RSS FeedBringing Animal Rights to the Forefront of Correctional Services Reform
“Until we have the courage to recognize cruelty for what it is; whether its victim is human or animal, we cannot expect things to be much better in this world…we cannot have peace among men whose hearts delight in killing any living creature. By every act that glorifies or even tolerates such moronic delight in killing we set back the progress of humanity.”
-Rachel Carson
The sentencing of Anjalo Abeywickrema is an interesting one: he will have to go to jail for 4 months for his crimes and a 5 year ban on owning a pet.
But should if at all an individual go to jail for harming other creatures? Perhaps it is because people sense that an injustice has taken a place. A defenceless creature has lost its freedom and liberty to life.
I used to ask myself, “Why do some groups like PETA put resources towards better treatment of animals when there are millions of their fellow humankind suffering from poverty, environmental catastrophes, and war?”
My dad one day explained to me, “Son, when any creature suffers in this world, all of us suffer the consequences of that injustice.” I think his statement was a criticism to insensitivity towards injustice in any form that may take place.
I would argue that all social justice issues are inter-linked. In fact, I am optimistic that many sources of injustice can be solved with the same tools. In order to avoid the suffering of an animal we must investigate the sources of injustice. Are we as human beings genetically engineered to cause harm onto other creatures, or are we socialized? If we area socialized, then perhaps we can change that socialization in order to have better animal owners in the future.
When a human goes to jail for causing harm to his animal, people start to speak of the action of unnecessary pain. This increases sensitivity. When we start to talk about causing pain, we may even formulate solutions such as access to education and prevention instead of prosecution. Should we just put people in jail and throw the key away?
Historically, Canadian Criminal Law has functioned retroactively. In other words, someone like Abeywickrema acts with the intention of harming others in a way that is prohibited. Consequently he was punished by the Legal system. My question is, what proactive role if any should the Law and Legla professionals played in the past in educating the public regarding what is acceptable and what will send them to jail. Why not identifying the sources of sadistic behaviour?
I can tell you that as an immigrant, my family and I know no greater treasure than freedom. We travelled the planet to find a place where we can be free to speak our mind, wear the clothes we want, and many other freedoms that people take for granted. Perhaps it is time for the Law to teach people why we should not take our freedoms for granted. When an individual goes to jail to be “corrected” as the name of the government department foreshadows he/she does that at the cost of freedom and liberty: to my family and I, this is a heart breaking punishments because we come from a place where their Law has made the whole country feel like a jail most of the time!
I want to ask what deep failures in society have helped create an individual like Anjalo Abeywickrema. What kind of parenting; what kind of social and financial context; who educated this individual regarding his rights and how he can protect his liberties. Perhaps the kinds of behaviours that is acceptable for an animal owner? Despite the fact that people do have a choice in how they behave, this choice I would argue is always affected by social context, physiological stability, and many other variables and that is why the Law and Legal professionals need to be proactively involved in educating our communities.
My suggestion for the reform of “Correctional Services” comes from the Middle East. An interesting interpretation of Islamic Sharia Law is that people can only be punished harshly when they live in an almost perfect community without considerable social disparity. The Islamic community would have a role in socialization and identification of individuals who are in need of guidance.
In conclusion, when we are sensitized to the pain of an individual dog, we can no doubt become more sensitized to the deep social roots for the criminal’s actus reus and mens rea in the crime that he has committed. I would add to the famous saying by Ghandi “An eye for an eye makes the world go blind;” if someone has weak eyesight, let’s give him/her glasses before he falls into the ditch.
UWO Law Welcomes AIDWYC @ Western
AIDWYC. Does that mean anything to you?
I, Ryan Venables, am very please to announce that thanks to Jonathan Thoburn and Lisa Lutwak, a couple of very keen and persistent (that’s a good thing) 1L law students, that UWO law students are now going to have the opportunity to be reviewing cases in association with AIDWYC.
I think this is a perfect time to bring this story forward considering the recent news of the acquittal of Ivan Henry, who spent 26 years in a B.C. prison for a series of sexual assaults that he did not commit.
Don’t know AIDWYC? Well, keep reading, and soon you will. Here’s how this great partnership has come to be.
As the President for the Criminal Law Student’s Association this year, I was contacted by Jonathan, an incoming 1L, who was eager in starting up AIDWYC under the umbrella of the CLSA. He had already contacted the administration and was given the green light and it was suggested to him that while in its infancy, that AIDWYC @ Western be under the umbrella of the CLSA.
Since I had never heard of AIDWYC I had to do some digging. Here is what I found out. From the AIDWYC Website:
*****
AIDWYC is a non-profit organization that has developed a strong reputation as an advocate for individuals who have been wrongly convicted.
AIDWYC’s primary mandate is to review and support claims of innocence in homicide cases.
However, because individual exonerations do not eliminate the conditions which foster these miscarriages of justice, AIDWYC is also dedicated to addressing the causes of wrongful conviction by:
- Making representations to governments on reforms to the legal system
- Raising public awareness about miscarriages of justice
- Participating in public inquiries related to wrongful convictions
- Intervening in legal cases which seek to rectify miscarriages of justice
There is no system in place at present in Canada for an independent review of claims of wrongful conviction. AIDWYC fills this gap, attracting some of the top legal experts in Ontario to identify these cases and, where warranted, prepare an application for ministerial review to the Criminal Conviction Review Group of the Federal Department of Justice, known as a Criminal Code Section 696.1 application.
AIDWYC’s office is located in Toronto and much of our work is done in Ontario. However, we have dedicated volunteers throughout Canada and in the United States. AIDWYC welcomes applications from across the country. AIDWYC is currently reviewing over sixty claims of innocence and actively pursuing more than 40 cases.
All Canadian citizens stand to benefit from AIDWYC’s efforts to free those who have been wrongly convicted and to reform the justice system wrongfutem of justice, but everyduce or prevent wrongful convictions in the future. Canada has an excellent sysand safeguard its integrity. Wrongful convictions are not easily corrected. The resistance to AIDWYC’s efforts is formidable and the correction of miscarriages of justice is always hard-won.
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Successes? Robert Baltovich; James Drisk; Anthony Hanemaayer; Clayton Johnson; David Milgaard; Guy Paul Morin; William Mullins-Johnson; Gregory Parsons; Romeo Phillion; Sherry Sherrett-Robinson; Thomas Sophonow; Steven Truscott; Kyle Unger; Erin Walsh.
Fast forward to today. AIDWYC @ Western is in the final stages of picking volunteers who will be assigned cases, reviewing them, and working hard to have the wrongfully convicted freed. It is hoped that as this project grows it will be able to come out from underneath the support of the CLSA and to form a group at Western Law akin to Pro Bono Student’s Canada.
Not only does this give fledgling lawyers a great way to get involved with a great cause, it will also give them practical experience that law student’s seem to lack coming out of school.
I personally look forward to seeing this great opportunity for students grow here at Western.
Ontario Prostitution Laws Struck
I have to admit that when I first heard on AM980 that Justice Susan Himel stuck the prostitution laws for Ontario, I was a bit dismayed. Many people who think of prostitution think of the typical “street-walker” on the corner soliciting “john’s” for a quickie in the back of a pickup, and (hopefully) getting arrested in a COPS style raid.
Now that I’ve had a little opportunity to digest the news, here is what I think. Although a quick caveat, I have not read the actual decision.
First off. What is a common bawdy-house?
s. 197
“common bawdy-house” means a place that is (a) kept or occupied, or (b) resorted to by one or more persons
for the purpose of prostitution or the practice of acts of indecency;
Second, what are the relevant prostitution laws in for Canada?
s. 210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) Every one who
- is an inmate of a common bawdy-house,
- is found, without lawful excuse, in a common bawdy-house, or
- as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house, is guilty of an offence punishable on summary conviction
212. (1) Every one who
(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prosti- tution,
(c) knowingly conceals a person in a com- mon bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that per- son in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, di- rects or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Cana- da, for the purpose of prostitution,
(h) for the purposes of gain, exercises con- trol, direction or influence over the move- ments of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or cau- ses that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual inter- course with that person, or
(j) lives wholly or in part on the avails of prostitution of another person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
213. (1) Every person who in a public place or in any place open to public view
(a) stops or attempts to stop any motor vehi- cle,
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or
(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person
for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.
(2) In this section, “public place” includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.
Okay, with the logistics out of the way, lets look at my opinion. I am glad to see that Justice Himel reserved judgement for 30 days to allow for an opportunity for the Provincial Crown to appeal, which is what they did the very next day. From my understanding Justice Himel’s reasoning, in agreement with the litigants Terri-Lynn Bedford, Valerie Scott, and Amy Lebovitch, indicated that the laws needed to be struck from the Canadian Criminal Code because they created real safety concerns for current sex-trade workers. The Globe and Mail article indicated “in her [Justice Himel] 131-page ruling which took her a year to produce, Judge Himel found that laws set up to protect prostitutes actually endanger their safety, forcing them to furtively engage in hasty transactions conducted in shady locations.” The rationale behind this is now sex-trade workers will be able to get off of the street and into what was “formerly” known as a common bawdy-house which in their opinion would be a controlled environment that would allow for protection from predators such as Robert Pickton.
Additionally, it is hoped (by the litigants) that this will also move the sex-trade indoors and remove some of the visible signs that are currently on display.
Well, I have to admit that in my policing career I did not have the opportunity to enforce Canada’s prostitution laws on any “street-walkers,” I can say that the trade is flourishing in illegal massage parlours and strip clubs. I do not agree with the rationale that this law will protect sex-trade workers from potential Robert Pickton’s for a couple simple reasons:
1. Massage Parlours and strip clubs have notoriously been areas were the solicitation of sex is an ongoing “problem” and striking these laws down does nothing to curb the problem. If anything, it can put the “girls” in more jeopardy as massage parlours and strip clubs are generally owned by individual members of organized crime factions – specifically Outlaw Motorcycle Gangs like the Hells Angels. As I see it if sex acts become legal and are able to be performed in strip clubs and massage parlours, we are feeding the “girls” to the MOST dangerous criminal elements in society.
2. It believed that girls who currently walk the streets will be able to obtain protection in the safety of massage clubs or other “brothel” type establishments. While this is laudable on its thought, in practicality it does not work. The girls who (again in my opinion) walk the street are generally addicted to drugs, have mental health concerns, and have turned to the streets because there is nowhere else for them to go. The people who would start up a potential brothel or massage parlour generally pass over the girls who are older, not “attractive” enough, and have drug and mental health issues. Where will the protection be for these sex-trade workers?
3. Where will the protection be against unfair labour practises? In all seriousness, will they unionize? How is this going to be monitored, will they be taxed? Will by-laws be involved?
Additionally, evidence presented urged Judge Himel to also reflect on the fact that prostitution is inherently degrading and unhealthy, and should not be encouraged as a “career choice” for young women through a slack legal regime. With all due respect to the learned Justice Himel, I do not think any 6 year old girl dreams about the nitty gritty of “Pretty Woman.”
One misleading inaccuracy in the article includes: Several cities – including Toronto, Victoria, Windsor, Calgary and Edmonton – charge fees to licence body-rub establishments despite the general understanding that many sell sexual services. While they do in fact license “body-rub” establishments, they are not (as the article would lead you to believe) licensing massage parlours for sexual services. What they are licensing is a massage establishment which begins and ends at the massage.
In the end, SHOULD these laws be struck, I suspect it will be many years before this makes its way through the Ontario Court of Appeal and then on to the Supreme Court of Canada. However, once this legal drama makes its way through its appeal process, in the end if it is struck from our laws (which for the record, I do not believe it should be – see above) there are other issues and areas of law (Administrative Law, Employment/Labour Law, Municipal Law…etc) that will need immediate addressing.
Police Powers and The G20: Why the Public Works Protection Act Was Unnecessary
In the following paper I advance the argument that the use of the Public Works Protection Act at the G20 by police was unnecessary and inappropriate. I suggest that they had ample existing authority under statute and common law to do the job they needed to do.
From my blog: Simon Says.
Police Powers and The G20: Why the Public Works Protection Act Was Unnecessary
There has been a great deal of discussion and controversy recently over the actions of police at the G20 in Toronto in June. Much of the debate revolves around the use of the Public Works Protection Act (hereafter referred to as ‘the Act’) by police to provide security at the event.
A number of specific issues have been identified by the media, the public, and the government regarding the actions of the police in general, and specifically the use and implementation of the Act at the event. However, this paper will not address those issues. They have already received a great deal of attention and no doubt will continue to in the future.
The purpose of this paper is to advance the theory that the Public Works Protection Act was unnecessary and inappropriate for the G20. It was overbroad and arbitrary for the task at hand. Police have existing statutory and common law powers which I will argue would have sufficed and been far less intrusive on the Charter rights of the public.
A Brief history of the Public Works Protection Act
Contrary to statements made by the media, the Public Works Protection Act is not a secret, nor is it a new law. It was created in 1939, following the outbreak of World War II, and was revised to its current form in 1990. The Act is very short, but very broad and very powerful. It may not be well known to police or the public, but it is used every day to provide security at court houses, government buildings and other infrastructure points within the province.
Section 1 of the Act defines a “public work”. Of note here is subsection (c), which gives the Lieutenant Governor in Council the authority to designate other buildings or places as a public work. This is the authority under which a portion of downtown Toronto was reclassified as a public work for the G20.
Section 3 sets out the power of arrest for a peace officer or guard. Clearly these power are quite broad, perhaps understandably so, given their intended purpose to allow officers and guards to protect the infrastructure of the province. However, they are clearly unprecedented when compared to any other Federal or Provincial statute.
Section 5(2) provides the arrest authority for failing to comply and, finally, section 5(1) sets out the offence.
Adaption of the Public Works Protection Act
Ontario Regulation 233/10 was created on June 2 and filed on June 14. It was scheduled to be effective from June 21 until June 28, but was not published in the Ontario Gazette until July 3.
Schedule 1 and 2 describe “the zone” in downtown Toronto which this regulation makes into a “public work”.
Why was adapting the Public Works Protection Act to the G20 a problem?
Even acknowledging that the majority of arrests at the G20 were not under the Public Works Protection Act, there are still issues with the arbitrariness and overbroadness of arrests conducted under the act, which seems to be one of the issues people are most upset about.
Existing Authorities
As stated earlier, the aim of this paper is to suggest that police had existing statutory and common law authorities which could have been used instead of the Public Works Protection Act and would have, arguably, resulted in far less of a public outcry. It is to three of these authorities that I will now turn.
The first authority is the common law power of investigative detention. Best articulated in R. v. Mann (2004)1, Iacobucci J., wrote for the majority of the Supreme Court that authority exists in common law for police to detain an individual if they have “articulable cause”. Articulable cause was defined by Doherty J.A. in R. v. Simpson (1993)2 as “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation”.
This authority applies only to people who police can articulate may actually be involved in a specific crime being investigated. It requires powers of observation and the need to discern and articulate an actual crime. This takes away the arbitrariness and overbroadness of the Public Works Protection Act, which seems to be what the public has a problem with. I do not think that being limited to detaining people who may be involved in a crime would have significantly hampered the ability of the police to provide security at the G20. After all, who were they there to deal with but people committing crimes?
This authority alone may not have been sufficient, but it was not the only one in the police officer’s arsenal.
The second authority is found in the statutory powers of arrest of police officers in the Criminal Code. Section 495(1) states that a peace officer may arrest without warrant “a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence”.
The inclusion of “is about to commit an indictable offence” broadens the arrest authority of the police powers to the point of making them quite appropriate for the G20. Under this authority, officers who were able to articulate that person approaching or entering a restricted zone (or a person anywhere else in the city for that matter) was about to commit an indictable offence (i.e. mischief, etc), could simply arrest them for that anticipated crime. Like investigative detention, this authority would also have required officers to have display the ability to discern and articulate a specific offence in order to arrest. But again, what need is there for police to arrest those who are not committing or about to commit a criminal offence? If officers had been able to articulate what crime (committed or anticipated) each person at the G20 was arrested for, I doubt there would have been such criticism of their actions.
Certainly it is not always easy, or even possible, to classify a person’s actions as about to lead to a specific criminal offence, and it is for that reason that I turn to the next authority.
The third in the trilogy of authorities I suggest could have usurped the need for the Public Works Protection Act is the statutory arrest authority for Breach of the Peace. Section 31 of the Criminal Code states that a peace officer can arrest “any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace”.
The wording here makes this particular authority particularly appropriate to the G20, especially when used in conjunction with the other authorities police have. “Breach of the Peace” not being clearly defined, there is significant room for discretion on the part of the officer to arrest “unruly” people who appear to be “breaching the peace” or who may be about to “breach the peace”.
This authority appears to approach the broadness of the Public Works Protection Act. A person only has to look like they are about to act in an “unruly” manner to be arrested under this authority. The majority of arrests at the G20 were, in fact, under this authority, but the big difference between this authority and the Public Works Protection Act is that Breach of the Peace still requires some ability, on the part of the officer, to articulate why he believed a breach was occurring or about to occur.
Certainly arresting on a Breach of the Peace is more difficult for police than exercising the arbitrary power to arrest under the Public Works Protection Act for simply being in the wrong place. However, it is, arguably, easier to justify the intrusion on people’s Charter rights with a Breach of the Peace arrest than through the Public Works Protection Act.
Summary
The police have extensive authority under common law and statute to stop, detain, arrest, and search people. (All three of the authorities I have cited have powers of search subject to detention or arrest.) However, these three authorities, in fact almost all police authorities, other than the Public Works Protection Act, require the use of discretion and articulation in their application. Certainly, this makes the job of the police more difficult and time consuming, but as a province and as a nation, we are not known for trading our civil liberties for convenience or efficiency in law enforcement and the maintenance of public order, nor should we be.
Based on my own experience as a police officer, I believe that the use of the authorities I have cited above, as well as all the other powers at the police officer’s disposal, would have allowed police to perform their duties adequately at the G20, without the need for the Public Works Protection Act.
The exercise of authority with discretion and articulation is far less likely to raise the ire of the public than the arbitrariness and overbroadness of the authorities contained in the Public Works Protection Act. The courts in this country have tended to rule in favour of the need for proper discretion and articulation in the exercise of police powers and have avoided lending support to blanket authorities. Arbitrary and overbroad authorities which are used to infringe on a person’s Charter rights are inconsistent with the core values and principles of fundamental justice in this country.
On these principled reasons, I would submit that the Public Works Protection Act was not appropriate for the G20.
1) R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59
2) R. v. Simpson, [1993] O.J. No. 308, 12 O.R. (3d) 182
Talk Local on Project Samosa
Talk Local on Rogers TV with Sonia Chin discussed Project Samosa, the terrorism arrests this past summer. The guest is Ibrahim Hindy, a Toronto resident and local leader, who shares the impact of the arrests on him and his fellow Canadians.
He claims that 74% of those arrested on terrorism in Canada have the charges dropped, and wonders whether this approach to anti-terrorism properly reflects our Charter values.
Failing to Produce Insurance Card
From my blog: Simon Says. Category: Police Myths.
Failing to Produce Insurance Card
Don’t I have 24 hours to show it to someone at the police station?
I used to get asked this question all the time: “I got a ticket for failing to produce my insurance card, don’t I have 24 hours to show up with it at the police station and they’ll throw the ticket out?” Simon says NO!
I suspect this myth was started by kindhearted police officers who gave people breaks and told them that if they brought their insurance card in within 24 hours they wouldn’t process the ticket. That was very nice of them to be sure, but that is entirely within their discretion to do and, in my experience, it is not common practice these days.
The Compulsory Automobile Insurance Act section 3(1) states that, “an operator of a motor vehicle on a highway shall have in the motor vehicle at all times (a) an insurance card for the motor vehicle; or (b) an insurance card evidencing that the operator is insured under a contract of automobile insurance.”
There is nothing in the rest of this Act, or elsewhere in law, that supports the 24 hour myth.
Usually officers submit their tickets at the end of their shift and after that it is out of their hands. Once processed by administrative staff and sent off to the courts, they couldn’t recall it or withdraw it if they wanted to.
So if you get a $65 ticket for failing to produce your insurance card, don’t expect to be given 24 hours to produce it. If you are given that opportunity, take it before the officer changes their mind!
LEAF Intervenes in R. v. L.B. at Ontario Court of Appeal
On September 23 and 24, 2010 LEAF will be intervening at the Ontario Court of Appeal regarding the offence of infanticide in the Criminal Code. LEAF aims to offer the court a perspective that will shed light on infanticide as a homicide offence that is distinct from murder.
Moreover, according to LEAF’s press release, they will argue that “where the elements of infanticide are present, the infanticide offence should be available to women regardless of whether the Crown charges murder. This approach is consistent with the clear intention of Parliament to include the offence of infanticide in the Criminal Code.”
LEAF’s Legal Director, Joanna Birenbaum, stated that “infanticide is treated differently in law than murder because of the many overlapping social, cultural, psychological and medical factors which may affect the state of mind of accused women following childbirth. It is a very serious crime, but it is a crime which recognizes the reduced culpability of women [who have recently given birth] whose minds are “disturbed” due to the interaction of these complex factors related to childbirth.”
Do Your Driving Convictions Really Disappear After 3 Years?
Records of Convictions for Provincial Charges in Ontario
Do your driving convictions really disappear after 3 years? Simon says, “No!” Keep reading to find out more about how the government keeps provincial offence records and what happens to them after three years.
Background Information on Provincial Offence Records
First some background information on provincial records. The Ministry of the Attorney General in Ontario keeps records of individuals’ convictions for all provincial charges, the most common Acts being the Highway Traffic Act (HTA), the Compulsory Automobile Insurance Act (CAIA), and the Liquor Licence Act (LLA). However these records are kept on an antiquated system, known as ICON, and are not easily searchable by police officers in the course of their regular duties. These records are primarily for the courts to maintain and use. ICON records are kept longer than three years.
This means that police officers aren’t likely to know about your underage drinking or public intoxication tickets when they run your name, unless you are dealing with the service that issued you the ticket, then they will probably have record of it on their own computer system.
MTO Records of HTA and CAIA Charges
The Ministry of Transportation (MTO) also keeps a records system, known as PARIS (Plate and Registration Information System). PARIS is accessed through the CPIC (Canadian Police Information Center) software, which is readily available to all police officers.
PARIS keeps track of individuals through their driver’s licence number and only deals with driving related provincial offences, namely Highway Traffic Act and Compulsory Automobile Insurance Act charges. It also keeps records of any driver’s licence suspensions, regardless of what they were from (i.e. medical, unpaid fines, racing, criminal conviction, etc). The PARIS record is what people are referring to when they speak of their “driving record”.
When a police officer runs (checks) your driver’s licence number, they will see your licence status and your convictions on PARIS, as well as any points you have accumulated from those convictions. Police services in Ontario (with the exception of the OPP and MTO enforcement officers) only have access on PARIS to the last three years worth of convictions and demerit points (although points actually regenerate after only two years).
The Three Year Myth
The fact that most officers can only see the last three years worth of convictions, coupled with the fact that insurance companies usually only ask about your last three years, has led to the myth that driving convictions are wiped off your record after three years. This is not the case! PARIS keeps records of your convictions indefinitely, it’s just that most officers can’t see them. The OPP and the MTO, however, can. So remember this the next time you are asked if you’ve had any tickets in the past!
From my blog: Simon Says, Category: Police Myths
Careless Driver Convicted After Boasting Online: Issues Surrounding Internet Statement Evidence
From my blog: Simon Says, Category: Police and Law News.
CTV News: Careless Driver Convicted After Boasting Online
Issues Surrounding Internet Statement Evidence
The gist of the story is that Vladimir Rigenco, a 19 year old man from Vaughn, Ontario pled guilty to Careless Driving in a Provincial Court and received a six month driving prohibition, 1 year probation under the Provincial Offences Act, and a $1000 fine. He was charged after he posted comments on a car enthusiast forum about how he had driven his 2006 BMW M5S at speeds of more than 100 km/hr over the speed limit.
This case raises some interesting issues surrounding electronic “statement evidence” and the anonymity of the internet. The issues were not brought before a court in this case, because it was resolved by way of a plea bargain and not a trial, but obviously the crown believed they had enough evidence to proceed with charges.
The primary issue that arises with electronic statement evidence (usually someone admitting or boasting of a crime on the internet or making threats against someone electronically) is that of identity. Just because something originates from a specific account, does not mean that the registered owner or user of that account was the person at the keyboard when the statement was made.
It is a simple enough defence to say that other people than the registered owner have access to the account, either with permission or without. In fact, in my opinion (and the opinion of most police officers I know and worked with), this defence is so common sense that it prevents an officer from forming reasonable grounds that the owner of an account is the one who committed the offence.
A parallel issue surrounding identity is how the actual identity of the real person who owns/uses an account is determined. Most people don’t use their real names on their internet accounts and, even if they do, there is no mechanism in place to determine if someone inputting the name Simon Borys is actually the real Simon Borys. (Would the real Simon Borys please stand up!?)
In order to determine the identity of the person behind an account, police usually have to write Production Orders for the companies that own the servers that host the website or forum in question to get the IP address that the statements originated from (unless they are publicly available). They then have to write a Production Order for the Internet Service Provider of that IP address to determine the actual name and location of the registered owner of the account.
That still only gets them to the house or building the statements came from, which can assist with providing corroborative evidence if the police already believe it was Simon Borys who made the statements and the IP address is registered to Simon Borys’ father at the house Simon Borys lives at. But there still might be a defence that it was someone else in the house who made the post, especially if it’s a public building or something like a student residence.
This type of investigation is time and resource consuming and does not even guarantee the identification of a suspect. However, it can be useful when other investigative avenues exist. In this case, if police had the address which the post originated from, they would have been able able to search Ministry of Transportation records for all the people residing at the house to determine if anyone there owns a 2006 BMW M5S.
A second issue of fundamental importance with respect to electronic statements is whether there is any corroborating evidence at all. Someone can, and people often do, make false claims on the internet (or elsewhere) for any number of reasons. In this case, perhaps Rigenco just wanted people to think he was cool. The bottom line is that if there is no evidence other than a statement, I would suggest that is not sufficient evidence to lay a charge.
The belief that a statement alone is sufficient evidence, when taken to its logical extreme, ends in absurdity. If I say I smoked marijuana can I be arrested for possession? If I say parked in a no parking zone can I be given a ticket? It’s just not logical to think that an unsupported inculpatory statement meets the threshold of reasonable grounds. Where is the evidence? I don’t know if there was additional evidence in this case, but the issue remains.
I hope that after reading this people have a little better understanding of the complexity and difficulty of internet related investigations and keep in mind that police are unlikely to undertake this type of investigation for all but the most serious offences.
Does A Police Officer Have To Show Up For Court?
From my blog: Simon Says, Category: Police Myths.
Does A Police Officer Have to Show Up For Court?
Today, in my continuing saga of addressing Police Myths, I will be answering the question “does a police officer have to show up for court?” Although it is well known that officers sometimes do not show up for traffic court, Simon Says: Yes, they do have to attend court!
Attending all levels of court to give evidence in both criminal and provincial offence matters is one of the duties of a police officer. Section 42 (1) (e) of the Police Service Act lists one of an officer’s duties as “laying charges and participating in prosecutions” (that means showing up for court). Usually, this duty is also spelled out explicitly in the police service’s policies and procedures. The Court Attendance policy of the service I used to work for stated, “Members shall attend court as specified in the procedure.” In fact, later in the policy, under the duties of the Officer in Charge, it states that they are to take disciplinary action against an officer who did not attend court as required.
So why do officers occasionally not show up for traffic court? Most people have heard of someone who went to court to fight a traffic ticket, was told the officer wasn’t there, and had the ticket withdrawn.
The reason for this is usually that the officer got tied up dealing with something on the road and was not able to finish it in time to get to court. Officers start their shifts early in the morning (usually 7:00 am), which gives them plenty of time to get involved in something by the time court is scheduled to start (usually 9:30 or 10:00 am). Due to the nature of situations an officer deals with on the road, they can’t always just stop what they’re doing to go to court.
The other most common reason is that the officer is on holidays or sick.
In either case, without the officer to give evidence, the crown prosecutor likely has no reasonable prospect of obtaining a conviction, which leaves them with two choices. They can either bring a motion to adjourn the matter to a latter date or withdraw the charges. Which option they choose depends on a number of factor, primarily the seriousness of the offence. In criminal court, the crown will always bring a motion to adjourn, and it will probably be granted by the Judge. In provincial offences court it is far more likely that the crown will withdraw, especially if there are civilian witnesses who would be inconvenienced by having to return on another date.
The important thing to remember about this myth is that it is not up to the officer’s discretion whether they will attend court. Regardless of what they have said when issuing a ticket or what impression they left you with, they must attend court unless they are physically unable to do so.
Stockwell Day Unicorn Poaching Unreported Crimes
Canadians have a constitutional right to government-held info: SCC
According to a recent ruling of the SCC, the right to access to government records is now protected by the Charter. In a unanimous 7-0 ruling in Ontario (Public Safety and Security) v. Criminal Lawyer’s Association, [2010] S.C.J. No. 23, the SCC decided that if the information is needed to promote “meaningful public discussion on matters of public interest”, Canadians have an access right to that information, guaranteed by s. 2(b) of Charter under the heading “Fundamental Freedoms”.
The Criminal Lawyer’s Association (CLA) called this “an epic win”, that ensued after a decade-long battle for access to a 300-page review conducted by the OPP with regards to how the Hamilton and Halton police “handled the investigation of the 1983 murder of Toronto mobster Dominic Racco. Mr. Racco was shot and killed on December 1983 and his body was dumped on a Milton rail line. Two Hamilton men, Garaham Court and Dennis Monaghan were charged consequently by Hamilton Police. They had the charges stayed in 1997 after Justice Stephen Glithero of the Ontario Superior Court found evidence of “flagrant and intentional misconduct” by the Crown and Halton and Hamilton police in the process. An investigation by the OPP ensued that resulted in the review but it was not made public despite CLA’s request. The denial of the government to force the OPP to release the review was basically what fuelled the legal action taken by the CLA that was eventually granted the right to appeal by the SCC.
Although, the CLA found the ruling, an epic victory, it was not granted the right to access the information in the OPP review. The SCC, in turn, held that right to access could only be triggered when the information sought “is necessary for meaningful public discussion on matters of public interest”. In matters where the release of information may “interfere with the proper functioning of the governmental institution in question”, or where they are shielded by solicitor-client privilege, such rights are not guaranteed to the public.
For one, the SCC held that the review may contain information about the parties that are protected by the solicitor-client privilege. Furthermore, it was decided that CLA has failed to demonstrate that “meaningful public discussion of shortcomings in the investigation and prosecution could not take place without making the OPP report public”. Yet, the Supreme Court sent back the CLA’s request to the information commissioner for a fresh review. Yet, the ruling was described as “a baby step toward recognizing that access to information is a constitutional right” by Paul Schabas of Blake, Cassels & Graydon LLP.
Many countries including UK and US have similar laws implemented in their laws. Sweden, embedded access to information laws in their legislation in 1766 via their Freedom of the Press Act. The British Freedom of Information Act (2000), implemented such rights into the country’s legal system. In Canada, the Access to Information Act grants citizens access to records held by federal bodies and Freedom of Information and Protection of Privacy Act is the legislation that governs matters that come under the scope of the Ontario provincial government. The significance of this “baby-step” is of course in having the access to information right established as constitutional rather than statutory.
Read this article by Dan Michaluk and Paul Broad of Hicks Morley for further analysis of how this case impacts the government institutions.
Photo: Dominic Racco
