An Open Letter to Mike DeJong, Solicitor General, Premier Gordon Campbell, and Colin Hansen

Well, the Olympics are almost over, so that means it's BUDGET TIME. Legal aid funding is on the chopping block - again! If it is cut, this will be the ninth successive time that it has been cut since 2000. It's a travesty.

If, like me, you believe that Legal aid funding is crucial to an operating democracy, there is still time to let your voice be heard. Email GORDON CAMPBELL: Premier@gov.bc.ca; MIKE DEJONG: 'mike.dejong.mla@leg.bc.ca'; or COLIN HANSEN: 'colin.hansen.mla@leg.bc.ca'.

Here is what I wrote:

Dear Sirs,

I write to request that funding for the Legal Services Society AT LEAST remain at current levels for the 2010-2011 budget year. Legal aid services in this province are at crisis levels and Legal Services Society staff are overworked, underpaid and often doing three or four job descriptions. The tariff has been cut multiple times since the first cuts in 2000; my count is at least five times, including internal policy shifts. Legal aid is an ESSENTIAL service to a working, corruption-free democracy and the tariff cannot be cut any further.

The flood of unrepresented people in our courts have shown that your short-term thinking in cutting the tariff the first time is actually costing the province MORE money – more court time means more judges’ salaries, more sheriffs on shift, more clerks and administration and more courtrooms have to be open to expedite the amount of people in the system. LSS recently cut coverage for all category 1 offences (breaches) including for those where the Crown was asking for jail time. This has resulted in more people going into custody when they have a viable defence in law. This should horrify any right-thinking, reasonable person. It should also point out the futility of short term solutions, as it results in the state having to house and control an ever-expanding inmate population - costing the state more and more every year as the cost of food and essentials continues to climb.

I understand your government would like to be perceived as “tough on crime”. I understand the majority of British Columbia’s population believes in funding the police and Attorney General services and doesn’t believe in funding “freeloaders” on the criminal justice system. I can also say that my job is perceived as being just a barrier to jailing criminals. However, I implore you to look south of the border to the United States and their Innocence Project – how many of those people might have been saved decades of their lives by being properly represented in court? We are facing the same situation here as on major case files LSS has refused funding for private investigators, transcripts, junior counsel, and all manner of disbursements, citing lack of funding. Of course, Crown has all these resources available to them. The meager resources of an unrepresented (or underrepresented) accused are no match for a well-funded state.

I am not unrealistic; I understand that the economic downturn and poor attendance at the Olympics have resulted in a terrible climate for the province as a whole. I ask that you keep LSS funding at the same level as last year, with an inflationary adjustment. Should you choose to cut LSS funding, I project the legal aid boycott currently going on in Kamloops will expand to the rest of the province. I will be a proud supporter of that boycott.

I am a criminal defence lawyer here in Vancouver, called since 2004. I worked at the Legal Services Society through UBC Law in 2000-2003. I am a proud member of a profession that works quietly and selflessly in probono services across the province. I have had to minimize the amount of legal aid files I take. It is not financially feasible to take legal aid files. Lawyers all over the province are turning away from legal aid files because they cannot pay their taxes and their staff with what we are being paid.

The legal aid situation in this province is a travesty. Keeping the funding at its’ current levels is, in my opinion, the least you can do.

Regards,
Lisa Jean Helps

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.

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!