It’s that time of year again. Judges and lawyers have returned to court sporting freshly bronzed bodies, and Ontario’s RIDE program has tucked away the bulk of its breathalysers until the summer cottage season. A perfect time to transition from reflections of the past to contemplation of the future. And so I bring you my second annual Crime & Punishment Predictions. (If you’re wondering how plausible a prognosticator this Prutschi fellow is, you may peruse my previous perennial predictions here: http://www.slaw.ca/2011/02/07/crime-punishment-in-2011/). 

5. A Return to the 11(b) Crisis

For nearly a decade appellate courts have been discreetly warning their trial-level cousins that the guidelines for tolerable trial delay at both the Provincial and Superior Courts are supposed to be inching downwards. The rationale is obvious: since the crisis of long-delayed trials first identified way back in Askov, many years have passed but the expectation of a steadily declining backlog has failed to materialize. Ontario is stumbling along with its ‘Justice on Target’ plan that has seen improvements in some jurisdictions offset by missteps in others. Dramatic changes to the Criminal Code discussed below will also pile on more trials to a system already heaving on the verge of collapse. I expect to see substantial litigation surrounding trial delay in 2012.

4. Reefer Madness

A majority of the Canadian public remains blissfully convinced that Canada is soft on minor marijuana charges. With current and former Vancouver mayors arguing very publically for legalization, you can’t blame Joe Public for thinking cops don’t care much about weed, but you may be in for an unpleasant New Year’s surprise. In addition to draconian new sentencing provisions tucked into the Omnibus crime bill for small grow-ops, in Ontario I have noticed a very significant uptick in the number of individuals being charged for simple possession of tiny amounts of pot. While these charges are still being almost universally diverted at an early stage, previously the unstated policy on the part of police officers seemed to be to simply seize the goods from those caught with a couple of joints. Now, for reasons unclear to me, charges are in fact being laid.

3. White Collars and Prison Jumpsuits

Whatever you may think of the “occupy” movement you can’t deny that the so-called “99%” are eager to beat down the mansion doors of the so-called “1%”. The poster-children for all the evil that embodies the one-percenters are white-collar fraudsters. Our southern neighbours have long bemoaned Canada’s comparatively soft sentences in this area and the omnibus crime bill squarely takes aim at correcting that perception. A spate of new aggravating factors to be considered on sentencing relate directly to fraud cases and a two-year mandatory minimum jail sentence will be imposed on anyone convicted of a fraud involving $1,000,000 or more. A number of police task forces and crown attorney units have recently been formed specifically to tackle commercial frauds and they will be looking to make good on their mandates in 2012.

2. Constitutional Challenges to the Tory Crime Agenda

Love it or hate it, get-tough-on-crime is back in vogue. More than any other development in 2012, the sweeping changes enacted by the omnibus crime bill will undoubtedly be repeatedly targeted by defence lawyers all across Canada. Mandatory minimum sentencing provisions for certain drug offences look especially ripe for a constitutional challenge, particularly when they are applied to the mentally ill, those with drug addictions, or aboriginal offenders. I expect we will see a burst of inconsistent lower court judgments early in the new year followed by some significant appellate decisions in the spring. A date with the Supreme Court in Ottawa seems certain eventually but that’s a road that may take us into 2013.

1. Bankrupting the Justice System

Guess what eliminating 2-for-1 pre-trial credit, increased mandatory minimum jail sentences, and tougher parole laws add up to? 2012 will be the first full year we see the real price of ‘getting-tough-on-crime’ and be prepared for some serious sticker shock. The substantial shifts enacted by the government go beyond the cost of building a few more jails. In addition to all the extra time offenders will spend in prison, an unintended consequence of these provisions is to substantially disincentivize early guilty pleas. An accused who was previously eligible for a lenient sentence or who had racked up considerable pre-sentence custody could throw in the towel and make peace with Her Majesty but is now encouraged to take a shot at trial even where he assesses his own chances of winning the case as poor – if you’re getting slammed by a mandatory minimum whether you plead guilty or not, you may as well spin the wheel of justice and see what happens. Already strained budgets for police, legal aid, crowns, corrections, probation and parole will feel the sting. The feds have seated everyone at a very expensive dinner table but they appear to have ducked out the side door having only covered a third of the cheque. Provinces and municipalities will be left washing dishes in the kitchen to pay off the rest of this tab.

As you can imagine, the personalities you may meet over the course of a career in criminal law can be – ahem – colourful. I have frequently marvelled at some of the outrageous things I have seen defendants and complainants say and do but often forgotten in the rich cast of characters that populate a criminal trial is the crown witness. Commonly relegated to side-show status, in many trials a crown witness deserves top billing on the docket marquee along with the accused and complainant. This is particularly so for that most intriguing of animals – the confidential informant (“C.I.”).

Rat. Snitch. Leak. Stool pigeon. The C.I. goes by many names – except for the name his mother proudly bestowed upon him at birth. For decades Canadian criminal law has placed reverent emphasis on the “C” in C.I. – CONFIDENTIAL. It doesn’t require a very vivid imagination to understand why, in many circumstances, a prosecution witness with the temerity to point a finger at the accused might expect a certain degree of anonymity in exchange for his evidence. However, sometimes forgotten in any informant discussion is the strong probability that this same witness might be very highly motivated to get overly creative with the truth to his own benefit. What better way to safely spin a mythological tale than behind the smokescreen of confidentiality?

Balancing these competing issues, Canadian law has long recognized a qualified informer privilege. Where a potential witness seeks to hide his identity out of fear of retribution authorities (including the police, prosecutors and courts) have a legal duty to protect and enforce the confidentiality of the informer. The normally generous disclosure obligations constitutionally foisted upon the crown are curtailed prohibiting disclosure of any details that risk revealing the identity of a C.I. save for the extraordinarily rare circumstance where the accused can establish that his ‘innocence is at stake’ unless the C.I. is unmasked. But, what if the accused takes his own steps to pierce the veil of informer privilege? Does the duty that applies to agents of the state extend to an accused thereby prohibiting him from investigating the identity of a confidential informant?

This was the question facing the Supreme Court of Canada in R. v. Barros 2011 SCC 51. Barros was a former police officer turned private detective. He had been hired by the lawyer for a man named Qureshi who was facing a number of drug-related offences that hinged on the evidence of a confidential informant. Being a former police officer, Barros recognized what most of us, including SCC Justice Binnie writing for the majority, recognize. Namely that, “while some informers are model citizens, others not so much so; some act in the public interest while others may be driven by motives wholly unsavoury.”[at para 38] Also by dint of his former life as a police officer Barros recognized something perhaps a little less obvious to the layperson: when a C.I.’s cover is blown, crown and police will often choose to stay proceedings against an accused rather than continue on to trial where the informant’s identity will become public subjecting them to considerable risk of harm.

In the course of his job as a private investigator, Barros interviewed a host of potential crown witnesses, conducted criminal background checks and acquired phone records (how he accomplished these tasks lawfully in his capacity as a retired police officer is never explained though it raises some intriguing questions). Once his investigation was complete Barros believed he had uncovered the identity of the C.I. who fingered Qureshi. He arranged a meeting with the officer in charge of the case at a local golf course. The two had been friends for many years prior to this case and knew each other professionally. Although Barros never explicitly said as much, the officer testified that he got the distinct impression that Barros was asking him to consider staying the charges against Qureshi or face the prospect of having the C.I.’s name revealed publically in court. Apparently, their past friendship only went so deep. Barros was charged with obstruction of justice and extortion.

The foundation for the criminal charges against Barros rested on his breach of the classic informer privilege – a concept Barros would have been well familiar with from his time as a police officer. In balancing the right of an accused to make full answer and defence and the long-standing duty to protect the confidentiality of informants, the SCC closed the door on a broad general prohibition saying:

The state will refuse to disclose any information that would tend to reveal an informer’s identity, and this will be enforced in the public interest, but the defence, including in this case Mr. Barros in his function as a private investigator, is not bound by any such duty in undertaking its own investigation independently of the courts and prosecution. Of course, a lawful activity may be pursued by unlawful means or for an unlawful purpose.[para. 44]

There is little difficulty in understanding the first half of the SCC’s requirement for lawful attack on informer privilege – if you’re going to try to reveal a C.I.’s identity you still have to obey the law while doing that. Start beating witnesses or stealing data and all bets are off. But what are the implications of a lawful attempt to pierce informer privilege, undertaken by lawful means “for an unlawful purpose”? In Barros’ case, the SCC expressed concerns about the possibility that Barros tried to parlay his information into a stay of proceedings. The golf course exchange with the officer in charge was potentially evidence of an obstruction of justice and a new trial was ordered on that basis.

So, it’s OK for the defence to try to unmask a C.I. provided they do it legally for a lawful purpose. The practical result however of this ruling should send a cautionary note to C.I.’s themselves. The blanket protection once thought to exist is no longer absolute. Moreover, the ‘lawful purpose’ branch of the test creates a scenario where the first time a C.I. may learn that their identity has been compromised is in a very public trial. If the prosecution’s allegations in Barros prove correct, Barros was trying to encourage police to protect their informant by staying the charges. The state of the law post-Barros guarantees that defendants who have succeeded in piercing the veil of informer privilege will sit on that information until cross-examination at their trials when the information might lawfully be used to undermine the credibility of an informant witness. While such an exercise would comply with the ‘lawful means / lawful purpose’ set out in Barros, it may also leave rats scurrying too late from a sinking ship.

Back in August 2010, Ontario joined the ranks of Provinces who took advantage of amendments to the Criminal Code permitting the creation of reduced suspension terms with ignition of Interlock programs for impaired drivers. When I last wrote about this topic many of the day-to-day details of the program were unclear. With the program having just celebrated its first anniversary, the time is ripe for a short retrospective on how far we’ve come.

First, the basics. The Criminal Code sets out a mandatory twelve month licence suspension for anyone convicted of impaired driving offences. Prior to the enactment of the reduced suspension provisions, installation of an ignition interlock device (essentially a mini breathalyser test hard-wired to an offender’s vehicle which tests sobriety) could only commence after completion of the full twelve month suspension term. Now, first offenders convicted of impaired driving, fail / refuse to provide sample, or “over 80” are slotted into two “streams” allowing for substantial reductions in the length of their suspensions. These provisions apply only to alcohol-related impaired charges (where impairment was a function of drug or a combination of drug and alcohol, there is no reduced suspension available).

It is fairly broadly understood that only those who enter a guilty plea within 90 days of their offence date are eligible for Stream A in which the absolute suspension period is reduced from twelve to three months. Anyone else who qualifies for a reduced suspension but does not plead guilty within that short timeframe falls into Stream B which mandates a minimum six month absolute suspension period followed by a twelve month ignition interlock period. Other more esoteric requirements of the provisions are not nearly as well understood and have the potential to create significant barriers to clients who are not well advised on the administrative functionality of the program:

• The plea, conviction and sentencing must all take place within 90 days of the offence. Although there is rarely good reason to do so, counsel should be careful not to simply enter a plea and then adjourn sentencing beyond the 90 day period or the client will have lost the benefit of Stream A.
• Assessment for the Remedial Measures Program (RMP) and proof of a lease agreement for the ignition interlock device must be provided before the expiry of the three month absolute prohibition period. The ignition interlock device must be installed within 30 days of licence reinstatement and the device must remain installed until the RMP is entirely completed. The RMP, better known as “Back on Track”, and ignition interlock lease arrangements / installation take time and can be subject to growing wait lists as the popularity of the program increases. RMP completion can take as much as 11 months meaning a client who does not enrol in the program almost immediately following his conviction will find himself serving extra time with an ignition interlock device in his car over and above the minimum requirements. Counsel are well advised to urge their clients to begin the process ASAP upon conviction to ensure that they meet all the relevant deadlines to gain full access to Stream A’s benefits.

Not surprisingly, the substantial benefit of a shortened three month suspension period followed by a nine month ignition interlock requirement has persuaded many offenders to make their peace with Her Majesty in an expedited fashion. Statistics released by the Ministry reveal that ignition interlock rates for first-time offenders in the first half of 2011 are up approximately 67% over the 2010 installation rate. Of the 15,250 drivers eligible for both Streams since Aug. 2010, 4976 are either actively in the program or awaiting entry. My anecdotal prediction is that these rates will rise steadily as the program gains further traction in its second full year of operation.

The cost of the program remains a considerable barrier and the offender bears the full cost every step of the way. Installation of the device runs $169.50 plus $118.65 per month for monitoring, and a $56.50 removal fee at the conclusion of the program (all charges are inclusive of 13% HST). On top of that, the offender must insure the device at his own expense choosing between a $10/mth non-refundable fee OR a $250 up front security deposit which is refunded upon removal provided the device is returned in a defect-free condition. Add that all up and you’re looking at $1300 in interlock fees without accounting for the security deposit and the massive increase in your insurance premiums. Despite these high costs, the numbers show that there is a strong appetite for anything that can get an offender back behind the wheel as soon as possible.

The real question – and the one for which I have yet to see any statistics – is what are the violation / recidivism rates for persons accepted into the program. If ignition interlock is succeeding in tempting offenders into early guilty pleas and keeping Ontario’s roads safe, my much critiqued proposal to substitute the criminalization of impaired driving with a more robust ignition interlock Highway Traffic Act program would only serve to multiply the cost-saving benefits of the Criminal Code provisions while endangering no one. Food for thought.

A deal’s a deal. Except where lawyers are concerned.

That’s the tough lesson learned by Alberta’s Olga Maria Nixon. Having been involved in a car crash that orphaned and seriously injured a seven-year old boy, Ms. Nixon may not engender a high degree of public sympathy but her legal ordeal set the stage for a very significant precedent handed down by the Supreme Court of Canada (SCC) several weeks ago in R. v. Nixon 2011 SCC 34.

Ms. Nixon was alleged to have driven her motor home though an intersection without stopping striking another vehicle and thus causing the fatalities and injuries. A combination of roadside screening, subsequent breath samples and expert extrapolation suggested that she was well above the legal limit for alcohol consumption at the time of the accident. The trial crown had serious concerns about the admissibility of the breath samples and also questioned the probative value of an eyewitness who claimed to have seen a motor home driving erratically some time before the accident. Following a preliminary inquiry, crown counsel came to an agreement with defence counsel that Ms. Nixon would enter a guilty plea to the vastly reduced charge of careless driving under the Highway Traffic Act with all criminal charges being withdrawn. The crown discussed the general terms of the plea agreement with senior colleagues before confirming it in writing to the defence. Prior to entering the plea, the deal was brought to the attention of the Attorney General’s office who concluded that the crown’s assessment of the weakness of the crown case was flawed. A directive was issued to withdraw the plea agreement and proceed with Ms. Nixon’s prosecution. The issue that wound its way all the way up to the SCC was whether the crown’s exercise of discretion in repudiating the plea agreement was subject to judicial review and, if so, under what terms.

The SCC unanimously held that, while the crown’s decision-making process is subject to judicial review, crowns will only be barred from changing their minds where the defence can establish egregiously unfair and oppressive conduct tainted by bad faith or an improper motive. In short, don’t expect to see too many successful applications that hold the crown’s office to a deal they’ve since soured on.

A careful read of the full text of the case leads me to believe that the SCC arrived at the right legal decision right but I cannot share Justice Charron’s optimism that repudiation of plea agreements by the crown is “a rare and exceptional occurrence.” The evidence before the SCC indicated that repudiation had occurred only twice in the entire breadth of Alberta legal jurisprudence. While anecdotal evidence is a far cry from reliable proof in a court case, my own experience (over a much more limited time span than the life of the Province of Alberta) and my discussions with colleagues, gives me great concern that the instances of repudiation have been dramatically understated.

Moreover, the Court seems to have glossed over the nearly impossible evidentiary barrier it has erected in leaving the door open to judicial intervention only when the defence can demonstrate prosecutorial bad faith and misconduct amounting to an abuse of process. While the crown bears the evidentiary burden to explain its decision to resile from an agreement, that requirement is likely to provide the defence with little ammunition to fight the abuse of process application. To prove such a serious allegation, defence counsel would almost certainly need to have access to confidential crown instructions and / or historical trends demonstrated by other cases – neither of these pieces of evidence are likely to fall easily into defence counsel’s lap.

In the face of these hurdles, savvy defence counsel are strongly cautioned to tread carefully in future plea negotiations with crown counsel. Clients should be advised that, even once an agreement in principle is reached with the crown, that deal cannot be relied upon with certainty until the moment the plea is entered. The most immediate ramification of this decision is likely to be a noticeable spike in the number of lawyers insisting on dealing directly with the senior crown of a particular office. Going ‘straight to the top’ to negotiate a plea bargain may not be the most efficient use of scarce prosecutorial resources but it is the only way for the defence to gain some measure of comfort that hard-won concessions will not be summarily reversed once a senior crown has the opportunity to review the brief. Even this step should not be construed as a guarantee of the strength of the plea bargain as, in Nixon, the senior crown had approved the deal after reviewing the initial crown’s decision only to be overturned later by the Assistant Deputy Minister in the Attorney General’s office.

At the end of the day, it is the crown’s offices themselves that will determine how much damage has been caused by Nixon. If repudiation of plea bargains remains a relatively rare occurrence happening only in the clearest of cases it is not likely to have a dramatic chilling effect on pre-trial resolutions. On the other hand, should crown offices feel emboldened by the unanimous verdict of the SCC to expand the number of plea bargains that are repudiated upon senior review, the effects of such behaviour are likely to be far-reaching and severe.

Today's release from the Supreme Court of Canada, R. v. J.A., 2011 SCC 28 is a real head-scratcher. The facts are both titillating and fascinating.

J.A. and his long time partner, K.D. were a sexually explorative adult couple. On several prior occasions they had experimented with the delicate art of erotic asphyxiation — in which one partner chokes the breath out of the other to heighten the sexual pleasure associated with a lack of oxygen to the brain. Now, during my recent trip to Ecuador's Cotopaxi Glacier 5000 metres above sea level I don't recall any sexual stirrings as my oxygen-starved brain struggled to direct one plodding foot in front of the other through the waist deep snow but hey, to each his own. The point is, there was no dispute that K.D. consented to the choking as part of the couple's sexual play and both acknowledged in advance that unconsciousness was a possible (if not likely) outcome of their conduct. Sure enough, K.D. passed out. She awoke three minutes later with her hands tied behind her back and a dildo in her anus. K.D. gave conflicting evidence about whether this was the first time J.A. had taken such back-door liberties but she did agree that within ten seconds of regaining consciousness, he removed the dildo and the two proceeded to have consensual vaginal intercourse while she remained bound.

This little sexual experiment remained a private moment between the couple until two months later when K.D. decided to report the incident to police. She conceded that she consented to the choking but drew the line at waking up with a sex toy lodged in her anus. J.A. was charged with sexual assault but at the trial, K.D. recanted her allegation explaining that she made up the criminal complaint because J.A. had threatened to seek sole custody of their young son. Despite this, the trial judge convicted J.A. only to have the conviction set aside later by the Ontario Court of Appeal.

Enter the Supreme Court of Canada tasked with the intriguing question of whether a person can provide 'advance consent' to sexual acts that may occur once the person is unconscious. In a display of Parliamentary deference I can only describe as bizarre, a 6-3 majority of the SCC ruled that although "the concept of consent Parliament has adopted may seem unrealistic", the court was bound to strictly apply the statutory definition of sexual assault which requires that an individual be capable of revoking consent at any time during the course of the sexual activity. Since, by definition, once a person is rendered unconscious (albeit by a consensual act in anticipation of further consensual acts) that person is no longer physically capable of changing their minds and revoking the consent, legally the 'advance consent' evaporates making all subsequent physical actions on the unconscious person assaults (or sexual assaults as the case may be). Rather than the old rallying cry, "no means no", our Supreme Court has now imposed a "yes means no" in cases where consenting adults have pre-scripted sexual fantasies that include unconsciousness. Presumably, this same logic could criminalize consensual bondage activity where one party is gagged and rendered unable to actively voice a change in consent.

While a full commentary on the majority's reasoning is beyond the scope of this post, it is not creative hyperbole to say, as the three dissenting Justices did, that the Supreme Court has now criminalized "a broad range of conduct that Parliament cannot have intended to capture in its definition of the offence of sexual assault." Did you wake your wife up this morning with a loving peck on the lips? Congratulations! You're now a sexual predator. Did you stop by your child's bed last night to kiss that cherubic little face? Welcome to the national child abuse registry!

Lest you think I'm engaging in a little reductio ad absurdem, the crown actually argued before the Court that actions like a "mild sexual touching that occurs while a person is unconscious" would be immunized from prosecution by the de minimis doctrine, only to be scolded by the Chief Justice who said "even mild non-consensual touching of a sexual nature can have profound implications for the complainant."

All this legal jargon has given me a headache. I'm going to lie down and take a nap. But just to be clear, don't try anything on me while I'm asleep.

Regular readers of my SLAW column will know that, while I'm an ardent supporter of initiatives that enhance the efficiency of our criminal justice system, I am also a regular critic of how that same system deals with the deluge of domestic-related charges that clog our courts on a daily basis. For these very reasons, a promising new pilot project has recently caught my attention.

The Integrated Domestic Violence Court (IDV) has ambitious plans to combine cases from two of Toronto's busiest courthouses: the criminal courts of The Old City Hall and the family courts housed at 311 Jarvis Street. While shying away from the most complex issues that arise can arise (criminal trials, divorce, family property, and child protection proceedings) the IDV will have authority to conduct case conferences, make temporary orders, and final orders on consent of the parties in family cases for custody, access, and support along with hearing bail variations, conducting criminal pre-trials and accepting guilty pleas.

Numerous potential advantages accrue by hearing the criminal and family cases in a single courtroom before a single judge. First and foremost, the presiding jurist enjoys the benefit of a far more complete picture of the family situation. Allegations of domestic violence can be better assessed and addressed in the context of the underlying (and frequently related) stressors that are part of the baggage of many family proceedings. There is the potential for substantial time savings and reduced court appearances which should translate into reduced legal fees for clients mired in the system. An integrated system also completely eliminates the common problem of inconsistent orders where the family court requires access and contact between the parties while the criminal court bail prohibits it.

At this embryonic stage in the pilot program, a number of important questions remain unanswered. All parties must consent to the process before being transferred to the IDV and approval by the criminal crown attorney is also required. What factors will be considered by the crown in assessing which cases are screened eligible for the IDV? What will be the Crown's involvement once a case has been transferred? Where will jurists for the new court be drawn from – the family system, criminal courts, or both? 

This last question raises particularly thorny issues as many judges within either of the two systems have little or no experience with the contrasting theme. Can a criminal court judge who spent her entire career before being appointed to the bench as a defence lawyer or crown be reasonably expected to understand the intricacies of family support orders? Similarly, will defence lawyers and crowns trust a career family lawyer and family court judge to make appropriate rulings on bail conditions and criminal sentences?

On a practice-management level, it is also unclear whether the IDV anticipates having clients represented by separate criminal and family counsel or whether the expectation is that a single lawyer will be responsible for both legal areas. Clients working on a tight budget (which, if we are not kidding ourselves, will be the vast majority) will be sorely tempted to seek out 'jack-of-all-trades' counsel even though they may be better served by experienced counsel with focussed expertise in these vastly different specialities.

While questions abound and bumps in the road are inevitable, the Ontario Courts are to be commended for having the courage to engage in some creative thinking on how to address the complex interdisciplinary problems posed by domestic violence. This is one experiment whose results are worth watching closely.

Recently I was invited to attend an information session on the e-disclosure pilot project that is about to get underway for a small number of police divisions in Toronto's Metro North jurisdiction. While electronic documentation may seem like a 1990s innovation, its adoption by notoriously change-resistant lawyers (on both sides of the criminal bar) and technologically averse police officers, may genuinely herald a new era in the archaic field of criminal law.

Starting immediately, police from the pilot detachment (currently consisting of officers from Toronto's 31 Division who are not tasked to special teams and rolling out to two more divisions shortly) will be entering disclosure data into computer terminals generating a single Adobe PDF file. The PDF consists of a series of categories or chapter headings that will remain consistent across all cases. So for example, "category 10" will always contain scanned copies of police notes. In every case under the new e-disclosure system counsel can simply click on category 10 to be instantly linked to these scanned images which can then be highlighted or have text notes affixed to them. Other areas of disclosure that are made up of typewritten text will be searchable. Scene of Crime photos (commonly known as SOCO) will be in a separate category provided in a low resolution format not suitable for enlarged printing but certainly clear enough to view full screen on your desktop in the samples I was provided.

The system is optimized for Adobe Acrobat 9 and the Toronto Police Service is using the paid "pro" version of the software to generate the e-disclosure files but they will be perfectly readable by the ubiquitous free version of Acrobat ensuring that lawyers will not have to invest in any expensive new technology (beyond your existing office computer) to access the materials.

Crown attorneys will be receiving the e-disclosure via USB keys to be transferred to their internal CIMS system while defence counsel will be handed the files on CDROM. Paper copies of disclosure for cases arising out of the pilot division will not be provided and you can bet that some old-timers and techno-phobes (crowns and defence alike) will not be happy to discover this. Other counsel are likely to hand their discs to their secretaries and immediately demand that the entire contents be printed out and organized the old-fashioned way but I'm going to go out on a limb here and predict that most counsel will find the system to be a vast improvement after the initial jitters wear off.

It is hoped that the system not only reduces paper and costs but significantly shaves down the delay currently associated with waiting for disclosure — a leading cause of backlog within the court system. Some have even suggested that, in simple cases, complete disclosure could be provided digitally at the bail hearing stage mere hours after an accused's arrest though that is not anticipated to be the case during the early stages of the pilot. As the system is rolled out across more divisions, it is anticipated that officers from multiple teams and in different detachments can simply upload their portion of an investigation from any local terminal to the master file dramatically speeding up the time it takes to have all notes and materials collated into a single e-brief. At present, to keep the file sizes down, rich multi-media such as video witness statements or 911 audio calls are not included in the PDF package but it is hoped that these will be rolled out in the future.

Training for crown attorneys is getting underway immediately with future sessions for the defence bar planned. These will be provided free of charge at the Toronto Police College.

Just a few weeks ago I was quoted in local newspapers discussing a case in which disclosure was provided on VHS cassette and here I am on the cusp of truly paperless disclosure. Maybe change is coming faster than I thought? Only time will tell.

A new study of Israeli judges reported on recently in the Globe and Mail strongly suggests that if you're a prisoner looking for leniency, you may want to wait until His Honour has finished his cream cheese and lox.

Researchers studied 1112 rulings by Israeli judges presiding over parole hearings. At the opening of the court session, 65% of rulings favoured the prisoner but the chance of a favourable ruling dropped nearly to zero by the end of the morning session. Amazingly, after the lunch break favourable prisoner rulings jumped back to the 65% level before beginning a steady decline again as the afternoon session wore on.

The researchers found that the rulings did not appear to be affected by the severity of the crime, amount of jail time served or the prisoner's gender / ethnicity. Aggravating and mitigating factors such as attendance at prison rehabilitation programs and an offender's criminal record did affect the rulings but the possibility of a favourable outcome remained highest at the start of any given court session.

While the results are humorous on their surface, the study raises a very serious question about the ability of jurists to routinely judge cases in a consistently fair manner. Criminal defence lawyers like myself have long known that shopping around for the "right judge" is an important part of our role as advocates. Now it appears we will have to add the "right time" to our judicial shopping lists as well.

While being a criminal lawyer is unlikely to make you the most affluent guest at a dinner party, it does often mean that you’ll have the most interesting work stories to tell. However, those very same fascinating tales that so enrapture your listening audience often make you the target of the unflinching gaze of the news media. Being able to competently respond to media attention on your cases is an essential skill for lawyers in any field where the bright light of journalism might shine.

Traditionally, there have been two schools of thought on lawyer/media relations.

The strong silent type

This lawyer responds to every media request with a stern but polished “no comment”. As a criminal lawyer, exercising my right to media silence comes naturally and exerts a certain simplistic appeal. If I don’t say anything, I can’t say anything wrong, right? Not necessarily.

While strictly speaking, saying nothing can do no harm to your client’s case, it also does nothing to advance his cause. If we define our role as lawyers as strictly to provide a solution to a legal problem – winning a trial for example – then clamming up will always be the appropriate response to a media inquiry. There’s almost nothing you can say in the public sphere which would not be better said directly to your trier-of-fact at the trial.

However, such a narrow definition of “legal services” is often overly restrictive and contrary to your client’s interests. Yes, the client has come to you to solve a problem but, “success” is not defined in entirely the same manner by the client and her counsel. Your client may have commenced litigation primarily to gain media attention for their cause and your refusal to comment is stifling that goal. A client charged with a criminal offence that has caught the public eye might desperately want his lawyer to comment publically in some fashion on his defence simply to make it clear that he intends to contest the charges and proclaim his innocence. Winning a trial years down the line is oftentimes a pyrrhic victory as, by the term the verdict is read, your client’s reputation has been publically shattered beyond repair.

These realities give rise to the second school of media relations.

The talk-show whore

This lawyer has never met a microphone, notepad or camera he didn’t love. Asked for comment, he will happily drop details of the case in interviews often carelessly crossing the line and revealing tidbits of confidential disclosure or privileged solicitor-client communications. The talk-show whore is a liability insurer’s worst nightmare. For clients seeking discretion in the hopes of having their case fly under the radar, the talk-show whore, even when successful in generating positive media attention, has failed to adhere to the will of his client.

For these reasons I propose a third school for the media-conscious lawyer.

The cautious communicator

The cautious communicator is a lawyer willing to entertain media inquiries but she chooses to whom and how she responds with great care following a set of well-considered guidelines.

1. Know your client and their goals.

   The first step in determining an appropriate media strategy in a given case is to clearly understand the goals of your client. Is your client looking to retain discretion and anonymity or is he actively seeking to project a public message? Is the client herself media savvy and capable of responding intelligently to an interview or does she expect her counsel to act as her media shield?

2. Know the source of the media inquiry.

   As you become more experienced with your local media population, this becomes an easier task but if you don’t have personal knowledge of the source, spend some time asking colleagues for their input and invest some time investigating previous examples of the journalist’s work. An inquiry from the Jerry Springer show needs to be assessed in a very different light from an invitation to comment by Anderson Cooper.

3. Know your case before providing an interview.

   Often, media attention is at its highest at the earliest stages of a court proceeding. Inevitably in a high-profile case, it is at the first court appearance that a crush of reporters are hungrily tossing questions at you and your client as you try to navigate an exit from the courthouse. Resist the overwhelming temptation to go into detail before you have had ample opportunity to review disclosure and understand your case. There is great danger in broadly proclaiming “my client was never there!” or “Mr. X doesn’t even know the victim!” before you’ve had an opportunity to know what your opponent knows. A simple short comment about reviewing materials and having faith in the judicial process should be the only things that escape the cautious communicator’s lips at such an early juncture.

4. Define the boundaries of an interview, at least in your own mind, before commencing the interview.

   Even though you may receive no such guarantees from your interviewer, it is vital that you yourself set internal boundaries for any interview you agree to participate in. Decide before sitting down for an interview which aspects of the case are off limits. By setting these invisible boundaries in your own mind, you protect against inadvertently slipping into commentary you had always intended to keep confidential. There is nothing wrong with cutting off a question with a polite “…we’re not prepared to discuss that at this time.” 

5. The medium really is the message.

   An effective response necessitates an understanding of the particular strengths and weaknesses of different forms of media. While a newspaper article lacks the punch of an on-air clip, crafting a short print comment doesn’t require you to consider the tone and body language of your presentation the way that a television or radio comment might. As lawyers, we are most comfortable when we are given weeks or months to prepare submissions that are often presented over the course of hours or even days. Media outlets, no matter what their format, will never provide you with that kind of patience and will inevitably strip context by editing lengthy quotes. You must be constantly aware that your window for commentary is usually only a few seconds. Pick a single critical point you want to get across and present it in a simple, brief, and straightforward quote. The ten second sound bite is much more difficult to master than the in-depth interview or call-in show.

These bullet-points are by no means a comprehensive media strategy, but they are intended to get lawyers thinking about how they can transition from one of the two traditional media archetypes into a more successful media communicator. A lawyer who has mastered the art of cautious communication brings a major talent to the table for her client while simultaneously creating an excellent platform for generating a positive media profile that benefits her and her firm for many years in the future.

January was all about lists. Every blog, publication, and column uses this season to either reflect on the year that was or look ahead to the year that will be – and I want in on the prognosticating party. Thus I give to you, fair SLAW reader, my picks and predictions for the top five trends to watch in Canadian criminal justice in 2011. To build the anticipation, I have listed my picks in reverse order. No cheating by scrolling straight to the bottom of the page.

5. Increased emphasis on case management.

For a number of years, governments have been toying with ways to streamline the criminal process. The increasing complexity of massive multi-layered police investigations and constitutional issues have conspired to create trials that frequently run for weeks or even months at a time at great cost to all parties in the criminal justice system. The introduction of criminal discoveries and the rare use of preferred indictments have done little to short-circuit gargantuan preliminary inquiries which – as their name implies – are just the appetizer to even more bloated trials.

2011 will see increasing emphasis on changes in local practice directions with heightened reliance on Justice on Target (in Ontario) encouraging speedier disclosure and fewer wasted set-date appearances. The impact of recent regulatory amendments in Ontario regarding ignition interlock devices for many impaired driving cases will also see a marked reduction in the number of these time-consuming trials.

4. The return and growth of “project-based” policing.

Running directly counter to the objective of streamlined trials is my next prediction – project-based policing. This refers to large-scale multi-party investigations in which multiple police forces will cooperate with a team of dedicated crown attorneys throughout lengthy wiretap / surveillance investigations in an effort to make sweeping arrests targeting gangs and organized crime.

Although the projects have a tendency to snare a host of innocent people and petty criminals in their net, their effectiveness in the broader ‘war on crime’ is difficult to deny. The initial chaos in bail court caused by these projects pays dividends down the line as the vast majority of cases have resulted in most minor players being cut out entirely with mid and high-level suspects entering guilty pleas. The eventual trials have involved relatively small numbers of accused facing only the most serious charges.

Even judging solely by the resources pouring into the Guns & Gang task forces on both the policing and crown sides, it’s a safe bet that we will see a host of high-profile targeted sweeps in 2011.

3. Legal Aid in crisis – again.

Just when you thought it was safe to accept a Legal Aid certificate, they go barrelling towards crisis yet again. For anyone who foolishly thought that Ontario’s Legal Aid woes were over after a highly touted agreement between the government and the Criminal Lawyers’ Association (CLA), think again. Anecdotal reports from many prospective applicants indicate that legal aid eligibility ain’t what it used to be and Legal Aid’s stuttering re-introduction of block fees for many simple cases is reminiscent of a return to the system that bankrupted the plan years ago in the first place.

A motivated and activist CLA is not likely to wait for the plan to tear apart at the seams this time around. Expect another showdown by summer 2011 if steps aren’t taken to address the looming issues now.

2. More mandatory minimum sentences.

You don’t need a crystal ball to see this one coming. Although the effectiveness of mandatory minimum sentences (MMS) in deterring crime is questionable, one thing that isn’t up for debate is how MMS’s play to the public. Nothing says ‘get tough on crime’ quite like slapping a juicy minimum jail sentence onto the offence of the day. Recent years have already seen MMS’s tacked onto impaired driving, child pornography, and gun crimes. Look for these to be increased even further with new causes-de-jour getting the MMS treatment by late 2011.

1. Random blood alcohol testing

With the number of trial balloons floated in the media on this topic, I’m honestly surprised we didn’t see it in 2010. The landscape for persons charged with impaired driving related offences has darkened considerably in recent years and those storm clouds aren’t clearing anytime soon. By the end of 2011 all of us will get a taste of what it feels like to be branded a criminal as police gain the power to stop anyone, anytime, anywhere without cause and require them to undergo a roadside screening for alcohol. Happy New Year indeed!

Will Prutschi’s prognostications pay-off with precise predications? Stay tuned – it’s bound to be an interesting year.

Does tinkering with our long-standing parole system actually increase public safety?

In Oliver Stone’s recent sequel to the classic film Wall Street, we are treated to a scene of Gordon Gekko standing in line awaiting his release after years in jail. The camera is focussed tightly on Gekko’s soft but slightly wrinkled hands as he accepts the return of items in his property bag that were seized from him two decades ago when he began his incarceration. “One watch. One ring. One gold money clip with no money in it,” the desk officer intones. The camera then pulls out and up for the shot the audience has all been anticipating. “And one mobile phone,” he says slapping down a device the size of a brick that today’s youth would be forgiven for mistaking as a lunchbox rather than a cell phone.

While I recognize the dangers of drawing too many object lessons from Hollywood cinema, that brief scene encapsulates much of the public’s misunderstanding and misapprehension of the Canadian parole system. The shrill cry from conservative legislators and concerned citizens is a common refrain: “Ten years should mean ten years – not seven.” It is an argument that is compelling in its simplicity and difficult to debate until one engages in a broader discussion of the complex mechanics of a criminal sentence.

When a Judge makes an order for a ten year custodial sentence, that decade encompasses the entirety of the offender’s lifespan to be spent under the supervision of the custodial criminal justice system. How we deconstruct that decade is a fair subject for debate but the starting point must be that the length of sentence pronounced by the Judge is all that we have to work with. If we choose to legislate that offenders serve 100% of their sentence behind bars, we must be prepared for the inevitable consequences of releasing someone back into society after years of separation and isolation with absolutely no safety net nor any lawful way to supervise their reintegration. I opened this discussion with the Wall Street clip in order to demonstrate just how changed the world would appear to an offender being released after a lengthy sentence. I have seen clients released from custody after much shorter sentences and being handed other relics from their property bags rendered obsolete by the passage of time during their sentences: subway tokens long since expired, keys to a home long since repossessed. Our expectation that we can successfully reintegrate people incarcerated for any length of time by simply releasing them into society with a pat on the back and a tip of the hat is wildly naive. One would never expect zoo officials to reintroduce animals to the wild by simply parachuting them onto the savannah from which they came. That would ensure the death of the animal, other creatures in its neighbouring habitat, or both. Yet that is precisely the tactic proposed for potentially violent criminals by proponents of the anti-parole camp.

The alternative – though by no means a perfect system – is a phased or gradual reintroduction into society monitored by a competent parole system. In the Canadian system, that typically results in statutory release after serving two thirds of the custodial sentence imposed. An offender thus released would be subject to constant monitoring – and assistance – by his or her parole officer. They may be placed in a half-way house to facilitate reintegration or be directed into employment retraining programs. Offenders will frequently be assigned to non-custodial treatment programs to deal with underlying drug or alcohol dependencies that brought them to jail in the first place. Missteps on the road to reintegration while on parole can be dealt with by the statutory powers of the parole officer.

Parole is able to incentivize positive behaviour by engaging a carrot-and-stick approach. Failures can be punished by revocation of parole resulting in the offender returning to jail to complete the remainder of their sentence. The prospect of early parole is the primary force motivating positive pro-social conduct while incarcerated. Take away parole and an inmate is left with no tangible reason to choose good conduct over bad while in jail.

So long as we have not abandoned the primary goal of our criminal justice system – rehabilitation – an equitable system of parole is a positive sentencing force that should be strengthened and encouraged rather than being vilified and attacked.

A growing number of recent decisions in courts across the globe have commented on the concerns raised by the explosion in social media use by jurors in trials.

Recently England's most senior judge commented extensively on the concerns in a trial where an overzealous juror posted details of the case, closing her summary with the question, "Did he do it?". Now I've felt somewhat humbled by having to make life-altering submissions before a panel of twelve of my client's peers, but pleading my case to the entire internet? That's an audience that could overwhelm even the savviest advocate.

The judge in this case summarized the nub of the problem saying, "We cannot stop people tweeting, but if jurors look at such material, the risks to the fairness of the trial will be very serious, and ultimately the openness of the trial process on which we all rely, would be damaged." He then went on to urge trial judges to caution jurors in the strongest possible terms not to use the internet to research or comment upon the cases they are sitting on. The time has come for such a warning to become a staple of Canadian pre-trial jury instructions. Failure to do so leaves us at risk of adopting ostrich behaviour with our analog heads buried deep in the digital sand. Justice demands no less.

$1.8 billions dollars. That’s what the Truth in Sentencing plank of the Federal government’s ‘get-tough-on-crime’ policy will cost in new prison construction alone over the next five years. We’re not even talking about what it will cost to hire the additional correctional service employees to staff these new prisons. Keep in mind as well that Truth in Sentencing – which eliminates the long-standing two-for-one credit on pre-trial custody – is just one of the many new so-called anti-crime initiatives either already in force or soon to be in force courtesy of the Tory law-and-order agenda.

As a defence lawyer writing on this topic, many people will understandably roll their eyes and accuse me of getting rich off the back of Canada’s perceived ‘soft-on-crime’ history (an accusation I will most assuredly plead “not guilty” to). To those people I ask you to indulge me for just a few moments. Yes, I make a living defending people accused of crimes. I also happen to be a citizen and resident of the same communities you all live in. I own a home I don’t want to be broken in to. I drive a car I’d prefer never get stolen. I want my wife to be able to walk through the park alone at night without being sexually assaulted. I pray my children never meet a paedophile. In short, I want to eliminate crime as much as you do. If crime were to be miraculously banished into obscurity tomorrow, I suspect none of you would begrudge me my employment insurance benefits and I would happily transition to a life of blogging, or travel writing. Maybe I’d even teach.

Now, with that out of the way, let’s address the issue at hand. If I had $1.8B to spend on fighting crime, would I be best served by using that money to keep criminals in jail longer? To answer this question in an intelligent and honest way, one needs to be equally intelligent and honest about the nature of deterrence. We put people in jail for a number of reasons. One perfectly valid reason is punitive. We want to punish those who have broken society’s social contract. It makes us feel good to see a bad guy get his due. Admittedly though, beyond satisfying our inherent desire for retribution, jailing people because it makes us feel good is the least utilitarian justification for incarceration. 

From a policy perspective, deterrence is a much stronger peg upon which to hang our custodial hats. We throw people in jail to convince the incarcerated individual to shape up, and to send a message to his friends on the outside that if they break the law as he did, they too will be sent to jail – specific and general deterrence respectively. Once we start analyzing legislative reforms like Truth in Sentencing, and increases to mandatory minimums, through the lens of our deterrence objective, the misdirection of our government’s crime bills becomes readily apparent. Virtually every comparative sentencing study in existence has told us that incarceration does a terrible job of deterring anybody. America, with one of the highest incarceration rates on the planet, has to yet to reap the crime-free panacea that should surely have resulted from their decades of get-tough-on-crime legislation. In fact, there are many reasons to believe that lengthening prison sentences actually makes society less safe in the long run by creating custodial breeding zones in which criminals network and reinforce their anti-social tendencies only to be released into society more dangerous than they were when they went in. But you don’t need to be a social scientist to reach this conclusion – you just need to think like a criminal.

Let’s assume for the moment that I’ve hit my breaking point. Legal Aid in Ontario is never going to pay me enough money to send my kids to that fancy summer camp they’ve been eyeing so I start rationally weighing the possibility of knocking over the liquor store near my law chambers. I’m pretty familiar with the various laws I’d be breaking and I figure with a good lawyer (like one of my partners) representing me, I’ll get no more than two years in jail if I get busted. Subtract from that double time for the days I spend in jail waiting for my trial and then knock a further third off my time for statutory release on Canada’s purportedly lax parole provisions and, bingo! I’m out in under a year. Fantastic. Point me to the nearest LCBO.

But wait! Thanks to the Truth in Sentencing amendments and changes to bail and parole provisions, now all of a sudden I’m going to do twice as much hard time! Better put aside my dreams of becoming a hardcore criminal and get back to docketing.

The example I have just presented is deliberately absurd. Yet it is precisely the type of calculus that our current crime reforms expect criminals to make. Deterrence isn’t failing because our sentences aren’t long enough. Deterrence is failing because nobody thinks they are going to get caught. If a potential criminal honestly believed that he would be caught committing a crime, whether the sentence for that crime was 2 years 4, years or 15 years would matter a lot less than the simple fact that he was going to get caught.

I’m going to assume that many of my readers have little to no experience planning a robbery so let’s focus this discussion on an offence we can more readily comprehend in order to sharpen our discussion on influencing criminal behaviour. Speeding. We all do it. Many of us do it all the time. Most of us have been caught and ticketed at one point or another. Yet, we still speed. Why? Because we know that if we speed every single day for 365 days per year, we might get caught once every 2-3 years. If the mandatory minimum fine for doing 20kph over the limit was raised to $1000 – or even to 30 days in jail – would we speed less? Maybe a little bit. What if you knew that every time you broke the speed limit by 20kph there was a 50/50 chance you’d get dinged with a $25 ticket? Or even a scant 10% chance of getting caught? Now that would cure even my lead foot.

Why do we assume that criminals are any more or less rational in deciding to engage in serious criminal activity? Granted, there are the truly psychopathic and the mentally ill who will continue to commit crimes even if they get caught 100% of the time but this tiny minority is the outlier of our prison population. If you surveyed Canada’s jails from coast to coast you’d be hard pressed to find even a handful of inmates who would admit to you that they expected to get caught when they committed their crimes. Rational criminals don’t bother calculating the length of their potential prison terms as they (correctly) perceive the probability of being caught and made to serve a term of any length as being infinitesimally small.

Let’s apply my speeding example to a common but far more serious criminal offence – impaired driving. Ontario has one of the most draconian penalty provisions for impaired driving anywhere in the world and our law-makers show no signs of reversing that trend. Why would anyone risk a criminal conviction, loss of their licence for 12 months, and a minimum $1000 fine to drive home drunk? Because – they don’t think it’s much of a risk at all. In fact, they’ve probably done it dozens of times before and never been caught. Take that same average drinker and convince him or her that they have a 25% chance of being arrested if they drive home drunk and the penalty becomes almost irrelevant to their calculus because, no matter what the penalty is, it’s not worth it.

So, what would I do with $1.8B in Federal dollars to truly make our communities safer? Set up funds to allow Provinces and municipalities to hire police officers to better enforce the laws we already have. You don’t need to enact new mandatory minimums or keep offenders in jail for a few extra months – all you have to do is convince them that they’re going to get caught in the first place.

Many of you are likely already familiar with the alleged facts in the disturbing and complicated case of Captain Robert Semrau. For those who are not, here’s a quick refresher. 

Capt. Semrau was serving a tour of duty with the Canadian military in Afghanistan. He was assigned to a small Operational Mentor and Liason Team (OMLT) tasked with working hand-in-hand with a larger force of Afghani military assisting them in becoming a self-sufficient fighting force capable of challenging the Taliban militia on their own when Canada’s mission comes to a close. On Oct. 19, 2008 his orders were to troll Helmand Province for Taliban and engage with deadly force. Capt. Semrau and his team found exactly what they were looking for and were soon engaged in a firefight. Back-up was called and a pair of U.S. Apache attack choppers sprayed the area with 30mm cannon fire. Pressing forward, the solidiers came upon two of the victims of that fire. One was clearly dead. The other was described as lying in a pool of blood with a gaping hole in his back “the size of a dinner plate”, one leg pock-marked by shrapnel tenuously attached to what remained of his foot, and “a fist-sized laceration to his stomach”. The OMLT soldiers and their Afghan counterparts were still in the field with little knowledge of how many Taliban remained in the area. Medical evacuation was not available.

What happened next is the subject of great scrutiny at Capt. Semrau’s military trial on charges of murder. Prosecution witnesses differ on a number of salient points but all seem to suggest that Capt. Semrau then fired two shots at the fallen Taliban, ending what little was left of his life. These same witnesses are equally unanimous in their explanations for Capt. Semrau’s alleged actions: mercy killing.

As a criminal lawyer, a quick review of this case’s outline reveals many of the usual defences that can arise in criminal trials: no body was ever recovered leaving a serious absence of forensic evidence and witnesses appear to rely heavily on uncorroborated hearsay while conflicting with each other’s statements. However, in the unique facts of Capt. Semrau’s case, the greatest challenge faced by the prosecution may not be in proving its case beyond a reasonable doubt, but in maintaining moral legitimacy when imposing the obligatory life sentence for murder upon a decorated soldier who, if found guilty, would be responsible for an apparent mercy killing of an enemy combatant.

The lead prosecutor in the case, Lieutenant –Colonel Mario Leveillé, has been quoted as saying, “It is shockingly unacceptable and it is the type of behaviour we could not accept in Canada.” Although referring to the conduct of Capt. Semrau, one could be forgiven for thinking that the same could be said for a legal system that would sentence a soldier in these circumstances to life imprisonment.

The case has a chillingly personal dimension for me. As I have written before, one of my colleagues is right now serving in Afghanistan in the very same capacity as Capt. Semrau was — deployed in a Canadian OMLT.

Like other scribes who have written on this tragic story, I am reminded of the sardonic words of Frances Ford Coppola’s Captain Willard in the Vietnam opus, Apocalypse Now, when he opines “Charging a man with murder in a place like this is like handing out speeding tickets at the Indy 500.” Are we asking the five-member military jury in Capt. Semrau’s case to play the proverbial speed-trap cop at an Afghani Indy 500 race? When the American helicopters opened fire on the Taliban position, their intention was clear; their goal indisputable. Kill. This goal was achieved in the case of the first insurgent and, based upon the evidence available, appears to have been well on its way to succeeding in the case of Capt. Semrau’s insurgent. Wherever one falls on the ultimate question of whether mercy killing a dying enemy in theatre constitutes murder, even those most disturbed by the alleged actions of Capt. Semrau find themselves nauseated by the thought that this 36 year old soldier could spend a minimum of ten years in a federal penitentiary awaiting his earliest parole eligibility while his two daughters grow up without him. Canadians have grown sadly accustomed to seeing young children weeping graveside as caskets draped in the maple leaf return too often from Afghanistan. Watching a once-proud father through the grill of a prison’s bars is a fate arguably worse than death. It attaches a level of opprobrium and a stench of stigma that ought never to apply to someone found guilty of the facts in this case.

Ivory tower academics and arm-chair writers (like myself) can debate for eons whether Capt. Semrau’s alleged conduct is a heinous crime, a moral failing, or a brave act of mercy towards a foe on death’s door-step. Regardless of where you fall on the question of whether ‘mercy killings’ are criminal, the lack of flexibility in the sentencing of this offence highlights important lessons that can be applied to a broader spectrum of criminal law policy.

First, recent Tory amendments whittling away at judicial discretion in sentencing by increasing the number of offences subject to mandatory minimum penalties will only create new and more tragic examples of cases where a manifestly unjust sentence is required by statute. Capt. Semrau’s case is but one example of the disproportionate effect mandatory minimums can have in mercy killing cases (the circumstances of Robert Latimer and his severely disabled daughter also come to mind).

Second, the rarely discussed spectre of jury nullification has the potential to nudge its way into the Semrau case. Simply put, jury nullification refers to the phenomenon of jurors flatly refusing to apply a law in circumstances where society’s view of criminality differs from that of our Criminal Code. The most famous example of this oft unspoken jury behaviour dates back to the numerous abortion prosecutions against Dr. Henry Morgentaler. It was undeniable on the face of the evidence that Morgentaler was brazenly and repeatedly violating Canada’s anti-abortion law (since repealed) yet jury after jury refused to register a conviction. 

The dynamics of the potential for jury nullification in the Semrau case are particularly intriguing as a number of factors mingle together making it very difficult to accurately predict what may happen. In a charge of murder, the jury is painfully aware of the only sentence that can follow a guilty verdict. This adds a tremendous pressure upon the jury who cannot take comfort in thinking that their verdict will be tempered by a merciful sentence. However, it is difficult to conceive how a five-member military jury (contrasted with the normative twelve-person civilian juries) would be prepared to deviate from the letter of the law. After all, being themselves career military men and women, these jurors are deeply inculcated in a culture of precise application of orders through their chain of command. To knowingly thwart the application of a law, even where that law may run afoul of blurry concepts of justice, may well be beyond their scope.

And so, legal observers are left to watch as the trial continues. When soldiers are sent to war with orders to kill, the line between a job well done and murder can become easily obscured by the Afghan sand blowing across the valleys of Helmand Province.

After much stalling and anticipation Ontario has finally enacted a formal ignition interlock program designed to relieve some of the burden on our courts caused by massive amounts of impaired driving litigation.

Effective Aug. 3, 2010, persons convicted of a first impaired driving offence that does not cause bodily harm or death will be eligible for reduced licence suspensions if they comply with the regulations of the program — the primary requirement being the installation of an ignition interlock device (essentially a mini-breathalyzer machine attached to the ignition of your vehicle making it impossible to operate the car unless sobriety is confirmed).

The program is intriguing in at least one respect in that it has been clearly designed to encourage early guilty pleas. Candidates for the program are divided into two streams. Stream A consists of persons who enter a guilty plea within 90 days of being charged whereas everyone else falls into Stream B. Stream B offenders can apply to have their mandatory minimum one-year licence suspension shortened to as little as six months provided they comply with the eligibility requirements and regulations of the ignition interlock program. In comparison, those who 'make their peace with Her Majesty' within 90 days of being charged can see their suspensions reduced to three months after which they can operate a motor vehicle in compliance with the ignition interlock provisions.

Transitionary rules are in place for those who are already facing impaired driving charges that are more than 90 days old but have not yet come to trial. These individuals will have the opportunity to avail themselves of the shortened Stream A suspensions provided they enter pleas within 90 days of the Aug. 3 commencement of the new regulations.

It is difficult to predict exactly how far-reaching the effect of these new provisions will be on reducing impaired driving trials in our courts. The regulations fall short of the inducements I have previously proposed in that they still require at least a 90-day "absolute suspension" and still require a criminal conviction which for many accused persons is an even greater concern than the loss of their licence. Having said that, there is no doubt we will see an impact going forward and the belated enactment of these regulations is a step in the right direction.

Love hurts. Never has that expression been truer than in the misguided Kafkaesque labyrinth that forms the core of Canada’s domestic violence courts. Domestic violence charges are in a pitched battle with impaired driving cases to see who can destroy the crumbling foundation of our nation’s criminal courts first. They form a massively disproportionate percentage of the court’s daily caseload to the point where many courthouses have had to set aside an entire day each week just to deal with the volume of administrative set-date appearances. Only a small fraction of these domestic abuse cases involve repeat offenders, personal injury, weapons or sexual charges. The vast majority of the domestic cases clogging our system consist of first offenders charged with pushing, slapping, punching, kicking or threatening their partner in the course of an argument, yet causing no injury.

With the scene now set, let’s turn to getting some obvious but important truisms out of the way. Domestic violence is a serious problem. Protecting vulnerable spouses – predominantly but not exclusively women — is a valid, and indeed necessary, goal of our criminal justice system. The dysfunction arises when our justice system chooses to address domestic abuse crimes by treating the exception while ignoring the rule. Our response to the over-arching fear of the one-in-ten-thousand case where a first-time accused murders his spouse while on bail has been to treat every single person in the system as an acknowledged serial killer. 

Every element of our justice system’s domestic violence strategy is directed by an ill-conceived over-zealous “zero tolerance” policy. As soon as a report of domestic violence is made to police, no matter how trivial or unsubstantiated, police are directed to lay charges and hold suspects in custody for bail hearings. Our crown attorneys are then instructed to oppose release on bail unless the strictest terms are imposed. These terms will inevitably include requirements that the accused reside in the company of his surety and have absolutely no contact with the complainant for the many months that it will take our overburdened system to bring the case to trial. Virtually no weight is given to desire of the complainant herself to see charges withdrawn or to have her spouse return to the family home. The end result is to turn an isolated incident perpetrated in the heat of anger into a year-long persistent torturing of a family battling all the emotional and financial struggles that plague every one of us at one time or another.

Once the accused is faced with the crushing reality of a year or more battling charges (all the while separated from his family) our system will dangle a carrot offering to vary bail conditions to permit family reunification if the accused will enrol in a course of court-ordered counselling and enter a guilty plea to the charges. It is here that our system reveals its biggest failing. By insisting that an accused accept a conviction (or even a finding of guilt) we have brought into play a host of potential employment and travel consequences which create a strong disincentive for anyone to actually participate in the very counselling we think will most contribute to the future safety of this family. If our system is serious about doing what is in the best interests of victims of domestic violence, it is incumbent upon police and crown attorneys to shift away from paternalistic zero-tolerance policies to actually listen to the wishes of their complainants and help repair a family in crisis rather than putting up legal roadblocks that only serve to tear it apart.

The solution is to stop using a bazooka to squash a mosquito. 

In cases of an accused with no prior criminal record being charged with assault and/or threatening where there are no injuries, police should be directed to lay a charge but release the accused on a Promise to Appear and an Own Undertaking (Forms 10/11.1). The Undertaking will require the accused to abstain from communicating directly or indirectly with the complainant for a period of 72 hours. This is designed to allow a cooling-off period from the heat of the moment that lead to police being called in the first place. A separate condition would prohibit any communication with the complainant for the duration of the Undertaking except with the written revocable consent of the complainant to be filed with the local Victim Witness Assistance Program (VWAP). This permits families who are so inclined to re-unite and begin working on the underlying tensions that lead to an allegation of violence in the first place without encouraging emotional and financial ruin. If a spouse is not interested in reunification with an accused, the accused is out of luck and will remain barred from the home. 

Finally, at the first court appearance, early pre-screening by crown attorneys would identify these cases and offer meaningful beneficial resolution of the charges. An accused should be encouraged to enrol in a court-sanctioned domestic violence program [these already exist all across Canada and are known variously in Ontario as PARS (Partner Assault Response Program), EIP (Early Intervention Program) or DAP (Domestic Abuse Program)]. If the accused completes the program to the satisfaction of the program coordinator, the accused will be asked to enter into a Peace Bond pursuant to s. 810 of the Criminal Code and all criminal charges will be withdrawn. The Peace Bond has a 12 month duration and can be customized to address issues specific to the individual but will most commonly prohibit contact with the complainant (except again with his/her prior written revocable consent) and will prohibit the accused from being in possession of any weapons.

These relatively small shifts (addressing domestic violence release conditions and substituting peace bonds for guilty pleas) would have far reaching positive impact on individuals charged with domestic violence offences while dramatically easing the burden these charges create on our sagging criminal courts. If we are serious about efficiently and meaningfully encouraging justice and rehabilitation in our domestic courts, it is past time to engage in a mature discussion about the failures of our existing policies while being open to real change.

Following on the heels of Ontario's draconian Road Safety Act (discussed at some length in one of my earlier Slaw posts) The B.C. Liberal government has introduced legislation that would create a Provincial offence for driving with a blood alcohol concentration (BAC) between 0.05-0.08 (the Criminal Code legal limit is 0.08). The penalty for a first offender would be a 3-day driving ban plus a $200 fine rising from there for each subsequent offence.

Not to be outdone by Ontario though, B.C.'s law proposes to go a step further by also creating a Provincial offence of driving over 0.08. In this case, penalties would start with a 90-day licence suspension and a $500 fine.

It is with some irony that I note that this type of non-criminal regulation of impaired driving is very similar to what I proposed in this space only a month ago. The only differences (for anyone keeping track): I was prepared to impose heftier penalties that mimicked the existing fines and suspensions for the Criminal Code offence of impaired driving and, my proposal was predicated upon replacing certain Criminal Code impaired charges with Provincial alternatives whereas B.C. appears perfectly content to penalize people twice for the same offence.

Yes. You read the title correctly.
No. I'm not crazy. Although one might argue that point considering that I am about to propose a solution to the intractable problem of impaired driving that would, if implemented, wipe out a large percentage of my practice.

When the typical impaired driving client approaches me they invariably express one or both of the following two concerns: first, they want to avoid the stigma of a criminal record and second, they want to keep their driver's licence. As the law now stands, neither of these objectives are possible without winning the case outright. If police have made some glaring procedural error in the course of the arrest, you may be able to 'pull a Jaffer' and negotiate a withdrawal of the criminal charges in exchange for a plea to the Highway Traffic Act offence of Careless Driving, but for the vast majority of individuals your choices are to suck it up or fight the case at trial.

Who is the so-called "typical" impaired driver? I can only speak from the experience of my own practice having represented hundreds of such cases over the years. They are mostly middle class men, employed, with no prior criminal record of any kind, who have a blood alcohol concentration of between .09-.15 (with the legal limit being .08), whose driving resulted in no injury or damage.

Decades of public outrage and lobbying by organizations like M.A.D.D. have led to a single consistent legislative response to the problem of impaired driving: tougher penalties. While one could argue that strict consequences have contributed to a steady decline in the number of impaired drivers over the year, they have also had the unintended consequence of creating a multi-million dollar industry dedicated to arguing these cases in our increasingly over-burdened courts. Impaired driving is unique in criminal law as being the only charge in the Criminal Code in which it is legally impossible to motivate an accused to plead guilty. In every other case, the Crown always has at their disposal the option of offering some form of reduced sentence in exchange for an early guilty plea that strongly encourages an admitted offender to make his peace with Her Majesty. Conversely, in the typical impaired driving case I described above, I routinely must advise my clients that they have nothing to lose by going to trial and nothing to gain by entering a guilty plea. This is a function of the draconian mandatory minimum penalties now imposed. No matter what the circumstances of the offender, a first-time impaired driver who is found guilty cannot do better than a $1000 fine and a one-year licence suspension. With the mandatory minimum being so severe, I also advise my clients that it would be virtually unheard of for them to be sentenced to anything more than the minimum should they take their case to trial and lose. Thus, a protracted trial is virtually guaranteed.

Funny things happen at trials. Courts get overbooked. Witnesses fail to show up. Paperwork gets misfiled. Charter defences succeed. Roughly 50% of those who take their impaired driving case to trial end up being acquitted (according to the Traffic Injury Research Foundation's 2007 report which admittedly predates the recent removal of a key impaired driving defence that I expect will lower that acquittal rate somewhat). The rest get sentenced to the same mandatory minimum they would have received had they plead guilty ten months earlier when they were first charged.

If you're really interested in making a further dent in the number of people who drive drunk, M.A.D.D. and others will have to admit that constantly ratcheting up the penalties will only encourage even more people to roll the dice at trial. The current legislative climate appears focussed on making sure no one can win a trial by eroding all the legal protections afforded to citizens in other types of cases. Current proposals include allowing random roadside breath screening and eliminating the right to counsel before breath tests. Rather than encouraging the wholesale dismantling of individual rights and freedoms in the name of slaying the drunk driving dragon, allow me to propose a more thoughtful solution.

Take the typical impaired driver I described earlier (who forms the overwhelming majority of people in the system on these types of charges) and remove them from the criminal code altogether. Enact individual provincial regulations under the respective Highway Traffic Acts to deal with the first-time drunk driver who causes no injury or accident and has a blood alcohol reading of less than double the legal limit. The penalty under this new provision would still be a minimum $1000 fine (heck – double it if you really want to swell government coffers) along with a term requiring offenders to install – at their own cost – an ignition interlock device (IID) in any vehicle they will be operating for a period of one year. The IID is not new. These devices are essentially mini breathalyzers installed in a car that require the driver to provide a sample proving sobriety before being able to start the vehicle.

Am I being soft on crime? This proposal would actually see an increase in the number of people being monitored for impaired driving as all those thousands of people who are now taking their chances at trial and winning would finally be motivated to enter an early guilty plea. Rather than finding themselves deported, unable to travel, or ineligible for work due to a criminal conviction, they would instead be found guilty of a serious traffic offence. Their insurance premiums would skyrocket as is already the case but their lives wouldn't be ruined. For those clients who absolutely need to drive (usually for employment purposes), they would be given the opportunity to do so without compromising public safety one iota. In fact, each time they stepped into their car and blew into the IID, they would be reminded of just how serious their actions were.

You can't accuse me of being a self-serving bleeding-heart defence lawyer either. If this proposal were to be adopted, overnight I would lose virtually all of my impaired driving business. The only reason people pay me thousands of dollars to take their cases to trial is to avoid the criminal conviction or to keep their licenses. Now, they would be able to do both without endangering the public in any way.

The system would benefit dramatically by a massive increase in the number of guilty pleas freeing up court and crown resources to target more serious impaired driving cases and other criminals who pose an even greater risk to the public.

A rational discussion of the benefits of such an unconventional proposal from our lobbyists and politicians? I'd drink to that – and take a taxi home from the meeting.

For many years now my firm, Adler Bytensky Prutschi, has enjoyed the opportunity to host a student placement for Osgoode Hall Law School's Criminal Intensive Program (CIP). This week, for the first time in the history of our involvement with the program, we were informed that "due to low enrolment in the course this year" a student would not be assigned to us.

While I am only hypothesizing, I fear that this storied program's current enrolment woes are tied directly to the continuing erosion of our legal aid system. Barely a decade ago when I was a student in the CIP, the program was the hottest ticket in law school. Everyone with even a passing interest in criminal law desperately wanted a shot to be a part of its innovative syllabus and unique placement opportunities. Even students who did not foresee a future practicing criminal law would frequently put their names forward for consideration as it was considered the best opportunity for law students generally, and potential litigators in particular, to rub shoulders with superb practitioners and learn the nitty gritty of the "real" practice of law. The alumni of Osgoode's CIP reads like a who's-who of this Province's greatest lawyers. Those of us who had the privilege of participating count ourselves very lucky to be rooted in such auspicious company.

Now, it appears that students have watched their seniors struggle with the increasing hardships of economic survival in a field where legal aid has collapsed to a shadow of its former self. Couple the bleak prospects afforded by legal aid retainers with law school tuition fees that have skyrocketed and one cannot blame any reasonable student for abandoning a future in criminal law.

Osgoode's CIP is the proverbial canary in the coal mine. As more and more students shun the practice of criminal law the real loss will be felt in short order by our justice system, and indeed the entire general public, as an atrophied defence bar steps in to fill the big shoes of those lawyers now hanging up their robes. Without a steady influx of bright legal minds into programs like the CIP, the future of our criminal bar is in danger. As negotiations over effective funding for legal aid appear to be stalling, will the government heed this warning?

Hold Firm.

Yesterday's National Post contained an interesting story regarding government programs around the world targeted at employers of military reservists. In an effort to support troops overseas legislators in the U.K. and Australia have enhanced job protection laws while simultaneously creating compensation programs that pay employers of reservists a stipend to help offset the loss of an employee during his or her tour of duty.

Here in Canada, federal laws protect the jobs of deployed reservists while recent amendments to Ontario's Employment Standards Act explicitly permit unpaid leaves of absence for reservists deploying overseas. The C.D. Howe Institute is recommending Canada go one step further and adopt a plan that would provide employers with grants of up to 80% of their employees' salaries to a maximum of $47,200 per employee for as long as 16 months while that employee is training, deployed, and recovering upon return.

As a small firm (six lawyers) with one of our associates currently serving his reserve duty in Afghanistan I can't speak strongly enough in favour of such a proposal. The sacrifice and commitment exhibited by our associate, Jason Morische, is undisputed. What is sometimes forgotten is the sacrifice made by an employer — particularly a small business which describes many law firms — when a key employee deploys overseas.

In our firm, Jason's deployment has necessitated a significant shuffling of briefs to spread his active files across the other lawyers in the firm while managing the loss of revenue that comes with his extended absence. Overhead costs tied to a temporarily absent employee (such as office rent, secretarial support, and phone lines) continue to be charged and the employer cannot easily mitigate these in light of the anticipated return of the employee. Moreover, a reservist's leave of absence is considerably different than an employee who departs for other reasons such as a maternity leave. Speaking again from Jason's example, over the course of the six months preceding his departure, the military provided us with at least three different start dates for his deployment. Similarly, Jason's original return date has been changed a number of times and we still lack any certainty as to when the actual end of his tour will be. Obviously, one can't expect precise scheduling for an overseas combat tour, but compensation for the havoc this wreaks on the jobs reservists leave behind would be welcome relief to those of us who 'support our troops' in a most meaningful and important way.

From time to time, two news-worthy stories intersect in such a way that they just cry out for comment.

Much has been made in the media these past few weeks of the high-profile arrests of several prominent members of the Toronto Humane Society (THS). These accuseds have been vilified in the public consciousness and stained by the ultimate mark of shame for any animal lover — charges of cruelty to animals.

Reams of ink have been spilled outlining the deplorable conditions and poor state of health many of the animals were found in yet the central tenet of this investigation appears to revolve around what can best be described as a philosophical dispute. When is it more cruel to allow an animal to live than to make it die?

The power of the State to criminalize and imprison individuals should be used sparingly and only in cases of clear moral wrong-doing coupled with demonstrable harm. Where reasonable people can differ over the optimal solution to an intractable question, the criminal law ought to remain well outside the boundaries of such a discussion. Indeed, s. 445.1 defines criminal cruelty to animals as anyone who "wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird." Although we are a long way away from a trial, and it is difficult to speculate as to the ultimate nature of the evidence, it seems plausible that THS executives will argue that they are being victimized for refusing to murder animals in the hopes of easing the animals' suffering. Whether a seriously ill cat is better served by being 'put down' (as we euphemistically call it) or whether it should be left to die naturally is a question that should not be answered in a criminal courtroom.

While I am rarely a proponent of trotting out the over-used slippery slope argument, the second story which caught my attention this week seems to indicate we may already be careening wildly down that aforementioned incline.

The National Post cites a Reuters report that two Australian reality TV stars have been charged with cruelty to animals. It appears that Italian Chef, Gino D'Acampo and British actor, Stuart Manning, sought to make the best out of a bad situation during their recent run on I'm a Celebrity…Get Me Outta Here. After having the good fortune to catch a rat during their wilderness abandonment the two enterprising contestants turned it into a tangy risotto which was then happily eaten. Aussie authorities believe the cook-out was a ratings stunt and therefore cruel although it is admitted that the rat was indeed eaten by the pair.

Is this where our misguided attempts to extend the criminal law into every facet of our lives has lead? Have we not just criminalized every night but Tofu Tuesdays on the Food Network? Of course the rat was eaten for ratings — it's a television show! Betsy the cow was happily devoured on Iron Chef last week but I certainly hope the LAPD isn't planning a raid on Kitchen Stadium even as I write these words.

Without being too glib about the serious allegations in the THS case, I would remind police and prosecutors that before the State crushes the lives and reputations of citizens presumed to be innocent, we ensure that the conduct that forms the basis of our charges be more than simply objectionable or questionable. It must be criminal.

Another (hopefully) welcome diversion for all those toiling in the legal field. Head over to Precedent Magazine to read my latest story. Gearing up for the Games covers my efforts to design the perfect Vancouver 2010 get-away for the upcoming Olympic Winter Games without re-mortgaging my home.

The HST is coming and its ramifications for those who practice law and those who purchase legal services is going to be extreme.

While other industries (notably mutual funds, auto, and real estate) are all engaged in full-court-press mode as they lobby the Ontario government for exemptions, we in the legal services field have remained disturbingly complacent. The problem is simple to define. Starting in July 2010 when Ontario's GST and PST are replaced by the new Harmonized Sales Tax, virtually everything, including legal bills, will be subject to the new 13% HST. For those of you who are blessed with leaving the billing headaches to someone else in your firm, clients currently pay only the 5% GST — the 8% Provincial Sales Tax does not apply to legal services. To put it simply, legal bills are going up 8% across the board in every area of law purely to cover the tax consequences.

The implications of this tax grab are dire and far-reaching. Access to Justice is directly threatened by this substantal jump in the cost of legal services. Our courts are already struggling with the costs and burdens associated with an increasing number of self-represented litigants who have been driven to stand alone in court by the crushing burden of high legal fees and expensive court proceedings. The HST will have a direct negative impact on the capacity of individuals to have their cases heard in our Province's courtrooms. The consequences for civil court cases, spousal support claims and child custody issues are serious indeed, but the devastating impact of this tax will be felt most acutely in my area of practice – criminal law.

The typical defendant in a criminal case already struggles to meet what, by any other legal specialty, would be considered modest legal fees. They grimace to learn that the 5% GST applies to their bills and many will find that the 8% addition imposed by the impending HST is the proverbial straw upon the camel's back. The HST will force an increasing number of defendants to turn to Legal Aid for assistance — a program who's utter inadequacy and imminent demise has been well publicized. The only remaining alternative is to stand up in court facing criminal charges alone and unrepresented.

Lest one believe that lawyers themselves will be in a position to fully download the cost of the HST to their clients, I suggest looking at your 2010 Law Society dues and insurance premiums. Both are increasing in part to account for the increased tax burden levied against these programs. In fact, Legal Aid's own budget will be hit hard as they too must cover the 8% increase creatd by the HST on all the files they currently support.

So, while lobbyists put the spit shine on their submissions to government as to why a new car, new home, or mutual fund, ought not to be subject to additional taxation, how is it that we lawyers appear to be entirely silent on a direct attack against the public's ability to access the jusice system in which we toil? Time is running out. The tax man cometh.

Another welcome diversion from the stressors of our daily legal lives.

Head over to Precedent Magazine to read my most recent travel column. Destination: Costa Rica.

Allow me this short shameless plug for my latest endeavour. If you're looking for an entertaining diversion from the high-stress practice of law, head on over to Precedent Magazine where you can read my first entry in a monthly travel column, cheekily entitled The Crime Traveller. This week, I bring you the adventures of summer in Alaska.

Sometimes it actually hurts to be right.

If you've followed any of my earlier comments on twitter, in the media, or in this space on Slaw (Ontario's New Road Safety Act) you will be familiar with my growing predictions that Canada is moving towards legalized random breath alcohol testing. Never in my wildest dreams did I think that the timeline for such a draconian measure would be a mere six months.

Yet, today's National Post (Sunday October 4, 2009) is reporting that the Federal Department of Justice is considering exactly such an amendment.

As you weigh the pros and cons of allowing police the authority to take this extreme step, you will no doubt consider the very real dangers posed by the menace of impaired drivers on our roads. Having said that, it is important to understand fully what is now being proposed. The current RIDE programs and Highway Traffic Act provisions we are familiar with allow an officer to detain your vehicle for a matter of minutes. During that time the officer will ask you some basic questions, shine a flashlight in your face to get a read on your eyes, and lean into your open window to take a whiff of any alcohol-laden breath. In those short moments the officer will either come to a belief that you have consumed alcohol and make a lawful demand for you to provide a breath sample, or send you happily on you way (often with a coupon book for 0% alcohol beer tucked happily into your glove compartment).

If the Department of Justice proceeds with the trial balloon now being floated, officers could dispense with the chit chat and simply demand that any and all drivers submit to a roadside breath test. This is a considerably more invasive and time-consuming procedure requiring you to park your car, exit the vehicle and provide a suitable breath sample into a hand-held measurement device. Fail that and it's off to the station with you — this time chauffeured behind an inch of shatter-proof glass while handcuffed in the rear of a police cruiser.

Lest you be thinking that the roadside test is merely a 'screen' with no consequences for those who don't fail it, I remind you of the recent introduction in Ontario of the Road Safety Act. The RSA, as explained in detail in my earlier Slaw post, allows your licence to be suspended on the spot even without having failed the test if you blow within the "warn" range. This suspension cannot be appealed and there is no trial.

So, to recap, Ontario drivers may soon be pulled over without cause, detained and required to submit to a roadside breath test considered too inaccurate to be admissible in a court of law, resulting in the administrative suspension of their licence, and the entire process is not subject to trial or appeal. I can't argue with the serious threat posed by impaired drivers on our roadways, but at what point do we ask — is the treatment worse than the disease?

Members of the Slaw community might remember an article I wrote some weeks ago entitled Twittercles in which I marvelled at the impact Twitter had on our student recruitment this year.

As a follow-up, I invite you to read a wonderful piece authored by the student Twitter helped us to discover, Joel Welch. As a former RCMP officer turned defence lawyer, Joel has a fascinating perspective on both sides of the criminal law fence and I think you may be interested in hearing his musings.

Arrested Development.

The controversial cash grab…er, law…known as s. 172(1) of the Highway Traffic Act along with Regulation 455/07 have been deemed unconstiutional by a Judge in Napanee in the case of R v. Rahman (unfortunately, the case is not currently reported and therefore I cannot provide a full text of the decision but thank you to James Morton for summarizing the case on his blog).

The law essentially creates serious penal consequences for excessive speeding (anything over 50kph above the posted limit) and had been challenged constitutionally before in several failed attempts. This time around, Justice Griffin was convinced that the statute created an absolute liability offence, a serious no-no when penal consequences attach to a conviction. The ruling confirms that there is no mens rea (intent) bundled within the offence of 'super speeding' thus such an offence, by its very nature, cannot be punished by criminal sanctions such as jail (which IS indeed a possible sentence for stunt driving). One could regulate super speeding in the same way as run-of-the-mill speeding…by way of a fine. But if you are going to subject accused individuals to the risk of imprisonment, you'd better be able to show that they had some intention to commit a "stunt" before you toss them in jail for so-called "stunt driving".

Admittedly, this reasoning is built on somewhat shaky ground with the possibility that an appeal court will be convinced that the defence to the charge is one of due diligence. There are several examples of offences that have the appearance of creating absolute liability but have been found to be constitutional as an accused can claim that he or she took reasonable steps to avoid the commission of the offence. In the case of stunt-driving by excessive speed, one need only ensure that your speed never exeeds 49kph over the posted limit. Justice Griffin did address the due diligence defence and found that it did not exist in the specific facts of stunt-driving-by-speeding. This analysis is based on the language of the Regulation which discusses the intent necessary for 'stunting' but does not address excessive speed.

This decision may be on the fast-track to a crown appeal so stay tuned.

Another year of interview insanity has come to an end and my firm, Adler Bytensky Prutschi, has happily matched with an outstanding candidate who we have very high hopes for in the 2010-2011 articling year. While this fact on its own is likely of little interest to Slaw readers, the technophile lawyers who follow this blog on a regular basis may be intrigued to hear how twitter – for the first time in our firm's history – became unwittingly a very central part of our interview process.

Having started a legal twitter feed some months ago (www.twitter.com/prutschi), I earned a number of sideways glances from my partners as I began to blog intermittently on cases of interest within our firm along with commentary on anything that caught my eye in the broader criminal justice system. As it turns out, a significant number of law students across the country were following my tweets. While this fact may have provided a totally unnecessary ego boost to a type-A criminal lawyer like myself, I had low expectations for the impact, if any, this following would have on our annual recruitment ritual. As it turns out, I was wrong.

A very high percentage of the exceptional students we interviewed had been following my feed and as such were tuned in to the kind of work our firm does, along with the legal issues that interest us, in a way that has never before been possible. Our interviews often resulted in engaging discussions about recent cases and trends within the criminal law field. It gave us as interviewers, rare insight into the minds of our candidates which we simply have been unable to glean in the course of a one-hour meeting in previous years. In some cases, we even began following the tweets of our candidates and used that information as part of our overall assessment of their quality. On the flip side, many students came armed with a level of knowledge about the day-to-day operations of our practice that was simply unprecedented in previous years.

While the jury is still out on the effectiveness of twittering to attract clients in our field, we cannot deny that it has had a very significant positive impact on our student recruitment in a very short period of time.

@Prutschi welcomes @Joel_Welch to the firm as our 2010-2011 incoming student-at-law.

Last week I posted my commentary here on Slaw on the recent decision of the Supreme Court of Canada (SCC) in R. v. Grant.

To recap briefly, Grant was a young black male who aroused the suspicions of some police by staring at them and "fidgeting". Hardly "reasonable grounds" to conduct an investigative detention, yet that's exactly what happened. In the course of a 'conversation' with police, Grant eventually admitted to being in possession of a small quantity of marijuana and a firearm. Despite finding his detention to be arbitrary and unlawful, the SCC ruled the evidence admissible under a refined test for exclusion of evidence articulated in Grant and three other sister cases released on the same day by the top court.

After posting my article, as is often the case, I received a number of comments from people who suggested that my position supporting exclusion of the gun in this case was needlessly "technical". The prevailing thinking appears to be that the police stopped Grant on a hunch, but their hunch unquestionably turned out to be correct and we should be applauding them for getting another gun off of Toronto's dangerous streets.

Now, I will be the first to admit that, having been found carrying drugs and a firearm on a pedestrian sidewalk in the middle of the day, Mr. Grant makes a poor poster-child for my argument. Consider then instead the case of Ron Phipps.

As reported in great detail in today's Toronto Star, Mr. Phipps was a letter carrier for Canada Post. Back in March of 2005, Mr. Phipps was filling in for the regular carrier on a route that took him through Toronto's posh Bridle Path. He was riding his bicycle while carrying two mail bags. His path took him criss-crossing across the street. He was wearing his Canada Post coat to shield himself from the March chill. He was, and still is, black.

Toronto Police Const. Michael Shaw was patrolling that same area at the time with a rookie officer he was training. They were on the lookout for a suspect described as male, white, Eastern European, driving a car who may have been involved in cutting telephone lines in the area. Mr. Phipps fit the bill.

The Toronto Star article makes no mention of what happened next yet one can surmise that Mr. Phipps was investigated. It would appear that he was never arrested or charged with any offence. In his complaint to the Ontario Human Rights Tribunal Mr. Phipps describes being traumatized by the incident, suffering from trouble sleeping and weight loss which have affected his other job as a personal trainer. Medication to help him sleep has damaged his eyesight.

In its decision the Tribunal stated the fact that Phipps "was an African-Canadian in an affluent neighbourhood was a factor, a significant factor, and probably the predominant factor, whether consciously or unconsciously, in Const. Shaw's actions."

The stench of repugnant racial profiling allegations permeates the Phipps case, but if one strips away any suggestion of race — assume for the moment that Phipps was white or Cnst. Shaw was black — one is left with a vivid reminder of the dangers of permitting the type of police conduct that took place in R. v. Grant. When police interact with the public in the course of an investigation, the very act of treating a person as a "suspect" does violence to human dignity and can have long-term ramifications for the person accused. Even if you question affording the protections of the Charter to Mr. Grant, I would urge you not to lose sight of Mr. Phipps. There are many more Phipps than Grants in this world, and how the law treats one inevitably determines how it will treat the other.

The highly anticipated Supreme Court of Canada (SCC) judgment in R. v. Grant was released this morning. Grant was a young black man walking in a neighbourhood patrolled by both plainclothes and uniformed police. During a routine patrol, plainclothes officers stated grant "stared" at them and began "fidgeting". A uniformed officer was tasked to "have a chat" with Grant and this officer requested biographical information from him during which time he told Grant to "keep his hands in front of him." The two plainclothes officers who had observed Grant earlier joined the uniformed officer and the three of them took up a strategic posture in front of Grant blocking his path on the sidewalk. As the "chat" continued, Grant eventually admitted to being in possession of a small amount of marijuana and a firearm.

In its judgment, while the majority of the Court supported a finding of arbitrary detention, they unanimously found that this breach was not sufficiently eggregious to warrant exclusion of evidence under section 24(2) of the Charter. This continues a recent history at the SCC and Ontario Court of Appeal (OCA) to actively consider the flip side of s. 24(2)'s rule against "bringing the administration of justice into disrepute."

Until relatively recently, the disrepute of the justice system was analyzed almost entirely from the perspective of the defence. The question typically being asked was: would the admission of this evidence at trial, having been obtained in an unlawful manner, tarnish the justice system's reputation for equality and fairness? If the answer was "yes", the solution was to exclude the evidence from the trial thus preserving the repute of the administration of justice.

However, for several years now courts across Canada, and particularly in Ontario, have responded to increasing gun violence and public outcries against perceived crime waves by turning the traditional test on its head. The SCC has solidified that shift with R. v. Grant now clearly stating that where the exclusion of evidence would bring the adminsitration of justice into disrepute, courts must balance this against the severity of the Charter breach with the judicial trend now explicitly favouring admission of evidence even where it is obtained unlawfully. This is particularly true whenever a firearm happens to be the piece of evidence being considered.

The implications of this decision, while not surprising having followed a clearly building trend to this point, could prove to be massive and revolutionary. One should expect emboldened police officers to aggressively pursue investigations with less concern about the constitutional legality of their behaviour knowing that the SCC has essentially endorsed a policy of "the ends justify the means". The ramifications will touch upon every interaction police officers have with the public including breath samples in impaired driving cases, the execution of search warrants, and on-the-street encounters as was the case in Grant.

Back in April I wrote a somewhat sarcastic article here on slaw.ca criticising the new Road Safety Act (“RSA”) as allowing “convictions without trials” (http://www.slaw.ca/2009/04/22/8208/). The story took on a bit of a life of its own resulting in some TV appearances that in turn generated a fair bit of commentary from the general public. One theme that ran through a vocal minority of those who called in to the talk shows took me to task for “overreacting” or being “alarmist” in my complaint that the RSA authorized police to issue tickets from which there is no appeal. I was reminded that charges under the RSA were not criminal and that police could be trusted to charge the right people. I retorted that the day might soon come in which even criminal charges were treated in this manner and that, in the name of expediency and ‘safety’ (whatever that means), we were giving up the very foundation of due process on which our legal system rests.

Sadly, it took under two months for the Ontario Court of Appeal to prove me right.

Last week Magdy Tadros learned the hard way that the presumption of innocence just ain’t what it used to be. Tadros was a social worker operating a group home in 2002 when he was arrested and charged with a series of sexual offences arising out of complaints made by some children in the home. A year and half later in October, after careful analysis by the assigned crown attorney, all charges against Mr. Tadros were withdrawn. Tadros entered into a Peace Bond with the court promising to abide by certain conditions while stating through counsel clearly on the record that he “does not acknowledge the facts alleged in the information”.

Understandably, Tadros thought his frightening ordeal was over with. He returned to the task of re-establishing his career and sought employment at a number of facilities as a social worker. As is standard practice, he consented to criminal background checks along with a vulnerable person sector screening. No doubt it came as quite a shock to Mr. Tadros to learn that information contained in his screening included the fact that he had been charged with sexual offences against children even though all such charges had been categorically denied by him and withdrawn by the crown. Not surprisingly, this disclosure threw a wrench in Tadros’ plan to get back into the social work field. He applied to the Superior Court of Justice (“SCJ”) and was granted an order prohibiting Peel Regional Police from disclosing the fact that he had been charged on future screens — until now.

In a dizzying judgment that jumps from analysis of privacy laws to Charter scrutiny, the Ontario Court of Appeal (“OCA”) unanimously reversed the decision of the SCJ stating the “right to liberty does not include the right to censure accurate information lawfully held.” The full text of the decision can be found at http://www.canlii.org/en/on/onca/doc/2009/2009onca442/2009onca442.html.

In a display of blinding naiveté the OCA suggested that “in a case where withdrawn charges which were false are disclosed, the potential employee has the ability to explain the circumstances to the proposed employer.” Say what now? The assumption that prospective employers will respect the presumption of innocence enough to ignore false allegations that resulted in criminal charges is laughable. To suggest to someone in Mr. Tadros’ position that they have merely to “explain the circumstances to the proposed employer” is to miss the fact that Tadros already did exactly that in the forum most suited to ferreting out the truth of these allegations – our courts of law. Having had the charges against him withdrawn, he should never be placed into the position of having to explain to anyone why some police officer somewhere once chose to lay a false charge against him. That’s the whole point of a justice system.

And so we come full circle. The RSA recently expanded the authority of police officers to lay traffic charges with serious criminal repercussions without any right of appeal or resort to any trial. Now, in the Tadros case, the OCA has authorized police not to worry too much about the criminal trials either – after all, if the suspect gets acquitted, you can still just tell everyone what he was charged with. Good luck explaining that one.

A new look for Toronto Police uniforms?

On April 21, 2009 the Ontario Road Safety Act (RSA) passed through final reading creating a host of changes that will come into effect in the coming months. The government's executive summary of the act is available at http://ogov.newswire.ca/ontario/GPOE/2009/04/21/c3780.html?lmatch=&lang=_e.html for anyone who wishes to peruse it.

As one might expect, the RSA is overflowing with 'get tough on crime' language and continues the predictable tradition now enshrined in Canadian law to increase penalties for impaired driving offences at every opportunity. Where the RSA strikes bold new ground is in its fiendishly clever solution to the pesky problem of people who have the audacity to proclaim their innocence in the face of a criminal charge. You see, up until now, no matter how draconian the penalties for impaired driving became, an individual charged with a crime always had the annoying opportunity to contest that charge in a court of law where – gasp – they were at times acquitted of the charges.

The RSA fixes that problem by simply eliminating the out-dated foolishly liberal concept of charging someone before convicting them. Under the new provisions, individuals who register blood alcohol concentrations (BACs) under the legal limit but within the "warn" range of 0.05-0.08 will be subjected to a $150 "administrative monetary penalty" and an automatic 3-day licence suspension. Get caught again in the warn range within 5 years and you get a 7-day suspension, another monetary penalty and are ordered to attend mandatory alcohol counselling. Feeling lucky? For a 3rd "warning", you will earn a 30 day suspension, the usual monetary penalty, another round of alcohol counselling and a mandatory 6-month ignition interlock condition tacked onto your licence. This condition requires you to hook up a mobile breath-testing device to your car (after your 30 day suspension is up) and only operate a vehicle equipped that way for the next 6 months.

If you missed the part about these penalties being imposed "upon conviction" don't panic — there's no reason to get your eyes checked. The RSA allows for the imposition of these conditions immediately at the roadside without resort to "technicalities" like trials or due process. Why overburden a criminal system already sagging under the weight of too many trials with more cases when you can just impose criminal consequences without all the trouble of a trial?

If you recognized the image at the top of this post as Sylvester Stallone in the 1995 sci-fi flick, Judge Dredd, then you can probably already hear in your mind his throaty cry of "I am the law!" In Dredd's dystopian future, society has descended into a level of lawlessness that necessitated a somewhat different "get tough on crime" approach than what we in Canada might be used to. Judges, courts, prosecutors and trials are all replaced by a single entity – the Judge – who prowls the streets in a flying police car searching for evil-doers. Once our Judge has his target, an arrest is made and a summary 'trial' takes place with the help of his robotic assistant. Sentence is imposed immediately. There are no appeals.

If the thought of a police officer pulling you over and, with the help of his "robotic assistant" (the Alcotest GLC roadside breathalyser), and conducting a summary trial from which there is no appeal, disturbs you…well, welcome to New Ontario. Stallone's career has been stalling of late. Maybe an application to the Toronto Police Service is just what he needs to get back in the game.

The first question always posed to me seconds after learning that I am a criminal defence lawyer is “How can you defend those people?” or some variation of that classic accusatory inquiry. Recently however, this query is finding tight competition at the edges of inquiring lips with the question, “How’s the recession treating your criminal law practice, Ed?”

The answer to the first question, while nuanced and important, is one I would hope readers of a mature legal blog such as this one, would already know and respect. The answer to the second question is somewhat more difficult to articulate though it is of fundamental importance to those of us who make a living plying our trade in this nation’s criminal courtrooms (or those who someday aspire to do the same). The assumption that seems to underlie the question by most who have posed it to me is that recessions are in fact a boon to the criminal lawyer. After all, tough economic times are surely a breeding ground for thieves and fraudsters while even the most honest person might run afoul of downloading some child porn given enough hours surfing the internet for a new job after being fired. There is a certain simple logic to the suggestion that as the economy tanks, the ranks of criminals swells but I would caution all my Bay Street M&A brethren not to willingly abandon their corner offices in search of a shingle down the street from the local provincial courthouse just yet.

Anecdotally, I can tell you that business (at least at my firm) appears to continue unabated. We have neither noted an upsurge nor downtick in new client retainers. In this economy, just maintaining one's existing business stream would likely be seen by many lawyers to be a boon. However, it is important for the criminal law practitioner not to presume that she works in one of the world’s only recession-proof industries. To properly understand my cautious concern, one needs to examine how it is that we defence lawyers get paid.

While it may seem trite to say, it is often forgotten that an increase in the crime rate does not alone enrich the coffers of your local criminal lawyer. Before a criminal lawyer rushes off to buy that new boat for the cottage (and name it Recession), he needs to be sure that the criminal clients he’s attracting are that rarest of breed – an individual facing criminal charges who can actually afford to pay professional legal fees. In a world where job security is scarcer than pleasure yachts day-cruising off the coast of Somalia, finding a fraudster who had the good sense to save some coin for his lawyer can prove difficult to say the least. While the ranks of those who drink and drive may be swelling in the current recession, many of those new alcoholics are drinking to temporarily dull the shame of having lost their jobs. Not exactly the ideal candidate to come waltzing into your office with a fat retainer cheque.

“But wait!” you cry. “Surely Legal Aid will pick up the scores of recession-induced criminals?” As anyone with any experience billing out a legal aid file knows, providing legal services for a rate that my apprentice plumber would politely decline is a tough way to build a practice at the best of times. In an era where the future of government largesse seems greatly in doubt, I for one will not be staking my RRSP on a steady flow of legal aid dollars to those newly seeking legal representation. Legal Aid Ontario (this being the body that I, as a Toronto lawyer, have the most familiarity with) has been teetering on and off near the brink of collapse for years now. Should the recession put a statistically significant increased strain on its coffers in the coming months, don’t expect the necessary influx of government money to come flowing in.

So, if you ask me again “How’s the recession treating your criminal law practice, Ed?” My answer would be “So far so good. But my accountant still wishes I was a bankruptcy lawyer…or better yet, an orthodontist.”