While the law & order junkies are screaming blue murder about the deal that Peter Whitmore received for his violent sexual offences...essentailly he was not tagged a dangerous offender pursuant to Part XXIV of The Criminal Code.... the reality of the situation is that the Dangerous Offender tag does not change Whitmore's parole eligibility at all.

The Dangerous Offender tag,the arguement goes, is a red flag for the parole board, however, Whitmore's record is pretty much a red flag as is his life sentence without anyone being killed.

The arguement that he will be forgotten and will slip through the system without the police, the family or the press being any the wiser is, sorry to say, nonsense. When this dude comes up for parole we are all going to know about it and there will be plenty of people to remind the board why he should stay in prison.

The deal is worth it to save the victims the displeasure of testifying. His guilty plea and agreed life imprisonment are worth the sacrifice of the dangerous offender label. The plea bargain system actually worked in this case and, frankly, those who cannot see it are blinded by outrage that they are projecting onto the system.

Update: The commentators at Small Dead Animals are none too pleased. Also this post on bail gone wrong... I note that there are never any stories on bail that goes right, which is almost all bail cases... however, the real story is about a guy fighting back and I'm pleased that it worked ou for him. If we need some outrage it should be about the removal of property rights and the ability of property owners to protect their property. That too would cut down on repeat crime.

Last week in Kitchener a mother killed one of her children and drugged the other. The dead child was a mere three months of age. Instead of the normal cry of monster, the reaction has been one of saddness, that this woman did not get the help she needed when suffering from a clear a mental disorder of the post-partum psychosis kind. At least one talk radio show had a public heath nurse on to talk about recognizing post-partum depression. Note that the depressed rarely if ever hurt their children. It is the psychosis that causes the action and is a complete break from reality:

Post-partum psychosis or PPP, (also called Post-natal Psychosis or PNP and puerperal psychosis (PP) in the UK) is a mental illness, which involves a complete break with reality. Although correctly termed as a postnatal stress disorder or postpartum depressive reaction, Post-partum psychosis is different from Post-partum depression. The majority of PPP occurs within the first two weeks after childbirth with a classic 10-14 day meltdown, likely caused by the radical hormonal changes combined with neurotransmitter overactivity. When correctly diagnosed at the earliest signs and immediately treated with anti-psychotic medication, the illness is recoverable within a few weeks. If undiagnosed, even for just a few days, it can take the woman months to recover. In cases of PPP, the sufferer is often unaware that she is unwell.

Psychosis can also take place in combination with an underlying psychiatric disorder, such as bipolar affective disorder, schizophrenia, or undiagnosed depression. In some women, a part-partum psychosis is the only psychotic episode they will ever experience, but, for others, it is just the first indication of a psychiatric disorder. Only 1 to 2 women per 1,000 births develop post-partum psychosis. It is a rare condition, and often treatable. However, much media coverage of post-partum depression has focused on psychosis, especially following the Andrea Yates case. Whilst postpartum/puerperal psychosis is a serious psychiatric illness, the risks of a mother suffering this illness harming her baby are low: infanticide rates are estimated at 4%, and suicide rates in postpartum/puerperal psychosis are estimated at 5%. )

The mother has been charged with first degree murder and is currently residing in prison while the matter gets investigated and works its way through the court system. The Criminal Code Of Canada recognizes post-partum psychosis and/or other mental disorder related to birth Section 233, the infanticide provision, which reads:

A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.

"Newly born child" is defined in section 2 of the Criminal Code as "a person under the age of one year".

Why the First Degree Murder Charge? I suspect it's because of the ongoing investigation to ensure that the elemnets of the offence are met. A Section 233 charge calls for the proof of certain  elements including:

1. the mother is not fully recovered from the effects of the child birth; and
2. the mother's mind is disturbed as a result thereof.

Thus, the mental defect must rise from the child birth (or the effect of lactation consquent on the birth) and cannot have another cause, though pre-existng conditions do not take away from the element and may be indicators in a diagnosis.

An investigation and some medical opinion will be necessary before the infanticide charge may be brought. There is a significance to this charge as opposed to a murder charge in that Infanticide, unlike murder or manslaughter, does not have a minimum sentence.

Apparently the New York Times stringer covering the Conrad Black Trial maynot actually be covering the Conrad Black Trial. ... he may not even be in Chicago...he may not even be animate:

Theree is much speculation about the whereabouts of the New York Times stringer who has been filing dispatches on the trial. His report the other day seemed (to some) to suggest he was in the courtroom, and yet nobody seems to have laid an eye on him. Nobody is suggesting anything untoward of course. Certainly not. This is the finest newspaper in the world we’re talking about. And, to be fair, nobody among the assembled scribes knows exactly what this fellow looks like, so it’s possible he was among us at some point over the past few days, disguised as a lawyer perhaps. Or an empty chair.

UPDATE: NYT guy is in the building:

Free Speech to criticize our federal politicians was removed by the Canadian Liberal Party and the Supreme Court of Canada upheld it ... not so much in the good old USA:

Justice Scalia began his concurrence by writing:

"A Moroccan cartoonist once defended his criticism of the Moroccan monarch (lese majesteé being a serious crime in Morocco) as follows: ‘I'm not a revolutionary, I'm just defending freedom of speech . . . I never said we had to change the king -- no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?'

"Well, in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations) and if the representative is identified by name within a certain period before a primary or congressional election in which he is running."

Ouch.

I agree ... Ouch.

Of course the  Supreme Court of the United States need not look so far a Moroco, Canada is right next door. We made speech by individuals illegal for the full run of a Federal election campaign. Worse, the Supreme Court of Canada said that the law was a necessary infringement to our freedom of expression, thus turning our freedom of expression into a privilege and not a right. However, as with McCain Feingold in the USA, the Canadian Election Spending Legislation probably will not hold up to judicial scrutiny once someone is actually charged under the act.

(Via Instapundit ... cross-posted at The London Fog)

.. I however admire a judge doing what is right. The National Post reports that the Crown has been ordered to pay legal costs for those arrested in the gang sweep last week that apparently destroyed the Driftwood Crips. While the arrests may have been in order they took place on June 13th. They should have been able to get bail hearings in 3 days. it is fundamental in this country that the detained get to appear before a judge without delay so that their cntinued detention may be justified.  The Crown has not done so. If i was the crown I would be hoping that the police did not get any confessions or admissions during this time of whta may be construed as illegal dentention.

The Ontario Ministry of the Attorney-General has been ordered to pay a total of $27,000 in legal costs to nine men arrested in the Project Kryptic raids because of a failure to hold timely bail hearings.

It is rare for the Crown to be ordered to pay costs in a criminal proceeding, but Superior Court Justice Ian Nordheimer issued a sharply worded ruling yesterday and indicated he would not allow basic rights to be violated because a large number of people were arrested at once.

The judge also suggested he would consider further measures, such as the release of the defendants, if they do not receive bail hearings by July 3.

"What has occurred to date in this case is improper and unacceptable," Judge Nordheimer said.

The nine men, who face a number of drugs and weapons charges and some of whom are alleged to be part of the Driftwood Crips street gang, were among the nearly 100 people taken into custody by Toronto police on June 13.

In another isolated incident, the police have another concern with the raid:

Cop tip-off alleged:Possibility officer warned family about raid 'could shatter the foundations of trust on the force'

The trial of a Newfoundland Doctor for trafficing in narcotics and sexual assault, has had a second mistrial over jury related incidents. The first mistrial came about when 4 jurors & 2 alternate jurors came to the judge with reasons why they could not serve:

A Newfoundland Supreme Court judge declared a mistrial Wednesday in a closely monitored case involving narcotics.

Justice James Adams made the decision Wednesday in the trial of St. John's physician Sean Buckingham over concerns that proceeding further with the case — in which four jurors and two alternates were excused — may trigger an appeal

Before new jurors could be selected, Adams said a valid argument could be made at a higher court about the detrimental impact of removing so many original jurors and their alternates.

Buckingham is being tried on 23 charges involving sexual assault and drug trafficking. Police say he was illegally dispensing prescription drugs, including the powerful narcotic OxyContin, in return for sex.

The second mistrial has to do with the validity of the jurors list:

Justice William Adams declared a mistrial for Sean Buckingham, a St. John's physician facing 23 charges of trafficking and sexual assault, when his lawyer, Randy Piercey, argued that the local jurors list is woefully out of date.

"I suppose the central issue was that no one under the age of 28 could sit on a jury in Newfoundland, because of the way the jury system was working," Piercey said.

The list of potential jurors has not been updated since 1999, and is based on data collected by the motor vehicle registration system.

Adams said he found it breathtaking that the sheriff's office had the means to update the list, but did not. The list does not include, for instance, people who don't have a driver's licence and people who moved to the St. John's area since 1999.

The Sheriff is John McDonald and he is quite new to the position. If I recall correctly, he was made Sheriff within the past 12 months after a short stint as "Acting Sheriff". It is going to be hard to fault him personnaly, when he wasn't around for the majority of the problem and he has not been there long enough to have rooted out the problem. As well, it would appear that he is not covering anything but calling it human error. His Offices, however, may have some answering to do. With that said, the Sheriff's Office is about as unionized a shop as you will find and answering for things is not the norm. It is clear that someone was supposed to be doing this job for the past 7-8 years and failed to so do. It will be interesting to see the explanation. It will be even more interesting to see if anyone is held accountable.

From a legal perspective, I have not seen the reasons of Justice Adams, however, I suspect that it is a fundamental justice issue. The state prepares the list and limitations to the list reduce the ability of the defendant to receive a fair trial by 12 impartial jurors.

UPDATE: I have been advised that John McDonald is in fact still just the Acting Sheriff. Any culpability on his part is now not just hard to show, it's out the window.

As well, it isn't so clear that someone was supposed to be doing this, though the responsibility is with the Sheriff's Office.

UPDATE II (JULY 26, 2007): Jury List Fixed

A star is stillborn

(pic via The Toronto Star)

Was Paris Hilton on the Hollinger Audit Committee?

The Defence of necessity had been attempted in imparied driving cases in Canada on numerous occassions. I say "had" because of the abject failure of the defence to that particular charge. I'm not saying that it has never been successful, but the elements of the defence are so stringent -that you believe your life or the life of another to be in danger - that the defence virtually never works. It just did. The Globe and Mail reports on a case from Sudbury:

A Sudbury man was cleared yesterday of drunk-driving charges after admitting he drove while impaired to seek mental-health assistance after a failed suicide attempt.

....

Mr. Desrosiers testified that he told the police he had attempted to kill himself with carbon-monoxide poisoning inside his garage.

The officer on the scene told court he became so concerned over the man's uncontrollable sobbing in the back of his cruiser that he wanted to transport Mr. Desrosiers to hospital, believing he was a risk to himself and others.

...

Judge Keast said he found Mr. Desrosiers "to have been a reliable and credible witness."

"He was expecting to die," he said.

He believed Mr. Desrosiers chose to drive while intoxicated rather than stay inside his home, where he was considering a second suicide attempt.

....

At trial, it was revealed Mr. Desrosiers spent two weeks in hospital under psychiatric care, was put under different medication and remained under psychiatric care almost one year after his arrest.

It is clear Mr. Desrosiers' mental health had deteriorated badly in the hours before his suicide attempt and his decision to drive after consuming alcohol was made by a man with serious mental-health issues at the time, the judge said.

Roy Cooper is the North Carolina Attorney General who took over the Duke Lacrosse case from AG Nifong (who is currently in a whole heap of trouble with the State Bar Association and perhaps the Criminal justice systen for misconduct in his prosecution of the case). It was easy to drop the obviously false charges, however, it took a lot of nuts for an AG to speak so candidly. The Volokh Conspiracy reports:

I find it remarkable, then, that he went so much further, saying that the accused players were in fact innocent, that there was no credible evidence against them, that the accuser's many different statements could not be rectified and that she contradicted herself, etc. This was not a garden-variety statement about insufficient evidence but instead was about as complete a vindication as the defendants could have imagined. Indeed, I think that Cooper said just about everything that the defendants could have wanted. Cooper must have really been convinced.

Mark Steyn is blogging the Caorad Balck trial and it is quite good:

...speaking of Hollinger, how come their sale of Le Soleil, Le Lac St-Jean and the other French-language titles isn't being cited by the prosecutors in this case? If it was a cleaner deal than all these other ones, then why was that? Could it be because it had nothing to do with David Radler?

As is this:

But in fact there is, at least implicitly, another signature on those contracts: that of the United States Government. The agreement that prosecutors now say was a fraud scheme to transfer money to Black, Radler, and co was, in fact, sent off to federal trade regulators for government approval in relation to anti-trust law. So, in a technical sense, these non-competes that Mr Reed and the government now disavow, were approved by both of them.

 

I trust the prosecution is keeping its heavy guns in reserve, because these first witnesses have been very unimpressive.

If this note from the editor does not want to make you read on, then I don't know what will:

Editor's Note: The article that follows is incomplete. That is not normally something we do. Usually we make our work as complete as possible. In this case, we are hobbled by legal restrictions.
The story is about a man who became an RCMP informant and was eventually enrolled in the Witness Protection program in spite of ample warning that he was an unreliable liar.
This individual went on to commit a heinous crime. We can neither describe the details of the murder nor the current identity of the killer.
The Globe and Mail publishes this story today in conjunction with The Ottawa Citizen, a highly unusual act in itself, and one which speaks to the importance the editors of the two newspapers place on this matter. Greg McArthur and Gary Dimmock researched and wrote this story at The Citizen. Greg is now a reporter with The Globe and Mail. For legal reasons it was modified jointly with The Citizen after he left.
Both Greg McArthur and The Citizen have been waging a legal battle to publish it for the past six months. A court ruling yesterday allowed us to tell this part of the story.
But this is more than just the story of an individual gone bad. It is an issue of public policy. But the blanket legal requirement of the Witness Protection Act against ever disclosing the identity of a person accepted into the program — no matter how awful his subsequent actions — inhibits our efforts to not just tell this story, but to examine the RCMP's role in this affair.

Three men who spent years in jail after being wrongly convicted of murder will have to pay for their prison board and lodgings, Law Lords have ruled.

Brothers Vincent and Michael Hickey of Birmingham, spent 18 years in jail for paperboy Carl Bridgewater's murder.

Michael O'Brien from Cardiff spent 11 years in jail for a separate murder.

The three were deducted money from their compensation for what lawyers called "living expenses" but what the court agreed was for life necessities.

Judges ruled by a four to one majority that they must pay back 25% of their compensation.

(Also noted @ by The Map Master)

Update: I crossposted at The London Fog without realizing that The Map Master had beaten me to the punch. I removed the post)

(Wired via Instapundit)

AI Cited for Unlicensed Practice of Law
A web-based "expert system" that helped users prepare bankruptcy filings for a fee made too many decisions to be considered a clerical tool, an appeals court said last week, ruling that the software was effectively practicing law without a license.

 

The Newfoundland Supreme Court just got a lot stronger. While I'm not as familiar with Gillian Butler (her reputation is quite good), Mike Harrington is simply one of the best litigators in Atlantic Canada if not the country and has a fantatsic ethical reputation. Bill Goodridge is an excellent lawyer and you will rarely come across someone who takes the profession so seriously. The Newfoundland bench is better for these appointments. Serious lawyers with years of practical experience on large complex files generally make good trial judges.

Three veteran St. John's lawyers have been appointed to serve on the Newfoundland Supreme Court.

Gillian Butler, William Goodridge and Michael Harrington have all been appointed to the court's trial division, federal Justice Minister Rob Nicholson announced.

Posting may be a bit light for the next week or so. I have a couple of interesting cases on the hop, including one that involves the unilateral modification of a stock option plan to reflect time on Long Term Disability benefits. Pleading has never been my strongest point and this must be pleaded very carefully.

Orin Kerr over at The Volokh Conspiracy 

Can You "Possess" a File If You Don't Realize It Exists?: One of the interesting questions raised by the application of traditional contraband concepts to digital files is whether a suspect who views a contraband image using a web broswer but does not realize the image is stored in the browser cache "possesses" that image based only on the presence of the file in the cache. In a decision handed down today, United States v. Kuchinski, involving charges of possessing child pornography images, the Ninth Circuit concluded that the answer is "no":

 Read the rest.

Another isolated incident.

 LeBlanc maintained he did nothing different from any other journalist covering the event, but was singled out by Sgt. John Parks, the arresting officer.

 Parks testified that he arrested LeBlanc partly because he was "scruffy" looking and carrying an unprofessional-looking digital camera. Parks also testified that LeBlanc challenged police authority at the event, and resisted arrest.

However, CBC videotape of the event, entered as evidence by the defence, contradicted police testimony that LeBlanc refused a police order to leave the conference centre and resisted arrest.

McCarroll said the pictures proved beyond a reasonable doubt that LeBlanc did nothing wrong.

"There is such a discrepancy between the evidence of Sgt. Parks and the CBC video, that I find it unsafe to convict Mr. LeBlanc," he wrote. "I am not even satisfied beyond a reasonable doubt that if Mr. LeBlanc was in fact ordered to leave by Sgt. Parks, he heard or understood the order."

McCarroll also said the officers had no right to seize LeBlanc's digital camera or delete his photo without a search warrant.

Will any police officer be charged? No. Forget about the assault and the unlawful arrest.  Forget that he clearly perjured himself at the trial. The judge praised the police action in stopping the remainder of the mob:

"In spite of my findings in this case, there is one conclusion I have come to beyond any doubt. These courageous officers acted above and beyond the call of duty in preventing a serious breach of peace. If these young masked invaders had succeeded in gaining access to the main meeting room where probably hundreds of delegates were in attendance, God knows what would have happened," he wrote.

Some judges just love cops and will accept their false testimony unless faced with a videotape or a couple of independent eye-witnesses to the contrary. The fact that the cops did their job with respect to the mob does not absolve the cops of their acions against Leblanc and their complete disregard for the adminstartion of justice or the oath they swore before testifying.

I'm not anti-cop. It is the exercise of power because they can attitude and actions of certain cops that not only drives me nuts, it causes me fear. The ramifications for Mr. LeBlanc was a criminal record which has more ramifications for employment, travel or the next time you are accused. Get hauled in for speeding and you have a resisting arrest record when they run your licence and see how it works out for you.

The police act with impunity because they know they will not get charged. Other recent isolated incidents:

volokh

instapundit

Little Tobacco

The Ontario Court of Appeal  has reaffirmed the limited powers of arrest available to police officers under Highway Traffic Act, RSO 1990 c.H in its 2-1 decision in R. v. Plumber released on November 14th.

[1]               This appeal principally concerns the power of arrest under the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”).  The appellant was charged with assaulting a peace officer in the execution of his duty and assault with intent to resist arrest.  Both charges turned on the legality of the arrest.  If an arrest is unlawful, the officer is not in the execution of his or her duty and the citizen is entitled to resist the arrest. 

[2]               In this case, the police officer purported to arrest the appellant because he failed to identify himself as required by the Act.  The Act, however, carefully circumscribes the arrest power.  In particular, the power of arrest does not arise because a motorist refuses to produce his or her licence.  Rather, where the person refuses to produce the licence, the officer is entitled to arrest without warrant under s. 217 of the Act only where the person has also refused to give reasonable identification “when requested by a police officer”:  Highway Traffic Act, s. 33(3).  In my view, the circumstances authorizing an arrest did not arise in this case and the arrest was not legal.  It follows that this appeal should be allowed and the charges against the appellant dismissed.

The facts involved a cabbie who not only refused to produce a licence when pulled over on a traffic stop, he produced a tape recorder and proceeded to unleash profanities at the police officer. When the officer went to arrest the cabbie for failure to produce a licence, the cabbie resited. Rosenberg J.A. at paragraph 46-48:

[46] As the appeal judge observed, s. 33 imposes positive legal duties on drivers to identify themselves.  But, those duties are only triggered in the specific circumstances set out in ss. 33(1) and (3).  In this case, while the s. 33(1) duty was triggered, the s. 33(3) duty was not. The appeal judge said in his reasons:

A demand for the licence followed by a second demand and supplemented by a warning that the person will be arrested if s/he fails to identify herself/himself will be sufficient to trigger the arrest power in s. 217(2).

However, in this case the warning Constable Allcroft gave to the appellant was tied to the failure to produce his licence, ownership and insurance, not to a failure to provide alternative identification by way of his name and address. Thus, the arrest power was not triggered.

[47]          On the version of events as testified to by the officer there can be little doubt that, had the request for alternative identification been made, the appellant would have refused to comply.  But, that is not the point.  The arrest power is a limited one and it can only be triggered if the officer had reasonable and probable grounds to believe that the appellant had contravened s. 33(3).  Reasonable and probable grounds imply objective and subjective components:  R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.) at 324.  The officer not only had to believe that the appellant had committed an offence under s. 33(3), but that belief had to be reasonable.  On the facts known to the officer, the appellant did not contravene s. 33 and therefore the officer did not have grounds to make the arrest.  Without the request, an essential element of the contravention was not made out.

Since the plice officer did not have grounds to make the arrest, the arrest itself was illegal. An illegal arrest is permitted by law to be resisited. Any individual has the power of arrest under the common law and as a result any individual has the power to resisi an illegal arrest, even if the arresting person is a police officer. Because the police officer had no jurisdiction or authority to arrest, the act of the arrest was an assault by the officer upon the cabbie. The charges against the cabbie arising out of the arrest were dismissed.

It is doubtfull that the police officer will be charged with assault.

It is not recommended that you resist arrest by a police officer as the legality or illegaity of the arrest will not be determined until after the fact.

cross post: the london fog