RSS FeedDoctor Saves Life, But Gets a Speeding Ticket…
Jeffery Halstrom was fighting for his life, while Cardiologist Dr. Michael Kutryk, had been stopped and was receiving a ticket for speeding.
This has opened up a can of worms. Luckily, in the end, Halstrom survived, and Dr. Kutryk plans on fighting the $300 ticket he received for going 35 km/h over the posted 40 km/h speed limit.
This obviously begs the question to be asked? Should doctors have special privileges when travelling to a hospital for an emergency surgery? Should they have special license plates? A portable flashing light? If you think so, what about the liability if the doctor crashes, causes an accident, or what defines an “emergency surgery?”
All things to think about as this case goes before the courts.
Female Ski Jumpers Refused Leave to Appeal
In what must feel like a complete let down only two months before the 2010 Olympics in Vancouver, the Supreme Court of Canada has refused a leave of appeal by a group of female ski jumpers who are demanding for equality with hopes that they too will be allowed to compete alongside their male counterparts in February. The SCC did not release any reasons for their decision.
The women’s lawyer, called the decision a case of “textbook discrimination.”
The trials and tribulations began when the women launched a complaint with the Canadian Human Rights Commission. When that failed, they pursued a court action.
The IOC voted not to include women’s ski jumping at the 2010 Winter Olympics because the sport didn’t meet the necessary criteria for inclusion. The IOC requires that a sport must have contested at least two world championships before it can become an Olympic event. There are also rules dictating how far in advance a sport can be added to the Olympic program.
Podcast: UWO Arrest and Campus Police Use of Force (Episode 24)
In October of this year, Irnes Zeljkovic was arrested at the University of Western Ontario by the UWO Campus Police. The arrest was caught on tape by at least two bystanders, who posted videos of the arrest to YouTube. In the videos, the six officers appear to strike Zeljkovic repeatedly with fists, knees, and a metal baton. The incident has raised questions about whether the Campus Police used excessive force in the arrest. The University has now hired a former Ontario Provincial Police Commissioner to review the incident.
On today’s show, Omar Ha-Redeye discusses the Zeljkovic arrest with Phillip Millar and Ryan Venables. Millar is an associate with Cohen Highley LLP in London and is counsel to Irnes Zeljkovic. He is also a former Crown prosecutor and served in the Canadian Forces. Venables is a former police constable and currently a first-year law student at the University of Western Ontario.
Law is Cool Nominated in the Canadian Blog Awards
Law is Cool has once again been nominated in the Canadian Blog Awards. This year, we have been nominated in five categories including Best Blog Overall, Best Blog Post, Best Group Blog, Best Podcast, and Best Professional Life Blog. The preliminary round of voting concludes on December 12th, and the final round of voting takes place from December 13th to 19th. If you enjoy the podcast, please take a moment to vote for Law is Cool.
SCC to hear Pickton’s Appeal
The Supreme Court of Canada has decided that it will hear an expanded list of “errors in law” that helped to convict serial killer Robert Pickton’s appeal.
Street Racing Laws Ruled Unconstitutional… Again!
For the second time, Ontario’s new anti-street racing laws have been deemed unconstitutional. This time Justice Peter Wright, has thrown out charges by indicating the unconstitutionality of the new law.
Justice Peter West, a provincial court judge in Newmarket, found that an accused driver’s Charter rights are “clearly infringed” by the potential jail time because the law doesn’t permit the person to put forward a defence.
“There is no air of reality to the Crown’s submissions that a defendant charged with stunt driving under section 172 of the Highway Traffic Act … has an available defence of due diligence,” West stated in a written ruling.
“The possibility of the imposition of up to six months imprisonment thereby renders this section unconstitutional.”
I can see this going up the judicial ladder. We shall keep our pedal off the metal, until this is decided. It is however, reported that police agencies still plan on enforcing the law.
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.
Strikers To Target Students…
Yesterday at 00:01, the London Transit Commission went on strike for the first time in almost 30 years. The local 741 Amalgamated Transit Union and the City of London are, depending on who you talk to, either close or far from a deal.
As I am fortunate enough to own a vehicle and I have offered my spare seats to pick up other law students. As I was driving in to pick up a friend, I was listening to the radio and I was glad to hear that UWO had decided to assist students by renting upward of 50 vans to drive students who live more than a 30 minute walk from campus to and from school.
The conversation quickly changed when in the hosts next breath he reported that Pat Hunniford, president of the local transit union, had declared that if UWO goes ahead with trying to provide transportation to its students, that his union would setup a picket line at UWO!
But, he warned, if the University of Western Ontario goes ahead with volunteer drivers using vans to move students, the union will put up picket lines at the campus.
Western’s unions have agreed not to cross those lines, he said.
“The students may get to classes, but they may not have anybody teaching them.”
The longer the strike goes on, the longer it will take for service to resume once a deal is signed, Hunniford added.
Although I understand the importance of unions, I feel that the potential of UWO’s unions holding a sympathy strike would do nothing more than hurt the students. However, I digress.
Back to the LTC picketing UWO’s attempt to provide an reasonable alternative for its students. I immediately thought of the legality of this. In my two months of law school, we have covered cases like this, where the court held that it was illegal to strike on private property (see: Harrison v. Carswell (1975), [1976] 2 S.C.R. 200).
The next thing I thought, is whether the property flowing through UWO’s “boundaries” is actually considered private. For this we can refer back to Harrison v. Carswell where in that case the picketing was occurring on a shopping mall’s property. UWO much like a shopping mall has a direct invitation for people to come on its property to enjoy its use. The dissent in Harrison v. Carswell argued the mall was a public place and as such could be used as such “revocable only upon misbehaviour (and I need not spell out here what this embraces) or by reason of unlawful activity”
However, public and private property in Ontario are also included in Trespass to Property Act, R.S.O. 1990, c. T.21 defines what property (aka premises) is:
“premises” means land and structures, or either of them, and includes,
(a) water,
(b) ships and vessels,
(c) trailers and portable structures designed or used for residence, business or shelter,
(d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”) R.S.O. 1990, c. T.21, s. 1 (1).
As with this definition, it would be fully within the power of the UWO administration to prevent LTC picketers from setting up and preventing the transit of students to and from class. Although I am probably missing something under various Ontario labour laws, I am not really prepared to undertake a full research project into the legality of roaming strikes. Should my simple research turn out to be the law regarding this and should the LTC setup picket lines surrounding UWO, I would encourage the administration to take all necessary steps to ensure that students are not only able to have rides to school, but that classes will still occur.
Should the LTC begin to picket UWO and prevent students from obtaining a ride by UWO, any support held by students toward the union will quickly fall.
I applaud the university’s effort in assisting the students, and I, like many Londoners, hope the strike ends soon without holding the students or rest of London hostage in the time being.
If there is more by way of legality that you can add, please do so in the comments section… Thanks.
Women Ski Jumpers Grounded…
The BC Court of Appeal has dismissed an appeal filed on behalf of a number of a group of women ski jumpers attempting to get inclusion into next years olympics being held in Vancouver. Written statements were not given, but will be available next week.
Previously, the BC Superior Court ruled that although there are definite Charter breaches and discrimination is evident, they do not apply to the Swiss based International Olympic Committee. On behalf of the women ski jumpers, they argue because the women’s event is not yet a recognized sport, they are under the jurisdiction of VANOC (Vancouver Olympic Committee), which as a Canadian organization is bound by the Charter.
There is no word to whether this will be appealed to the Supreme Court of Canada.
Should they continue to the SCC and win the IOC will be forced into one of three options:
1. Include them
2. Cancel the men’s event.
3. Hold the men’s event outside Canada, so the Charter does not apply, and they can hold only the men’s event.
As the eleventh hour of the games near, if they decide to go to the SCC, expect a quick turnaround.
Former OPP Commish to Review UWO Arrest…
The University of Western Ontario has hired former Ontario Provincial Police Commissioner and lawyer Gwen Boniface to review the violent arrest of Irnes Zeljkovic according to a London Free Press article and from UWO Communications.
The arrest garnered an overwhelming response from the students at UWO and media alike:
(This version of the video was used because the original has been flagged for violence and there are issues posting it here. For an opportunity to see the original, go to the link at the bottom of this post for my original article).
The review seeks to answer the following questions:
- Whether the situation was preventable.
- The training and resources available to campus police.
- Procedures for securing areas where an incident is occurring.
- Campus police co-ordination with London police.
It is also expected that students will be gathering at 4 p.m. at the University Community Centre once again to protest the treatment of Zeljkovic.
It has also been revealed that the London Police Service is conducting it’s own review into the arrest.
For a review of my original take of this article see this Law Is Cool article.
Police Were Instigators in Montebello – Report Holds
When the North American Summit Leaders’ Summit was held in Montebello, Quebec in August 2007, something came to the attention of Dave Coles, President of the Communications, Energy and Paperworkers Union.
Amidst a seemingly peaceful protest, Coles noticed that three bandana-clad “burly” men were attempting to incite the protestors to become violent toward riot police.
As with many of these situations at the national level, the R.C.M.P. has jurisdiction or control if you will over security, however, then Minister of Public Safety Stockwell Day indicated that security on the front line and directed toward controlling the protesters was the responsibility of Quebec’s provincial police agency, the Sureté du Québec. That in my opinion, is fairly normal.
What Mr. Coles charged is that the three burly men were actually police officers. This seems to go against the rationale to what the police were there to do. To quell violence not insight it. After concluding in quickie internal investigation there was no wrongdoing, the Comité à la déontologie policière said yesterday in a media release there was grounds to believe wrongdoing occurred on the part of the officers, and has now summoned them to a hearing on the matter.
Now the committee, which has the power to issue binding rulings on the Quebec police, will hold public hearings on the issue within the next six months. The three officers – Jean-François Boucher, Joey Laflamme and Patrick Tremblay – are required to appear – The Globe and Mail reports.
Aside from the obvious disciplinary sanctions that these officers now potentially face. Mr. Coles and many like him are asking the tough question of who directed these officers to take such action? Accountability needs to be had in order to restore faith in the public’s perception of how the police handle these situations.
Like one of my other articles, (also found here), I have the fortunate ability to break this down as a former police officer, who was also part of the York Regional Police’s Public Order Unit. Just to qualify my skills, I receive basic Public Order training at Downsview park with the Toronto Police Service’s Public Order Unit, and did requalification training at C.F.B. Meaford with a number of Ontario police agencies. I was also deployed to Caledonia at the height of the tension between the First Nations people and local residents.
In my training we were taught how to deal with such situations and my superiors would have never instructed officers to take up such actions. Just as the protestors arms themselves with video cameras and other “weapons” of technology, so do the police. In such public order situations, there could be plainclothes officers in the crowd monitoring situations, recording for evidentiary purposes, and watching certain groups known to police to cause problems. Nothing wrong with that.
But the thought that the police were the ones instigating the problems is quite saddening. I hope justice is swift, and those responsible, whether it is the Sûreté du Québec, R.C.M.P., or politicians are able to dealt with appropriately, especially after watching the YouTube video:
And hearing all of the evidence the Committee has ruled in the following manner:
ALLOWS the application for review in respect of the three respondent
sergeants on the allegations stated by the Commissioner in his decision:
Was disrespectful or impolite towards any person (section 5 of the Code);
Used obscene, blasphemous or abusive language (section 5 of the Code);
8 Item 4.10 of the Commissioner’s investigation report.Failed to respect the authority of the law by inciting persons to violence (section 7 of the Code);
Refused to produce identification when a person asked him to do so (section 6 of the Code);
Furthermore, now that the Committee has overruled the Commissioner, the door has probably been opened for a criminal investigation in relation to assault charges against one officer, and potentially this:
Unlawful Assembly:
63. (1) An unlawful assembly is an assem- bly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on rea- sonable grounds, that they
(a) will disturb the peace tumultuously; or
(b) will by that assembly needlessly and without reasonable cause provoke other per- sons to disturb the peace tumultuously.
(2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a man- ner that would have made the assembly unlaw- ful if they had assembled in that manner for that purpose.
Like all interesting developing stories, we shall see where this leads us.
David Chen: Vigilante or Local Hero?
On May 23, when Anthony Bennett was captured on video camera stealing $60 worth of plants from David Chen’s, Mr. Chen’s Lucky Moose Market located in Toronto, it set off a chain of events that may lead to a reform of what is known as “citizen’s arrest” rights here in Canada. Ironically, it was Chen who was also arrested by the Toronto Police Service, and charges are being sought by the Ministry of the Attorney General and the Toronto Crown’s office. However, they are seeking a quick resolution and have offered Chen a guilty plea. Refusing Crown offer of a guilty plea, Chen is hedging his bets on a legal challenge. The Globe & Mailarticle spells out much of the previous facts.
Facts:
Bennett stole the plants from the market then rode off on his bicycle. About an hour later he returned to the market, for whatever reason. Mr. Chen and two employees recognized the culprit and gave chase. After subduing him and effecting a citizen’s arrest (which is lawful under s. 494(1) of the Criminal Code of Canada), they tied him up placing Bennett in a truck to await the arrival of the police.
As a result, Bennett AND Chen were arrested. Bennett for two counts of theft under $5000, and Chen for forcible confinement, weapons offences, and assault. Bennett has subsequently pleaded guilty to the theft charges, and received a sentence of 30 days. When I first read this, it immediately became apparent to me that Bennett either has a long criminal history or there are aggravating circumstances surrounding his sentence. This is an EXTREMELY long sentence for a simple theft under charge. (After doing some digging… turns out he does have a long criminal record) Just to put it in perspective. But I digress…
The Crown seems to be adamant to set an example of Chen for whatever reason, and they have even secured Bennett as a witness against Chen. However, Chen and his lawyer Peter Lindsay are playing hardball, and not going the easy way out by accepting a deal. Good for you!
That offer is “insulting,” Mr. Lindsay said, and he flat-out refused it despite warnings that the Crown will ask for a jail sentence for Mr. Chen if the offer is turned down.
Analysis:
This, for me anyway, is where it becomes interesting. Lindsay has said that they plan on not only fighting the charges, but they are going challenge s. 494 of the Code:
Mr. Lindsay plans to challenge Canada’s citizen’s arrest laws. Right now, a property owner or someone acting on a property owner’s behalf can arrest someone without a warrant if they see that person committing a crime on their property.
That definition is too narrow to allow people to protect their property, Mr. Lindsay says: He argues it should be changed to allow private citizens to arrest people they suspect committed or will commit a crime.
Section 494 of the Criminal Code of Canada reads as this:
494. (1) Any one may arrest without war- rant
(a) a person whom he finds committing an indictable offence; or
(b) a person who, on reasonable grounds, he believes
(i) has committed a criminal offence, and
(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
(2) Any one who is
(a) the owner or a person in lawful posses- sion of property, or
(b) a person authorized by the owner or by a person in lawful possession of property,
may arrest without warrant a person whom he finds committing a criminal offence on or in re- lation to that property.
(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.
(I added the bold)
Clearly, since he would have witnessed Bennett’s theft of his own property from his store, the arrest is justified under s. 494(1)(b)(i). I think it is here where the debate begins and continues to Chen’s actions after that raise the questions.
What is the legal definition of freshly pursued? It is not listed in s. 2. I did find a number of US definitions, however, they were all related to peace officers and not citizens. I think the bulk of Lindsay’s argument is going to hinge on the lack of definition of “freshly pursued.” Will the courts interpret his actions as freshly pursuing upon seeing somebody whom he believed on reasonable grounds had committed an indictable offence?
Had Bennett not come back to the store, this would all have been avoided, but perhaps Chen gave chase because he thoughts Bennett was about to commit another offence. If it turns out in court that was the case, then the arrest would be deemed illegal because only peace officers have the ability to arrest on reasonable grounds that somebody is about to commit an indictable office:
495. (1) A peace officer may arrest without warrant
(a) a person who has committed an indicta- ble offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
From the interpretation I can gain from the quote in the Globe, it appears that Lindsay may also have issue with 494(3). Now the definition of “forthwith” is not explicitly stated in the Criminal Code, however, in my experiences it means as soon as practicable. The closest thing that I could find in the Code is this example:
254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by de- mand, require the person to comply with para- graph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:
(a) to perform forthwith physical coordina- tion tests prescribed by regulation to enable the peace officer to determine whether a de- mand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will ena- ble a proper analysis to be made by means of an approved screening device and, if neces- sary, to accompany the peace officer for that purpose.
(Once again I added the bold)
This section is in relation to a testing for the presence of alcohol in a person, more commonly known as taking a suspect in so they can blow into the breathalyzer.
Now the article does not say much about the length of time between Mr. Chen’s arrest of Bennett and his contact of the police and their arrival, i.e. his “forthwith-ness”. The only thing it mentions is that Bennett was bound and placed in the back of a truck. One could only assume that Chen did this to ensure his detention while ensuring his own physical safety, since Bennett had escaped before and is known locally as a thief. Bennett has been known to be violent in the past.
The actions of Chen and his employees immediately after the arrest will undoubtedly be the crux on which this case falls. Should it be argued that “forthwith” has a broad scope and that Chen was justified in his detention of Bennett, he will in all likelihood be found not guilty. However, if the court finds that a more narrow definition of “forthwith” is required, he may be found guilty.
Stay tuned, I know I’ll be following this one as it plays out. Either way, this case has the potential to break some new legal ground here in Canada.
