The Jury has asked the judge to allow them to render a partial verdict in the Corad Black Trial after informing the judge that they could not reach a verdict on one or more counts. Of course no one has any idea what verdicts the jury has reached on what counts, but I would suspect that in light of the two notes that the jury sent to the judge, that the jury members are pretty far apart on some of the counts. The judge has asked the jury to sleep on it and see how they feel in the morning.... i doubt it will change much but you never know. As such, look for verdicts tomorrow.

After following the Conrad Black trial closely, i would not want to be federally prosecuted in the USA. The prosecution resmbles persecution. The charging of Mark Kipnis is essentially a malicious prosecution. The State essentially led no evidence against him, rather he was lumped in because he would not cooperate...unlike numerous witnesses used by the prosecution who had cut deals with the SEC to avoid regulatory proceedings.

A star is stillborn

(pic via The Toronto Star)

On Saturday past I took my eldest to see Meet The Robinsons, the animated feature that encourages us to look and move forward rather than stewing in our own self-pity. That however was not the lesson ... We arrived a bit early, hit the concessions and still found ourself watching the advertisements. Eventually we were getting to the previews when the theatre ran its anti-piracy commercial. Essentially we are to report piracy because it is a crime. The picture on the sreen was of a person holding a video camera behind his back. It made me think of what a pack of rats we have become and are encouraged to become. It would never occur to me to rat out some kid video-taping a movie. I certainly wouldn't be calling the police. As I watched, i found myself leanng over to my 6 year old daughter and whispering, "Sweetheart, no one likes a tatletale." That was true when I was a kid. I assume it's true today, though I'm beginning to have my doubts.

 UPDATE:2007.04.17: Being a Tatletale is an issue at Daimnation:

I stood there. I refused to shout back, to push back. I refused to come to his aid in the face of petty evil. Out of fear, out of unmitigated cowardice.

I shamefacedly told this to my young girls yesterday at dinner... The issue of 'schoolyard bullying' has been raised at our kids' school. The school wants them to tattle. I want them to know the shame of tacit complicity, to fear cowardice and dishonour more than "punishment."

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)

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

Via First Post, we find that the "inventor" of DNA fingerprinting is begining to question its reliability and abuse. It would seem that his complaint is more with the way it is being used than the science:

As the inventor of DNA fingerprinting, Professor Sir Alec Jeffreys might be expected to do what most scientists do these days, and talk up the wonders of his research at every opportunity. But he has always fretted about its potential for abuse - and now he fears his invention is undergoing 'mission creep'.

You can see his point. Since 2004 the police have had powers to take DNA from anyone arrested for any recordable offence, and keep it indefinitely, even if they are subsequently released. Even witnesses asked for DNA have no right to have it removed from the database once stored there.

All this bothers Prof Jeffreys, not least because the DNA could be put to far more sinister uses by governments even more overweening than the current lot. His concern is echoed by civil liberties groups, who talk of the UK being turned into a nation of suspects.

What should worry us all is a far more sinister characteristic of DNA evidence: its supposed infallibility. With its apparent ability to put odds of millions-to-one on the guilt of the accused, DNA evidence brooks no dissent.

Yet cock-ups can and have happened. Ask Raymond Easton, who was arrested in 1999 for a burglary in Bolton on the basis of a match from the DNA database. He suffered from Parkinson's Disease so severe the police conceded he couldn't possibly have been the culprit.

In 2004, a woman fingered by DNA as a murderer proved to be a rape victim whose DNA had ended up on clothing in an Australian forensic lab. Last year in the US, a man accused of a sex crime turned out to have received bone-marrow from the true culprit, thus giving him a similar DNA fingerprint.

Such cases show that the only sure thing about DNA is that more 'fingerprinting' means more cock-ups.

In Canada, DNA samples are requested by the crown regularly and are usually granted by a judge. I always argue that it is intrusive and a viloation of section 7. To date I have not been successful. I'm going to research this a bit and put it in front of a judge the next time around.

What Canadian would have thought that those damn Americans would have beaten Canada to the punch in legalizing pot? It could happen if Colorado.

The RCMP are so accountable that they can't stand for anyone to look:

The head of criminal operations for the RCMP in British Columbia has issued a blistering attack on the news media, defence lawyers and even the justice system itself, in an internal memo to all RCMP employees in the province.

Assistant Commissioner Gary Bass says the RCMP is the victim of unethical and inaccurate news reports, "baseless personal attacks" by defence lawyers and a justice system that puts witness officers, instead of defendants, on trial.

...

There are more than 6,000 RCMP employees in B.C. Earlier this year, the head of the civilian agency that oversees the RCMP said that the agency, the Commission for Public Complaints Against the RCMP, cannot provide adequate oversight on its annual budget of $5.1-million.

Increased police powers must be balanced by more effective civilian oversight, the agency said in its annual report, released in August.

The assistant commissioner's memo flatly rejects any suggestion the RCMP is unaccountable. "There is no one more accountable in the province of B.C. or in Canada than a police officer," he writes. "We choose our profession proudly and we live in a fish bowl every day."

I did not notice any criminal trial of any RCMP officers when they set up a sercret and illegal bank account to hide stolen sponsorship money. Where is the criminal trial of whoever planted the forged document in the BDC / Chretien case? The RCMP pre-emptively arrested protesters at the APEC conference and who was even disciplined? The police are ever attempting to expand their powers and limit their accountability. Then there is posing and threatening and screams about committment. If the cops are honest, then they should not fear scrutiny. Isn't that what they tell us when they want to expand their powers. The RCMP are upset because they cannot stand the scrutiny.

UPDATE: RCMP held back info:

Here is an update to my post on the duke lacrosse prersecution.... i mean prosecution.

Update: More here from Durham :

This case is particularly unusual in that a direct relationship exists between Nifong’s procedural violations and flawed outcomes: in effect, the case was constructed upon tissue of procedural irregularities. Had Nifong followed even one of the North Carolina State Bar’s Rules of Professional Conduct outlined below, he could not have brought charges.

1.) Rule 3.3a(1): A lawyer must not “make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

Nifong started his involvement in the case—on March 23-4, when his office filed a motion demanding that the 46 white players on the team submit DNA and photo samples—by violating this rule. It is now clear that this motion was fraudulent in three ways:

• Nifong claimed that the players called each other by first-name aliases and uniform numbers at the party; he had no evidence for either claim, and, indeed, no evidence for either claim exists now.
• Nifong withheld from the court that the accuser had failed to identify any suspects in an official photo lineup, conducted in two parts on March 16 and March 21.
• Nifong, it turned out, falsely promised the court that negative DNA tests would “immediately rule out any innocent persons.”
  

The effect of this procedural violation: without the results of the court order, Nifong would have no case.

Flawed procedures beget flawed results.

2.) Rule 3.8(f): Prosecutors must “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”
<!--[endif]-->

Even the district attorney’s defenders in the state NAACP have conceded that he violated this rule. Some of Nifong’s more outrageous statements:

• “One would wonder why one needs an attorney if one was not charged and had not done anything wrong”;
• Deeming all the players “hooligans”;
• Claiming--“to my knowledge”--that he did not know Kim Roberts had made both 911 calls, thereby creating a false impression of a racist atmosphere throughout the party.
  

The effect of this procedural violation: had he not made these remarks, Nifong might have had the political freedom to back down following the negative DNA tests—though it’s worth remembering that he had almost $30,000 of his own money riding on the DNA results.

Flawed procedures beget flawed results.

Read the whole thing. This case is a travisty of justice.

Pot activist Grant Wayne Krieger had his conviction overturned by the Supreme Court of Canada in a 7-0 decision. It is no wonder. Here is The Honourable Mr. Justice Fish recalling part of the charge to the jury:

I begin by recalling the terms used by the judge in instructing the jury as to the available verdicts.  As I have already mentioned, he directed the jurors “to retire to the jury room ... and ... to return to the court with a verdict of guilty”.  To the judge himself this direction left no other course open to the jury.  When two jurors later asked to be excused, the judge stated, in the jury’s presence:

I have a matter that the jury raises.  It is apparent that some of the members either didn’t understand my direction this morning, that is that they were to return a verdict of guilty . . . or they refused to do so.

Fish J. then went on:

After the jurors had been directed by the judge to retire and return to court with a guilty verdict, they returned instead with a request: They asked for a copy of the oath they had taken upon assuming their duties as jurors.  They had sworn by that oath  to presume the accused innocent throughout the trial, which would end with their verdict. Yet now, even before they could begin to deliberate, they were directed by the judge not just to presume — but in fact to conclude — that the accused was guilty as charged.  In that light, the jurors were understandably concerned to ascertain the nature and consequences of their oath.

 Some time after receiving a copy of their oath, two jurors asked to be excused from the panel (one on religious grounds, the other on grounds of conscience). The trial judge denied their requests.  I am satisfied that he exercised his discretion judicially in this regard but I am troubled by his accompanying comments.  As Fraser C.J. put it in her dissenting reasons, the judge’s comments and questions “amounted to a reaffirmation of the direction to convict” (para. 14) and their cumulative effect was that “the jury was obliged to follow the instructions given earlier and convict Krieger” (para. 18):

In the case of Juror No. 12, the direction was express.  When she started to explain why her conscience prevented her from judging the appellant, she stated . . .

A.   Here in the — in our — in our group, we — there are only two choices to — yes or no, or to be guilty or not guilty.  So . . ..

Q.   Actually there is one choice and that is guilt.

               A   Guilty, yeah.  So to me it’s difficult to say that he’s guilty.

. . .

As for Juror No. 8 who said he wished to be excused on religious grounds, his answers to the questions posed demonstrate that he too was under no illusions as to the instructions the trial judge gave — the jury was to convict regardless.  This juror was asked to explain why his conscience prevented him from making a decision.  His answer at AB 223 demonstrates why this Court ought not to conclude that despite the error of law here, there is no reasonable possibility that the verdict would have been different nor for that matter that the result of a new trial would clearly be a conviction:

When I look at this case and all the facts presented, I think I understand the legal parameters in which I must remain. I feel this man is not a guilty man, and I can’t say guilty, even though I understand your charge, and I’m struggling with this, and I can’t bring myself to say guilty.

Juror No. 8 concluded his testimony before the trial judge stating at AB 224:

I believe that I could not live with myself if I was part of a conviction of this man. (paras. 15, 19-20)

 In these exchanges, the trial judge further undermined the role of the jury in the eyes of the two members who sought to be excused and ultimately, we may safely presume, in the eyes of the jurors they then rejoined.  Moreover, I agree with Fraser C.J. that “[t]his record clearly reveals from events following the charging of the jury that the jury did not understand that it had the final call on Krieger’s guilt or innocence” (para. 11).

No great victory for the "decriminalize it" or "legalize it" supporters (of which I am one). Instead, this is just a victory for the administration of justice. (Believe it or not, the Alberta Court of Appeal upheld the conviction.) Here is the CBC report.

If anyone knows the name of the trial judge, let me know.

I said I would update on how the trail of the gun charges turned out. Here it is. 9 months and 7 court appearances after the charges were laid, (including a judicial pre-trail) the trial for possession of a firearm without a licence, unsafe storage of a firearm and possession of an unregistered firearm is finally going to proceed. I have come to realize that the defence I have concocted is quite solid and that the crown will not be able to prove their case. It is a technical defence but fatal to the charges. We arrive in court only to find out that there is a sexual assault trial ahead of us and the possibility of getting reached is next to nil. We wait. Six hours later another court opens up. The new Crown looks at the file and turns to ask why this is at trial. The reply: "Your office would not take the deal that was offered". He again looks at the file and offers: forfeit the gun and the charges will be withdrawn. My guy had already signed a quit claim to the property prior to my involvement so it was an easy deal to take. It is over and my guy wasted thousands of dollars and plenty of time. I am not going to get into the details of the defence as I will use it in the future.

My loyal reader will know that I am no fan of the police, the state, etc. That I believe in the rule of law and individual rights. If you are one of those who believe, as the current Harper Government does, that the police are benevolent or that Crown Prosecutors are not in it for themselves, take a look at the Duke lacrosse case (via Instapundit)This is a US example but I have posted on similar examples. Note in this excellent analysis the reaction of the Duke University faculty and administration. It is appalling at best. For you Arts students out there, the lesson is: do not believe any of your professors' social commentary. Communism, racialism, multiculturalism, and just about every other "ism" work only in the make believe worlds of the academic, the trade unionist and the civil servant. In the real world you get only artificial results enforced by a gun. When the government is involved or has control, the first decision will always be political.

I am in court this week defending a 55 year old gentleman, with no criminal record, on the charges of:

1. Illegal possession of a firearm (section 91(1) of the Criminal Code of Canada);
2. Illegal Storage of a firearm (section 86(2) of the Criminal Code of Canada; and
3. Possession of an unregistered firearm (section 112(1) of the Firearms Act of Canada.

The facts are simple. Wife leaves husband after 30 years of marriage. Husband goes on a drinking binge. Wife does not hear from husband and he does not show up to work for a few days. Wife gets worried that he may have hurt himself. Wife calls the cops and says that there is a long-gun in the house. Gun is in a closet without a trigger lock. The gun has not been used nor thought of for 30+ years. Husband is charged with the above crimes. There is also an application brought under section 117.05 of the Firearms Act for forfeiture of he gun to the police to be destroyed. Husband and wife reconcile. The disclosure from the Crown included a screening form stating that the Crown would be seeking a jail term for this clearly victimless crime if my guy proceeds to trial. Did I mention that he is a 55 year old man without a criminal record? Did I mention that he has never been charged with a crime? Did I mention that he is never going to jail? He does, however, face the problem of having a criminal record. The Crown will not deal though I still can't figure out who got hurt in all this. I will let you know how it turns out. I have concocted a defence that may work. We will see. The problem for my guy is the insistence by the Crown that any deal involves my guy getting a criminal record. What nonsense. As for the Registry charges, the Crown is proceeding but it will be interesting to see how a judge will deal with these charges in light of the plans of the Consrvative government to scrap the registry. UPDATE: The charges were withdrawn at the beginning of the trial.

Details of the Canadian government's 3 strikes and you're out legislation have been released and at first glance it appears that the shifting onus and the indeterminate sentencing will make it difficult for these provisions to pass a Charter challenge. CBC reports:

The Tory government will introduce new legislation next week that would make it easier to designate criminals found guilty of a third sexual or violent crime as dangerous offenders, Prime Minister Stephen Harper said Thursday.

The bill would put the onus on a person found guilty of a third violent crime to convince a judge not to designate them a dangerous offender.

As it stands now, the Crown must show at a hearing why the individual should be declared a dangerous offender. Under the proposed legislation, the person would automatically be considered a dangerous offender and would have to prove the designation should not apply.

Harper said if the person cannot prove this, he or she will be put in prison for an indeterminate period of time and won't be eligible for parole for seven years.

The prime minister said he was convinced that the proposed law would respect the Charter and strikes the necessary balance between protecting individual rights and protecting society as a whole.

As part of the same criminal justice package, the government wants the maximum length of a peace bond doubled from 12 months to 24.

Closing down freedom of speech in France. From the BBC (via Bourque):

Turkey has condemned a French parliamentary vote which would make it a crime to deny that Armenians suffered "genocide" at the hands of the Turks. Turkey called it a "serious blow" to relations and has threatened sanctions. The vote was also criticised by the EU.

.....

The French vote came as controversial Turkish writer Orhan Pamuk won the 2006 Nobel Prize in Literature.

He has faced prosecution in Turkey for talking about the murder of hundreds of thousands of Armenians during World War I and thousands of Kurds in subsequent years.

The charges have since been dropped.

This reminds me that it is time for me to do a post calling for the repeal of the Hate Laws in Canada.