FTA Lawyer

I really can't win any hearts or minds here...because I'm stuck with knowing what actually happens in the vast majority of real life cases and can't make my hyperbolic arguments from a position of blissful ignorance. In Alberta, the "starting point" or default sentencing outcome for a first offender (no previous record) trafficking cocaine for profit is 3 years in a federal penetentiary. The maximum available sentence for trafficking cocaine is life imprisonment. This is not treating drug offenders with a "slap on the wrist"...and the most likely hug will come from an enamourous cell-mate, not the courts. This is the prevailing statement of the law in Alberta: R. v. Rahime The above quote was in 2001, so the default sentencing outcome has been 3 years in jail for 27 years now. Can someone finally acknowledge that reality tells us a different story than people spouting off how police should not even bother arresting people for drug-crime because we hug convicted offenders?!?!? FTA

It is in the Charter, but as interpreted by cases (that's how a common-law system works). Section 1 of the Charter allows for "such reasonable limits as can be demonstrably justified in a free and democratic society" to be placed on Charter rights. Cases interpret the level of expectation of privacy at the border entering Canada to be far lower than when you are legally in and moving around Canada. The extra limits to a person's Charter rights which CBSA are authorized to impose are seen as reasonable and demonstrably justified in a free and democratic society (is how the argument would go presumably, I haven't actually done the research to find the cases). FTA

Here's what all of you critics are missing... In the Stats Can link I posted earlier, the data for all Criminal Code cases in Canada for year 2005/2006 were as follows: Total Criminal Code cases: 330,549 Total Guilty: 216,378 Total Acquitted: 13,011 Total Stays of Proceedings: 95,945 Total "Other": 5,215 You can find link after link of media reports to justify your rants against the system, because that's all that gets reported. I'll confidently wager that all of you working together cannot show that of the 216,378 guilty verdicts that even 10% of them qualify as examples of "broken justice". Bad decisions are out there, no doubt. System broken beyond repair? Only according to the media. Come sit in a courtroom in Alberta for the day and you'll see what I mean. If you don't believe me, here's a link to one of the first cases I ever did in the Alberta Court of Appeal...where's the bleeding heart liberal judge here? Where's the big media stories touting an "unbroken system" based on the middle-aged woman who got serious jail time? I reiterate, you only get to read about the cases that support a "broken system" argument...they sell more papers. 14 months for first-time marijuana grow-op FTA

Just a minute...I have to pick myself up off the ground... You've finally nailed it Wilber! Look, you are taking the pro-police side of this debate, and I'm lining up on the civil liberty side...that's fine. But what you perhaps are missing (based on your critical comments aimed at guyser) is that we are all advocating the same ideal in the end. Police breaking the law in trying to enforce the law is bad for society. The potential for abuse is so bad that some decisions like Feeney have to be made in the greater public interest. Because no matter what the outcome society as a whole will suffer the consequences. If Feeney was decided the other way (as a results-oriented judgment becuase of the apparent bad guy that was caught) that would have been the SCC saying to all police in the country...even if you know you are breaking the law, and you have no subjective belief that you have authority to pull your gun and enter someone's home, go ahead, just make sure that you find evidence of a crime after you get in there and we will excuse your blatantly illegal conduct. I'm sorry, but that decision would have been disastrous for the safety and security of citizens of Canada. The motivation for good police officers to become corrupt (carrying drugs or guns to "drop", busting into the house of the guy who stole his girlfriend etc) would be massive. Speaking from experience, when police officers realize that the best way to give a "scumbag" a free pass is to ignore the law when dealing with him, they suddenly want to become better at their job...who would've guessed!?!? Why interfere with a suspect's right to counsel or go into his house before you get a warrant when you can not do those illegal things, take a little more time to do your work, and then nail the guy...lawfully. Your strong attacks against the judiciary and defence lawyers for putting criminals on the street instead of in jail by acting with no common sense only really ring true if you start from the proposition that police need to break the law in order to enforce it. The fact is they don't. FTA P.S. The CBSA thing is premised on a lowered expectation of privacy when you cross a border...no matter what your citizenship...because sovereign states have heightened interests to protect against the importation of all things bad (including undesirable people themselves) which largely trump individual liberties. I could find some case law on it, but it may take me a while.

Actually it is fundamental to your position. You are asking us to excuse the police for breaking hundreds of years old law that says they can't go into someone's home without a warrant (The SCC cited a case decided in 1604 for that proposition). You tried to assist your argument by saying that the police were following the known legal standard but were hoodwinked by some crazy judge imposing some new rule under the Charter...and that is wrong. Eliminate the Charter altogether, and the officer committed an illegal arrest and contrary to what you are trying to argue, the courts frowned upon illegal arrests just as much pre-Charter as they do today. We had evidence exclusion rules then too. Well, the SCC just nixed RCMP using police dogs and armed officers to perform random searches of citizens in bus stations and children in schools and the officer in Feeney testified that he did not have grounds to arrest the guy nor grounds for a warrant and that didn't stop him from pulling his gun and going into Feeney's home now did it? It's hardly charitable of you not to argue whether it was appropriate...it is 100% clear that it wasn't! The officer himself knew he had no legal authority to enter the trailer but did so anyway! As for the "component of law" you are talking about, we have it...it's s. 24(2) of the Charter. Charter breaches do not automatically lead to exclusion of evidence. The SCC majority analysis of this point is incredibly lengthy, so follow the link to read it yourself if you want...but here's what I think is the crux of why they ejected the evidence (note...s.10( right to counsel was also completely disregarded by the police in this case): R. v. Feeney Of course, you are free to disagree with this analysis...and at home in their living rooms, so can the police. When they are on the job, the police need to follow the law and when they flagrantly ignore 400 years of common law, I don't see why it's not their fault that the accused killer goes free... And people like you advocating the "so what if the cops don't follow the law or respect citizen's rights" approach are therefore able to be proud of "accomplishing" gross injustices like the 25 or so Canadian cases you can read about on the site of the Assoc. In Defence of the Wrongfully Convicted. Justice Denied I suspect not...here's some things from the AIDWYC website that I find to be outrageous and unreasonable...you tell me if I'm way off... Is that not enough for us to decide that police should be required to follow the law? FTA

Here's a more up-to-date link regarding criminal case outcomes (no info re how long they took). By my math, in 2005 / 2006 of all the criminal cases in the entire country, 65.5 % ended in conviction. Canadian Criminal Cases 2005 / 2006 Of course, many of these would involve plea-bargains, but the point is, if you added up all of the articles in the paper or stories on tv (or this thread for that matter), you would be led to believe that the vast majority of people charged "get off". Not true. FTA

Argus, You call a post which was a very well-written "big picture" description of why adherence to the rule of law necessarily will sometimes lead to results we don't like "drivel" and attempt to prove that with citing a specific case incorrectly. Fundamentally incorrectly. The case you are describing is clearly the 1997 SCC judgment of R. v. Feeney. But, you've got some serious accuracy problems. The trailer entered by the police was Feeney's dwelling house, the police were found to have acted contrary to both any "new" standards of the Charter and to the previous (and not new or changed) common law on warrantless entry to homes. At the time the police illegally entered Feeney's home, they had no evidence capable of giving them reasonable grounds to beleive he had done anything wrong...and in fact, the officer personally testified that he had no belief in his own mind that Feeney had committed any crime and no intention to arrest him...he just illegally entered his home to "see what he was doing". Here's a decent excerpt from the majority decision: Where I guess we differ is that I think police with their guns drawn (as they were in Feeney) should not be able to forcibly enter my house to "see what I am doing" when they have no reason to believe I have done anything wrong. You on the other hand seem to be content with that standard, because once in a while, such storm-trooper behaviour will mean that the police happen to find a criminal. While the reference to Afghanistan in previous posts may have been a bit much given the complexity of the war there etc. the idea behind the reference is sound. The free democracy that we live in includes protection for citizens against illegal interference from the state. You may think that an Argentinian or Columbian police death squad is impossible in a country like Canada...I hope you are right...but I say it has far more to do with people like me fighting to prevent it than it does people like you trash-talking our judicial system. And as to your bold anecdotal gripes about the "broken" system, I will contact the Chief Judge of our Provincial Court (where the majority of criminal matters are prosecuted) for up-to-date stats if they are available, but here is a link from actual numbers in Alberta from 1995-96. Alberta Criminal Cases 95-96 In case you don't want to analyse the graph yourself, here's the summary you need to consider: Now, anecdotally for my part, I would expect that the number is higher than 6% in today's terms, but not much. The percentage of matters going to trial as of 2 years ago was quoted to me officially by the Assistant Chief Judge as being 8 to 12 percent. My point is, the system processes vast amounts of criminal cases most without outrageous results and most in completely reasonable time frames. Those relying on the media for their window to the justice system (because they are not working in it) get a really invalid picture of what is really happening on the "front lines" so to speak. FTA

The premise of your whole topic is illustrated by the content of your original post: Including the above, I counted six separate instances in your posts using the term "right-wing" or some variant of the same. So, with all due respect, I do not accept your self-professed disavowal of the term nor do I accept your claim to being straightforward. Makes it kind of tough to expect people to believe the veracity of your account of the "Indian-bashing" incident... That said, whether your incident is fabricated or not simply detracts from the fact that you have started a thread wherein you describe objectively racist behaviour and as a topic title you ask whether or not it is racist? Is this a question mark ? The topic is pointless. Bad things happen to people who don't deserve it all of the time. Sometimes its just rude, other times criminal. Sometimes based on race, other times random. There is really no point to the discussion, unless you were trying to rant about Conservatives (big "C" intended) and their "right-wing"edness. Hmmm... FTA

Wilber, you are being obtuse. So much so that you cannot even see that what you advocate is that police can search who they want, when they want for whatever they want as long as the wrong people don't see / report / catch them. So much so that you vehemently argue to protect a pupil's right to go to school free of drugs and weapons, but advocate this to be done in a manner that takes away my (and your) right to live in a democratic society free of being subjected to random detention and search by armed agents of the state. So much so that you call a kid with some dope in his backpack a criminal creep deserving of no legal protection but ignore completely when the police knowingly violate the law and orders of the court. If I think pot should be legalized, then I should lobby the government to change the law...or suffer the "unfair" consequences if I choose to break the present law. If the police think searches should be easier to do and should be permitted on no grounds, then they should lobby the government to amend the Criminal Code (and invoke the notwithstanding clause)...or suffer the "unfair" exclusion of evidence if they choose to disregard the present state of the law. I think that forcing a citizen to give up his or her right to be free from unlawful state searches in order to attend public locations (in the absence of any grounds to believe that any wrongdoing is ocurring at that place) is the antithesis of a "free and democratic" society. I do not support random groundless searches as a condition of going to school. Those who advocate these searches in the name of "safety" are purchasing a false sense of security with a very valuable currency...their civil liberty. Unfortunately, most people apparently are unable to distinguish between a peso and a pound when they spend their right to be left alone by the government. I have no problem whatsoever in the police and schools and everyone else being proactive to combat crime. I just cannot accept that all citizens must lose their rights to life liberty and security of the person so that police can hopefully stumble across a single citizen committing a crime. Reasonable and probable grounds is an easy standard to meet...searching without such grounds is unlawful and no amount of bullshit rhetoric will make it okay for the police to act in such fashion. FTA

I really wish that more people would read the actual judgments before going off about how outrageous and out of touch judges are. And frankly, if you don't read them, then you are just like the non-voter who complains about the government...your opinion counts for nothing as far as I am concerned. R. v. A.M. (School Search) R. v. Kang-Brown (Bus Depot Search) It is totally false to suggest that the Court in any way was saying it's okay to deal drugs in school or to transport drugs by bus. What the Court did say is that police officers are not allowed to randomly accost people with dogs and then search their bags when they have no evidence whatsoever to even give them a suspicion that a criminal offence is taking place. What people seem to forget is that to protect citizens from living in a police-state, we have to protect all citizens...even the ones doing bad things (it's an unavoidable side-effect). I particularly like this quote from the school case: FTA

I am certainly not against recycling, but I'm about to make a "do as I say not as I do" type of comment on this issue... All the recycling in the world is foolish really...reduced consumption is what we should aspire to. My kids have 3,478 toys at last count, 3,410 of which they could probably survive without. I and basically every neighbour on my street each own $5K worth of tools that fill our respective garages and collectively get used on about 20% of the days of the year. Good for Canadian Tire, bad for Mother Earth. We clothe ourselves not for need but "fashion", we toss out refrigerators full of old "leftovers" that don't get eaten every week because we just don't feel like the same supper as two days ago, and on and on and on. If we really want to have a serious impact (and again, I acknowledge I am not pulling my weight on this) recycling is hardly the answer...it's an excuse we use to make us feel better about our ravenous and insatiable appetite to consume. FTA

Flying hijacked airplanes into large office towers also "works" for it's intended purpose. Here's hoping whether or not something "works" does not become the sole determining factor for it's inclusion in the fabric of a free and democratic society. FTA

Ironically, what angers me is that I have clients who are getting pre-sentence reports that recommend no community release options for "run of the mill" robberies. I just can't comprehend how this guy manages to "hide" anything about his deviant motivations...he rapes and pillages at every opportunity he gets it would seem! If you tell a parole officer that you are getting control of your improper urges whilst simultaneously raping someone, do they just take you at your word? I really am at a loss on this one. FTA

I see that this was an old thread, but as you've noted, the DNA bank was already around for years even then. All I can tell you about is the situations where DNA is taken for Criminal Code convictions. Section 487.04 of the code tells you, but for ease of reference I'm pasting in the relevant offences. Primary designated offences are ones where the court must order a DNA sample, unless an extremely rare exception can be shown warranted by the offender. These offences now include the following: Secondary designated offences are ones where the court can exercise its discretion whether or not to order a DNA sample...by weighing the privacy of the offender against the interests of the public. These offences now include: Here's the link if you want to look into it more: Criminal Code s. 487.04 As you can see, we have a pretty broad scope to allow for convicted criminals to have their DNA stored for future reference. FTA

I hate to be a spoil-sport, but this topic is a bit like debating whether or not Titanic should head out on its maiden voyage...the ship has long-since sailed. Justice Canada - DNA Databank Info Canada has a comprehensive statutory framework for the collection of DNA from people convicted of criminal offences. Recent changes have even been made to increase its scope. In my view, the law as we have it strkies an effective balance between all of the different concerns being debated here. FTA

This is all you've got? Buddy deserved to be clubbed in the head or tasered? Well, I guess that's the end of it then...Argus has spoken. The earlier footage would hopefully confirm that nothing of significance was observed beforehand. But thanks to the incompetence of the very people whose actions or omissions are under scrutiny, we will never know. Maybe we would see a CBSA guy poking his finger at the glass he was behind like a fish in a pet store...to speculate one way or the other is a useless exercise. I watched a Crown in Banff one day arguing at length to a judge about how an accused's failure to follow RCMP commands to turn off and get out of his vehicle was compelling evidence of his intoxication while behind the wheel. The judge being a bit more on the ball posed to the Crown the possibility that the commands were not followed because the Japanese accused didn't speak nor understand a word of English (and was simultaneously having every word in court interpreted to him by an English-Japanese interpreter). Things are not always obvious, even when they are right in front of your face. FTA

Blind trust in the "officials" in the system is the only way you must be able to look at it this way. If I worked security at ABC corp in downtown anywhere and someone in my building was killed in some unusual incident, my grade 8 education would be enough to flip the switch in my head that would say, "Hey, we have videotape of this...could be important...and the system automatically erases if we don't stop it...better go make a copy..." Really, a trained monkey could remember to do this. I don't know what the rest of the tapes showed...and no one else does either...and that's the problem...we have to trust the very people who tasered the hell out of this guy and have the highest motive to hide something that there was nothing there to see. Sorry, doesn't cut it for me. And here's a good example of why: Crown Prosecutor Hiding Evidence I've seen first-hand a Crown Prosecutor, agent of the Attorney General for Alberta, intentionally withhold tapes of evidence that would have assisted my client in proving his innocence...even AFTER a court had ordered her to hand over everything she had. Conveniently missing or erased tapes are an affront to justice because justice must not only be done, but manifestly be seen to be done in order to maintain public trust. FTA

To say that this is too convenient is quite the understatement: Evidence Erased When a client of mine has a recording of evidence that supports their innocence, I preserve it. I make multiple copies and secure them in separate locations and quite simply, I do not permit an "inadvertant" erasing of the evidence. I do this even for petty charges like parking tickets. Now, CBSA has a guy dead in an airport after inexplicably being there for hours and then being tasered, with massive public attention brought to the situation and they would have us believe that no one took a single due dilligence step to preserve the original recordings?!?!?!?!?!?!?!?!?!?!? Oh, but don't worry, it's okay because a CBSA guy reviewed all of the originals before they were erased, and trust him, there was nothing of significance on the erased portions. THIS IS ABSOLUTE BULLSHIT!!!!!!!!!!!!!!!!!!!!!!!!!! Not only should the public demand firings at high-up levels of the CBSA over this, but there should be criminal investigations into possible obstruction of justice / evidence tampering or possibly criminal negligence charges. This is not okay. What these emails suggest is that, knowing there is an automatic erase function on the surveilance tapes (but apparently not knowing if it was after 16 or 7 days...kind of important) the CBSA guys pulled a copy for their officer to review, BUT MADE NO OTHER COPIES. Then, their guy cuts and pastes the sections he likes and all of the rest is disappeared for eternity. Then, as if they are surprised that someone is requesting a copy of the tapes, they reveal OOPS! we had them but don't anymore...sorry! I simply cannot believe this. This kind of demonstrated ability would not permit these people to hold jobs as greeters at Wal-Mart (and I apologize to Wal-Mart greeters for even mentioning them in the same sentence as the CBSA at this point). FTA

The small thudding sound you just heard was my King falling to the chess board on it's side. Even I can't attempt to offer an explanation for this one. FTA

Look, I can completely accept your views as being different from mine and I can even adopt some things you advocate, but your last example is completely unfair as a criticism of a "panty waisted judicial system". In fact, your example highlights the fact that there is often a disconnect in people espousing strong law and order views but not being willing to pay for what they seek. The "non-returnable" warrant situation boils down to one single simple thing...MONEY. Many who would blame the "system" for allowing criminals to skip out on charges to another place far enough away don't realize that lack of taxpayer funding is the only reason a person doesn't get sent back to the jurisdiction where they are wanted. As for the CONAIR idea...seems like an innovative way to put seized funds to good use. FTA

I didn't really think you were going personal, so no offense taken...frankly, I appreciate the way that we have both been respectfully arguing this issue. Also, I can accept the point you make above about searching for more consistency between rigid and flexible approaches to justice, depending on the context. I personally don't think the system is as far out of whack as you do, but your argument above is the most sensible way I've seen the issue described from your point of view. That said, here's a current example of why I don't have blind faith in police and why I will always argue against the law excusing their unlawful conduct: Police Brutality? It really matters not to me if the individuals being detained in this video were dealing drugs or committing some other type of crime...watching a police officer gratuitously propel a human being down a flight of stairs makes me sick to my stomach. If the guy tossed down the stairs gets a free pass on criminal charges he may have been facing out of this incident, it is not the judge's fault for being "liberal", nor the defence lawyer's fault for being "sneaky" nor the Crown's fault for being "soft". FTA

Well, I don't think that you can fairly comment on what my principles are...I am arguing an issue with you here, not committing myself to personal positions at a judicial confirmation hearing or anything. Even you must accept Wilber that any system run by humans is inherently fallible. In any given case, the state may just not have what it needs to prove its "top count" on an indictment...isn't necessarily someone's fault, it's just the way things are. If a guy fully admits to being guilty of manslaughter...but denies having intended to kill, then a plea to the lesser count is often the very definition of justice. If a really bad murderer gets manslaughter as a deal when the Crown has serious concerns about its ability to prove it's case, it's making lemonade out of lemons as far as the state is concerned. Maybe not much sugar in the mix, but lemonade nonetheless. Where you and others have the real issue is if a bad dude seemingly gets a break for no damn good reason. "Soft" judge or incompetent Crown or devious defence counsel or whatever the issue. I can accept that there are such cases and as such, some complaints of this nature are well-founded. That said, I don't accept that the system is in the state of disarray that the media likes to suggest by focusing only on the outcomes and cases that incite public contempt...and rarely ever mentioning others. I can tell you many stories about harsh justice being meted out in Alberta that simply never made a blip on the media radar screen. As such, the window into the "system" that the public gets is stained with editorial excrement...which makes things look far worse than they actually are. FTA

There is no doubt that these types of decisions will be unpopular ones at the best of times. I do not purport to know what was taken into account by the Crown who did this deal, but at some point, getting a guaranteed 17 years for manslaughter with an additional investment of resources of a few thousand dollars of public money is far better than taking a chance at 25 years with an additional half-million or more down the drain. Call it expediency if you want, but the victim's family would not likely be more pleased at an acquittal after a second trial than they would be with 17 years now. Like it or not, acting in the public interest for the Crown means considering the best allocation of scarce resources. FTA

No, but my point is still the same. If the ill-conceived videotape is the first and only time this guy has said these types of remarks, seems to me it would be really wrong to persecute him just because we've all seen the tape. All I'm saying is that a who a person is cannot be determined on nothing more than a single example of a really stupid thing spewing from his mouth. And like some others here, I hate that the reason this guy might be pushed from his job is mere political correctness. If he really is unfit to be an elected representative because of his outrageous personal views, then fine, he can disappear. But, if he is really good at his job, has acted in public office with integrity and will nevertheless be tossed because of an off-side remark from 16 years ago, just because that one remark sounds bad...then I object. FTA

If a judge doesn't give the proper legal options to the jury, then he is usurping their function. If a jury is wrongly instructed by a judge to convict no matter what, then it's not really their decision is it? Then, for the Crown to make a deal to get 17 years for manslaughter rather than run the trial over again and risk an outright acquittal is called making the best of a bad situation. Plea bargains have their place in ensuring justice...a bird in the hand... FTA