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.
Wednesday, June 15, 2011
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.
Friday, November 19, 2010
I don't want to say "I told you so" but....
They didn't listen to defence counsel. They didn't listen when defence counsel and the BCCLA told them that a system without recourse to the courts causes this kind of trouble and now, the police have recalled 2,200 Approved Screening Devices used at roadside to test people's breath alcohol. We told them citizen's rights would be violated and that there would be a violation of due process.
They didn't listen to us.
These are the machines responsible for the suspensions. By now, hundreds of people have received these suspensions. And the machines aren't working.
This is what happens when you remove due process.
To the Superintendent of Motor Vehicles; to Jamie Graham; to the police I say this: Shame on you. Your totalitarian attitude has lead to a situation where you've infringed due process without recourse for hundreds, if not thousands of citizens.
Disgusting. Maybe now, citizens will rise up and decry the loss of their rights.
They didn't listen to us.
These are the machines responsible for the suspensions. By now, hundreds of people have received these suspensions. And the machines aren't working.
This is what happens when you remove due process.
To the Superintendent of Motor Vehicles; to Jamie Graham; to the police I say this: Shame on you. Your totalitarian attitude has lead to a situation where you've infringed due process without recourse for hundreds, if not thousands of citizens.
Disgusting. Maybe now, citizens will rise up and decry the loss of their rights.
Monday, October 18, 2010
Communities Advised to Report 'Radicalized Youth'
The Harper government has advised racialized communities, targeting Muslims, apparently associated with ‘radicalized youth’ to report young people who voice strong political or religious perspectives to security forces.
At a news conference on October 3, 2010 Public Safety Minister, Vic Toews stated, “We are very concerned about the radicalization of Canadian youth and then becoming not only radicalized but then going to fight jihad, becoming militarily trained and then of course coming back to Canada.”
Mr. Toews was responding to a Globe and Mail story about three University of Manitoba students who disappeared three years ago after travelling to Pakistan leading to an international terrorism investigation. According to the Globe and Mail, Miawand Yar, Ferid Imam and Muhannad al-Ferekh flew out of Canada in early 2007 to Pakistan via Europe. What happened to them after they reached the border region of Waziristan, Pakistan, a known al-Qaeda and Taliban stronghold, is unknown.
In defending the government’s appeal to specific communities to turn over young people who may hold strong views Mr. Toews added, “I want to stress, again, that it's so very important that we have co-operation from the groups where these individuals are coming out of so that our security authorities can better assess the situation and protect Canadians.”
Using Somali Canadians as an example to bolster the government’s racist position, Mr. Toews said, “Some months ago, the Somali community approached the security authorities here in Canada expressing concern about their youth that had gone from Toronto overseas to fight jihad.” He added, “I want to say that this is perhaps the most effective means of protecting Canadians against a terrorist threat.”
Not surprisingly, there have been negative reactions from members of some Muslim communities. Shahina Siddiqui, the executive director of the Islamic Social Services Association, responded by suggesting that the Minister’s comments could incite suspicion from non-Muslim Canadians directed at Muslims and within Muslim communities themselves. Further, she expressed concern that it paints an inaccurate picture that Muslim Canadians do not cooperate with law-enforcement more generally.
The federal government’s perspective as expressed through Mr. Toew’s comments suggests a Conservative agenda to turn non-Muslim Canadians against cultural communities in the country and members of those communities against one another. It also points to a more general perspective that to hold ‘radical’ or different political and religious opinions is wrong and, moreover, dangerous.
Clearly, given the Federal government’s take that holding divergent views makes one ‘radicalized’ and, therefore, potentially dangerous this is indeed a perilous time to think outside Harper’s box.
At a news conference on October 3, 2010 Public Safety Minister, Vic Toews stated, “We are very concerned about the radicalization of Canadian youth and then becoming not only radicalized but then going to fight jihad, becoming militarily trained and then of course coming back to Canada.”
Mr. Toews was responding to a Globe and Mail story about three University of Manitoba students who disappeared three years ago after travelling to Pakistan leading to an international terrorism investigation. According to the Globe and Mail, Miawand Yar, Ferid Imam and Muhannad al-Ferekh flew out of Canada in early 2007 to Pakistan via Europe. What happened to them after they reached the border region of Waziristan, Pakistan, a known al-Qaeda and Taliban stronghold, is unknown.
In defending the government’s appeal to specific communities to turn over young people who may hold strong views Mr. Toews added, “I want to stress, again, that it's so very important that we have co-operation from the groups where these individuals are coming out of so that our security authorities can better assess the situation and protect Canadians.”
Using Somali Canadians as an example to bolster the government’s racist position, Mr. Toews said, “Some months ago, the Somali community approached the security authorities here in Canada expressing concern about their youth that had gone from Toronto overseas to fight jihad.” He added, “I want to say that this is perhaps the most effective means of protecting Canadians against a terrorist threat.”
Not surprisingly, there have been negative reactions from members of some Muslim communities. Shahina Siddiqui, the executive director of the Islamic Social Services Association, responded by suggesting that the Minister’s comments could incite suspicion from non-Muslim Canadians directed at Muslims and within Muslim communities themselves. Further, she expressed concern that it paints an inaccurate picture that Muslim Canadians do not cooperate with law-enforcement more generally.
The federal government’s perspective as expressed through Mr. Toew’s comments suggests a Conservative agenda to turn non-Muslim Canadians against cultural communities in the country and members of those communities against one another. It also points to a more general perspective that to hold ‘radical’ or different political and religious opinions is wrong and, moreover, dangerous.
Clearly, given the Federal government’s take that holding divergent views makes one ‘radicalized’ and, therefore, potentially dangerous this is indeed a perilous time to think outside Harper’s box.
Monday, September 27, 2010
'Truth In Sentecing' Act Does No Favours for Poor and Aboriginal Peoples
An internal report submitted to cabinet in 2009 singled out Aboriginal, poor, and illiterate peoples as potentially being profoundly negatively affected by the implementation of Bill C-25. The so-called Truth in Sentencing Act, which came into effect in February of 2010, changed the policy on credit given for time served prior to sentencing. The Bill mandates that judges can only award equal credit for time served in custody while awaiting trial at conviction. The only exception to this is in special circumstances when they submit written reasons in an attempt to have 1.5 pre-sentence time credited for an individual.
Canadian media have recently gained access to the July 2009 preliminary report conducted by Justice Canada through the Access to Information Act. The internal report cited that in 582 cases of people awaiting trial across Canada, those held in custody in Winnipeg and Whitehorse had to wait longer for their trial dates than in-custody accused in Vancouver and Toronto.
In my experience, in custody accused are waiting 3-6 months for a trial date in Vancouver. If they’re waiting longer in Winnipeg and Whitehorse, that’s a disgrace. All accused are presumed innocent, including those who are waiting for a trial.
It is never the well-heeled that are disadvantaged by this kind of legislation. The Tories are putting the publicity value of being “tough on crime” in front of the rights of individuals, again.
Canadian media have recently gained access to the July 2009 preliminary report conducted by Justice Canada through the Access to Information Act. The internal report cited that in 582 cases of people awaiting trial across Canada, those held in custody in Winnipeg and Whitehorse had to wait longer for their trial dates than in-custody accused in Vancouver and Toronto.
In my experience, in custody accused are waiting 3-6 months for a trial date in Vancouver. If they’re waiting longer in Winnipeg and Whitehorse, that’s a disgrace. All accused are presumed innocent, including those who are waiting for a trial.
It is never the well-heeled that are disadvantaged by this kind of legislation. The Tories are putting the publicity value of being “tough on crime” in front of the rights of individuals, again.
Monday, September 13, 2010
Attorney General of BC Announces Public Inquiry Into Police Investigation of Robert Pickton
On Thursday, September 9, 2010 the Attorney General of B.C., Mike de Jong, announced a public inquiry into the police investigation of Robert Pickton. The inquiry will focus on examining how the police handled reports that women were disappearing from the Downtown Eastside and taken to Pickton’s farm outside of Port Conquitlam, B.C.
In 2007 Pickton was convicted of six charges of second-degree murder in the deaths of six women, which occurred between the late 1990s and 2002. He was accused in twenty other charges, but the Crown chose only to proceed on the charges that would most likely lead to conviction.
The Crown and Vancouver Police Department suspected as early as 1997 that Pickton was involved in the disappearance and deaths of sex trade workers from Vancouver’s Downtown Eastside. Although the V.P.D. has admitted that they made mistake during the investigation they also directed blame at the R.C.M.P., which has jurisdiction over the area that Pickton’s farm is located. The R.C.M.P has not responded to these allegations.
The Public Inquiry Act governs public inquiries in B.C. The government is not obliged to act on any of the recommendations that result from the public inquiry. Both the Vancouver Police Department and the R.C.M.P. have responded positively in support of the inquiry.
Mr. de Jong has not indicated who will head the inquiry or when the inquiry will begin.
In 2007 Pickton was convicted of six charges of second-degree murder in the deaths of six women, which occurred between the late 1990s and 2002. He was accused in twenty other charges, but the Crown chose only to proceed on the charges that would most likely lead to conviction.
The Crown and Vancouver Police Department suspected as early as 1997 that Pickton was involved in the disappearance and deaths of sex trade workers from Vancouver’s Downtown Eastside. Although the V.P.D. has admitted that they made mistake during the investigation they also directed blame at the R.C.M.P., which has jurisdiction over the area that Pickton’s farm is located. The R.C.M.P has not responded to these allegations.
The Public Inquiry Act governs public inquiries in B.C. The government is not obliged to act on any of the recommendations that result from the public inquiry. Both the Vancouver Police Department and the R.C.M.P. have responded positively in support of the inquiry.
Mr. de Jong has not indicated who will head the inquiry or when the inquiry will begin.
Subscribe to:
Posts (Atom)