RSS FeedCriminal Defence Lawyers Need Not Apply
Newsflash – the Ontario Government is looking for outstanding members of the public to sit on 27 separate police services boards throughout the province. Criminal defence lawyers need not apply.
What? Did I read that right?
Strangely yes. On the Ontario Government Public Appointment Secretariat’s website found at: http://www.pas.gov.on.ca/scripts/en/upcomingVac.asp, there are nearly 200 postings for various positions on provincial agencies, boards and commissions.
But in the requirement section for the police services board postings, it states, “No judge, justice of the peace, police officer or person who practises criminal law as a defence counsel may sit as a member of a board.”
Presumably this restriction is present because of a perceived conflict of interest by the enumerated professions. But in the case of criminal defence lawyers, I don’t see it.
Is it suggesting that criminal lawyers are blindly partial to criminals and that they do not want to live in safe communities? Or perhaps they are too inclined towards Charter rights, fairness and the rule of law?
Unlike the police and members of the judiciary, the defence bar is not paid through government salaries. If they are paid government money at all, it is by piecemeal legal aid certificates. But if you think about it, it is in everyone’s best interest including defence lawyers for the police to do a good job.
Let’s be clear, police services boards exist for effective administration of police organizations. They do not, or at least should not, direct or participate in police operations. Their role is to set administrative and fiscal policy.
Accordingly, a defence lawyer serving on a police services board is not in any conflict of interest.
Neither is it a general conflict for other professions like chartered accountants, business owners, or Commedia dell’Arte clowns for that matter to serve. The question that should be asked is who best can serve in the required capacity.
To say that criminal defence lawyers are in conflict because they make their living representing “criminals” is to miss the point. Having a thorough understanding of the criminal justice system is an asset and indubitably would be a positive influence on the effectiveness of police services boards.
Cop Tasers 10 Year Old…
In a story that seems even more far fetched than an episode of “COPS” an Arkansas police officer has been suspended in part for applying his taser to a 10 year old girl.
However, the oddest part to this story is not that the officer Dustin Bradshaw was suspended for using the taser, it was for not following police procedure in activating the video camera during the use of the taser.
In another twist, the girls mother gave the officer permission to use the taser.
When I read stories like this, I simply shudder. This use of the taser on a CHILD is a grossly negligent use of this weapon. Yes weapon, this is what a taser is. It is a tool that should be used when you are step away from shooting somebody. Had this officer not had the taser, would have he shot her? Pepper sprayed her? No probably not, I assume he would have taken physical control of her or called for another officer to help him take control of the girl.
I often wonder after reading stories like this or seeing episodes of COPS or other police reality shows that feature real-life footage if officers are straying away from their training and are using what they see on TV as a pseudo-authority for the use of the weapon.
This is not what the taser was intended for, and thankfully, in my experience, not how it is being applied in Canada, with the exception of the Robert Dziekanski incident in Vancouver.
I believe there is a culture of comfort surrounding the taser, whereas some officers are relying on it instead of using good old fashion communication.
Sex assault and consent
Rookie officer acquitted in sex assault
A man meets a woman on a dating website. They get together for coffee. Later, they move on to her car and start making out and talking about sex. But she changes her mind and he gets charged with sexual assault. Did she consent to the making out?
Peter Small writes for the Toronto Star:
The judge discounted much of her version, noting they were parked either in the coffee shop parking lot or at a gas station, where she could easily have alerted passersby.
Link to Precedent Magazine Article
I have written an opinion piece on the relationship between police officers and lawyers for Precedent Magazine.
It can be found on page 17 of the Fall 2009 edition or via this link:
Please check it out and we welcome comments. Thank you.
The finger as a traffic offence
One-digit salute earns driver second ticket
After he received the ticket and began to pull away, the driver raised his hand and flashed an obscene gesture toward provincial police Const. Bettina Schwarze.
Do you think the officer did the right thing?
What to do with tasers
B.C. Taser inquiry report released
Racial profiling
Police condemned for profiling of letter carrier
The privacy of police officers on the witness stand
If a police officer is a witness in court, can the defence lawyer bring up his disciplinary record? Police forces across the country don’t like this idea at all, fearing that the cop’s integrity will end up on trial (Edmonton Sun article).
I was in a bail hearing on Friday. A proposed surety took the stand. He is apparently a respected member of his community, a hard-working man, and a father. What did the Crown do during the cross-exam? They pulled out his criminal record. The man had been long pardoned, and the other charge had been dropped. It still came up though, and the Crown had easy access to this information.
I guess no privacy issues came up because he is an ordinary citizen. But it was certainly awkward.
(post sponsored by advicescene.com)
Why You Should Never Talk to the Police
Moin A. Yaha, Associate Professor of Law at U. Alberta has posted a couple of interesting videos on why criminal suspects should never talk to the police.
Most experienced defence lawyers will tell you that the first words out of their mouth when they get the 3AM phone call from the jail are: “don’t say anything!”
But for some reason, criminally accused often don’t seem to get it.
The videos feature a professor of law (formerly a defence lawyer) as well as a police officer explaining why suspects would do well to heed the advice and exercise their right to remain silent.
Though the videos are reflective of American law, the principles are largely applicable here in Canada. Though we do not have a 5th Amendment, Canadians have long had a right to silence which is now constitutionally entrenched in s. 7 of the Charter (see R. v. Singh, 2007 SCC 48 for a discussion).
And now, without further ado, here is why you ought not to speak to the police:
If you have limited time, I’d suggest skipping forward to 8:20, where the professor discusses the “top 10 reasons why you should never speak to the police.”
[YouTube clips reposted from U. Alberta's Law Faculty Blog]
40% of Ontario Prosecutions Fail Before Trial
According to the National Post, the criminal justice system in Ontario is an absolute mess.
Ontario has the highest rate of failed prosecutions in Canada.
In this province, approximately 40% of criminal cases are withdrawn, stayed, or dismissed, often before the trial even begins.
To say nothing of the impact on the improperly accused person, the cost to the taxpayer – for wasteful police investigations, fruitless prosecutions, and court costs – is in the hundreds of millions of dollars.
Why?
There are a few reasons which the National Post and others have identified:
- Lack of collaboration between Crown Attorneys and the police. For the vast majority of crimes in Ontario, the police make the decision on whether to lay a charge. The police are not in the best position to decide whether the charge will stick in court; Crowns are. In other provinces, the Crown acts in a screening capacity to decide whether a charge should be laid in the first place.
- Lack of discretion on the part of Crown Attorneys. The Crown policy manual requires Crowns to drop charges where there is no reasonable prospect of conviction or where pursuing the matter would not be in the public interest. Thus, Crowns are required to act in a quasi-judicial role in deciding whether to press the prosecution. Unfortunately, junior Crowns are often unwilling to take initiative and withdraw a charge for fear of making a mistake and drawing the ire of their superiors.
- Lack of ownership of files. Most criminal files are shuffled around from one Crown attorney to the next until the time of trial. This creates a great deal of administrative waste, because all of the Crowns that will come into contact with the file will have to take time to fully familiarize themselves with it. Worse yet, when Crowns feel that they don’t have ownership of a file, they are unwilling to make tough decisions to withdraw a charge. Lacking a comprehensive knowledge of the case and the accused, it’s easier to just do nothing and allow the file to pass to someone else.
Having identified some of the causes, it’s clear that relatively simple changes could be made to the criminal justice system to significantly cut down on the number of failed prosecutions.
Spectre of Scandal Raised After Charges Against Crown Dropped
In a story rife with intrigue, the Toronto Police Association has filed a Law Society complaint against a London criminal defence lawyer stemming from her involvement in the prosecution of a Crown attorney. A complaint was also forwarded to the Attorney General’s office.
Jeanine LeRoy, one of London’s top criminal defence lawyers, was called in to prosecute a Toronto Crown charged with assault and resisting arrest. LeRoy was brought in as a special prosecutor because of the conflict of interest in having Crowns prosecuting their own.
The background to the case is bizarre.
On October 6, 2007, Roger Shallow was celebrating his birthday with his friends and family. He was with his girlfriend attempting to load his birthday presents into a car when asked to “move on” by a parking enforcement officer.
The police claim that Shallow appeared to be intoxicated, and that he was belligerent towards the officer.
According to Shallow’s lawyer, David Humphrey, “she takes offence and starts to arrest him for public intoxication and he resists – we say, with perfect legal justification.”
Shallow was charged with assault, resisting arrest, and causing a disturbance. He was then brought to the 52 Division police station. At that point, police allege that Shallow tried to pull rank by telling police he was a prosecutor.
Police Association president Dave Wilson claims that “he was saying, ‘I’m a Crown attorney, you don’t know who you’re dealing with.’”
The police were apparently not impressed by what Wilson calls “improperly attempt[ing] to seek special treatment by virtue of his position.”
In fact, to say that the police were not impressed is an understatement. At some point — details are hazy — Shallow was subjected to a strip search.
His involvement in the prosecution of police officers may have been a factor.
In 2004, Shallow successfully prosecuted a Toronto police officer for breaking the cheekbone of a Jamaican man during the course of an arrest. It was a racially-charged case in which the trial judge found that the cop, by essentially fabricating a charge, was not in lawful execution of his duty when he arrested the complainant and used excessive force. The conviction was upheld by the Superior Court of Justice and later by the Ontario Court of Appeal [R. v. Walker, 2007 ONCA 104].
He has also prosecuted two other police officers in other jurisdictions.
I will add, as an aside, that Shallow is himself a black man, having immigrated from Trinidad as a child. He was president of the Black Law Students Association at Windsor Law in 1999.
Subsequent to the strip searching incident, Shallow sought an SIU investigation into the conduct of the police. He had charges of assault brought against the two arresting officers, and also filed a human rights complaint against the Toronto Police.
Shallow’s criminal case was scheduled to go to trial on January 8, 2008.
Jeanine LeRoy, the special prosecutor, after reviewing the case and canvassing the Charter issues involved, came to the conclusion that there was no reasonable prospect of conviction. The charges were dropped on the day of trial.
The Police Assocation feels that LeRoy did not adequately consult with the police in preparing for the case. Wilson claimed in an interview that he was stunned by the Crown’s decision, and said that “this appears to be preferential treatment and is the exact kind of situation that causes the public to lose faith in the court process.” This is despite the fact that LeRoy is actually a defence attorney from another city, and was brought in precisely to avoid allegations of preferential treatment.
In what appears to be politicking in a completely scandalous case, the police have reported LeRoy to the Law Society and complained to the Attorney General about her “misconduct.”
Without knowing the details of the case, it appears that LeRoy’s decision was well-founded.
First, strip searching an accused without the proper grounds is a violation of s. 8 of the Charter. If done for an improper purpose, it probably warrants a stay of prosecution.
In R. v. Golden, 2001 SCC 83, the Supreme Court held that the police must have reasonable and probable grounds for thinking that a strip search is necessary in the particular circumstances of the arrest. There must be reason to believe that the accused is concealing evidence or weapons on his person. Why a strip search would be necessary when the charges are causing a disturbance, resisting arrest, and assault, is unclear.
The Supreme Court further went on to say that:
“In our view it is unquestionable that [strip searches] represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them… regardless of the manner in which they are carried out.
…
A strip search will always be unreasonable if it is carried out abusively or for the purpose of humiliating or punishing the arrestee. Yet a “routine” strip search carried out in good faith and without violence will also violate s. 8 where there is no compelling reason for performing a strip search in the circumstances of the arrest.
Secondly, a 15-month delay in bringing a summary conviction charge to trial might be a good candidate for a stay based on s. 11(b) of the Charter.
One thing I do know is that Jeanine LeRoy is a well-known and well-respected member of the London criminal defence bar. She certainly has an excellent understanding of the Charter. I don’t know her personally, but all of the lawyers I have spoken to say that LeRoy is a woman of great integrity and talent.
Unfortunately, LeRoy now finds herself caught up in what appears to be a scandalous case of police abuse.
In preparing this post, I contacted a liason at the Toronto Police Association and did not receive a response.
Update on the B.C. Mystery Feet
We’ve been following the severed foot story at Law is Cool for some time now. Ian MacKenzie, a freelance new media producer from Vancouver, contacted us to let us know that he’s been doing some independent journalism on the topic as well. His video, including some interesting interviews with RCMP and B.C. Coroner’s Service spokespeople, is embedded below.
If you haven’t heard about it yet, the story is that over the past 18 months, 6 severed feet have washed ashore on BC’s coast. The story has achieved international notoriety, as investigators on both sides of the border have no idea where the feet came from.
DNA analysis has revealed Foot #3 and Foot #5 came from the same person (though the body has never been found). Also, one foot has been connected to a known missing person, and another has been identified as coming from a female. As for the rest of the mystery, answers continue to elude police.
Thanks Ian!
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