Criminal Law – Law is Cool The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 1338880 Doctor Associated with Gang-rape Case De-clutters Phone Sun, 01 Jun 2014 15:42:58 +0000 By Shannon O’Connor

Doctor Associated with Gang-rape Case De-clutters Phone

      Tim Alamenciak, a Toronto Star reporter addressed a topical legal issue in Thursday’s newspaper. The staff reporter discussed a criminal case regarding Dr. Amitabh Chauhan and his longtime friend Dr. Suganthan Kayilasanathan. Dr. Chauhan is facing charges for allegedly drugging and gang-raping a female medical student. The doctor de-cluttered his cell phone of all text messages and phone calls. Dr. Chauhan tampered with potential evidence and has formulated a guilty persona. Dr. Chauhan would not have felt the need to immediately erase the log history on his cell phone and potential evidence if he was not guilty. Crown attorney Sweeny, conducted a cross-examination of Dr. Chauhan this past week. The Crown discovered that Dr. Chauhan indeed de-cluttered his cell phone, which raised suspicion. The defendant claimed that he de-clutters his cell phone on a regular basis in order to keep himself organized. The organization of the doctor’s phone is a weekly ritual and had nothing to do with hiding potential evidence. Sweeny’s cross-examination raised numerous issues and unanswered questions. It is worth noting that the victim reported being unable to defend herself during the sexual assault, this is attributed to Dr. Chauhan and his childhood friend drugging the plaintiff. Dr. Chauhan provided a very different story than the testimony delivered by the plaintiff. Dr. Chauhan argued that he has experienced a memory lapse and could not recall the events of the incident. The doctor denied committing the sexual assault and asserted that the plaintiff commenced the sexual encounter. It is worth noting that since this case was made apparent to the greater society another sexual assault victim has come forward with allegations against Dr. Chauhan. Dr. Chauhan’s case remains under investigation as a judgment has yet to be determined.

Works Cited

Alamenciak, Tim. “MD in gang-rape case wiped phone, Crown says.” Toronto Star 29 May 2014: GT4. Print.

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A Quebec man convicted of manslaughter of his daughter gets 60 days in jail. Sat, 31 May 2014 00:14:47 +0000 A Quebec man convicted of manslaughter of his daughter gets 60 days in jail.

You’ve read it right and on top of this ‘gentle’ sentence, the man is to serve two times per week over a period of 30 weeks, and two years of probation later on.

On May 21, 2014 the sentence was given and it went viral in the local news.

It’s the story of a father who resorted to violent corporal punishment against his own daughter instead of delivering his message to her.

The teenage girl was killed by her father and so was killed her dream of becoming a lawyer.

It started in October 2010 when Moussa Sidimétold his 13-year-old daughter Nouténé who returned home from school to clean up the kitchen. When he did not like her job and heard the girl mumbling what he believed to be an insult, he slapped her twice. The girl fell on the kitchen floor and went into a coma. The father tried to revive her and called 911. She died 2 days later in hospital.

The pathologist testified that the slaps were not hard because they did not leave a trace on the girl’s cheeks, but they caused an artery in her head to rupture and so she suffered brain hemorrhage which led to her death.

The Defence asked for a suspended sentence and a probation.

The Crown was seeking a prison sentence.

The Court Judge applied his “vast discretionary power” in delivering the sentence as given by the Supreme Court of Canada in 2010 in manslaughter cases where there are special circumstances. In the cases where parents are convicted of killing their children and which involve mitigating factors, the sentences applied range from suspended sentence to four years in prison.

The Judge considered the accused old age, good reputation and remorse in mitigating the sentence.


By: Seyada Mahmoud

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What is the proper scope of state power and its agent the public lawyer in Criminal law?  Moreover, are there enough incentives for public lawyers such as prosecutors to remain vigilant in upholding their higher duty?  This paper will consider the emergence of contemporary debates about criminalisation in the context of a concern with concepts such as over-criminalisation.  It will look at the possibility of creating narrowly defined prosecutorial discretion and policy making with oversight from an independent administrative body.

It is possible to imagine a system that can monitor the discretionary powers of the public lawyer in his/her role to decide whether to proceed with a criminal charge for example through considerate policy making.  When it comes to prosecutors, it is often argued that the aim of the criminal law is to protect particular rights, interests or goods – notably property, the person, and sexual autonomy.  It is important to comb through the range of interests or goods that are protected by the modern criminal law through public lawyers and find ways to ensure that they act ethical at all times.

In his critical investigation into the administration of law in Canada Adam Dodeck differentiates public lawyers from those practicing in private sectors.  Public lawyers are government lawyers.  Their only client is the government.  Any lawyer that exercises public power has a higher duty to act with transparency, accountability, and with regards to Rules of Professional Conduct.  Dodeck reports that in the past few decades the number of government lawyers and their proportion in the Canadian legal profession has continued to rise.[1]

The reason it is important to ensure a more efficient discretionary and prosecutorial policy making system in Canada is that statistics indicate many individuals are wrongly convicted or found not guilty every year.  The question is how did those “not guilty” individuals were forced to go to trial in the first place?  In their book Manufacturing Guilt, Barry and Dawn Anderson quote criminological evidence that on the back of best estimates one percent of all convictions are in fact wrongful.[2]  Andersons write that these include cases that do not distinguish between personal and property offences or between violent and non-violent crimes.[3]  By applying this estimate to Canada, in 2010, 87,214 cases resulted in a sentence of incarceration.[4]  Using the assumption that one per cent of those imprisoned were innocent, the data suggest that there were 872 individuals wrongfully convicted in that year.[5]

Archibal Kaiser presented a paper in analyzes some of the reasons behind wrongful convictions.  He points out to contributory factors such as false accusations, misleading police investigative work, inept defence counsel, misperceptions by Crown prosecutors of their role, factual assumption of an accused’s guilt by actors in the criminal justice system, community pressure for a conviction, inadequate identification evidence, perjury, false confessions, inadequate or misinterpreted forensic evidence, judicial bias, poor presentation of an appellate case, and difficulty in having fresh evidence admitted at the appellate stage.[6]  This paper focuses on ways to reduce misperceptions by Crown prosecutors of their role and increasing their vigilance while administratively punishing their mistakes.


Criminal Law is Public Law


First, it is important to focus on the role of public lawyers in particular, prosecutors.  This branch of public lawyers have the opportunity for an extensive career in the criminal law and are afforded a great level of discretion in our liberal criminal justice system.  The publicness of the criminal law is one of the important differences between criminal law from all other areas of law.  According to Markus D Dubber in his article “Criminal Law between Public and Private Law,” the formal publicness of criminal law is reflected in the title of criminal cases.[7]  To Dubber, this is proof of the procedural and institutional framework for criminal law’s resolution: based on a state official’s investigation (the police officer), the case is brought by a public lawyer (the prosecutor) before yet another (the judge) who— generally except in a few cases that include a jury— decides the case.[8]  It is important to consider whether the normal ethical duties of lawyers are sufficient given the obvious publicness of the role of prosecutors and the current lack of an independent watchdog office that could comment on their policies and individual decision-making.

The overwhelming result of all trials ends in a verdict of guilt for the accused and at that point another state official (bailiff, prison warden, parole officer, etc.) is obligated to apply the decision.[9]  However, Dubber clarifies that the reference to the State in the style of cause is not thought to be a requirement for the publicness of a dispute.[10]  He cites German cases that refer simply to the ‘Criminal Case against X’; a reference to ‘the People’ emerges only in the judgment deciding the case (‘In the name of the people’).[11]  Quoting Andrew Ashworth regarding the publicness of criminal law Dubber also concludes that it is “the existence of a machinery of enforcement (police, prosecutors, courts, prisons, etc.) which marks out the difference between criminal and civil liability.”[12] There is no doubt that in Canada public lawyers are the individuals entrusted with a public prosecutorial role funded by the taxpayers of this country and this adds strength to the argument for an independent office of professional responsibility for public lawyers such as prosecutors.


Problems with Prosecutors who misunderstand their Role


The role of prosecutors is sensitive.  First, it is important to point out that offenses that are more serious worsen the consequences of a wrongful conviction for the defendants.[13]  The presumption of innocence affirms that the State, with its great power and ability to denunciate and punish individuals depriving them of their liberty should access these powers once it has sufficient evidence to charge.[14]  An example of the dangers of the prosecutor’s role can be found in cases where it is argued that the defendant should bear the burden of proving matters that lay “peculiarly within his own knowledge.”  Although Wigmore has denounced this idea as impractical,[15] it reappears from time to time for the sensible motive that it helps lower the amount of work that prosecutors are obliged to complete.[16]  When charged, an innocent individual may be forced to prove his/her innocence of some of the elements of a crime.  This seems to fly in the face the idea of presumption of innocent under section 11(d) of the Canadian Charter of Rights and Freedoms.[17] Although the idea of guilt beyond a reasonable doubt at trial seems to help an accused, this is not the same standard that a prosecutor has to use in deciding whether to charge someone – the standard is lower: “reasonable prospects for conviction.”[18] Taken together with the general lack of human infallibility, these facts should lower public confidence in the Canadian prosecutorial system because it may lead to an arbitrary and unchecked level of power for the individual prosecutor.

Second, from a prosecutorial discretionary policy perspective, sometimes various allegations such as the over breadth of a section of the Criminal Code are dismissed as relatively unimportant in the real world.[19]  One of the main arguments that is used for dismissing these allegations in Canada is the claim that it is hoped that prosecutorial discretion will prevent enforcement of Statutes and Legislation in circumstances in which liability would be unwarranted.[20] For example, in the case of polygamy, the Attorney General (AG) of British Columbia, indicated that “simple polygamy” – described, as “polygamy without some direct harm to the participants or others, such as children” would not be prosecuted.[21]  The AG said that, “experience and logic both suggest that a polygamy investigation could never even result in charges without some serious aggravating factors.”[22]  This calls attention to how allegations of over-breadth raise issues of first, fair notice and second, respect for legality – two of the most serious problems caused by the phenomenon of over-criminalisation.[23] Prosecutorial discretion may be a source of help in minimizing the injustice otherwise caused by over-inclusive statutes.[24]  Clearly then, there is a reliance on prosecutorial discretion, however the prosecutors are given no ethical public lawyering guidelines.   Their policies and individual decision making is not independently scrutinized.  Commentators suggest that reliance on the good judgment of prosecutors is no substitute for getting our laws right in the first place and arguably ensuring that prosecutors fully understand their role.[25]

If one of the primary policy aims of prosecutorial discretionary powers are truly the reduction of over-criminalisation then an independent body should be able to monitor the aforementioned shortcoming of legislation and the Justice system’s reliance on discretion.  It is necessary to reinforce the point that prosecutorial discretion, attached to a higher duty and responsibility of public lawyering is only providing a second – best solution to the imprecise drafting of Criminal law.  Public lawyers such as prosecutors however can only achieve even this second – best role when they remain vigilant and are not afforded arbitrary powers in upholding their truth seeking higher duties.  This solution offers a way in reducing the level of Crowns who misunderstand their role and exercise their discretion.  An independent monitoring of the conduct of public lawyers beyond Tort reliefs such as Malicious Prosecution that may be intimidating to citizens ignoring the fact that they are expensive and lengthy is of utmost importance.  The results of various investigations can then go towards the evidence that would allow for quick settlements in situations where wrong doings have been proven and documented.


Dangers of not having a Higher Duty


Certain evils are associated with a system that does not keep its public lawyers in check.  Commentators uniformly complain about the politicization of United States’ Criminal Justice system.[26]  The democratic character of criminal justice in that country is the cause of many of its best and worst characters.[27] For example, no other country has a legislature system that micromanages decisions about sentencing and parole, and few other democracies elect their prosecutors and judges than in the US.[28]  The input of academics is rarely applied by the American Criminal Justice system.[29] Husak discusses the problems with a politicized criminal justice system in his article “Too much Punishment.  Too many Crimes.”  The most important thing to Husak is that neither the Republican nor the Democratic Party in the US has been willing to allow the other to earn the reputation of being tougher on crime.[30]  The same political dilemma may occur where a political interpretation of the Criminal law by a Canadian prosecutor may create arbitrary situations with certain individuals who are charged and hauled in front of courts for certain crimes while others are not prosecuted for the very same acts.  An independent office will help take politics out of the job of the public lawyer and the prosecutor by narrowly defining the higher duties and by ensuring that policy manuals are respectful of public interest concerns.

Another important evil that can arise out of a system that is not independently monitored is the problem of what may fairly be characterized as scare tactics applied by public lawyers on their day-to-day activities at work.  It is no secret that prosecutors over-charge persons of interest in order to increase the possibility that he/she will bargain down to admission of guilt for one of the charges or a lower form of the same crime.  Why are overlapping offenses objectionable? As long as overlapping offenses contain distinct elements, no rule or doctrine of the criminal law requires that different counts be merged in order to prevent the state from bringing several charges at the same time – even though the defendant may seem to have committed one crime.[31]  As a result, prosecutors have been delegated an enormous level of power to charge defendants with multiple offenses and without vigilance and awareness of the higher duty that can be produced by an independent watchdog, it will be difficult to hold prosecutorial powers in check.[32]

Husak writes that the main effect of these overlapping statutes is to allow charge stacking that endangers the defendants with onerous punishments.[33]  Offenders prosecuted for several crimes that cover much the same conduct face more lengthy sentences than could have been imposed had they been charged with only one and this tactic seems to be able to force defendants to plea to something lower in face of heavy handed punishment for the one crime that they committed.[34]  Clearly, such tactics do not seem to be the purest path towards seeking the truth and the higher duty that every public lawyer is sworn to uphold.  Furthermore, defendants have greater incentives to bargain and plead guilty to a single offense in exchange for having the other charges against them dropped.[35] The elimination of overlapping and potentially conflicting criminal laws should be an important change in the way Canadians criminalize human behavior.  The independent watchdog would monitor what tactics could be applied, guarding the truth seeking mechanism and ensuring more courteous prosecutorial discretion and policymaking.


Towards a Code describing the Public Lawyer’s Duties and Canadian Offices of Professional Responsibility


Adam Dodeck writes that on both a descriptive and a normative basis relating to an ideal standard or model, the work of government lawyers has changed the image of the profession.[36]  In other words, public lawyers are not meant to be working as keen advocates or impartial partisans, instead they are guardians of the rule of law in whom we have entrusted substantial funding and power for constructing, interpreting, and conserving our laws.”[37]  It is therefore important to think about lawyering in a fluid manner: in such an atmosphere public lawyers have no choice but to use their personal judgement in interpreting the evidence and law that comes before them in every case

As aforementioned, the private lawyer’s fiduciary duty towards a client is different than the public lawyer’s duty towards the public.  There is a need for practical steps that hold public lawyers accountable to those higher responsibilities.  The higher duty is owed in response to a set of standards considering the great amount of power and resources at a public lawyer’s disposal.  The idea that with great power comes great responsibility is intellectually consistent with the need for more checks and balances and scrutiny.

Two paths that can achieve this goal are either the creation of an independent watchdog as suggested by Adam Dodeck or by creating more checks and balances in the work of public lawyers is a mechanism similar to the Principle of compulsory prosecution in Germany theoretically guiding the work of public prosecutors.[38]  With a German style prosecutorial system, less independent monitoring of the activities is necessary because of the much lower level of discretion in who gets charged and what satisfies the various tests.  However, the alternative of an independent office for ethical and responsible lawyering for public lawyers seems to be an easier approach for reducing the misunderstanding of Crown of their role.

At this stage it is important to study some of the differences between public lawyers and other kinds of lawyers that creates the basis for an office to increase the incentives for ethical lawyering.  The statistics are self-evident: the rise over the past fifty years of the government lawyer as a diverse sub-group of lawyers is further justification for the need for such a procedural Act.  In 2009-10 an estimated 15-25% of Canadian lawyers worked in the public sector, depending on the jurisdiction (taken from specific law societies).[39]

It must be asserted here that the role of prosecutor excludes any notion of winning or losing: the prosecutor’s function is a matter of public duty which in a person’s civil life there may be none charged with a greater personal responsibility.[40]   This duty is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings is at stake.[41]  In fact, the source of this heightened ethical duty is found in Public law: in the constitutional responsibilities of the AG.  Dodeck writes that as delegates of the AG, lawyers such as prosecutors have a positive duty that extends far beyond minimal general duty of the rest of the legal community. [42]  Government lawyers must guarantee that all action of government complies with all laws: civil, criminal, and administrative.[43]  The question that needs to be asked is whether this is too big of a task to be put in the hands of an individual and his/her affiliates without an independent group of citizens with a diverse background who could comment on the individuals actions and the policies that have allowed for those actions?


Some of the reported irregularities and incompetence at the investigatory, pre-trial, trial, and appellate stages of the Criminal Justice system can be tackled through a procedural mechanism legislated by the Parliament of Canada.  Even one wrongful conviction is a problem – the stakes are simply too high given that the over-whelming majority of people who are charged will be found guilty.  This is why Parliament must become more involved in legislating the level of discretion of a prosecutor or have an independent office monitor those actions.

Public lawyers such as prosecutors also owe a higher duty because of their great amount of access to public resources.  They are not only asked to ensure that the state and its officials comply with the law, but they are also involved in creating law in a way that private sector lawyers are not.

The mandate, mission, and values of the Department of Justice provide that its lawyers should “provide high-quality legal services while upholding the highest standards of integrity and fairness.”[44]  Thus, the official policy of the Department of Justice would seem to support the idea of a higher duty for all government lawyers codified in an Act of the Parliament or monitored by an independent Office of Professional Responsibility.

Furthermore, in The Public Service Lawyers, Tait suggests that Government lawyers have a higher duty to the law and to the Constitution: they are the protectors of the rule of law as it applies to government in a parliamentary democracy such as Canada.[45]  In practical terms, this means that government lawyers must provide independent and impartial advice.  This is different than the role of a private lawyer perhaps best defined by Lord Henry Broughum: “an advocate in the discharge of his duty knows one person in the entire world, and that person is his client.”

Another important distinction is that public lawyers’ client is not in the business of making money.  The government is supposed to be enhancing the “public interest” no matter how ambiguous that term may be.[46]  An Act or code that discuses exactly when the prosecutor should feel the he/she has the requisite discretion, evidence, and legal basis to prosecute individuals would implicitly ensure that public interest scenarios analyzed by the legislative body. The mere existence of wrongful convictions and not guilty verdicts is enough reason to suggest that relying on a prosecutor’s experience and understanding of the law and the criminal justice system’s aims and principals without a codified higher duty risks over-criminalisation and inefficiencies as well as forcing citizens to stir up an intimidating, lengthy, and expensive litigation process for Malicious Prosecution.  Such cases need to be reduced or at least provided with an evidentiary background that could be provided by the independent Office of Professional Responsibility.

Let us not forget that while self-regulation of the legal profession is very strong in Canada, especially in comparison to other countries, self-regulation is not coterminous with the independence of the bar.[47]  The public does have a right to request that the government lawyers be scrutinized for the exercise of power that is given to them from the resources that comes directly from the public.

Here also is an opportunity for the Parliament to close a loophole in the criminal justice system for potential over-zealous prosecutors who overcharge persons of interest with overlapping multiple accusations arising out of a single behaviour of the accused.  The prosecutor may lose sight of the proper scope of his/her discretion for a variety of reasons such as the reduction of workload given that trials may be more complicated or in order to get the accused to admit guilt to one offense instead of several false accusations realizing the expensive and lengthy prosecutorial process that is funded by tax payers only on the side of the Crown with the reality of the cuts to funding for Legal Aid for the defendants.


Tort Law is not enough to deal with Prosecutorial Misunderstanding of their Role


As briefly mentioned earlier, another source of accountability for government lawyers is in punitive damages, duty of care, and more broadly Tort law.  In addition to its primary function of compensation, Tort law can also serve an educative function, reminding professionals and the public of their duties.[48]  Tort law may also function as an ombudsman as Allen Leinden has written, “[Tort law] can be used to apply pressure upon those who wield political, economic, or intellectual power.”[49]  The problem is that it is not clear who has the ability to hold government lawyers responsible in Tort when injustice is served?  Would it not be those who can afford to bring an action in Tort?  The cases for successful malicious prosecution are rarely seen and given the high rate of wrongful convictions and not guilty verdicts, this statistic should be surprising.  The plaintiff must demonstrate on a balance of probabilities that the defendant Crown prosecutor commenced or continued the impugned prosecution with a purpose inconsistent with his or her role as a minister of justice.[50]

Perhaps the Canadian government at all levels should institute a proactive disclosure of legal advice by prosecutors.  The public has a right to know how government officials are spending their money.  Similar arguments regarding chilling effect of the expenditure of public funds are necessary.[51]  Existing accountability mechanisms within government is likely to ensure a higher level of competence and ethical conduct by most government lawyers however an organization that can assure accountability of government lawyers is a necessary next step in the legal profession.


Canadian Offices of Professional Responsibility (OPR)


In the words of Dodeck, Canadian Offices of Professional Responsibility (OPR) would receive and investigate complaints about the conduct of government lawyers.[52]  They could take a variety of actions: dismiss the grievance as groundless, discuss the issue with the affected government lawyer, defer the matter to the government lawyers’ managers for action, if found to have violated a government rule so regulation, mention the matter for correction within Government if they conclude that there cause to believe that the government lawyer has violated a provision of Law Societies’ rules or Code of Conduct, refer the matter to the suitable Law Society.[53]

Prosecutors working as part of the branches under the AG have special higher duties in comparison to lawyers from other sectors of the legal profession.  The usual practices of separating government lawyers’ public law duties from their ethical responsibilities do not make sense.[54]  Unlike other lawyers, government lawyers take part in the making and the interpretation of the law.  This unique responsibility requires a higher ethical duty of Government lawyers.

Greater power and access to resources means a need for a code and an office that ensures greater responsibility for all government lawyers such as prosecutors.  This greater responsibility for public lawyers as delegates of the Crown Attorney must naturally be held to checks and balances: accountability and scrutiny.


R v Nixon, Strengthening the Argument for an Independent Body


The Supreme Court of Canada released its unanimous decision in R v. Nixon in summer of 2011 holding that Crown prosecutors may repudiate plea agreements as those agreements fall within the realm of prosecutorial discretion in certain circumstances.[55] At issue in this case was a plea agreement between the Crown and the Appellant, Ms. Olga Nixon charged with multiple Criminal Code offenses.[56]  Feeling his evidence would not support a conviction; the Crown counsel offered a plea agreement with Ms. Nixon that reduced the charges to regulatory offences with a $1,800 fine.[57]  This decision was reviewed by counsel’s superiors, who decided that the agreement is repudiated and trial be pursued.[58]  In arriving at its decision that the repudiation was acceptable, the Court reached four conclusions.  First, that, the repudiation of a plea agreement falls within the scope of prosecutorial discretion and is therefore it was only subject to judicial review for abuse of process.[59]  Second, that abuse of process reviews should only be lead when the evidentiary underpinning is proper, meeting the necessary threshold.[60]  Third, that evidence a plea arrangement has been repudiated by the Crown meets that threshold.[61]  Lastly, that in order the repudiation to be an abuse of process the repudiation must either result in prejudice undermining trial fairness or undermine society’s expectations of fairness in the administration of justice.[62]  Therefore, although prosecutorial discretion is subject to judicial review, repudiating a bargain was acceptable short of undermining trial fairness or the administration of justice.[63]

R v Nixon defines the scope of prosecutorial discretion to encompass the decision as to whether a prosecution should be brought continued or ceased. Further, that decision-making process does not terminate when a plea agreement is shaped but continues as long as proceedings are ongoing and the Crown may be forced to make decisions as to the prosecution’s maintenance.[64] The idea can be perhaps extended to all public lawyers who have to make decisions to repudiate an agreement or for example proceed in a situation of exercise of discretion.  It was decided that to allow review on other grounds would blur the line between the Crown and the Judiciary, a separation that is essential to the Canadian Justice System.[65]

The Supreme Court would only allow a review of an act of prosecutorial discretion when a proper evidentiary foundation exists.[66] If such an evidentiary foundation is present, then the “threshold” to review the decision exists. Decisions to repudiate a plea agreement, however, will always cross this threshold according to the decision[67].  Plea agreements are vital to the proper and fair administration of criminal justice, guaranteeing they are honored is essential.[68] Review precludes arbitrary repudiations that have no concern to resulting prejudice to the person of interest or circumstances where there is a systematic problem with Crown counsel in a particular jurisdiction.[69]

Having determined repudiations are subject to review, the Court looks to the central issue: what will establish an abuse of process and prevent the Crown from repudiating the plea agreement?  There are, traditionally, two forms of abuse of process in Canadian law, first, abuse of process where the fairness of the defendant’s trial is at issue and second, abuse of process that challenges society’s expectancies of fairness in the administration of justice.[70]  In Ms. Nixon’s case the Court found no examples of the first kind of abuse but for the second kind of abuse of process the SCC looked to the circumstances surrounding the Crown’s decision including evidence of political interference, bad faith, the accommodation of a political stance or anything improper in the factors considered in making the decision.[71] The Court found, based on the trial judge’s decision, none of these factors were present.[72] The decision to repudiate was finally based on deliberations of fairness and the administration of justice.[73]

As exemplified by R v Nixon under the current system and although there may be some weight on the Crown to explain its decision, that decision is discretionary and the ultimate burden lies with the accused to prove the decision was an abuse.[74]  Ms. Nixon failed to do so. Without such evidence, the Crown’s decision to repudiate was an acceptable exercise of prosecutorial discretion.[75]  The question according to Sharpe and Crowell is whether by allowing Crown prosecutors to repudiate plea agreements, the Court has potentially created a situation where those agreements could lose some legitimacy.[76] The Court itself acknowledges that plea agreements are a practical necessity in the criminal justice system.

Agreements allow the speedy resolution of a great number of criminal cases, leaving resources available for the most essential and significant cases.[77] SCC notes the importance of prosecutorial discretion and that repudiation must at least be possible.[78] Unless it results in prejudice against the fairness of the accused’s trial or undercuts the veracity of the judicial process, a decision to repudiate is an internal one.[79] The ability of the accused to prove the impropriety of that internal Crown decision, even in instances of abuse of process, may be limited.  Judicial review may be easily arranged given repudiation meets the threshold, but a final finding of abuse of process is much more difficult.[80]  The limited level of solutions available adds to the strength of the argument for an independent administrative body such as the OPR that according to Adam Dodeck reviews the conduct of prosecutors.


OPR’s Application of the Law that can help Monitor Systematic Policymaking and Prosecutorial Discretion


As mentioned before, there are other models for prosecutorial discretion such as the Principle of Mandatory Prosecution in countries like Germany, however, any attempt to suggest that all crimes which make it to the office of the prosecutor are actually prosecuted seems to be somewhat of a myth.[81]  Common sense would dictate that not all crimes can be prosecuted because no state in the world currently enjoys the higher level of resources that would be essential for indicting all crimes that happen at all times.  Prosecutors everywhere therefore have to conduct their work through the prosecutorial discretion.  In Canada, the OPR could potentially also take its guidelines not just from the Legislators but also from Supreme Court decisions that discuss the higher duty for public lawyers and prosecutors.  In R v Proulx, L’Heureux- Dubé J. points out the prosecutorial function of Attorneys General (adopting the opinion of LeBel JA (as he then was) in the Quebec Court of Appeal):

The AG is traditionally responsible for administering justice and for initiating or terminating criminal and penal prosecutions. He also acts as the representative of the Crown in the courts and in various criminal proceedings. [82] Those functions give him the status of constitutional guardian of the social peace, who has a duty to ensure that crimes and violations of the law are punished…The AG and the AG’s prosecutors are the guardians of the public interest, and assume a general responsibility for the efficient and proper functioning of the criminal justice system.[83] Their role is not limited to that of private counsel who is responsible for an individual case. There are several fundamental and interrelated concepts that inform how the AG and, by extension, all Crown prosecutors are to perform this public function.  The prosecutorial decision is that of the AG. The result is that the AG occupies a position of independence unique among cabinet ministers.[84]

Furthermore, the proper relationship between the AG was best described by the AG of England, Sir Hartley Shawcross (later Lord Shawcross) in 1951:[85]

I think the true doctrine is that it is the duty of an AG, in deciding whether or not to authorize the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy.[86]

Inextricably linked to the concept of independence is that of discretion. Prosecutorial discretion refers to the discretion exercised by the AG in relation to the prosecution of alleged offences.[87]  It is because the AG exercises such discretion that they are often described as acting quasi-judicially.[88]  The Supreme Court of Canada described prosecutorial discretion as follows:  “discretion is an essential feature of the criminal justice system.”[89] It is argued that a system that attempted to eliminate discretion (similar to the German Principle of Mandatory Prosecution) would be unworkably complex and rigid.[90]

Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.[91] It is therefore evident that there are both individual and systematic policymaking realities that have helped create a discretionary system.  Adam Dodeck’s independent OPR would go beyond the work that a Law Society could conduct in punishing members who fail to uphold their higher duty to the public.

The presence of legal professionals, citizens, perhaps a representative from wrongfully convicted individuals as well as experts on the systematic role of prosecutorial discretion could sit on the board of the OPR.  These would be former Crown and Judges with a working past in both criminal and civil courts who could speak to the systematic necessities of discretion as well as the real potential of abuse when there is a failure to abide by the general role of Crown prosecutors when they misunderstand their role as described in the statement of Rand J. in Boucher v. The Queen:[92]

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lie before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.[93] Counsel has a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly.[94] The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.[95] It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.[96]

As mentioned before, Crown prosecutors occupy an office that is often described as quasi-judicial similar to the AG.[97]  This descriptor stems from the concept of prosecutorial discretion, which has been explained as follows: “Prosecutorial discretion” is a term of art.[98] It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the AG’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.[99] As to the importance of prosecutorial discretion to the administration of justice on a systematic level, the Supreme Court has also stated:

In the criminal law process prosecutorial discretion exists throughout the entire process, from the initial investigation stage through to the conclusion of the trial.[100] The people involved in the process, be they police officers…or other individuals charged with the responsibility of investigating breaches of various laws, or Crown Attorneys, are not the same nor will they necessarily act in the same way in exercising the discretion they have.[101]

Ian Binnie's 2013 talk on reduction of false convictions in Canada.

Former Supreme Court of Canada Justice Ian Binnie’s 2013 talk on false convictions in Canada.


This may lead to a situation where one person is charged with an offence, while another in seemingly identical circumstances is not; one person is prosecuted by indictment, another by summary conviction; one person is dealt with under one provision of a particular Statute while another is dealt with under a different, perhaps harsher provision.[102]

Prosecutorial discretion is, however, not absolute. Discretion at the local level is circumscribed and guided by obligations and duties imposed upon Crown prosecutors by statute, judicial decisions, the Canadian Charter of Rights and Freedom, ethical standards of the various law societies, and the directions and guidelines created by Attorneys General.[103]  These guidelines can include OPR’s findings to increase the level of knowledge and improve the quality of evidence as well as clarifying the duties for all public lawyers such as prosecutors while providing the public with evidence that can help them in the civil case for Abuse of Process as in R v Nixon above or the Tort of Malicious Prosecution.

This point must be stressed:  in exercising their discretion, prosecutors must consider whether the prosecution is in the public interest.[104] As Commissioner in the Sophonow Inquiry, former Supreme Court of Canada justice Peter Cory observed that the “community looks upon the Crown prosecutor as a symbol of fairness, of authority and as a spokesman for the community.”[105]


Accountability of Crown Prosecutors


While not directly accountable to the Legislature or the public, Crown prosecutors are accountable to the AG.[106]  Crown counsel in Ontario for example to be responsible ultimately to the AG who is responsible to the Legislature…. The Ministry of the AG exercises careful supervision of prosecutions for which it is responsible.[107]  However, this is not an independent body. The guidelines for prosecutors in Alberta for example explains that to be clear, Crown prosecutors who exercise their discretion in a principled manner and who, when faced with difficult decisions, consult with supervisors and colleagues will be supported in their decision-making.[108]  It is likely that the presence of the OPR that receives complaints and conducts administrative inquiries will generate further incentives for ethical public lawyering.  It will be the hope that prosecutors would become more aware and sensitive to vigilantly abide with their higher duties arising out of their greater access to resources and public interest goals.






[1] Dodeck, Adam. “Lawyering at the Intersection of Public Law and Legal Ethic: Government Lawyers as custodians of the Rule of Law”, forthcoming in (2011), Dalhousie Law Review: page 35.

[2] Anderson Barry and Dawn Anderson: “Manufacturing Guilt: Wrongful Convictions in Canada” (Fernwood Publishing, Halifax, 1998). Second Edition (Fernwood Publishing, Black Point N.S., 2009)

[3] Ibid.

[4] Statistics Canada. Table 252-0046 – Adult criminal court survey, number of guilty cases, by type of sentence, annual, CANSIM (database), Using E-STAT (distributor) as collected from Adult correctional services survey and integrated correctional services survey, Canadian Centre for Justice Statistics (CCJS).

[5] Hélèna Katz, Justice Miscarried: Inside Wrongful Convictions in Canada, Toronto, ON: Dundern Press. 2011. <>

[6] H. Archibal Kaiser, “When Justice is a Mirage: A Primer on Wrongful Conviction,” Paper presented at the Conference on Wrongful Conviction, Human Rights Centre, University College of Cape Breton, 24 June 1991; see also: James McCloskey, “Convicting the Innocent,” Criminal Justice Ethics, Winter/Spring 1989, pp.2 and 54-59, where many of the same points are made. Mr. McCloskey is Head of the Centurion Ministries – this organization has investigated the David Milgaard case.

[7] Farmer L. and Dubber M.  “Criminalisation in Historical and Theoretical Perspective.”  University of Toronto.  Spring 2013 at 274.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ashworth, A, ‘Punishment and Compensation: Victims, Offenders and the State’ (1986) 6 OJLS 86, 89.

[13] Supra note 7 at 348: The Unfairness of Risk-Based Possession Offences Andrew Ashworth, Published online: 1 March 2011
Ó Springer Science+Business Media B.V. 2011

[14] Ibid.

[15] Wigmore (1985), 2486; cf. the argument based on duties of citizenship put forward by Duff (2005).

[16] Supra note 7.

[17] Canadian Charter of Rights and Freedoms, s 11(d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[18] Charge Screening.  Crown Policy Manual.  March 21, 2005.  Province of Ontario Ministry of Attorney General.  <>

[19] Strassberg: “Crime,” Op.Cit. Note 32 at 370.

[20] Supra note 7 at 495, Husak, D. “Polygamy: a novel test for a theory of criminalisation.” 

[21] Ibid.

[22] Brief of the AG of British Columbia, Op.Cit. Note 36, para 102 of opening statement (2011).

[23] Supra note 12.

[24] Supra note 12.

[25] Josh Bowers: “Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute,” 110 Columbia Law Review 1655 (2010).

[26] Husak. Overcriminalisation.  “The Amount of Criminal Law
I: Too Much Punishment, Too Many Crimes.”  Chapter 1 at 4-17.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Supra note 20 at 14.

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] Supra at note 1.

[37] Ibid.

[38] Jasch, M. “Police and Prosecutions: Vanishing Differences between Practices in England and Germany.” 05 German Law Journal 10 at 1207. Michael Jasch is research assistant and lecturer at the Law Faculty of the University Frankfurt (Main), Institute of Criminal Justice. <>

[39] Stagger, David and Arthurs, Harry. “Lawyers in Canada” Toronto: University of Toronto Press, 1990, c. 12. (“Lawyers in the Public Sector”)

[40] Boucher v The Queen, [1955] SCR 16 at 23-24.

[41] Ibid.

[42] Supra note 2 at 15.

[43] Ibid.

[44] Canada, Department of Justice, Mandate, Mission and Values (Ottawa: Department of Justice, 2010) <>

[45] Tait, The Public Service Lawyers” at 543.

[46] MacNair, Deborah. “The Role of the Federal Public Sector Lawyers: From Polyester to Silk.” (2001) 50 UNBLJ 125 at page 129.

[47] Supra note 1 at 21.

[48] Allen M. Linden & Bruce Flethusen. Canadian Tort Law, 8th ed. (Toronto: Lexis Nexis, 2006) 14-16.

[49] Ibid.

[50] Miazga v. Kvello Estate, [2009] SCJ No 51 at paras 88 and 89.

[51] Supra note 2 at 30.

[52] Supra note 2 at 37.

[53] Supra note 21.

[54] Supra note 2 at 35.

[55] 2011 SCC 34.

[56] Sharpe, P. and Crowell, Logan. “Prosecutorial Discretion Repudiate Plea Agreements – The SC’s Decision In R v Nixon.” 11 Jul 2011. Borden Ladner Gervais website. <>

[57] Ibid.

[58] Ibid.

[59] Supra note 55 at para 60.

[60] Supra note 55 at para 63.

[61] Supra note 59.

[62] Supra note 55 at para 40.

[63] Supra note 57.

[64] Ibid.

[65] Ibid.

[66] Ibid.

[67] Supra at note 64.

[68] Supra note 57 at para 63.

[69] Supra note 57 at para 64.

[70] Supra note 58.  In Ms. Nixon’s case the Court found no examples of the first kind of abuse but for the second kind of abuse of process the SCC looked to the circumstances surrounding the Crown’s decision including evidence of political interference, bad faith, the accommodation of a political stance or anything improper in the factors considered in making the decision.

[71] Supra note 58.

[72] Supra note 57 at para 66.

[73] Supra note 59.

[74] Ibid.

[75] Ibid.

[76] Supra note 58.

[77] Ibid.

[78] Supra note 55 at para 48. The Court repeatedly stated throughout the decision that repudiation cannot occur on a whim, and that such acts will only occur in rare and exceptional circumstances.

[79] Supra note 56.

[80] Supra note 56.

[81] Zanier, Maria Letizia. “Compulsory Prosecution as a Myth? Notes about the Italian Case” Paper presented at the annual meeting of the The Law and Society Association, TBA, Berlin, Germany, Jul 24, 2007 <Not Available>. 2012-06-23 <>

[82] Proulx v. Quebec (AG) 2001 SCC 66 at para 81 (per L’Heureux- Dubé J. in dissent, but concurring with the majority on this point).

[83] Ibid.

[84] Royal Commission on the Donald Marshall, Jr. Prosecution (Commissioners’ Report, Volume 1: Findings and Recommendations, 1989) (the “Marshall Report”) at 224.

[85] Code of conduct for Crown Prosecutors.  November 28, 2006.  “The role and duties of crown prosecutors.”  Alberta Justice and Solicitor General Website.  <>

[86] Ibid.

[87] UK, HC Debates, vol 483, cols 683-684, (January 12-19, 1951).

[88] Ibid.

[89] R v Beare (1988) 45 CCC (3d) 57 at para 51 (SCC).

[90] Ibid.

[91] Ibid.

[92] Boucher v The Queen [1955] SCR 16 at 23-24.

[93] Ibid.

[94] Ibid.

[95] Ibid.

[96] Ibid.

[97] Supra at note 85.

[98] Krieger v Law Society (Alberta) (2002) 168 CCC (3d) 97 at para 43.

[99] Ibid.

[100] Nelles v Ontario [1989] 2 SCR 170 at para 40.

[101] Ibid.

[102] Ibid.

[103] Supra note 87.

[104] Ibid

[105] The Inquiry Regarding Thomas Sophonow (Commissioner: The Honourable Peter Cory, 2001) at 39.

[106] Supra note 84 at 227.

[107] R v Power [1994] 1 SCR 601 at para 33.

[108] Supra note 87.

LawFacts: Online Legal Advice from Legal Aid Ontario Thu, 16 Feb 2012 00:17:58 +0000 By: Simon Borys; Cross Posted on Simon Says

Legal Aid Ontario (LAO) recently launched a website entitled LawFacts which is designed to provide information about the criminal justice system to people in Ontario.  (See the press release here.)  It will not provide you with specific legal advice about your particular situation, but it does have general information on:

  • Sentencing
  • Bail
  • Being a surety
  • Court orders
  • Diversion
  • Duty counsel
  • First appearances
  • Guilty pleas
  • Peace bonds
  • Types of sentences

In addition, it has some forms and checklists that people might find helpful, as well as a glossary of legal terms.  Some of the information on this website will be applicable to people outside Ontario (since much of the criminal justice system is governed by the Criminal Code – a federal statute), but some of it is unique to the way we do things in this province.

Concern has been raised among the criminal defence bar that LAO may be attempting to steer people towards duty counsel and towards early pleas with this endavour, rather than encouraging and enabling them to retain counsel (which would allow them to fully realize and enforce their Charter rights in the criminal justice process).  This is something that defence lawyers understand (as we all should) is necessary to (a) prevent wrongful convictions and (b) support a system that would accord everyone a maximal amount of procedural protection to ensure they are treated fairly.

LAO may well have a vested interest in pushing people towards duty counsel and early guilty pleas since it makes their job of disbursing limited legal aid funds to accused who need a lawyer easier.  However, even if this is true (and I don’t claim to know whether it is or not) I don’t think that invalidates the utility of a website like LawFacts.  I am of the opinion that the more educated people are the better they are able to make informed choices and enforce their rights, which in turn ensures that the system works properly for all.  In fact, this is one of the main philosophies behind my blog and writing about police related issues – to better equip the public to interact with police and the justice system in a more informed and educated way.

For those who do want to educate themselves, I would suggest you not stop at this website, but I think it can be a good start.  That being said, I think no amount of personal education is a substitute for a properly trained and experienced lawyer assisting you – be they privately retained or funded by Legal Aid, especially in criminal cases where the stakes are highest.


Simon Borys is a law student at Queen’s University in Kingston.  He is also a former police officer and an an aspiring criminal lawyer.  His Blog, Simon Says, focuses on dispelling policing myths and demystifying the law.

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How Hate and Law Collide Mon, 05 Dec 2011 21:55:51 +0000 2nd When Law and Hate Collide Pan-European Hate Crime Symposium

Safe injection facilities and arbitrary government decisions Mon, 03 Oct 2011 15:10:04 +0000 I often talk to friends or strangers about law. I remember a debate I had with someone once about the government. Can it make arbitrary decisions? I said yes, and he said, rather indignantly, no. His logic was that arbitrary means capricious with a tinge of tyranny. Doesn’t our democratic government respect the rule of law and make decisions based on reason?

But in law, arbitrary simply means unconnected to any legitimate objective. This is what my friend had a difficulty with: that government, even with a democratic mandate, doesn’t have complete discretion. And last Friday, the Supreme Court of Canada issued a ruling that criticized the federal government for one such arbitrary decision: not renewing an exemption from criminal drug laws for the Insite safe injection facility in Vancouver.

Insite, suported by the province of British Columbia and the city of Vancouver, gives drug addicts a clean and safe place to inject under medical supervision. They would inject anyway, out on the street, probably with a used needle and in public. Addiction is a disease. You know when the Chief Justice’s reasons begin with a description of drug addicts drawing water from puddles to inject heroin, she is going to have a strong opinion about the government’s decision to block Insite.

The courts have held that there are only two goals in the Controlled Drugs and Substances Act (CDSA), a federal law that makes using drugs a crime: public safety and public health. Any government decision under this law that doesn’t serve either of these goals is arbitrary. For example, using the CDSA to promote marriage is arbitrary. A famous example of an arbitrary government decision was revoking Frank Roncarelli’s liquor license because he gave money to Jehovah’s Witnesses.

In the years of litigating the Insite case from trial to the Supreme Court, government’s lawyers failed to prove any harm to either public safety or heath from Insite. But the benefits to at least public health and quite probably to public safety are obvious.

The CDSA gives the federal Minister of Health the power to exempt from criminal liability. Using this power without a connection to either public health or public safety is arbitrary. There is no absolute discretion for the government.

Insite originally got the exception from drug laws so doctors and nurses wouldn’t be arrested for ensuring addicts don’t kill themselves. The federal government used its power under the CDSA to deny that exception out of the blue despite the evidence of Insite’s benefits for both purposes of the CDSA. That’s arbitrary.

Of course, we know that governments don’t usually waste their powers on random choices that have no purpose. Government decisions often serve political constituencies. In the Supreme Court, federal government lawyers failed to give one good reason to counter expert reports and other evidence that Insite was beneficial for public health and safety—two purposes of the CDSA. But one argument government lawyers made is illuminating: addicts shouldn’t get an exemption because its their own fault they are addicts. Is this a hint at the real reason for trying to block Insite: the same reason why, in the past, some governments tried to block HIV research funding and abortion services?

Pulat Yunusov is a Toronto litigation lawyer.


(Post sponsored by AdviceScene)


Squeezing Blood From A Stone: No Onus on Impecunious Offender to Prove Inability to Pay Fine in R. v. Topp Fri, 30 Sep 2011 11:00:14 +0000 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.

Inferences by the Sentencing Judge are Permitted

The ability of the trial judge to make inferences based on the offender’s ability to pay was also discussed by the SCC. Where the offender has received illegally obtained funds in the past but cannot provide a reasonable explanation as to its whereabouts, the sentencing judge is not required as a matter of law to make an inference that the offender still possesses sufficient funds to pay a fine, but is permitted to do so. While it is permissible for him or her to make such an inference, the SCC cautioned that an inference cannot always be made, and the strength of the inference is based on the facts of each case and thus varies from case to case.

Two factors are relevant in a sentencing judge’s assessment of whether to make the inference that a defendant is able to pay based on his or her  receipt of illegal funds in the past: (i) the length of time that has passed between the acquisition of the funds and the imposition of sentence; and (ii)  the amount of funds acquired. The SCC explained that, “[t]he more time that has passed since the acquisition of the funds, the less likely it is that the offender still possesses the full amount.  And the lower the amount of funds acquired, the less likely it is that the offender still possesses much or all of the funds.  A small sum is more likely than a large sum to be gone in its entirety.” The sentencing judge will have to exercise his or her discretion to determine how much weight to assign to the past receipt of illegal funds.

Minimizing the Deterrent Effect of Fines

While the avoidance of imprisonment for failing to pay a fine is laudable, it is still worthwhile to enquire whether this decision diminishes the deterrent effect of fines. It is arguable that if individuals know that they will not have to pay a fine if they do not have the funds and/or cannot reasonably explain the whereabouts of the funds, then there is incentive for them to spend lavishly into oblivion and/or conceal the money. They wager that they will not have to pay the fine, and thus the effect of the fine in deterring individuals from committing crime is reduced. The strength of this argument is weakened by the reality that some individuals will engage in those activities regardless of whether the ability to pay is a factor in sentencing. Thus, in that regard the emphasis put on the ability to pay may not significantly impact the deterrent effect of fines.

Similarly, it could also be argued that the factors that are used to assess whether a sentencing judge should make an inference regarding ability to pay create an incentive for individuals to conceal illegally obtained funds and wait patiently in order to weaken the strength of any inference that they still possess the funds and are able to pay the fine. It is plausible that some individuals may bank (both in the literal and figurative sense) on that, though, once again, the reality is that some individuals that engage in fraud will conceal illegal funds and wait until the there is less scrutiny of their activities regardless of whether those factors are used.

The factors are practical because they reflect the likelihood of a particular defendant being in possession of illegally obtained funds after the passage of time. As cliché as the title of this post sounds, one cannot extract what is not there to begin with. Based on those reasons as well as the importance of guarding liberty, as reflected in the legislative intent of ss. 734(2), it was appropriate that the SCC upheld Baltman J.’s sentencing decision.

The death of Troy Davis Thu, 29 Sep 2011 13:52:34 +0000 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)


Review of Dennis Edney’s Lecture, “The Rule of Law in an Age of Terror” Fri, 23 Sep 2011 21:10:52 +0000 “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.

In Memorandum: Wendy Babcock (1979-2011) Thu, 11 Aug 2011 01:54:38 +0000 Law students like to think the have it rough.  But some of us have it rougher than others, especially those of us that took the less traveled road to law school.

This evening The Star announced that Wendy Babcock was found dead yesterday in her home.   Wendy would have entered her third year of law school at Osgoode Hall this Fall.  She gained notoriety given her background as a homeless teenage prostitute (she would say “sex worker”) before entering law school.

Third-year students expressed frustration today after Toronto area articling position offers closed when many were still waiting for a job.  Wendy recently asked me whether she should consider changing her name for law firm applications, because she was apprehensive about what law firms would think about her background.   The Eye Weekly once did a piece on her entitled, “All that she can’t leave behind,” and I responded that her experiences were what made her special.

Knowing the advocacy work that I’ve been involved in she also questioned my career path, asking me why I wasn’t practicing human rights law.

Wendy will live on in memories, and through the social media footprint she’s left behind (her “memoranda”).  Coincidentally, I just viewed this TED video earlier today:

Here are some of the sites you can find out more about Wendy:

Wikipedia Page

Facebook Fan Page

CBC Interview

Personal Blog

From the Stroll to Law School


Wendy Babcock – a site created post-mortem by her friends

And finally, here is her last note posted on Facebook, giving us some insight into a controversial subject currently being deliberated by the Supreme Court of Canada in Bedford v. Canada:


Can A Person Be A Sex Worker Rights Activist While Not Enjoying Sex Work Themselves? (ROUGH DRAFT)

by Wendy Babcock on Wednesday, 03 August 2011 at 19:28

I have to get something off my breasts… er… I mean chest. At the risk of offending the pro sex positive feminist movement (which I have no inclination of doing) I have to admit that as a sex worker rights activist, and more so a former sex worker, I have never enjoyed sex work. In fact I am remorseful that sex work is how I lost my virginity, I regret that at 15 I entered sex work, and I despise the fact that I learned about my sexuality through sex work while the majority of other girls my age were discovering theirs in the school yard – usually with kids their own age.

For me, sex work was something I did to survive to get me through the years when I was homeless and too young for a full-time job, general welfare, youth shelters, and food banks. I did NOT engage in sex work because I wanted to express my sexuality, bring pleasure to others, or any of the other reasons pro sex feminists have for engaging in sex work. Not that I’m condemning them for their choice or suggesting that their decision was not a well thought out choice to engage in sex work. I’m just saying that my reasons for being involved in sex work were different. How could I have gone into sex work for any of those aforementioned reasons without first discovering my own sexuality – let alone be comfortable with it? Hell, I never even kissed another person before I headed out to my first call in Mississauga to meet a business man who would pay me money for my virginity. I did not enjoy sex work as a teenager nor did I enjoy it as an adult. There was always the fear of a bad client, a broken condom, and the judgment of johns regarding my appearance (which includes having a few too many of them comment on my stretch marks, cellulite, and a whole slew of other insecurities that unfortunately we as woman must deal with – thanks to the airbrushing of models in magazines like Vogue, Glamour and Maxim), which would be reviewed and commented on by many “johns”. I didn’t enjoy the stigma, the fact that I had to hide my profession for fear of being socially isolated, teased, and worse – arrested.

Had I enjoyed sex work I wouldn’t have quit doing sex work and taken a job that didn’t require me to be sexual with the people I serviced when the opportunity presented itself. Yet I still consider myself to be a sex worker activist, one that promotes the decriminalization of prostitution. And do I think that not getting pleasure from sex work diminishes or sets the sex worker rights movement back? Hell no, in fact I believe it enhances it. Yet our voices are not heard in the sex worker rights movement, as it is universally falsely believed that current or former sex workers who dislike their previous or current occupation have no place in the sex worker rights movement.

I remember when I first got involved in sex worker rights and was a naively impressionable young woman. I did a talk show for AM 680 (the Bob Oakley Show) and when I mentioned that I didn’t like sex work myself I was chastised by fellow activists. “How will anyone understand why decriminalization is important if you keep telling interviewers that you don’t like sex work?” “Don’t tell people you don’t like sex work, if you want to do that you have no business speaking for sex worker rights” and “You are discounting everything other sex worker rights activists are saying!”

Stunned and not wanting to upset anyone as I felt really passionate about the need to decriminalize sex work I kept my mouth shut about my true feelings and instead pretended that sex work was this revolutionary way for me to reach my true sexual potential. And please don’t get me wrong, it is for some sex workers, for those sex work can be freeing, empowering, and a slap in the face to the misogynistic notion that men are the ones with the sexual power and women should just submit.

However, not all of us sex workers feel this way. In fact in my 8 years of working with street involved sex workers very few expressed that this was the way they felt as many of them were survivors of violence, ripped off by clients, faced arrest and were harassed on a regular bases. Many of them did not feel represented in the sex worker rights movement. This is an absolute shame as if anyone, ANYONE should feel they belong in the sex worker rights movement it’s the street sex workers who face the brunt of criminalization, social isolation, stigma, and discrimination. Yet, when sex worker rights are talked about it is usually the overtly privileged sex workers, the high end sex workers, the ones who chose sex work as a legitimate occupation over other employment choices that they could have made. These are the sex workers who work in safer environments, the ones who work independently who don’t have to give any of their earnings over to a boyfriend or agency, the ones who work from their own or shared establishments, the ones who have the luxury of choosing where, when and who they work with. These do not tend to be the sex workers who see sex work as their only means of survival – who don’t have (or are not aware) of other employment options. So then, why if it is street involved sex workers who feel harshest effects of criminalization not heard when it comes to the question of sex worker rights and decriminalization?

I can’t answer that question, for I do not know the answer. What I do know is that we, while acknowledging my own privilege at having my voice heard in this movement, as allies for the sex worker rights movement have an obligation to our brothers and sisters who face a much higher rate of isolation than us must embrace sex workers that do not feel that they would stay in sex work if given the opportunity to be employed in another profession.

Back to my question, Can A Person Be A Sex Worker Rights Activist While Not Enjoying Sex Work Themselves? I say, ABSOLUTELY! Just because a person does not enjoy sex work does not mean that they have nothing to add to the decriminalization debate. Since when does not liking your job mean that you can’t (or shouldn’t) speak up against the barriers that make your trade MORE unenjoyable – even distasteful? Personally, I believe that any debate about sex worker rights should be more diverse than just between the people who utterly despise the profession and want it criminalized to the people that love their profession and want it decriminalized to include the people who neither like it nor avoid it but can justifiably see that things still need to change. There is nothing worse than hating your job and feeling like you have no voice in changing things. Worse still, if you hate your job, the isolation, stigma, criminal records, and other legal repercussions (such as fearing custody of your children, ability to retain status in your chosen country, etc.) does nothing to assist those sex workers who would prefer to leave the profession. I may have disliked providing sexual services for money but that shouldn’t disclude my voice (or others) that the laws that keep sex workers working underground. Personally I think ALL voices need to be heard. What do you think?

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