Innocent Until Proven Guilty: Why It's Important

In 1999, Sherry Sherret-Robinson faced the worst thing a mother can face: her son, Joshua, was found dead in his crib. The pathologist, Dr. Charles Smith, testified that, due to hemorrages in Joshua's neck, and a fractured skull, that he was murdered. Sherry Sherret-Robinson was convicted of killing Joshua by smothering him. She has served 10 years in jail for doing so.

Today, after the joint submissions of Crown and Defence, based on new expert evidence, the Ontario Court of Appeal ruled that Ms. Sherret-Robinson should be acquitted. The new reports suggest there was no skull fracture and the neck hemorrhages were in fact caused by Smith during the autopsy.The experts concluded there was no basis in the pathology to support Smith's inference the baby was deliberately smothered or suffocated, but that it can't be ruled out.

Instead, the autopsy findings and the fact that Joshua had numerous layers of blankets under, around and on top of him, "reasonably support the conclusion that death occurred by an accidental asphyxial means in an unsafe sleeping environment."

How sad. That's why, whenever people ask how I can defend someone I "know" is guilty, I always respond that because I'm not God, I never "know". Not being a pathologist, Dr. Smith's evidence might have seemed very persuasive to me and to Ms. Sherret-Robinson's lawyer.

In Memoriam - 4 Police Officers Shot Dead in Washington State.

Our hearts here at Helps Law Offices go out to all the officers in the Pierce County, Washington, today, especially the Pierce County Sheriffs and the Lakewood Police Department.

The officers — three men and a woman from the Lakewood Police Department — were attacked at 8:15 a.m. local time yesterday. Two of the officers were shot and killed as they sat at a table. Another one was shot standing up. The fourth officer fought with the gunman and made it outside and was able to get off some shots. They were about to go on shift. All of them were doing paperwork and enjoying each other's company.

Working in the justice system is hard, no matter who you are. As an advocate, my job is to ensure my client is treated fairly and is given the best possible defence, because the Crown has the burden of proving the case. I have met police officers that I thought were sleazy jerks; police have often come across counsel that are sleazy jerks. By and large, however, most police officers are trying to do their jobs competently. I've met some real heroes, too.

No one should be in jeopardy of death for their jobs. To be put in a situation where you are in the line of fire is one thing and I know plenty of wives and husbands of police officers who accept that their spouse is in mortal danger on a regular basis. That's different than this. These officers weren't on an active investigation; they weren't chasing a suspect in hot pursuit; they didn't enter a situation to help someone only to find it was more dangerous than they anticipated - they were having coffee. They were catching up on the administrative part of their job. They were alive - and then they died. It's sickening.

May they rest in peace.

Legal System in Crisis - Mr. Justice Rosenberg's Thoughts.

A big Helps Law Offices kudos goes out today to the great Mr. Justice Rosenberg for pointing out the flaws in our bail system and how innocent until proven guilty has fallen by the wayside. The Globe and Mail carried their article about it today. In addressing the Criminal Lawyer's Association luncheon Friday, this judge (who has, in my opinion, consistently kept out of the spotlight but who is one of the great legal minds of our time) became the conscience of the Canadian legal system.

Mr. Justice Rosenberg should be commended for taking the contrary view in a public debate that has increasingly favoured mandatory minimum jail sentences, withholding of bail on grounds where the public might be offended if the accused is released and a hysteria over "rampant crime" - when the crime rate has actually fallen.

It's true that marginalized populations are far more represented in the prison system than anywhere else. It's a crime. Aboriginal offenders, in spite of R v. Gladue just don't get a fair shake. We need to stop ignoring that Canada, for all our first world values and peacekeeping leadership on a world stage, has two worlds: a first world realm and a third world, quietly concealed on reserves and reservations.

He also commented on Legal Aid as being "a cornerstone of the system". If only Legal Services in British Columbia were properly funded. Any legal aid funding for serious matters is done at a rate of $83.90 an hour and all funding is capped - so often when a lawyer does an application properly on legal aid they're losing money. The system as it stands rewards the lawyers that do a poor job. It's why most lawyers I know who do legal aid are picky - because, in essence, it doesn't pay the overhead. It's a way of doing probono - an honour to the profession. 83.90 an hour?? You can't get this guy:



in to fix ANYTHING for 83.90 an hour!! More than that, the services offered do NOT assist those - like first offenders - who really need it. The tariff is so underfunded that there are unrepresented litigants facing significant lifetime consequences who are not receiving the help they need. It's a crisis.

Mr. Justice Rosenberg should be commended on his moral and ethical stance on these issues. It is imperative that we stop hiding behind Conservative governments to shirk our responsibilities. Legal Aid should be a priority in government funding; bail should not be denied for a fear of an uninformed public and mandatory minimums tie up trial time that would not otherwise be spent because discretion has been removed from judges.

Congratulations, Mr. Justice Rosenberg. Thank you for a reasoned entry into a debate that should be informed and passionate.

Vaguely Misquoted, but still: point made!

The Province printed what I wrote yesterday - albeit misquotedly. The writer, Mr. Bopp, was completely sarcastic when he said "what's next?"

Oh, well. Misquotes are always happening. I'm always surprised when I'm in a courtroom and what's printed matches what happened.

The only person I've never been misquoted by is Susan Lazaruk of the Province. She wrote about me the day that Mr. Mercer was acquitted of first degree murder after spending five years in jail. I was justifiably proud that day.

Amnesty Calls for Inquiry into Canada's Policies on Afghan Detainees

Fascinating news on the human rights front: Amnesty International is claiming that Canada has been, as far back as 2002, transferring detainees over to Afghan authorities, a situation that critics say puts prisoners at risk of being tortured.


Public opinion seems to be summed up by E. Bopp in his letter to the Vancouver Province today.

Mr. Bopp in yesterday’s Province writes in regard to the “alleged cruel and inhuman treatment” of captured Taliban fighters when turned over to Afghan authorities in Kandahar: “Can extending the reach of Canada's all-purpose Charter of Rights and Freedoms to Taliban detainees be far behind?” To this, I can only answer with great fervor and conviction: “I hope not”.

The Canadian Charter of Rights and Freedoms is the greatest piece of legislation in Canadian history. It is a shield that protects the least of us from the weight of the state being brought to bear against us – keeps our homes, our conversations and our person safe from random intrusion from the government. It gives Canada, as an operating democracy, the moral weight to stand up on the world stage against tyranny, fear and fascism. Handing over detained prisoners to a government where there is no assurance that they will be treated with humanity so that we don’t have to deal with them in a just and fair manner is just wrong.

Mr. Bopp puts the words “cruel and inhuman” in quotation marks, and uses the word allegedly perhaps because he does not believe that Afghanistan’s government is torturing detainees. Amnesty International says they are. That’s good enough for me. Canada should be the first nation to step forward and say that it’s wrong – not a nation facilitating these abuses.

For the record, I am a (metaphorically) card-carrying member of the BC Civil Liberties Association and of Amnesty (oh, and of Lawyer's Rights Watch Canada, and of all sorts of other "lefty-liberal" organizations). They perform an essential function in our society - to stand up for those that society generally feels are the least of us. Without this, rights could be eroded to the point that the state becomes more powerful than the individuals or voices of opposition can be.

How Time Passes!

So much has happened since May, I can hardly explain it all.

I had my first vacation in years, heading to Portugal, Greece and London. Friends had babies, my brother got engaged, and my fabulous assistant Melina became permanent and full time. I lost my beloved granddad but when I look out the window to Woodward's, I see, rising from the ashes, the place that my grandparents worked for 50+ years. Bittersweet, how this city is changing!

Lots of changes around the office have resulted in a lot of time out of the office and in court. We've won a ton of cases! If you've seen me in the news, you'll know that we've had a lot of success with murder, fraud, and sexual assault cases, and we won a landmark case on prisoner's rights in custody at the BC Court of Appeal. As always, our success rate in Impaired Driving and Driving Prohibitions remains very high.

As time marches on, I learn a lot every day. I'm lucky for the friends and colleagues (and friend-collegues!) who keep me going.

Posts will be more frequent, I promise!

The Greatest of Us to the Least of Us: Judge Stansfield dies, age 57

It is with sadness that I write about the passing of the Honourable Judge Hugh Stansfield, Chief Justice of the Provincial Court of British Columbia. He passed away yesterday at 57 years old and leaves behind a wife and four sons, men who I hope are like their father.

Many professional colleagues will write of his fairness, his devotion to his ideals and his sense of fair play, good nature and quest to make the courts more accessible and understandable for the public. They will write about his quest to implement a downtown community court to deal with habitual offenders, a project that came to fruition this year. Many of them will write about his defence of judges and their discrection in sentencing. There is not much I can add to that, other echoing those comments.

I articled in the Kelowna area in 2003. As one of only two articling students in the region, I was often surrounded by counsel who were not interested in assisting young counsel (the converse of that, of couse, are the now-lifelong friends who did assist and guide, all of whom I'm grateful for) but the Honourable Judge Stansfield never failed to stop and talk to me. When on the bench, he was unfailingly patient and polite. Three days after my call to the bar, I was in Kelowna and he asked to speak to me in Chambers. When I arrived in Chambers, he congratulated me on my call and asked me what I planned to do. I discussed my future plans and what I was looking forward to. He listened to me.

The greatest gift that someone in a position of power or authority can bestow is respect and kindness. I hope the Honourable Judge Stansfield knew that I appreciated every minute he ever gave to me. I hope that I can always carry that standard forward to students, articling students and junior counsel.

I also hope he secretly knew that a lot of the Kelowna Registry staff called him "Judge Clooney" for his good looks, smile and affable nature. I hope it pleased him.

My thoughts and sympathies are with his family.

The Coming Aporkalypse and Second Coming of the Carbolic Smoke Ball!

All this crazy talk about the Virulent Swine Flu - the coming Aporkalypse! - has put me in mind of one of the great cases in legal history and shows us that the more things change, the more they stay the same.

Walk into any Shoppers Drug Mart or London Drugs and there are signs everywhere - a Vitamin C product has a printed poster above it - "Perfect for Fighting Off the Flu!" - a hand sanitizer - "Frequent Use reduces Chances of Getting Swine Flu!". Sure, we may know more than we did in 1891 about preventing the flu, but really, when you get down to it, the fear of disease has always been used to promote the consuming of products.

In 1891, the Carbolic Smoke Ball Company made a product called the "smoke ball". It claimed to be a cure for the flu. The smoke ball was a rubber ball with a tube attached. It was filled with carbolic acid. The tube was then inserted into the user's nose. It was squeezed at the bottom to release the gases into the nose of the user. This would cause the nose to run, and hopefully flush out the cold. (In fact, we now know that the inflammation to the nasal passages caused by the device would have probably increased susceptibility to catching influenza - but they didn't know that in 1891!).

The Company published advertisements in theLondon newspapers on November 13, 1891, claiming that it would pay £100 to anyone who got sick with influenza after using its product according to the instructions set out in the advertisement.

“£100 (about $15, 000 today!!) reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks, according to the printed directions supplied with each ball.

£1000 is deposited with the Alliance Bank shewing our sincerity in the matter.

During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball.

One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10s. post free. The ball can be refilled at a cost of 5s. Address: “Carbolic Smoke Ball Company, “27, Princes Street, Hanover Square, London.”

Mrs Louisa Elizabeth Carlill saw the advertisement, bought one of the balls and used three times daily for nearly two months until she contracted the flu on January 17, 1892. She claimed £100 from the Carbolic Smoke Ball Company. They ignored two letters from her husband, a lawyer.

On a third request for her reward, they replied with an anonymous letter that if it is used properly the company had complete confidence in the smoke ball's efficacy, but "to protect themselves against all fraudulent claims" they would need her to come to their office to use the ball each day and checked by the secretary. Mrs Carlill brought a claim to court. The barristers representing her argued that the advertisement and her reliance on it was a contract between her and the company, and so they ought to pay. The company argued it was not a serious

The U.K. Court of Appeal unanimously rejected the company's arguments and held that there was a fully binding contract for £100 with Mrs Carlill. Among the reasons given by the three judges were (1) that the advert was a unilateral offer to all the world (2) that satisfying conditions for using the smokeball constituted acceptance of the offer (3) that purchasing or merely using the smokeball constituted good consideration, because it was a distinct detriment incurred at the behest of the company and, furthermore, more people buying smokeballs by relying on the advert was a clear benefit to Carbolic (4) that the company's claim that £1000 was deposited at the Alliance Bank showed the serious intention to be legally bound.

If only someone would advertise a miracle product in this way today!

Credit Where Credit Is Due

One of the first things I meant to mention on the blog is that the photograph of me taken above is by Paul Couvrette, an amazing Ottawa-based photographer who has been shooting portraits of dignitaries and celebrities in Ottawa (including the Time Magazine cover of Belinda Stronach and all the Justices of the Supreme Court of Canada) for more than 20 years. I love it. Copyright stays with him, of course. I can't recommend his work highly enough. It was taken last year when I was arguing R v. R.E.M at the Supreme Court of Canada.

And a link to Paul.

He made me feel gorgeous. Thanks again, Paul and everyone at Couvrette Photography!

Talking in Live Theatre Performances is a Crime... or is it?

Hey, y'all.

I don't have a lot of pet peeves (okay, I do, but I'm not going to share most of them on this blog) but the one major one I can't stand is people who talk/Blackberry/text during a movie or play. What is wrong with you?? Are you that narcissistic that you have to talk all the time? Don't you know that if you're in a live theatre performance that the actors on stage - no matter how far away your crummy seats are - can hear you??

I know we can hear you, because every year I'm a part of the Lawyer Show, a charity fundraiser that benefits the performing arts in Vancouver. This year, I was the fairy 'Dandylion" in Shakespeare's Midsummer Nights' Dream as performed at the Waterfront Theatre. In 2008, I was a cigarette girl in the classic comedy "Once In a Lifetime". So yeah, I'm a pro. And you should shut up.

I was at a wonderful performance of the Royal City Musical Theatre's "A Chorus Line" - a musical I very much enjoy and a great performance of it - when the couple behind me began to talk. Loudly. They weren't older, nor did they misunderstand something. At one point, the woman said that she didn't think the "fat one" was right for the part of Maggie. Charming. The usher came over and shushed them but they continued to talk.

I started contemplating what I could ask the police to charge them with and considered these options:


1. Indecent Acts, s. 173: Nope. You have to expose your genitals, not your appalling lack of manners.

2. Disturbance, s. 175: Maybe. I was disturbed, all right. The section provides that "everyone who, not being in a dwelling house, causes a disturbance in or near a public place ... by fighting, shouting, screaming, swearing, singing or using insulting or obscene language ... is guilty of an offence punishable on summary conviction". The standard for Crown charge approval is a reasonable likelihood of conviction - I'm not sure this would meet that standard for charge approval - but it might be worth getting them hauled out of the theatre in handcuffs to teach them some manners!

3.Disturbing religious worship, s. 176(2): Damn. Even I can't argue for this section, even though I know all the words to "Wicked", "The Last Five Years", "In the Heights", "A Chorus Line", and every Rogers and Hammerstein musical.

4. Criminal Harrassment, s. 264: The section provides that "no person shall ... engage in conduct that causes another to fear for the safety or the safety of anyone known to them" - okay, so that's out, too. Although I did fear for the safety of the couple behind me.

I probably could have asked the ushers to kick them out. When you get right down to it, I was singing so loud along with the cast that I didn't even notice.

No, I didn't. I knew all the words, but that's not cool. I wouldn't do that, it's not mannerly. And besiders, it appears that I could be charged with causing a disturbance!

The Lawyer, away from Law

Sometimes, the day is entirely about the law.
Sometimes, life (happily!) intercedes.

Two events: first, the author was invited to participate in a studio visit this evening with local artist Evan Lee. Evan is well known to contemporary art circles in Vancouver, but this was my first brush with his work. His new project, soon to be seen at Monte Clark in Toronto, is an amazing collection of photographs which are homages to digital photos posted on flickr or other image sites. The work fits in with his general scope, it appears, in terms of experimenting with ways that images convey a time and place that are significant in the moment and what that moment looks like when recreated at a different time. The inadvertent flash not accounted for by the original snapshot photographer becomes a centrepiece around which the artist explores the idea of the specific to the general, that which is private being put on show, but in a way that takes the personal out of the photograph and places it firmly in public domain.

I loved them.

The centrepiece of the work - a large combining of each separate images that, as a whole, make up the refracted individual pieces - illustrates the piece as whole and parts. Exceptional! I am also a huge fan of his "40 Armoured Cars" and the illustration at the top of this piece, "Every Part From a Contaflex Camera, disassembled by the artist during winter, 1998".


The second event: my favorite Vancouver bookstore was in the National Post today at "Ask a Bookseller: Pulpfiction Books" link here:

I love their blog, and I think that if you're a reader at all, you should have some familiarity with their shop. I can't say enough good things.

Hey, it can't all be murder and mayhem. You have to sometimes take a break and see things that take your breath away. Oh, and have a really good cup of tea. I recommend the London Fog at JJ Bean, and one of their Chocolate Chip Zucchini Muffins to go with it.

I'm out for the rest of the week, working on exciting facta and generally doing appellate (appeals) odds and ends. Reach me through the office if needed!

Right to Silence - an update!

As an aside, I am very excited to be pursuing this issue at the Supreme Court of Canada on May 12, 2009 in a case called R v. Sinclair. In Sinclair, the issue will be whether an accused should have the right to a second access to counsel if they request it or whether they can have a lawyer present with them at the time of an interrogation. The law in Canada, unlike in the United States, is that an accused is permitted one access to counsel and counsel are not permitted in the interrogation room with an accused.

We want to be more like the United States in the ability to protect a client's rights and their access to counsel.

How crazy is that?? :-)

I'll keep you... posted!

You have the right to remain silent - use it!

Now that that's out of the way, constant reader (well, okay, since yesterday reader) and one of my fave family members Rob C. writes to ask:

Hey Cuz,

How about this for a blog question...

Do the police in Canada have to read me my rights like they do on the American cop shows?

R

ANSWER: Well, Rob, the short answer is yes, they do. But they won't be doing it with pithy one-liners and taking their sunglasses on and off (remember, it's still Vancouver or Toronto or Montreal or Halifax or Canada - are there really enough days to take sunglasses on and off?).

In both Canada and America, the proscribed process for an arrest is very similar. In Canada, criminal law is federal; in the United States, the criminal law is state by state but in both countries, the recommended process is the same country-wide. Both countries have a Supreme Court that makes law for the entire country.

The States has adopted a process outlined in what is now considered the landmark case of Arizona v. Miranda (hence "Miranda rights"). In that case, an immigrant named Ernesto Miranda was accused of rape and was held without his fifth and sixth amendment rights (the right to remain silent and the right to have an attorney present) being explained to him. He gave a confession after two hours of interrogation. At trial, he was convicted and appealed to the Arizona Supreme Court. The Arizona Supreme Court ruled that the confession was admissible. The U.S. Supreme Court reversed the Arizona Supreme Court and held that statements obtained from defendants during interrogations in police-dominated atmosphere without full warning of right to remain silent and right to counsel violated the Fifth and Sixth Amendments and were inadmissible. Generally, the police read or recite a standard warning to an accused that is based on the guidelines in Miranda, and is recited to every accused at the time of arrest.

In Canada, a number of pieces of jurisprudence have developed the law in this regard. The right to silence is protected under section 7 of the Canadian Charter of Rights and Freedoms. The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence. Prior to an accused being informed of their right to legal counsel, any statements they make to police are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible.

Although an accused has the right to remain silent and may not be compelled to testify against himself, where an accused freely chooses to take the witness stand and testify, there is no further right to silence and no general restriction on what kinds of questions they may be required to answer. This may be contrasted with the US right to refuse to answer incriminating questions under the 5th Amendment even while on the witness stand. However section 13 of the Canadian Charter of Rights and Freedoms guarantees that a witness may not have any incriminating evidence they gave as testimony used against them in separate proceedings. In effect, a person can be compelled to give involuntary self-incriminating evidence but only where that evidence is to be used against a third party.

A leading case on the right to silence was R. v. Hebert, which held that the accused cannot be tricked into divulging any information until they consult with a lawyer.

The police in Canada actually have a card that they carry, where they give the following information to an accused at the time of arrest:

1. Why the accused is being arrested;
2. Whether the accused wants to talk to a lawyer;
3. That free legal aid is available; and
4. A "secondary warning" which details that the accused is under no obligation to speak to the police.

Hope that answers your question in a lot of detail, Rob!

420 in Vancouver

It is indeed April 20, 2009 today; 420 is a universal in joke for all you blunt smokers out there. I saw about 20 people lined up waiting for the HQ of the BC Marijuana Party to open this morning. Usually, the store isn't so crowded so early!

Some myths about the origin of "420" are totally busted:

Police dispatch code for smoking pot is 420. The number 420 is not police radio code for anything, anywhere. Checks of criminal codes suggest that the origin is neither Californian nor federal. The Canadian Criminal Code s. 420 is about illegally or fraudulently buying military supplies from a member of the Canadian Armed Forces.

There are approximately 420 active chemicals in marijuana. Actually, there are approximately 315 active chemicals in marijuana. This number goes up and down depending on which plant is used. (Thank you "about.com" for this statistic!)

April 20th is National Pot Smokers Day. Well, it is now; but that wasn't the origin.

April 20th is Hitler's birthday. Yes, it is his birthday. This is a great example of a cause and effect being muddled together. The two have NOTHING to do with one another, as the term didn't come into use until the 70's.

April 20th is the date of the Columbine school shootings. This happened after the term was already in use.

4:20 is tea time for pot-smokers in Holland. FAIL! Not true. Hollandaises (or, as they're more commonly known, "the Dutch") have their tea with the rest of Europe - whenever they damn well please.

According to the editor of High Times, Steven Hager, 420 originated in 1971 with a group of a dozen students, who wanted to pass the word when they would meet to smoke without parents and teachers realizing what they were talking about. They would meet at the school's statue of Louis Pasteur at 4:20 p.m.

Who is Louis Pasteur? from wikipedia: Louis Pasteur (December 27, 1822 – September 28, 1895) was a French chemist and microbiologist born in Dole. He is best known for his remarkable breakthroughs in the causes and prevention of disease. His experiments supported the germ theory of disease, also reducing mortality from puerperal fever (childbed), and he created the first vaccine for rabies. He was best known to the general public for inventing a method to stop milk and wine from causing sickness - this process came to be called Pasteurization. He is regarded as one of the three main founders of microbiology, together with Ferdinand Cohn and Robert Koch. Pasteur also made many discoveries in the field of chemistry, most notably the molecular basis for the asymmetry of certain crystals.^[1] He is buried beneath the Institute Pasteur, a rare honor in France, where being buried in a cemetery is mandatory save for the fewer than 300 "Great Men" who are entombed in the Panthéon.

I don't think Louis Pasteur smoked marijuana, but I could be wrong.

So remember, kids: In Canada, possession of marijuana is illegal. So is dealing, and yes, technically, you can be busted for Possession for the purposes of trafficking for sharing a joint. The possibility of this happening is low; but it's still possible thast you can be charged.

If you're arrested, know your rights:

1. The police will try to ask you who owns the drugs and try to talk to you. You do not have to tell them anything! Under s. 7 of the Charter, you have the right to remain silent. If they're trying to talk to you, you probably can't make things better by talking to them. Exercise your right to silence!

2. You have the right to talk to a lawyer of your choice! If you already have a lawyer, insist that you want to speak to that lawyer, or if you've heard of a good lawyer, that you want to talk to them. Legal aid is great if you need general advice - but it's harder for the police to prove that you got all your rights if you didn't speak to your lawyer.

3. The police can't search you unless they have reasonable and probable grounds for an arrest. They can detain you for investigative reasons, but that does not mean they can do more than pat you down. Any police officer who asks to look in your car or in your backpack cannot do it unless you say it's okay - and saying no does not give them the right to arrest you! Do not let them look in your personal possessions.

I believe very strongly that each one of us has the right to be safe and free of police interference in our lives. Exercise your rights if you're stopped or arrested by the police.