his property.

Steven Avrey’s ex-fiancé Jodi Stachowski, who was also featured in Making a Murderer when the two were dating, has reported to media that Avrey tied her to a bed with rope and wanted to have sex with her while she was restrained. On that basis she thinks Brandon Dassey’s statement to police containing details of the victim’s sexual assault was truthful. She’s also gone public with a letter apparently sent to her from Avrey in an attempt to cast light on the “real” Steven Avrey that isn’t shown in the documentary.

All of this information, and much more, guides opinions and sparks debate and curiosity. Based on media alone, most people have decided whether or not he did it. People feel certain in their conclusions and either condemn or commend the justice system. Those who believe he’s innocent sign petitions, protest, and relentlessly support Steven’s appeal on the basis that he is innocent. Those who believe he’s guilty use that conclusion as a basis to determine whether or not Avrey deserves what happened to him: if he’s guilty, then who cares that much if the police planted evidence: he is where he should be.

However, what’s being conflated in the minds of those who have convinced themselves they are certain of the truth, is the evidence of whether he committed the murder and the concept of reasonable doubt and the right to a fair trial. Justice does not exist when someone is convicted after not receiving a fair trial. Our justice system is not working if there exists a reasonable doubt, yet an individual is convicted. Legal rights exist to safeguard everyone from the powers, influence and resources of the state. Condoning a conviction where the evidence and prosecution falls below that threshold is to condone abuses of power and miscarriages of justice.

What’s captured in Making a Murderer , despite the defence-friendly content, is enough to demonstrate that neither Avrey nor Brandon Dassey received a fair trial. A fair trial includes the right to an impartial jury. A fair trial includes the right to the presumption of innocence, and sound rulings on the admissibility of evidence. On these principles alone, we should champion the prospect of an appeal and ensure the justice system operates as it ought to, and not as a bear trap for the rights of those caught in the hysteria of sensational cases. Real, admissible evidence ought to be presented by the prosecution, and challenged by the defence. An impartial trier then decides a verdict based on this evidence. Neither Avrey nor Dassey were given all of these simple promises of our justice systems. Yet hoards of people, despite not having any actual access to the entirety of the evidence in Avery’s case, have decided he’s guilty of murdering Teresa Halbach and are outraged at the prospect of an appellate decision in his favour.

If there is reasonable doubt in any case, the only verdict that is just is a verdict of not guilty. Not guilty does not mean innocent. A court of appeal ought to not only declare such miscarriages of justice, but also seek to remedy them. Such a decision by an appellate court is not a declaration of innocence. It would be a declaration that our human rights are not lost, or trampled over by the state. It would be a promise by our justice system that everyone deserves a fair trial— despite whatever the Internet tells you to believe.

Court of Appeal says Police Can’t Climb Through Windows and Spy on You

January 5, 2016 By Melody Izadi

The Ontario Court of Appeal recently held in its decision in R. v. White [2015] O.J. No. 3563 that police officers do not have unrestricted access to enter common areas in residential buildings to gather evidence against an individual.

The police had suspected that Mr. White was dealing drugs from his condominium, and on three separate occasions Detective Hill secretly entered Mr. White’s building without knowledge or prior consent from any other resident. The detective observed the comings and goings of Mr. White’s apartment, observed the contents of Mr. White’s condominium locker, and because of the poor quality of the walls was able to hear conversations taking place inside Mr. White’s apartment. On one occasion, the detective hid in a stairwell inside the building to continue surveillance on Mr. White’s apartment.

After these secret entries, a search warrant was granted and executed. The police found drugs and cash inside the apartment. Mr. White was subsequently charged with possession of marijuana and cocaine for the purpose of trafficking, possession of cocaine, and possession of property obtained by a crime. The Court of Appeal upheld the trial judge’s ruling that the gathering of the evidence that formed the grounds of the search warrant violated Mr. White’s Section 8 rights under the Charter of Rights and Freedoms (“Charter”), and the evidence was excluded pursuant to section 24(2) of the Charter.

Privacy is an internationally recognized human right deserving of protection that ought not to be violated on a discretionary basis by police.Cue outrage and disagreement from those who view Charter rights as “technicalities” that clever defence lawyers argue to win cases for their clients. But pause for a moment and consider the ramifications of unfettered access to everywhere Canadian citizens live. Certainly the detectives in R. v. White assumed this was their right, given their testimony, so long as they didn’t break anything on the way in. They were of the opinion that there was no reasonable expectation of privacy in the common areas of the condominium building, and so they could investigate as they pleased. If this were the case, privacy would be a casual right that had little weight. In fact the Court of Appeal held that:

“If the police are entitled to climb through windows to gain entry to multi-unit residential buildings and, once inside, enter common areas such as storage rooms, hide in stairwells, and conduct surveillance operations for as long as they want on those who live there – all without a warrant – on the basis that those who live in these buildings have no reasonable expectation of privacy in the common areas, then the concept of a reasonable expectation of privacy means little.”

Though it can be assumed that the police had every intention to stop drugs from being sold on our streets, it cannot be a goal achieved by trampling on constitutionally protected rights of Canadians without regulation. Privacy is an internationally recognized human right deserving of protection that ought not to be violated on a discretionary basis by police. The Court of Appeal in White succinctly and perfectly encapsulates this notion in one sentence: “Some limits on police activity are necessary if privacy is to be protected.”

Cue outrage and disagreement from those who view Charter rights as “technicalities” that clever defence lawyers argue to win cases for their clients. But pause for a moment and consider the ramifications of unfettered access to everywhere Canadian citizens live. Even giving this ruling, many Canadians will still view these types of Charter violations as a “technicality,” and be appalled that an alleged drug dealer is now “free.” Yet what is appalling to most defence counsel, and hopefully to other Canadians, is the nature in which the detectives in White chose to gather evidence, and were certain in their right to do so in their testimony. If a line isn’t drawn here by the Court of Appeal, then I invite you to imagine the vastness of power that we as Canadians would be handing over in exchange for human rights violations against ourselves or our fellow citizens.

Deeming Charter violations a “technicality” not only minimizes the importance of constitutionally protected human rights, but also adds to a problematic rhetoric that perpetuates trivializing the Charter. Rather, as the Court of Appeal in White makes clear, sometimes our Charter rights can only be protected at the expense of limiting police powers. A limit that is not only necessary, but essential.

In fact, the trial judge in White found that the police had “neither statutory authority to conduct the searches nor a constitutionally unrestricted right to trespass upon private property to conduct the searches.” The Court of Appeal upheld this finding, showing strong support for the protection of Mr. White’s Section 8 Charter right. So too should Canadians agree with the reasoning in White, and leave behind conservative notions of limitless state powers that trample on the rights of all.

Protecting Canadians from The Protecting Canadians from Online Crime Act

November 3, 2015 By Melody Izadi

As an intended ode to victims of cyber-bullying, The Protecting Canadians from Online Crime Act (Bill C-13) came into force on March 10, 2015. However, this legislation gives police the discretion to search Canadians’ personal information and stored data with what should be deemed as an alarming new set of powers to search. The new section of the Criminal Code reads:

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

The new provision is clearly intended to address a particular mode of cyber-bullying: that being the public sharing of “intimate images.” Anyone with a decent-sized However, police discretion ought to be questioned. They are humans, after all. heart and any speck of gumption in their soul would surely support the intention of Bill C-13. We no longer live in a world where only certain families in the neighbourhood have dial-up Internet access, and the majority of individuals don’t look through their library’s card catalogue to find a book. People Google, images are shared at lightning speed, and with one click you can publicly transmit anything you want to the rest of the world. It’s been an obvious and almost inevitable outcome of this tech-savvy, share-everything, world we now live in that images are being posted without the subject’s consent, possibly affecting their reputation, well-being, marriage, or career. But despite the well-intentioned nature of Bill C-13, this is not a time to bow our heads in support. The police have now been given titanic latitude in searching our personal property and data, and to make an arrest.

The new Section 162.1(1) includes recklessness as sufficient to prove knowledge or intent. This casts a wide net and gives the police the power to arrest and search any individual who they think may meet that criterion. For most adults, this legislation is not a threat to our personal livelihood: most adults aren’t running home at night and posting “intimate images” of people they know for fun, without due care or regard. But young people do. Young people are constantly sharing and re-sharing images, often thoughtlessly, on all kinds of social media and public forums of an often inappropriate nature. These young persons are now subject to an almost unfettered police power to be subject to arrest, and have their phones and other devices searched meticulously. Those photos on their phones of them and their friends smoking weed last Friday night? Oh those might be in police possession. Those private messages you sent to your partner last night? The police might read them.

Young people are constantly sharing and re-sharing images, often thoughtlessly, on all kinds of social media and public forums of an often inappropriate nature.Even knowing this, many Canadians would be comforted by the fact that this all rests on the discretion of the police, who are thought of as heroes in shiny armour. Without question, police are invaluable in their efforts and interventions; a police force is necessary. However, police discretion ought to be questioned. They are humans, after all. Almost weekly it seems, there is a horrible example of the frailty of police discretion in the United States, with story after story of shootings that occur between white police officers and black citizens. Here at home, the Toronto Star published an expose by Jesse Mclean entitled “Hundreds of Officers in the Greater Toronto Area disciplined for ‘serious’ Misconduct in the past five years” (Sept 19, 2015). Mclean exposes many officers, including one who “drives a homeless aboriginal man several kilometres out of town and leaves him to walk back at dusk along a busy highway in near-freezing temperatures.” And as Mclean points out, “they’re all still cops.”

What then, are we to make of the new Bill C-13? The thought behind the legislation, and the devastating examples of suicides resulting from cyber-bullying should not be forgotten or minimized. However, when Canadians’ privacy interests are subject to police discretion (not to mention search warrants, production orders and arrests) is it enough to say that it was Parliament’s thought that counts? Because now, every person who recklessly disseminates an “intimate image” into cyber space is subject to a real risk of arrest and having their privacy interests violated by police. The difference in Bill C-13’s purpose and practicalities is stark when it comes to ‘Protecting Canadians.’
As the new Bill C-13 powers soon become exercised by the police, perhaps Canadians should consider the immortal words of Antoine Dodson to protect themselves from the legislation, “hide yo kids, hide yo wife.”

The Holy Grail

September 3, 2015 By Melody Izadi

The Ontario Court of Appeal this year in R. v Nguyen [2015] )NCA 278 has decided that the spousal incompetency rule, which forbids spouses to be compelled to testify against each other, and spousal privilege, does not extend to common-law couples [1]. A very clear line has been drawn between those who are legally wed and those who are not, irrespective of how long a couple has been in a common-law relationship or why they have not yet married. In effect, a couple who marries but met for the first time on their wedding day is deemed to have “…the protection of marital harmony and the avoidance of the natural repugnance resulting from one spouse testifying against the other,” while a couple who has been living together for several years creating a life, a home, and children, does not.

The challenge to include common-law spouses was made by defence counsel, acting for their clients whose common-law spouses were compelled to testify as Crown witnesses in a first-degree murder trial. Defence counsel sought to exclude this testimony on appeal, and through a Charter of Rights and Freedoms section 15(1) challenge, in which it was argued that the spousal incompetency rule discriminated against common- law couples. The Court of Appeal agreed with defence counsel that the spousal incompetency rule did, in fact, discriminate against common-law couples under the Charter. However, the Court found that this violation was saved under Section 1 of the Charter. The law remains unchanged.

The Court seems to hinge its decision on the “choice to marry,” and a common-law couple’s decision not to make that choice. The Court of Appeal posits that if a couple does not “choose” to be legally wed, then they choose not to “accept the state-imposed responsibilities and protections associated with that status.”

The very purpose of spousal privilege is to preclude ‘secrets of the marriage bed,’ that were disclosed in confidence to one’s spouse, to be used against a spouse in court, by legal force. This connotes a state interest in staying away from any big-brother parallels that could be drawn and private conversations in the home. Yet, it is not clear why this protection is any less deserved by those without a marriage licence, except for the fact that they do not have the paperwork.

The Court of Appeal admits that the negative impact on common-law spouses “…denies common-law spouses the benefit of the rule, namely, protection of their matrimonial harmony and prevention of the indignity of one spouse participating in the prosecution of the other.” The Court justifies its ruling by stating that extending the rule to common-law partners would infringe respect for their autonomy,The Court seems to hinge its decision on the “choice to marry,” and a common law couple’s decision not to make that choice. The Court of Appeal posits that if a couple does not “choose” to be legally wed, then they choose not to “accept the state-imposed responsibilities and protections associated with that status.” freedom of choice, and human dignity under the Charter because neither partner would be free to choose to testify if they wanted to. However, this conclusion does not seem to marry with (pun intended) the very core purpose of the spousal privilege and spousal incompetency rule.

It’s not news that marriage is a legal union between two consenting parties, and upon marrying, certain rights and privileges flow from its legality. However, the spousal incompetency rule is a rule that exists to prevent the state from compelling one’s partner to assist in the other partner’s prosecution. Not because they are married per se, but because the fact that they are married is seen as a declaration of their partnership and union, and frankly, their love. It is the relationship between the two individuals that is what gives the spousal incompetency rule its validity, not the marriage licence. In 2015, it’s remarkable that the concept of marriage is still perfumed with Victorian-era legitimacy and necessity.

The validity of marriage transcends jurisdiction and culture, and is treated as the ultimate status of a relationship. The Court of Appeal certainly perpetuates this problematic social construction of marriage. The Court reasons that any harm caused by the denial ofIt is the relationship between the two individuals that is what gives the spousal incompetency rule its validity, not the marriage license. In 2015, it’s remarkable that the concept of marriage is still perfumed with Victorian-era legitimacy and necessity. extending the rule to common-law couples can be saved “by the availability of the choice to marry.” So if your common-law partner is criminally charged and you want to protect him or her, don’t fret! The Court of Appeal wants to let you know that common-law partners “may choose to marry at any time before a trial,” and any time after an indictment is laid in order to benefit from the law. How romantic!

So it seems that the Court of Appeal views a marriage licence like a golden Wanka ticket, neatly placed between a bar of chocolate and shiny foil that anyone who wants it can have. This may have been a more sound view several years ago, but in today’s gluten-free, Stevia-laden, low-carb world, not everyone is going to buy that bar of chocolate. Nor should they have to.

Notes:

1. The spousal incompetency rule has exceptions and limitations; see R. v Nguyen Para 10-20; The Canada Evidence Canada Act s. 4 (2). See also The Canadian Victims Bill of Rights Act, in force as of July 23, 2015

When Prosecution Met Defence: The Michael Bryant Case

May 7, 2015 By J. Mark Smith

Facts of the Case

At 9:47 p.m. on Aug. 31, 2009, former Ontario attorney general and CEO of Invest Toronto Michael Bryant, driving home after dinner with his wife, had a violent encounter with a younger man on a bicycle, Darcy “Allan” Sheppard. Sheppard was drunk, and at a traffic light on Bloor St. W. pulled his bicycle to a stop in front of Bryant’s Saab convertible. The ex-politician, for reasons that have never been satisfactorily established, drove into the cyclist. The force knocked Sheppard back onto the hood and dragged his bicycle some distance beneath the Saab. Sheppard rolled off, stood up, ran around the car and jumped onto the driver’s side, holding onto the window frame (or possibly the driver’s seat headrest). Bryant reversed, drove around the downed bicycle, and accelerated down Bloor into the oncoming lane, which was free of traffic. After a few seconds, Sheppard was thrown from the car. The left side of his torso was torn open, probably by a fire hydrant; but he died, according to the coroner, from the blunt impact trauma of his head hitting the road or sidewalk. Bryant drove to the Hyatt hotel a few blocks along Bloor, where he spoke with a doorman and (three minutes after arriving) phoned 911. The Toronto police charged Bryant with criminal negligence causing death and dangerous driving causing death. He spent the night in jail.

Bryant appeared the next day for a press conference in a crisp suit, hired the public relations firm Navigator, and retained top criminal lawyer Marie Henein as his defence attorney.

It emerged that Sheppard, who was Métis, had been a ward of the child welfare system in Alberta. He worked as a bicycle courier in Toronto. He had a lengthy criminal record in both Alberta and Ontario, mostly for petty and substance abuse-related offences.

The Ontario attorney general’s office, in order to avoid the appearance of bias, appointed a prominent B.C. defence lawyer, Richard Peck, to serve as Special Prosecutor in the case.

The Dropping of Charges and the Special Prosecutor’s Public Statement

On May 25, 2010, the Special Prosecutor, concluding there was no reasonable likelihood of conviction, dropped the charges against Bryant. (A scanned copy of the proceedings can be found at The Darcy Sheppard Files a site maintained by the victim’s father.)

The procedure was unusual in that the announcement of the dropping of charges against Bryant was accompanied by a lengthy public account of the Crown’s reasons (including analysis of evidence) for doing so, even though those reasons and that evidence had never been tested by a trial. Also surprising was the effect that the submission by the defence of pre-trial “Scopelliti” evidence had upon to the prosecution’s case.

A Successful Pre-Trial “Scopelliti” defence

In Canada, the name “Scopelliti” attaches to the tactic by which a deceased victim’s character is impugned in order to strengthen the claim that the accused killed him in self-defence. In 1979, Antonio Scopelliti, an Italian immigrant who spoke almost no English, shot and killed two unarmed 17-year-old boys he believed were attempting to rob his Orillia, Ontario convenience store and gas bar. There were no witnesses and no video camera evidence. Scopelliti claimed self-defence, and his lawyer – Edward Greenspan – bolstered that claim by producing evidence of what he said was a pattern of prior aggressive and threatening behaviour by the two teenagers. The judge presiding over the Scopelliti trial ruled that evidence to be admissible.

Bryant’s defence team, after intensive detective work around Toronto, gathered affidavits from six motorists who claimed that they had been harassed by Darcy Sheppard in previous months and years. On May 25, 2010, the Special Prosecutor, concluding there was no reasonable likelihood of conviction, dropped the charges against Bryant. They also produced two compelling photos: one of a shirtless man who looked very much like Sheppard angrily confronting a motorist in a BMW; the second of the same man perched on the running board of the same vehicle, hanging from the side window. In the court proceedings, Special Prosecutor Peck declared that he, himself, found the “probative force” of these exhibits undeniable. But the relevance of those exhibits was never ruled upon by a judge. Nor had the circumstances in which they were gathered been tested in a trial.

Greenspan, reflecting on his precedent-setting case in a 1987 autobiography, made this comment: “The victim may not always be the party that is the most grievously hurt. Guilt or innocence do not depend on the severity of injuries and cannot be determined by medical reports alone. We cannot judge solely by the outcome of an incident who is to blame for it, or who is to blame for it more. Nor can we decide it on the basis of who complained first, who started crying “Thief!” or “Rape!”, or who has been charged by the police. If we could, we wouldn’t need courts and judges. These questions can only be answered by a judicial process in which all relevant evidence is placed before the triers of fact, according to law.” [1]

Light Thrown on the Case by FOI Release of Police Investigation Materials

Soon after the Crown dropped its charges against Bryant, Darcy Sheppard’s adoptive father filed a freedom of information request with the Toronto Police. Among the documents the police sent to Allan, Sr. in late 2012 was a collision reconstruction report. Its lead author was Detective Constable J. Vance; more than fifty other officers contributed to it. That report concludes: “Mr. Bryant and Mr. Sheppard shared responsibility in the death of Mr. Sheppard” [italics added]. It notes that [in the first two sequences of the accident] Bryant “struck Mr. Sheppard not once, but twice from a stopped position. Mr. Bryant’s final actions in the third collision sequence [the one that culminated in Sheppard striking a fire hydrant and his being thrown a further 25 feet or so along Bloor St. West] led to the death of Mr. Sheppard. Mr. Bryant’s failure to stop the Saab when Mr. Sheppard deliberately hung on to the side of the Saab, and driving [sic] his vehicle on the opposite side of the road in an attempt to dislodge Mr. Sheppard from the vehicle gave the appearance of a deliberate act according to witnesses.” Vance’s conclusion, anticipating Bryant’s claim that he had acted in self-defence, adds “[t]here was no physical evidence, or independent witness statements suggesting Mr. Sheppard affected the steering of the Saab, or anything to suggest he physically attacked Mr. Bryant.” Vance goes on, “Mr. Sheppard also is responsible for his actions that led up to the concluding incident [italics added]. All of these actions were unfortunate and avoidable.” (See The Darcy Sheppard Files) The court proceedings of May 25, 2010 made no mention of the existence of this report.

Further Light Thrown On the Case Since 2010

In 2012, Bryant published a memoir, 28 Seconds: A True Story of Addiction, Tragedy and Hope. It revealed the author’s hidden alcoholism during the years he served as a provincial cabinet minister. (Bryant claimed he had been sober for some time before the fatal incident.)

It also disclosed a more legally relevant detail: the statements made by Bryant and his wife concerning the night of Aug. 31, 2009 were not officially recorded until seven months after Darcy Sheppard’s death. They were set down in a “no-prejudice” setting.

The interviews took place (separately) in early April, 2010, and only after Henein’s team had shown the prosecution their entire Scopelliti file. The interviews, with defence lawyers present, were conducted under “without prejudice” conditions by Mark Sandler, the Toronto lawyer who was counsel for the Crown. Surely, much was at stake for Bryant in Henein’s first approach to the Special Prosecutor. Nevertheless, by early April both the defence and the prosecution had agreed that the account Bryant and his wife gave to Sandler could not be used against Bryant in a trial. (That is the legal meaning of a “without prejudice” interview.)

Possibly because 28 Seconds did no favours to Bryant’s public credibility, Marie Henein’s essay “Split-Seconds Matter” reiterates in broad brush the argument she made in 2010. [2] She recalls an “overwhelming” pressure in 2009-10 “to get the right result” [i.e. to win the case]: “The truth is that Michael Bryant was well-loved by the legal community. Many identified with him, many knew him personally, and many were utterly grief-stricken over his situation.”

Notes:

1. Edward Greenspan and George Jonas. Greenspan: The Case for the Defence. Toronto: MacMillan, 1987. 326

2. Marie Henein. “Split-Seconds Matter.” Tough Crimes: True Cases by Top Canadian Lawyers. Eds. C. D. Evans and Lorene Shyba. Calgary: Durance Vile Publications, 2014.

Solitary Confinement is a National Disgrace

January 5, 2015 By Charles Davison

I have been privileged to visit Fort McPherson, in the Northwest Territories, a number of times since 2011. It is a pleasant little Gwich’in community located on the banks of the Peele River southwest of Inuvik, within sight of the Richardson Mountains to the west. It is one of the few remote northern communities connected to the rest of Canada by road: the Dempster Highway. The Dempster name conjures up what is probably the settlement’s best known historical event, for it was from here that Cpl. Norman Dempster left in 1911 to find the R.C.M.P.’s “Lost Patrol” which had disappeared a year earlier. The recovered bodies of the four officers now rest in the little graveyard next to the Anglican church.

Now, another citizen of Fort McPherson is in the news, albeit for very different, if also equally tragic, reasons. This article should be mandatory reading for all Canadians, for it is in our name that our correctional system acts, and responds – or fails to respond – to the needs of our fellow citizens imprisoned within it. Thanks to Patrick White and the Globe and Mail, Canadians have been made aware of the sad story of Eddie Snowshoe, a young aboriginal man who ended up imprisoned in southern Canadian penitentiaries, and who ultimately hung himself in Edmonton Institution in 2010. Mr. White’s expose, “Who Killed Eddie Snowshoe: the fatal sentence of solitary confinement” (Globe and Mail, December 5, 2014), highlights various failings of our federal correctional system, including our continuing use of solitary confinement in our penitentiaries. This article should be mandatory reading for all Canadians, for it is in our name that our correctional system acts, and responds – or fails to respond – to the needs of our fellow citizens imprisoned within it.

Eddie Snowshoe is a male counterpart to Ashley Smith, the young woman who committed suicide in a Kitchener penitentiary in 2007, as correctional officers stood and watched. In Mr. Snowshoe’s case, correctional staff did not stand and watch; indeed, when they discovered his body they did all they could to revive him, but it was by then too late. But his penitentiary history, and that of Ms. Smith, are remarkably similar: both spent inordinate periods in solitary confinement (a total of 2,000 days for Ms. Smith; in Mr. Snowshoe’s case, 162 consecutive days ending when he killed himself. Both showed increasingly serious signs of mental illness and instability; and both had histories of self-harm and attempts at suicide while imprisoned.

Almost 20 years ago, calls began for a “cap” of 60 days in long-term segregation due to its mental health impacts. A year after the death of Ashley Smith, the Correctional Investigator (an ombudsman for inmate concerns and issues) issued a report identifying a number of the flaws and failings which led to her death, and recommending changes to prevent such tragedies in the future. The Correctional Service did not respond; many of the lessons which should have been learned from the case of Ashley Smith were thus ignored or overlooked in the situation of Eddie Snowshoe.

Even now, four years after Mr. Snowshoe killed himself, it seems that our government sees no reason to change its policies or practices concerning solitary confinement of our citizens, including those with mental health problems, despite other western democracies moving away from this barbaric habit. Follow-up stories in the Globe and Mail have detailed how Britain has long attempted to avoid putting inmates into solitary confinement for extended periods (if at all), and how some American states are moving to reduce their reliance upon this practice in light of the well-known significant and long-term mental health impacts upon prisoners held in such conditions. However, according to Mr. White the Correctional Service of Canada declined to comment or take part in his article or research, except for somewhat unresponsive and unhelpful confirmations that Canadian law permits the use of segregation.

At one time, Canadians could take some pride in their correctional system. There was always room for improvement, but in a number of ways we set an example for the world. Other countries, including the United States, sent representatives here to study our methods. As the name suggests, our system long focused upon the correction of criminal conduct, as opposed to emphasizing punishment and retribution. Persons such as Eddie Snowshoe – who, it cannot be denied, committed a serious and violent criminal offence – were sent into custody as punishment, and not for punishment. Once imprisoned, the goal of the system was to attempt to reform and rehabilitate – to “correct”, in other words – so when the inevitable release date arrived, the individual would be better able to rejoin the rest of society.

But in 2014, under a government which clearly sees the lives and well-being of some as worth less than others, we continue to be headed in a different direction. People like Eddie Snowshoe are expendable, or at least not worth saving, because they have broken the law. Thus, Stephen Harper and his Conservatives continue to pass laws leading to more and more prisoners being crammed for longer and longer periods into aging institutions meant to house much lower numbers of people. Even if there was a political will and interest in responding to the special needs of the mentally challenged prisoner (whose numbers are also increasing), resources with which to do so continue to be restricted. Persons such as Eddie Snowshoe – who, it cannot be denied, committed a serious and violent criminal offence – were sent into custody as punishment, and not for punishment. Rather than dealing with such persons in humane and compassionate ways – ways which might actually address their underlying problems, including at least sometimes, the behaviours which led to their imprisonment in the first place – it is easier and more satisfying, as part of a “tough on crime” agenda to simply warehouse these troubles, including in segregation cells deep inside our penitentiaries and prisons.

A Federal Court judge once commented that “as long as they remain inside the walls, [prisoners] are, to our national disgrace, almost universally unseen and unthought of…”. The cases of Smith, Snowshoe and all of the other 1800 inmates who are held in solitary confinement on any given day – and the even larger and growing numbers of prisoners who suffer mental health problems – demand our urgent and on-going attention. They are, after all, our fellow citizens. It has often been said that the measure of a society can be taken by how it treats its most lowly and marginalized members. We are clearly failing this group of fellow citizens, and that reflects badly upon us all.

Contrary to the guiding views and approach of our current government, meeting the needs of the incarcerated mentally ill is not to “reward” criminal behavior, nor does it amount to coddling the undeserving. Rather, effectively and humanely treating the unwell is the most likely way to prevent further reoffending when these citizens are ultimately released back into our communities across the country – and simply the right thing to do.

The views and opinions expressed in this article are entirely those of the author.

Criminal Defence Law in the North: Part Three

May 9, 2014 By Charles Davison

In my earlier two columns, I discussed substantive aspects of criminal law in the North (Part One). I briefly reviewed some aspects of the crimes we deal with in court, some of the underlying causes, and certain aspects of sentencing for those offences (Part Two). I want now to describe some features of daily life as a criminal defence lawyer in this exciting and beautiful land.

Compared to southern Canada, there are relatively few defence lawyers in the Northwest Territories. Most of us are based in Yellowknife, though virtually all of us spend time in other communities when the courts travel there on circuit. This is a tradition which goes back more than a century, to when courts – in the English model – first began sitting in western and northern Canada (at the time, everything between the Great Lakes in Ontario, and British Columbia, were considered the Northwest Territories, and before that, Rupert’s Land). Back then, judges based in Winnipeg, and later, Edmonton would travel throughout the year to settlements scattered across the territory to hear and decide all types of cases. (In fact, the circuit court tradition goes back even further: in medieval times English judges would travel and hold court in towns and villages across the British Isles from time to time.)

Now, most defence lawyers in the N.W.T travel for at least one week each month, with Territorial Court judges, court reporters, Crown prosecutors and various support staff, from Yellowknife to the various smaller communities around the Territory. For most circuits, the Court is based out of the largest of the local communities (Norman Wells, Inuvik or Hay River) and from there the court party flies to the smaller, more remote locations in small chartered aircraft. In Inuvik and Hay River court usually sits in that location for the first two days of the week, and then travels for the rest of that period. From Inuvik we fly to the various communities in the Beaufort Delta (the Gwich’in communities of Aklavik and Fort McPherson) and on the Arctic coast or islands (the Inuvialuit communities of Tuktoyaktuk, Paulatuk, Sachs Harbour and Uluhaktuk). From Hay River, court travels to Fort Resolution, Fort Providence, Fort Simpson and Fort Liard (communities mainly comprised of Chipewyan and Metis peoples, and Slavey peoples, respectively). Now, most defence lawyers in the N.W.T travel for at least one week each month, with Territorial Court judges, court reporters, Crown prosecutors and various support staff, from Yellowknife to the various smaller communities around the Territory. Norman Wells serves as our base point for court in the MacKenzie Valley (Tulita and Fort Good Hope) and also for Deline, a tiny settlement on the edge of Great Bear Lake.

Most of the communities to which we travel are very small (usually between 500 and 800 persons) and access is very restricted; boat in the summer and winter road after freeze up. Air access is usually year round, but often prohibitively expensive. The communities south of Great Slave Lake are also accessible by all-weather highways. We usually arrive in the community around 9:30 or 10:00 a.m., though we are sometimes delayed by weather (sometimes conditions prevent us from traveling into communities completely, and all matters on the court docket then have to be adjourned – usually by telephone – to the next circuit date). Court sits in local community centres and recreational facilities (sometimes we use boardrooms in band (municipal) offices), for as long as necessary to get as many matters completed as possible. Air conditioning is rare, and it is very surprising that in the summer, places in the North can be as hot as anywhere in southern Canada! Judges are often still hearing trials and making their decisions as late as 7 or 8 p.m.,or even later. Then, at the end of a court day, we get back into the small airplane in which we arrived, and fly back to our base point.

So as not to leave any misleading impressions, though, I should point out that we are not flying around in luxury executive jets! The aircraft we most usually fly in are sturdy, dependable, fairly slow Canadian-made Twin Otters which take time to heat up in the winter, and which have no air conditioning to help alleviate the surprising heat in the summer. (More than once I have marveled at how amazingly cold is the very same plane into which I climbed only six months earlier, in the middle of summer when the cabin was a sweltering sauna!) In the wintertime (October to April), flight regulations require that we wear proper snow boots and pants, as well as parkas and other gear in the hope that we may survive any mishaps which take place until we can be rescued if need be.

As one can tell from the map, the places we go as we try to bring the court “to the people” are remote, and exist on the edge of wilderness. We are reminded of this from time to time when wildlife is encountered. The aircraft we most usually fly in are sturdy, dependable, fairly slow Canadian-made Twin Otters which take time to heat up in the winter, and which have no air conditioning to help alleviate the surprising heat in the summer. Once we were met in Fort Liard by a couple of bison grazing across the street from the community centre where court is held. In other communities (also in the southern part of the Territory) the plane sometimes has to “buzz” the airstrip before landing to make sure bison get off the runway and leave the area before we can safely land. And once, after we landed in Fort Good Hope, we had to wait for the R.C.M.P. officers to get us from the airport (in most communities the local constables drive us to and from the airport; there are no taxis in most places) because they first had to deal with some black bears which were wandering through town. And in the summers, at least, the legendary black flies and mosquitoes make their presence known to us all!

But for all of what some might see as “drawbacks” – long days, uncomfortable conditions, the stress of travel and so on – nothing compares to the commute when we are on circuit! For years as I practiced law in Edmonton, I spent 20 or 30 minutes driving through the smog and traffic of suburbia, into the downtown “concrete canyons”, where I then spent my days surrounded by steel and glass.

Now, when I am on circuit my commute is over hundreds of kilometers of untouched wilderness. Nothing compares with the vastness of the Arctic ice as we fly up to one of the small settlements on the coast; or the wetlands of the Beaufort Delta; or the mountain ranges of the Sahtu area around Norman Wells, on the banks of the MacKenzie River. Instead of walking out of court in downtown Edmonton onto the sidewalks or malls, court breaks are now spent in magnificent settings such as the banks of the MacKenzie River, or Great Bear Lake, or the Arctic Ocean! And as clichéd as it sounds, I will never forget the night I finished court and looked up as I left, to see the Aurora Borealis dancing in the sky above!

Much as I enjoyed my career during the years I was in Edmonton, I could never go back to practicing in the middle of a big southern city. I am in the North to stay; this is now my home!