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.

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.

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.