RSS FeedCould lawyers provide material support to terrorist organizations?
Interesting post at Persuasive Authorities on the implications of Holder v. The Humanitarian Law Project and Al-Haramain v. Bush,
These two cases raise some serious issues for lawyers and law professors who provide legal opinion, advice, representation or education to suspected groups even when it is completely unrelated to terrorist violence.
Also see related post by Prof. Fadel of UofT at Foreign Policy,
At issue is the constitutionality of the United States government’s interpretation of a 1996 law criminalizing, with a maximum penalty of 15 years in prison, the provision of “material support” to foreign terrorist organizations. This provision is the government’s most used law in prosecuting those suspected of terrorism, largely because of the law’s breadth, and because it does not require the government to prove that the defendant intended to further the violent aims of the terrorist group. Especially troubling from the perspective of the foreign policy community is that it also prohibits providing “training,” “personnel,” “expert advice or assistance,” or “service” to such a group, even when such services are completely unrelated to terrorist violence.
Government Ignores “Tough on Crime” Statistics
A great article just came off the Canadian Press wire. The upshot is that the Canadian government is ignoring the results of social science studies about crime and punishment. Here are some quoteable quotes:
Federal spending estimates indicate capital expenditures on prisons in Canada will increase by more than 40 per cent in 2010-11 to $329.4 million from $230.8 million this year, although the Conservative government has refused to publicly detail the costs of its criminal justice agenda.
…
“The great appeal of mandatory minimum sentences is that they give politicians the appearance of doing something, of being seen to be doing something,” Craig Jones, the executive director of the John Howard Society of Canada, said in a recent interview. “You must never underestimate the need for politicians to be seen to be doing something — even if, in some cases, it’s the wrong thing.”
…
In a 2008 speech, Harper flatly denounced research-based justice policies, accusing the pedlars of such policies of trying to “pacify Canadians with statistics.” “Your personal experiences and impressions are wrong, they say; crime is really not a problem. These apologists remind me of the scene from the Wizard of Oz when the wizard says, ‘Pay no attention to that man behind the curtain.”
…
More recently, Harper’s former chief of staff Ian Brodie told a McGill University forum last spring that informed criticism of the government’s justice agenda is a political gift: “It helped us tremendously to be attacked by this coalition of university types.”
OPP Officer Murdered, Tragic Irony…
First and foremost, R.I.P.
Unfortunately, as the reports circle around the internet, PC Vu Pham, 37, has succumb from his injuries he received in a shooting this morning. Pham leaves behind a wife and three children and a community, in which he was deeply involved, in mourning for his sudden, tragic, and senseless murder.
The 70 year old suspect’s name has not been released, but he will undoubtedly be charged above all else with first degree murder.
It is reported that PC Pham, a Vietnamese immigrant and veteran officer of 15 years, was attempting to stop a suspect vehicle from a report of domestic violence. If this is the case, it is the worst kind of irony, because today, March 08, is International Women’s Day. A day that in part is aimed at preventing violence against women.
This is the second police officer who has been killed in the line of duty in a week in Ontario. On Monday, March 01, Artem “James” Ochakovsky, a Peel Regional Police officer died in a traffic accident when his police cruiser hit another car and then wrapped around a telephone poll.
Although the deaths of Ochakovsky and Pham are different in nature, they are tragic to the community and especially the policing community.
I will save my personal opinion for my personal website, and if you are at all interested in reading it, follow this link.
How to avoid committing sexual assault
There are man crimes. Take sexual assault, for example. I don’t have the stats but I will be really surprised if most people convicted of sexual assault weren’t men. For example, the Criminal Code has special rules making it more difficult to challenge complainants during trials for sexual assaults. The purpose of these rules is obviously to protect female victims. The law of sexual assault regulates largely male behaviour, and men should know this law well. The guy who was convicted after sex with his twin brother’s girlfriend should have known better. This story hit the media because he appealed his conviction, and the issues he is raising on appeal show how complicated and fact-specific sexual assault law can be. The lesson for men in Canada is to be extra careful and avoid sex if you’re not sure. Read below for specific suggestions.
Sexual assault is any physical contact without consent “in circumstances of a sexual nature such that the sexual integrity of the victim is violated” (Martin’s Criminal Code). If you are accused of sexual assault, what the physical contact looked like to you is irrelevant. What matters is if the judge thinks it was sexual. He or she will look at many factors such as “[t]he part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force … and the motive of the accused” (Martin’s Criminal Code). Sometimes your motive will be important and sometimes not.
In the twin brother case, the man had sex with the woman so the nature of physical contact was not an issue. The question on appeal is about the woman’s consent: was the man reckless or wilfully blind when he believed the woman agreed to the sexual contact? I don’t have the trial judge’s decision or the parties’ submissions on appeal, and I don’t want to draw conclusions about this case from the media’s reporting. So let’s say the case is just an inspiration for this essay.
Suppose the prosecution argued that the man had a higher duty to make sure the woman consented because he looked almost exactly like his brother. It’s a reasonable argument for the Crown to make because belief in consent is not a defence if you were “reckless” or “wilfully blind” in having this belief. It means if you knew there was a chance the woman didn’t consent or if you knew you had to do more to find out if she consented but didn’t because you didn’t want to, and the court finds she didn’t consent, you’re a criminal.
If you are the twin brother of a woman’s boyfriend, do you have to take extra steps to ensure her consent before sex even if you think the woman gave it? One theory could be that the exceptional similarity of twins creates a special risk that the woman will confuse one brother for another. If you know of this risk but go ahead, you are reckless even if you believe the woman consented. If you don’t know of this risk but know about the possibility of risk and prefer to ignore it, you are wilfully blind. In both cases, you are guilty of sexual assault if it turns out the woman didn’t consent.
As you can see, the law of sexual assault is complex and fact-specific. One reason why the Parliament and the courts chose to make it that way is to protect women because of many ways in which they could be against having sex and because they would not always be able to make it clear to the man, for example out of fear. The burden is clearly on men (assuming sexual assault is a man crime as I argued in the beginning) to make sure the woman consents before and during any sex. But if lawyers and judges disagree on the complex questions of consent, what should ordinary men in Canada do? (I am not talking about rapists, violent men, and other obviously criminal types.)
Criminal law must give clear guidelines, or it risks becoming unjust. Vague criminal law is unconstitutional in Canada. I am not arguing that the sexual assault law is vague but it’s complicated enough for men to have to follow the highest standard of conduct to really be on the safe side. In your normal sexual relations, the line between lawful and criminal conduct can be very thin. You can cross it easily. Here are some suggestion for all men in Canada:
- before any touching, ask the woman if she consents and do not touch until she says yes
- sexual touching includes hair, neck, hands, face, etc.—not just the obviously sexual areas
- of course, it also includes the sexual act itself
- if the woman says no, do not touch her; do not assume that she is playing; in criminal law, no means no
- if you know you look like someone else she knows, tell the woman exactly who you are before any touching
- during any touching, constantly monitor the woman for signs she stopped consenting
- if you see any signs that she withdrew her consent, stop all touching immediately
- videotape everything (preferably in high definition) in case the facts are disputed in the future
- don’t forget to warn her you’re videotaping because uninformed consent doesn’t count
- having two impartial witnesses during the whole process is even better
- DO NOT DRINK before or during the physical contact with a woman: you risk impairing your judgement and missing the moment when she stops consenting. Self-induced intoxication is not a defence.
- above all, guys, treat women with respect and avoid random sexual relations
(Post sponsored by AdviceScene)
Former NHL’er Ramage Has Appeal
Former St. Louis Blue and Toronto Maple Leaf has had his second day in court. This time to appeal a conviction that led to a four year sentence for Impaired Driving Causing Death in connection with the accident that claimed another former NHL’er, Keith Magnuson.
The appeal will focus around two specific issues:
1. Was Ramage’s Charter rights violated through the collection of his urine at the hospital?
2. Should the court find that they were not violated, is the four-year sentence imposed by the Ontario Superior Court too harsh?
The court appears to be already leaning toward reducing the sentence through the words of Justice David Doherty who indicated
I think it’s fair to say we’re all concerned about the length of sentence.
To me this is an interesting case and one that affects me personally. I worked with many (if not all) of the officers involved in this case, however, this specific incident was before my time. No police officer likes losing a case because of an error that they committed (i.e. Charter breach), however, although the defence has suggested the officer wilfully breached Mr. Ramage’s rights. It is more likely the officer was acting in good faith with respect to the investigation.
But this begs the question. If an officer, who acting in good faith, breaches an accused person or suspect’s rights, in situations such as this, is justice better served in upholding a conviction or upholding a what would ultimately be a minor Charter violation.
You may wonder why I say minor? Because ultimately, although a breach may have occurred, a warrant surely would have been granted to obtain bodily fluids.
Discuss.
Speaking of getting “tough on crime”, how about “hate”?
When a local Georgian Township man, Trevor Middleton, was convicted of assault and criminal negligence in December, 2009, friends and family of the victims were hopeful that justice was served.
The Toronto Star
During the case, the jury had heard how Middleton and his friends had engaged in the practice of “nip-tipping” – that is, they would push into the water individuals who were fishing and who were of visibly Asian descent. This would be on the pretense that such people were fishing illegally, without licenses, or catching more fish than they were allowed to.
As well, the jury had heard how, after this altercation, Middleton had pursued the victims in his F-150 pick-up, how he had rammed their Civic with his truck, and how the victims were forced off the road and into a tree. The jury also had heard how one of the occupants, Shayne Berwick, suffered severe brain injury and is now confined to a wheelchair.
As a result, the jury had taken all of three hours to find Middleton guilty.
The End of 2-for-1 Credit & the Fallacy of ‘Getting Tough’
The March 8th 2010 issue of Maclean’s, “Canada’s magazine”, has this to say about the Conservative government’s elimination of two-for-one credit for pre-sentence custody:
Do the time
“It seems like a no-brainer: convicted criminals shouldn’t get a break for prison time served prior to court dates. And yet, it’s taken four years for the federal government to enact legislation ending two-for-one jail credits. As the old saying goes: you do the crime, you do the time—the whole time, not just half. Convicted criminals have been gifted shorter sentences by the justice system for too long. It’s time to get tough.”
Fortunately, old sayings do not figure among our sentencing principles. The objectives of our sentencing regime are enumerated at section 718 of the Criminal Code, and they are as follows:
(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.
Parliament enacted those objectives to guide the courts in fashioning sentences that are just and appropriate to the circumstances of each case. By looking beyond the obtuse imperative to “get tough”, a judge can craft a sentence that neither threatens the safety and security of the public nor condemns the offender to a lifelong cycle of recidivism.
Equitable and progressive though they might be, however, Parliament’s sentencing principles do not take into account the backlog that plagues the criminal justice system. Too often, prisoners languish in dangerous, dirty, overcrowded jails for weeks and months before their cases can be heard.
It was this dubious “gift” that the two-for-one sentencing regime was meant to address: the policy acknowledged that outrageous pre-sentence delays, coupled with deplorable conditions in some Canadian prisons, resulted in suffering that our sentencing provisions did not countenance. Moreover, this hardship is utterly preventable, but for a lack of public or political will. (As ever, “get tough” is a politically unassailable stance.)
To be sure, giving double credit was a bandage on the problem, not a curative. Jail conditions remain execrable, and the Attorney General’s “Justice on Target” initiative has only just begun to rein in administrative delay. But instead of curing these ills, the government has decided to rip off the bandage.
In that respect, Maclean’s was right: it’s a no-brainer.
“Dentist” Charged…
Tips have led to charges against a London man today after London Police discovered what appears to be an unlicensed dental practice in the city’s south end. Humberto Solano Rosania is charged with assault causing bodily harm and fraud stemming from an investigation that commenced because of community tips.
I have spoken with an insider, who wishes to remain anonymous, in the London dental community who indicates that this does not surprise them. They indicate that this was probably a person who was a practicing dentist in another country who failed to obtain licensing here in Canada.
The London Free Press article indicates that the Royal College of Dental Surgeons of Ontario are cooperating with the investigation.
It is unknown if Rosania is actually licensed with the RSDSO, and if he has applied for licensing in the past.
Nicholson Ends 2-for-1 Special
Justice Minister Rob Nicholson has ended the discretionary practice of giving criminals double credit on time served awaiting trial. Previously, for example, a convict who had waited two years for trial could take four years off their sentence (or in the case of the deplorable Don Jail, six years at three-for-one).
In a National Post editorial, Nicholson wrote:
Of course he did not offer any evidence as to why these criminals had been released too soon.
Nor did he mention the justification that had led to the two-for-one option in the first place – reasons such as the “terrible conditions” that exist in correctional facilities. Reasons such as that the prison system is grossly overcrowded. Reasons such as that time served before a trial is psychologically harsher than time served after conviction/acquittal.
Nicholson did not explain how the new law will substantively prevent crime, or relieve the conditions that inmates awaiting trial endure. One can only conclude that the new law will lead to even more overcrowding in correctional facilities.
The reason for the new law is optics. As I wrote recently, political dialogue has become locked in a false “tough on crime” or “soft on crime” dichotomy. Nicholson is determined to show that his party is tough on crime (not to vindicate the other parties, all of whom supported the bill, especially the Liberals). Nicholson in the Post editorial:
And Nicholson to the CBC:
This will bring more truth in sentencing and give Canadians confidence that justice is being served
Let’s remember that the criminal law is not about public perception, and it’s not designed to compensate victims (for that we have tort law), rather the criminal law is designed to keep society safe and functional. I fail to see how this bill adds to that goal, and neither Nicholson nor anyone else has indicated that the bill does anything but play off of fear and misconception.
The Infamous Box #4
Criminal record checks are increasingly being used to screen job applicants, and can hurt your prospects of getting a job.
But should a recent speeding ticket (not a criminal offence) that puts you in the database allow an officer to check an ambiguous box that neither confirms nor denies the presence of a criminal record?
The Times Colonist reports,
The “may or may not exist” category — box No. 4 — is ticked when an applicant’s name turns up in police records for a wide range of reasons. Perhaps it was last year’s speeding ticket. It could be for being questioned by police about your barking dog or the fact someone noted your car’s plates while it was in the area of a crime being committed.
The B.C. Civil Liberties Association has long-standing concerns about criminal-record checks, said spokeswoman Micheal Vonn.
“We hear various stories about the infamous ‘box No. 4,’ and we are increasingly concerned, because not only has the amount of criminal-record checks increased but so has the amount of data that police are collecting.
“We understand there are very, very few guidelines and there are inconsistencies,” said Vonn, adding that what gets noted on a police database is often not verifiable.
“In the [fourth] box I have found, in assisting complainants, things that are so shocking and detrimental and prejudicial to their employment, such as police conjecture as to their mental health.”
Accused Colonel knew Bernardo…
In an interesting article by the London Free Press, it has been revealed that accused murderer Col. Russell Williams not only attended the same University and classes, but that they were “pals” and hung out together on numerous occasions.
Last week Col. Williams was charged with two counts of first degree murder, sexual assaults, home invasion, and it has been alleged that he committed approximately four dozen break and enters with the intention of obtaining lingerie.
As this case moves forward, nobody really knows where the fallout of this alleged serial predator (because let’s face it, this is what he is) will stop.
Let us focus on the victims and the family of those who have been victimized.
Sponsored Post: HawkEye and Fingerprint Technology to check drunk drivers
Drunk driving has been a major problem for law enforcers and law makers for many years; drunk driving puts the lives of many innocent people at stake. These include the lives of other drivers, people on bikes and motorbikes and even pedestrians. After drinking, your senses as well as reflexes become impaired and although, you are fooled into believing that you can drive home but the truth is that you can either get pulled over on the basis of DUI suspicion or you can cause a car accident that can injure or even kill innocent people. That is why drunk driving is a serious criminal offense in all the States of the country and has serious penalties. Multiple DUI cases and DUI felony is considered a serious crime and has mandatory penalties such as spending time in jail and having your driver’s license suspended. These penalties can be cumbersome for many people who cannot afford to pay fines and fees; such people may also consider getting a DUI lawyer for representation as unnecessary and expensive but the truth is that instead of getting tangled in long-term problems with the court, it is better to get professional help from someone who is experienced and well-familiar with the DUI laws and court proceedings in your region. Hiring a DUI attorney is probably the most crucial step in your DUI case so you should take your time in looking for a reliable and supportive lawyer who can handle your case professionally.
For law enforcers such as policemen, catching offenders of all sorts and degrees has become a much more serious issue than ever before. Crime especially in many urban areas has increased and vigilant law enforcers are needed who can prevent manipulation and harm to innocent people by these crime-makers. Drunk driving offenders are considered criminals because they usurp the peace and law of the State and policemen have employed various techniques to prove the Blood Alcohol Content or Level of these drivers. A Blood Alcohol Level of 0.08 or more is considered to be illegal but you can get pulled over with a BAC of less than 0.08 as well. This is why, many websites and lawyers too will advise you to never drink and then drive so that you can be on the safe side with the law. To check the BAC of drivers under the suspicion of DUI, policemen ask them to take the Field Sobriety Test or the Breathalyzer test or urine test, all of which give an idea of BAC in the person’s body.
Now newer technology has been devised and its applications in DUI/DWI are being tested to see its validity in this area. Finger printing sensors have been in use for quite a while but not for testing drunk drivers. Now, Lumidigm, a company from New Mexico have devised a new method of identifying and checking drunk drivers. The company designed a scanner that takes three-dimensional pictures of finger prints, these sensors can also test the presence of alcohol emanating from the skin of the suspected drivers. The company has been testing these sensors practically and the Bernallilo County Sheriff’s Department is optimistic that these sensors can help identify drunk drivers and gather enough evidence to convict a suspect of drunk driving. This tool can be an addition to the already existing methods of checking the level of alcohol in the person’s body; while breathalyzer devices have been found to give inaccurate results overtime, it is possible that these fingerprint sensors may give accurate results and prove to be a harmful evidence for the suspect in court. North American Morpho Systems Inc. released a new automatic fingerprint identification system called the Morpho HawkEye. This fingerprint identification system has the ability to solve more crimes but its technology offers the opportunity to identify criminals sooner due to its fingerprint technology.
You should know that suspects of a DUI case who have been charged with a DUI will need a DUI lawyer to represent them in court especially if they have prior DUI convictions or if they have committed a DUI felony. If you are looking for a DUI attorney or looking for more information regarding the local DUI laws, you can check online at MyDUIAttorney
This was a sponsored post by DUI Lawyer
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