A Lawyer, Her Robes and an Outraged Criminal Defence Bar

For criminal defence lawyers in and around the Greater Toronto Area the Internet broke yesterday. As word spread that their colleague Laura Liscio had been arrested in court and led out of the Brampton courthouse handcuffed and in her barrister’s robes, the outrage mounted and the years of criminal defence lawyers and their clients being treated as second class citizens by a justice system more concerned with efficiency than justice came to a boil.

Apparently, Ms Liscio handed clothes to her client in court yesterday, which were later found to have drugs in them. Whether or not this is even remotely accurate I have no idea.

Let’s first address the question that preoccupies people; is she guilty? The only answer our justice system gives us is that she is not. In fact she is innocent. There has been no trial and no finding of guilt so at this point and at every point until a verdict is rendered Laura Liscio is innocent. That may trouble some people who accept every statement police make as pure and true but the presumption of innocence is central to our justice system so too bad.

By all accounts Laura Liscio is a conscientious advocate for her clients and who is well respected by both defence counsel and crown attorneys. But that meant absolutely nothing to the arresting officers of the Peel Regional Police Service who marched into her courtroom, arrested her and handcuffed her while she was wearing her barrister’s robes. They then ushered her out of the courthouse to a waiting cruiser.

So unlike Police Constable James Forcillo who shot nine bullets into another man and killed him (all of it captured on video), Laura Liscio did not get to go home and wait for twenty-four days while the “authorities investigated.” She didn’t get to go home and wait for twenty-four days while her lawyer and the prosecutor worked out in detail the manner of her turning herself in by a side door to the courthouse away from prying eyes. She didn’t get to go home and wait for twenty-four days while her lawyer and the prosecutor worked out terms of her release so as to spend the least amount of time in court possible. No she didn’t get any of those professional courtesies that are the hallmarks any time police are arrested – rare as that is.

So while some media, the police, and our government leaders trip over themselves reminding the public of the heroic nature of police work and how they’re on the side of good and defence lawyers are on the side of evil, remind yourself of how truly pathetic yesterday was where uniformed police officers, who are handed all sorts of discretion to carry out their jobs, exercised so little of it when arresting, an officer of the court.

The police officers in this case seemed to be motivated to publicly shame and humiliate a criminal defence lawyer. The investigation in to what Ms. Liscio was alleged to have done, appears to have been so cursory as to make even the most ardent tough on crime advocate blush.

But we as a profession need answers. For instance, who were the officers? Let’s also hear from the Crown Attorney for the Brampton courthouse and what his thoughts are. Did he approve of this? What about the Chief Federal Prosecutor for the region? Is this how he believes lawyers and officers of the court are to be treated?

For a justice system that bends over backwards to afford all manner of courtesies and deference to the decisions of police officers let yesterday be a reminder to those of you who aren’t lawyers. Think about this; what sort of treatments awaits you when the police have you in their sights and they could care less about what arresting you will mean to your life? Make sure to remind yourself that courtesies exist only for the police.

Eliminating the Presumption of Innocence one Reform at a Time

I just read this article which suggests ways courts could “better handle sexual assault cases,” and with apologies to Elliotte Friedman, here are my 17 thoughts.

  1. Criminal law deals with society’s denunciation of individual conduct. Crimes are against the State not just an individual. The State has enormous power and if the State wants to convict somebody and take away their freedom by locking them up in a cage we rightly demand that the process not be easy and have in place safeguards to guard against convicting the innocent.
  2. What happens when a complainant in a sexual assault matter or domestic violence case changes her mind? Does she simply tell her lawyer to tell the Crown to drop the charges? I suspect the Crown may take a different view and still proceed with the matter and force the complainant to testify.
  3. Who is going to pay for these court appointed lawyers? Will the money come from Legal Aid? A new entity? Will the lawyers get paid at Legal Aid rates? Same rate as the Crown?
  4. What will the relationship between the Crown and the appointed lawyer be? Do they work on the case together, like some super dream team? Does the appointed lawyer have standing to cross-examine witnesses at trial including the accused should he testify?
  5. Which interests prevail here? The complainant’s desire to get a conviction or the Crown’s role to see that justice is done (always remembering that “justice” does not equal “conviction”)
  6. What do the police think about having a lawyer present during their questioning of a witness? Can the lawyer ask questions? Will that lawyer be a witness at trial if the defence brings up suggestions of irregularities in the taking of that statement?
  7. Why limit this to sexual assault complainants? Why can’t any complainant/victim be provided a court appointed lawyer to represent their interests. What about the man who gets beat up by a gang? Does he get a lawyer? What about the parents who had their child killed by a drunk driver? Do they get a lawyer? What about the inmate at prison who alleges that guards beat him up? Does he get a lawyer?
  8. What happens to the Victim Support workers? Do we still need them?
  9. Realizing that a lawyer-client relationship has been established with this court appointed lawyer, does the Crown have to seek permission from the lawyer to speak to the complainant in preparation for trial?
  10. What if the court appointed lawyer isn’t happy with the police investigation and hires his own investigators and experts, are the fruits of that investigation disclosable to the defence? If not, why not?
  11. Civil cases deal with disputes between individuals. So now the State with all it’s resources will advocate for one individual? Again why just limit this to sexual assault, why not murder, other types of assault, frauds, drunk driving etc?
  12. Does the State get a percentage of any awards in a civil case to offset the cost of these cases?
  13. How is it buying into a “myth” when confronting a complainant of the possibility that they’re making up their story? The accused is presumed innocent at all stages until and unless he is convicted. If the accused denies that he sexually assaulted the complainant why is this allowing myths into the courtroom? Lawyers (both defence and crown) routinely confront witnesses with the suggestion that they’re making their story up. Do we also have to stop suggesting to police officers that they’re wrong or making up their testimony because we don’t want to buy into the “dirty lying cop myth”?
  14. This unidentified crown attorney says that, “it should be easy to prosecute these case.” Should we take that approach with every offence in the Criminal Code? They should all be easy to prosecute? Should we have a conviction rate of 99%? Is that what we want? A complainant or police officer makes an allegation and we just have show trials which culminate in convictions?
  15. All witnesses, whether police, experts or anyone else for that matter will tell you that being cross-examined isn’t fun, and that’s the way it should be. Having your story questioned in detail is an essential part of our trial process. Moreover, the idea that cross-examinations are limitless and defence can ask any old question that pops into their head is absurd. In every courtroom there’s a judge and crown. They don’t just sit there like potted plants while defence counsel takes a free run at witnesses.
  16. Cross-examination has been descried as “the greatest legal engine ever invented for the discovery of truth.” We ought not to just easily give up this feature without a fight.
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Bail and Radicals

Being a criminal defence lawyer is not for the faint of heart. If you can’t handle hearing about misery and the gritty details of broken lives, this job is not for you. Unlike television, client matters don’t neatly wrap up in an hour.

My transformation from law student to lawyer began when I first met a newly arrested person in lock up. I had my new briefcase, my freshly printed business cards and a new suit. My head was swirling with the cases I had read in law school. I believed that I’d identify his legal problem, figure out the applicable case, explain everything to him and we’d be good to go.  Sitting across from me though was my disheveled client wearing last night’s clothes, pleading with me to get him out of this place. He was desperate, twitchy and anxious, coming down from some sort of high and not terribly interested in what my mark was in Evidence.  

He was like many people I’d come to represent at the outset of my career: lifelong victims of physical and sexual abuse, neglect, malnourishment, lack of education and more often than not addiction to drugs, solvents and alcohol. In bail court his story was unfortunately not the exception but the rule.

Bail court often resembles the MASH unit of the criminal justice system. First, get people released quickly so they can fight their charges from outside of a cage. Second, fight against the imposition of overly restrictive bail conditions, especially ones that can come back to bite your client – don’t set him up for failure.  Because bail courts can be fast moving and decisions are made quickly it’s important to remember the main rule of representing your client at this early stage: do no harm.

I soon realized that not all of my clients would get released. Not every prosecutor and judge shared my interpretation of who was releasable.  And, even though we all had the constitutional right to reasonable bail, the prosecutor, judge and I didn’t always share the same view of what reasonable meant.

I represented countless people who drank alcohol in quantities that would have killed the average person. Many of them had no fixed address and few supports in their lives. They drank everything and anything that contained alcohol, from whiskey and beer to rubbing alcohol, mouthwash and antifreeze.  Alcoholism was but one of the many problems they had.

I couldn’t hear the stories of people whose lives were broken from the start and not understand how, in their mind, alcohol served as a temporary fix to make their tormenting thoughts go away.  When asking myself if I would’ve been any different had I lived their life, I’d often think of Robert Kennedy’s words after seeing in person the miserable working conditions of Chilean miners, “[i]f I worked in this mine, I’d be a Communist too.”

My pleas to them that they stop drinking were usually met with silence or, “I’ll try to but it ain’t easy man.”  As if these people would listen to some newbie lawyer who barely knew where the courthouse washrooms were.  Like they didn’t already know the destruction that alcohol addiction had visited upon their lives. I’m not ashamed to admit that back then there were many clients whose lives were so bleak that I wondered if I had the right mental make up to help these people.  The most difficult moments for me was meeting men in lockup and finding out that we were the same age. I had the university degrees and they had barely finished grade 8. I had a supportive family and they had no clue if their parents were alive or dead. With a couple twists of fate I could’ve easily been in their place.  To say we were flip sides of the same coin would be to stretch that expression to the point of meaninglessness.

It didn’t take long for me to become frustrated and angry at a legal system that continuously placed abstain from alcohol clauses on their bail conditions. I knew that for these hard-core alcoholics abstaining from alcohol was pretty much impossible. It’s not that they didn’t want to quit but they knew that they would slip up and drink, as soon as day followed night.

I’d talk to more senior criminal defence lawyers and they’d hear my frustration with this system, which set people up to breach. They’d patiently listen to me. They appreciated that these frustrations were a rite of passage for many new criminal defence lawyers. They understood how feeling powerless and angry took a toll on new lawyers. They’d tell me to ask the judge not to impose an abstain condition because it was unfair and unjust to ask a chronic alcoholic – a person with an illness – to stop drinking or they’d be charged. They said that was a standard part of their bail submissions and had been so for many years. I felt liberated. It was like they’d told me about the secret passageway behind the bookcase.

At the next bail hearing I had where this issue came up I asked the judge not to impose the abstain condition because of my client’s chronic alcoholism. I said there was no reasonable prospect of my client complying with that order. “Your Honour” I said, “we’re just setting him up to breach.” The judge simply stared at me and with a slightly annoyed tone said that in this jurisdiction abstain conditions were standard on bails. He then gave me a short lecture about the sanctity of court orders and respect for the law. My client was released and a couple of weeks later he was arrested for failing to comply with his bail condition by drinking alcohol.

I remember telling my boss, a wily seasoned criminal lawyer, that I asked the judge not to impose the prohibition order on my client’s bail but was denied in my request. He just looked at me Mr. Miyagi style and basically said, “tough break kid but that doesn’t mean you stop asking for this condition not to be included. Don’t give up.  Keep fighting.”

Over a decade later I came across this article about a judge in Alberta who has seen the futility and injustice of abstain from alcohol conditions for chronic alcoholics. Judge Rosborough has all the qualifications for this apparent Nixon to China moment.  As a Chief Crown prosecutor Rosborough we’re told, he was never accused of “being soft on crime” and he was a “no-nonsense”. 

I don’t mean to be churlish or to rain on the man’s parade but criminal defence lawyers have been saying this for years and have been pretty much ignored. I guess because we represent criminals we lack the credibility that people like Rosborough have. We’re just apologists for lawlessnes, while he wears the red sash with all it’s inherent learned righteousness, right?

Welcome to the party Judge Rosborough. Pull up a chair and listen to some of the other radical things criminal defence lawyers have to say. 

Memo to Police: No Beatings Allowed

Interrogations series.

Canadian photographer Donald Weber took the photo above. He befriended Russian and Ukrainian police officers and in earning their trust they allowed him to photograph their interrogations. Detainees had guns pointed at their heads.  Weber said, “[t]his is standard practice, it is what it is. It’s the utter terror of a wayward bureaucracy.” Scrolling through the pictures the terror on the detainees’ faces is hard to ignore. This is the ordinary manifestation of the awesome power of the State – one small room with nowhere to go, just you and an armed police officer.

It may comfort some that these types of interrogations take place in far away lands and not in mature democracies like ours with a Charter of Rights and Freedoms. After all, we’re a constitutional democracy; a nation of laws, not of people and where we have a professional police and not rogue cops. Right?

And so, in the year 2013, it hits us like a bolt of lightening when the Ontario Court of Appeal releases a decision that begin like this:

Canadian society cannot tolerate – and the courts cannot permit – police officers to beat suspects in order to obtain confessions.  Yet, sadly, that is precisely what happened in this case.  One of the two police officers who participated in the beatings apparently thought, as he said, that “it’s part of [his] job” to do so.

It is not.

This decision will not change any opinions about the wrongness of beating a person to obtain a confession. It will however make people wonder why we still have police officers who believe that laying a beating on another human being is part of their job. Here’s what Detective Constable Jamie Clark, Detective Steve Watts and Detective Donald Belanger did to Neil Singh and Randy Maharaj, which Justice Blair reminds us wasn’t “contradicted or contested by the Crown.”:

Maharaj suffered serious injuries, including a fractured rib;

[Singh was]beaten on three separate occasions over an extended period of time;

D.C Clark … struck [Singh] on the back of the head five or six times and kneed him in the ribs once or twice;

During [the] attack Singh was pinned against the wall of the interrogation room;

D.C. Clark grabbed the appellant’s neck, squeezing his throat and slam[ed] his head against the wall…. The squeezing was forceful enough that the appellant was unable to breathe and felt that he was about to black out;

D.C. Clark hit [Neil] forcefully on the back with his fist several times;

D.C. Clark then began to administer another prolonged beating, hitting [Neil] forcefully on the back of the head and on his back many times – sometimes with an open fist, sometimes with a closed fist.  He testified he was in such pain at the time that he felt he could not go on and began to beg the officers just to kill him;

D.C. Clark reacted violently again.  He grabbed Maharaj, pulled him out of his chair, and dragged him into an adjoining room – undoubtedly one without a video camera – where he pushed Maharaj to the ground, fell on top of him, and began punching him in the ribs for an extended period of time.  At the same time, Detective Belanger attempted to grab hold of Maharaj’s leg and step on his testicles.  D.C. Clark added an oral element to the intimidation and assault: he said, “[O]h, you don’t want to make a statement? You don’t want to make a statement? You’re going to make a statement.  We’ll make sure you make a statement … I hope you’re tougher than your buddy.”  As the trial judge noted, Maharaj screamed loudly enough that someone opened the door, and the beating stopped.

Read that litany of horrors and think for a moment how these three officers who’ve sworn to serve and protect will set back the image of police for some time to come.

This thug behaviour masquerading as policing should make citizens question whether this is standard operating procedure for the Toronto Police Service or is it the exception. Are we supposed to believe that these three detectives just decide that day that they were going to beat a confession out of a detainee? Consider this: if it was the first time for this crew to lay a beating during an interrogation how unfortunate it was for them that the case went all the way to the Ontario Court of Appeal only to be publically rebuked for their conduct.

For almost a decade the law and order crowd have controlled the criminal justice agenda in this country. They’ve been screaming that people are getting off on technicalities, that the accused have all the protections and that police don’t have the tools they need to get the bad guys. I’d like to think that Justice Blair started off the way he did in an attempt to swing the pendulum back; to remind police and society that beating confessions out of people is wrong and to remind citizens that not everything will fly in our zeal to catch the bad guys. We as a society have established bright red lines on police conduct. Step over those lines and there will be real consequences.

We as a society have decided that torture is illegal.  If courts don’t throw out cases like this, police will continue to use this method over and over. It’s not like we’ve just discovered that beating a human being to extract a statement is wrong. This principle is well established.

Yesterday the Court of Appeal said police who are indifferent to a detainee’s rights and who use police state tactics will not be rewarded with convictions. A shame that police need to be reminded of this.

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The Victim Surcharge does not Rehabilitate

Does Canada’s Minister of Justice Peter MacKay know the difference between a restitution order and the victim surcharge?

Peter MacKay was asked for his thoughts on an Ottawa judge who ruled that the new mandatory victim surcharge was unconstitutional.  MacKay was quoted as saying:

I say follow the letter of the law and review it later if it is discovered that there isn’t the ability to make payment. I don’t think that at the time of the offence, malady that is the best assessment that can be made of the offender’s ability to make restitution.

Does the minister know that an offender’s ability to make restitution is discretionary (“the offender may … make restitution to another person”)? Does he know that the victim surcharge found at s. 737 of the Criminal Code is mandatory (“the offender … shall pay a victim surcharge”)?

The victim surcharge is a crime tax. It is mandatory and an offender’s ability to pay is irrelevant. When the minister says that “if it is discovered that there isn’t ability to make payment” and it can be “review[ed] … later” that is a nonsensical statement. The section is clear: an inability to pay doesn’t matter. The offender has no recourse other than presumably asking the court for more time to pay – like say another 10, cialis 20, look or 30 years — which is the amount of time to pay that some judges have been giving to offenders to begin with.

The other problem is the minister’s use of the term “rehabilitation”.  If a person breaks their neighbour’s window, for example, and the owner spends $100 to replace that window and the offender pays that $100 he would have made restitution but would still be required to pay a $100 victim surcharge.  So what does the minister mean by saying that the victim surcharge is part of his rehabilitation? There’s no evidence that the surcharge will have any rehabilitative effect whatsoever. This is about pure punishment and extracting money from an offender.

Also odd was MacKay’s claim that “we should err on the side of giving offenders the opportunity to make that payment. For some offenders, this is their preference as well. They actually want to make some form of restitution and compensation. It’s part of their rehabilitation.”

So a person who’s been convicted and sentenced; who spends time in a cage; who’s then released and supervised by a probation officer; who must live forever with a criminal record; who lives with the shame/guilt/remorse of their crime; who’s employment opportunities become limited; who may not be able to travel to other countries and who had to dip into his savings or borrow money to hire a lawyer will not fully understand what rehabilitation means unless they’re able pay a $100 tax? Minister you cannot be serious.

But this is just more of the same from a government that doesn’t really care about the practical ramifications of their dumb-on-crime agenda. This victim surcharge has nothing to do with rehabilitation. It has everything to do with punishment and taxing crime.

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It’s the Punishment Stupid

Yesterday Justice Minister Peter MacKay and Veterans Affairs Minister Julian Fantino admonished Liberal Leader Justin Trudeau for not supporting mandatory minimum sentences. “Shameful” MacKay thundered. A recipe for decreasing community safety chimed in Fantino. All in a day’s work for this crime fighting duo.


The Harper government would have you believe that Trudeau and the courts coddle criminals. Joining them are liberals, socialists and criminal defence lawyers who are soft on crime and don’t know what it takes to keep our streets safe. These groups wrap themselves in fancy legal technicalities and are just a bunch of bleeding hearts that worship at the altar of Charter rights.

More troubling though is this government’s fundamental belief that anyone convicted of a crime should be punished as harshly as possible, no matter what the circumstances of the offender or the offence.  Consider this: Over the past twenty years Canada’s crime rate has fallen. So what is the reason for enacting legislation to impose mandatory victim fine surcharges on penniless homeless people?

When you see the Charter of Rights as an annoyance; when you imply that people who are found not guilty are just gaming the system; when you say that if you don’t agree that people who commit crimes should serve mandatory minimum sentences that you’re a hug-a-thugger than you really have no interest in establishing an evidence based criminal justice system and all you care about is punishment  – the harsher the better.

Characterizing the criminal justice system as going easy on criminals is wrong. To suggest that being sentenced is an inconvenience to your life and will have no lasting impact is ludicrous. Why doesn’t the justice minister ask the many wrongfully convicted people in Canada who were locked up in cages how easy their experience was?

This government has no time for the courts and those who differ with their approach to criminal justice. Sadly, it’s difficult to conceive of a member of the Harper government proposing anything like a Bill of Rights that former criminal defence lawyer turned Conservative Prime Minister John Diefenbaker did in 1960. Times sure have changed.


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The Unbearable Lightness of Rob Ford

Rob Ford Cracked Magazine

When fire breathing tough-on-crimers like Toronto’s Mayor Rob Ford start speaking the language of compassion, understanding and “the past is in the past” and hoping that “nobody has to go through what I have gone through” we continue to see how the war on drugs is a sham. Rob Ford was using the words of compassion and understanding yesterday but his actions are cloaked in the narcissist’s belief that his needs and desires are more important than everyone else’s.

Rob Ford, who since this entire sorry crack video scandal erupted earlier this year, has called the media liars and questioned the motives of the police, the left, and basically anyone who isn’t a citizen of Ford Nation. That fact that Rob Ford has bathed himself in lies yet sees no hilarity in his declaration, “that he’s got nothing left to hide” is surely some freakish hard-core manifestation of narcissism.

Rob Ford claims that he’s changed. He wishes this experience on no one. Does this mean he will stop with his “hug-a-thug” rhetoric and stop spewing his tough on crime nonsense? But seriously, who (other than his loyal brother Doug) would believe anything that comes out of his mouth?

As a leader of the tough-on-crime crowd, Rob Ford bought into the “cede no quarter” philosophy regarding drug users and drug dealers. “Hug-a-thug” is their knee-jerk response line to any measure, law, attitude or philosophy that doesn’t advocate coming down hard on drug use and giving the police all the necessary tools to fight the bad guys, Charter rights be damned. Mandatory minimum sentences are a must. Don’t do the crime if you can’t do the time. Short sharp sentences for first offenders and longer more severe penalties for repeat offenders. Oh and don’t forget deterrence. The tough–on-crimers must be gnashing their teeth today now that one of their own has just told the world that if you just promise you won’t break the law again that you’ve sufficiently deterred yourself. Deterrence indeed! This reminds me of the parole board scene from Raizing Arizona:

Parole Board chairman: They’ve got a name for people like you H.I. That name is called “recidivism.”

Parole Board member: Repeat offender!

Parole Board chairman: Not a pretty name, is it H.I.?

H.I.: No, sir. That’s one bonehead name, but that ain’t me any more.

Parole Board chairman: You’re not just telling us what we want to hear?

H.I.: No, sir, no way.

Parole Board member: ‘Cause we just want to hear the truth.

H.I.: Well, then I guess I am telling you what you want to hear.

Parole Board chairman: Boy, didn’t we just tell you not to do that?

H.I.: Yes, sir.

Parole Board chairman: Okay, then.

Torontonians now have the comical situation of the mayor calling for the firing of a city employee who was “sleeping” on the job even as he’s saying he gets to keep his job despite using crack cocaine while collecting his city of Toronto paycheque. Rob Ford has decided that he gets to keep the job he loves and if any of Toronto’s the citizens have a problem with that well, too bad. See how that works? Of course you do.

But let’s consider other people who get caught up in the war on drugs. Think of the police raids that net found-ins, people who happened to be at a location where drugs were located. They get charged, get to do perp walks and spend the night in jail. They have to hire lawyers for bail hearings and then get placed on ridiculously stringent bail conditions that would preclude them from keeping their job as, oh I don’t know mayor of Toronto and who would certainly be prohibited from shifting their boozing ways to their basement. These raids are usually followed by press conferences and speeches from the leaders of the tough-on-crime crowd righteously talking about birds of a feather flocking together and other nuggets like, “why else would a person be at drug house unless he’s a dealer or a user?” Think of the sermons about how if you want to understand the real man look at the company he keeps. Think of snappy comebackers like, “if you’ve got nothing to hide then why wouldn’t you talk to the police?”

But Rob Ford’s lucky. He’s lucky he wasn’t arrested during a raid at that crack house. He’s lucky he didn’t have to spend the night in jail. He’s lucky he dodged the draconian house arrest conditions increasingly found on drug bails. He’s lucky he gets to make his case for understanding and compassion while alluding to the frailties of the human condition in the court of public opinion rather than to his prison cellmates. He’s lucky that he and his city councilor brother can malign the motives of Toronto Police Service Chief Bill Blair to a throng of reporters and have the police chief immediately respond rather than going through the “formal police complaints process.”

But the question is, do Torontonians deserve a mayor who by day lectures them that drug dealers and gangsters are ruining the city’s neighbourhoods and by night slinks around those same neighbourhoods looking for his next hit?

But he’s no different from the other members of the tough-on-crime crowd who all have their come to Jesus moments. Who, after years of preaching no compromise are the first to demand it.

So good for Rob Ford who said that, in admitting his crack use, he threw a thousand pound weight off his back. He said he feels a lot better. Too bad he didn’t care where that weight landed.

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Don’t Ever Think You’re Not Big Enough

Clients often ask me, “Why do they want to go after me?” They can’t understand why the spotlight is on them. Their charges are small potatoes compared to the real crimes that take place in the country. “Why don’t they go after the real criminal, big guys, the drug lords and the murderers?” they ask me. “Why are they picking on me”?

I tell them the prosecutor may conclude that prosecuting them isn’t in the public interest, but don’t count on it. Hoping the prosecutor will just not care enough isn’t a legal strategy. They have to be prepared to go to trial. Once the prosecution has you in their sights, they’re unlikely to just turn around and say never mind.

So we shouldn’t be surprised that 89-year-old Audrey Tobias didn’t escape prosecution that was righty described as “ham-fisted [and] mean spirited” by Justice Khawley in his reasons for acquittal yesterday.


This is a woman who, “was a model citizen, had served with the Women’s Naval Service in World War II” refused to participate in the census because Lockheed Martin provided the software used to compile the census data. Horrors! Even writing those words leaves me wondering, “Who cares?”

Well Statistics Canada and the Public Prosecution Service of Canada cared enough to prosecute an 89-year-old war veteran. Why? Because laws are laws right? I mean if we don’t follow the laws around the census, we’re just one step away from anarchy. People will thumb their noses at census takers and walk on grass where signs marked “DO NOT WALK ON GRASS” are posted.

One phrase you’ll often hear in Canadian courtrooms is does this “bring the administration of justice into disrepute.” Our justice system is rightly concerned that the matters and people we prosecute should not offend our sense of justice and fair play. If you sat down and thought up a scenario that would lead Canadians to conclude that our justice system can be a capricious joke you couldn’t come up with a better checklist of essential ingredients:

  • World War II veteran
  • Quiet octogenarian
  • Refuses to participate in census
  • Model citizen
  • Willingness to go to jail

What more is necessary to bring the administration of justice into disrepute than spending precious public dollars on prosecuting an 89-year-old war veteran for refusing to fill out her census form?

Criminal lawyers will often tell each other to pick the hill you want to die on.  You can look at a file and identify a hundred issues but time, money, strategy and legal judgment demand that you narrow things down. Don’t go to trial arguing every little thing when you can focus on the few big things, which will benefit your client.  Similarly in Ms. Tobias’ case the prosecution may have been right at law but it picked they wrong hill to die on. And for that they have only themselves to blame. It will be this trial that people will refer to when discussing how unfair our justice system can be.

So the next time you think the State won’t care about your little itty bitty legal transgressions; that you’re a small fish; that your case doesn’t amount to a hill of beans; that you just had a little bit of weed; that you blew over just a little bit; that you only hit him once; that the copper set you up; that you’re a good guy; that you’ve never been in trouble with the law; that you swear this will never happen again and that if I just tell the prosecutor all this she’ll realize what a mistake she’s making prosecuting you just think of 89-year-old, WW II veteran Audrey Tobias and what they did to her.

Ain’t Nothing like Bail

Much like bacon everything is better with bail. While out on bail, the food tastes better and the flowers smell sweeter. Bail is a game changer. It is the physical manifestation of the presumption of innocence. You get to work, see your kids and sleep in your own bed. No waiting around in a holding tank while at court hoping that you get a granola bar to supplement that cheese sandwich for lunch.

Telling a person locked up in a detention facility who’s wearing an orange jumpsuit, crowded in a tiny cell with two other people that he’s presumed innocent are hollow words indeed.

You won’t feel like you’re presumed innocent when the main decision of your day is whether or not you sleep with your head beside the toilet or beside the feet of your cell-mate who’s got a case of the jimmy legs.

No wonder then that Toronto Const. James Forcillo who was charged with second degree murder would make sure that whatever time he spent behind bars would be brief. After all he was a jail guard before becoming a police officer so he knew what sweet hell awaited him if he didn’t quickly get bail. If there’s a world record for shortest time waiting for bail while charged with second degree murder I’m certain that his case would be in the running.

That Mr. Forcillo “was not having fun” during this ordeal and that “he and his family’s lives will never be the same” are things that are said about most everyone charged with any criminal offence. Walk into any bail court and you’ll hear defence lawyers saying the exact same things about their own innocently presumed clients – that is of course once he or she is able to get the prosecutor to listen to what they’re saying because the Crown’s brief has already been marked “not releasable.”

Somebody once asked me if I could wave a magic wand over the criminal justice system and make one change what would it be, I answered, “that everybody give a shit.” In Const. Forcillo’s case you had a whole lot people giving a shit – and that’s as it should be. He was treated humanely and respectfully. All defence lawyers wish they could make the spinning wheels of justice come to a screeching halt so that everybody – prosecutors, judges, court staff and jail guards — could just see what a good guy their own client is, just like it did for this police officer.

In Const. Forcillo’s case, the prosecutor appears to have dispensed with the usual yawns, eyeball rolling, and exasperated sighs that often greet defence lawyers in bail court. That’s nice. From now on in bail court, defence counsel should bring the front page of today’s newspaper, show it to the prosecutor and much like that scene in “When Harry met Sally” just say, “I’ll have what’s he’s having.”

Rights? We’re Talking about Drunk Driving Dammit!

An amazing thing occurred in the House of Commons during Question Period yesterday.  Thomas Mulcair the NDP Leader of the Opposition asked the Prime Minister why hasn’t the government amended the Criminal Code to allow “random breath testing” of drivers.  Mr. Mulcair, anxious to show that he and his party have the right stuff to govern, was trying to out-tough-on-crime the Harper government, if that’s even possible.

For those who don’t know, random breath testing would allow police to stop you when you’re driving and demand a sample of your breath to check for the presence of alcohol without requiring reasonable and probable grounds to do so.  Any time they feel like it, the police can ask for a sample of your breath.  I would expect this sort of damn you and your rights attitude from the Harper government but the NDP has clearly crossed a line here.  The party of Tommy Douglas and Ed Broadbent — both advocates of civil liberties and limits on police power — has now become the “us too” party when it comes to being tough on crime.

Interesting how Thomas Mulcair began his question with the statistic that “every year more than 1,250 Canadians die as a result of drunk driving” and therefore we need to do everything necessary including curtailing fundamental Charter rights to “prevent hundred of deaths from drunk driving.” That approach is right out of the tough on crime playbook. Identify a problem (whether real or imagined) and then fix it by thumbing your nose at those pesky Charter rights.  We all remember Vic Toews telling those who opposed the government’s attempt to snoop on our computers that, you either “stand with us or with the child pornographers.”

Mr. Mulcair should read Justice LeBel’s dissent in R. v. Orbanski [2005] 2 S.C.R. 3 who wrote that fundamental rights apply to everyone, including people accused of drunk driving.

 [71] There is no doubt that drunk driving is an evil and a serious danger.  Nevertheless, it is not the only such problem that the criminal law and the criminal justice system must address.  A criminal code does not address the most savoury aspects of human life, nor does it usually deal with paragons of virtue.  The criminal law is concerned with child molesters, killers, small- and big-time thieves, drug traffickers, arsonists, terrorists or gangs, drunk drivers and more.  Its purpose is to deter and, where deterrence fails, to punish the guilty.  Unfortunately, on occasion, its net catches an innocent suspect or accused, as courts have had to acknowledge from time to time.  Thus, the criminal law and now the Charter have given rise to principles, rules and processes, which normally govern the operation of the criminal justice system regardless of who the accused is or what charges he is facing.  State action is constrained.  Law enforcement moves less smoothly and efficiently in the views of some.  At least, after a few centuries, the path of the criminal law no longer leads from the gloom and filth of Newgate to a dance in the sky at Tyburn after a brief encounter with a hanging judge. As things stand, the criminal process, even in respect of drunk drivers, is governed by principles of fundamental justice that are set out clearly in the Charter.

So if you’re keeping score at home, Canada’s Leader of the Opposition has accused the Harper Government of not moving fast enough to curtail the fundamental liberties of Canadians.  Isn’t it nice to see the government and the opposition getting along?

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