It is easy to put up statistics and make yourself look good and the Alberta Attorney General / Solicitor General, Jonathan Denis, has just had help from the Calgary Herald / Edmonton Journal in a feel-good story about the province's Civil Forfeiture Office (CFO) that is full of propaganda-like numbers:
Alberta gives 1.6 million seized from alleged criminals fund
So what are we to make of this? Instead of just regurgitating figures, let me try to do a little analysis:
For the 5 year existence of the Victims Restitution Compensation Payment Act (VRCPA) the province has apparently seized $25.59 million worth of assets. Slightly more than $5 million per year seems like a nice number, but wait...that's just what they have slapped preliminary court orders on.
Those ex-parte orders are obtained without giving notice to the property owner and without anybody opposing the CFO lawyers in court.
Not surprisingly, once someone is given an opportunity to come and argue against the government, the legitimacy of the initial seizure (and therefore that $25 million dollar number) doesn't hold up in a number of cases.
That is likely a major reason why of the $25.59 million seized, only $4.4 million (a mere $880 thousand per year) has been actually ordered to be kept by Her Majesty the Queen in Right of Alberta. The quick math on those two numbers tells us that the CFO has convinced the courts to let it keep a mere 17% of the total value of property it has seized from Albertans. (Admittedly, some of these cases will still be pending in court, so that percentage will likely go up some).
So why do police and government officials boast success rates of in excess of 95% on these cases?
SuspiciousRealEstate
Okay, maybe just some diligent fact-finding would do.
I say this in response to the recent Herald editorial comment entitled "Impaired Judgment" which discusses the impaired driving sentencing decision of Alberta Provincial Court Judge Anne Brown in the case of Dominika Duris.
http://www.calgaryherald.com/opinion/Editorial+Impaired+judgment/5274673/story.html?cid=megadrop_story
In a piece clearly and personally aimed at an individual Judge's integrity, the Herald Editor professed with erudite credibility and confidence:
"Clearly [Duris] didn’t learn her lesson. Nor will she, as long as the courts fail to hand an appropriate sentence that reflects the seriousness of the crime. The judge was wrong to ignore Duris’s first driving conviction, which had taken place by the time of sentencing in the second offence. Her circumstances changed, and the judge should have taken that into consideration while sentencing.
That Duris won’t pay the price is a serious travesty of justice, that compounds the tragedy of the death of an innocent young man who had his whole life ahead of him."
First of all, before naming a judge and saying that she was wrong in discharging her sworn duty to uphold the law, you might want to determine the facts and get a legal opinion. This is particularly so because judges are in almost all cases not entitled to publicly respond to such criticisms at risk of losing the appearance of impartiality...and to improperly say a judge was wrong breeds serious and false public contempt for our justice system and for our democratic institutions.
Secondly, to lay the burden of a 'travesty of justice' at the feet of a judge for the consequences of a crime that was not in court before her is not only distasteful but blatantly asinine. Judge Brown was expressly not punishing Ms. Duris for her crime that killed an innocent young man in Ontario - and had she attempted to get a little extra discipline for that crime THEN she most certainly would have been wrong in law.
If the Herald Editor thinks that Duris should have been given a more serious sentence for impaired driving causing death, then he can research the facts of the Ontario case and make a comment about that matter (also after getting a legal opinion so as to not just ignorantly slag that judge).
Thirdly, Judge Brown's sentence was not the minimum sentence for impaired driving - the fine of $2,300.00 (which I rather suspect was a $2000.00 fine plus 15% Victim Fine Surcharge) is significantly more than the $1,000.00 mandatory minimum.
Fourthly, Judge Brown was presented with a joint sentencing submission by Crown and defence - which the Supreme Court of Canada has indicated must only rarely be departed from by a sentencing judge, and only where it can be stated that the proposal would be unjust in law.
Which brings us to the fifth point...the submission of the lawyers and the decision of Judge Brown was not wrong in law. In 1982 in a case called R. v. Skolnick, the Supreme Court of Canada had almost this exact situation before it on an impaired sentencing matter and summarized the law (which is completely binding on Judge Brown whether she or the Herald Editor like it or not) as follows:
(1) The number of convictions per se does not govern in determining whether the Coke rule applies.
(2) The general rule is that before a severer penalty can be imposed for a second or subsequent offence, the second or subsequent offence must have been committed after the first or second conviction, as the case may be, and the second or subsequent conviction must have been made after the first or second conviction, as the case may be.
(3) Where two offences arising out of the same incident are tried together and convictions are entered on both after trial, they are to be treated as one for the purpose of determining whether a severer penalty applies, either because of a previous conviction or because of a subsequent conviction.
(4) The rule operates even where two offences arising out of separate incidents are tried together and convictions are entered at the same time.
The Coke rule was explained by a 1962 ruling cited in Skolnick as follows:
"It may be thought to be anomalous that if a man commits the offence of drunken driving and then repeats the offence before being convicted of the first offence he escapes the increased minimum statutory penalty in respect of his second offence. But Lord Coke, the great 17th Century judicial defender of the rights of the individual, said over three centuries ago that a man may not lawfully be subjected to an increased statutory penalty as for a second offence unless he had deliberately broken the law again after being convicted and receiving punishment for a first breach of it. The law has been taken to be so settled ever since.
This three century old canon of construction of penal provisions of this kind is broadly based on principle and does not depend upon the precise language used in a statute. It ought not to be excluded unless the legislature has plainly said so."
So, in 1962 the law had already said FOR 300 YEARS that what Judge Brown did was right. By my math that says that to do what the Herald Editor's gut feeling tells him is right, Judge Brown would have had to simply ignore 349 (and a half) years of precedent.
A quick review of the legal databases shows that in 2010 and 2011 this principle has been explained, referred to and applied by courts in B.C., Saskatchewan, New Brunswick, Nova Scotia, Ontario and Quebec.
Huh...
Well, I suppose the problem for the Herald Editor was that he doesn't have access to these legal databases and where could he possibly have looked to get the facts (since using hackers would be wrong)?
I wonder if he could have read his own paper?
In a comprehensive and detailed report of the case, longtime Calgary Herald court reporter Daryl Slade, who likely actually observed the proceedings, did crazy things like interviewing the lawyers and reporting the facts:
http://www.calgaryherald.com/news/Repeat+drunk+driver+fined/5265850/story.html
After noting that Judge Brown accepted a joint sentencing submission, Slade diligently reported the comments of the prosecutor and a representative of MADD:
"[the prosecutor] said outside the Calgary court following the hearing that he could not treat Duris as a repeat offender, thus subjecting her to at least 30 days in jail.
"At the time of this driving offence, she was not convicted of the prior offence," Hadford explained, "so we can't rely on it as a previous conviction."
Tracy Franklin, president of the Calgary chapter of Mothers Against Drunk Driving, said she understands why such a sentence was meted out, but is frustrated with the message it sends."
Double Huh...
So the Herald court reporter (who practically lives in criminal courtrooms every day) got the Crown to basically articulate the 349 1/2 year old legal principle for the record and had a representative of the most renowned anti-drunk driving organization confirm that she understood the reasoning of Judge Brown's sentence and that led to a personal attack of the integrity of the judge the next day in the Editorial column?
Shame on you Herald Editor.
You should apologize immediately and profusely for an unwarranted attack on one of our system's most diligent, intelligent and committed jurists. And if you are not going to hire any hackers (who ironically, while acting criminally were actually doing so to obtain true facts upon which to base stories) maybe read your own publication's lawfully sourced articles before shooting your mouth off.
Michael Bates
Calgary Criminal Lawyer
Dear Sgt. Patrick Webb,
As Alberta spokesman for the RCMP, I ask you this question. Can I trust the members of Canada's historic national police service with my life and the lives of my family?
I expect that you will deliver an emphatic "Yes, Sir!" to my question without even a pause. What else could you say in your position?
But with the greatest of respect Sergeant, I have deep reservations about whether I can believe you. I say this not in some form of jest as I often comment on this website, but with absolute sincerity.
I grew up in small-town Alberta with all of the small-town things that come with that lifestyle. By and large, we never did really bad stuff, but we had our fair share of face to face encounters with the members of the local detachment.
But back then those encounters were virtually all with respectful professional policemen and policewomen...even if some in the crowd were drunk / belligerent / or coming off with something intelligent like "F-ck you pig..."
I never once feared getting kicked in the face while following a member's commands:
http://www.theglobeandmail.com/news/video/kelowna-man-kicked-in-face-by-rcmp-during-arrest/article1864346/
[As the "suspect" is charged with careless use of a firearm hours after the incident, can I expect to see the member charged with aggravated assault while carrying a firearm sometime next week? I suspect not.]
It would never have crossed my mind that if I drank too much and had to sober up in "the tank" that I would be brutally beaten upon being released:
http://www.edmontonjournal.com/sports/Biche+RCMP+officer+pleads+guilty+appalling+assault/3891371/story.html
I would have, ironically, called you a liar if you had told me about two members being charged with perjury within a 12-month period:
http://www.vancouverite.com/2010/03/26/chilliwack-rcmp-officer-accused-of-lying-in-court/
http://www.vancouversun.com/news/Retired+RCMP+officer+faces+perjury+charge+over+murder+trial+testimony/4092767/story.html
I never had any reason to think a routine traffic stop would lead to me being beat up by the very people sworn to the mantra "Maintiens le droit".
http://www.torontosun.com/news/canada/2011/01/04/16759896.html
I didn't ever ponder whether visible minority recruits were subjected to racial slurs and profanity about their culture from their Depot instructors DURING SENSITIVITY TRAINING and then fired based on fabricated performance reviews after complaining of the racist treatment:
http://www.thestar.com/news/gta/crime/police/article/838098--federal-court-finds-rcmp-guilty-of-racism
We didn't see regular news stories of officers being charged with criminal offences and certainly not pleading guilty to fraud:
http://www.theprovince.com/RCMP+officer+pleads+guilty+fraud+attempt/3754260/story.html
A story of a senior Mountie forging documents to cover up the fact that his unit was breaching court orders and conducting illegal wiretap investigations was at best a plot for a bad made for tv movie on late night CBC...not an in-court admission:
http://www.globalnews.ca/bogus+rcmp+wiretap+memos+derail+drug+case/2970856/story.html
[Whatever happened to this guy, by the way?]
Let's see...more savage prisoner beatings:
http://www.nunatsiaqonline.ca/stories/article/98789_nunavut_rcmp_member_pleads_guilty_to_assaulting_prisoners/
Charges for breaking into a house:
http://www.cbc.ca/canada/calgary/story/2010/02/19/calgary-rcmp-cochrane-break-enter.html
Charges for criminal harassment, extortion and fraud:
http://www.innisfailprovince.ca/1214_10/news10.html
Then there's getting charged for murdering another police officer:
http://www.leaderpost.com/opinion/RCMP+officer+charged+with+murder+Ottawa+police+officer+incurred+charges+Sask/2389941/story.html
Then getting charged for murdering a wife:
http://edmonton.ctv.ca/servlet/an/local/CTVNews/20100711/edm_mountiefolo_110710/20100711/?hub=EdmontonHome
Then there's not getting charged for what many Canadians consider murdering a guy at an airport...complete with "deliberate misrepresentations" under oath in order to justify the members' actions:
http://www.canada.com/Special+prosecutor+named+inquiry+blasts+shameful+Dziekanski+Tasering/3170322/story.html
Then there's actually killing a guy in cells (although, admittedly, I have to go back a few years to catch that one and in fairness the conviction is only manslaughter):
http://www.cbc.ca/canada/calgary/story/2006/09/26/mountie-jailsent.html
And sadly...I could keep going...
I think I speak for plenty of Albertans and Canadians as a whole when I ask, "What has happened to the RCMP that I used to know?"
Now, you might be wondering why I write to a lowly (no disrespect intended) Alberta spokesperson rather than go much higher up into brass territory with my question. Well, the answer is simple in light of current Alberta events.
In the midst of the inquiry into the Mayerthorpe tragedy - an incident on which I write nothing out of respect for the fallen officers and their families - the news breaks of a man shot to death in Canmore while wielding a replica handgun:
http://www.cbc.ca/canada/calgary/story/2011/01/12/calgary-canmore-shooting-replica-guns.html
Not surprisingly, public debate has whipped up over whether this was a "good shoot" now that we all know the officers were not in any actual danger from the fake gun. Of course, we are all sitting in our living rooms in front of computer and tv screens with the benefit of hindsight...so many comments thrown around about how the officers should not have fired are 100% unfair in my view.
That said, the story and the comments got me inspired to write this post...because I started thinking about how this would have played back when I was a teenager...back when the RCMP and its members were not mired in criminality and controversy on a daily basis.
There was trust. We trusted you. We would have assumed that it was a good shoot and would have approached any suggestion to the contrary with a great deal of skepticism. But with the items I have noted above, our confidence has been shattered. Utterly lost for many of us.
I want to trust the RCMP with my life. I really do. I want to return to a time when the uniform commanded respect because virtually every officer who wore it EARNED that respect every day in every way. Is the whole force bad? Of course not. Are there dozens way too many examples of those that are? I wish there wasn't...but the evidence speaks for itself.
Can I trust you with my life?
If you say 'yes' as I have suggested you would, then my follow up question is borrowed from the last word spoken by a dying Robert Dziekanski - "Why?"
Yours truly,
Michael Bates
Calgary Criminal Lawyer
This is not a petition to nominate Julian Assange for sainthood...but it is a public plea to the Calgary Police Service and the Attorney General of Alberta:
Julian Assange is a person whose life is deserving of protection in the same manner and with the same force of the law as anyone else. In a province that so boldly pats itself on the back for its "tough on crime" stance, I urge you not to trivialize a nationally broadcast encouragement of murder.
You cannot be "tough on crime" against disadvantaged immigrants, homeless people, drug addicts and the like, and then totally change the standard when the person accused is a former campaign manager and political adviser to the Alberta-based Prime Minister. Alberta is precisely the jurisdiction that, in its relentless pursuit of criminal convictions for often the most minor of criminal conduct, has the "law and order" credibility to host a prosecution of Tom Flanagan for his public advocacy for the assassination of Mr. Assange.
http://www.calgaryherald.com/news/Prof+face+charge+urging+assassination/3938210/story.html
As an aside I suggest, though, that because Mr. Flanagan is a former political adviser to the currently sitting Alberta-based Prime Minister that Alberta is absolutely not the jurisdiction whose public servants should be making the decision whether to prosecute. The reasonable apprehension of bias is impossible to get away from...regardless of what the final decision is.
I am a strong supporter of free speech and I have serious concerns that people, particularly university professors, not be unduly restricted in engaging in public debate on issues of public interest and importance out of fear of criminal prosecution. So I echo the comments of fellow University of Calgary alumnus and Calgary Herald contributor, Kris Kotarski:
"...if one has to draw the line somewhere, then incitement to murder is not a bad place to do so, especially when the person who is doing the inciting holds a position of power."
Might I also attempt to stop the Crown from disposing of this case solely upon a review of s. 464 of the Criminal Code and the much too easy to predict legal assessment that due to having publicly apologized for the comments Mr. Flanagan has demonstrated that he did not have the actual intent that anyone would kill Mr. Assange. I offer two pieces of advice:
1. Review in detail the Supreme Court of Canada decision in R. v. Hamilton, [2005] 2 S.C.R. 432 which clearly establishes that actual intent that Mr. Assange be murdered is not required. It is enough to establish that the encouragement to kill Mr. Assange was accompanied by an awareness of an unjustified risk that the offence counselled was in fact likely to be committed as a result of Mr. Flanagan's conduct.
The inescapable fact is that Professor Flanagan was called on a national Canadian news program to talk about Julian Assange and the Wikileaks story for precisely the fact that he has credentials, political connections, and therefore credibility for his opinions to be taken seriously by viewers. Otherwise, Michael Bates or Bill the homeless guy outside of the studio could be the guest...anyone can have an opinion on this issue.
In light of the seriousness with which the international community is reacting to the leaks of secret diplomatic documents and matters of international relations and foreign policies (including concerns that wars have started over these types of breaches of sensitive secrets) does it not create an unjustified risk that someone might take seriously the suggestion of a former Stephen Harper adviser that Mr. Assange be assassinated?
Which leads to the second point.
2. If the standard for a charge under s. 464 is not met because Mr. Flanagan's remarks are accepted as "glib" and made truly with such little care or thought for the fact that Julian Assange is actually a human being that could be killed, then how does one not proceed with a charge of criminal negligence under s. 219 of the Criminal Code which reads:
Every one is criminally negligent who (a) in doing anything...shows wanton or reckless disregard for the lives or safety of other persons.
Were Mr. Flanagan's comments not a marked departure from the standard of a reasonable person acting as a seasoned political commentator on a national news program talking about a guy who has been in hiding in part due to prior threats against his life?
In order to assist in the analysis of both of these potential charges let me suggest an exercise for the assigned prosecutor. Take Professor Flanagan's actual remarks verbatim, and where the name Julian Assange appears or where Assange is clearly the subject of the remarks, take out his name and replace it with any number of the following (you can think of your own examples too...and if you want to make it really fun, imagine the person making the statement is Julian Assange):
Prime Minister Stephen Harper
Beverly McLachlin, CJC
Premier Ed Stelmach
Alison Redford, Q.C.
Chief Rick Hanson
Tom Flanagan
Michael Bates
Any citizen...
My point I hope is obvious. If the determination is that there is no reasonable likelihood of conviction, or no public interest in pursuing charges against Mr. Flanagan, does that not send the message to the world that you are free to come to Alberta to broadcast your public suggestions that people be killed? Make sure you chuckle a bit when you say it and then say you are sorry for the broadcast the next day and all is well?
If Mr. Assange were to say the exact same thing about anyone on the list above are we really to believe he would face no charges for it? If the rule of law and equality before the law and the idea of a blindfolded Lady Justice are the guiding principles here, I truly hope that the decision is made with the above commentary in mind...because it is just too easy to ignore the personal interests of an "international rogue"...too easy to fail to consider the sanctity of Assange.
Michael Bates
November 17, 2010 the Calgary Herald runs a story about a 34 year old Albertan who attended at an Edmonton hospital emergency room at around midnight one Friday in September asking nurses for help because he was suicidal.
Approximately every hour for the next 12 hours the man came out of the room he was placed in to ask for a counsellor.
A full half day after seeking emergency treatment, his final request was for a pen and paper. Anyone paying attention might have guessed that it was to write his suicide note.
The young man then hung himself with the strap from his backpack attached to a lamp in the room where he spent his final moments...all alone.
The same story reports that the median wait time for an admitted patient to receive treatment at this hospital emergency room is 19 hours.
http://www.calgaryherald.com/health/Hospital+suicide+highlights+crisis+wait+times/3822743/story.html
Against this backdrop, the exceedingly absurd Alberta government is falling all over itself to congratulate itself for the province's monumental new "Distracted Driving" legislation. Official propaganda repeatedly refers to this new law as "the most comprehensive legislation in Canada."
The Bill is 5 pages for the love of God...and that includes blank margins several inches wide on both sides of the text and page 5 that has one sentence "This Act comes into force on Proclamation." A decent copy-editor could fit it all on the back of a cereal box.
http://www.assembly.ab.ca/ISYS/LADDAR_files/docs/bills/bill/legislature_27/session_3/20100204_bill-016.pdf
In spite of such unimpressive stature, the Calgary MLA apparently the father of this law is quoted as being "ecstatic" and "proud to have been a part of" the "almost three years" that it has taken for this massive majority government "to do this".
http://www.calgaryherald.com/news/Alberta+passes+distracted+driving+legislation/3845604/story.html
Since I am not behind the wheel of my car, I think I will text-speak my visceral response - WTF?
As a criminal defence lawyer I am, of course, well aware of the fact that it was already an offence under the Traffic Safety Act to drive "without due care and attention" or "without reasonable consideration for persons using the highway" - otherwise known as "careless driving". I am personally aware of instances where drivers were talking or texting on their cell-phones and were charged with this offence. I hardly think it was a rare scenario.
http://www.leducrep.com/ArticleDisplay.aspx?e=2535924
The old offence of "careless driving" is commonly understood to be the most serious provincial driving offence. It carries a specified penalty of $402.00 and 6 demerit points against your license. So, one could be forgiven for expecting even greater sanction from the new iconic "Distracted Driving" offence that our Transportation Minister described as a "bold approach" and prompted him to exclaim, "This is a great day for traffic safety in our province."
Alas, wading through all 5 of the new sections (about 1.67 sections per year by my math) of this earth-shattering legislative epic and the associated press releases, one will discover that the proposed penalty for this new quasi-crime is $172.00 and a total of zero license demerits.
I'm sorry...but that is considerably less than my monthly cell-phone bill and a fraction of what today's smart-phones cost to buy.
As the parking police and photo-radar fellas can attest to, well-to-do Albertans pay millions of dollars a year in fines for infractions they commit with staggering prolificity. Under the old offence, if caught texting or doing my nails or shaving or reading a book or whatever while driving and nailed 3 times for careless driving I get an automatic license suspension. Under the new offence, 3 distracted driving convictions and I pay a bit more than one careless...and I have no demerits. If I have enough cash, I can literally commit the offence every day, mail in a cheque and never change my driving habits.
A bold approach indeed...to increased indirect taxation maybe...
So while I read with awe the giddy remarks of our elected officials blowing their own horns loudly enough to commit the traffic offence commonly known as "stunting" and I bathe myself in the warm pool of safety that has been bequeathed to me as a member of the driving public I cannot help but wonder:
If I am hit in a crosswalk by a "distracted driver" will he pay his fine and be back behind the wheel within the 19 hours I may wait to receive emergency medical treatment?
Are Alberta's MLA's so inept that they truly revel in devoting nearly 3 years of work to generate a few pages of redundant traffic laws?
Or is it that in the overzealous flourish surrounding this legislative milestone the government is looking to create a little distraction of its own?
http://www.calgaryherald.com/health/Tory+assails+Alberta+ailing+medical+system/3845540/story.html?cid=megadrop_story
The man swinging from the lamp might have had an opinion on that...if anyone had bothered to notice him. Might I suggest a "bold approach" on the Health portfolio before we get more new ways for traffic cops to meet their monthly quotas?
Just one Alberta taxpayer's opinion.
Michael Bates