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Is a repeat drunk driver a dangerous offender?
Should the courts crack down on people with multiple drunk driving convictions?
Toronto Star reporter Carmen Chai writes:
A Quebec judge will decide this week if a repeat impaired driver will be branded as a dangerous offender … a designation typically reserved for murderers and serial rapists.
The legal meaning of private property, Conclusion
Click here for Part 1
Our courts couldn’t find any protection of private property from government action in the Charter. You can say that you don’t care because people like Kenk and Chatterjee are bad guys, even if no court of law convicted them of any crime. It looks like a pretty smart idea to go after a bad guy’s assets when there is a chance some sleazy lawyer will get him off. It shouldn’t happen to us because we are not bad guys. Our stuff doesn’t smell of marijuana. But the Civil Remedies Act doesn’t just target people who smell like drugs. You only need to be in the wrong place at the wrong time or even let wrong people use your property to get caught by this law. The statute specifically allows the government to take property of mentally ill found not criminally responsible or of people who were acquitted or who weren’t even charged. Again, this law doesn’t require any specific crime or any specific victim. Your property only needs to be “tainted.” The reasons are noble but the net is wide, and it’s the breadth of the law that you should be worried about. The law doesn’t work with exceptions. It targets general categories.
Because laws apply to general groups of people and don’t include lists of good guys, we should always check them for potential abuses. But this case also gives us a good chance to see what private property means in Canada in general. Chatterjee’s lawyers threw all Charter sections they could think of at the Superior Court judge. All failed. They dropped two out of four on appeal. Still no luck. Finally before the Supreme Court of Canada, all Charter challenges to property taking by the government were abandoned. And there is a good reason for that. Our modern constitutional law does not protect private property. We need to know this to understand our government and our legal system and to plan our lives accordingly. The starting point in this understanding should be the question of what property is.
Property is not a thing, it’s a relationship, as they say in first-year law-school classes. Your car is your property because you are in a certain relationship with other people. This relationship gives you a right to exclude anyone else from driving your car. The other end of this relationship is that other people have a duty not to take your car without your permission. But the most important thing about this relationship that makes your car your property is that the government will enforce it. The police will charge a car thief with a criminal offence. The courts will convict him or will order him to return the car if he took it accidentally. The only reason your car is yours is because the government lets you have it. The government gives you a permission to keep your car and to exclude others. If the government decides to take its permission back, you lose your property or some part of it. For example, if a police officer needs your car in an emergency, he can lawfully take it from you. Or the Parliament can pass a law allowing the government to take all cars with a milage below 10 mpg catching your Hummer in the net. There is no legal limit to how the Parliament can change your property relationships through statute because there are no constitutional protections of private property in Canada.
That’s why Chatterjee’s Charter arguments failed so miserably. We do not have a right to property in Canada like we have a right to life, liberty, or security. And the Ontario legislature can’t just pass a law infringing on those three lightly like it can with property rights. The Charter forces the government to follow the principles of fundamental justice if it wants to imprison, kill, or endanger someone. The criminal process is extremely demanding on the government because of the Charter, and the Parliament can’t take these rights from us because it can’t change the Charter on its own. For these reasons, our rights guaranteed by the Charter are truly our rights. Everything else are just privileges granted by the government, including property and ownership. You can say that the government is not some evil organization to be feared and distrusted, and you will be absolutely right. Canada is a democracy but the democracy is nothing but the rule of a majority. The very reason we put some crucial rights away from Parliament’s reach is to protect them from the majority. History knows many examples when democratic majorities persecuted smaller groups of citizens.
For this reason, it’s important to know what rights are protected and what rights are not. The Ontario’s Civil Remedies Act is a good example of how our property rights in Canada are not protected from the government. The public should know this, even if there are many perfectly good reasons for this lack of constitutional protection. The public should know that our property is just a government’s permission to call some things “ours.” This permission is not permanent, nor does the government have to follow any special fair process to take this permission back. Still, Canada’s federal and provincial governments have traditionally respected the stability of property and ownership. Because private property is critical to the survival and prosperity of our country, there is no reason to believe that Canadians will support any Parliament that tries to change the status quo. But we should be watchful when it comes to small abuses, especially against our less fortunate citizens “tainted” with crime, because there is no Charter challenge that can help them.
Mapping Homicides in the GTA
Remember our discussion about crime rates in “Scarlem” early last year?
The Toronto Star released an interactive map that plots all the homicides, not just in Scarborough, but across the GTA. The stats can be broken down by year (to 2005), age, gender, and type (shooting or otherwise).
The Case of Derek Twyman: A Punishment of Unusual Cruelty
From time to time we read or hear about sentences for startling amounts of time to be served by those convicted of serious crimes south of the border. Hundreds of years in prison or multiple life sentences are examples of some of the extreme punishments ordered by U.S. judges in cases where society is expected to agree that the crime committed is simply so heinous that the offender should never be free again.
Could burglary be such a crime?
Derek Twyman was 14-years-old when he and his family moved from the province of Ontario to the state of North Carolina. His father, Donald, had plans to start a furniture business there, and the family was going to build a future for themselves in the south. Unfortunately, shortly after moving to the U.S., Derek fell in with the wrong crowd and got caught up in a lifestyle that included a tendency to participate in acts of juvenile delinquency.
In 1989 he was on parole when he was picked up by the police in connection with a series of break-and-enters of homes belonging to affluent residents in North Carolina. Derek plead guilty to the offences he was accused of, but was shown little mercy by Judge Thomas W. Ross, who sentenced him to four consecutive 40-year sentences in prison – an astonishing total of 160 years behind bars for non-violent property offences. His projected release date is the year 2055, when he will be approximately 90-years-old.
The law that provided for such an excessive sentence was the misnamed Fair Sentencing Act, which was replaced in 1994 by the Structured Sentencing Act in an attempt to restore credibility and appropriateness to sentencing. Under the new law, someone who is facing the same groups of charges that Derek did in 1989 would only serve a maximum of 7 ½ years upon conviction, as opposed to the unthinkable century and a half given to Derek.
Putting aside for a moment the well-founded allegations that the original sentence constitutes cruel and unusual punishment, many would think that the new law would at least apply retroactively in order to halt the continuation of unjust sentences set down under the old law. Unfortunately, the Structured Sentencing Act does not apply to offences committed before October 1994, undeterred by the fact that a comparison between the old and new legislation clearly depicts a gross disproportionality between the sentences that raises serious constitutional concerns.
And given that Canada is the only country to which Derek holds citizenship, where might the political forces of Ottawa enter into this mess? Nowhere it seems. Despite Canada being a signatory to the International Prisoner Transfer Program with the U.S., Derek says that to date the Canadian government has not yet attempted to help him in any way, instead choosing to ignore such inhumane treatment of a Canadian citizen imprisoned abroad. If one looks to the requirements a prisoner must meet in order to be considered for a transfer, he is a perfect candidate with the exception of one thing: restitution.
The presiding judge who sentenced Derek to prison also ordered that he pay over $60,000 in restitution to the affluent residents whose homes he was convicted of burglarizing, even though insurance policies likely covered most (if not all) of the losses. The restitution order states that this amount must be paid before Derek can even be considered for deportation to Canada. Apparently it wasn’t considered at sentencing that the convicted person going to prison for 160 years eliminates any realistic possibility of the restitution ever being paid.
Nor did it appear to dawn on the court that by the time Derek is eligible for his next parole review (on merely the second of the four 40-year sentences) the total cost of incarcerating him will be approximately $675,000. In the unlikely event that the intended recipients of the restitution were not covered by insurance, and actually needed it as compensation, the potential fulfillment of that opportunity was most definitely quashed in the most ironic of ways.
Even through the desperate arguments that the prison sentence and accompanying restitution were attempts at promoting deterrence, this entire fiasco reeks of a typical “tough on crime” attitude gone terribly wrong. Word of this travesty is spreading, but at the present time Derek’s liberty is the price being paid for the complete and ignominious failure that was the Fair Sentencing Act.
Derek hasn’t lost hope though. Having now spent over 19 years behind bars for this crime, he still manages to keep his spirit up and remains confident that people will take notice of this injustice. No human being should have to endure the kind of wrongful treatment that he has been subjected to. Now is the time for all of us to add our voices to the growing call for Derek Twyman’s long overdue release.
To help Derek gain the justice and freedom he deserves, please take a moment to sign this online petition:
www.petitiononline.com/dtwyman
The legal meaning of private property, Part 1
Do you think you own your car? If the government convinces a judge that it’s more likely than not that your car is “tainted” with crime, the court can let the government take it from you. No conviction, trial, specific victim, or even specific crime are required. Ontario’s Attorney General asked the courts to let him seize a house and trucks of an alleged bike thief and drug dealer months before he could even stand trial. Another man lost thousands in cash and some personal property to the government because the banknotes smelled of marijuana. The government justifies this law by the need to fight crime and recover its costs. But the really interesting question for all of us is what property really means, do we have any true rights to it, and what the government can do to our property. Although these cases involved people who seem to be different from most of us, we should learn that ownership in Canada is really a permission from the government to have something, whether we are shady characters or law-school professors.
Igor Kenk had a bike store on Queen West in Toronto. One day cops staked him out. They saw money change hands after some guy cut locks on a bike and brought the bike to Kenk. They saw it twice, and then they arrested Kenk. After searching his store and other addresses connected to him, they found hundreds of bicycles, pounds of pot and some cocaine. The police charged Kenk with theft and possession for the purpose of trafficking. About 500 bikes were claimed after a public showing. The remaining 2292 bikes went to storage because no one showed up for them. Kenk was arrested in July, 2008. In October, the province gave him a notice that it would be applying to court for a forfeiture of his store, the bicycles, and his two pickup trucks under the Civil Remedies Act. Not only did he not have his criminal trial yet, but even his preliminary hearing will not be held until next March.
Kenk is not the first man to see his property slip to the government’s hands without any criminal conviction. Robin Chatterjee lost almost $30,000 in cash and other personal property without even being charged with a crime. All it took was the smell of marijuana coming from his things when the police stopped Chatterjee’s car for a minor violation. The police didn’t find any actual pot. When the Attorney General of Ontario asked the courts to let the government keep Chatterjee’s property, Chatterjee started a legal battle. He claimed the Civil Remedies Act was against the constitution. And he lost at every step of the way, including at the Supreme Court. But his case became a leading judicial decision on civil forfeiture—government’s taking of crime-connected property without compensation.
In many Canadian provinces, legislatures gave the government a right to take crime-connected property with a court’s permission. In Ontario, this right comes from the Civil Remedies Act. This law allows the government to take “proceeds” and “instruments” of “unlawful activity” without compensation. The purpose of the law is to compensate victims of crime in general and to recover costs of crime. Your property only needs to be associated with or “tainted” by crime to fall under the law’s sweep. The government doesn’t have to prove you committed any crime. It doesn’t have to produce any specific victim of crime. It simply must show to the court that your property is “tainted.” The standard of proof is more-likely-true-than-not, also known as the balance of probabilities.
The Chatterjee case ended up supporting the Civil Remedies Act. His lawyers started at the Ontario’s Superior Court by attacking the law on many fronts. They claimed that the province doesn’t have the power to pass a law that is essentially a criminal law. Under the Canadian constitution, only the federal government can do that. The court rejected this argument and said that a forfeiture to recover costs of crime and compensate victims is a matter of property and civil rights in the province. The lawyers also claimed that the law breached four sections of the Charter. The Superior Court disagreed again. On appeal, Chatterjee’s lawyers dropped two Charter challenges out of four but still lost on all counts. The version of the case that reached the Supreme Court of Canada didn’t allege any Charter violations. All Chatterjee tried to claim was that Ontario overstepped its powers because the Civil Remedies Act was essentially a criminal statute designed to punish people. The SCC unanimously rejected the appeal. So, the Ontario law stands as it is.
Our courts made it clear that the Charter does not apply when the government takes our property to recover costs of crime, even if you didn’t commit any crime. What’s more, courts’ rulings show that the Charter does not protect our property from the government at all. First, the Charter doesn’t even mention “property.” Second, not a single Charter section Chatterjee relied on convinced the courts that the Charter could imply property protection. He tried sections 7, 8, 9, and 11(d). Section 7 guarantees us fundamental justice when the government tries to take our life, liberty, or security. Section 8 protects us from unreasonable search and seizure. Section 9 prohibits the government from arbitrary arrests. Section 11(d) guarantees presumption of innocence and a fair trial. The Superior Court held that s. 7 does not protect “economic interests.” It also said that even the stress and the stigma of losing your property under the label of crime are not enough to harm our “security” that s. 7 protects. As for s. 8, the court said it applies to privacy, not property. Section 9 was rejected outright. Section 11(d) didn’t fly because the court held that “civil forfeiture [did] not qualify as an offence.” So there was no presumption of innocence to protect or fair trial to guarantee.
Click here for conclusion.
Transparency sought in Afghan inquiry
Subpoenas issued to federal officials in Afghan prisoner inquiry
A legal fight is looming over the federal government’s refusal to release information about alleged war crimes committed by the Canadian military.
Murray Brewster writes for the Canadian Press:
In its attempt to derail the commission inquiry, the federal government has argued that the handling of prisoners is “not subject” to oversight by the military police complaints process, and that the National Defence Act only gives the agency the power to investigate complaints against military police.
Differing Views on Healthcare from an Economics Perspective
I have heard, seen and read the debate among pundits in regard to healthcare reform south of the border. Cutting through the misinformation, spin, rhetoric and outright bull, there is a somewhat trivial economic explanation to the differing opinions. As usual, some of the easiest explanations are the ones most often overlooked.
This economic perspective is a result of one of the comments I saw on the WiseLaw Blog which talked about the comments of Glenn Beck (who was ranting about a “lottery” that is the Canadian healthcare system). The comment went as follows:
“…I know nothing of Beck but suspect he promotes the “conservative” point of view, which, briefly stated, is that being rich should MEAN something….”
This is serious food for thought. What exactly does it mean to be rich? In obvious language, it implies an ability to consume luxury goods and services available in the market. Conversely, what does it mean to be the opposite of rich (I don’t want to say “poor” because that has a different definition)? It means a general inability to consume luxury goods due to having to spend the majority of income on necessities.
You can see where this is going with regards to healthcare. Framed like this, the question is trivial: is healthcare a necessity or a luxury? Your initial answer will depend on your political preference, but consider the following premises and let’s see where logic takes us:
- People cannot control when they become ill; and
- Spending on luxury goods and services is first to get cut in an economic downturn due to less money being available and thus a greater proportion of income being spent on “necessities”.
What is the logical conclusion if we assume that healthcare is a luxury? If a “rich” person becomes ill during a recession when there is less money to spend on luxuries, money would not be spent on treatment.
Politics notwithstanding, I hope my readers can see why this conclusion is silly. Treatment for an illness cannot wait for an economic upswing nor should people’s health be affected by where we stand in the business cycle.
I can therefore conclude that healthcare is not a luxury, but a necessity. This also means that the anonymous reader of WiseLaw is only partially correct: for “conservatives” being “rich” should mean something, but any conservative with an understanding of economics will understand that being the opposite of rich should not spell lack access to healthcare.
*Note*: I am well aware that I used some “economics” terms without proper “economics” definitions. I did this because I didn’t want eyes to glaze over.
Cross-posted at Lawyerling.ca
Blawg Review #228
If you’re just starting law school, law blawgs can be your best friend. In addition to this site, here are 99 other blog posts that you should read to help prepare for your adventure. It won’t help you though if you’re a judge about to be tested.
Most law students want to be in the top 10-15% of their class, and there are career opportunities that depend on that. Ken DeLeon of Top-law-schools.com provides some tips for success in law school, including a handy flowchart on how to prepare for your law school exams. But keep in mind that the end of the billable hour might result in some changes to your legal education, and law students have different learning styles than the rest of the population.
Still applying to law school? An undergraduate degree in physics or math might be your best option to get a solid LSAT score. Remember that these days a law career is considered a risky option, and there are lawyers in Jersey actually working for free. Where else is success defined by more work (even for less pay), and not more recreational or family time? Larry Ribstein still thinks law school is the cool choice. But is it really worth it?
On the other hand you could elect to skip your classes, get intoxicated regularly, sleep with all the members of the opposite sex, gain a reputation as being a total douche bag, and then score a book and movie deal.
Introducing Tucker Max – asshole extraordinaire – a graduate of Duke Law that claims assholes finish first.
An inspiring personality, certainly, and an approach that John Infante of Fearfully Optimistic would definitely disagree with. It does make you wonder how many Dukes are faking the Daisy to hazard “celebrity bias.” The Bitter Lawyer has an exclusive interview with Tucker that is, at the very least, amusing.
Then again, “skipping classes, playing basketball, doing cocaine and getting drunk” might help you become President of the United States – but eventually someone might start asking for your law school transcripts. None of this is likely to come up during the President’s special advice to students tomorrow (Sept. 8). An open and transparent government, perhaps, but not that open. Reality check: the last refuge of the persecuted crack smoker may not be in law school.
Hey, “Some people snort cocaine, others snort religion,” and the latter is not necessarily better. The Exit at My Legal Fiction suggests wearing lipstick as a law school study aid, for some very compelling reasons. If you’re a missionary in Kenya, please don’t vow to go to law school out of religious convictions, unless you’re going to a low-ranking religious-affiliated law school. Happy Belated Todd, but I won’t be paying $25,000 for dinner any time soon.
Still, your biggest youthful indiscretion might be going to law school itself (and graduating at the bottom of your class hardly precludes success). If your indiscretions precede law school and include a criminal record, there are some disclosure issues you should consider. Using stolen Social Security Numbers to steal student loans for partying, with Tucker, Todd, or otherwise, probably isn’t a great idea. Assistant Deans at law schools? Not a good idea either.
Robert J. Ambrogi also tells us about Branigan Robertson of Chapman University School of Law, who won $10,000 for this video in the My Inspiration video contest:
These law students are doing better than a lot of lawyers these days. When life gives you lemons (or a recession), you should just make lemonade. Dan Markel is asking, what kind of juice are you making?
On the other hand, if you’re looking to avoid personalities like Tucker Max at all costs, you might be interested in Above the Law’s Douchiest Law School Contest.
No surprise that Harvard and Duke are currently heading the pack as finalists. Also check out Paul Caron’s review of U.S. News Law School Rankings for Judicial Clerkships, which includes data from Brian Leiter’s rankings. If douchiness turns you off of Yale and clerkships are really important to you, the University of North Dakota might be a good alternative. However, great credentials don’t always make more satisfied lawyers, because these guys tend to be plagued by that green-eyed monster.
Charon QC’s musings might be useful in determining if a “douchy law school” is worse than a “McDonalds of law schools,” while Dan Slater of the NYTimes suggests just locking the doors to all law schools because there are too few hiring positions. Still having a hard time picking a law school? The iPhone app Law School 100 is free until midnight tonight (Sept. 7). Study aids are becoming more interactive, with West’s new Interactive Case Series now linking to directly to law review articles cited in the case series.
Keep in mind that law school is different than undergrad, and you should probably clean up those social networks you’re on. After all, you wouldn’t want your mom witnessing you pulling a Tucker Max, and some employers might require you to submit your social media for a background check. Social media is also being increasingly being used in the courtroom, and no, the judge doesn’t really want to be your “friend.” Don’t get rid of that social media entirely though, because “People don’t find lawyers in the phone book… They find them through TV ads or friends or by searching the Internet, including blogs and social networking tools.”
Apparently what clients really want from their lawyer is to “feel the love,” so if someone comes to your office complaining they hurt their “tushy bone,” try not to laugh too hard. Be forewarned though – that volenti non fit injuria doctrine you learn in Torts class also applies to contracting Herpes Simplex I from wrestling, also known as Herpes Gladiatorium.
That’s probably not what Lauren in Law School had in mind when she suggested gladiator games as an alternative to On Campus Interviews (OCIs). You can get a list of the guys in your university with herpes from the new Campus Gossip site just to be on the safe side.
Although the number of followers you have on Twitter is no sign of of expertise or influence, it might land you a job (or lose it) with a firm or get you published, even if Perz Hilton decides to sue you for defamation. No “love” (or wrestling) for him, sorry. Some people do take Twitter seriously, perhaps too seriously.
Eric Goldman’s interview with David Lat highlights the importance of students networking during a crisis. Dennis Jansen also thinks that networking with your peers might be useful, but consists of more than “beaming your peers with business cards or mass-adding people on Facebook and LinkedIn.” As popular as WordPress may be for blogs, it just might not be for your law firm, and you even might be held liable for content on your site to a tune of $32.4 million.
The Law Society or State Bar is probably not going to like it if you steal other people’s Twitter content and pass it off as your own, like Melina Beninghoff did . Stealing content doesn’t take brilliance, and it barely takes effort. What is clever is coming up with this CraigsList listing from Los Angeles. But is stolen content any worse than fake content?
Today is also Labour (sic) Day in Canada and the U.S. That’s the Canadian spelling, because Labour Day did originate in Canada in 1872 with the Trade Unions Act, which legalized unions. The United States followed in 1882 with informal observance in New York City, and by 1894 it was observed by 23 states through legislation. Still, it was the American President Lincoln, not a Canadian, who said in December 1881,
It is assumed that labor is available only in connection with capital; that nobody labors unless somebody else, owning capital, somehow by the use of it induces him to labor…
Labor is prior to and independent of capital. Capital is only the fruit of labor, and could never have existed if labor had not existed.
Although most Canadian law schools start the day after Labour Day, many Americans start a week or two earlier. According to Blawg Review 122 it seems that in Dublin they start as late as October, but it might just be that everyone (students and profs) are recovering from prolonged hang-overs.
Labour relations are highly relevant for this edition of Blawg Review, since law professors at the University of California are considering a walk-out despite having the “best public education in the world.” Perhaps they could use this list of 24 alternative mediation dispute resolution sites to read.
Maybe they should just settle this all over a beer. Then again, those Canadian brewers are at it again with their trade-mark litigation! Next time someone tells you “I Am Canadian,” you might want to do your due diligence.
The big thing up here in Canada right now is Copyright Consultation Reform. Although over-reaching legislation is great for the lawyers, it does little for end-users of copyright material. If you’re one of those folks with a keen attention for cyberspace cases, this new blog following the 10 most important U.S. cases will probably be of interest.
But the big thing about Canada in the U.S. right now seems to be our healthcare system, which we’re rather partial to, despite what they mights say (Ignore those pesky suits). Send us your gladiators with herpes, and your perdurable impetus. All that talk over at Volokh about a “lottery system” can only be described as nonsense.
(At 1:53 Glenn Beck repeats lottery libel, and at 3:21 yells at a caller to get off his phone, “you little pinhead,” for not listening to the “facts.” The remix is even funnier.)
Although she acknowledges that healthcare reform is needed, Althouse has 10 things she hates about it. Change is always hard due to “status quo bias.” Madeleine Begun Kane has a limerick she wrote just for the spats over healthcare in the U.S. (watch your pinkies!):
“Majority rule is just great,”
Said Gregg in the drilling debate.
“You’ve got 51 votes,
Then you win.” Check his quotes.
Yet 51 Dem votes don’t rate.
Seeking medical treatment is probably the first thing you should do after a car accident, irrespective of whether it occurs in Canada or the U.S. Passen Law provides 9 other things you should do, including, of course, getting an experienced personal injury lawyer.
Another thing we have in Canada absent in the U.S. is a prohibition against the death penalty. Perhaps the fact that 45% of wrongful convictions in capital cases are based on jailhouse snitches has something to do with it. Mark Bennett of Defending People points out the interesting observation that a Texan executioner appears to be committing murder by that state’s law,
…would you participate in a death penalty trial, knowing that, for the rest of your life, with the turn of a tide of public opinion you could be prosecuted for making what you believed to be the right decision? You may be betting your life.
Do you think that employment contract with the State would protect you? Don’t count on it, as Jeffery I. Gordon mentions that most contracts are too brittle to withstand scrutiny, even if those FirstDrafter clauses look like they can do the job.
On the other hand, if your employment contract follows an affirmative action plan that is not remedial and narrowly tailored for past discrimination, it may constitute unlawful discrimination. We’re still not sure if a stripper constitutes an employee or an independent contractor in Employment Law class.
More guys in that class would probably express their anticipation for seeing Jessica Alba as the stripper-law student Nancy Callahan in the upcoming Sin City 2 if they weren’t concerned about objectifying women.
Don’t lose any sleep over it, unless you’ve sexually assaulted employees and are settling for $1.72 million. Be careful though – the risk of contracting gladiator herpes (and sins) rises exponentially when wrestling with strippers. You could also get robbed or raped.
Personally, I would be okay with any affirmative action that sought to get everyone but Tucker Max and any potential douches into my law school. Nancy Callahan might get a pass, as long as she doesn’t hook up with Tucker while she’s there.
Special thanks to David Shulman for editing on this piece.
That’s it for this week’s edition! Remember: Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.
The Most Ignominious Chapter of Our History
The decision that has the law world buzzing this weekend is the release this Friday of Abdullah Al-Kidd v John Ashcroft.
The Plaintiff is an American-born citizen who converted to Islam while he was a running-back at the University of Idaho. He was arrested in Dulles International Airport and transferred to several facilities for interrogation for a total of 13 months, leading to the termination of his job and subsequent difficulty finding employment when he was finally released.
Most employers are not too keen on hiring people that are treated by the government as a common terrorist.
The problem is that Al-Kidd was never arrested for any crime, and was preemptively detained and investigated using the federal material witness statute 18 U.S.C. § 3144.
Strangely, Al-Kidd was mentioned by FBI Director Robert Mueller, a law graduate of University of Virginia (1973), as one of the agency’s “major successes” when he testified before Congress.
Most prosecutors in the U.S. enjoy absolute immunity for activities in the criminal process and as advocate for the state (Imbler v. Pachtman; Buckley v. Fitzsimmons). However, they enjoy only qualified immunity when performing administrative, investigative, and national security functions (Mitchell v. Forsyth). Al-Kidd claimed that the detention involved investigative and national security goals since they were intended to gather evidence about him personally.
Supervisors can be held responsible for the actions of their subordinates where (Larez v. City of Los Angeles):
- they set in motion or refuse to terminate a series of acts of others;
- are culpable in training, supervision, or control of subordinates;
- fail to raise objection with the infringement of constitutional rights;
- or, demonstrate reckless or callous indifference for the rights of others.
The decision concludes with a quote from Sir William Blackstone,
To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.
The 9th Circuit held that Al-Kidd’s 4th Amendment rights were violated, and distinguished between seizing a person to see whether they had committed a crime, and seizing them to see if they have information about some unknown criminal’s actions the prior week (Illinois v. Lidster).
Ashcroft is not entitled to absolute and qualified immunity,and although Ashcroft could not be held personally liable for unconstitutional imprisonment, Al-Kidd’s suit for damages could proceed to trial if this decision is not appealed.
Judge Milan D. Smith, Jr. stated for the majority,
We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.
We have seen a similarly ignominious chapter in our Canadian history, and it’s not unforeseeable that those responsible may eventually be held accountable.
Legal Aid to get a much-needed funding boost
After years of neglect, the Legal Aid system in Ontario has been scheduled for an overhaul. On Tuesday, Attorney General Chris Bentley will announce $150 million in new funding for Legal Aid, as well as significant changes to the way the system works.
Legal Aid Ontario (LAO) is an independent, publically funded organization which is dedicated to improving access to justice in this province. With a current budget of about $288 million, the infusion of $150 million into the system over the next four years represents a huge boost.
Kudos are due to the Criminal Lawyers Association and senior defence lawyers across Ontario for taking dramatic steps to raise the public’s awareness of the ongoing injustices in the Legal Aid system. Kudos are equally due to AG Chris Bentley for listening and taking action to correct them.
Many members of the public don’t realize what legal aid money is actually spent on. The new funding will not only be used for criminal defence. In fact, much of the money will probably be directed towards family law services, such as helping people below the poverty line protect the best interests of their children. Among other things, LAO also funds: community clinics (such as the one I work for), duty counsel in court, aboriginal services, compensation for injured workers, tenant rights protection, compensation for victims of crime, and other victims services.
As for the actual changes, we can only speculate until they are officially announced on Tuesday.
However, Bentley has hinted that he will be moving towards a block-fee system rather than an hourly rate for criminal lawyers. Interestingly, this is the system that was previously in place; it was rejected in favour of the hourly wage with maximum hour caps for particular types of work, such as trials, bail hearings, and Charter applications. The block-fee system was criticized for creating an incentive to work as many cases as possible while putting in as few hours of work as possible into each. It remains to be seen how the AG will address these concerns.
It is also expected that in the family law arena, changes will promote more collaborative dispute resolution, such as mediation. This would be a positive step that would free up court resources and make the family law process much less adversarial.
Another change which I am personally hoping for is a Provincial program under s. 802.1 of the Criminal Code that would allow student legal aid clinics to work on summary conviction cases which are punishable by more than 6 months in jail. Having smaller clinics do this type of work would relieve some of the burden on more experienced lawyers, who could direct their efforts towards defending more serious offences.
See also: $150m More Legal Aid for Ontario
Habeas corpus
Province pays $2,000 each to nine denied prompt bail hearings
The raid was meticulously planned and involved some 1,200 officers, but organizers overlooked one salient factor – ensuring Toronto’s bail courts were prepared for the crush of detainees.
Legal fight continues for ‘refugee’ from South Africa
Government appeals asylum ruling for South African
The federal government is appealing a controversial decision by an independent tribunal to grant asylum to a white South African because he feared black persecution in his homeland.
See also: Canada SA refugee ruling ‘racist’
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- So You Got Punched By a Cop: Disciplinary Action or Civil Suit? Issue Estoppel in Penner v. Niagara (Police Services Board), 2010 ONCA 616
- The ‘Return to Unanimity’ in Insite and Division of Powers Jurisprudence: Chief Justice McLachlin’s ‘Oversight’
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