criminal defence

Understanding the Criminal Trial Process

October 26, 2016 By Caroline Wawzonek

Some 20 years ago, a sexual offender broke into a series of homes in downtown Vancouver. Several of the victims visually identified Ivan Henry as the perpetrator based on an in-person line up, a photographic line up or when he was sitting as the accused in court. Given the similarities between the cases, Henry was convicted of ten sexual assaults, declared a dangerous offender and sentenced to an indeterminate jail sentence – literally life.

Years later, a Crown prosecutor saw the same similarities in new sexual assault files. With further investigation, DNA evidence linked a new suspect to the old crimes. Twenty-seven years later, Ivan Henry was acquitted and freed.

Defence lawyers are required by our Code of Conduct to be more than advocates without restraint. We must advocate by “fair and honourable means, without illegality” while “maintaining dignity, decorum and courtesy.”The women who testified against Henry were not liars. They were tragically mistaken in the context of traumatic events. Of note, they were not professionally cross-examined during the trial because Mr. Henry wound up representing himself.

How far can – and should – the criminal justice system go in testing the evidence of someone who is, or at the very least believes themselves to be, a sexual assault survivor?

The Nature of a Criminal Trial

Lawyers are required to follow established Codes of Conduct which say this about the role of lawyers as advocates:

The lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.

For survivor advocates, this quote may seem to ignore the reality of the harm caused by sexual violence. That is not the harm the criminal trial process is intended to address. It is a misconception that criminal trials are about witnesses. A criminal trial is not for victims.

The criminal trial process is centered on preventing the horrifying tragedy of locking up an innocent person in jail for 27 years. It is designed to ensure that if the most extreme power of the state – a denial of freedom and branding as a criminal – is used against a citizen, it is done only where we have used a process that is as fair as possible.

If the trial process determines a person guilty, the justice system, through sentencing, considers the effects of a crime on victims and society in general. At this stage victims can provide personal details through Victim Impact Statements and the Crown speaks for the public about the impacts of the offence. At the same time, the fact that there is a unique individual being sentenced remains central to ensure that a sentence is just and not focused exclusively on retribution or revenge.

Procedural Rights and Protections worth Fighting For

Failing to meet the standard of beyond a reasonable doubt does not necessarily mean that a witness was lying. It may mean that there is too great a possibility that a witness was mistaken. An accused person has protected rights at trial because there has been a deliberate migration away from a Dickensian time where people could find themselves in jail for being on the wrong side of those in power. Our constitutionally protected package of criminal justice rights grew out of a system where an accusation by the wrong person was as good as a conviction. The word of a priest, sheriff or politician was often taken at greater value than that of a baker or cobbler, let alone that of a debtor or a woman. A presumption of truth in favour of any one class of person or group is not justice.

The presumption of innocence and the burden of proof on the state protects us from state persecution by placing an obligation on the state to gather adequate evidence for impartial evaluation. The requirement for the state to prove a charge that it (not a witness) has laid on the high standard of proof beyond a reasonable doubt eliminates the opportunity for persons of power or stature to dictate who can be imprisoned. The standard of beyond a reasonable doubt does not demand certainty, which would often be impossible, but it is much closer to certainty than probability.

The purpose of a criminal trial is for an impartial judge to decide whether a Crown prosecutor has presented sufficient evidence, legally collected, to leave them with no reasonable doubt that a person otherwise presumed innocent is guilty of a crime.

There are other protections for complainants in a sexual assault trial. First, the definition of consent is based on the subjective perception of the complainant. When a witness says that in his or her mind she did not consent to an act, then that is evidence of non-consent. Second, witnesses may have the option to give their evidence outside the courtroom via closed circuit television, behind a screen or with a support person sitting beside them.

Of note, given the public destruction that can result from a sexual assault accusation, a great many accused would like nothing more than a non-public courtroom. The history of open courtrooms was meant to prevent the harm of such powerful decisions being done without the opportunity for public scrutiny.

The Role of the Defence

A defence lawyer plays a key role in this system. The defence lawyer is often the only person standing beside a person accused. That person has been detained, arrested, charged, often interrogated, sometimes deprived of their freedom and is facing an accusation supported by a police force who have gathered evidence against him or her and the powers of the Crown to prosecute. It has been my experience that most accused, including well-educated and outwardly sophisticated individuals, are overwhelmed and intimidated.

The individual accused is not left to advocate. The defence assists in explaining and preserving the rights of all citizens. The defence is critical in testing the prosecution’s evidence in order to ensure that only evidence gathered fairly according to law is used in a criminal trial. The defence works to ensure that only where the evidence meets the burden of beyond a reasonable doubt will a person be convicted.

Lies or Mistakes

Failing to meet the standard of beyond a reasonable doubt does not necessarily mean that a witness was lying. It may mean that there is too great a possibility that a witness was mistaken. Or it may mean that although a witness appears sincere, there is too great a possibility that their memory or perception is not sufficiently reliable to meet the standard.

What is more contentious is the extent to which a lawyer can pursue questioning of a complainant while remaining courteous in the courtroom.Another common outcome in a sexual assault trial is that the judge does not know who to believe. Again, that is very different from saying that she or he does not believe a victim. All we are able to discern is what each person credibly believes about what occurred. This is surely unsatisfying for a victim who feels violated. It is also not a basis on which to convict someone of a serious criminal offence.

But why does the accused get to sit in court and answer nothing? Recall that a trial is not about a witness. It is about the prosecution of the accused. In that context, the accused’s right to silence tries to level the tremendous power imbalance between an individual citizen and the powers of the state. We do not demand that citizens prosecute or incriminate themselves.

Whacking the Complainant

The criminal trial process is centered on preventing the horrifying tragedy of locking up an innocent person in jail for 27 years. This includes advocating within the bounds of the laws that evolved to remove erroneous stereotypes about gender and sexuality. For example, defence counsel cannot ask a complainant about any sexual activity, consensual or otherwise, with the accused or anyone else, without prior permission from the court. That permission will not be granted if the defence lawyer’s only purpose is to suggest that the complainant is inherently less credible or presumptively more likely to consent because of some sexual activity other than the incident at issue.

Lawyers must challenge a complainant with their client’s core defence. Lawyers are required by law to give every witness a fair opportunity to respond to the basic premise on which their evidence is being challenged. If the accused’s defence is one of consent, a defence lawyer is obliged to put this to the complainant. If the defence is a denial, then similarly, a defence lawyer is required to suggest to the complainant that what they have said is false or completely mistaken. The rationale is that it allows the other side to provide a response. In practice, this confrontation will be, at best, uncomfortable.

What is more contentious is the extent to which a lawyer can pursue questioning of a complainant while remaining courteous in the courtroom. Some lawyers, like people in any interpersonal context, use vinegar while others use honey to achieve strategic purposes. The Crown can, and does, object when questions become irrelevant, which might include questions clearly meant only to demean a witness. It is also the role of a judge to control the decorum in a courtroom.

Like any -rganized and -un system, our criminal justice system is subject to continuing improvements. To the extent that society’s views on gender and sexuality evolve, so too should our justice system. Similarly, as our understanding of human perception and memory improve, our ability to evaluate memory will become better attuned. This will ensure that people who have been victimized get effective support and only those society is certain are responsible for a crime are convicted.

Bench Press 39-5: Duress as a Defence to Murder

June 17, 2015 By Teresa Mitchell

For the first time in Canada, an appeal court has upheld the use of duress as a defence to a charge of murder even though the Criminal Code explicitly rules it out. The Ontario Court of Appeal outlined the factors necessary to support both a statutory and common law defence of duress, for people who find themselves in a “kill or be killed” situation.

There must be an explicit or implicit threat of present or future death or bodily harm. The threat can be directed at the accused or a third party;
The accused must reasonably believe that the threat will be carried out;
There is no safe avenue of escape, evaluated on a modified objective standard;
A close connection in time must exist between the threat and the harm threatened;
The harm threatened by the accused must be equal to or no greater than the harm threatened; and
The accused cannot be a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that the threat or coercion to commit an offence was a possible result of this criminal activity.

The Court of Appeal ruled that even if the Criminal Code prohibits the defence of duress, it is available at common law. It noted: “Canadian criminal law does not, however, regard duress as a justification…duress is an excuse. The person excused from criminal liability is not said to have accomplished a greater good, but is rather said to have had no realistic choice but to act as she did.”

R. v. Aravena, 2015 ONCA 250 (CanLII)

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.

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!

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

Criminal Defence Law in the North: Part Two

March 6, 2014 By Charles Davison

In my last column (Part One) I briefly sketched out some aspects of substantive criminal law as it is enforced and applied in the Northwest Territories. I want in this contribution to comment upon some underlying factors which, at least sometimes, lead to criminal conduct, as well as aspects of sentencing.

At the end of my last piece I noted that the courts now recognize and accept that Canadian historical efforts to subjugate aboriginal citizens and communities have led to the present situation, where the incidence of poverty, family violence, substance abuse and other social challenges are higher among First Nations Canadians than others.

Problems which frequently play a role in criminal misconduct are not addressed as quickly or easily in the North as would be the case in a southern location. Social services, family support, mental health and similar programs are far more difficult to access in the Northwest Territories compared to the situation in a southern province. Of course, nothing in what I have written in this or my earlier column should lead to the conclusion that all northerners are alcoholics or criminals or wounded and lost individuals. It is well-known that the incidence of suicide is higher among aboriginal Canadians than other groups, and the problem is even more acute in the North. Individuals who have lost loved ones to suicide or through other tragedies, such as drownings or hunting mishaps (I have acted for persons who have lost two or three family members who sometimes simply never returned from hunting trips out on the Arctic ice) are often left to grieve without counseling or support programs and this too sometimes leads to anger and criminal misconduct as the individual attempts to find outlets for pent up emotions and feelings of tremendous loss.

Unfortunately, economics being what they are, treatment options for northern Canadians are very limited. In 2013, the only residential treatment facility for substance addictions in the Northwest Territories (located at Hay River) was closed by the government in favour, it said, of treatment programs which would be more locally based in communities. The government says it will focus on treatment regimes which are closer to traditional ways, and which will include components such as going on the land and engaging in other cultural practices in order to address and heal addictions and their underlying causes. In the meantime, citizens of the Northwest Territories now have to go to southern Canada if they are in need of intensive substance abuse treatment and counseling, even though this means further removal from family and other support systems, and from more appropriate cultural settings.

In other ways, as well, the impact of punishment can be different in the North, compared to other, more populous parts of Canada. Some efforts are made to accommodate cultural needs and practices within the correctional institutions in the Northwest Territories, but there can be no doubting or downplaying the dislocation and isolation felt by an offender from a small Inuit community such as Sachs Harbour (located on Banks Island, in the Arctic Ocean) who is brought south to Yellowknife to serve time in an institution here. Unemployment is high in many communities so the payment of fines can be a challenge, and some smaller settlements do not have the infrastructure necessary to establish and operate a fine-options program (the “community service work” option which allows offenders to perform work in the community in order to satisfy the payment of a fine).

Economics also adds to the severity of a sentence of imprisonment in the North. The main correctional centres for male offenders are in Yellowknife and Hay River. A smaller, lower security establishment is in Fort Smith, where the Territories’ only female custodial institution is also located. In one or two of the larger RCMP detachments (in places like Inuvik) it is sometimes possible for offenders to serve short sentences on weekends, but in most situations where imprisonment is ordered, the individual must be transported to one of the jails, which usually means separation by hundreds or thousands of kilometers from family, friends and community support. And unlike the situations in the South, where almost everywhere is connected by road to everywhere else, in the North most communities rely upon air travel as their connection to the outside world. However, the cost of travelling by air is usually prohibitively expensive, with the result that inmates of a correctional facility simply do not see their family members for the duration of their sentences. Some efforts are made to accommodate cultural needs and practices within the correctional institutions in the Northwest Territories, but there can be no doubting or downplaying the dislocation and isolation felt by an offender from a small Inuit community such as Sachs Harbour (located on Banks Island, in the Arctic Ocean) who is brought south to Yellowknife to serve time in an institution here. And any person ordered imprisoned for more than two years may find him or herself sent to a federal penitentiary in southern Canada, where the effects of removal from family and community are magnified exponentially.

A unique aspect of practice in the North is that the courts (and even Crown prosecutors) appreciate that such traditional practices as “going on the land” have rehabilitative value for individuals who have come into conflict with the criminal law. Almost without exception, most offences are committed when the accused are living in a community where there is access to alcohol. The very same persons, when travelling or living in the bush or on the tundra – and away from the lure and effects of liquor – almost always are valued members of their community, who are able to assist others by hunting, trapping and fishing to supply their family and others with food and supplies. More than once I have read letters of support from persons who express the highest respect, and who highly value, the skills of a client when he is “on the land” and able to provide for and assist others, including children and elders, who are not able to provide for themselves. All too often, the same person – my client – has committed terrible acts of violence when back in town, drinking, and acting out unresolved issues of anger and loss. Because of the healing and rehabilitative effects of allowing individuals to spend time on the land, living in ways which are closer to their traditional and cultural roots, judges are often very willing to accommodate such possibilities and practices when it comes to fashioning probation orders, firearms prohibition orders and similar forms of punishment.

Of course, nothing in what I have written in this or my earlier column should lead to the conclusion that all northerners are alcoholics or criminals or wounded and lost individuals. A unique aspect of practice in the North is that the courts (and even Crown prosecutors) appreciate that such traditional practices as “going on the land” have rehabilitative value for individuals who have come into conflict with the criminal law. Northern communities should not be seen as hotbeds of rampant crime. Most northerners, including those who have suffered in their lives, do not break the law, and even those who do often change their lifestyles and habits over the years, sometimes to the extent that they ultimately become respected elders and leaders in their communities. Just as it is distressing to hear the tragic and sad tales of personal loss and grief which are the histories of many of our clients, it is equally encouraging and up-lifting when we encounter such examples of resilience and strength.

Criminal Defence Law in the North: Part One

January 6, 2014 By Charles Davison

It seems that almost every lawyer who has travelled from southern Canada to practice law “North of 60” ends up writing about his or her experiences at some point. Almost all of those who are drawn to this part of Canada are struck by the geographical and physical beauty of this land, and by the personal, cultural and social situations and histories of the peoples who have lived here for generations before us.

I confess I am no different. I first started coming to the Northwest Territories to travel on circuit with the Territorial Court in the spring of 2010 when I was still living and working in Edmonton. Over the following two years the place, the people, and the experiences, grew upon me to the extent that after more than 25 years of practicing law in Edmonton I decided to close my office there and to resettle in the north. At the end of June, 2012 I made my last court appearances in Alberta, packed my car, and drove north to begin a new chapter of my career and my life. For the last 18 months I have worked as criminal defence counsel in Yellowknife as a member of the legal aid organization (the Legal Services Board of the Northwest Territories) which provides representation for the indigent who find themselves in conflict with the law.

Canadian history includes some dark and terrible moments involving efforts by white European society to subjugate and destroy aboriginal communities and culture on a widespread basis.

In the next three columns I will try to describe some aspects of criminal defence practice in this part of Canada’s north, from both a personal and professional perspective. In so many ways and on so many levels, this setting is one of stark contrasts: the land is at once beautiful and intimidating; and the climate varies from surprisingly hot and dry in the summer, to cold and dark in the winter. The communities where we work as defence counsel also reflect contrasts, as they are both afflicted by deep-rooted social problems and personal tragedies, and blessed with resilient individuals and aspirations which cannot be denied.

In general terms, the substantive law is the same here as it is in every other part of Canada. The Criminal Code applies across the country, of course, and it is enforced in the Northwest Territories (and the other territories as well) by the R.C.M.P. (there are no municipal or territorial police forces in Canada’s north). Just as the police operate complicated undercover operations to detect drug trafficking, in the north they also investigate and charge those involved in bootlegging operations. As is the case everywhere, the charges laid and prosecuted in the courts here reflect different aspects of the realities of life in this part of the world. Sadly, the abuse of alcohol is a widespread problem in the Northwest Territories, and this is apparent from the overwhelming number of criminal files which involve the intoxication of one or more of the persons involved in the events in question. Sexual assaults are a disproportionately frequent occurrence, usually committed while one or both of the persons involved are extremely drunk. As well, the incidence of family violence is high, and again, is often fueled by the excessive consumption of alcohol usually, but not always, by the perpetrator.

As is the case with the trafficking of illegal narcotics in southern Canada, bootleggers are active in the north, with the result that even in remote, legally “dry” communities it sometimes seems to be very little problem for individuals to purchase bottles of liquor, the consumption of which leads to much personal, family and community-wide turmoil and distress. Just as the police operate complicated undercover operations to detect drug trafficking, in the north they also investigate and charge those involved in bootlegging operations. Shipments are sometimes intercepted as they are brought in to isolated communities by plane or boat, the contraband confiscated and destroyed, and charges laid under the Territorial liquor laws.

The differences of our northern setting are apparent in other situations too. For example, in many communities, quads and snowmobiles are used as often as trucks and automobiles. Even in Yellowknife, with the exception of four blocks in the downtown core, snowmobiles are a legal and common means of transportation. This is often reflected in impaired driving cases: in some places there are as many impaired driving charges laid in relation to the operation of snowmobiles, for example, as cars or trucks. I should add, however, that impaired driving is as much frowned upon here as anywhere else in Canada. Members of the communities are increasingly reporting suspected intoxicated drivers to the police, who often have little difficulty in locating and arresting offenders. Most places are so small everyone, including the police, knows who everyone else is, and where they live. Persons who are convicted and who are then ordered not to drive again are specifically warned that the court’s order includes the operation of snowmobiles and quads.

Even now, two or three generations removed from the era of the Residential Schools, the children of those who suffered abuse and mistreatment in those institutions often end up before the courts.

Over the last 10 or 15 years, Canadian courts have become more aware of the historic and systemic factors which have led so many aboriginal Canadians into conflict with the law. Canadian history includes some dark and terrible moments involving efforts by white European society to subjugate and destroy aboriginal communities and culture on a widespread basis. The Residential Schools are perhaps the most well-known manifestation of this history of colonialism, but there are other examples too, including the destruction of the traditional way of life for those who were historically a nomadic society. In 1999 and again in 2012, the Supreme Court of Canada specifically recognized and confirmed that these historical events continue to play a role which contributes to the well-known fact that, compared to their numbers in the general population, aboriginal citizens make up a disproportionately high percentage of prisoners and inmates in our correctional centres and institutions.

Every day in northern courts we see on a very personal level the sad results of these historical Canadian policies. Even now, two or three generations removed from the era of the Residential Schools, the children of those who suffered abuse and mistreatment in those institutions often end up before the courts. They have committed offences, usually while intoxicated, fueled by deep-rooted anger and resentment. These feelings can be traced back to the upheaval and despair in their earlier lives as their parents tried to cope with their own scars and wounds left by mistreatment at the hands of priests, nuns, teachers, and others into whose care they were forced. One has only to hear a single such personal history – of a poverty-stricken childhood plagued with parental drinking and violence as a father or mother (and sometimes, both) tried to come to terms with their own childhood demons – to realize that such tragedies really do have an inter-generational ripple effect. The events of many years ago continue to have a very real and direct impact on the lives of individuals to this day.

In my next column I will review and discuss some unique and special aspects of sentencing offenders in a northern setting.