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. Yahya, 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.
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!
