On July 23, 2010, the Supreme Court of Canada ruled in City of Vancouver and the Province of British Columbia v. Ward, that monetary compensation is appropriate when an individual’s rights have been violated under the Canadian Charter of Rights and Freedoms.
It is the first time in history that Canada’s highest court has said that damages are an appropriate remedy in cases where an individual’s charter rights have been violated.
Ward involved a situation in which Ward was wrongfully arrested by Vancouver Police Department members who were acting on a tip that an unknown person had planned to throw a pie at then Prime Minister Jean Chretien at a public event in Vancouver. The VPD arrested Mr. Ward and strip searched him once he was in a prison cell. He was released several hours later when the police realized that they had caught the wrong person.
The Supreme Court of Canada, led by Chief Justice Beverly McLachlin ruled that Mr. Ward’s section 7, 8, and 9 rights under the Charter had been violated by the police. The fundamental question in this case was whether monetary damages for compensation should be awarded in cases of abusive and tortuous conduct by the police. Canada’s highest court ruled that damages can be an appropriate remedy for a violation of Charter Rights under s. 24 (1) of the Canadian Charter of Rights and Freedoms. Although Mr. Ward was only awarded a small amount of money, the principle that his case set was huge.
The Supreme Court of Canada is sending a clear message to authorities. The police must not abuse their powers and they must act in good faith when investigating crimes and seeking out possible suspects. They must remember that the Canadian Charter of Rights and Freedoms is absolute; it does not disappear or not apply to people in Canada when the police are investigating a crime. The Charter applies at all times, whether the police are investigating a murder or a mischief call.
The Court has sent a clear message to Canadians, stating that your rights mean something in this country. Your rights are not arbitrary; they are not contingent on circumstances or situations but they are absolute. Authorities across the nation will have to realize that the Charter stands for the rights of citizens and if they fail to respect those rights, they will be issuing a lot more than apologies.
Wednesday, July 28, 2010
Wednesday, July 21, 2010
BC Government Appeals BC Supreme Court Decision on Jamie Bacon
Attorney General and Solicitor General, Mike de Jong, announced yesterday that the B.C. government will be appealing the decision of B.C. Supreme Court Justice Mark McEwan.
On June 9, 2010, Mr. Justice McEwan criticized the prison warden at the Surrey Pre-Trial Centre for violating Mr. Bacon’s section 7 right under the Canadian Charter of Rights and Freedoms. Justice McEwan went as far as saying that prison warden Debbie Hawboldt aided the police in keeping Bacon in isolation and restricting his phone calls. Mr. Justice McEwan concluded that Bacon was subjected to inhumane conditions while he was held at the Surrey Pre-Trial Centre.
Even while Mike de Jong announced that the B.C. government will be appealing the decision of Justice McEwan, the lawyer for Jamie Bacon contends that Bacon is still subjected to inhumane treatment while locked behind bars.
Jamie Bacon is accused of murder in one of the biggest serial murder cases in B.C. history. That said, significant questions remain as to the repeated attack of the government and the police on Mr. Bacon: Is this a classic case of pressing hard on the accused to make him break? Are the police trying to send a message to gangsters in the lower mainland?
While I do not condone any violence, including gang violence, I believe that everyone should be treated fairly by the criminal justice system.
Mr. Bacon is only accused of murder in the ‘Surrey Six’ murders. He has not been found guilty; the presumption of innocence remains. We must follow the proper process to determine innocence or guilt, not simply start labeling people as criminals once they have been arrested.
The fact that the police would take an unfair advantage over an accused when all the resources of the state are arrayed against him is the first step towards a totalitarian state. We must not subject people to inhumane treatment while in custody. This goes against everything Canada stands for.
Only time will tell the outcome of this case. A fundamental question in this case: will the criminal justice system succumb to the will of the government and the police or will the courts tell the police and the government to stay within their boundaries? All criminal cases are, to some extent, about this question. I trust and rely on our judges to check the power of the state; otherwise, every citizen’s rights are on the line.
On June 9, 2010, Mr. Justice McEwan criticized the prison warden at the Surrey Pre-Trial Centre for violating Mr. Bacon’s section 7 right under the Canadian Charter of Rights and Freedoms. Justice McEwan went as far as saying that prison warden Debbie Hawboldt aided the police in keeping Bacon in isolation and restricting his phone calls. Mr. Justice McEwan concluded that Bacon was subjected to inhumane conditions while he was held at the Surrey Pre-Trial Centre.
Even while Mike de Jong announced that the B.C. government will be appealing the decision of Justice McEwan, the lawyer for Jamie Bacon contends that Bacon is still subjected to inhumane treatment while locked behind bars.
Jamie Bacon is accused of murder in one of the biggest serial murder cases in B.C. history. That said, significant questions remain as to the repeated attack of the government and the police on Mr. Bacon: Is this a classic case of pressing hard on the accused to make him break? Are the police trying to send a message to gangsters in the lower mainland?
While I do not condone any violence, including gang violence, I believe that everyone should be treated fairly by the criminal justice system.
Mr. Bacon is only accused of murder in the ‘Surrey Six’ murders. He has not been found guilty; the presumption of innocence remains. We must follow the proper process to determine innocence or guilt, not simply start labeling people as criminals once they have been arrested.
The fact that the police would take an unfair advantage over an accused when all the resources of the state are arrayed against him is the first step towards a totalitarian state. We must not subject people to inhumane treatment while in custody. This goes against everything Canada stands for.
Only time will tell the outcome of this case. A fundamental question in this case: will the criminal justice system succumb to the will of the government and the police or will the courts tell the police and the government to stay within their boundaries? All criminal cases are, to some extent, about this question. I trust and rely on our judges to check the power of the state; otherwise, every citizen’s rights are on the line.
Wednesday, June 23, 2010
“Truth in Sentencing” Act Will Cost More than Original Estimate
According to the CBC, a report from the parliamentary budget officer contends that the new legislation, The Truth In Sentencing Act, will cost more than the original estimate of $2 billion: $1 billion just to implement the program; and, billions of dollars more to maintain the program.
Parliamentary budget officer Kevin Page said on Tuesday June 22, 2010 that the construction of new correctional facilities will cost $1.8 billion and a further $618 million is needed to annually to operate such correctional facilities.
Public Safety Minister Vic Toews disagrees with the findings of the parliamentary budget officer. Towes believes that while it is true that more individuals will spend time in prison, however new prisons will not be needed because provincial prisoners will be moved to federal prisoners and individuals with lighter sentences will be released into the community. Conversely Page states that Canada lacks the space necessary to keep such a high volume of prisoners, and that 13 new prisons will have to be constructed in order to allow such legislation to be implemented effectively.
The estimated cost of running prisons in Canada will be likely in the range of $2.8 billion a year, which is a substantial jump from the $2.2 billion we are currently paying. This does not include the cost of building new prisons – an estimated $1.8 billion?
Furthermore, it is believed that the cost of correctional services will double by the year 2015-2016 as the cost will jump from $4.4 billion a year to $9.5 billion a year.
While the government can’t agree on the exact cost of this legislation, one thing is certain: it will cost us taxpayers a significant amount of money.
Where the feds generate funding for such a plan? A tax increase? By shorting transfer payments to provinces, which could result in lower budgets for health and education? That’s ridiculous. Putting someone who is no danger to the community in custody BEFORE they’ve been found guilty is bad enough; making us pay for it is a travesty.
Accused individuals have a right to a speedy trial, and if they are not provided with such a right there should be some sort of compensation in the form of two for one credit. Either way you look at this legislation, it does more harm than it does good for the public or the accused.
Parliamentary budget officer Kevin Page said on Tuesday June 22, 2010 that the construction of new correctional facilities will cost $1.8 billion and a further $618 million is needed to annually to operate such correctional facilities.
Public Safety Minister Vic Toews disagrees with the findings of the parliamentary budget officer. Towes believes that while it is true that more individuals will spend time in prison, however new prisons will not be needed because provincial prisoners will be moved to federal prisoners and individuals with lighter sentences will be released into the community. Conversely Page states that Canada lacks the space necessary to keep such a high volume of prisoners, and that 13 new prisons will have to be constructed in order to allow such legislation to be implemented effectively.
The estimated cost of running prisons in Canada will be likely in the range of $2.8 billion a year, which is a substantial jump from the $2.2 billion we are currently paying. This does not include the cost of building new prisons – an estimated $1.8 billion?
Furthermore, it is believed that the cost of correctional services will double by the year 2015-2016 as the cost will jump from $4.4 billion a year to $9.5 billion a year.
While the government can’t agree on the exact cost of this legislation, one thing is certain: it will cost us taxpayers a significant amount of money.
Where the feds generate funding for such a plan? A tax increase? By shorting transfer payments to provinces, which could result in lower budgets for health and education? That’s ridiculous. Putting someone who is no danger to the community in custody BEFORE they’ve been found guilty is bad enough; making us pay for it is a travesty.
Accused individuals have a right to a speedy trial, and if they are not provided with such a right there should be some sort of compensation in the form of two for one credit. Either way you look at this legislation, it does more harm than it does good for the public or the accused.
Wednesday, June 9, 2010
Alleged Gangster’s Rights Violated in Prison
Justice Mark McEwan said in a lengthy ruling released on June 9, 2010 that alleged gangster Jamie Bacon’s constitutional rights were violated when he was subjected to inhumane conditions when he was held at the Surrey Pre-trial Centre. The prison warden directly violated Jamie Bacon’s section 7 right under the Canadian Charter of Rights and Freedoms. Section 7 of the Charter of Rights and Freedoms states that “everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
According to the Vancouver Sun, Jamie Bacon was kept in inhumane conditions which included being kept in isolation for 23 hours a day, having his phone rights taken away and having his visits curtailed without any reason. Justice McEwan stated that the condition in which Jamie Bacon was kept in clearly “threatened the security of his person (which includes both a physical and psychological dimension) by the unlawful deprivation of his rights for a unlawful purpose.” He further noted that the corrections guards acted for the police in keeping Jamie Bacon in such horrendous conditions – this appears to indicate some sort of collaboration between the two agencies.
It is important to keep in mind that while Jamie Bacon has been charged and arrested for his role in the infamous “Surrey Six” murders, he has not been proven guilty in the court of law. No human being should have their rights violated. These rights are absolute; they are not contingent upon a set of criteria or circumstances. These rights are the cornerstone of democracy. I also believe that this ruling sets limits on what government agencies such as the police can do. I think the majority of the people will agree with me when I say that we should not live in a society where the police can do whatever they like. There must be limits on police powers. This gross violation of human rights could have happened to anyone, and therefore it is important to remember that there must be a balance between the rights of the police to investigate – but that the rights of a citizen charged, but convicted of no crime, must be paramount.
According to the Vancouver Sun, Jamie Bacon was kept in inhumane conditions which included being kept in isolation for 23 hours a day, having his phone rights taken away and having his visits curtailed without any reason. Justice McEwan stated that the condition in which Jamie Bacon was kept in clearly “threatened the security of his person (which includes both a physical and psychological dimension) by the unlawful deprivation of his rights for a unlawful purpose.” He further noted that the corrections guards acted for the police in keeping Jamie Bacon in such horrendous conditions – this appears to indicate some sort of collaboration between the two agencies.
It is important to keep in mind that while Jamie Bacon has been charged and arrested for his role in the infamous “Surrey Six” murders, he has not been proven guilty in the court of law. No human being should have their rights violated. These rights are absolute; they are not contingent upon a set of criteria or circumstances. These rights are the cornerstone of democracy. I also believe that this ruling sets limits on what government agencies such as the police can do. I think the majority of the people will agree with me when I say that we should not live in a society where the police can do whatever they like. There must be limits on police powers. This gross violation of human rights could have happened to anyone, and therefore it is important to remember that there must be a balance between the rights of the police to investigate – but that the rights of a citizen charged, but convicted of no crime, must be paramount.
Wednesday, May 5, 2010
BC Gets Tough on Drinking and Driving
Solicitor General Mike de Jong introduced new legislation on drinking and driving that will make British Columbia the toughest in Canada on impaired drivers.With the new legislation any individual who fails a roadside screening with a blood alcohol level above 0.08 could be hit with a penalty $3,750* along with an automatic three month driving ban and a 30 day vehicle impoundment.
Costs for Having a Blood Alcohol Level Over 0.08 on a Roadside Screening Device
Administrative Penalty $500
License Reinstatement Fee $250
Towing & Impoundment Fee for 30 days $700
Responsible Driver’s Program Fee $880
Ignition Interlock Device Fee (1 Year) $1,420
Total $3,750
The new legislation also includes penalties for impaired drivers who blow in the warning range of 0.05-0.08:
1.a $200 fine and a three day driving ban for the first incident in five years;
2.a $300 fine and a seven day ban for the second incident in five years; and
3.a $400 fine and 30 day driving ban for the third incident in five years.
Individuals who blow in the warning range of 0.05 to 0.08 will also be hit with a $250 driver reinstatement fee and be charged a $150 for having their vehicle impounded for three days.
People who are caught three times in one year for blowing in the warning range or those individuals who blow over 0.08 will also be required to participate in the Responsible Driver Program and use an ignition interlock device, which measures a driver’s blood alcohol level every time they start their vehicle, for a period of one year. The new legislation also states that individuals who refuse to provide a breath sample will also face a 90 day driving prohibition and a $500 fine.
The new drinking and driving legislation is designed to not need the approval of Crown Counsel making it very likely that impaired drivers will be hit with the most severe penalties possible. What this actually means, however, is that first time impaired drivers will NOT be facing charges. That’s outrageous. It takes away the certainty that the Justice System is meant to instill: a democratic process which safeguards individuals from state intrusion. Instead, it trades the certainty of the justice system for an arbitrary process that will not be subject to the same safeguards and that’s just wrong.
Costs for Having a Blood Alcohol Level Over 0.08 on a Roadside Screening Device
Administrative Penalty $500
License Reinstatement Fee $250
Towing & Impoundment Fee for 30 days $700
Responsible Driver’s Program Fee $880
Ignition Interlock Device Fee (1 Year) $1,420
Total $3,750
The new legislation also includes penalties for impaired drivers who blow in the warning range of 0.05-0.08:
1.a $200 fine and a three day driving ban for the first incident in five years;
2.a $300 fine and a seven day ban for the second incident in five years; and
3.a $400 fine and 30 day driving ban for the third incident in five years.
Individuals who blow in the warning range of 0.05 to 0.08 will also be hit with a $250 driver reinstatement fee and be charged a $150 for having their vehicle impounded for three days.
People who are caught three times in one year for blowing in the warning range or those individuals who blow over 0.08 will also be required to participate in the Responsible Driver Program and use an ignition interlock device, which measures a driver’s blood alcohol level every time they start their vehicle, for a period of one year. The new legislation also states that individuals who refuse to provide a breath sample will also face a 90 day driving prohibition and a $500 fine.
The new drinking and driving legislation is designed to not need the approval of Crown Counsel making it very likely that impaired drivers will be hit with the most severe penalties possible. What this actually means, however, is that first time impaired drivers will NOT be facing charges. That’s outrageous. It takes away the certainty that the Justice System is meant to instill: a democratic process which safeguards individuals from state intrusion. Instead, it trades the certainty of the justice system for an arbitrary process that will not be subject to the same safeguards and that’s just wrong.
Conservative ‘Truth in Sentencing’ Act will cost Canadian Taxpayers Billions
On February 22, 2010, the Truth in Sentencing Act which eliminates two for one credit for time spent in custody before sentencing was passed into law. Two for one time – so called “dead time – was credited for two reasons: first, because there are no rehabilitative programs available for people on remand and second, because remission – time off for “good behaviour” that sees prisoners reintegrated into society by having control over them through supervision and halfway houses – is not available for time before sentencing.
This Act is a bad idea. It’s not “truth” in sentencing. It’s the Conservatives making themselves look better to a scared and sometimes uninformed public.The cases of R v. Mills, R v. Wust and R v. Rezaie are perfect examples of why two for one credit has been awarded and illustrate the principles that judges rely on. My case out of our Court of Appeal, R v. Calder Berg, awarded dead time to my client who had been denied dead time and it’s a great read.
We now find out that this “tough on crime” agenda will cost taxpayers billions of dollars. Several media sources – including the National Post and the Vancouver Sun- indicate that this will cost Canadians a total of $10 billion over the next five years. 10 Billion! What could we buy with 10 billion dollars? Especially when we could use the help in the form of transfer payments to assist with schools, social housing and to combat child poverty? We should all be outraged.
Future plans of the Conservative government include eliminating automatic statutory release after an individual has served two thirds of their sentence and imposing more mandatory minimum sentences for drug related offences.
Only time will tell how much this get tough on crime agenda will cost Canadians. In the United States, generally the largest lobbyists for the infamous “three strikes: you’re out” law was the CONSTRUCTION INDUSTRY. That should give anyone a reason to look at who is actually benefiting from these new laws.
This Act is a bad idea. It’s not “truth” in sentencing. It’s the Conservatives making themselves look better to a scared and sometimes uninformed public.The cases of R v. Mills, R v. Wust and R v. Rezaie are perfect examples of why two for one credit has been awarded and illustrate the principles that judges rely on. My case out of our Court of Appeal, R v. Calder Berg, awarded dead time to my client who had been denied dead time and it’s a great read.
We now find out that this “tough on crime” agenda will cost taxpayers billions of dollars. Several media sources – including the National Post and the Vancouver Sun- indicate that this will cost Canadians a total of $10 billion over the next five years. 10 Billion! What could we buy with 10 billion dollars? Especially when we could use the help in the form of transfer payments to assist with schools, social housing and to combat child poverty? We should all be outraged.
Future plans of the Conservative government include eliminating automatic statutory release after an individual has served two thirds of their sentence and imposing more mandatory minimum sentences for drug related offences.
Only time will tell how much this get tough on crime agenda will cost Canadians. In the United States, generally the largest lobbyists for the infamous “three strikes: you’re out” law was the CONSTRUCTION INDUSTRY. That should give anyone a reason to look at who is actually benefiting from these new laws.
Saturday, February 20, 2010
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:
Regards,
Lisa Jean Helps
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
Subscribe to:
Posts (Atom)