RSS FeedCourt officer ordered to apologize
In the latest developments of this bizarre case in Maricopa County, Arizona, Judge Gary Donohue has ruled that detention officer Adam Stoddard acted inappropriately when he removed and photocopied a document from the file of defence attorney Joanne Cuccia. Judge Donohue has ordered Stoddard to apologize, however Maricopa County Sheriff Joe Arpaio has responded that such an apology is unlikely to happen.
The case began when, during a sentencing hearing, the defendant alerted his attorney to the fact that court officers had removed a document from her file, behind her back while she was making arguments.
Bailiffs behaving badly: Detention Officer Adam Stoddard (officer on the right)
Previously, Stoddard had argued that he was justified in searching the file and removing the document because certain keywords had made him suspicious. It has been revealed that those keywords were “going to”, “steal”, and “money”.
In his ruling, Judge Donohue held that Stoddard had no reasonable justification for believing a crime was taking place. He found:
At issue was also the effect that Stoddard’s argument had on the reputation of defence attorney Cuccia. The Maricopa County Sheriff’s Office had issued multiple public statements in which they claimed to have been on “high alert” because of two incidents where defence attorneys had helped smuggle drugs and other items to their defendant – a member of the Mexican Mafia. Since Cuccia’s defendant was also a documented member of the same organization, Stoddard felt he needed to be on “high alert”.
However, absolutely no evidence has been presented that Cuccia – a ten year member in good standing with the Arizona state bar – has ever committed or been associated with any such wrongdoing. Cuccia was therefore concerned that her professional reputation would be unduly tarnished; she felt she was herself being accused of a crime.
In his ruling, Judge Donohue agreed. He found false suspicion had been cast on Cuccia, and he framed this as the central issue. “This case is not about disobeying a court order. It is about protecting a defence attorney from misbehaviour and harassment by another officer of the court.”
As a result, he ordered that Stoddard would be required to hold a press conference where he would publicly apologize to Cuccia. The press conference is required to take place before Dec. 1, and must contain a “sincere verbal and written apology for invading her defence file and for the damage that his conduct may have caused to her professional reputation.”
The ruling threatens jail time if Stoddard does not apologize, or if Cuccia determines that Stoddard’s apology is insufficient.
Sheriff responds defiantly
Yesterday, however, Maripoca County Sheriff Joe Arpaio sounded defiant, stating that he “stands behind” his officer.
“Superior Court judges do not order my officers to hold press conferences. I decide who holds press conferences and when they are held.”
Whether this issue will be put to rest therefore remains to be seen. Sheriff Arpaio’s statement suggests Stoddard may defy Judge Donohue’s order. As for the original defendant, Antonio Lozano, his sentencing hearing has been pushed back to Dec. 14, and he is now represented by new counsel.
Heat City article on ruling
Original video of Stoddard
A contract to end the homework
How one family won the battle to ban homework
Shelli and Tom Milley were exhausted by the weepy weeknight struggles over math problems and writing assignments with their three school-aged children. They were fed up with rushing home from soccer practice or speed skating only to stand over their kids tossing out answers so they could finish and get to bed. …
So … the two Calgary lawyers finally negotiated a unique legal contract: their kids will never have to do homework again.
Milleys’ Differentiated Homework Plan
Secret lists
Tonda MacCharles writes:
Canada’s “no-fly” list took effect in June 2007, and almost everything about it – the number of names, the deletions, how it works – is classified. It is believed to contain 500 to 3,000 names.
Because there is no independent oversight of the program, it is up to the top Transport Canada bureaucrat to act as watchdog.
No “necessity” defence for environmental activist in Utah case
A Utah District Court judge ruled yesterday that environmental activist, Tim DeChristopher, would not be able to present a defence of necessity at the trial where he faces charges for fraud and for violating the Federal Onshore Oil and Gas Leasing Reform Act.
Tim DeChristopherOn December 19, 2008, DeChristopher participated in an oil and gas lease auction, where it is alleged he made bids not only to raise lease prices, but also to win leases he had no intention of paying. In that auction, DeChristopher won fourteen leases covering 22,000 acres, and totaling $1.7 million USD.
His actions were an attempt to prevent what some groups saw as a midnight pass by the outgoing Bush administration for the exploitation hundreds of thousands of acres of pristine land in Utah. When charged, DeChristopher attempted to argue necessity to defend his actions. To head off the media circus that surely would have sprouted had he been able to bring global warming in the courtroom, government attorneys filed a motion to prevent DeChristopher from presenting the defence.
In her ruling yesterday, Judge Dee Benson granted the government’s motion, holding that DeChristopher’s offers of proof did not meet any of the requirements for necessity.
In the U.S. Court of Appeals for the Tenth Circuit – of which Utah is a part – the defence of necessity has four elements. The defendant must have:
(1) chosen the lesser of two evils,
(2) acted to prevent imminent harm,
(3) reasonably anticipated a direct causal relationship between his conduct and the harm to be averted, and
(4) had no legal alternatives to violating the law.
Judge Benson found that (1) the “greater harm” DeChristopher feared was too speculative, (2) the harm was not imminent, (3) there was an insufficient causal relationship between DeChristopher’s actions and the harm to be averted, and (4) that a legal alternative did and does in fact exist (the leases in question are also currently the subject of an ongoing lawsuit (Southern Utah Wilderness Alliance v Allred, No. 08-2187, 2009 WL 765882 – for those with Westlaw access).)
This Utah District Court ruling stands in contrast to a UK case last year, where jurors accepted the analogous “lawful excuse” defence asserted by six Greenpeace activists. The activists were cleared of charges stemming from £35,000 worth of damage they caused to a coal-fired power station.
NY Times article
DeChristopher bidding at auction
Judge Benson’s ruling
Serial rapist not forgotten
Cold case search resumes for Woodland Rapist
The Woodland Rapist case haunts seasoned investigators as it did when his reign of terror gripped the Oakville community in the days after a joint Halton-Peel-Waterloo task force released disturbing details in 1995.
Strikers To Target Students…
Yesterday at 00:01, the London Transit Commission went on strike for the first time in almost 30 years. The local 741 Amalgamated Transit Union and the City of London are, depending on who you talk to, either close or far from a deal.
As I am fortunate enough to own a vehicle and I have offered my spare seats to pick up other law students. As I was driving in to pick up a friend, I was listening to the radio and I was glad to hear that UWO had decided to assist students by renting upward of 50 vans to drive students who live more than a 30 minute walk from campus to and from school.
The conversation quickly changed when in the hosts next breath he reported that Pat Hunniford, president of the local transit union, had declared that if UWO goes ahead with trying to provide transportation to its students, that his union would setup a picket line at UWO!
But, he warned, if the University of Western Ontario goes ahead with volunteer drivers using vans to move students, the union will put up picket lines at the campus.
Western’s unions have agreed not to cross those lines, he said.
“The students may get to classes, but they may not have anybody teaching them.”
The longer the strike goes on, the longer it will take for service to resume once a deal is signed, Hunniford added.
Although I understand the importance of unions, I feel that the potential of UWO’s unions holding a sympathy strike would do nothing more than hurt the students. However, I digress.
Back to the LTC picketing UWO’s attempt to provide an reasonable alternative for its students. I immediately thought of the legality of this. In my two months of law school, we have covered cases like this, where the court held that it was illegal to strike on private property (see: Harrison v. Carswell (1975), [1976] 2 S.C.R. 200).
The next thing I thought, is whether the property flowing through UWO’s “boundaries” is actually considered private. For this we can refer back to Harrison v. Carswell where in that case the picketing was occurring on a shopping mall’s property. UWO much like a shopping mall has a direct invitation for people to come on its property to enjoy its use. The dissent in Harrison v. Carswell argued the mall was a public place and as such could be used as such “revocable only upon misbehaviour (and I need not spell out here what this embraces) or by reason of unlawful activity”
However, public and private property in Ontario are also included in Trespass to Property Act, R.S.O. 1990, c. T.21 defines what property (aka premises) is:
“premises” means land and structures, or either of them, and includes,
(a) water,
(b) ships and vessels,
(c) trailers and portable structures designed or used for residence, business or shelter,
(d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”) R.S.O. 1990, c. T.21, s. 1 (1).
As with this definition, it would be fully within the power of the UWO administration to prevent LTC picketers from setting up and preventing the transit of students to and from class. Although I am probably missing something under various Ontario labour laws, I am not really prepared to undertake a full research project into the legality of roaming strikes. Should my simple research turn out to be the law regarding this and should the LTC setup picket lines surrounding UWO, I would encourage the administration to take all necessary steps to ensure that students are not only able to have rides to school, but that classes will still occur.
Should the LTC begin to picket UWO and prevent students from obtaining a ride by UWO, any support held by students toward the union will quickly fall.
I applaud the university’s effort in assisting the students, and I, like many Londoners, hope the strike ends soon without holding the students or rest of London hostage in the time being.
If there is more by way of legality that you can add, please do so in the comments section… Thanks.
Lobbyism
Ottawa tightening rules on lobbyists
Susan Delacourt and Richard Brennan write for the Toronto Star:
The federal government is cracking down on lobbyists working for Crown corporations and institutions such as the Toronto Port Authority and the Canadian Wheat Board. …
The crackdown comes after reports in the Toronto Star about lobbyists’ involvement in a $250-a-head Toronto political fundraiser coordinated out of the office of the president of the port authority, a position Natural Resources Minister Lisa Raitt held before running successfully for the Conservatives in 2008 in the riding of Halton
Uttering threats
Disclaimer: The text below contains only my understanding of the applicable law. It has nothing whatsoever to do with your particular situation. Do not assume you can make any decisions based on this text. I do not intend this text to apply to anyone’s situation. This text is not legal advice. The purpose of this text is to encourage debate and create awareness of certain criminal offences. Please consult a lawyer if you need legal advice or help with your particular situation.
Watch your mouth. Your mom or buddy told you this in high school when you blurted out something stupid or offensive. But it’s also what the law tells you now with all its authority and with all its might. Freedom of speech is not absolute, and for some speech, the law will put you in jail. It is a crime, for example, to make death threats or to promise to injure someone or to burn someone’s house. In 2009, at least two high-profile stories of prosecution for uttering threats hit the papers. The father of baby Kaylee was charged with threatening death and causing damage in September, and the sister of Toronto’s deputy mayor was charged with threatening death in April. The potential punishment is up to five years in prison. And if you are not a Canadian citizen, they can kick you out of the country. The law may come crushing down on you if you “utter threats,” so how does it work, exactly?
Section 264.1 of the Criminal Code defines the crime and the punishment for uttering threats. If you threaten anyone with death or “bodily harm,” you can get up to five years in prison. If you threaten to harm anyone’s property or animal, you can get up to two years in prison. The courts have said that you don’t need to be violent, to slap anybody on the face, to step on a dog’s tail, or to punch anybody’s car to commit this crime. Words are enough. Of course, if you jokingly yell “I’ll kill you!” and chase after your best friend who kicked you during a ball game, the law is not interested. You must intend to intimidate when you make your threats. You must want the other person to take your words seriously. But the victim does not need to understand or even know about the threat. All the Crown must prove when they haul you to court is that you “uttered the threat.” Even if you threatened not a specific person but a member of a race or a religion or some other group of people, you can be convicted.
A special warning to those who are not Canadian citizens. The government can deport you for certain crimes, and the law may ignore how long you lived in this country. They can kick you out even if you are a permanent resident and you lived here for 50 years. Uttering threats is one such crime. Under section 36(2) of the Immigration and Refugee Protection Act, the government can tell you to leave Canada, if you are a permanent resident and you were sentenced for any crime to more than six months of imprisonment. Uttering threats fits the bill because you can go to prison for up to five years. If you are not a permanent resident but just a visitor, a foreign student or worker, etc., it’s even easier for the government to expel you. Even if you don’t go to jail for uttering threats, the conviction alone is enough for deportation. Words can cost you dearly.
Most people are not criminals, and you can even say that it’s not that easy to commit most crimes. But some crimes are crimes of mere words with severe punishment in prison. There is no freedom of speech for these words. If you tell someone that you’ll kill them, or that you’ll cut their balls off, or that you’ll burn their house, or that you’ll kill their parrot, or that you’ll stab their tires, you can go to prison. If you are not a Canadian citizen, they can also throw you out of Canada. So know the law and watch your mouth.
Women Ski Jumpers Grounded…
The BC Court of Appeal has dismissed an appeal filed on behalf of a number of a group of women ski jumpers attempting to get inclusion into next years olympics being held in Vancouver. Written statements were not given, but will be available next week.
Previously, the BC Superior Court ruled that although there are definite Charter breaches and discrimination is evident, they do not apply to the Swiss based International Olympic Committee. On behalf of the women ski jumpers, they argue because the women’s event is not yet a recognized sport, they are under the jurisdiction of VANOC (Vancouver Olympic Committee), which as a Canadian organization is bound by the Charter.
There is no word to whether this will be appealed to the Supreme Court of Canada.
Should they continue to the SCC and win the IOC will be forced into one of three options:
1. Include them
2. Cancel the men’s event.
3. Hold the men’s event outside Canada, so the Charter does not apply, and they can hold only the men’s event.
As the eleventh hour of the games near, if they decide to go to the SCC, expect a quick turnaround.
This is the Guy that Messed up the Curve
Getting justice is no popularity contest
By Kashif Ahmed, Special to The StarPhoenix
November 13, 2009
Friday the 13th often is disparaged as an unlucky day, or conversely, lauded as one that brings good fortune. Canadian citizen Omar Khadr and human rights advocates certainly are hoping it’s case of the latter.
Today, the Supreme Court of Canada will hear what may be its most important case of the year — whether or not the federal government should ask for Khadr’s repatriation from the Guantánamo detention facility. The stakes are high for both fundamental Canadian rights and for Khadr, who is the only western national still imprisoned in the notorious modern-day gulag.
Since 2002 and the age of 15, Khadr has languished in a virtual legal limbo and deteriorated physically. At question is the failure of successive governments, both Liberal and Conservative, to bring him home after observing years of pseudo-legal games by the Americans and despite firm evidence of his inhumane treatment, including repetitive sleep deprivation.
Canada’s stance on Khadr’s treatment is in stark contrast to the actions of our allies, including Great Britain, France and Germany, that long ago repatriated their citizens from Guantánamo.
Ruling in 2008 on the disclosure of documents in the Khadr case, the Supreme Court stated that his detention was a “clear violation of fundamental human rights protected by international law.” Furthermore, it said, the government became complicit in that breach when CSIS agents interviewed Khadr in 2003 while knowing he had been mistreated and “softened up” to make him more compliant.
The argument the government makes in this challenge of the Federal Court of Appeal order to repatriate Khadr is all too familiar and equally weak — that he’s under American jurisdiction. The military commission trial system has been severely criticized by U.S. courts, so much so that President Barack Obama ordered a full review and the eventual closing of Guantánamo.
The government further argues that the Khadr affair is a foreign policy issue and thus outside the scope of judicial examination. This contention is tenuous at best, given that the consequential impact is on the constitutional rights of a Canadian, not on some broad foreign policy objective of the government.
Most interestingly, Crown counsel conceded before the Supreme Court in 2008 that essentially there was no risk to bringing Khadr home. This factual admission signals a different set of reasons from the government to prevent Khadr’s return. In the absence of any other rationale, we can only speculate that the government’s motivation to prevent Khadr’s return is to avoid subsequent embarrassment.
But, the Khadr case also speaks to a more central issue of concern: The protection of basic rights and interests of Canadians detained abroad.
We have already witnessed the disturbing treatment of Maher Arar, Abousfian Abdelrazik and others. Their ordeals opened a window into the isolation and abandonment of Canadians when they are beyond Canada’s borders and at their most vulnerable.
Certainly, the Khadr family’s controversial public pronouncements haven’t been helpful. Also troubling is their tale of living in Afghanistan alongside notorious extremists, although little is known about Omar himself.
Nonetheless, popularity cannot and should not be used as the litmus test to determine whether a Canadian is afforded human rights and due process. One’s reputation or that of one’s family is not the crux of the matter, although some have attempted to make it the lead talking point. Public perception and a sordid family history can never be the basis upon which rights are accorded to some citizens and denied to others. Second-class citizenship is neither an answer nor can it be tolerated.
Do we really want a false dichotomy between security and human rights to take root in the Canadian narrative? Like it or not, Khadr is a Canadian. Nothing the government or commentators say will alter that.
And despite public misgivings, this case is of great importance to all Canadians, not just to human rights activists and advocacy groups.
The only true “test” that binds our courts, our society and our country is the Charter of Rights and Freedoms — that essential edifice of our values and the only narrative worth defending.
Lawlessness
Caledonia family lived ‘terrified existence’
Barbara Brown writes for the Hamilton Spectator:
A Caledonia family lived inside “a war zone,” says a Hamilton lawyer whose clients will testify about being trapped inside the barricades during the 2006 native occupation of the Douglas Creek Estates.
Awards
Partners
sLaw- The Court
- British Columbia (Ministry of Education) v. Moore: Comparing Approaches to Comparator Groups in the Context of Anti-Discrimination Legislation
- 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’
- UofT
- UofC
- UofA
- LexMonitor
- blawg