RSS FeedJustice on Target
From my blog: Simon Says.
In my last post I discussed the current state of the legal system, with respect to the time it takes for a case to be completed in court. With averages in 2009 of 214 days to completion and 9.2 court appearances, it’s not hard to understand why the public perception is that the system isn’t working very efficiently.
The provincial government has been aware of the dramatically increasing trend in these numbers over the past decade and in June of 2008 Attorney General Chris Bentley announced the government’s strategy to deal with this: Justice on Target.
The goal of Justice on Target is a 30% reduction in the average number of days and court appearances of 2007 numbers (which were 205 days and 9.2 appearances) by June of 2012. If successful, this would result in half a million fewer court appearances each year.
The first phase of the initiative identified seven strategies designed to move straightforward cases through the system faster, allowing more time for complex cases that require it. The first two initiatives to be implemented are dedicated prosecution and on site legal aid
In 2008, the Ontario Courts of Justice in Newmarket, North York, and London were designated as the first “Action Sites” in the phase one of the rollout. Phase two began in 2009 and included Toronto’s Old City Hall, Brampton, Windsor, Sudbury, Kitchener, Etobicoke, College Park and Scarborough.
The Justice on Target strategies were supposedly developed after consultation with all relevant participants in the criminal justice system. I can’t speak for the other participants, but I know that in policing, when someone at the top (i.e. the chief or, say, the Attorney General) asks for your input the typical PC response of management is to say what you think they want to hear. Shockingly, no one with a dissenting opinion ever seems to be asked to share their ideas. I wonder who exactly was asked for their opinions and to what extent this happened with Justice on Target.
Justice on Target is full of lofty goals and nice buzz words, but is it working? Let’s look at the numbers and then decide. Note that the only sites we can examine at this point are the three from the first phase, which began in 2008. We will use 2007 as a baseline.
In 2007 Newmarket had an average of 195 days and 8.5 appearances. In 2008 it was 218 days and 9.3 appearances, an increase of 11.8% and 9.4% respectively. 2009 showed a drop of 7.3% and 11.2% to 202 days and 8.2 appearances. Not bad…
In 2007 North York had an average of 224 days and 9.5 appearances. Statistics remained constant in 2008, but in 2009 there was a drop of 13.4% and 10.5% respectively to 194 days and 8.5 appearances. Pretty good!
London had an average of 181 days and 9.4 appearances in 2007. In 2008 the days increased by 5.5% to 191, while appearances fell 3.2% to 9.1. In 2009 days fell back 4.7% to 182, while appearances increased 3.3%, back to 2007 numbers. Ok, that’s a little confusing…
The final assessment? Although the numbers are not entirely consistent, they do look promising. I would note that since 2000 there have been periods prior to Justice on Target where there has been a decline in the numbers from the previous year, although there has definitely been an overall increasing trend. It will be interesting to see if numbers continue to decline in 2010 and beyond for these three sites and if the sites added in 2009 have similar results.
I look forward to revisiting this topic with you next year for another look.
Presentation on Free Legal Resources
Here’s a presentation of some tools and resources available which might be useful for law students and small firms looking to keep costs down:
Articling Positions are Cool Too
It’s no secret that the economic crisis has affected the legal industry by reducing the number of entry-level positions in the field. And although Canada is still positioned better than the U.S., there are many people here being affected by this as well.
The graduating class of 2010 is particularly affected given the less number of articling positions available. Unlike some jurisdictions outside of Canada, where students can be licensed and practice as a lawyer straight out of law school, an articling position remains a prerequisite for admission to the bar.
We’re setting up a page on this site to list some articling positions available, to help students and potential employers find themselves. We’re going to try to offer this project free of charge, as a service to our primary readership, law students and members of the legal community.
We encourage law firms, sole practitioners, and career service officers to contact us to help us populate this page and keep it current. Because it’s all fine and dandy to go to law school for three years and pay enormous amounts of tuition, but it would be pretty cool to get called to the bar as well.
Considering the Constitutionality of Bill 94
May 18 is the national day of action against Bill 94, the proposed legislation in Quebec, which if approved, would deny essential government services, public employment, educational opportunities, and health care to Muslim women who wear niqab (face veil). A rally has been arranged in Toronto to take place at 1PM at 20 Queen Street W. Other actions, such as contacting MPs, are also urged for that day.
In her essay, Bill 94: Quebec’s Niqab Ban and Sex Equality, Beverley Baines, professor of Law and the head of the Gender Studies Department at Queen’s University, considers the Bill within Constitutional a framework that should, by now, be familiar to all the former first-years who’ll have written very similar case scenarios during their final exams lo these two weeks ago:
If Bill 94 becomes law, a constitutional challenge would begin with the two preliminary issues that are raised in any Charter challenge. First, does the Charter apply to the impugned action? Here the answer is yes because the impugned action is a statute and the Charter applies to legislation. Second, does the party bringing the Charter challenge have standing to proceed, that is, does the party have an interest that is harmed by the law? Again the answer is yes because the party bringing this hypothetical Charter challenge is a woman who has been or is about to be excluded from providing or receiving a government service in Quebec because her face is covered by the niqab. With these preliminaries satisfied, the next steps are to ask: (i) have one or more Charter rights been violated? And if so, (ii) can Quebec justify violating these Charter rights? What follows are two possible Charter scenarios, the first more conventional than the second.
She concludes:
Women seeking to challenge the niqab ban should invoke their right to sex equality to emphasize their belief in the consistency between this right and their reasons for wearing the niqab. Their challenge would force Quebec to fall back on its second or institutional justification – reasons of security, communication, identification – to justify denying reasonable accommodation. If Quebec has any evidence to sustain these reasons, why should it not be produced, contested and evaluated? The failure to manifest transparency suggests this evidence may not be as conclusive as Quebec asserts. Moreover, Quebec needs to explain why other more minimally rights-impairing processes would not be sufficiently responsive to its institutional concerns. Finally, Quebec should articulate how its institutional reasons could possibly trump sex equality, given everything this province claimed about the priority that should be given to sex equality during the drafting of s. 50.1? Does sex equality matter only when Quebec claims to be its primary exponent?
Privacy Issues in the Workplace
Pavlov’s Law and the Criminal Justice System
From my experiences dealing with the different participants in the justice system (accused, victims, witnesses, court personnel, etc) and listening to the public’s opinion, I feel confident in saying that most people are frustrated with the length of time it takes for a case to be completed in court after an offence is actually committed.
I think that most people believe in the old adage that “justice must be swift to be maintained” and the perception is that this is not happening. Indeed, this is not merely perception, but reality. Statistics from 2009 indicate that the average number of days a court case takes in the Province of Ontario until a disposition is reached is 214, with an average of 9.2 appearances in court. In some regions in Ontario these numbers are as high as 330 days and 13.1 appearances. This is an increase of 21.6% and 42.4% respectively.
Based on these numbers I would suggest that the public’s perception is very justified and polls show just how widely held this perception is. According to the Department of Justice’s Review of Opinion Polls of Public Perceptions of Crime and Justice in Canada, 36% of Canadians claimed to have little to no confidence in the provincial court system, with a further 48% stating that they have only “some” confidence.
Might that be (at least in part) because, like Pavlov training his dog, people understand on some level that the effect (the punishment) must be proximate to the cause (the crime) in order for the association to effectively be made? If it is not, how can the offender understand the consequence of their actions? How can their sentence properly act as a deterrent? If your five year old child draws on the wall with crayon and 7 months (214 days) later you punish them for it, are they really going to learn their lesson?
Disparity in the proximity between the time of the offence and the time of sentencing causes problems for other participants in the justice system than just offenders, including victims, witnesses, and police.
Victims of crimes I’ve investigated have often expressed to me that they feel as though they are continually being victimized while the court process drags on and that they can’t really move on until it’s complete and they have some sense that justice has been done. This is especially true in cases where the crown intends to seek restitution from an offender for some loss that a victim has suffered.
Witnesses in cases I’ve had have often become more reluctant as time goes on to testify in court. Sometimes this is because their memory of the incident gets less clear as time goes on and they don’t want to put themselves in a position where they will be asked about details that they can’t remember. Sometimes, in cases involving criminals who are witnesses against other criminals, this is because there has been time for the accused to tamper with or intimidate the witness or because they’ve had a lot of time to dwell on the possible repercussions of testifying and have convinced themselves that the worse case scenario will happen, that the accused will “get them when they get out.”
Police are subject to the same problems as other witnesses with respect to their memory of an incident degrading over time. This is why police make notes of the incident to refresh their memory in court, but when you’ve dealt with a hundred similar cases since the one in question, the details sometimes blend together and answering questions about details strictly from your recollection (that you made no notes on) becomes very difficult and can adversely affect the prosecution of a case.
This happened in my first impaired case. I stopped a young man just down the street from where he had dropped his friend and his (the friend’s) girlfriend off. They were both drunk and were fighting and rolling around on the boulevard and the in the street. I suspected, based on the driving I observed and the report of the complainant who stated that he thought that all three were drunk, that the driver might have been drinking, but I didn’t have time to confirm the grounds.
Immediately after stopping the vehicle, I took the keys from the driver to keep him there and went to deal with the other two, who were in danger of being hit on the road. I ended up having to arrest both of them for public intoxication, for their own safety, in order to get them off the road. I called for another unit to take over their arrest and dealt with them until the unit arrived. A short time later I returned to the vehicle, confirmed that I had grounds to make a roadside demand and produced the breathalyzer, which the driver blew into and failed. He was arrested for Impaired and Over 80.
When the case came to court, over a year and many impaireds later, I was asked specific questions by the defence counsel about how long the accused was detained while I dealt with the other two and what exactly I was doing with them the entire time and how long it took me to get back to the accused and form my grounds. I couldn’t remember all the details and I hadn’t made notes on what I was doing at every moment. The case was dismissed based on the fact that the judge felt that we had unjustifiably detained the accused for too long without having formed grounds and made the breath demand.
Had I been able to recall better what exactly I had been doing during this time and articulate how I couldn’t have gotten back to the accused any sooner, the case might have gone differently. That is just one personal example of the problems associated with delays in court. I have many more.
Fortunately, the provincial government has acknowledged these issues and has developed a strategy to deal with them. But this post has gone on long enough so check out my next one for the details of how the government is addressing these issues.
Legal Domestic Dispute Is Brewing…
I have to admit that I called this one. As my wife and I were watching CBC’s Dragon’s Den an interesting segment began. Before I go into the relevant legal issues in this case, some background is required.
One of the “Dragons” is Jim Treliving is, among other numerous ventures, a co-owner of Mr. Lube.
Fast forward to the episode that I was watching. Out comes Jessica Gilbank, who is the owner of Ms. Lube by Mechanchik. She is the owner of an oil changing garage that employs women, because she found it hard for female mechanic apprentices to break into the male dominated field.
Although I know little about copyright law, Treliving clearly indicated in the episode that he did not even want to participate in the segment because he clearly felt that Ms. Lube was infringing on the Mr. Lube brand.
Fast forward again to this week, where my prediction came true. The Globe and Mail has reported that Mr. Lube has filed a $250 000 lawsuit alleging that the use of the name Ms. Lube should be prohibited based on copyright law.
As this legal domestic dispute unfolds we shall see how the court rules.
What is more interesting to me is how this may affect the CBC and potential “contestants” on Dragon’s Den. For this, too we will have to wait and see as the next season of Dragon’s Den is currently filming.
‘Nazi’ listed as an identifiable victim group in Toronto Police’s 2009 hate crime stats report
In the article below Karolyn Coorsh shares some mind-blowing news about the latest act of incompetence by Toronto’s finest. This is yet another bizarre act where Toronto cops are upside down and inside out in their approach to dealing with bias crime in the city. It comes on the heels of an ongoing civil case by a young Jewish lawyer in the city who is suing the Toronto Police Service for defamation after they incorrectly classified him as a nazi when speaking to staff at York University (where he was a student). It is also on top of complaints raised by anti-fascist / anti-racist activists in Toronto between 2004-2006, who reported being harassed by, of all people, members of the hate crimes unit of the Toronto Police Service. Similar complaints were also raised in 2007.
Is Signalling Always Required on Roads in Ontario?
From my blog: Simon Says. Category: Police Myths
Prompted by one of the comments to my blog post, Is is legal to pass on a solid yellow line?, I will be writing today about whether signalling a turn or a lane change is always required. Simon Says: No!
First let us explore the relevant section of the Highway Traffic Act. Section 142 (1) states: “The driver or operator of a vehicle upon a highway, before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway, shall first see that the movement can be made in safety, and, if the operation of any other vehicle may be affected by the movement, shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.”
Regina v. Lebedorf, [1962] O.W.N. 233 (H.C.), creates two separate offences out of this section. The first is the offence of failing to see first that the movement can be made in safety (Turn/Change Lane Not in Safety* – $110 fine/$180 in a community safety zone) and the offence of failing to give a signal plainly visible to the operator of any other vehicle that may be affected by such movement (Fail to Signal Turn/Lane Change* – same fines). For the purposes of this post we will deal with the second offence.
In Regina v. Dillman, [2008] O.J. No. 1120 (Ont. C.J.), the court determined that the offence of turn-not in safety set out in subsection 142 (1) of the Highway Traffic Act was an offence of strict liability. I am persuaded, largely by the Supreme Court’s decision in Regina v. Sault Ste Marie, [1978] 2 S.C.R. 1299, that this classification must apply to the offence Fail to Signal as well. In Sault Ste Marie the court indicated that there is a presumption of strict liability for these types of offences, unless it has been determined otherwise. It does not appear that it has Fail to Signal has been classified as an absolute liability offence and, further, it was conceded in Dillman that the other offence in the same section is not either.
Strict liability means that the prosecution is required to prove actus reus (that the prohibited act itself was committed) beyond a reasonable doubt. But, in strict liability cases, the defendant can make a defence of due diligence, based on a balance of probabilities, by showing that they took all reasonable steps to avoid the offence.
Whether signalling a turn or lane change is always required hinges on one word in the section: if; “if the operation of any other vehicle may be affected by the movement, shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.”
Signalling applies to motor vehicles, trailers, and bicycles and can be accomplished by either electronic means (blinkers) or by way of hand signals, as outlined in Section 142, subsections 3-6. But, if there is no one else on the road to be affected, it is not an offence to fail to signal. If an officer observes a driver fail to signal a turn or lane change and wishes to lay the charge against them, they will be required to articulate in court what other vehicle was affected by the turn and how.
Common sense would dictate that “being affected” requires that the person being affected actually be forced to make a course correction, accelerate, or decelerate, in order to avoid a collision with the vehicle that failed to signal. I would suggest that a person (including a police officer) cannot “be affected” if they simply observe the failure to signal from a distance.
However, whether or not it is legally required to signal in a particular situation, we must remember the intent of the legislation: to create an orderly and predicable flow of traffic in order to avoid collisions. Based on that premise it seems prudent to form a habit of signalling, in order that it not be forgotten when needed.
*These are the approved short form wordings for the offences under Section 142 (1)
Chapter 2 of the White Man’s Burden
Does a police officer have to show you the number on the Radar?
From my blog: Simon Says. Category: Police Myths.
Another question I was asked frequently during my time as a police officer is, “Does the officer have to show you the number on the Radar they used to clock your speed?” Simon Says: No!
This is another myth that probably began from some jurisdiction in the United States, but in Ontario this is not required. I believe this holds true in all other Canadian jurisdictions as well. This applies for both Radar and Laser units, which are the two types of speed measuring devices in common use by police services in Ontario.
Speeding is considered an absolute liability offence, which means that the Crown does not have to prove that you intended or even knew that you were speeding. They only have to prove that you were. An absolute liability offence means that there are no defences of due diligence available to the defendant to excuse their actions. The key piece of evidence the Crown needs to prove the offence of speeding is the measurement from the speed measuring device. The officer’s verbal evidence in court as to what reading he locked on the device will be sufficient evidence to prove the speed (though not necessarily the whole case). The officer’s verbal evidence can be challenged but if all you do is disagree with the speed they testify to, it is not likely you will be believed, unless the officer has credibility issues. The court usually weighs officer’s accounts of numbers heavily, since they were specifically in the execution of their duties at the time and made notes of everything during the incident or shortly thereafter.
With respect to not being allowed to view the device, Section 46 (2) of the Provincial Offences Act entitles defendants to “make full answer and defence.” However, creating a proper defence for a speeding trial does not require that the defendant viewed the speed measuring device to confirm that the officer read it correctly. Reading the numbers on a digital display is one of those things that police are trusted to be able to do accurately so claiming that the officer read the numbers wrong will probably not be the key to creating a proper defence. It would be up to the defendant to articulate why they feel the officer was wrong in their particular case and how their inability to confirm the reading prejudiced their ability to make a proper defence. To my knowledge no one in Ontario has successfully made this argument yet, but if you’d like to be the first, give it a shot!
Personally, I rarely ever showed people the Radar or Laser I used, except maybe if it was a confused old grandma who didn’t speak English very well and clearly had no idea what was going on. First, because it’s just not relevant to a person’s ability to make a defence, since I was confident in my ability to read the digital display properly and second because I know an officer who showed a roadside device to someone to check the reading and had the person grab it from them and smash it on the ground! In my experiences the bosses are not very happy when you cost the service more than twice as much as it would have cost them to pay you to stay home for the day…ask me how I know! :)
Guns, Gangs and Toronto Community Housing
From my blog, Simon Says. Category: Police and Law News.
From the CBC: Toronto police raids snare 71 gang suspects
Project Corral was a Toronto Police investigation involving a number of other services, which focused on two gangs, the Falstaff Crips and the Five Points Generals, as well as the Shower Posse, a Jamaican organized crime syndicate who was supplying both gangs with guns and drugs.
Chief Blair is very proud of himself for the success of this project, as well he should be considering that, in addition to 71 arrests, police seized 10 firearms, $30,000 in cash, $10,500 in casino cheques, cocaine, crack cocaine, marijuana, hashish oil and vehicles. This is no small feat and no doubt many lives have been saved.
Most of these gang members lived and operated within the communities of Toronto Community Housing and in the aftermath of Project Corral there will either be a deadly resurgence of these gangs, as they try to reestablish themselves in these communities, or there will be a power struggle to fill the void. Either way this is not good for the officers of Toronto Community Housing!
TCH is comprised of some of the worst government subsidized housing projects in Toronto and is patrolled by unarmed special constables, provincial offences officers and parking enforcement officers! These officers operate as first responders in these communities, assisted by Toronto Police when necessary.
The problem is, Toronto Community Housing officers are significantly under equipped to deal with the situations they are put in. They are often first on scene to calls involving guns, gangs, drugs, assaults, domestic violence, suicides, and shootings. They respond to the same calls that Toronto Police officers do, but they don’t carry a firearm? Mr. Blair, give your head a shake and wake up before one of these officers doesn’t get to go home to his wife and children at the end of the day!
My friend who works for TCH once encountered a drug dealer on a call in an apartment complex. The drug dealer sicked his pit bull on the officers and, in order to save his own life, my friend was forced to kill it with baton strikes to the head. But apparently he doesn’t need to be armed.
Another officer I know in TCH responded to a call that was an hour old for suspicious activity in an apartment complex laundry room, where he had little to no radio reception. When he entered the laundry room he observed two males with marijuana and scales in plain view. He moved in to make an arrest and the males fled. He caught one of them and while patting him down he felt the butt of a pistol sticking out of the back of the his waistband. As soon as he touched it the fight for his life was on. He was eventually able to wrestle the gun away from him and call for help but the male escaped. The pistol was a 9mm semi auto with a do-rag wrapped around the ejection port to catch the spent casings. I guess this officer didn’t need to be armed either.
I can pretty much guarantee that every crazy thing you’ve heard about Toronto has been dealt with by a Toronto Community Housing officer at one point or another. They have a very difficult job to do I sincerely hope, for the sake of these officers and their families, that Mr. Blair and the Toronto Police get a reality check soon and arm them!
