On feminism and criminal defence

I recently met with a law student who was interested in doing an internship with me. As we finished our conversation, she expressed her excitement about the opportunity to work with a feminist criminal defence lawyer. Her eyes sparkled as she said this, as if she had spotted some sort of elusive rainbow unicorn. I sort of shrugged it off at the time, but the comment stuck with me. I realize that when I finished law school and was grappling with how to merge my own goals of social justice with actually paying my bills, that I had not yet identified any feminist practitioners to look to as role models. That being said, I would count many of my own colleagues as feminists, whether they self-identify or not. And while merging feminist analysis with criminal defence work certainly comes with its own set of challenges, I’ve found that it has strengthened my practice.

Whenever I speak to law students, particularly women, I often get a question of whether I could represent someone in a sexual assault case. The idea, of course, is that the rights of sexual assault complainants and accused persons are diametrically opposed. And in some ways they are. However, I always explain that I think it’s better to have a defence lawyer who is well aware of the myths and stereotypes that are often invoked in these trials, who will treat complainants with respect during cross-examinations. The Criminal Code limits the scope of cross-examinations, keeping things like recent complaint and past sexual history off bounds. But there is room there for a feminist ethic to cross-examine on inconsistencies without invoking other sexist tropes.

I also often meet with complainants of domestic assault charges to provide them with independent legal advice. They often are completely overwhelmed as to what is going on and find it helpful to understand the steps of a criminal case and what to expect as a file moves along. I have assisted women to draft affidavits to have their version of events told on their own terms, when they felt that their interactions with police left them feeling ambushed and without control. Meanwhile, I think that a feminist analysis that tries to understand the context of race, mental health, ability and colonialism helps me to better advocate for my clients.

Still, there remains this idea that feminism and criminal defence somehow can’t co-exist.  Watching the Jian Ghomeshi trial unfold was uncomfortable for me, given the media storm and accusations that defence lawyers exploit complainants and hold up a system that surpresses women. I don’t deny that the criminal justice system has its faults, but it was difficult to hear these indictments while being so acutely aware of these issues. I almost wanted to yell “I’m trying!!!” I’m trying to be mindful of my own privilege and power when approaching these cases and to examine my own biases, while still vigorously defending my client. As I prepared to speak on the CBC Ottawa’s evening news about the case, a colleague joked with me that I would be booted from the legal feminist guild. “There’s a special place in hell for women who don’t help other women!’ he laughed. But I didn’t receive any hate mail, and I would like think that I was able to offer some insight into the case and the imperfect way that the courts deal with complex social problems. (Later on, I pulled some comfort from Marie Henein’s comment to Peter Mansbridge: “I’m not about to send myself back to the kitchen just because someone doesn’t like what I do”)

So while feminism and criminal defence may seem like unlikely bedfellows, I think having this approach has helped in my practice. And yes, it was a nice surprise to see that a soon-to-be lawyer has identified this work as something that she can aspire to do too.

 

July Criminal Law Round-up

Race and policing have been at the forefront of headlines, but the month of July brought a host of other criminal law issues into the news. Here are some highlights: 

News: 

The month began with some disturbing case of police violence in the US and ended with a brutal case in Ottawa. Abdiraham Abdi, a 37 year old Somali Canadian died after a violent arrest by Ottawa police. The case has brought up questions about racism in Canada and the use of the force training by police. Sadly, it comes weeks after Ontario’s ombudsman released a report criticising police use of force models and training. A recent march aimed to show support for the family and spark more conversation about police violence and intersections between race and mental illness.  This article by Jamie Long of CBC provides some insight into the role that video can play in the SIU investigation, and references some recent cases, including that of Cst. James Forcillo in the death of Sammy Yatim. And if you missed my post on police accountability procedures in Ontario, you can find it here.

Parts of the carding legislation in Ontario came into force on July 1. The regulations restrict the ability of police officers to randomly stop individuals to check their identity, as these stops are understood to often be racially motivated. For an excellent resource that breaks down the new rules, check out the public legal education initiative “Between the Lines.” 

Justice Lori Douglas, who was the subject of a judicial scandal after her ex-husband leaked intimate photographs of her and the matter was reviewed by the Canadian Judicial Counsel spoke to ‘Real Life’ in an article outlining her experience. It is worth a read.

Cases:

The Supreme Court of Canada released a pair of cases that deals with the issue of delay in getting matters to trial. R v. Jordan and R. v. Williamson completely change the current regime and impose a ‘presumptive ceiling’  of the timelines that are acceptable.  Leonid Sirota who writes the constitutional blog  ‘Double Aspect’ provides an excellent overview of the new regime here as well as a critique of the decision here. 

In British Columbia, a couple who were convicted of terrorism offences had their convictions stayed by the B.C. Supreme Court. The Court found that the RCMP went too far in entrapping the pair, essentially aiding and abetting the commission of the crimes in question. The lengthy decision is here and an overview of the case is here. (Incidentally, the case made the New York Times, which you can read here.) 

The Supreme Court released a case involving the retrospective application of legislative amendments to s. 161 of the Criminal Code which gives courts the ability to restrict certain conduct of individuals convicted of sexual offences against a person under 16 years old once they are released into the community (in this case, using the internet).  Even though the Charter generally prohibits the retrospective use of a harsher law, the court found that the rapidly changing landscape of new technology and social media warranted the restriction. Find the full case here and an overview here.

Cst. James Forcillo, who was convicted of attempting murder in the death of Sammy Yatim, was sentenced to 6 years. He is out on bail pending the outcome of his appeal of the decision. Find an overview which includes the bail decision here

The Ontario Court of Appeal found in R v. Marakah that cell phone users do not have a reasonsable expectation of privacy in a text that is sent to and stored on a recipient’s phone. The case involved text messages that were exchanged with respect to gun trafficking and sent the message that there is no inherent right to text in private. A good overview of the case by lawyer Dan Michaluk is here.

Drunk on power: proposed changes to impaired driving law in Canada

A few weeks ago, the Ottawa Citizen wrote about a study from the U.S. Centers for Disease Control that found that Canada is number 1 among wealthy countries for roadway deaths involving impaired driving. According to the study, 34 % of motor vehicle deaths in Canada involve alcohol, much higher than many other countries.

The article outlines how the study has been received by some advocates as a call to action to combat impaired driving, and points to a private member’s bill currently before parliament that seeks to do just that. The bill has already gone through second reading and will be undergoing review by parliamentary committee in the fall.

Bill C-226 proposes some far-reaching measures that will completely reconfigure the landscape of impaired driving law in Canada. While some of the proposals focus on mandatory minimum sentences for certain offences, particularly impaired driving causing death, others go to the procedural side of investigations.

In Canada, if a police officer suspects that someone has alcohol in their body while driving, they can demand a sample of their breath into a roadside screening device. The court needs to find that the officer subjectively suspected, but also that their suspicion was reasonable given their observations. If a court finds that an officer does not have a reasonable suspicion to ask for a roadside, then the subsequent breath samples can be thrown out of court. A similar line of reasoning follows for situations where an officer has reasonable grounds to believe that a person is impaired while driving. Then, they can skip the roadside test and go straight to a breath sample that happens at the police station. Criminal trials on impaired driving charges often turn on whether or not the officer had a reasonable suspicion or reasonable grounds, with defence lawyers bringing a Charter application to have the evidence excluded. The idea is that if an officer is collecting evidence without a proper reason for doing so, that they are infringing on the individual’s right to be free from reasonable search and seizure (s. 8 of the Charter) and arbitrary detention (s. 9).

Bill C-226, however, proposes a list of factors that, alone, would constitute reasonable grounds to suspect a person has alcohol in their body. They include erratic movements of a car, a person’s admission of consuming alcohol, the odour of alcohol on someone’s breath or their car and involvement in an accident that resulted in bodily harm or death. Under the current regime, an officer typically needs to establish at least an admission of consumption and an odour of alcohol from the person’s breath, although the variables of observations often change. This proposed change widens the scope of police arrest power almost infinitely. Imagine you were a designated driver, and are pulled over, only to have an officer smell alcohol coming from you car (i.e. passengers who you are designated to drive home). “Erratic movements” of a car, which could be attributable to many things, could also form the basis for a stop. Allowing stops and roadside demands on the basis of just one indicia of bad driving or impairment is a huge change from the current procedure.

The bill goes even further to say that if a police officer has an approved screening device (roadside) in their possession, then they can randomly stop individuals to test their breath. This change marks a huge leap from the current requirements, essentially giving police officers carte blanche to stop whoever they choose. I cannot see how this broad search power would survive a Charter challenge, given how much power it would give to police to randomly stop motorists.

Clearly, drinking and driving remains a pervasive problem in Canada.  But the law is a blunt tool to spur social change, and the amendments proposed by Bill C-226 may do little to curb this issue.  Often, people who are driving while drunk are not aware of their own intoxication.  Mandatory minimum sentences often provide little deterrence until someone is actually charged, as people are usually not aware of the sentences. More importantly, the sweeping changes to expand police search powers will need to be balanced against an individual’s right to be free from unreasonable searches and stops.  A cure for this social problem will require a more complex approach than what is now being offered. 

Black Lives Matter: Police Accountability in Ontario

In the past few days, the deaths of Philando Castile and Alton Sterling have rightly dominated headlines and my social media feeds. In the days and weeks after of such tragic and senseless events, it is hard not to feel helpless. As I was listlessly scrolling through my twitter feed this afternoon, I was struck by this link to a vox.com article entitled "5 questions every citizen should know about police accountability.' It references a number of tweets from ljeoma Oluo, an editor for 'the Establishment' and urges those wondering what they can do to help to ask themselves whether they are familiar with their city’s police accountability procedures. It also asks about mechanisms for civilian oversight, as well as the threshold for an officer being indicted. While Canada’s systems are slightly different, and handled provincially, the message and answers are just as important so I'm sharing the procedures for my city and province here.

In Ontario, police accountability is handled through the Ontario Independent Police Review Board. It receives and investigates complaints against municipal, regional and provincial police services. The OIRPD must believe that there are reasonable grounds to believe that misconduct occurred in order for the complaint to be substantiated. If the complaint is less serious, then it might proceed to an ‘Informal Resolution.’ In more serious cases, the chief must hold a disciplinary hearing. The link to the complaint form is here.

 If an incident involving police and civilians has resulted in serious injury, death or allegations of sexual assault, then that matter is referred to the Special Investigations Unit (SIU). The SIU is a civilian agency, independent of the police. It is mandated by the Police Services Act. Incidents that fall into their mandate (death, serious injury, sexual assault) must be reported to the SIU by the police service, but can also be reported by the complainant or another person. The SIU can be contacted here. 

Finally, The Ontario Civilian Police Commission (OCPC) is an independent oversight agency that hears appeals of police disciplinary decisions and conducts investigations and inquiries into the conduct of chiefs of police, police officers and members of police service boards.

The Canadian system is different from the American one. Here, officers aren’t indicted, but they can fact disciplinary hearings or criminal charges. (Remember Cst. Forcillo who was tried and convicted of attempted murder in the death of Sammy Yatim.) Ontario’s Court of Appeal recently clarified the standard of proof in disciplinary proceedings as ‘clear and convincing evidence, which is a higher threshold than the civil standard of a balance of probabilities, and allows for less scrutiny of police officers.

Just because the frameworks are there does not mean that they work perfectly or respond properly to police misconduct. In fact, Ontario recently ordered a review of police oversight agencies. Also, Ontario’s Ombudsman just recently released a report on the adequacy of police training to de-escalate violent situation. It asked whether police were doing enough to ‘talk people down’ and found that it wasn’t that police officers weren’t following their training, it was that they weren’t properly trained. The report makes 22 recommendations in total, focusing on legislative changes and an updated use-of-force model that focuses on de-escalation.

In instances where the contact with police resulted in an individual being charged, the Charter may also provide some recourse. Cases such as Stacy Bonds, who was strip searched and kicked by Ottawa Police officers resulted in a stay of proceedings, meaning that the judge tossed out the charges given the egregious Charter violations.. Meanwhile, the Supreme Court has held in the case R v. Nasogaluak that an individual’s sentence may be reduced as a remedy for excessive use of force during their arrest.

It is important for defence lawyers to be mindful of these cases and to be viligant about ensuring that evidence of excessive use of force or police brutality are being brought up in court. Regardless of whether it results in a remedy for the specific client, it can establish a pattern behaviour that highlights systemic issues of discrimination. Such was the outcome of a recent case in Toronto, where Justice Heather Armstrong stayed an impaired driving charge after the accused person was strip-searched. She found that it was necessary to send a clear message to the police force that this practice was unacceptable, stating that anything short of a stay would be “judicial condonation of egregious police misconduct and erode the public’s confidence in the administration of justice.”

Canadians need to stand in solidarity with Americans in the wake of these events and cannot rest easy with the false idea that this sorts of things cannot or do not happen here. Knowledge of the complaint and oversight procedures are an important step in working towards police accountability. 

June Criminal Law Round-up

The month of June brought some interesting topics to the fore, particularly from the highest court in the land. Read on: 

News:

At the beginning of the month, the task force on the Ottawa Carleton Detention Centre released its recommendations to improve the conditions at the jail. The recommendations range from reforming bail to improving health care (see an overview here: ) . While they are seen as a positive start, the outcomes have been criticized by groups such as the John Howard Society, who argue that the report does not go far enough to address issues with bail and the overreliance on sureties.

Newly appointed Minister of Community Safety, David Orazietti will also be reviewing the recommendations of the Ontario Ombudsman in a report on police use of force, following the death of Sammy Yatim and others by police. The report urges more rigorous training for police to de-escalate violent situations, and criticizes Yasir Naqvi's handling of the issue. Read the full report, or an overview from the Ottawa Citizen's Dave Reevely.

The Toronto Star ran a story about a law student who was denied a ride along based on police records that had documented him while in the company of people with criminal records. Mr. Singh is bringing a complaint to the human rights tribunal, claiming that he has been unfairly targeted on the basis of his skin colour. The story shows the dangers of police carding and the far-reaching implications of collecting data on the basis of race. …

In an unusual case, three Toronto police officers are suing the Attorney General on the basis that the Crown attorney did not challenge accusations that they had beaten a robbery suspect. The officers argue that had the Crown (it names three individuals specifically) properly conducted the trial that the officers would not have suffered damage to their livelihoods and reputations. 

Cases: 

The Supreme Court released a decision about bestiality, tracing the history of the offence to find that the offence requires penetration with an animal. The full decision is here,  you can read this overview of the case by Camille Labchuk, who intervened in the case on behalf of Animal Justice. Her article provides a quick summary of the case and argues that it is in fact good news for animals.  

The Court also released a decision in R v. Saeed, a case which asked whether police need a warrant in order to swab a man’s penis for a complainant’s DNA.  The Court likened penile swabs to a strip search, finding that as long as it is carried out in a reasonable manner, search can be justified. The case allows for the collection of samples without a warrant, a troubling expansion of police powers, as articulated by defence lawyer Howard Krongold, who represented the Criminal Lawyers Association at the hearing. 

The British Columbia Supreme Court awarded damages of 8 million dollars to Ivan Henry following his wrongful conviction and 27 year incarceration. The Court found that the Crown had withheld disclosure which affected Henry’s right to a fair trial. This article provides a helpful summary of the 130 page decision . The most concise commentary on this decision comes from Emma Cunliffe, a professor at the Allard School of Law at UBC, who wrote a series of tweets about the questions that the case raises. 

May Criminal Law Round-up

This month saw a big variety of interesting cases on the criminal law front, from policing to jails to sentencing.

News:

After news stories of the severe impact of solitary confinement continued to capture public attention, Ontario’s ombudsman called for an end to indefinite segregation. Professor Lisa Kerr wrote an op-ed for The Globe and Mail, calling for amendments to the Corrections and Conditional Release Act to stop this dehumanizing treatment.

Ottawa lawyer Paul Champ announced that he is bringing a class action lawsuit against the province on behalf of two former prisoners at the Ottawa Carleton Detention Centre. You can read more and listen to an interview about the case here.

Jian Ghomeshi managed to stay in the news this month as his case came to an abrupt end when he entered into a peace bond and his final charge of sexual assault was withdrawn by the Crown. In case you missed the media storm surrounding this event, you can refresh your memory here.

Cases

A Superior Court judge found that inmates at the Maplehurst jail had their Charter rights violated by the frequent lockdowns. The judge awarded the two individuals who brought the case $60000 and $25000 respectively. This case is different than the Ottawa one listed above, as it was not a class action, but still provides an important precedent. You can read the decision here or read a helpful overview hereAnd if you missed it, you can catch up on my post about lockdowns at the Ottawa jail here. 

A judge in Brampton decided an impaired driving case and held that the device used in impaired driving screening, the Intoxilyzer 8000C, is unreliable, calling into question the validity of guilty verdicts in such cases. The case is being appealed by the Crown, but could have a significant impact on the ways in which drunk driving cases are handled by police and the Crown.  

The Court of Appeal for Ontario released a case this month dealing with the standard for police officers who are disciplined under the Police Services Act. The court found that in order to show misconduct, the evidence must be clear and convincing, rather than proof on a balance of probabilities. Yamri Taddesse provides an overview here, outlining how this decision provides for a heightened quality of evidence in order to show misconduct.

Another notable case from the Ontario Court of Appeal dealt with sentencing of Aboriginal people and the application of Gladue principles. (See my previous post on that here.) The court found that it is an error in law not to take into account an individual's Aboriginal background. You can find the full case here, or read an overview here. 

Around here

I had an op-ed published in the Ottawa Citizen, explaining how peace bonds, particularly in the context of cases such as Ghomeshi, can indeed be a 'path to the truth' as suggested by complainant Kathryn Borel. You can read it here

 

A step-by-step guide to a criminal case

Despite seeing news relating to criminal law on a daily basis, most people who have never been charged have no idea how the court system works. The whole process can be overwhelming, but it helps to know what steps are involved. I find myself routinely sketching out this diagram with clients, so I decided I should share it here.

The first step of the process is the incident itself. A charge is laid by the police which sets the system in motion. The individual charged will then be compelled to appear in court by one of several means. If the police release the person from the scene, they may issue a summons or a promise to appear. If they are not released, they could be held for bail.

If someone is held for bail (or ‘show cause’) then they will be brought to court by the police. There, a Crown attorney will review the file and decide whether they will consent to the individual being released. If so, then the Crown and a defence lawyer will work together to draft conditions that the person must follow. These could include not attending certain locations or abstaining from alcohol. If the Crown does not consent, then we must set a bail hearing. This hearing might take place a couple of days later, and will involve presenting evidence to a justice of the peace about where the person might live and what supervision can be offered. A person may then be released on a recognizance and given a date to come back to court. 

Once bail has been decided, then the individual will appear in remand court. Remand, or set-date as it is called in some courts, is used to set meetings and other court dates. No pleas are entered here. If a person does not have a bail condition to appear personally for remand, then a lawyer can appear on their behalf if they’ve signed a form designating them as counsel.

The next important step is to review disclosure. Disclosure is all of the evidence that the Crown has about the case, which they are obligated to give to the defence. The review of disclosure by a lawyer with a client is critical to assessing the strength of the Crown’s case and possible defences. 

A lawyer will then meet with a Crown prosecutor in a counsel pre-trial (or CPT). This meeting is used to discuss where the file is going, either to plea or trial. A defence lawyer might bring information about a client’s background to pitch a more lenient sentence, or the lawyers might simply discuss length of trial.

Sometimes a case will warrant some further discussions with a judge. In this case, we would set a judicial pre-trial (or JPT). At this meeting, the investigating police officer might also attend to give input. A judge will give their opinion as to an appropriate sentence, or confirm how long a trial would take.

Once the case has been reviewed and discussed, it is then up to the client to decide whether they want to plead or go to trial. (Sometimes a case will resolve outside of these options, if for example the Crown decides to withdraw the charge, but these are the typical options.) The client gives their instructions as to how they wish to plead. 

If someone pleads guilty, then they are taking responsibility for the facts that the Crown is alleging. In a plea court, the person is admitting to what they have been charged with and then are sentenced, which will be discussed below.

At a trial, a person is holding the Crown to their job of proving every charge beyond a reasonable doubt. The Crown will call witnesses to testify to prove their case and a defence lawyer will have the opportunity to cross-examine them. The individual may choose to testify at his or her own trial, but there is no obligation to do so. If the judge finds a person not guilty, then they are acquitted and the case ends there. If the person is guilty, then they proceed to sentencing.

At sentencing, a judge will decide the appropriate punishment for an offence. A sentence can range from an absolute discharge to jail, depending on a variety of factors. A judge’s ultimate job here is to balance aggravating and mitigating factors to decide the appropriate outcome.

Keep in mind that this is a very brief sketch of the typical case. While some files will deviate from this course, this is the routine path that criminal matter will take through the courts. 

April Criminal Law Round-up

While the Duffy verdict dominated headlines, there were lots of other criminal law news and cases of note this month:

News:

The Ottawa Carleton Detention Centre continued to make the news, with Minister Yasir Naqvi ultimately calling a task force to address the chronic overcrowding and harsh conditions. Read about the taskforce here, or find my thoughts on it in a previous blog post

Macleans ran a heartbreaking story featuring a letter written to Kinew James, a woman who died at the Regional Psychiatric Centre in Saskatoon. The letter gives a rare insight into compassion and resilience of the women who are incarcerated in Canada. An inquest into James' death began this month but is being adjourned to expand its scope to include her medical and mental health records from her time in custody.

Meanwhile, in Toronto, the Special Investigations Unit report in Andrew Loku's death was finally (partially) released. Loku was killed by police in July of 2015, and after intense pressure by the group Black Lives Matter Toronto, the Ontario government released the findings of the report. Read some background as to the decision and the impact of the decision here.  

Cases:

In a lengthy decision, Justice Vaillancourt acquitted Mike Duffy was acquitted of all 31 counts of fraud, bribery and breach of trust. In case you aren't up for reading the full decision, you can listen to Michael Spratt and Emilie Taman speak with law professor Peter Sankoff on their podcast "The Docket."

The Supreme Court released two important criminal law decisions this month. R v. Lloyd dealt found the mandatory minimum sentence for drug possession where a person had a previous record for drugs was unconstitutional. In R v. Safarzadeh-Marhkalithe court found that the Conservative's Truth in Sentencing Act, which limited pre-sentence custody to those detained awaiting trial because of their criminal records was also unconstitutional. The cases were seen as the court dismantling Harper's 'Tough on Crime' regime. Read an overview of the cases here and see my thoughts on Safarzadeh-Markhali here.

The case of David and Collet Stephan, whose son died of meningitis after being treated with naturopathic remedies, drew lots of attention. The couple were ultimately convicted of failing to provide the necessities of life and the matter has been adjourned for sentencing.