Seventeen years ago, Sue Rodriguez began a debate on assisted suicide that is currently making waves in the province of British Columbia. Rodriguez who had amytrophic lateral sclerosis also known as Lou Gehrig’s disease took her challenge of legalizing assisted suicide all the way to the Supreme Court of Canada in 1993. Ms. Rodriguez believed that it was her right to have access to assisted suicide. The Supreme Court of Canada did not see it that way and upheld s.241 (b) of the Criminal Code- which provides a 14 year maximum penalty for assisted suicide as being constitutional. A 5-4 divided court was an indication of how divided not only the top court was but the country was as well. The issue has been constantly debated by lawyers and legal academic everywhere, yet there appears to be no consensus on what the actual right answer is to the question of whether assisted suicide should remain illegal or become legal.
Today, the Supreme Court of British Columbia provided an answer to the Farewell Foundation’s bid to challenge s. 241(b) of the Criminal Code as being unconstitutional. Madam Justice Lynn Scott shot down the request of the Farewell Foundation, who were hoping that assisted suicide would become illegal so the agency would be able to provide such services to individuals who wished to use them. The Farewell Foundation intended on using non-medical practitioners and counselors to provide such services. However, the Farewell Foundation was fighting for both medically assisted suicide and non-medically assisted suicide. Either way their challenge was halted in the Supreme Court of British Columbia. In rejecting the arguments of the Farewell Foundation, Justice Smith urged the Farewell Foundation to join the BC Civil Liberties Association’s (BCCLA) quest for legalizing assisted suicide. The BCCLA is currently fighting for Gloria Taylor, a Kelowna woman who is dying of Lou Gehrig’s disease. The Farewell Foundation has stated that they will seek “intervenor status” in the BCCLA matter as it will continue to allow them to take their cause up in the courts.
While the Farewell Foundation may not have got the result that they wanted, they have rekindled a debate that will undoubtedly be followed closely. Only time will tell whether the BCCLA can help Ms. Taylor take her cause all the way up to the Supreme Court of Canada and overturn a decision that has stood for 17 years. Who knew that Sue Rodriguez would trigger a debate in 1993 that is still being discussed and litigated to today. Who knows when this discussion will actually come to an end.
Wednesday, August 17, 2011
Friday, July 29, 2011
Provincial Court Judge Blasts RCMP over Charter Violations
In the case of R. v. Ho, Hou, Huang, Li and Zhou 2011 BCPC 0186, provincial court Judge P.R. Meyers blasted the RCMP for violating the Charter rights of the accused. In his reasons for judgment, Judge Meyers stated that the RCMP “ignored and flaunted the accuseds’ Charter of Rights and did so consistently over a 14 month period.” The accused individuals were charged with producing ecstasy and possessing ecstasy for the purpose of trafficking.
Over the course of the 14 month investigation there were several gross Charter violations by the RCMP. Judge Meyers notes that these Charter violations included the RCMP’s “initial choice to apply for a Telewarrant rather than to apply to a Justice or Judge in person, to knowing that the suspects probably would not speak or understand English very well but yet not bothering to arrange to have interpreters there to explain to them the reasons for their arrest and what their Charter rights were, to not showing or reading the Warrants to the occupants of two of the house, to leaving two of the accused half-naked, outdoors in the middle of the winter to be hosed down with cold water while in view of their neighbours, to not knowing that they had a legal obligation to file a Report in the Richmond Court Registry within 7 days of the execution of the Warrants.” The Judge noted that it was almost as if the searches had taken place before the Charter existed. He further noted that “the officers in charge, just did not seem to care” and that the “officers in charge of this investigation, operated throughout, in “bad faith”. Judge Meyer ruled that all evidence obtained must be excluded as a remedy under s.24(2) of the Charter.
Judge Meyer sent a clear message to the police, that is that the rights of individuals must be respected regardless of the fact that they have committed a crime. It is important for us citizens to know that our rights will be protected no matter what, but especially when the police search our homes, where we have a reasonable expectation of privacy. Judge Meyer noted in regards to the police not filing a report after the search of the homes of the accused individuals that “it is fundamental to the rights of people who are about to have their homes searched by the police to know that the courthouse in their area will have all of the legal documents pertaining to the intrusion of their privacy, available for them to inspect.” Our privacy in our home should be protected and if the police are going to invade our privacy we should be able to hold them to account on inspection of their search documents.
I hope that the police will learn from this experience and realize that the rights in the Charter are absolute, not arbitrary or temporary. The police can’t just decide that they aren’t going to respect the rights of citizens under the Charter. The rights must be respected at all times no matter what the situation. I am glad to see the courts upholding the rights afforded to us under the Charter.
Over the course of the 14 month investigation there were several gross Charter violations by the RCMP. Judge Meyers notes that these Charter violations included the RCMP’s “initial choice to apply for a Telewarrant rather than to apply to a Justice or Judge in person, to knowing that the suspects probably would not speak or understand English very well but yet not bothering to arrange to have interpreters there to explain to them the reasons for their arrest and what their Charter rights were, to not showing or reading the Warrants to the occupants of two of the house, to leaving two of the accused half-naked, outdoors in the middle of the winter to be hosed down with cold water while in view of their neighbours, to not knowing that they had a legal obligation to file a Report in the Richmond Court Registry within 7 days of the execution of the Warrants.” The Judge noted that it was almost as if the searches had taken place before the Charter existed. He further noted that “the officers in charge, just did not seem to care” and that the “officers in charge of this investigation, operated throughout, in “bad faith”. Judge Meyer ruled that all evidence obtained must be excluded as a remedy under s.24(2) of the Charter.
Judge Meyer sent a clear message to the police, that is that the rights of individuals must be respected regardless of the fact that they have committed a crime. It is important for us citizens to know that our rights will be protected no matter what, but especially when the police search our homes, where we have a reasonable expectation of privacy. Judge Meyer noted in regards to the police not filing a report after the search of the homes of the accused individuals that “it is fundamental to the rights of people who are about to have their homes searched by the police to know that the courthouse in their area will have all of the legal documents pertaining to the intrusion of their privacy, available for them to inspect.” Our privacy in our home should be protected and if the police are going to invade our privacy we should be able to hold them to account on inspection of their search documents.
I hope that the police will learn from this experience and realize that the rights in the Charter are absolute, not arbitrary or temporary. The police can’t just decide that they aren’t going to respect the rights of citizens under the Charter. The rights must be respected at all times no matter what the situation. I am glad to see the courts upholding the rights afforded to us under the Charter.
Friday, June 17, 2011
Game 7: Disappointment after Disappointment
Wednesday June 15, 2011 will forever be remembered as the day the Vancouver Canucks lost 4-0 to the Boston Bruins on home ice, in game number seven of the Stanley Cup Finals, giving Boston their first Stanley Cup victory since 1971-1972. Vancouver was left without hoisting the cup for the third time in franchise history. The day will not only be remembered as the day our beloved Canucks lost the Stanley Cup, but also the day in which the city of Vancouver broke out in a massive riot. Multiple businesses were damaged along the Georgia Street and Granville Street corridor. Companies such as the Hudson’s Bay Company, Bank of Montreal (BMO), London Drugs, Sears and many other smaller businesses had significant damage done to them. Not only were their windows broken but goods and products were also damaged and stolen. Garbage cans and vehicles, including two police cars were also lit on fire. The police were clearly unable to contain the 100,000 plus that gathered downtown to watch the all important hockey game.
Without being able to control the massive crowd, the police were forced to use the Riot Act. The Riot Act was originally brought into force by an Act of Parliament of Great Britain in 1715. As a colony of Britain, the law was incorporated into Canadian law and was later put on statutory footing. The Riot Act is found in ss.32-33 and ss.64-69 of the Criminal Code of Canada. A proclamation, worded as follows will be read out to the crowd, during a riot: “Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life.” In essence, the Riot Act attempts to prevent unlawful assemblies of 12 or more people. Sad to say, the Riot Act was not successful in dispersing the large crowd that had gathered downtown Vancouver. A significant amount of damage was caused in the downtown core, and the costs for the damage are currently unknown, but are sure to be in the couple of million dollar range.
Questions are being asked as to how the city of Vancouver and its police department could have better handled the situation. Some critics are pointing the finger at the mayor and the city management staff claiming that they did not believe that there would be a riot and therefore they did not provide the police department with enough funds to adequately staff the downtown core for the hockey game. Others are pointing their fingers at the Vancouver police department for being ill-prepared for the riot and for taking too long to react to the situation.
Perhaps the finger should be pointed at the hooligans who engaged in such shameful behaviour. I don’t know what was more disappointing, losing in the Stanley Cup finals to Boston or the riot that tarnished the reputation of our world class city. Due to the actions of the few that wanted to riot, media outlets across the globe blasted our city as being violent. I only hope that the city could regain its reputation as a friendly, world class city. We have held successful mega events such as the Olympics in Vancouver and I hope that in the future we can continue to hold such large events in a successful manner without any negative consequences.
Without being able to control the massive crowd, the police were forced to use the Riot Act. The Riot Act was originally brought into force by an Act of Parliament of Great Britain in 1715. As a colony of Britain, the law was incorporated into Canadian law and was later put on statutory footing. The Riot Act is found in ss.32-33 and ss.64-69 of the Criminal Code of Canada. A proclamation, worded as follows will be read out to the crowd, during a riot: “Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life.” In essence, the Riot Act attempts to prevent unlawful assemblies of 12 or more people. Sad to say, the Riot Act was not successful in dispersing the large crowd that had gathered downtown Vancouver. A significant amount of damage was caused in the downtown core, and the costs for the damage are currently unknown, but are sure to be in the couple of million dollar range.
Questions are being asked as to how the city of Vancouver and its police department could have better handled the situation. Some critics are pointing the finger at the mayor and the city management staff claiming that they did not believe that there would be a riot and therefore they did not provide the police department with enough funds to adequately staff the downtown core for the hockey game. Others are pointing their fingers at the Vancouver police department for being ill-prepared for the riot and for taking too long to react to the situation.
Perhaps the finger should be pointed at the hooligans who engaged in such shameful behaviour. I don’t know what was more disappointing, losing in the Stanley Cup finals to Boston or the riot that tarnished the reputation of our world class city. Due to the actions of the few that wanted to riot, media outlets across the globe blasted our city as being violent. I only hope that the city could regain its reputation as a friendly, world class city. We have held successful mega events such as the Olympics in Vancouver and I hope that in the future we can continue to hold such large events in a successful manner without any negative consequences.
Wednesday, June 15, 2011
New Conservative Legislation Not Likely to Make Trials More Fair and Efficient
Justice Minister Rob Nicholson introduced the first crime bill since the Tories won a majority government. The Fair and Efficient Criminal Trials Act, as its title indicates sets out to make criminal trials more efficient and fair. Measures introduced at reaching this goal include appointing a case management judge for improving case management. Under the current common law, only a judge can rule on preliminary issues at trial. However, with the new Act, a Case Management Judge would be able to rule on preliminary matters. The Conservative government believes that having this position would allow the presentation of evidence to the trier of fact to proceed without interruption, to the extent possible, thereby reducing the overall duration of proceedings. The Case Management Judge would be able to amongst other things promote a fair and expeditious trial, ensure that the evidence is presented without interruption, impose deadlines on parties, assist the parties to narrow their focus on the relevant issues and relevant witnesses, encourage the parties to make admissions and reach agreements, adjudicate upon any issues that can be adjudicated at that stage, and they would be able to hear guilty pleas and hand down sentences. The Case Management Judge would be able to adjudicate on issues such as admissibility of evidence, disclosure, expert witness, change of venue, Canadian Charter of Rights and Freedoms and severance of accused or counts on the indictment. The individual would also adjudicate on issues that the trial judge may refer to them, such as presentation of evidence of merits.
Other changes that attempt to reduce duplication include allowing for joint hearings of preliminary motions involving similar evidence that arises from related but separate trials. The new crime bill also calls for allowing a court to delay the enforcement of a severance order by allowing a preliminary issue pertaining to more than one accused or count to be adjudicated by one judge only, prior to severance, thus preventing unnecessary duplication. Currently, once a severance order has been made, the issues are heard separately. The Criminal Code would also be amended so that when a mistrial is declared and a new trial ordered, decisions on certain preliminary issues continue to bind the parties unless the court is satisfied that it is not in the interests of justice. Furthermore, the new bill will also allow for direct indictments to be amended for technical errors where as currently a new direct indictment must be preferred, along with the written consent of the Attorney General or Deputy Attorney General. Another proposal of the bill is that a new bail hearing will no longer be held when an accused is subject to a bail or detention order for an offence and a direct indictment is preferred charging the same offence or an included offence.
Proposed changes for improving criminal procedure include swearing fourteen jurors, so jurors do not drop below ten, which is the Criminal Code minimum for valid verdicts. The fourteen jurors would be subject to a random selection process that will determine, after the judge’s charge to the jury, which jurors will deliberate. Other proposed amendments include that jurors be systematically be called into court by their number instead of their name; this would allow for their identity to be protected and allow them to do their job without fear. Lastly, a proposed amendment to s.536.3 of the Criminal Code, would resolve the discrepancy between the English and French version of the section, which calls for the party requesting a preliminary inquiry to provide the other party and the court with a detailed list of witnesses.
While, there is no doubt in my mind that the criminal justice system needs to work more efficiently, I do not believe that all the changes the Conservative governments are introducing will lead to the efficiency of the criminal justice system. For example, I don’t believe that it is a wise thing for judges to be hearing evidential matters of two unrelated trials in one hearing as there is a potential for a judge to be affected in his or her decision making. It is important to keep in mind that under the Charter of Rights and Freedoms everyone has the right to be tried by an independent and impartial tribunal. As for the improvement in procedures, involving indictments, jurors, and the case management judge, I believe that they have the potential to increase the efficiency of the criminal justice system. What these reforms are essentially based on is the government saving money instead of actually fixing the criminal justice system and its delays. What is needed, is more funding so the courts can have more resources to deal with matters and make sure that they are dealt in a swift and efficient manner.
Other changes that attempt to reduce duplication include allowing for joint hearings of preliminary motions involving similar evidence that arises from related but separate trials. The new crime bill also calls for allowing a court to delay the enforcement of a severance order by allowing a preliminary issue pertaining to more than one accused or count to be adjudicated by one judge only, prior to severance, thus preventing unnecessary duplication. Currently, once a severance order has been made, the issues are heard separately. The Criminal Code would also be amended so that when a mistrial is declared and a new trial ordered, decisions on certain preliminary issues continue to bind the parties unless the court is satisfied that it is not in the interests of justice. Furthermore, the new bill will also allow for direct indictments to be amended for technical errors where as currently a new direct indictment must be preferred, along with the written consent of the Attorney General or Deputy Attorney General. Another proposal of the bill is that a new bail hearing will no longer be held when an accused is subject to a bail or detention order for an offence and a direct indictment is preferred charging the same offence or an included offence.
Proposed changes for improving criminal procedure include swearing fourteen jurors, so jurors do not drop below ten, which is the Criminal Code minimum for valid verdicts. The fourteen jurors would be subject to a random selection process that will determine, after the judge’s charge to the jury, which jurors will deliberate. Other proposed amendments include that jurors be systematically be called into court by their number instead of their name; this would allow for their identity to be protected and allow them to do their job without fear. Lastly, a proposed amendment to s.536.3 of the Criminal Code, would resolve the discrepancy between the English and French version of the section, which calls for the party requesting a preliminary inquiry to provide the other party and the court with a detailed list of witnesses.
While, there is no doubt in my mind that the criminal justice system needs to work more efficiently, I do not believe that all the changes the Conservative governments are introducing will lead to the efficiency of the criminal justice system. For example, I don’t believe that it is a wise thing for judges to be hearing evidential matters of two unrelated trials in one hearing as there is a potential for a judge to be affected in his or her decision making. It is important to keep in mind that under the Charter of Rights and Freedoms everyone has the right to be tried by an independent and impartial tribunal. As for the improvement in procedures, involving indictments, jurors, and the case management judge, I believe that they have the potential to increase the efficiency of the criminal justice system. What these reforms are essentially based on is the government saving money instead of actually fixing the criminal justice system and its delays. What is needed, is more funding so the courts can have more resources to deal with matters and make sure that they are dealt in a swift and efficient manner.
Two Judges of the Supreme Court of Canada Set to Retire
Fresh off his victory of forming a majority government, Stephen Harper will have an opportunity to put his stamp on the Supreme Court of Canada (SCC). Justice Ian Binnie, 72, and Madam Justice Louise Charron, 60, are both set to retire from the country’s top court on August 30, 2011.
Binnie was born in Montreal and holds law degrees from both the University of Toronto and Cambridge University. He has been sitting on the top court since 1998. Before his appointment to the SCC, he was an associate Deputy Minister of Justice and a senior partner at the law firm McCarthy Tetreault.
Charron was born in Sturgeon Falls, Ontario and she earned her law degree from the University of Ottawa. She is a former assistant Crown attorney and district court judge. She served on the Ontario Court of Appeal since 1995 until her appointment to the top court in 2004. Charron is retiring from the SCC at the age of 60, well before the mandatory retirement age of 75.
With two new appointments to the top court, Harper’s decision could impact legal decisions for years to come. Harper, being a Conservative will most likely look to appoint individuals who are conservative in nature and those that favour the policies of Mr. Harper and his government. Harper’s appointment decision is very important as four of the current nine judges are set to retire by 2015, meaning that Harper will have appointed more than half of the Supreme Court of Canada before the end of his current term. The potential implications of this are profound as the country’s top court could become a conservative stronghold, simply reinforcing the plans of the Conservative government, which could potentially curtail the rights and freedoms enjoyed by us under the Charter of Rights and Freedoms. Of course, all of this is contingent upon the fact of who Mr. Harper appoints to the SCC.
It is highly likely that both new justices will be appointed from Ontario and that one will be a woman. Speculation in the legal community is that Ontario Court of Appeal judges Andromache Karakatsanis and Robert Sharpe are the front runners for the appointment to the country’s top court. Karakatsanis, a former public servant, of Greek descent is believed to take a deferential approach to legislation- which the Conservative government will no doubt approve of. However, Karakatsanis is also considered to be a candidate for the Chief Justice of Ontario when the position becomes available. Robert Sharpe is a leading academic, who is a former law dean at the University of Toronto. Both judges are bilingual, conservative in nature, and appear to be favoured by Conservative ministers and backbenchers.
Other potential candidates for the job include Mr. Justice Marc Rosenberg of the Ontario Court of Appeal, who many believe is the leading legal mind regarding criminal law in the country. However, he may not be appointed to the SCC because he is a critic of Conservative crime policies, which would be a loss to Canadian Jurisprudence as a whole. Madame Justice Gloria Epstein, also of the Ontario Court of Appeal could also potentially be appointed, however she is also considered to be in the mix for being a future Chief Justice of Ontario. Other names being thrown around included Federal Court of Appeal Judge David Stratas, a former Bay Street expert on constitutional matters and Judge MacPherson of the Ontario Court of Appeal who is a former dean of law at Osgoode Hall Law School at York University.
Other questions that remain as to whether or not the next justices will be questioned by a House of Commons Committee, a process that Harper used in 2006, but not in 2008 when appointing Thomas Cromwell. Time will only tell who Mr. Harper appoints to the nation’s top court, but either way his decisions on the appointments to the SCC will undoubtedly have a lasting outcome on legal decisions for years to come.
Binnie was born in Montreal and holds law degrees from both the University of Toronto and Cambridge University. He has been sitting on the top court since 1998. Before his appointment to the SCC, he was an associate Deputy Minister of Justice and a senior partner at the law firm McCarthy Tetreault.
Charron was born in Sturgeon Falls, Ontario and she earned her law degree from the University of Ottawa. She is a former assistant Crown attorney and district court judge. She served on the Ontario Court of Appeal since 1995 until her appointment to the top court in 2004. Charron is retiring from the SCC at the age of 60, well before the mandatory retirement age of 75.
With two new appointments to the top court, Harper’s decision could impact legal decisions for years to come. Harper, being a Conservative will most likely look to appoint individuals who are conservative in nature and those that favour the policies of Mr. Harper and his government. Harper’s appointment decision is very important as four of the current nine judges are set to retire by 2015, meaning that Harper will have appointed more than half of the Supreme Court of Canada before the end of his current term. The potential implications of this are profound as the country’s top court could become a conservative stronghold, simply reinforcing the plans of the Conservative government, which could potentially curtail the rights and freedoms enjoyed by us under the Charter of Rights and Freedoms. Of course, all of this is contingent upon the fact of who Mr. Harper appoints to the SCC.
It is highly likely that both new justices will be appointed from Ontario and that one will be a woman. Speculation in the legal community is that Ontario Court of Appeal judges Andromache Karakatsanis and Robert Sharpe are the front runners for the appointment to the country’s top court. Karakatsanis, a former public servant, of Greek descent is believed to take a deferential approach to legislation- which the Conservative government will no doubt approve of. However, Karakatsanis is also considered to be a candidate for the Chief Justice of Ontario when the position becomes available. Robert Sharpe is a leading academic, who is a former law dean at the University of Toronto. Both judges are bilingual, conservative in nature, and appear to be favoured by Conservative ministers and backbenchers.
Other potential candidates for the job include Mr. Justice Marc Rosenberg of the Ontario Court of Appeal, who many believe is the leading legal mind regarding criminal law in the country. However, he may not be appointed to the SCC because he is a critic of Conservative crime policies, which would be a loss to Canadian Jurisprudence as a whole. Madame Justice Gloria Epstein, also of the Ontario Court of Appeal could also potentially be appointed, however she is also considered to be in the mix for being a future Chief Justice of Ontario. Other names being thrown around included Federal Court of Appeal Judge David Stratas, a former Bay Street expert on constitutional matters and Judge MacPherson of the Ontario Court of Appeal who is a former dean of law at Osgoode Hall Law School at York University.
Other questions that remain as to whether or not the next justices will be questioned by a House of Commons Committee, a process that Harper used in 2006, but not in 2008 when appointing Thomas Cromwell. Time will only tell who Mr. Harper appoints to the nation’s top court, but either way his decisions on the appointments to the SCC will undoubtedly have a lasting outcome on legal decisions for years to come.
R v. Sinclair: A Case Analysis
On October 8, 2010, the Supreme Court of Canada (SCC) released the highly anticipated decision in the matter of R v. Sinclair 2010 SCC 35. In that case, Mr. Sinclair, during the course of a police interrogation implicated himself for murder. He also made incriminating statements to an undercover police officer who had been placed in a cell with him and later re-enacted the whole scenario at the crime scene for the police. During the course of the interview Sinclair asked on several occasions to speak to his legal counsel and or have them present during the interview. He was informed that he was not allowed to have his lawyer present during questioning and subsequently was denied access to speak to legal counsel over the phone. Sinclair’s only contact with a lawyer came when he was first arrested and approximately two hours into his interview. Both conversations lasted for approximately three minutes.
I, as counsel for Mr. Sinclair, put forward the argument that s.10(b) of the Charter of Rights and Freedoms imposes a duty on the police to discontinue questioning a detainee who has exercised the right to counsel when the detainee indicates a desire to speak with counsel again. It was further argued that s.10(b) requires the police to respect a detainee’s request to have counsel present during a custodial interrogation. These arguments were rejected at trial and by a unanimous British Columbia Court of Appeal (BCCA). A bare majority (5-4) of the Supreme Court of Canada (McLachlin C.J., Deschamps, Charron, Rothstein and Cromwell JJ.) agreed with the BCCA and stating that s.10(b) if the Charter does not mandate the presence of defence counsel throughout a custodial interrogation. In essence, the SCC rejected the rule adopted by the US Supreme Court in Miranda v. Arizona, 384 U.S. 136 (1966). The US Supreme Court has held that you are allowed to have a lawyer present during interrogations by government agents such as the police. Furthermore, it was held by the SCC that a request to consult counsel during the interview is not sufficient to re-trigger the s.10(b) right. The SCC majority held that the right will only be re-triggered when an objectively observable change in circumstances suggest that reconsultation with counsel is necessary in order for the detainee to have the information relevant to choosing whether or not to cooperate with the police investigation. A non-exhaustive list of situations where a second consultation with a lawyer might be required includes new procedures involving detainees (line ups & polygraphs), change in jeopardy (change in the nature of charges) and reason to question the detainee’s understanding of his s.10(b) right.
The minority decision of the SCC (Lebel, Fish and Abella JJ) state that they would allow the appeal on the above grounds on the basis that the detainee is arguably in the power of the police and the purpose of s.10(b) is to restore a power balance between the detainee and the police in the coercive atmosphere of the police investigation. The minority believe that the purpose of s.10(b) is to protect the accused and not to merely inform him or her of their legal rights. Justice Ian Binnie, who has his own dissenting judgment states that the purpose of s.10(b) is to be afforded meaningful legal assistance. Binnie notes that “it cannot reasonably be said….that the 360 seconds of legal advice [Sinclair] received in two initial phone calls before the police began their work was enough to exhaust his s.10(b) guarantee.” Binnie further stated that objective circumstances that give rise to a need to talk to legal counsel include but are not limited to the extent if prior contact wih counsel, the length of the interview at the time of the request, extent of other information (true or false) provided to the police, whether an issue of a legal nature has arisen in the course of the interrogation. It is important to note that Binnie agreed with the majority by declining to adopt the submission that s.10(b) requires the presence of counsel during the interrogation.
I believe that the Supreme Court of Canada has made it more difficult for defence counsel to do their job. Defence lawyers across the country will have to advise their clients to put their head down and say nothing, as otherwise they risk incriminating themselves as they will be at the mercy of a clever police officer. Along with the decisions in Singh, Oickle and Hebert the country’s top court has made it clear that the power during interrogations clearly rests with the police. Unfortunately, this could result in a significant amount of false confessions which could lead to false imprisonments and wrongful convictions. I believe that it is absolutely imperative that individuals in police custody have the right to have legal counsel present during investigations. Furthermore, accused individuals should have a continuous right to access legal counsel. I firmly believe that the courts should re-examine this issue and hopefully an appropriate balance between the rights of individuals and police powers could be struck.
I, as counsel for Mr. Sinclair, put forward the argument that s.10(b) of the Charter of Rights and Freedoms imposes a duty on the police to discontinue questioning a detainee who has exercised the right to counsel when the detainee indicates a desire to speak with counsel again. It was further argued that s.10(b) requires the police to respect a detainee’s request to have counsel present during a custodial interrogation. These arguments were rejected at trial and by a unanimous British Columbia Court of Appeal (BCCA). A bare majority (5-4) of the Supreme Court of Canada (McLachlin C.J., Deschamps, Charron, Rothstein and Cromwell JJ.) agreed with the BCCA and stating that s.10(b) if the Charter does not mandate the presence of defence counsel throughout a custodial interrogation. In essence, the SCC rejected the rule adopted by the US Supreme Court in Miranda v. Arizona, 384 U.S. 136 (1966). The US Supreme Court has held that you are allowed to have a lawyer present during interrogations by government agents such as the police. Furthermore, it was held by the SCC that a request to consult counsel during the interview is not sufficient to re-trigger the s.10(b) right. The SCC majority held that the right will only be re-triggered when an objectively observable change in circumstances suggest that reconsultation with counsel is necessary in order for the detainee to have the information relevant to choosing whether or not to cooperate with the police investigation. A non-exhaustive list of situations where a second consultation with a lawyer might be required includes new procedures involving detainees (line ups & polygraphs), change in jeopardy (change in the nature of charges) and reason to question the detainee’s understanding of his s.10(b) right.
The minority decision of the SCC (Lebel, Fish and Abella JJ) state that they would allow the appeal on the above grounds on the basis that the detainee is arguably in the power of the police and the purpose of s.10(b) is to restore a power balance between the detainee and the police in the coercive atmosphere of the police investigation. The minority believe that the purpose of s.10(b) is to protect the accused and not to merely inform him or her of their legal rights. Justice Ian Binnie, who has his own dissenting judgment states that the purpose of s.10(b) is to be afforded meaningful legal assistance. Binnie notes that “it cannot reasonably be said….that the 360 seconds of legal advice [Sinclair] received in two initial phone calls before the police began their work was enough to exhaust his s.10(b) guarantee.” Binnie further stated that objective circumstances that give rise to a need to talk to legal counsel include but are not limited to the extent if prior contact wih counsel, the length of the interview at the time of the request, extent of other information (true or false) provided to the police, whether an issue of a legal nature has arisen in the course of the interrogation. It is important to note that Binnie agreed with the majority by declining to adopt the submission that s.10(b) requires the presence of counsel during the interrogation.
I believe that the Supreme Court of Canada has made it more difficult for defence counsel to do their job. Defence lawyers across the country will have to advise their clients to put their head down and say nothing, as otherwise they risk incriminating themselves as they will be at the mercy of a clever police officer. Along with the decisions in Singh, Oickle and Hebert the country’s top court has made it clear that the power during interrogations clearly rests with the police. Unfortunately, this could result in a significant amount of false confessions which could lead to false imprisonments and wrongful convictions. I believe that it is absolutely imperative that individuals in police custody have the right to have legal counsel present during investigations. Furthermore, accused individuals should have a continuous right to access legal counsel. I firmly believe that the courts should re-examine this issue and hopefully an appropriate balance between the rights of individuals and police powers could be struck.
Thursday, December 9, 2010
Article Misses Key Aspect of Sentencing?
According to an article in the Globe and Mail today (Kirk Makin, “Top Court Urged to Overhaul Sentencing,” Thursday, December 9, 2010) three of five judges on an Alberta Court of Appeal panel claimed there is a lack of confidence in the judiciary stemming from “wide disparities in sentences.” The Globe’s justice reporter, Kirk Makin, that the Conservative government may utilize the panel’s opinion in their plan to push minimum sentences.
The three judges on the panel who made up the majority – Chief Justice Catherine Fraser, Mr. Justice Jean Cote, and Mr. Justice Jack Watson – commented that Courts of Appeal in Canada should rein in sentencing by trial judges. Moreover, the majority urged both the Supreme Court of Canada and parliament to react to apparent disparities in sexual assault cases.
The particular sentence that the Alberta Court of Appeal panel was reviewing was a case in which an Aboriginal man, Jordan Arcand, committed a sexual assault against a friend of his who was passed out after they had been drinking. The judges said that Mr. Arcand’s sentence, handed out by Judge P.L. Adilman, Court of Queeen’s Bench Alberta, of 90 days was “based on outdated myths and stereotypes” about sexual assaults.
One wonders, however, to what degree the panel acknowledged the role that Gladue considerations played in Judge Adilman’s sentencing. The fact that Gladue factors should have been considered with regard to Mr. Arcand’s sentence is not discussed at all. If the trial judge did take into account the systemic issues leading to overrepresentation of Aboriginal peoples in the criminal justice system he was doing his job correctly. The article also fails to examine to what degree courts are taking seriously their obligations to Aboriginal offenders at sentencing and whether this is having an impact on terms of imprisonment.
It seems that once again, outmoded ways of thinking are erasing the significant facts about the criminalization of Aboriginal peoples in Canada.
The three judges on the panel who made up the majority – Chief Justice Catherine Fraser, Mr. Justice Jean Cote, and Mr. Justice Jack Watson – commented that Courts of Appeal in Canada should rein in sentencing by trial judges. Moreover, the majority urged both the Supreme Court of Canada and parliament to react to apparent disparities in sexual assault cases.
The particular sentence that the Alberta Court of Appeal panel was reviewing was a case in which an Aboriginal man, Jordan Arcand, committed a sexual assault against a friend of his who was passed out after they had been drinking. The judges said that Mr. Arcand’s sentence, handed out by Judge P.L. Adilman, Court of Queeen’s Bench Alberta, of 90 days was “based on outdated myths and stereotypes” about sexual assaults.
One wonders, however, to what degree the panel acknowledged the role that Gladue considerations played in Judge Adilman’s sentencing. The fact that Gladue factors should have been considered with regard to Mr. Arcand’s sentence is not discussed at all. If the trial judge did take into account the systemic issues leading to overrepresentation of Aboriginal peoples in the criminal justice system he was doing his job correctly. The article also fails to examine to what degree courts are taking seriously their obligations to Aboriginal offenders at sentencing and whether this is having an impact on terms of imprisonment.
It seems that once again, outmoded ways of thinking are erasing the significant facts about the criminalization of Aboriginal peoples in Canada.
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