A WEEK OF VIOLENCE IN AMERICAN SCHOOLS
(Not to suggest Canada is immune from gun violence -- far from it as residents of Montreal know all too well -- that said, it is hard not to be very troubled by gun crime especially as it seems, often, to be crime by mentally disordered individuals)
February 7: A woman teacher was shot and stabbed by her husband at a school in Ohio. The woman survived while the gunman later killed himself during a stand-off. (On the same day a man opened fire on a city council meeting in the St. Louis suburb of Kirkwood, killing five people before he was shot dead by police.)
February 8: A woman shot and killed two fellow students in a classroom before committing suicide at Louisiana Technical College in Baton Rouge
February 11: A 17-year-old is accused of shooting a classmate in the leg at a school cafeteria in Memphis, Tennessee. His victim survived.
February 12: A pupil at a school in Oxnard, California was shot in the head by a fellow student. The victim died of his injuries on Wednesday.
February 14: A gunman kills six and wounds 16 at Northern Illinois University.
James Morton
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Saturday, February 16, 2008
Judge denies CSIS bid to track terror suspects
Globe and Mail Update
February 15, 2008 at 11:21 PM EST
Attempts by Canada's spy agency to be granted warrants to carry out overseas electronic intercepts against 10 individuals, including Canadians, have failed.
In a Federal Court ruling made public late yesterday, the Canadian Security Intelligence Service was told that the court could not grant approval for the agency to use one of its most invasive spy techniques overseas.
Mr. Justice Edmond Blanchard of the Federal Court wrote: "I find that this court is without the jurisdiction to issue the warrant sought. Accordingly, the request is denied."
The 10 unnamed suspects - nine of whom are Canadians or immigrants to Canada - have been at the centre of a legal fight that was a closely guarded court secret.
Some details in the ruling are censored, such as whether the 10 people are alleged to work together.
CSIS officials have in recent years argued for greater autonomy in spying beyond Canada's borders.
CSIS is largely restricted to domestic operations, and its leaders say its hands are tied when suspects leave Canada.
Compounding the problem is the fact that Canada's wiretap agency, the Communications Security Establishment, was created to eavesdrop outside of Canada, but cannot listen in on citizens of Canada inside or outside of the country.
The spy agency says it will not appeal.
"Further to the dismissal by Federal Court of the warrant application, we have elected not to move forward with this particular initiative," CSIS spokeswoman Manon Brub said.
She added that the warrant application was for a very specific purpose. "The court ruling applies only to a warrant application of an intercept abroad. It was for a telecommunications intercept - no break-ins or anything like that."
Ms. Brub added that while Judge Blanchard raised questions about whether CSIS has the mandate to operate outside Canada, his decision was not binding. Other federal agencies, she said, have recognized the need for CSIS to work abroad.
She said today's "threat environment" has caused CSIS to re-examine its methods. "Those wishing to cause harm to Canada do not restrict their movements to Canada's borders," she said.
But targeting Canadians outside Canada raises questions such as whether such pursuits violate privacy provisions of the Charter of Rights and Freedoms, or run afoul of the Criminal Code of Canada.
The agency finds it is encountering problems never imagined when CSIS was created as a domestic spy agency during the 1980s.
Counterterrorism experts called the case that emerged yesterday remarkable on several levels.
"It's unusual for an intelligence service to signal it is planning to conduct an operation abroad," said Martin Rudner, who recently retired as a professor from Carleton University. "It's unprecedented in Canada that CSIS has sought a warrant through a court for operations abroad."
Last April, Judge Blanchard had approved warrants that allowed CSIS to eavesdrop and conduct searches against the 10 targets while they were in Canada. "All subjects of investigation, except for one, are Canadian citizens, permanent residents, or refugees," he wrote in the decision released yesterday.
Then CSIS asked permission to conduct operations against the same targets abroad.
The application was an attempt to provide its agents immunity from prosecution, with CSIS conceding that overseas wiretaps and other spying techniques could be viewed as crimes. Other countries' foreign intelligence agencies, such as the U.S. Central Intelligence Agency and Britain's MI6, engage in such activities routinely.
CSIS officials have told Parliament that up to 50 agents may be operating outside Canada. CSIS director Jim Judd said in an speech 18 months ago that he had sent agents into Lebanon, Iraq and Afghanistan.
Why remains unclear, but the work is limited. For example, CSIS was understood to have been part of a multi-agency 2005 hostage rescue operation in Iraq, and to have had a security screening role as hundreds of Lebanese Canadians fled to Canada after the 2006 Israeli invasion.
CSIS has also had an unspecified "support" role for Canadian soldiers in Afghanistan.
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Stay For Delay Not To Be Used To Punish Crown
Under s. 11(b) of the Charter criminal charges against individuals, no matter how serious, can be stayed if there has been an excessive delay between the charge and the trial. The basis for granting such a stay is set out in R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.); a careful balancing between the need to have cases disposed on their merits and the prejudice delay always causes to an accused is required.
The granting of a stay is intended to be a radical and "last step" measure. This is because the granting of a stay has many negative effects. Society has an interest in having criminal cases heard and decided; this is especially so for serious high profile crimes. Innocent accused have an interest in clearing their names at a trial. Victims of crime have a need to seek the closure only a substantive hearing can provide.
A stay is not to be granted so as to punish the Crown for administrative failings; the issue is too important to allow a stay for delay to be a case management tool.
This last point was made clear in this week's decision in R. v. Hussey, 2008 ONCA 86.
The accused was charged on September 2004 with sexual assault -- a very serious offence and the sort of offence that society has a very strong interest in resolving. He was committed for trial in the Superior Court in September 2005 after a preliminary inquiry. A trial date of March 13, 2006 was fixed in November 2005. The trial was scheduled for five days.
On the scheduled trial date, no trial court was available and the appellant's trial could not proceed. The trial was adjourned to November 20, 2006. Defence counsel did not oppose the adjournment. He did, however, make it clear that he was preserving his client's rights under s. 11(b) of the Charter. There is no indication as to whether either counsel requested an earlier date from the trial coordinator. The presiding judge did not comment on the length of the adjournment.
On November 20, 2006, the case came on for trial before the same judge who had adjourned it on March 13, 2006. That judge concluded that there had been a violation of s. 11(b) of the Charter and stayed the sexual assault charge.
In his reasons, the trial judge fixed almost exclusively on the adjournment in March 2006. That adjournment resulted in an eight month institutional delay. The trial judge stressed the failure to give this case any priority when the trial had to be rescheduled. He referred to the absence of any administrative scheme to prioritize cases that were not reached on the first trial date. The trial judge was also critical of the Crown and the administrative staff's failure to give effect to observations he had made in a case several years earlier. That case addressed delay occasioned by the need to reschedule a trial.
While important the trial judge's comments did not address the real issues for a stay. The Court of Appeal said:
[6] Reading the reasons as a whole, we are satisfied that the trial judge effectively granted a stay because he was not satisfied with the Crown's approach to the adjournment request in March 2006. In doing so, the trial judge failed to give any weight to considerations that are important in the s. 11(b) analysis. These are first, the societal interest in a trial on the merits. That interest is particularly significant where, as here, an accused is charged with a very serious offence. Second, the trial judge failed to consider the absence of any prejudice caused by the delay to the respondent's fair trial right and the minimal prejudice caused to his liberty interest by the terms of his bail.
[7] As the trial judge failed to conduct the Morin analysis, we do so and conclude as follows:
• the total passage of time from the laying of the charge to the trial date, twenty-six months, is sufficiently long to trigger a consideration of all of the s. 11(b) factors;
• institutional delay accounts for about five and a half months in the Ontario Court of Justice and about twelve months in the Superior Court for a total of just under eighteen months of institutional delay; and
• the other delays are delays inherent in the case (e.g. intake periods) and one adjournment of some two months during the preliminary inquiry that was mutually agreed on by counsel. These delays in total account for eight months.
[8] Having regard to the administrative guidelines outlined in Morin for institutional delay, this case is on the borderline of unreasonable delay. Where cases are approaching or are at the unreasonable delay limit, it is important that trial judges balance the factors that the trial judge ignored in this case.
[9] The allegation was a very serious one and the public had a keen interest in a trial on the merits. This public interest should have been explicitly taken into account by the trial judge.
[10] While the accused suffered the same prejudice that all accused suffer when their case progresses slowly through the system, the appellant suffered no additional prejudice as a result of the delay.
[11] Having regard to the absence of any prejudice, beyond that experienced by all accused, and the important public interest in a trial on the merits, we hold that the delay in this case, while far from ideal, was not unconstitutional.
Friday, February 15, 2008
Grand Jury Sues DA in Texas
Members of a Texas grand jury that indicted a state Supreme Court justice filed a rare lawsuit this week asking to publicly speak about the secret evidence in the case, adding a new layer to a bizarre legal drama that has captivated Houston for more than a month.
The ongoing conflict between the handful of jurors and the elected district attorney, who has so far refused to prosecute the case against Supreme Court Justice David Medina, has all the trappings of pulp fiction: charges of political corruption; a "runaway" grand jury; and an embattled prosecutor accused of sending racist and sexist e-mails. Six of the grand jurors now want to discuss the evidence they heard during the grand jury proceedings, which are secret, so they can defend themselves against accusations that they were a "runaway grand jury." They also want to bring the evidence they heard to a new grand jury in the hopes of convincing it to indict Medina again, according to court papers filed this week.
The district attorney's office "was not cooperating as we were attempting to investigate the case," said Jeffrey Dorrell, the assistant foreman who filed the lawsuit on behalf of the other jurors. "They obviously acted to terminate our investigation in the womb." "This grand jury," he added, "has been subjected to more public abuse than any grand jury that I know of at least in the last 80 years."
Several criminal law experts said this appeared to be the first lawsuit filed by grand jurors against a prosecutor. "I'm not aware of anything like this ever happening," said George Dix, a University of Texas law professor who has written books about criminal procedure. The dispute began Jan. 17, when the grand jury indicted Francisca Medina for arson for allegedly burning down the home she owned with her husband, David Medina. David Medina was indicted for allegedly tampering with evidence in the case, a felony. The Medinas have denied the charges. Though the district attorney's office originally brought the case to the grand jury, within hours of the indictment District Attorney Chuck Rosenthal said the charges would be dismissed because of insufficient evidence.
Dorrell and grand jury foreman Robert Ryan came forward and said Rosenthal's office was hampering their investigation and suggested that the dismissals were politically motivated. Rosenthal and Medina are both Republicans. The lawsuit says Rosenthal's office had been uncooperative when jurors asked for information about the Medina case. Dorrell told ABC News that after jurors voted to indict Medina, they got into a heated argument with assistant District Attorney Vic Wisner. Wisner refused to file the indictment and stormed out, slamming the door behind him, Dorrell said. Wisner and Rosenthal did not return phone calls seeking comment. Both have publicly denied having any political motivations, and Wisner has said publicly several times that he is continuing to investigate the case.
Lori Shaw, a law professor at the University of Dayton, said the grand jurors may have had enough evidence to establish the probable cause needed to indict Medina. "But it's a big jump from probable cause to proof beyond a reasonable doubt," she said. "The prosecutor is saying we don't have enough to win. If you're going to trial, you want to win."
Grand juries determine whether there is probable cause to charge someone with a crime. Though grand juries usually work closely with prosecutors, in Texas the ultimate decision whether to indict is made by the jurors, not the district attorney. The day after Dorrell and Ryan's accusations, the Medinas' attorneys asked a judge to hold them in contempt of court for revealing grand jury proceedings.
The two were criticized by Medinas' lawyers for "making a mockery of the grand jury system" and of being "a runaway grand jury in a Lamborghini," according to the lawsuit. "I've never seen a grand jury that has attempted to take the law into their own hands and be so persistent about trying to go outside the law," Terry Yates, Medina's lawyer, told ABC News. "It's really remarkable, and it makes you question the motives of these people."
A judge refused to hold Dorrell and Ryan in contempt, and the jurors tried to continue the Medina investigation. Before they could, Judge Jim Wallace dismissed the grand jury, finding that it had been improperly impaneled because of a technical error by the district attorney's office.
But Wallace criticized Rosenthal's decision to dismiss the indictment, saying that prosecutors often continue to investigate cases after defendants have been indicted. "Why it was that this case has any special need to be dismissed is beyond me," he told ABC News.
The grand jury investigation is not the only problem facing Rosenthal. He recently ended his re-election bid after e-mails reportedly containing racist and sexist comments and love notes between Rosenthal and his secretary were published in the local press. Rosenthal faces a hearing on potential contempt charges for deleting some of his e-mails that were subpoenaed during a civil rights lawsuit.
Wallace and others were skeptical that Dorrell and the other jurors would prevail in their lawsuit. Grand jury investigations are kept secret in order to protect the reputations of people who may be targets of a criminal investigation that never leads to formal charges. Secrecy is also thought to encourage witnesses to testify honestly. "The whole purpose of the grand jury is for people to come forward knowing there won't be repercussions," Wallace said. "Otherwise it jeopardizes the entire process if people are worried that what they say might get out." The jurors "want to tell their side, but that shouldn't make any difference," he said. "They should abide by their obligation to maintain confidentiality even if it means they, in their eyes, look like they're at fault."
James Morton
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US State Secrets Decision
Court Grants Impunity To Covert Operations
The United States District Court for the Northern District of California held this week in the case of Mohamed v. Jeppesen Dataplan, Inc. that the state secrets doctrine bars all suits against anyone involving "allegations of covert U.S. military or CIA operations in foreign countries against foreign nationals" which the government has not admitted.
The case in question involved a private company involved in allegedly illegal rendition flights that were part of a larger CIA operation to interrogate terrorism suspects, in this case, foreign nationals.
Nationality is irrelevant, however, to the application of the state secrets doctrine. It prevents American citizens from suing anyone for conduct in connection with covert operations as well, and indeed was created in a case brought by United States soldiers whose integrity, or citizenship, was never questioned.
The result is consistent with other cases in which have asserted the state secrets privilege, such as the extraordinary rendition case of El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007). But the decision is remarkable mostly because it acknowledges a point that earlier cases addressing the states secrets privilege have not.
The Northern District of California makes clear that the state secrets privilege amounts to absolute immunity for every private and public party involved in a genuinely covert action. This contrasts strongly with the original context in which the state secrets privilege was created in the U.S. Supreme Court case of United States v. Reynolds, 345 U.S. 1 (1953)), where the privilege was used to prevent the people bringing the suit from obtaining key documents necessary to prove the case from the government itself, but not to prevent the suit itself from being brought based upon competent evidence such as their own testimony.
Unlike the much older court created doctrine established by the U.S. Supreme Court in Totten v. United States, 92 U.S. 105 (1876) (applied recently in the case of Tenet v. Doe, 544 U.S. 1 (2005)), that bars secret agents from bringing suit against the government for failure to fulfill its obligations to compensate those agents, the state secrets doctrine applies to people who did not consent in any way to entering into a situation where they would have no legal remedies.
Under the judicially created legal doctrine of "qualified immunity" for government employees and agents who have allegedly violated constitutional rights that were not clearly established at the time of the violation, the court must as part of a two step process established by the U.S. Supreme Court in Saucier v. Katz, 121 S. Ct. 2151 (2001), first rule on the question of whether an alleged act was unconstitutional or not, setting a precedent for future cases, before dismissing a claim for money damages. In a state secrets case, in contrast, the legality of the acts alleged is never resolved because the immunity blocks any consideration of the merits.
Curiously, if the plaintiff who complained of the acts of the private company working with the CIA in this case had collaborated with the intelligence service of any other government, the state secrets doctrine would not apply and the suit would probably have been allowed to go forward at this early stage of the lawsuit.
Civil Remedies Act
The interesting decision in Ontario (Attorney General) v. Nock, 2008 CanLII 4256 (ON S.C.) deals with an application by the Provincial Crown for a forfeiture of property under the Remedies for Organized Crime and Other Unlawful Activities Act, 2001 (The Civil Remedies Act). The Province sought the forfeiture of a house because the property was supposedly acquired, at least in part, as a result of unlawful activity -- a marijuana grow operation.
The entire decision is worth a close review by counsel involved in a Civil Remedies Act claim -- the sense of the decision is that the Court will be slow to grant forfeiture except in the clearest of cases.
Specifically the decision contains interesting language about the need to scrutinize evidence of wrongful acts closely. Such language may be of use in other civil cases for wrongful acts:
"[35] It is worth noting at the outset that two of the purposes of the Act most relevant to these proceedings are to prevent persons who engage in unlawful activities from keeping property that was acquired as a result of those unlawful activities and to prevent property from being used to engage in unlawful activities. As already noted, the Crown's burden is on a balance of probabilities but there is considerable merit in the respondents' submission that the evidence should be scrutinized with care because of the serious nature of the allegations being made. There is support for this proposition in Continental Insurance Co. v. Dalton Cartage Co., 1982 CanLII 13 (S.C.C.), [1982] 1 S.C.R. 164 and Sopinka and Lederman, "The Law of Evidence in Canada" 3rd Edition, p. 158.
[36] Mr. Justice Rutherford set out this proposition in Sayeau v. Prudential of America, [2000] O.J. No. 4479 (Sup.Ct.) by noting that "I have tried, therefore, to weigh the evidence in this case in such a fashion as to judge whether the Defendant has proven fraud or arson by the Plaintiff to the standard described, namely, to a high probability, supported by clear and cogent evidence, and eliminating all reasonable probable innocent, fortuitous and accidental explanations for what happened that may be supported by the evidence."
[37] This is the approach that I have taken to the evidence in these proceedings. "
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Thursday, February 14, 2008
Drawing An Adverse Inference From Failure To Call Witness Limited By Court of Appeal
A popular trial technique is to assert that the failure to call a material witness, otherwise within the power of a party, ought to lead to an adverse inference that the evidence of that witness would be unhelpful for the party:
Specifically, an unfavourable inference can be drawn in circumstances where a party has failed to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not offer an explanation for the failure to do so. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it: Sopinka & Lederman, The Law of Evidence in
Although a popular technique, the argument that an adverse inference should be drawn has powerful limitations. The courts are alive to the fact there is no property in a witness and if someone should be called, usually, either party can call that witness: Vescio v. Garfield 2007 CarswellOnt 4243. The fact a witness may be hostile is no bar to calling that witness.
Additionally, yesterday’s decision by the Court of Appeal in 365 Bay New Holdings Limited v. McQuillan Life Insurance Agencies Limited, 2008 ONCA 100 placed another limit on the use of adverse inference. The Court reasoned that an adverse inference ought not to be taken where a documentary record belies that inference. Specifically, where the documents say one thing there is no obligation on a party to call a witness who will merely corroborate those documents.
The Court held:
[10] The trial judge bolstered his finding of an agreement by drawing an adverse inference against the tenant, who called no evidence on the issue. However, in our view, an adverse inference was not available on this record. The landlord’s claim of an agreement was undermined by the documentary record, which showed that there was no agreement. An adverse inference cannot add weight to evidence of a belief or understanding that is belied by the record on which it was said to be based.
Wednesday, February 13, 2008
Henry Winkler testifies in John Ritter wrongful death lawsuit
February 13, 2008 - 14:31
GLENDALE, Calif. - Actor Henry Winkler testified Wednesday in a lawsuit against two doctors over the death of actor John Ritter in 2003. Winkler first met Ritter in Ritter on the set of the show "8 Simple Rules . . . For Dating My Teenage Daughter." Pembroke, Ontario in the late 1970's where they played in several local off Broadway productions.
Winkler told Los Angeles County Superior Court jurors that he last saw
Winkler said that later that night he received a telephone call saying Ritter had died.
The sitcom star died of a torn aorta after going to a hospital where he was treated for a heart attack.
Ritter's family is suing a radiologist who had earlier given Ritter a body scan and the cardiologist who treated him at the hospital.
Ex Turpi Causa Non Oritur
On Friday the Supreme Court of
Mr. Zastowny was sexually assaulted by a guard while an inmate in correctional facility. After his release he committed further crimes and spent many years in prison. Mr. Zastowny sued
The British Columbia Court of Appeal, in a split decision, reduced the award of past loss of income for the "core" time that Zastowny was in prison because of his crimes, but upheld the loss of income for "extra" time that he served because of poor behaviour in jail. The Court of Appeal reduced the award for future loss of income because there was a high risk that Mr. Zastowny would reoffend and go back to jail.
The Supreme Court of Canada applied the ex turpi causa non oritur doctrine to set aside the past loss of income for all of the time that Mr. Zastowny was in jail. It also upheld the reduction in future income loss attributable to time that Mr. Zastowny would spend in jail. The Court said that with the exception of unusual circumstances like wrongful conviction, responsibility for a mens rea offence remained with the offender and that to allow recover of loss of income while a person was in jail for the commission of such a crime would create a conflict between the criminal and civil law. This result is very sensible because otherwise the very foundation of criminal law – that is that criminals are punished for the wrongs they do because they are responsible independent actors – would fail. How can we justify punishment (as opposed to, say, separation) if persons who commit crimes do so because of their history?
It may be that a sociological analysis of why people offend would focus on their history and background (and eliminate or reduce their personal responsibility), but such a change in the law would be a massive shift in the underlying concepts of the Common Law.
The Ex Turpi Causa Non Oritur Actio Doctrine
19 The ex turpi doctrine, as applied in tort, has not historically been well understood. In Hall v. Hebert, 1993 CanLII 141 (S.C.C.), [1993] 2 S.C.R. 159, McLachlin J. (as she then was) says that its application in tort, “in both
20 The question is, “under what circumstances should the immoral or criminal conduct of a plaintiff bar the plaintiff from recovering damages to which he or she would otherwise be entitled” (p. 169). The following principles and approach are established in Hall v. Hebert and are applicable in the present case.
1. Application of the ex turpi doctrine in the tort context invalidates otherwise valid and enforceable actions in tort (p. 169).
2. Therefore, its application must be based on a firm doctrinal foundation and be made subject to clear limits and should occur “in very limited circumstances” (p. 169).
3. The only justification for its application is the preservation of the integrity of the legal system. This concern is only in issue where a damage award in a civil suit would allow a person to profit from illegal or wrongful conduct or would permit evasion or rebate of a penalty prescribed by the criminal law (p. 169).
It would, in short, introduce an inconsistency in the law. It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which – contract, tort, the criminal law – must be in essential harmony. For the courts to punish conduct with one hand while rewarding it with the other, would be to “create an intolerable fissure in the law’s conceptually seamless web”: Weinrib, supra, at p. 42. We thus see that the concern, put at its most fundamental, is with the integrity of the legal system. [p. 176]
4. The ex turpi doctrine generally does not preclude an award of damages in tort because such awards tend to compensate the plaintiff rather than amount to “profit”:
Such damages accomplish nothing more than to put the plaintiff in the position he or she would have been in had the tort not occurred . . . . [A plaintiff should get] only the value of, or a substitute for, the injuries he or she has suffered by the fault of another. He or she gets nothing for or by reason of the fact he or she was engaged in illegal conduct. [pp. 176-77]
5. The ex turpi doctrine is a defence in a tort action. The plaintiff’s illegal conduct does not give rise to a judicial discretion to negate or refuse to consider the duty of care which goes to the relationship between a plaintiff and a defendant. It is independent of that relationship. The defendant may have caused harm by acting wrongly or negligently, but the “responsibility for this wrong is suspended only because concern for the integrity of the legal system trumps the concern that the defendant be responsible” (pp. 181-82).
6. Treating the ex turpi doctrine as a defence places the onus on the defendant to prove the illegal or immoral conduct that precludes the plaintiff’s action. And as a defence, it allows for segregation between claims for personal injury and claims that would constitute profit from illegal or immoral conduct or the evasion of or a rebate of a penalty provided by the criminal law.
21 In the case at bar, there is no challenge to the awards made for the personal injury suffered by Zastowny from the sexual assaults, namely the awards of general and aggravated damages and for future counselling. Nor is there a challenge to the award of past wage loss for the period when Zastowny was not incarcerated. The sole issue on the appeal is whether Zastowny is entitled to compensation for wage loss while he was incarcerated.
22 Zastowny’s wage loss while incarcerated is occasioned by the illegal acts for which he was convicted and sentenced to serve time. In my view, therefore, the ex turpi doctrine bars Zastowny from recovering damages for time spent in prison because such an award would introduce an inconsistency in the fabric of law. This is because such an award would be, as McLachlin J. described in Hall v. Hebert, at p. 178, “giving with one hand what it takes away with the other”. When a person receives a criminal sanction, he or she is subject to a criminal penalty as well as the civil consequences that are the natural result of the criminal sanction. The consequences of imprisonment include wage loss. As Deschamps J. found in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., 2003 SCC 68 (CanLII), [2003] 3 S.C.R. 228, 2003 SCC 68, at para. 33, “[e]very incarcerated offender must suffer the consequences that result from being imprisoned, namely loss of employment for unavailability.” An award of damages for wages lost while incarcerated would constitute a rebate of the natural consequence of the penalty provided by the criminal law.
23 Preserving the integrity of the justice system by preventing inconsistency in the law is a matter of judicial policy that underlies the ex turpi doctrine. “Judicial policy” was this Court’s justification for barring a similar claim for past wage loss due to incarceration in H.L. v.
24 This Court allowed the appeal to the extent of restoring the award for past wage loss while H.L. was at liberty, but excluding recovery for the periods of time he was incarcerated. Fish J. for the majority concluded that an award for wage loss due to incarceration was not only unsupported by the evidence, but was, in any event, contrary to judicial policy:
In calculating H.L.’s loss of past earnings, the trial judge did not reduce the damages awarded to reflect the time H.L. spent in prison. The Court of Appeal intervened in this respect — quite properly, in my view. As Cameron J.A. noted, to compensate an individual for loss of earnings arising from criminal conduct undermines the very purpose of our criminal justice system . . .; an award of this type, if available in any circumstances, must be justified by exceptional considerations of a compelling nature and supported by clear and cogent evidence of causation.
Thus, on any view of the matter, the trial judge’s finding that Mr. Starr’s sexual abuse of H.L. caused his loss of income due to imprisonment is both contrary to judicial policy and unsupported by the evidence. [Emphasis added; paras. 137 and 143.]
25 Bastarache J. dissented in H.L. but his views on the specific issue of awarding damages for wage loss for periods of incarceration were similar to those of
Fish J. In writing for himself and three other judges, he found that to compensate a plaintiff for lost wages due to incarceration would “undermine the principles of our criminal justice system” (para. 344). In concluding as much, Bastarache J. pointed to Samuels J.A.’s reasons in the Australian case State Rail Authority of New South Wales v. Wiegold (1991), 25 N.S.W.L.R. 500 (C.A.), at p. 514:
If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions, and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. If the law of negligence were to say, in effect, that the offender was not responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at nought. It would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute. [Emphasis added.]
26 H.L. is authority for the proposition that the judicial policy that underlies the ex turpi doctrine precludes evasion or a rebate of the consequences of the criminal penalty, both direct and indirect.
27 The ex turpi doctrine has been applied by the courts of the United Kingdom on a basis similar to that found appropriate in Hall v. Hebert and H.L. In Clunis v. Camden and Islington Health Authority, [1998] Q.B. 978 (C.A.), the plaintiff had been discharged from a hospital where he had been detained under the
[T]he plaintiff’s claim is essentially based on his illegal act of manslaughter; he must be taken to have known what he was doing and that it was wrong, notwithstanding that the degree of his culpability was reduced by reason of mental disorder. The court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the plaintiff’s own criminal act and we would therefore allow the appeal on this ground.
As pointed out by the United Kingdom Law Commission, Consultation Paper No. 160, The Illegality Defence in Tort (2001), at — 4.100:
Clunis v. Camden and Islington Health Authority . . . seems entirely justifiable if the rationale of consistency is accepted: it would be quite inconsistent to imprison or detain someone on the grounds that he was responsible for a serious offence and then to compensate him for the detention.
28 A similar conclusion was reached in Worrall v. British Railways Board, [1999] E.W.J. No. 2025 (QL) (
Having been convicted of those offences the plaintiff must be treated in this action as fully and personally responsible in law for his deliberate criminal acts and for the consequences of them, including financial loss resulting from the criminal conviction. It would be inconsistent with his criminal conviction to attribute to the negligent defendant in this action any legal responsibility for the financial consequences of crimes which he has been found guilty of having deliberately committed.
29 Cohen J. rejected the application of the ex turpi doctrine because he found that “compensation for lost wages . . . [was not] an evasion or ‘rebate’ of the plaintiff’s criminal punishment” (para. 245); that the criminal penalty was a term of confinement and he was not making an award to compensate for confinement. Although he had the benefit of the
30 The judicial policy that underlies the ex turpi doctrine precludes damages for wage loss due to time spent in incarceration because it introduces an inconsistency in the fabric of the law that compromises the integrity of the justice system. In asking for damages for wage loss for time spent in prison, Zastowny is asking to be indemnified for the consequences of the commission of illegal acts for which he was found criminally responsible. Zastowny was punished for his illegal acts on the basis that he possessed sufficient mens rea to be held criminally responsible for them. He is personally responsible for his criminal acts and the consequences that flow from them. He cannot attribute them to others and evade or seek rebate of those consequences. As noted by Samuels J.A. in State Rail, to grant a civil remedy for any time spent in prison suggests that criminally sanctioned conduct of an individual can be attributed elsewhere. E. K. Banakas discussed this issue in “Tort Damages and the Decline of Fault Liability: Plato Overruled, But Full Marks to Aristotle!”, [1985] Cambridge L.J. 195, at p. 197:
Although it is morally irrational to punish a person unable to account for his actions, it is even less rational to compensate such a person for his punishment following his unchallenged conviction for a mens rea offence; if the conviction stands, punishment is a lawful injury, if not, there should be no punishment at all and no injury of the kind compensated in this case. Tort law has enough on its plate without having to play criminal law’s conscience; besides, if lawful injury, inflicted by the courts themselves, starts being compensated in negligence, where will it all end? [Underlining added.]
Tuesday, February 12, 2008
Exclusion of Real Evidence: A Significant Court of Appeal Decision
This morning the Court of Appeal released its decision in R. v. Harrison, 2008 ONCA 85.
This is a significant case, with a strong dissent by Justice Cronk, dealing with the exclusion of evidence under s. 24(2) of the Charter. It is important for the exclusion of real evidence on the basis of improper search and seizure.
In the result the Court of Appeal decided not to exclude the admission of a significant quantity of cocaine even though the cocaine was discovered as a result of extremely serious breaches of the appellant's ss. 8 and 9 Charter rights. The Court so ruled even though the trial judge found that the police officer involved did not have reasonable grounds to stop and search the car and that he knew it. The trial judge described the officer's actions as flagrant. The trial judge did not accept the officer's evidence attempting to explain his actions.
Nevertheless, after a careful analysis, and with deference to the trial judge, the Court concluded the admission of the evidence was proper.
The Court notes:
[3] In deciding to admit the evidence, the trial judge considered the appropriate factors under s. 24(2) of the Charter. He decided that the seriousness of the breaches was not sufficient to warrant exclusion. He put it this way: "[the Charter breaches] pale in comparison to the criminality involved in the possession for the purpose of distribution of 77 pounds of cocaine …". In reaching this conclusion, the trial judge was very alive to the conduct of the police officer that gave rise to the breaches and to the problems with the police officer's testimony at trial. In the end, however, this experienced trial judge concluded that the harm to the reputation of the administration of justice from excluding the evidence would be greater than that from admitting it.
[4] The trial judge recognized that the breaches did not fall in the most egregious category. While the trial judge did not elaborate to any great extent, there are circumstances which attenuate the seriousness of the breaches which support his conclusion. For example, the officer's conduct was not shown to be systemic in nature, or the result of operational policies or guidelines, or even an order from a senior officer. The actions involved were those of one officer, who had been on the force for four years and who made some flawed decisions during the roadside encounter and later when testifying. And while some might describe the officer's breaches as "deliberate" (the trial judge did not use that word), that description tends to paint a picture of a more planned and premeditated course of action than the record reveals.
[5] In addition, the Charter breaches did not have a particularly serious effect on the appellant's Charter rights. The appellant was detained in the roadside stop for only a short period of time. As the trial judge pointed out, the officer did not use any force or physical restraint. The officer did not search the appellant's person, he only searched the car. The appellant did not own the car. It had been rented by the passenger. The appellant's privacy interest in the car was low.
[6] In our view, the trial judge's decision to admit the evidence was open to him. It was not unreasonable and reflects no error in principle. His decision deserves deference in this court. We do not suggest that this is an easy case – far from it. This is a close call and one on which reasonable people could disagree. But, in our view, that makes it precisely the type of case in which deference comes into play.
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Election fever needs a cold compress
Am I alone in thinking an election isn't necessary right now?
There seem to be three issues that are driving election talk: the crime legislation in the Senate, Afghanistan and the Budget.
The crime legislation is, in the main, good and that's why the Commons approved it quickly. The Senate will, no doubt, make a suggestion here and there but there seems no reason to believe it won't pass there in due course. Calling an election though risks having the reform lost entirely. Unless the Senate actually refuses the legislation or fails to move it ahead in the customary fashion there is no cause for an election here.
Afghanistan gives even less of a reason to go to the polls. The basic role of Canada is clear -- to support the Afghan people in building a stable and responsible government. That will involve both humanitarian aid and (sadly) military force. NATO allies must help, and Canada ought not shoulder the burden of military force without support, but the goals are clear and supported by Canadians generally. The only dispute is over the mechanism to achieve the goals but that will come. An election over mechanics makes no sense.
The Budget may be a cause for an election although the noises out of Ottawa do not suggest anything radical. In any event, while it makes political sense to prepare for an election on the basis the Budget may be unacceptable, it is appropriate to wait and see what the Budget says before rejecting it.
An election may be attractive to the Government now on the view that politically things will only get worse. Perhaps. But unless Parliament really ceases working it seems unfortunate to have an election merely for political advantage.
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There seem to be three issues that are driving election talk: the crime legislation in the Senate, Afghanistan and the Budget.
The crime legislation is, in the main, good and that's why the Commons approved it quickly. The Senate will, no doubt, make a suggestion here and there but there seems no reason to believe it won't pass there in due course. Calling an election though risks having the reform lost entirely. Unless the Senate actually refuses the legislation or fails to move it ahead in the customary fashion there is no cause for an election here.
Afghanistan gives even less of a reason to go to the polls. The basic role of Canada is clear -- to support the Afghan people in building a stable and responsible government. That will involve both humanitarian aid and (sadly) military force. NATO allies must help, and Canada ought not shoulder the burden of military force without support, but the goals are clear and supported by Canadians generally. The only dispute is over the mechanism to achieve the goals but that will come. An election over mechanics makes no sense.
The Budget may be a cause for an election although the noises out of Ottawa do not suggest anything radical. In any event, while it makes political sense to prepare for an election on the basis the Budget may be unacceptable, it is appropriate to wait and see what the Budget says before rejecting it.
An election may be attractive to the Government now on the view that politically things will only get worse. Perhaps. But unless Parliament really ceases working it seems unfortunate to have an election merely for political advantage.
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Charles Smith and Expert Testimony
How to get just the facts
If we are to avoid miscarriages of justice like those associated with forensic pathologist Charles Smith, we can't have expert witnesses testifying 'for the defence' or 'for the Crown'
| |
| James Morton |
| Ottawa Citizen Special |
February, 2008
Expert witnesses seem a lot less expert these days. Last week we were reminded daily of the miscarriages of justice caused by forensic pathologist Charles Smith -- the many parents and caregivers charged and some found guilty of murdering children, the scores of lives ruined, and families destroyed.
And in August, the Ontario Court of Appeal said that one of its main reasons for acquitting Steven Truscott had to do with the testimony of John Penistan, the pathologist in that long-ago case of rape and murder. Dr. Penistan's official autopsy report stated that 12-year-old Lynne Harper had died soon after Steven Truscott had been seen giving her a ride on his bike, at a time when he would have been by far the most likely killer.
But in recent years researchers have found two earlier copies of the same report form, one of them filled out during the autopsy, both placing the girl's time of death much later, when Mr. Truscott absolutely could not have been the killer. Said the Court: "(The) nature of the changes in his opinion leaves Dr. Penistan's evidence reasonably open to the allegation that his opinion shifted to coincide with the Crown's case against the appellant."
That sentence strikes at the heart of the expert witness problem, and implies an elegantly simple solution.
First, to put things in some perspective, one reason the wrongful convictions associated with Charles Smith have made so many headlines is that such cases are rare in
When it does not, though, the human costs can be horrific: the Grade 6 student wrongly accused of shaking a 16-month-old to death; the mother jailed for two years for stabbing her young daughter to death with scissors when in fact the girl had been mauled by a pit bull; the uncle wrongly convicted of sodomizing and killing his four-year-old niece and only released from prison after 12 years. And there will be more; the Charles Smith files are not closed.
Still, as I say, such cases are rare. One reason is that Canadian courts are relatively conservative about expert testimony. We allow only experts with serious credentials to testify, and then only when their expertise is essential to understanding a case. In
Serious credentials, absolute necessity, those are high bars. So where does the expert witness system break down? In the words of Watergate's Deep Throat: Follow the money.
Despite their implied objectivity, expert witnesses -- who are, after all, paid for their time and services -- are called to court by either the prosecution or the defence. Where one side or the other has significantly more money, it will more likely find an expert who will say what it wants. This is not because the expert will intentionally mislead the court, but both sides have a choice of experts to call, each looks for the experts most likely to favour its position, and the side with the deeper pockets has the wider choice. The fact that such witnesses are routinely described as "defence" or "prosecution" experts indicates the problem.
The simple solution, it seems to me, is to make the expert witness system work the way it purports to work already, to recognize that expert witnesses are expected to offer impartial, unbiased views, and have the court itself call them in, rather than the parties to a case. The courts could establish a roster of respected experts and either the Crown or the accused could request that the judge appoint one. But the judge would choose.
Experts would be required to know their obligations to the court -- to disclose any conflicts of interest, for example, and recuse themselves in such cases. More importantly, they would have to detach themselves from issues of guilt or innocence. (Pathologists already step over the line, for example, when they state that "this was murder"; that is not their conclusion to draw.) Ideally, expert witnesses would not talk to either party in a case outside the courtroom, defence or prosecution, including the police. Certainly they should not know anyone's "theory of the case."
As to who would pay, the fact is that in most criminal proceedings, anyway, the government already pays the experts, either through the attorney general's office or Legal Aid. All that would change is who hires the expert and who signs the cheque.
In court, technical expertise should not come with a viewpoint. The courtroom "battle of experts" was never a good idea. It's time we put it to rest.
Monday, February 11, 2008
Cash is Suspect
Large transactions in cash, especially without receipts or records, are viewed with caution by the Court. There is good reason for this -- generally cash transactions, where large amounts are involved, are designed to avoid scrutiny because tax evasion or worse is involved. Put directly, respectable people don't do large transactions in case.
As a result, cases where large sums of money are transferred in cash tend to be given close scrutiny by the Courts. Yesterday's decision in D'Adamo v. Lamontagne, 2008 CanLII 3538 (ON S.C.) gives a good example of this.
The plaintiff claimed to have paid $60,000 in cash on a house deal. The defendant denied receiving the money. There were complex facts but, in short, the Court did not believe the money was paid. The reasoning is interesting and may well be applicable elsewhere. Specifically, the Court disbelieved anyone would keep sizable amounts of cash for an extended period. The Court writes:
"(4) I further find the plaintiff's evidence that she kept $170,000 cash in her home in February 2001 highly suspect. She had opened an RBC bank account in the summer of 2000. No explanation was offered by the plaintiff as to why she would continue to store a large sum of money in cash in her house, long after arriving in Canada."
Whether a convincing point or not -- and this author had family who not trust a bank with cash money -- the argument may have use in other cases where a cash payment is denied.
As a result, cases where large sums of money are transferred in cash tend to be given close scrutiny by the Courts. Yesterday's decision in D'Adamo v. Lamontagne, 2008 CanLII 3538 (ON S.C.) gives a good example of this.
The plaintiff claimed to have paid $60,000 in cash on a house deal. The defendant denied receiving the money. There were complex facts but, in short, the Court did not believe the money was paid. The reasoning is interesting and may well be applicable elsewhere. Specifically, the Court disbelieved anyone would keep sizable amounts of cash for an extended period. The Court writes:
"(4) I further find the plaintiff's evidence that she kept $170,000 cash in her home in February 2001 highly suspect. She had opened an RBC bank account in the summer of 2000. No explanation was offered by the plaintiff as to why she would continue to store a large sum of money in cash in her house, long after arriving in Canada."
Whether a convincing point or not -- and this author had family who not trust a bank with cash money -- the argument may have use in other cases where a cash payment is denied.
Citizen's Arrest Powers Limited
Citizen’s Arrest Powers Limited
Late last week the British Columbia Court of Appeal released its decision in R. v. Abel & Corbett 2008 BCCA 54.
The case dealt with the concept of citizen’s arrest and made it clear that such powers were to be exercised only in the narrowest of circumstances. As some readers may remember, in a popular episode of the "The Andy Griffith Show", Gomer Pyle discovered the power of citizen's arrest. He spent the rest of the episode placing local citizens under arrest for the most minor offenses imaginable. While Gomer Pyle's intentions may have been honorable, the concept of citizen's arrest is not to circumvent legitimate law enforcement or arbitrarily detain people without proof of a crime. Today, citizen's arrest exists as more of an emergency or stop-gap power granted to ordinary citizens at the behest of law enforcement officers. Citizen's arrest means that a private citizen has the right to detain suspected criminals for serious crimes until proper law enforcement personnel can assume custody.
Section 494 of the Criminal Code provides:
(1) Any one may arrest without warrant
(a) a person whom he finds committing an indictable offence; or
(b) a person who, on reasonable grounds, he believes
(i) has committed a criminal offence, and
(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
(2) Any one who is
(a) the owner or a person in lawful possession of property, or
(b) a person authorized by the owner or by a person in lawful possession of property,
may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.
(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.
A key issue in a lawful citizen’s arrest is an urgent need to detain someone who is either committing a crime or escaping police.
In Abel & Corbett the accused were convicted of offences arising out of their apprehension of a Mr. Holl. Abel believed Holl had recently stolen his rifle; however, he had no information as to where the rifle was located. Abel and Corbett found Holl at a townhouse. Holl was subdued following an altercation. He then took the accused to where the rifle was hidden some distance away. At trial, the accused submitted that the jury should be instructed to consider whether their actions were justified as a citizen’s arrest under s. 494(1)(a) of the Criminal Code.
The trial court declined to make the instruction and the Court of Appeal agreed. The Court held that an examination of the common law roots and historical usage of the expression “finds committing” reveals that it connotes a situation in which the arresting party comes upon someone in the very act of committing an offence. This interpretation is also supported by the French version of the Code and other federal statutes providing for arrest on the basis of “finds committing.”
Part of the decision is set out below:
[43]
Any one found committing any of the offences mentioned in the following sections, may be arrested without warrant by any one, that is to say … .
What followed was a long list of crimes, including a number of possessory offences such as retaining possession of property obtained by crime, possession of housebreaking instruments, possession of forged bank notes, and possession of clippings of current coins.
[44] Henri Elzéar Taschereau, one of the judges of the Supreme Court of Canada, in his commentary, The Criminal Code of the Dominion of Canada, as amended in 1893, 3d ed. (Toronto: Carswell, 1893), had this to say about “finds committing” (at 621):
It has been held that where a statute gives a power to arrest a person found committing an offence, he must be taken in the act, or in such continuous pursuit that from the finding until the apprehension, the circumstances constitute one transaction: R. v. Howarth, 1 Moo. 207; Roberts v. Orchard, 2 H. & C. 769; and therefore, if he was found in the next field with property in his possession suspected to be stolen out of the adjoining one, it is not sufficient: R. v. Curran, 3 C. & P. 397; but if seen committing the offence it is enough, if the apprehension is on quick pursuit: Hanway v. Boultbee, 4 C. & P. 350. The person must be immediately apprehended; therefore, probably the next day would not be soon enough, though the lapse of time necessary to send for assistance would be allowable: Morris v. Wise, 2 F. & F. 51; but an interval of three hours between the commission of the offence and the discovery and commencement of pursuit is too long to justify an arrest without warrant under these statutes: Downing v. Capel, 36 L.J.M.C. 97.
See also: Crankshaw’s Criminal Code of Canada, 2nd ed. (Toronto: Carswell, 1902) at 35; Tremeear’s Annotated Criminal Code of Canada, 2nd ed. (Toronto: Carswell, 1908) at 33.
[45] From the beginning, Canadian courts have interpreted the words “finds committing” as pertaining to situations where the person being arrested is discovered in the very act of committing an offence. R. v. Hills (1924), 44 C.C.C. 329 (Alta. S.C. (A.D.)), is an example. In this case, the power to arrest on the basis of “finds committing” was contained in s. 85 of the Liquor Act, R.S.A. 1922, c. 266. Acknowledging that this expression had been taken from the arrest provisions of the Criminal Code, Mr. Justice Clarke, after citing a number of English authorities, stated (at 334), that, “a peace officer finds him committing the offence by seeing the act committed.”
[46] This reasoning was applied in R. v. Selock (1931), 56 C.C.C. 243 (Alta. S.C. (A.D.)), a case dealing with what was then s. 648(1) of the Criminal Code, which authorized the arrest without warrant of anyone whom a peace officer “finds committing any criminal offence.” Adopting Clarke J.A.’s interpretation of “finds committing”, Chief Justice Harvey stated (at 248): “I think that is the correct view, for it appears to me that the essential, and the only essential fact, is that the offence should be committed in the officer’s presence … .”
[47] Section 648(1) of the Criminal Code was again considered in Whitworth v. Dunlop (1934), 62 C.C.C. 41 (B.C.C.A.), a civil action for damages for false arrest and imprisonment. Police officers arrested Whitworth without a warrant on a charge of keeping a common bawdy house. Whitworth was acquitted of the charge and then successfully sued the arresting officers. In allowing an appeal from the judgment, this Court held that Whitworth had been lawfully arrested. Mr. Justice Martin, as he then was, held that s. 648(1) was engaged because “the offence was in fact ‘in course of perpetration by the offender before the eyes of the constable’ and pursued to completion”: at 43. In concurring reasons, Mr. Justice Macdonald said that “under [s. 648] the accused must be found actually committing the offence”: at 46.
…
[50] Section 435(b) [now s. 495(1)(b)] was considered by Mr. Justice Laskin, as he then was, in his concurring reasons in R. v. Dean, [1966] 3 C.C.C. 228 (Ont. C.A.). Although preferring the view expressed by Clarke J.A. in Hills that “finds committing” requires that the arresting offi