RSS FeedSqueezing Blood From A Stone: No Onus on Impecunious Offender to Prove Inability to Pay Fine in R. v. Topp
In the recent Supreme Court of Canada (“SCC”) decision in R. v. Topp, 2011 SCC 43 the Crown attempted to do the impossible and get blood from a stone. The metaphorical stone in this case was John Phillip Topp, a defendant sentenced to five years in prison for his conviction on 16 counts of fraud and attempted fraud under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). Topp had defrauded Canada Customs of $4.7million through his brokerage business. The Crown sought to have a fine of the same amount imposed on Topp in addition to imprisonment, but Baltman J. of the Ontario Superior Court of Justice refused to impose any fine whatsoever because she was not persuaded that Topp had the ability to pay pursuant to s. 734(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (“CCC”). Both the Ontario Court of Appeal and the SCC upheld Baltman J.’s decision not to impose a fine due to Topp’s inability to pay the fine.
Summary of the Law and the Crown’s Argument
Subsection 734(1) of the CCC provides that a court may fine a convicted offender in addition to imprisonment subject to ss. 734(2). Subsection 734(2) provides,
Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736 (emphasis added).
The Crown argued that ss. 734(2) should be interpreted to require the defendant to prove that he or she is unable to pay – in essence a reverse onus. This argument was made because the Crown could not track the whereabouts of the $4.7 million and Topp could not explain what happened to the money. Fish J., writing for the unanimous SCC, rejected the Crown’s argument because the legislative intent of requiring that a defendant be able to pay was to avoid imprisoning individuals for failing to pay fines. As well, the wording of ss. 734(2) did not create a reverse onus for the defendant.
While there is no formal burden on the Crown to prove a defendant’s ability to pay, in practice the former will need to marshal evidence of the latter’s ability to pay. Fish J. explained that, “as a matter of law, the court cannot impose a fine unless it is satisfied [on a balance of probabilities] that the offender is able to pay. This necessarily involves an affirmative finding based on the evidence and information properly before the court pursuant to ss. 720 to 724 of the Criminal Code. Absent a sufficient basis for that finding, the party seeking the fine cannot legally succeed.” Evidence must be marshaled otherwise a sentencing judge cannot make a finding that a defendant is able to pay. Similarly, while there is no formal burden on a defendant to rebut the evidence marshaled by the Crown, the defendant is free to present evidence on his or her inability to pay. Read more
The death of Troy Davis
On September 21, 2011, at 11:08 pm Eastern Daylight Time, Troy Anthony Davis was declared dead.
Cause of death: lethal injection. Administered by: employees of the state of Georgia. Legal justification of homicide: a court order. Grounds for the court order: Troy Anthony Davis’s murder conviction.
Societies punish crimes for specific reasons. Section 718 of the Canadian Criminal Code is a good summary of purposes of criminal sentencing:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
Death penalty doesn’t rehabilitate or deter the offender, doesn’t compensate anyone, and doesn’t make the very dead offender feel any responsibility for or acknowledge anything. It should be pretty clear by now that it doesn’t deter others too. It does separate the offender from society, so to speak, but usually prisons do that job perfectly.
But denounce, it does.
So the only true reason for death penalty is denunciation. All other reasons either do not exist or do not require death penalty. Societies, at least rational societies, kill only to denounce, to show contempt for the crime, to assign a special measure of gravity to the illegal act. There is no other reason. The only reason for death penalty is really a symbol.
No doubt, denunciation can be a valid reason. But let’s see what price we pay for denouncing by death.
You can look up Troy Davis yourself and find out that his conviction was based on eye-witness testimony much of which was later recanted. I probably don’t need to explain why this creates a possibility that he was innocent. This possibility is also called reasonable doubt. And the supreme value of our society is preservation of innocent life. You would think the courts would choose the chance and the possibility of preserving innocent life over a chance to denounce murder. After all, no one would think more kindly of murder if Troy Davis got a life sentence or if he was released based on reasonable doubt in his guilt. And there is another value the courts would have protected if they spared Davis’s life: fairness. The more opportunities an accused person has to clear his name, the more fair our legal system is.
But the courts chose a different value over all the others: finality. Its purpose is to unclog our court system and to give litigants some sort of confidence that their case is not going to be reopened. This value is very important in civil litigation: hence, limitation periods, res judicata, etc.
In criminal law, finality serves victims and their families and the public purse to some extent. It doesn’t usually serve the accused, and it certainly didn’t serve Troy Davis.
The courts chose finality for the victim’s families and the public purse over fairness to Davis and preservation of his potentially innocent life. You decide if it was the right choice.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Ethical walls and conflicts of interest
When I meet with clients for the first time, I tell them about confidentiality. The moment the client opens his mouth, I explain, I lose the right to act for his adversaries. And most likely, that moment occurs even earlier: when the client walks through the door of my office or even schedules an appointment with me. Sometimes, I tell about an episode of The Sopranos where the mob boss saw every good divorce lawyer in town to conflict them out from representing his wife. This confidentiality burden is a good reason why lawyers charge for initial consultations (criminal or personal injury lawyers don’t because they usually never act for the Crown or insurance companies).
A recent case of a former unmarried couple’s battle in family court over their child is a good example of the importance of confidentiality (M.S.K. v. T.L.T., 2011 ONSC 5478 (CanLII)). It’s been a long fight with many motions and court orders since the couple’s separation in 2000. But last Tuesday, on September 20, 2011, Justice Wilson of the Superior Court issued her decision on an issue of confidentiality: she ordered that Lorne Wolfson and his firm be removed as the male party’s lawyer because Wolfson’s clerk worked for the female party’s lawyer before.
The reasons for Justice Wilson’s decision explain the test for conflicting a lawyer out of a case:
1) a previous relationship with the lawyer who is allegedly in a conflict of interest
2) the relationship must be sufficiently related to this case
3) the lawyer fails to prove not receiving any relevant confidential information in the prior case
The lawyer or his firm will be in a conflict of interest even if the relationship above was with the lawyer’s employee.
The purpose of this test is to ensure the public’s confidence in the justice system and in lawyers. The competing factor that the court must consider is the harm that losing a lawyer causes a litigant.
If branches (1) and (2) of the test above are true, the court will presume transfer of confidential information. The lawyer can still prevent the court from conflicting him out if he can prove there was no such transfer. But the lawyer’s burden of proof is heavy. A case called Marinangeli v. Marinangeli shows the weight of this burden: lawyer 1 who used to work for party A joined a firm that acted for party B. The firm erected an “ethical wall” around lawyer 1, and he swore in an affidavit that he didn’t discuss A’s file with anyone at the firm and didn’t even remember the file’s specific details. But lawyer 2 at the firm who acted for B failed to swear his own affidavit. The court found that the burden of the third step in the conflict test was on lawyer 2, and he failed to discharge it.
Justice Wilson found that Wolfson’s clerk had a previous relationship with the female party because the clerk used to work for the female party’s previous lawyer when he represented the woman in the same separation battle. The judge found that the clerk’s past relationship with the female litigant was sufficiently related to the current case. At that point, the judge presumed that the clerk was privy to the woman’s confidential information. Like in Marinangeli, the clerk filed her affidavit, but in contrast to Marinangeli, no ethical wall was erected around her. And Wolfson didn’t file his own affidavit. Not surprisingly, Justice Wilson found that Wolfson failed to discharge the burden of the third step of the test. Since Wolfson’s client didn’t give any evidence of harm he would suffer if the court removed Wolfson, the appearance of the justice system’s integrity sealed the fate of this motion, and Justice Wilson ordered that the law firm representing the male party be removed as his lawyers of record.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Review of Dennis Edney’s Lecture, “The Rule of Law in an Age of Terror”
“Human rights have a dysfunctional relationship with justice. The language is certainly beautiful, but it’s all dressed up with nowhere to go,” charged Dennis Edney in a scathing lecture at the Faculty of Law at UBC on September 15.
Edney worked from 2004 to 2011 on Omar Khadr’s defence against charges stemming from the July 2002 firefight death of a US soldier. Khadr, who is Canadian, was 15 at the time. American forces interrogated him for three months in the US-operated Bagram Theatre Detention Facility in Afghanistan, before transferring him to Guantanamo Bay, where he remains. In 2005, Khadr’s chief interrogator from Bagram, US Sergeant Joshua Claus, was found guilty of offences relating to the routine torture and homicide of Bagram prisoners. Claus received a five-month prison sentence. He testified at Khadr’s military trial in 2010.
In April 2009, the Federal Court ruled that Canada was complicit in the US’s torture of Khadr and ordered Ottawa to seek his repatriation. The Federal Court of Appeal concurred, but the Supreme Court ruled 9-0 that though Canada was violating Khadr’s human rights, it was not obliged to seek his repatriation.
In October 2010, after insisting on his innocence for years, Khadr pled guilty in a military trial to terrorism-related offences, in exchange for a promise from Canada to repatriate him by October 2011 to serve the rest of his prison sentence in Canada. On September 20, the Conservatives tabled the controversial omnibus Bill C-10, which adds “additional criteria” to decisions about “whether or not to allow the transfer of a Canadian offender back to Canada to serve their sentence.”
Shortly after the trial, Edney declared that Khadr “would have confessed to anything, including the killing of John F. Kennedy, just to get out of this hellhole” and that if he had refused, Khadr would have been faced with “an unfair [military] trial based on evidence that would be inadmissible in a real court.” On Thursday, Edney said the detainees are entitled “to all kinds of international protections, but our governments are not asking for them. And by not asking, we become complicit.” There are nearly 800 prisoners in Guantanamo, but only 4 have been charged and given a trial. Detainees cannot see the evidence used against them.
In his lecture, Edney denounced the Canadian government for perpetuating a culture of fear in the camp’s defence. Edney stated that “since there has always historically been terrorism, and since there will always be terrorist threats, this war on terror – if allowed to be one – is unlike any other, because it is never-ending.” Thus, last decade has been marred by “habeas corpus being abandoned, secret courts being created to hear secret evidence, guilt inferred by association, torture and rendition nakedly justified.”
“I went into Guantanamo Bay as a lawyer and I came out as a broken father,” said Edney. “I never thought that in my lifetime I would go to such an evil place and see such evil being done.” Of the infamous cages, Edney said that “people go into those cages thinking they’re having a holiday in there.” He drew attention to Camps 5, 6, and 7. The first two are “designed for enhanced interrogation tactics: torture.” He said about Camp 7 that “We are not allowed to talk about it. We have prisoners in there who came from Europe, about a year and a half ago, and they’re going to be there forever, because there’s no one there to help.”
Edney discussed the 9/11 witch hunt, in which “the US government detained hundreds, if not thousands, of people of colour on the suspicion of terrorist activity, some of them up to a year, all without charges.” He continued that “almost none of those individuals were found to have been in any way connected with terrorism. Yet many continue to be held without being formally charged with any crime or immigration violation.” In this way Guantanamo “provides powerful evidence of how America and the West are making war on terror synonymous with the war on Islam. No white Anglo-Saxon goes to Guantanamo Bay. Any American picked up for terrorism offences gets due process in a federal court system in New York.”
One audience member suggested that the camp must serve some purpose, because otherwise US President Barrack Obama would have followed through on his promise to shut it down. Edney responded that the camp primarily functions as “an important propaganda tool.” He argued the Obama administration has in fact “systematised” the culture of torture normalised under George W. Bush, for instance by disallowing victims of extraordinary rendition from suing Washington for torture suffered overseas.
Edney was also critical of “lazy” media and academics who have persisted in “slotting events into a sort of juicy clash of civilisations story,” as exemplified by mainstream media coverage of Anders Behring Breivik’s terrorist attack in Oslo. He killed 69 people in July, avowedly to protect Europe from Muslims. Edney said, “as soon as the bomb went off, media organisations began reporting on jihadist organisations.” This, he said, “fit perfectly the story we have all been telling each other since 9/11 that who else, who else could be so hateful, so crazy, so disrespectful of life but Muslims.” He pointed out that though Breivik is a white Norwegian Christian, “we don’t hold Christians or conservatives or liberals responsible for Brievek’s despicable acts.”
He said that “since September 11 2001, race, ethnicity, and religion have become proxies for suspected terrorist activity, which in turn has become a pretext for the application of Canadian immigration laws in an unequal manner towards Arabs, South Asians, Muslims and so on.” In an apparent nod to Bill C-4, the anti-refugee bill that the Conservatives tabled on Tuesday despite widespread condemnation, he noted that “we just have to listen to media descriptions coming out of Ottawa when we talk about refugees today. We call them queue jumpers and potential terrorists.”
Edney also expressed anger at the public’s willingness to be lulled into complicity. He described the transfer of the prisoners to Guantanamo “in rows in aircraft, hooded and shackled for transportation across the Atlantic” as similar to eighteenth century slave ships. He maintained that for “the watching world, no knowledge of international humanitarian conventions is needed to understand that what was being witnessed was simply unlawful.” He blamed public apathy for “allowing anti-Muslim sentiment to become part of our mainstream conversations.” He said, “I say to you we cannot tackle manifestations of intolerance, unless we learn and understand how the constant use of fear pervades our everyday life, and how that fear is being used to influence how you and I think and how you and I act. It’s that same manipulation of fear that has allowed military escapades into countries beyond those who bombed the twin towers. It is that same message that has been exploited by participating countries to reduce civil liberties and infringe upon human rights by allowing such places as Guantanamo Bay to exist.”
The need for action had been a prevailing theme throughout the lecture. Edney returned to it at his lecture’s close: “Not only does it [Guantanamo] continue to exist, they continue building it. Guantanamo is going to be there for a long, long time, unless you do something. Unless you really do something about it.” He concluded that “the only crime equal to wilful inhumanity is the crime of indifference, the crime of silence, the crime of forgetting.”
In that vein, we cannot afford to forget that Guantanamo Bay’s precedents in the West include Canada’s own internment camps, built in BC expressly to detain Japanese-Canadians during WWII. Similarly, Bill C-4’s predecessors include the Chinese head-tax policy.
