The Royal Newfoundland Constabulary were called to a home by child protection workers when a mother of three children would not cooperate with the said workers in the apprehension of her children. The police then made a small mistake that probably isn't going to sit well with the Newfoundland public (CBC reports):

St. John's police officers used pepper spray on a boy during a confrontation in which he and his siblings were seized from their defiant mother, her boyfriend says.

The Royal Newfoundland Constabulary was called to the woman's home on Cookstown Road, near downtown St. John's, on Wednesday night to assist child protection workers who had arrived to take three children into custody.

The woman, however, refused to co-operate and barricaded her family inside the house in a confrontation that went on for hours.

At one point, police said, she swung a baseball bat at an officer's head, grazing but not injuring it.

"She didn't want them to go," the boyfriend, who was at the house during what he called a "crazy" confrontation, told CBC News.

....

The boyfriend said the woman's 12-year-old son was pepper-sprayed while he used a stick to keep a police officer from climbing through a window.

At that time, he said, the mother reached for a baseball bat.

The RNC confirmed pepper spray was used in the incident, but would not say on whom.

A negotiator was called and the matter was resolved, however, one would think that pepper spraying the kids you are supposed to be protecting wouldn't be an option.  Apparently one would be wrong in that thought.

Of course, child protection in Newfoundland has been under the microscope since the Dr. Shirley Turner incident who, while accused of murder in the USA of the father of her expected child and fleeing to Newfoundland, her child, Zachary Turner, was placed in her unsupervised care. This was despite protest from US justice officials and from the family of the Dr. Andrew Bagbey (The father and murder victim). The Courts had cleared the procedural steps for the extradition and it could no longer be avoided so Turner then did the old murder-suicide by stapping the infant to her body and walking into the North Atlantic Ocean. This raised more than a few questions about what was going on in the child protection industry in Newfoundland.

As a result, however, we are probably going to see a fair bit of over-reaching on the part of child protection workers. Without knowing the facts of this recent case it would seem, however, that it was the RNC who did the over-reaching.

(Speaking of Dr. Shirley Turner, her kids, or someone representring themselves as the same, will have none of the murder allegations against Turner going unanswered. They are out and about on the internet with the most pathetic defences of their mother including that both Shirley Turner and her child were murdered, Turner didn't have a trial so nothing was proven, the extradition didn't happen, etc. It is sad to read the ramblings and it has come to some serious threats being made against a blogger by one of the kids. However, it is like the mother who will not believe her son died at sea because she hasn't seen the body, denial is part of human nature and we are seeing it. There seems to be little need to continue to debate this poor girl in denial; for her it is reality (it's like debating with a fundamentalist over the existence of God or with a delusional person about the effect of mirowaves) and to continue to do so seems a tad cruel. No amount of debate  is going to bring back Andrew Bagbey or Zachary Turner. No amount of debate will make the survivors feel any better.)

.. 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'

RCMP officers who have abused prisoners, committed sexual assault, hired prostitutes while on duty or showed up drunk for work have rode off with a reprimand and docked pay, 24 hours news services has learned.

Read the rest.

UPDATE: Read this one as well...

Judge's withering ruling cites family tie between Mountie and top Liberal

UPDATE II: Of course the top Liberal's in Ontario are not that concerned about police misconduct, instaed they are seeking to increase the powers of the police.

 The police should have sweeping powers to seize documents from the media, even if a confidential source might be identified, a senior government lawyer argued Tuesday.

Let's just ignore the fact that the bad apples have already spoiled the barrel.

from the National Post:

Three Halton police constables have been charged with assaulting a 79-year-old retired teacher who was shot with a rubber bullet and tasered during an arrest in Oakville last fall. Gerry Morgan died in May, six months after he was arrested at a Marine Drive home at 4:30 a.m. on Nov. 25, 2006. A woman who identified herself as his daughter answered the phone at Mr. Morgan's home yesterday: "My dad was a wonderful man." She said her father had four children-- two daughters and two sons --and taught at teacher's college and was a consultant with the Halton and Dufferin-Peel Catholic school boards. Mr. Morgan was arrested after Halton Regional Police Services responded to a call for assistance. "While inside the home, officers employed use of force weapons," the Special Investigations Unit said in a statement yesterday. "They discharged an ARWEN (Anti Riot Weapon Enfield) weapon and as a result, Gerry Morgan was struck once with a projectile made of rubber-like material and the allegation is that he suffered a serious injury to his upper arm. Officers also used a TASER device on Mr. Morgan and the allegation is that when he fell to the floor, Mr. Morgan suffered a broken hip." The trio will appear in court on May 28.

Under the headline: Fantino and McGuinty run away from Caledonia

A few weeks back, Fantino sent out an email suggesting the OPP would stop policing Caledonia, though many would argue the OPP stopped policing the town when the occupation began. But never mind Caledonia. Fantino has more important matters to concern himself with, like seatbelt violations.

Read the whole thing.

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.

More than 100 RCMP officers across Canada were found guilty of misconduct over the past two years for offences ranging from having sex in a cop car and surfing Internet porn on the job to drunk driving, sexual assault and abusing prisoners

Of course it takes a lot to actually get a complaint through the process. From some experience in the system, you can rest assured that the cops caught for misconduct are simply the unlucky ones. The code of conduct is observed is quite often in the breach.

Players and creators of video games could face imprisonment for acts of virtual violence under draft legislation being drawn up by two of Germany's state governments.

Politicians in Bavaria and Lower Saxony have proposed a new offence that will punish "cruel violence on humans or human-looking characters" inside games. Early drafts suggest that infringers should face fines or up to 12 months' jail for promoting or enacting in-game violence.

Research has yet to show a link between violence in video games and violent acts in the real world

Why look to research and science when intuitively we know that immediate intuitive based action gives the best political results?

(HT: Instapundit)

(look for this post in The London Fog)

The Auditor General, Shelia Frazser has asked the RCMP to investigate CFL Hall Of Famer and former Ombudsman for Federal Prisoners, Ron Stewart,  for spending abuse, etc. Via Bourque, canada.com is reporting:

On top of his clearly identified spending abuses, Stewart billed for another $127,000 in questionable payments for cashing out vacation that he claimed he never took, despite spending the majority of each summer, from April until October, at his cottage, located on an Ontario island about 90 minutes from Ottawa, which was accessible only by boat and had no electricity or land telephone line.

Although Stewart had a government cell phone, he was seldom reachable and his days on the island produced virtually nothing in the way of work, the report said. (Emphasis mine: LT)

If being seldom reachable and producing virtually nothing in the way of work is the standard for an RCMP investigation, then I suspect that a majority of the Federal, Provincial and Municipal civil services should be under investigation. Pick up your phone, randomly call the number of a civil servant and odds are you are getting voice mail.

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 Supreme Court of Canada (SCC) has, for reasons unknown, granted leave to appeal  to the Crown in the R v. A.M. case. The facts of the case were summed up by Armstrong J. of the Ontario Court of Appeal as follows:

[1]   On November 7, 2002, three police officers attended St. Patrick’s High School in Sarnia and, with the assistance of a “sniffer” dog, conducted a warrantless and random search of the school.  The attendance of the police on that particular day was not at the request of school authorities.  The principal and staff were unaware that the police were planning to attend until they arrived in the school.

[2]               As a result of an indication from the sniffer dog, the police were directed to the backpack of A.M.  When they searched the backpack, they found that it contained a quantity of marijuana and psilocybin.  A.M. was charged with possession for the purpose of trafficking in respect of both drugs.

[3]               At trial, counsel for A.M. moved to exclude the evidence of the drugs found in the backpack on the basis that the search by the police was unreasonable and therefore offended s. 8 of the Canadian Charter of Rights and Freedoms.  The trial judge, Justice G. M. Hornblower of the Ontario Youth Justice Court, accepted the submissions of counsel and excluded the evidence related to the drugs under s. 24(2) of the Charter.  In the result, A.M. was acquitted of the charges.

[4]               The Crown now appeals the acquittals on the basis that the trial judge erred in finding a breach of s. 8 of the Charter and in excluding the evidence under s. 24(2) of the Charter.

At trial the judge had found as follows:

[21]  The trial judge found that there were two searches.  The first search was the search conducted with the assistance of the sniffer dog; the second search was the search of the backpack of A.M.  The trial judge concluded that neither search was reasonable.

[22]         Finally, the trial judge concluded that the search was a police search in the guise of a search by school authorities.  He noted that, even if it had been a search by school authorities, the school authorities had no right to conduct such a search in the absence of reasonable grounds to believe drugs could be found.

[23]         The trial judge excluded the evidence obtained as a result of the police search under s. 24(2) of the Charter.  In his consideration of the application of s. 24(2) of the Charter the trial judge said:

While this case centres around the rights of A.M., the rights of every student in the school were violated that day as they were all subject to an unreasonable search.  This search was unreasonable from the outset.  It is completely contrary to the requirements of the law with respect to a search in a school setting.  To admit the evidence is effectively to strip A.M. and any other student in a similar situation of the right to be free from unreasonable search and seizure.  It is effectively saying that persons in the same situation as A.M. have no rights.  Such a finding would, to my mind, bring the administration of justice into disrepute notwithstanding the other factors I have alluded to.

Section 8 of the Charter reads as follows:

8. Everyone has the right to be secure against unreasonable search or seizure.

The evidence was excluded under section 24(2) of the Charter. Section 24 of the Charter reads:

   (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The Ontario Court looked at the reasonableness of the sniff search and concluded:

[51]         The search in this case was warrantless.  The Supreme Court of Canada in Hunter, et al. v. Southam Inc., 1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 145 at 161 held that a warrantless search by the police is prima facie unreasonable.  The Crown, who seeks to justify a warrantless search, has the burden of rebutting the presumption of unreasonableness.  In Collins, the Supreme Court held at p. 278 that “[a] search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.”

[52]         I pause here to observe that, in respect of a search by school authorities (on reasonable grounds), the same presumption does not apply: see M.R.M. at para. 50.  However, I have already said that, in my opinion, this was a warrantless search by the police and therefore the presumption in Hunter v. Southam applies.  As Cory J. said in M.R.M. at para 56:

The usual standard, requiring prior authorization in the form of a warrant which is based upon information which provides reasonable and probable grounds, will continue to apply to police and their agents in their activities within a school. The modified standard for school authorities is required to allow them the necessary latitude to carry out their responsibilities to maintain a safe and orderly school environment. There is no reason, however, why police should not be required to comply with the usual standards, merely because the person they wish to search is in attendance at an elementary or secondary school.

The court then concluded that the detention of the students for 1-2 hours was not reasonable, but that this was not as egregious as the warrantless search:

There was no credible information to suggest that a search was justified.  There were no reasonable grounds to detain the students.  As Laskin J.A. said in R. v. Calderon (2004), 188 C.C.C. (3d) 481 at para. 69 (Ont. C.A.): “An officer cannot exercise the power to detain on a hunch, even a hunch borne of intuition gained by experience.”

[58]         The Supreme Court of Canada has held that there must be a clear nexus between the individual to be detained and a recent or on-going criminal offence.  This position was articulated by Iacobucci J. for the majority of the court in R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59 at para. 34:

The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

[59]         Quite apart from the detention of the entire student body, of more significance is the unauthorized warrantless random search itself.

[60]         In my view, the Crown has failed to rebut the presumption that the search was unreasonable.  Even if the presumption of unreasonableness did not apply, it is my opinion that there were no grounds upon which to justify a random search of the kind that was conducted in this case.

The evidence was properly excluded.

The idea that the police can collude with  school administrators to detain students while random searches are conducted by the police may sound great to some overly protective parent who has forgotten his own childhood. For me, it just does not pass the smell test.

(Cross post: The London Fog)

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

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.

This is the way internal investigations are handled by the police:

The incident about which Mr. Rolfe complains occurred in Toronto on January 4, 2002.  While shopping with his wife, he observed a male police officer and two male firefighters escorting a woman out of the store.  The woman was very slight in stature, weighing about 100 pounds, and appeared to be approximately 50 years old.  She looked to be intoxicated and was unsteady on her feet, although passive.  When Mr. Rolfe was outside the store on the sidewalk, he saw the police officer emerge from the store with the woman.  Her hands were cuffed behind her back and the officer was guiding her with his hand on her left elbow and arm.  She was not resisting.  Suddenly, and for no apparent reason, the officer slammed the woman to the ground with considerable force, causing her to strike her head on the pavement.  The firefighters provided first aid treatment, putting a gauze bandage on the woman’s head.  A large pool of blood about 8-10 inches in diameter was left on the sidewalk where her head had been.  Mr. Rolfe stated that he was “stunned” by the officer’s actions and spoke to him at the time, advising him that he believed his actions were unwarranted.  He made a mental note of the officer’s badge number and a physical description of him.  Mr. Rolfe found this incident to be very disturbing.  He states that he experiences considerable anxiety and a loss of sleep after witnessing the incident.

On January 4, 2003, Mr. Rolfe filed a formal complaint under the Act relating to the officer’s conduct.  Acting Inspector McCormack (on behalf of the Chief of Police) advised Mr. Rolfe that his complaint would not be treated as a formal complaint because he was not “directly affected” by the alleged conduct, relying on s. 59(5) of the Act.  Pursuant to s. 72 (4) of the Act, Mr. Rolfe asked the Commission to review the Chief of Police’s decision.  However, on March 31, 2003, the Commission advised Mr. Rolfe that it agreed with the decision of the Chief of Police.  No reasons were provided by either decision-maker.

Although Mr. Rolfe was advised that an internal investigation of his allegations had taken place, he was never interviewed as part of that process.  The police would not disclose any information with respect to the investigation or its conclusions.

(emphasis mine LT)

This is what the majority for the Ontario Superior Court of Justice, Divisional Court had to say  about the police and civilian oversight:

First the majority came up with a definition from the Alberta Court of appeal for "directly affected":

 In our view, the inclusion of the word “directly” signals a legislative intent to further circumscribe a right of appeal.  When considered in the context of the regulatory scheme, it is apparent that the right of appeal is confined to persons having a personal rather than a community interest in the matter.

Then the majority looked at how broadly the personal interest could be interpreted:

The respondent argues that Mr. Rolfe does not fit within the definition because he was not the person injured by the police conduct.  Rather, the police conduct was directed towards the woman in the store and Mr. Rolfe was a mere witness to it.

 In my opinion, that it a far too restrictive definition, and not one that is required by the plain meaning of the words used.  Indeed, it is the most restrictive interpretation of the words “directly affected” one could possibly apply.  Such an approach is not consistent with the broad public purpose of the legislation and the fact that it is meant to protect the most vulnerable in society against the most powerful agents of the state.  If the respondent’s interpretation is correct, only actual victims would have a right of complaint.  The orphaned children of a person killed by police would not have a complaint; the parents of a teenager the police failed to protect would not have a complaint; a wife who saw her husband shot in front of her would not have a complaint.  That is an overly narrow reading of the statute.

 On the other hand, the legislation should not be interpreted so broadly that a right of complaint is vested in anybody who is unhappy with the police.  There must be some direct link between the person filing the complaint and the police conduct which is the subject of the complaint, something that distinguishes the complainant’s interest from that of any other member of the community. 

The Majority then applied the definition to the facts and concluded that the complainant was directly affected:

 ... There must be some direct link between the person filing the complaint and the police conduct which is the subject of the complaint, something that distinguishes the complainant’s interest from that of any other member of the community. 

In my opinion, Mr. Rolfe is such a person.  He was actually present at the time of the alleged assault.  He witnessed at close range the assault and its aftermath.  He spoke to the police officer.  He was disturbed by what he saw and shaken by it even after the event. In other words, he was directly affected by what he witnessed, even though he was not physically struck by the police.  His position goes beyond that of a concerned citizen as part of the general community; his experience was firsthand.

The complaint was allowed to proceed.

The question I have, which I have yet been able to answer, is whether the police officer who  delibertly injured the person in custody was charged with assault causing bodily harm, whether the said officer was merely disciplined by his employer, or whether no action was taken at all. If I get an answer I will update. However, for those of you wondering about confidential out of court settlements by the police (see here) this is how they come about. Pure police misconduct with the knowledge that they can survive the complaint process.

Via Bourque

Police hunt farting dissident
Police in Poland have launched a nationwide hunt for a man who farted loudly when asked what he thought of the president.

Hubert Hoffman, 45, was charged with "contempt for the office of the head of state" for his actions after he was stopped by police in a routine check at a Warsaw railway station.

He complained that under President Lech Kaczynski and his twin brother Jaroslaw, the country was returning to a Communist style dictatorship.

When told to show more respect for the country's rulers, he farted loudly and was promptly arrested.

Hoffmann was arrested and released on bail but failed to turn up at a Warsaw court early this week to be tried, and the judge in the case rejected an appeal by defence lawyers to throw the charges out.

A court spokesman said: "Such a case of disrespect is taken very seriously."

Instead the court ordered the police to start a nationwide hunt for the man, and interpol have been alerted

.

If you missed the Chretien press conference to announce his bid for judicial review, you missed a classic Chretien performance. Shifting blame, abrasive and defiant, he stuck a shiv through Martin's ribs, attacked Gomery, praised the worst parts of his record as great achievements, insulted his own lawyer and scoffed at his detractors. At the end of the day, he claims it was not his fault at that when he learned of it he called the cops. That is not quite the way I remember it. I recall stories in the press, questions in the House of Commons, a general knowledge throughout the political country of the program and denial after denial. It was only when the cat was out of the bag, and Chretien had shrugged his shoulders at the theft that he called the RCMP. And what difference does that make? The RCMP were up to their eyes with the Chretien corruption, from taking orders from the PMO to pre-emptively arrest people at the APEC Conference to the politically motivated Mulroney investigation to the BDC forgery to the RCMP involvement in taking sponsorship money and hiding it in illegal bank accounts, the Chretien PMO and the RCMP appeared to be walking with their hands in each other's back pocket. So call the cops, there is a biy of immunity in that relationship. Still, Chretien is the most ruthless bastard in the country and if he is going down, do not expect him to go solo.

What more can be said about the petty corruption of Canadian police? The institutions of this country are becoming a joke. The court is attacked from the right and the left. Judicial appointments are blatantly political. We have provincial governments attacking the rule of law through legislation, including privative clauses and disallowing defences. (first they came for the tobacco industry but I did not care because I was not a smoker. Say what you like, if the state can get away with it on tobacco, it will not stop with tobacco). The Parliament has been stripped of not only its power but its dignity. Promises to rectify the democratic deficit have been ignored. The power vests with the PM and now that we have a minority, the government that so many pundits and the NDP told us Canadians wanted, we see the juvenile politics of the nanny state in full play. Name calling and worse case scenarios. The politics of fear. There has not been a serious debate in Parliament since T.V. cameras were allowed. Commissions of inquiry are shut down at the first sign of trouble. The media begged off responsibility a couple of years ago when they refused to report what Chretien was saying and reported what his spinners said he meant. Clarkson is GG and Moskovitz is a VP with the BDC. Sponsorship money was accepted for advertising with no questions asked, no stories written. An AG report telling reporters what they already knew but could not be bothered to report. The police have run amok, taking sponsorship money, targeting critics, extorting money, selling drugs, violating election laws. From the Ontario drug squad, to the Police union boss endorsing politicians. There are unconstitutional surveillance cameras place on the streets by the RCMP. The RCMP took sponsorship money and covered it up. In Newfoundland there is an inquiry ongoing into the wrongful convictions for murder of three men who were railroaded by the police. There no longer can be police forces investigating police forces. The standard for discipline must be set out in legislation, removing it from the bargaining table. Police Associations and forces must be apolitical. We do not allow the Franciscans to investigate allegations of sexual abuse by Christian Brothers, why do we allow the Quebec provincial police to investigate the RCMP or the OPP to investigate the Royal Newfoundland Constabulary?

Officials at HRDC were intimidated into the immigration exemption for strippers. You know the one that has Judy Sgro in so much trouble. The National Post is reporting the following:

A senior government official said intimidation by organized crime in the adult entertainment business led HRDC to set up the fast-track program for foreign strippers. …

Human Resources Minister Joe Volpe finally cancelled the special exemption on Dec. 15, but he had to battle his own officials who feared HRDC field officers could face retaliation from organized crime.

Senior HRDC officials informed Mr. Volpe's office the special exemption was given to foreign dancers because they didn't want their front-line officers to deal with strip club owners on a case-by-case basis.

Organized crime may well be better than the arbitrary, unorganized kind. The organized criminal has a tendency to keep to his own crowd and of course they provide the vices that the government does not. Government has the alcohol & gambling rackets, organized crime has the drug & prostitute rackets, the police have the protection racket. The only way to get rid of organized crime is for the government to take over the drug and prostitution rackets or to legalize the same. The government has legalized limited gambling and booze sales, controlling access and content. The mob are pretty well out of that business. One could assume that legalizing limited solicitation and pot would sure put a damper on the business of the mob as well. These activities would become legitimate businesses, paying taxes and the like. All that would be left would be hardcore drugs, but they may well go the way of bookie betting, guns, the unions and the protection racket. I do not think that some police officers will be that happy with the competition.