criminal law Archives - LawNow Magazine

New Resources at CPLEA

January 4, 2017 By Teresa Mitchell

LawNow is pleased to announce the creation of a new Department, called New Resources at CPLEA, which will be a permanent addition to each issue. Each post will highlight new materials at CPLEA. All resources are free and available for download. We hope that this will raise awareness of the many resources that CPLEA produces to further our commitment to public legal education in Alberta. For a listing of all CPLEA resources go to: www.cplea.ca/publications

CPLEA has created a series of resources for frontline service providers working with vulnerable individuals. The five booklet series includes:

The Canadian Legal system;
Helping Clients with Legal issues;
Family Law in Alberta;
Criminal Law in Alberta; and
Renting in Alberta.

Each of these booklets gives information about the law and the legal system in clear, concise language, gives practical suggestions for how service providers can help their clients with legal issues, and lists further resources that might be helpful.

Users can view and download these publications for free or they can be ordered in booklet form by visiting www.cplea.ca/publications/.

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.

Technology Transforms Criminal Law

September 3, 2015 By Charles Davison

As with society in general, the practice of criminal law has changed significantly over recent decades as a result of the amazing growth and development of technologies which, until now, were only ideas and imaginings of science-fiction writers. The lawyer of 20 or 30 years ago would likely be startled to see some of the innovations which are now commonplace in our courtrooms. Developments have taken place in virtually all aspects of this field, from the investigation of crime and the gathering of evidence, through to the prosecution and defence of cases in court. Hundreds of pages of legal texts and judicial decisions have been written discussing these changes. Here are some of the most notable ways in which modern technology has changed the practice of criminal law.

Evidence Gathering by Police

Perhaps the most significant technological leap in the area of evidence gathering over the last two or three decades is in the development of scientific means to detect and identify human DNA.Perhaps the most significant technological leap in the area of evidence gathering over the last two or three decades is in the development of scientific means to detect and identify human DNA. Until the late 1980s, the best science could offer in the field of biological analysis of human fluids and substances were generalities: blood types could be matched, for example, and hair samples could be compared. When it came to linking such items to a particular person, however, the most that could be said was that one sample was similar to another.

With the development of the technology needed to break down and analyze Deoxyribonucleic Acid (“DNA”), all of that changed. DNA is often referred to as our individual genetic “blue print”. Because each human being has a different code contained in our DNA at the cellular level, it is now possible for scientists to virtually match the DNA from one sample of human fluid or tissue, to that in another. (I have used the phrase “virtually match” because in fact, the results of comparisons are never described in terms of actually matching; rather, the odds of the two samples being from different persons are usually offered instead. But because these numbers are usually astronomical in nature – often one in several trillion – it ends up being “virtually” the same thing as an actual match.) Now, for example, the DNA of a victim which is found in blood on the clothing of a suspect or accused will provide very powerful evidence in court. Even more damning is the identification of the DNA of an accused person in cases of sexual assault. And, it should not be completely forgotten that DNA can also be used to exonerate innocent persons. According to some sources the first time DNA was used in a criminal case was to demonstrate that the accused person was not the culprit in a 1986 trial in England.

Huge technological advances have also taken place since the 1970s in electronic surveillance over citizens by the police and other state authorities. Long gone are the days when police had to literally “tap” into telephone landlines in order to intercept and record the private conversations of other persons.Long gone are the days when police had to literally “tap” into telephone landlines in order to intercept and record the private conversations of other persons. Now, with computers and a vast selection of other electronic measures, it is possible to obtain all types of electronic communications remotely, without the targets ever having the slightest clue as to what is taking place. Te main – though certainly not the only – area where this is seen is in the investigation and prosecution of drug trafficking operations.

Cellular telephone technology has proven useful in other ways, as well. For example, cellphones which have a working battery constantly send a signal to the closest cellphone towers even when they are not actually being used. Such signals are always recorded and, if obtained by the police, can be analyzed and interpreted so as to pinpoint, often to within a few feet or metres, where the cellphone was located at a particular time. Such evidence can be very useful in placing a suspect – or at least, his or her phone – in the vicinity of a crime scene or occurrence at a time which is of significance in the investigation.

Just as computers are now powerful tools which aid the police and other state agencies in the investigation of crime and the gathering of evidence, they are also vast receptacles of information which can be retrieved and provided in court to support criminal charges. It is sometimes surprising that persons who have committed crimes will lodge within their computers and similar devices extremely incriminating details and records which, when recovered by police computer specialists, help to prove their guilt in court. It is sometimes surprising that persons who have committed crimes will lodge within their computers and similar devices extremely incriminating details and records which, when recovered by police computer specialists, help to prove their guilt in court. People have been convicted based upon videos, photographs and similar recordings of criminal activity; detailed diaries and journals containing confessions and other descriptions of criminal activity; and financial transactions and records, all found within personal electronic devices.

Our courts have commented a number of times about the special status of computers in our day and age. Because of the vast – almost limitless – amount of private personal information which can be stored within these devices the courts have said they must be treated effectively as separate “places” or receptacles of information under our search and seizure laws. Thus, if the police find a computer as they search a home, car, or other place, they are not entitled to open it and start examining its contents unless they first get permission from a judge in the form of a search warrant. By comparison, if the police find a briefcase, or filing cabinet or locked cupboard door as they search a home or office, they are entitled to open it and search its contents.…if the police find a briefcase, or filing cabinet or locked cupboard door as they search a home or office, they are entitled to open it and search its contents.

Computer Crime

The area where computers are actually central to the offensive conduct itself is in the possession and circulation of child pornography. In past times, accused persons might be prosecuted if they were found in possession of drawings or photographs of children engaged in sexual activities. Now, with computers and the Internet, it is not uncommon for police to discover thousands of images and videos on the computers of persons being investigated for child pornography offences. In fact, it was only about 20 years ago that Parliament first enacted those parts of our Criminal Code which deal with this area of criminal activity and began equipping police with the tools needed to investigate and prosecute these horrible offences.

Conduct of Court proceedings

Technology has also changed a number of ways in which court proceedings take place. One of these is in the area of legal research and the preparation of arguments for court. In the not-so-distant past, lawyers’ offices and courtrooms held large libraries of published case reports. Now, however, this has become relatively rare, because most legal research is conducted using various online databases and computer search tools. Law libraries are shrinking in numbers and size as lawyers, judges and members of the public turn to the Internet and various court and legal websites. Virtually every written decision (and many rulings delivered orally as well) can be found somewhere on one of the databases used by lawyers and judges.

Technology is changing the courtroom in relation to the record-keeping of the proceedings. Until recently, the court staff at every proceeding included a court reporter whose role was to keep a written transcript of everything said by any person while the court was in session. While tape recorders have long provided a “back up” function for the reporters, such recordings were not considered reliable enough to be used on their own. The court reporter’s version of the transcript was considered the official record of the proceedings. Now, however, court reporters are being completely replaced by digital recording equipment operated by the clerk of the court, as governments across the country have decided that these systems are cheaper. As a result, court reporters are disappearing from the scene.

A further use for technology in the courtroom is in the increasing use of video connections in place of personal appearances of some witnesses and sometimes, for accused persons as well. The Criminal Code now allows a party to apply to the trial judge for permission to call a witness to testify by way of a video link…The Criminal Code now allows a party to apply to the trial judge for permission to call a witness to testify by way of a video link. Especially where the witness’s evidence is expected to be of a relatively minor or non-contentious nature, using a video link reduces monetary the costs and the personal inconvenience of travel for the witness.

Similarly, accused persons in custody are now able to make at least some of their court attendances by video link. In many situations, being required to attend in person means the accused must be transported from jail to the courthouse, for even short appearances. They often must then spend the remainder of the day in a small holding cell until the authorities are able to return them to the remand facility. Once back at the jail, the prisoner is subjected to security procedures such as personal search to ensure that he or she has not come into possession of any form of contraband (drugs, weapons, etc.) while away from the institution. Making the appearance by video connection means the accused avoids all of these measures and also reduces public expense.

As technology continues to evolve, advance and change, so too will its use in our courtrooms. However, the basic strength of our court system is its humanity. For all its flaws and failings, our system is still the product of human beings, and still requires direct input, assessment and decision-making by individuals. In the coming years this may be the challenge: maintaining that “human touch” in the face of an increasingly pervasive role of technological advances and tools.

R v Fearon : Can Police Search a Cellphone Upon Arrest?

September 3, 2015 By Christine Chong

Important Update: Please see the article by Juliana Ho about the Supreme Court of Canada ruling in R. v Fearon. The Supreme Court of Canada decided that the police search of Mr. Fearon’s cellphone did breach his Charter s. 8 right to be free of unreasonable search and seizure but decided that despite this breach, the evidence found on his cellphone could be used against him at his trial.

Introduction

On February 20, 2013, the Ontario Court of Appeal released its decision on whether the police are required to obtain a warrant before searching cellphones that are seized from persons they have arrested. [R v Fearon, 2013 ONCA 106 ] Based on the doctrine of ‘search incident to arrest’, the Court ruled that a warrant is not required if the cellphone is not password protected or locked in any other way.

Facts

On July 26, 2009, Mr. Fearon and two other men were arrested for robbing a jewelry merchant with a firearm. At the time of arrest, the police conducted a pat-down search of the suspects and discovered a cellphone on Mr. Fearon. It was turned “on” and had no password restricting access. The cellphone contained photographs of a gun, identical to the one used for the robbery, and cash. The phone also contained an incriminating text message. At the police station, other officers further searched the cellphone.

Mr. Fearon asked to speak to a lawyer, but was unintentionally left alone at the station for five hours without being able to contact a lawyer. When the officers returned, Mr. Fearon voluntarily confessed his involvement in the robbery before speaking to a lawyer.

Mr. Fearon challenged the admissibility of the cellphone’s content as evidence based on his Canadian Charter of Rights and Freedoms right to be secure against unreasonable search and seizure (section 8 of the Charter). He also argued that his confession should be excluded from evidence because the delay between his arrest and being able to contact a lawyer breached his Charter right to counsel (section 10(b).

Procedural History

On December 23, 2010, the Ontario Court of Justice found that the police search of Mr. Fearon’s cellphone did not breach section 8 of the Charter. The Court stated that the arresting officer had a reasonable belief that the cellphone might contain evidence relevant to the robbery. This meant that the common law doctrine of ‘search incident to arrest’ applied. Hence, the search did not require a warrant. The fact that the cellphone was not password-protected reduced the strength of Mr. Fearon’s expectation of privacy and thus his argument for Charter protection. As for the right to counsel, the Court foundMr. Fearon challenged the admissibility of the cellphone’s content as evidence based on his Canadian Charter of Rights and Freedoms right to be secure against unreasonable search and seizure that there was a breach, but it was not serious enough to exclude Mr. Fearon’s confession from being used as evidence.

Mr. Fearon appealed the trial decision to the Ontario Court of Appeal. He asserted that the search of his cellphone content at the time of arrest violated his Charter right to be secure against unreasonable search or seizure.Mr. Fearon also argued that the breach of his right to counsel was serious enough for the Court to exclude his confession from evidence.

Issues

1. Did the search of Mr. Fearon’s cellphone violate his section 8 Charter right to be secure against unreasonable search or seizure?

i) When is the common law doctrine of ‘search incident to arrest’ justified? [Cloutier v Langlois, [1990] 1 SCR 158 at para 61, 53 CCC (3d) 316]

ii) Does the common law doctrine of ‘search incident to arrest’ apply to the cellphone search in this case?

iii) Should cellphones be an exception to the common law doctrine of ‘search incident to arrest’?

iv) If Mr. Fearon’s Charter right to be secure against unreasonable search or seizure was violated, what is the legal remedy?

2. Was Mr. Fearon’s right to counsel under section 10(b) of the Charter breached? If so, is Mr. Fearon entitled to a legal remedy?

Decision

The Ontario Court of Appeal upheld the trial court decision and found no breach of section 8 or of section 10(b) of the Charter. The Court ruled that the absence of a password or any other security barrier on a cellphone permits the police to search upon arrest without a warrant. Hence, the common law doctrine of ‘search incident to arrest’ applies to the cellphone search in Mr. Fearon’s case.

Court’s Analysis

1. Did the search of Mr. Fearon’s cellphone violate his Charter right to be secure against unreasonable search or seizure?

i) When is the common law doctrine of ‘search incident to arrest’ justified?

a. Concept and purpose of ‘search incident to arrest’ doctrine under common law

As a general rule, the police must obtain a warrant before searching a person or a place to investigate crimes. [R v Wong, [1990] 3 SCR 36] However, an exception to this rule is known as the doctrine of ‘search incident to arrest’. To ensure proper administration of justice, this doctrine allows the police making a lawful arrest to conduct a brief and limited search of a person or place without a warrant. Such search is considered to be part of the normal procedure of making an arrest, hence, not in breach of the Charter.

b. What is the justified scope of the ‘search incident to arrest’ doctrine?

Under the doctrine of ‘search incident to arrest’, the police power to search without warrant is a limited one with a number of preconditions. First, the officer must provide a valid reason for the warrantless search related to the arrest – one that a reasonable person in the same situation as the officer would have. [R v Caslake, [1998] 1 SCR 51, 155 DLR (4th) 19] The search must also be brief. Unless there is contradicting evidence, the warrantless search will be considered to be part of the normal procedure of making an arrest.

To date, the Supreme Court of Canada has permitted only two exceptions to the common law doctrine of ‘search incident to arrest’ in relation to section 8 of the Charter. The first exception concerns the police seizure of a suspect’s bodily samples (bodily substances such as blood, urine or saliva collected for forensic DNA analysis). The second exception involves the searching of homes during an arrest. The police must obtain a warrant in these two circumstances because they require a high level of privacy protection.

ii) Does the common law doctrine of ‘search incident to arrest’ apply to the cellphone search in this case?

The Court found that the search of Mr. Fearon’s cellphone at the time of arrest and the search at the police station fell within the justified range of ‘search incident to arrest’. At the time of arrest, the officer had reason to believe that Mr. Fearon may have communicated via cellphone with the two other suspects. The officer also knew that suspects sometimes take photos of the robbery which gave him reason to believe that there might be incriminating photos on the cellphone. This knowledge amounted to reasonable belief that the search of the cellphone content would yield relevant evidence. The further search conducted by other officers at the station pushed the limits of a brief search incident to arrest. However, the Court upheld the trial decision that it was an extension of the search at the site of arrest.

iii) Should cellphones be an exception to the common law doctrine of ‘search incident to arrest’?

The Court confirmed that if a cellphone discovered upon arrest is not locked in any manner, making the contents readily available to other users, and if the officer has a reasonable belief that the cellphone contains evidence relevant to the arrest, a warrantless search is justified as ‘search incident to arrest’.

…the Court refrained from establishing a standard rule for cellphones with respect to search incident to arrest. It was determined that a case-by-case approach is more suitable.However, the Court found it impossible to generalize or to create a rule regarding the need for warrants to search cellphones upon arrest. While the Court recognized the private nature of information on cellphones, the ability of the police to search a cellphone upon arrest may vary depending on the capacities and functions of the device. For example, a cellphone with simple and limited functions such as making calls and taking pictures may require a different search procedure from a phone that can store confidential documents, videos, voice recordings, and other forms of data. In effect, the Court did not provide a general rule that limits or expands police power to search and seize cellphones upon arrest.

iv) If Mr. Fearon’s Charter right to be secure against unreasonable search or seizure was violated, what is the legal remedy?

Under section 24(2) of the Charter, if the police search of Mr. Fearon’s cellphone violated his Charter right to be secure against unreasonable search or seizure, the Court must exclude the cellphone content from being used against Mr. Fearon at trial. However, in this case, the Court found that there was no violation of Mr. Fearon’s Charter right because the cellphone search fell within the justified scope of ‘search incident to arrest’.

2. Was Mr. Fearon’s right to counsel under section 10(b) of the Charter breached? If so, was Mr. Fearon entitled to a legal remedy?

Mr. Fearon’s confession was voluntary and the police fully informed him of the consequences of making statements that might be used against him as evidence in court proceedings. The Court ruled that the delay in allowing Mr. Fearon to contact a lawyer breached section 10(b), but that the breach was not serious enough to grant him a legal remedy.

Significance of the Ruling

Based on the facts of this case, the police can search non-locked cellphones for information related to the crime at the time of arrest. Doing so without a warrant does not breach the Charter right. This widens the variety of evidence admissible in criminal proceedings. At the same time, it limits one’s expectation of privacy with respect to information contained on cellphones. As such, the Ontario Court of Appeal did not recognize that the information on cellphones requires the same high level of privacy protection as a person’s bodily sample or a person’s home upon search or seizure.

However the Court refrained from establishing a standard rule for cellphones with respect to search incident to arrest. It was determined that a case-by-case approach is more suitable. In its ruling, the Court of Appeal quoted the reasons of Justice Sharpe from the Court of Justice decision:

“[It is] neither necessary nor desirable to attempt to provide a comprehensive definition of the powers of the police to search the stored data in cellphones seized upon arrest. It may be that some future case will produce a factual matrix that will lead the court to carve out a cellphone exception to the law as articulated in Caslake. This is not that case.”

In effect, the decision left open the issue of whether a warrant is required to search sophisticated cellphones like smartphones that The Court ruled that the absence of a password or any other security barrier on a cellphone permits the police to search upon arrest without a warrant.can store more confidential and diverse information. It also left open the question of whether the police can search password-protected cellphones without a warrant as opposed to the non-locked cellphone dealt with in R v Fearon. Lastly, the applicability of the decision to other portable electronic devices such as tablets, which include functions similar to cellphones, may raise debate on the extent to which the administration of justice outweighs one’s privacy interests and section 8 Charter rights.

This article was originally published in the Review of Constitutional Studies, June 2013 issue of the Centre for Constitutional Studies, University of Alberta, and is reprinted with permission.

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.

A Judge Balances Controversy with Compassion

May 7, 2015 By Teresa Mitchell

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing it was wrong. – Criminal Code of Canada, Section 16

This is known as the “Not Criminally Responsible” principle, or NCR. Deciding that an accused person is not criminally responsible is one of the most controversial and difficult decisions that a trial judge must make. Cases involving NCR often attract a great deal of media attention due to sensational fact situations, and the reasoning behind an NCR finding can be mystifying to the public. Examples include the Vincent Li case, where Mr. Li butchered a fellow traveller on a Greyhound bus, and the case of a Calgary wife who shot her well-known oilman husband. Another such case was heard in Nova Scotia in 2014 (R. v. Race, 2014 NSSC 6 (CanLII)) and the trial judge, Justice Kevin Coady, gave some insight into how a judge reaches this conclusion and his own sensitivity to the emotions and frustrations of the families involved.

Glen Race murdered two Halifax men, Paul Knott and Trevor Brewster in 2007. He pled guilty to both charges and then made an application to be found not criminally responsible (NCR) under s. 16 of the Criminal Code. The reactions of the families of Mr. Race and the murdered men give some insight into how difficult NCR decisions can be. Justice Coady of the Supreme Court of Nova Scotia reviewed the law and the legal requirements for a convicted person to be found not criminally responsible. He concluded that Mr. Race suffered from a mental disorder which made him incapable of knowing that his actions were wrong. Three psychiatrists, both for the Crown and the defence agreed that Mr. Race qualified for a finding of NCR.

An agreed Statement of Facts from the three doctors stated that he suffered from schizophrenia and that he believed that he was a vampire slayer and a godlike entity ordered by angels to cleanse the world of demons and sin. Justice Coady wrote: “After considering all of the evidence, I am satisfied that Mr. Race qualifies for an NCR defence…he suffered from a mental disorder on both occasions, that being schizophrenia. I am also satisfied that Mr. Race, as a result of his mental disorder, did not realize that these actions were morally wrong. I am satisfied that he really believed that they were necessary to achieve his psychotic mission.”

The reactions of the families of Mr. Race and the murdered men give some insight into how difficult NCR decisions can be. The victim impact statement from the sister of one victim said “I hate him for what he did to our families. In his judgment, Justice Coady reached out to both families with sympathy and understanding. He also made it clear that he understood the concerns of the public. We have to go to a graveyard and talk to a cold gravestone. It doesn’t seem fair to me.” Mr. Race’s mother said: “We hope that the families, the Brewster and Knott families, will find forgiveness some day in their hearts, and they can go on and be peaceful.” These two statements reveal the deep and painful divide between the two sides in cases such as these. It seems impossible that there could ever be any understanding or empathy between the families. Perhaps this is what motivated Justice Coady to make some interesting and compassionate observations in his written reasons.

First, he reached out to the families of the murdered men and said that in the context of a NCR finding:

I want to add to the bottom line in an effort to assist the victims’ supporters, and the general public, to understand why NCR is the proper outcome for Mr. Race. It is important to realize that Mr. Race, his family and friends are victims as well. They are victims of the cruel and unforgiving illness of schizophrenia. Given that there is no cure and that Mr. Race’s case is so severe, their victimization will continue for the rest of their lives. This in no way minimizes the pain and loss the Knott and Brewster families have, and will continue to experience. These homicides are different from most killings in that the perpetrator and the victim are victims.

Justice Coady added:

It is important to note that an NCR finding is not an acquittal. Mr. Race will be held responsible for killing Paul Knott and Trevor Brewster. There will be consequences for those actions and those consequences will continue for the rest of his life. Instead of a jail cell Mr. Race will be detained in a secure hospital under the control of the state until such time as he is no longer a threat to public safety. He will remain in custody until the professionals are certain that he is no longer dangerous. The evidence of the experts in this hearing suggest that any kind of release is unlikely to happen soon.

In his judgment, Justice Coady reached out to both families with sympathy and understanding. He also made it clear that he understood the concerns of the public. He explained why the NCR designation was appropriate in this case and reassured the community that public safety was of paramount concern. His remarks reveal the struggles that trial judges experience when addressing difficult cases

Almost always, judges decide NCR cases in the full glare of media attention, with sometimes harsh and inaccurate commentary. Families are anguished and heartbroken. They may react with anger and bitterness, and express frustration and contempt for the justice system. Politicians often weigh in, as has repeatedly happened in the Vincent Li case. Judges are not immune to the pressures that all this brings to bear. However, in order to avoid an “eye for an eye” justice system and maintain the rule of law, we need to support and acknowledge judges such as Justice Kevin Coady and the tough decisions they must make.

One Edmonton Youth in Conflict with the Law: A Case Study

March 8, 2015 By Stephanie Jansen

We have all been there at one point in time: young, insecure, and impressionable. You would do anything to fit in: wear the right clothes; listen to the proper music; dislike the right people and share the same opinions as all the cool kids. But what if the cool kids were the RCMP acting as undercover agents to obtain a confession from a teenager suspected of killing two people?

This is precisely what happened in the spring of 2012 during a “Mr. Big” operation where undercover officers coerced a murder confession from a youth under the guise of recruiting him for organized crime activities. Regardless of the fact that the confession contained many factual errors and outright absurdities, the RCMP arrested the teen for the two murders. Barry Boenke and Susan Trudel were found bludgeoned and shot on their property in Strathcona County in 2009. Two youths were arrested after they were discovered driving the stolen truck belonging to Mr. Boenke. The charges were stayed in 2011 after a judge excluded an illegally obtained confession from one of the young men.

Despite this exclusion, the RCMP carried on with its attempts to lure the teen into their imaginary gang. The strategy included supplying the underage foster child with beer, concert and hockey tickets, a PlayStation and a trip to the mountains.

Through the interception of letters, and the monitoring of the teen’s phone calls, the RCMP spent over 200,000 dollars on the undercover operation. These circumstances have raised some moral and ethical questions around whether these types of operations ought to be used when the target suspect is a youth. Eventually, they received what they set out to accomplish: the teen confessed to killing Boenke and Trudel. Regardless of the fact that the confession contained many factual errors and outright absurdities, the RCMP arrested the teen for the two murders.

There are some obvious issues with this approach, the most blatant being that the conduct by the RCMP could be interpreted as abusive. The teen was a foster child with a poverty stricken upbringing, and a history of sexual abuse. Some might argue that it was no wonder the boy was so keen to have his “new friends” accept him into their gang. A lifetime of neglect and exclusion had resulted in a very attention-deprived young man, willing to sacrifice practically anything to be recognized.

These circumstances have raised some moral and ethical questions around whether these types of operations ought to be used when the target suspect is a youth. The teen’s defence lawyer argued that the case was an example of police entrapment. This was argued after the teen was found guilty of counseling to commit murder in March 2013. But by May of the same year, Justice Brian Burrows threw out the confessions the RCMP gathered in their undercover operation.

Ultimately, Justice Burrows determined that the RCMP violated the teen’s Charter rights against self-incrimination. Justice Burrows wrote that using such statements gives rise to the real and serious possibility of abusive conduct by the state, and that the state had a duty to protect the teen, which created a conflict with the enforcement element of the criminal law.(R v. NRR, 2013 ABQB 288 (CanLII)) Worse, the judge also found that the teen’s confession contained exaggerated, inaccurate descriptions of what happened and was not the least bit credible. The judge acquitted the teen, without even hearing from the defence, because there was no evidence linking the teen to the murders.

Incredibly, the RCMP did not investigate anyone else and has declared that it will not pursue other suspects in the future. This, in spite of evidence presented at trial that investigators found a bloody handprint and three sets of boot prints belonging to three unidentified people. The teen’s fingerprints and DNA were not found at the murder scene.

The idea that someone underage could be coerced into a false confession is troubling, to say the least. Justice Burrows wrote:”permitting the use of the statements made to Mr. Big would give rise to the real and serious possibility of abusive conduct by the state.” He also wrote that the state had a duty to protect the teen. “As his guardian, the state had a duty to protect which was incompatible with its desire as the enforcer of criminal law to deceive him.” It was deceit, plain and simple.

The focus of these types of operations must be on ensuring that statements from susceptible people are reliable. In this case, the RCMP appeared to care more about a conviction than warranting accurate information. The RCMP should have been aware from the beginning that their main suspect was unreliable from the very fact that the teen’s stories changed each time they were told, and had been proven inaccurate by forensic evidence.

Worst of all for the teen, as the “Mr. Big” operation was unfolding, he was being sexually exploited by someone who had worked at a detention center where the teen was held, and she is now facing criminal charges.

While the excluded confession and acquittal have devastated the families of Boenke and Trudel, the decision of the Court was the correct one. The need to hold someone responsible for these murders cannot overshadow the importance of compiling evidence properly, and not compromising the Charter rights of anyone in the process, particularly our most vulnerable.

Ultimately, the teen was found guilty of possession of Boenke’s stolen truck and break and enter. He was sentenced to twelve months probation.

Age of Criminal Responsibility: An illusive dilemma

March 8, 2015 By John Winterdyk

If we, as adults, reflect back on our youth, there is probably not one of us who can say we didn’t commit some type of infraction for which we could have been held accountable under the former welfare-oriented Juvenile Delinquency Act (JDA) – in effect from 1908 until 1984 – or the more legalistic approach of the Young Offenders Act (YOA) – in effect from 1984 to 2003. However, self-report studies introduced in the mid-1950s have repeatedly shown that most of us were never formally apprehended during those formative years of our life. This phenomena is the “dark figure” of (youth) crime and has both an indirect and direct bearing on the age young persons should be held criminally responsible (i.e., mens rea) for their alleged infraction(s) and perhaps equally important – how they should be dealt with.

In this article, I limit the discussion to the issue of age of criminal responsibility for several reasons. First, there are many well-established legal systems around the world and a plethora of research attempting to come to terms with and explain youthful offending from a range of different perspectives, e.g., social, psychological, cognitive, environmental. Yet, with all this, not only have we been unable to come up with a universal explanation for delinquency, we have also been unable to agree on a minimum age of criminal responsibility. …the quintessential question should be: to what extent does our current youth justice legislation comply with international guidelines and standards and how might our degree of compliance impact the debate of criminal responsibility? Secondly, there has been much debate over the years about either changing the age of responsibility in Canada or, as under the YOA (carried over from the JDA), qualifying the age at which young offenders (as young as age 14) could be transferred to adult court if charged with a serious crime. The provision of transfer was later seen to be too harsh and even counterproductive to the well-being of young offenders and was repealed with the introduction of the Youth Criminal Justice Act (YCJA) 2003. However, we will see there has been a reinstatement of the provision with the passage of Bill C-10 (the Omnibus Crime Bill). And finally, given Canada’s status as a signatory member of the United Nations Convention on the Rights of the Child (CRC), the quintessential question should be: to what extent does our current youth justice legislation comply with international guidelines and standards and how might our degree of compliance impact the debate on criminal responsibility?

Mental vs. Moral Capacity

I think that it should be 10 and up because kids get away with a lot. – A comment from Oakwood just prior to the enactment of the YCJA (The Great Youth Criminal Justice Act Debate).

Considering the tragic 2013 killing of a six-year-old Saskatchewan boy (fortunately, a rare case) by a legally underage youth known to police. Under today’s legislation, the offender could not be held criminally responsible even though known to police. Yet prior to 1983, when the lower age limit of criminal responsibility (based on common law) was seven instead of 12, the killer could have been held accountable. As noted American psychologist Lawrence Kohlberg (1927-1987) determined, mental capacity is NOT the same as moral capacity – the ability to appreciate the meaning of one’s actions. However, in a number of countries where there is no lower age limit of criminal responsibility, the accused youth could still be legally processed. Furthermore, even though the YOA set a maximum age of juvenile responsibility at 17 in 1984, Alberta’s maximum age remained 16 for boys and 18 for girls until 1985. (Ironically, research has shown that girls mature at a younger age than boys!) Needless to say, one doesn’t need to look too far afield to garner the history of controversy surrounding minimum and maximum ages of juvenile responsibility. Some additional context is in order.

On what basis was the minimum age raised in 1984? It was based on the fact that most children leave elementary school and are thought to have the mental capacity to understand right from wrong at around age 12. Yet, completing elementary school has no direct correlation to whether a young person meets the legal benchmark of what qualifies as mens rea. As noted American psychologist Lawrence Kohlberg (1927-1987) determined, mental capacity is NOT the same as moral capacity – the ability to appreciate the meaning of one’s actions. As early as the 1760s, the esteemed English lawyer Sir William Blackstone (1723-1780) argued there was a legal justification for differentiating criminal responsibility between “infants” (up to the age of seven) and “adults”. According to Kohlberg’s model of moral development, the general level of moral reasoning that meets the legal standard of mens rea does not occur until around stages four (Authority and social-order-maintaining orientation) and/or five (Social contract orientation). Various research studies show that few children reach stage three even in junior high school and typically stages three and four don’t begin to express themselves until high school (average age of entry around 15!). As Kohlberg’s generally accepted stages are known to have to be experienced in total and in order, these facts alone should raise serious questions among legal scholars and social scientists who study at-risk youth about how we determine a minimum age of responsibility. Failure to do so is an injustice to young persons.

A ‘good’ idea without any teeth

As early as the 1760s, the esteemed English lawyer Sir William Blackstone (1723-1780) argued there was a legal justification for differentiating criminal responsibility between “infants” (up to the age of seven) and “adults”. …in the United States, each state is responsible for setting its own age limits for criminal responsibility. This, obviously, raises further concerns about fair and equitable justice between jurisdictions. He argued that infants were not capable of forming intent, although along with certain contemporaries, he acknowledged that youth between the ages of 7 to 14 fell into a no-man’s-land. In North America it wasn’t until the late 1800s, along with the insights of a Toronto newspaper reporter by the name of J.J. Kelso (1864-1935) and several other pioneers of the “child saving movement”, that the first juvenile court was established in Chicago. The court was grounded on the British doctrine of parens patriae (the State as parent). However, unlike in Canada, only 13 American states use a Common Law approach and have set lower age limits ranging from 6 to 12 years of age – with the median being 12. (By contrast the minimum age of responsibility in the UK is 10, France 13, and Brazil 18.) Also in contrast to Canada, in the United States, each state is responsible for setting its own age limits for criminal responsibility. This, obviously, raises further concerns about fair and equitable justice between jurisdictions.

Despite the 1948 UN Universal Declaration of Human Rights, and more specifically the 1990 CRC [1], the debate about minimum age of criminal responsibility has not been universally embraced. With the new amendments to the Youth Criminal Justice Act, it became easier to try young offenders as adults – a direct contravention of the CRC. This may, in part, be due to the fact that the UN conventions do not specifically identify a minimum age. Section 10 of the CRC simply requires parties to establish a:

“…minimum age below which children shall be presumed not to have the capacity to infringe the penal law” (Art 40(3)(a).”

Finally, another major UN convention, the UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules, Article 4), reads:

“In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age limit, bearing in mind the facts of emotional, mental and intellectual maturity.”

A pending ominous ‘slippery slope’

In the UN’s 10-year report commemorating Canada’s ratification of the CRC, we received a failing grade. However, the report noted that until 2012 Canada had been complying with the CRC guidelines. Why the change? With the passing of Bill C-10 came new provisions for stiffer penalties for young offenders. With the new amendments to the Youth Criminal Justice Act, it became easier to try young offenders as adults – a direct contravention of the CRC. The UN report further pointed out there was no child rights assessment or mechanism to ensure the Bill’s conformity with CRC provisions. Finally, the UN committee report also pointed out that ethnic minority and Aboriginal youth still continue to be over-represented in the youth criminal justice system.

Although the UN report does not offer any criticism about the minimum age of responsibility, the fact is that the new legislation potentially puts underage youth at risk of being directed to the youth/adult system under the umbrella of parens patriae.

Conclusion: Where to from here?

This article draws attention to several key issues that demonstrate the lack of a clear rationale or justification for setting a minimum age of criminal responsibility. This is due in part to the contradiction inherent in the criminal justice system (CJS). As I described in a previous article in LawNow, the CJS is a mix of classical criminological ideals (rule of law) vs. the back-end of the system (sentencing and corrections), that embraces a positivist criminological perspective. The matter is also compounded by the fact that despite various international conventions, every state retains considerable discretion in setting its own minimum age of criminal responsibility. While the intent of trying to protect young people from being held accountable when they may not be able to appreciate the implications (i.e., moral character) of their actions is laudable, the fact that the law has not/does not allow itself to be informed through social science evidence continues to raise serious doubts about the justification for what, if any, fixed age is justifiable. For example, as implied in this article, accountability does not always necessitate criminal responsibility. In the meantime, much could be learned by examining how other youth justice models and CJSs have approached the issue. [2]

Notes:

1. The United States signed but did not ratify the Convention. However, the CRC is the most ratified of all the UN Human Rights conventions and it is a binding international treaty.

2. J. Winterdyk (Ed.). (2014). Juvenile justice: International perspectives, models, and trends. CRC Press: Boca Raton: FL.

Talking to the Police

September 5, 2014 By Marilyn Doyle

The police are key players in the criminal justice system. “To prevent crime and to make sure that there is order in the community, police officers are given special powers to search, arrest and detain any individual who is committing, has committed or who is believed to have committed a criminal offence. However, these powers are limited by certain basic rights guaranteed to all Canadians in the Canadian Charter of Rights and Freedoms.” (Criminal Law and Procedure, CLEA)

There are quite a range of plain language materials available to help citizens understand their rights and responsibilities in relating to the police. Since both the Criminal Code and the Charter are federal laws, this information applies across the country, although many publications also include lists of local resources.

Resources for Adults

A good general overview of this topic is covered by the Canadian Civil Liberties Association in their 12-page booklet “Know Your Rights: A Citizen’s Guide to Rights When Dealing With Police”. It covers the questions:

What if I am stopped by the police?
What if I am stopped by the police while driving?
When can the police search me?
What are my rights if I am arrested?
What if the police come to my home?
How do I make a complaint about the police?” (This section provides resources for every province as well as a national resource for the RCMP.)

From Community Legal Education Ontario comes a similar publication, “Police Powers: Stops and Searches”, which is also available in French, Spanish, Urdu, Arabic and American Sign Language (video). In “Arrest”, the Public Legal Education Association in Saskatchewan explains that whether or not the police can question you depends on the situation. The Public Legal Education and Information Service of New Brunswick describes their bilingual booklet “The Law, The Police and You: Your Rights When Questioned, Detained or Arrested / La loi, la police et vous: vos droits pendant un interrogatoire, une détention ou une arrestation” in this way:

The purpose of this booklet is to provide a general outline of your rights and responsibilities when you come into contact with the police in public. What should you do or say – and, not do or say – when you are questioned or detained by the police? What are your rights if the police arrest you?

Another exploration of questions related to talking to the police comes from the Legal Information Society of Nova Scotia. Their publication “You and the Police/Sur la police” also addresses questions about lie detectors, photographs and fingerprints, and the powers of private security guards.

The British Columbia Civil Liberties Association offers considerable detail on the topic in “The Arrest Handbook”(62 p.). It is important to remember that criminal law deals with young people between the ages of 12 and 18 somewhat differently from adults through the Youth Criminal Justice Act. Note that some of the legislation discussed is specific to B.C. It also broadens its discussion to include citizen or private security arrests, other agency search powers, civil disobedience and anti-terrorist legislation. This publication is also available in Arabic, Spanish, and Vietnamese.

Educaloi uses its short article “Rights during a detention or arrest/ Droits d’une personne en cas d’arrestation ou de detention” to zero in on the nature of three specific rights: to know the reasons; to speak to a lawyer; and to remain silent.

An Alberta law firm, Pringle Chivers Sparks Tesky, takes a bit different approach in their information sheet “What You Need to Know if the Police Want to Speak With You” including looking at such issues as what you might want to know if you think the police are investigating you; whether there is such a thing as an “off the record” conversation with the police; and whether asking to speak with a lawyer might make you “look guilty”.

People’s Law School has a two page fact sheet “Talking to the Police” from which you can learn the basics about criminal law and the role of the police, reporting a crime and being a witness in court, being arrested, and going to court.

Community workers may find themselves struggling to support clients facing criminal charges. They could find help in a recorded webinar from Legal Aid Ontario. “Helping Clients Deal with Criminal Arrest” covers legal rights, the criminal charge cycle and bail process, and what services and supports are available to clients, especially with regard to helping vulnerable clients.

Resources for Youth

It is important to remember that criminal law deals with young people between the ages of 12 and 18 somewhat differently from adults through the Youth Criminal Justice Act. The B.C. branch of the Canadian Bar Association offers a short script, “Young People and Criminal Law”, which discusses the rights of young people if stopped and questioned by the police, if arrested, or if charged with an offence. This is also available in Chinese (simplified; PDF), Punjabi (PDF) and Mandarin (audio/podcast).

Meanwhile, the Public Legal Education Association in Saskatchewan provides “Busted” with information about the Youth Criminal Justice Act, rights on arrest, being charged and detained or released.

Community Legal Education Ontario has created the Youth Criminal Law website specifically for young people accused of committing a crime. It includes a section on “Talking to the Police” and has a parallel site in French that can be accessed with the “Français button” in the top right of the page.

A community group from Toronto has reached out to youth with its video “Know Your Rights” which provides information about their rights when dealing with police, an understanding of powers of arrest, detention, and search, strategies to deal with situations relating to police contact, and an understanding of what recourse is available when someone experiences an abuse of police power.

Conclusion

We need the police to have the authority to address crime. We also need to have protections against indiscriminate use of that authority. Public legal education resources can help us understand the balance between the necessary powers of the police and the necessary rights of citizens.