Wednesday, October 22, 2014

Police falsehood may lead to witness exclusion

  1. For a statement by an accused to a person in authority to be admissible the statement must be voluntary. What if the police mislead an accused?  That may eliminate voluntariness. R v Arnakalla 2014 NUCJ 12:

    [11]  The police next show him a video of his common-law spouse, in which she begs him to tell the truth. The questions become much more pointed. His lack of memory is repeatedly challenged. All of this is within acceptable bounds, but the accused is obviously becoming frustrated and worn down by this process. He actually asks the investigator if they want him to lie, to pretend to remember what he does not. Eventually, he asks on a number of occasions, to be returned to his cell. At this point Constable MacDonald refuses to allow this. He tells the accused, in no uncertain terms, that the interview will end when the police decide it ends and that he is not free to leave the room. The following exchange is informative (Warned Statement of Ruben Arnakallak (November 25, 2011), at 95):

    ARNAKALLAK: I thought you said I can go to my cell anytime I want? MacDONALD: Yeah well, you're under arrest, so you have to listen to the police and I'm the police and right now, we're gonna talk about what happened between you and your brother.

    ARNAKKALAK: I should start lying(?).
    No, I don't want you to lie. I want you to tell the truth. ARNAKALLAK: I am telling the truth. I've been telling the truth.

  2. [12]  What follows in the Transcript of the Accused's statement, is 88 pages of highly suspect speculation by the Accused about what might have occurred. It adds nothing to the case against him, and any detail found in those pages which might found the basis for questions in cross-examination would have extremely limited weight. The fact that the police initially misled the accused about their willingness to allow him to return to his cell is an important factor in determining the impact that the subsequent change in tactic had on the ability of the accused to exercise his free will. The combination of the Accused's emotional state and this tactic, which would have left him with the understanding that the interview was going to continue until he told them what they wanted to hear, render any subsequent comments by the Accused involuntary and unreliable.

Monday, October 20, 2014

Mother and Cubs on Hudsons Bay

Three amigos

Private prosecution maybe stayed without review save for proved abuse of process

R. v. Olumide, 2014 ONCA 712:

[2]          Section 579 of the Criminal Code gives the Attorney General the authority to direct a stay of proceedings at any time.  The discretion to do so is reviewable only in the event of abuse of process.  There is a presumption of prosecutorial good faith: see Krieger v. Law Society (Alberta) 2002 SCC 65 and R. v. Nixon 2011 SCC 34.  The appellant has the onus of proving an abuse of process in the exercise of prosecutorial discretion.  

[3]          Mr. Olumide alleged that the Attorney General is in an inherent conflict of interest and this constitutes an abuse of process.  The motion judge found that there was no evidence of abuse of process.  Absent proof of an abuse, the discretion is not subject to review by the court: Campbell v. Ontario (A.G.) (1987), 35 C.C.C. (3d) 480 (Ont. C.A.), leave to appeal refused, [1987] S.C.C.A. No. 202. There is no evidence to point to an abuse of process.

Friday, October 17, 2014

Criminal wiretap evidence can be produceable in civil matters

Imperial Oilv. Jacques, 2014 SCC 66:

A party to a civil proceeding can request the disclosure of recordings of private communications intercepted by the state in the course of a criminal investigation

Wednesday, October 15, 2014

The Lonesome Death of Hattie Carroll

For people of a certain age and background Bob Dylan's early song "The Lonesome Death of Hattie Carroll" (1963) is life altering. 
It tells of a wealthy man who kills a servant and, through his power and wealth, escapes justice. The song tells a true story - or that's what I believed until quiet recently. 

The song shaped my thinking about power inequality and the law for as long as I can remember. 

The lyrics are:

"William Zanzinger killed poor Hattie Carroll
With a cane that he twirled around his diamond ring finger
At a Baltimore hotel society gath'rin'
And the cops were called in and his weapon took from him
As they rode him in custody down to the station
And booked William Zanzinger for first-degree murder
But you who philosophize disgrace and criticize all fears
Take the rag away from your face
Now ain't the time for your tears

William Zanzinger, who at twenty-four years
Owns a tobacco farm of six hundred acres
With rich wealthy parents who provide and protect him
And high office relations in the politics of Maryland
Reacted to his deed with a shrug of his shoulders
And swear words and sneering, and his tongue it was snarling
In a matter of minutes on bail was out walking
But you who philosophize disgrace and criticize all fears
Take the rag away from your face
Now ain't the time for your tears

Hattie Carroll was a maid of the kitchen
She was fifty-one years old and gave birth to ten children
Who carried the dishes and took out the garbage
And never sat once at the head of the table
And didn't even talk to the people at the table
Who just cleaned up all the food from the table
And emptied the ashtrays on a whole other level
Got killed by a blow, lay slain by a cane
That sailed through the air and came down through the room
Doomed and determined to destroy all the gentle
And she never done nothing to William Zanzinger
But you who philosophize disgrace and criticize all fears
Take the rag away from your face
Now ain't the time for your tears

In the courtroom of honor, the judge pounded his gavel
To show that all's equal and that the courts are on the level
And that the strings in the books ain't pulled and persuaded
And that even the nobles get properly handled
Once that the cops have chased after and caught 'em
And that the ladder of law has no top and no bottom
Stared at the person who killed for no reason
Who just happened to be feelin' that way without warnin'
And he spoke through his cloak, most deep and distinguished
And handed out strongly, for penalty and repentance
William Zanzinger with a six-month sentence
Oh, but you who philosophize disgrace and criticize all fears
Bury the rag deep in your face
For now's the time for your tears"

Now I happened to hear the song again recently while I was preparing for a homicide trial. 

And something struck me. William Zanzinger was charged with First Degree Murder - but he killed for no reason and without warning. 

That doesn't sound like First Degree Murder - it sounds like manslaughter. 

I was curious and dug deeper. 

In fact William Zantzinger (Dylan dropped the "t", perhaps to make the words scan better) was a dreadful man and a nasty racist. He did come to a fancy dress ball with a twenty five cent toy cane. He did push around staff and called them racial names. In short he was a very bad guy and the police took him away and charged him with assault and public intoxication - and rightly so. 

But oddly he was not charged at first with assaulting Hattie Carroll. And, again at first, she had no injuries but was deeply upset but being called dreadful names by William Zantzinger. The records are not clear but it is possible that she was not hit at all by Zantzinger - or she may have been. If she was assaulted she was hit on her shoulder. Either way she suffered no direct physical injuries. But she was almost immediately taken ill. Hattie Carroll told co-workers, "I feel deathly ill, that man has upset me so."

Hattie Carroll's arm became numb, her speech thick. She collapsed and was hospitalized. Carroll died eight hours later.  Her autopsy showed hardened arteries, an enlarged heart, and high blood pressure. She died of a brain hemorrhage probably caused by the stress of Zantzinger's verbal abuse.

There was a very real causation issue. 

What's more, the assault, if it happened, was not one that would have suggested death was a likely (or even plausible) result.  A conviction for manslaughter was far from a sure thing. 

But a conviction resulted. 

Manslaughter has a remarkable range for sentencing - everything from discharge to life imprisonment. The Zantzinger sentence was low - but not so low as to be an inconceivable result even today. My own sense is a court today would be more likely to give a three or four year sentence but with the right type of pre-sentence reports a lower sentence might follow. 

I should be clear that I am not acting as an apologist for William Zantzinger -- who died in 2009. He seems to have been a thoroughly dreadful person (at least in the early 60s). 

But the story is far more complex than I had known ,,,