Issue 302
September 3, 2004
Articles
*****
The
Appellants were convicted of possession for the purpose of trafficking with
respect to 22 pounds of marijuana. The
trial judge found no violation of the Appellants’ constitutional rights and
ruled that even if he had found such a violation he nonetheless would not have
excluded the evidence under s. 24(2) of the Charter .
The facts
in this case are as follows. The
Appellants were stopped by two OPP officers for driving 10 kilometers over the
speed limit in the middle of the night on a lonely stretch of highway in
Nipigon Township. The Appellants were
driving a rented Lincoln Town Car with BC plates. The OPP officers admitted that when they stopped the vehicle,
they were more interested in investigating if the Appellants were drug
couriers. Using a flashlight, one of
the officers inspected the interior of the vehicle and located what he claimed
to be several indicators that the Appellants might be drug couriers: cell
phones, a pager, a road map, fast food wrappers, and two duffel bags.
One officer
testified during the trial that the Lincoln seemed too expensive “for what the
driver and the passenger looked to me”.
Without the consent of the Appellants, the officers searched the
vehicle. Nothing was found in the
interior of the car, however a search of the trunk revealed two duffle bags of
marijuana.
The
officers did not advise the Appellants of their right to counsel, nor did they
consider obtaining a search warrant before conducting the search.
Section 10 (b)
The Crown
conceded for the purpose of the appeal that a breach of section 10(b) had taken
place. The Crown properly acknowledged
that while the officers looked for the drugs the Appellants were at least
physically restrained and, accordingly detained. Thus they were entitled to have their section 10(b) rights read
to them.
The Court
of Appeal also held that the entire investigative detention was unjustified.
For the detention to be justifiable, the police had to have “articulable cause”
for the detention or “reasonable grounds to detain”. An officer cannot exercise the power to detain on a hunch, even
if the hunch stems from an intuition gained by experience.
The officer
testified that the items he viewed in the Appellants’ car along with his
observation that the Lincoln seemed too expensive for what the occupants looked
to him led him to reasonably suspect they were drug couriers. Justice Laskin for the Court of Appeal did
not agree that the items spotted in the vehicle were indicators that the
Appellants were drug couriers, rather he found the items to be neutral,
stating: “In the world we now live in, that is not a surprising admission –
fast food, duffel bags, a road map, cell phones, even pagers now form part of
many people’s lives”.
Lasking J. also criticized the
officer’s observation regarding the Appellants’ driving an expensive car:
“This type of stereotyping recalls the
words of Doherty J.A. in Simpson, “Such subjectively based assessments
can too easily mask discriminatory conduct based on such irrelevant factors as
the detainee’s sex, colour, age, ethnic origin or sexual orientation.””
The Crown
on appeal also conceded that the police breached the Appellants’ right to be
secure against unreasonable search and seizure. A warrantless search may be justified in the common law in two
ways: (1) by characterizing the search as a search incidental to an
investigative detention and (2) by characterizing the search as a search
incidental to arrest.
A search
incidental to an investigative detention can only take place if the officers
believed on reasonable and probable grounds that their safety or the safety of
other is at risk. This was not case in
this particular set of circumstances.
The trial
record also showed that the officers did not have reasonable and probable
grounds to arrest the Appellants before they searched the trunk of the
car. The Court held that the search
could not be justified as one incidental to arrest.
In the
circumstances, the search absent the consent of the Appellants was in violation
of section 8 of the Charter .
Exclusion of the evidence under section 24(2)
The trial
judge refused to exclude the evidence at trial. The Court of Appeal took issue with the trial judge’s ruling and
specifically with the trial judge’s assessment of the seriousness of the
breach. Though a trial judge’s
assessment is entitled to considerable deference from an appeal court, in this
case the trial judge minimized the seriousness of the breach and thus arrived
at an unreasonable conclusion.
The
officers committed three constitutional violations of the Appellants’
rights. No urgency or necessity existed
in the circumstances to diminish the seriousness of the violations, nor can the
violations be characterized as merely ‘inadvertent’ or ‘of a technical
nature’. The trial judge found that the
police acted in good faith, however a
recent decision of the Supreme Court of Canada, R. v. Mann, 2004 SCC 52, held that “good faith cannot be claimed if a Charter violation is committed on the basis of a
police officer’s unreasonable error or ignorance as to the scope of his or her
authority.”
Laskin J.
also found that the police had other investigative techniques available that
could have avoided a Charter
violation. The officers could
have taken the Appellants to the nearby OPP detachment, obtained a telewarrant,
and lawfully searched the vehicle.
Laskin J.
with Feldman J. in agreement decided that the admission of the evidence of
marijuana would bring the administration of justice into disrepute, and that
the seriousness of the Charter
violations called for the exclusion of the evidence.
Laskin J. concluded that “a random
stop, even for speeding, does not give the police an open invitation to search
every car that they pull over.”
The following article appeared on guardianunlimited.com
on August 6, 2004:
The
untouchables
Diplomatic
immunity has recently come under fire but many argue there are good reasons for
retaining it, writes Sarah Left.
The case of a Saudi diplomat suspected
of indecently assaulting a young girl in London has led to calls for the
centuries-old conventions of diplomatic immunity to be scrapped or
significantly altered.
The case in question is a dramatic one:
a 41-year-old man may have assaulted an 11-year-old girl but the police have no
power to investigate.
The Saudi embassy has promised a
thorough investigation and a trial for the man in Saudi Arabia if the claims
have foundation. This must be little comfort to her parents, as the system puts
him out of reach of British justice.
The Foreign Office said that in 2002, 21
diplomats out of a community of 20,000 were accused of what it considers
serious offences, those which would carry a penalty of 12 months or more in
prison. In only two or three of these cases was immunity waived.
It is serious offences that have former
home office minister Barbara Roche and human rights lawyer Geoffrey Robertson
calling for change.
But diplomats have been quick to
criticise Ms Roche's stance. The present law on immunity dates from the 1961
Vienna Convention and has near global support.
The idea that all 177 signatory
countries would agree to change a system that by and large serves their needs
is fantasy, says Malcolm Forster, the joint head of public international law at
Freshfields Bruckhaus Deringer.
Moreover, it is precisely against
serious charges that diplomatic immunity is necessary, diplomats say. An
unfriendly regime looking to harass a diplomat is unlikely to accuse him of
double parking.
Oliver Miles was the ambassador to Libya when WPC Yvonne
Fletcher was shot dead by a gunman from within the Libyan embassy in London in
April 1984.
What appeared in Britain to be the worst
excess of diplomatic immunity - that a murderer should be allowed freely to
return home and escape prosecution - looked like the best defence of immunity
from Mr Miles's vantage point in Tripoli.
Had the suspects inside the London
embassy been subjected to trial, he and his staff in Libya would have had charges
concocted against them and been put on trial, he says.
After the shooting, UK authorities
entered the Libyan embassy, searched it, and found a gun. That was an illegal
intrusion on a sovereign diplomatic building, Mr Miles felt, and it had immediate
repercussions for his staff.
"The Libyans promptly moved into
our premises and found a gun," he says. "My firm belief is that the
Libyans planted that gun."
The FO considers immunity
"fundamental", allowing British diplomats to operate independent of
local pressures and without fear of harassment in sometimes difficult
circumstances.
Mr Miles points out that it is not just
states with immature or very different legal systems that create problems. When
he was serving as an ambassador to the UN in New York in the 1980s, he says IRA
supporters were outside the office every day, screaming obscenities at the
British staff. The local police took little or no action, he says.
He feels that, without immunity, the IRA
would have been able to accuse British diplomats of false crimes that would
nonetheless have ended up in front of a judge in New York.
The most serious action a receiving
state can take is to declare a diplomat persona non grata and expel him or her
from the country. But if an incident is serious, an embassy may pre-empt such a
dramatic move.
In 2001, Libya's cultural attaché to
Britain attacked an anti-Gadafy demonstrator with a metal shelf outside a
lecture at London's School of Oriental and African Studies.
The Libyan ambassador, aware that the
attack could damage delicate relations with Britain and raise fears that the
Libyan president was launching a new terror campaign against opponents in
exile, immediately expelled the attaché without waiting for the Foreign Office
to request it.
"Diplomatic immunity does not mean
the diplomat is unassailable," Mr Forster explains. "The immunity is
the state's, not the diplomat's. The state can waive it against the diplomat's
will, and this happens quite a lot when a serious crime has been
committed."
There is also an avenue of redress for
victims, he says, although a potentially unsatisfactory one: bring an action
against the diplomat in his home country. Immunity only applies in the receiving
country, not at home.
This is most likely to be effective if a
diplomat is expelled swiftly while evidence and witnesses are still fresh.
With the recent thaw in relations with
Libya, Scotland Yard has begun working on the case of WPC Fletcher alongside
Libyan investigators, although after 20 years detectives are not hopeful of a
resolution.
Even the 21 serious offences diplomats
in Britain were accused of in 2002 covered a wide range, from shoplifting to
fraud to domestic violence. Quite a few related to drink driving. And often a
diplomatic leaves the country before the Foreign Office has a chance to become
involved.
The Metropolitan police said that even
in the case of the Saudi diplomat, the public should not think that diplomatic
immunity is necessarily the end of the road.
"We have been successful in
bringing cases in the past," a spokesman says. "The Saudi diplomat is
sort of 'on bail' while the Foreign Office talk with the Saudi embassy."
In 2002, the Foreign Office succeeded in
convincing the Colombian embassy to waive immunity for one of its diplomats,
Jairo Soto-Mendoza. He stood trial for the murder of a 23-year-old man, and was
cleared at the Old Bailey.
* * * * *
The
following article appeared on thestar.com on August 10, 2004:
Editorial:
Protect civil rights in the use of DNA
DNA testing
has become a powerful and indispensable tool in fighting crime. Police have
used it to catch murderers and rapists, solve decades-old cold cases and exonerate
people who have been wrongfully convicted.
Now, Toronto
police say a national DNA databank helped lead to the arrest of a 20-year-old
man last week in connection with a violent sexual assault on a 17-year-old
woman in late June. The suspect had been ordered to give a DNA sample after an
earlier robbery conviction.
On the heels
of that arrest, Toronto Police Chief Julian Fantino is calling for the
four-year-old national databank to be expanded. Fantino wants the law to be
relaxed so DNA, much like fingerprints, will be collected automatically from
anyone who is arrested. Currently, the Criminal Code allows DNA samples to be
taken from offenders convicted of certain crimes and registered in the
databank. Police can also ask a judge for a warrant to collect samples from
suspects in specific crimes.
The
brutality of the June attack, in which the victim was kidnapped, sexually
assaulted and tossed into a garbage dumpster, lends weight to Fantino's
argument. In the interest of public safety, police should have at their
disposal every reasonable tool to investigate violent crimes and remove
suspected offenders from the streets. And placing more samples in the DNA
databank could allow investigators to identify or exclude suspects
more quickly
and efficiently.
Fantino
argues that taking DNA samples is "even less intrusive" than
fingerprinting. And on the face of it, the two don't look very different. Both
are unique markers that allow individuals to be easily identified. For years,
police have routinely fingerprinted people who have been placed under arrest.
Why shouldn't they take DNA samples while they are at it?
Despite
Fantino's arguments, Ottawa should reject calls to expand use of this tool to
those who have only been arrested, but not convicted.
That's
because DNA holds sensitive personal information that its routine collection
could open up many avenues for possible abuse. DNA reveals much more
information than fingerprints. It is a genetic blueprint that holds the key to
hair colour, height and even the predisposition to certain diseases. Genetic
information is so sensitive and personal that the consequences of its misuse
could be devastating. How would that information be stored and used? Who would
have access to it? What would happen to that information if charges were
dropped?
Also, DNA
testing is still in its infancy. The full implications are not yet known.
Researchers have already found genes for certain cancers and other illnesses.
The potential for more genetic breakthroughs seems endless. But that potential
also carries risks. How would the national databank be used, for example, if
researchers were to discover a crime gene?
The
collection of DNA from people who have been arrested but not convicted also
will face constitutional challenges. A fundamental tenet of our criminal
justice system is the presumption of innocence. With appropriate safeguards,
the collection of DNA after a person has been convicted of a crime is a
reasonable infringement of privacy and civil rights. But taking DNA samples
upon arrest may not be seen as reasonable by the courts.
All
governments must weigh the civil rights of its citizens against the imperative
to protect society from violent crime. Ottawa has already achieved a good
balance with current legislation. The extension of DNA collection to arrests
might allow police to work more efficiently, but only at a devastating cost to
civil rights in Canada.
* * * * *
The
following article appeared on washingtonpost.com on August 20, 2004:
HAITI'S
CARETAKER government, installed with U.S. backing after the country's
first
elected president in almost 200 years, Jean-Bertrand Aristide, was toppled in a
bloody insurrection this year, has uttered all the right words about
establishing the rule of law, laying the groundwork for honest elections and
achieving national reconciliation. From the outset, though, the government's
actions have cast doubt on its words. In a farcical trial this week, a death
squad leader who terrorized Aristide supporters in the early 1990s was
acquitted of the 1993 murder of a prominent pro-democracy activist and
businessman, Antoine Izmery.
The trial of
Louis Jodel Chamblain was scheduled just a few days before it began, giving
lawyers little chance to prepare and, crucially, leaving witnesses almost no
time to be notified; of eight summoned by the prosecution, apparently just one
showed up, and he said he knew nothing about the case. Most of the one-day
proceeding took place after midnight. A verdict was reached around dawn.
A month ago,
Prime Minister Gerard Latortue, writing in The Post, pledged "a
transparent and accountable government" based on "a new sense of
security for every Haitian." At the time he was seeking about $1 billion
in international aid -- successfully, as it turned out. But at home Mr.
Latortue and his government have embraced unsavory figures and prejudged Mr.
Chamblain's trial. The premier, after just 11 days in office, praised the
vigilantes who helped overthrow Mr. Aristide as "freedom fighters" --
presumably including Mr. Chamblain, a key leader of the uprising. Justice
Minister Bernard Gousse, who arranged Mr. Chamblain's surrender in April, told
the Miami Herald at the time that the accused man had "nothing to
hide," despite convictions in absentia not only for Mr. Izmery's murder
but also for the 1994 massacre of several Aristide supporters in the Haitian
slum of Raboteau. He also has predicted that Mr.
Chamblain
may be pardoned even if he is convicted in a retrial on the Raboteau
massacre
charges.
The Bush
administration, which encouraged Mr. Aristide's ouster after three weeks of
violence in February, managed to express "deep concern" at Mr.
Chamblain's acquittal. But the State Department's brief statement, issued by a
deputy spokesman and including words of sympathy for Haiti's interim government
and its challenge in rebuilding "corrupted institutions," is unlikely
to apply much pressure to ensure that Mr. Chamblain faces real justice in his
retrial for the Raboteau massacre. That's a shame, and an insult to the legacy
of brave Haitians such as like Mr. Izmery, who risked their lives in the early
1990s for a cause they thought they shared with the United States: democracy.
The
administration
has promised to stay engaged to make sure things go right this time in Haiti,
as U.S. governments have pledged so often in the past. A question now is
whether such engagement will further the rule of law in Haiti or help subvert
it.
* * * * *
The
following article appeared on nytimes.com on August 20, 2004:
WASHINGTON
(AP) -- Courts are posing a serious threat to agreements between reporters and
their sources who provide valuable information in exchange for confidentiality,
media organizations say.
Three times
this summer, judges have held journalists in contempt of court for refusing to
name their anonymous sources. Press advocates fear the rulings are the start of
a dangerous trend.
Reporters
have long argued that the Constitution's guarantee of a free press shields them
from being forced to disclose what they have learned in confidence.
People on
both sides of the issue say legal precedents journalists have relied on may be
shaky, principally a concurring 1972 opinion by Supreme Court Justice Lewis
Powell that said journalists can avoid testifying about confidential or
unpublished material unless the information is central to the case and cannot
be obtained elsewhere.
``There
seems to be more willingness on the part of judiciary to limit press
freedoms,'' said Nathan Siegel, an attorney for The Associated Press.
Prosecutors
contend journalists shouldn't assume they will get special treatment, saying
reporters are simply being asked to do what all sorts of people don't want to
do: give information to help prosecutors and plaintiffs discover the truth.
Since 1984,
a total of 14 journalists have been jailed -- some for only a few hours -- for
refusing to comply with court orders demanding that they reveal sources or
other information, according to the Reporters Committee for Freedom of the
Press. The spate of cases this year, though, represents a spike, advocates
said.
Just
Thursday, three reporters from the San Francisco Chronicle received letters
from the local U.S. attorney's office seeking documents confidential sources
gave them for ongoing stories.
``As you
know, the Justice Department has been aggressively pursuing journalists on the
confidential source issue in a number of cases,'' Chronicle Editor Phil Bronstein wrote in a staff memo. In an
interview, he said the paper will not give the government any information
obtained confidentially.
Press
advocates also express concern about court rulings that restrict media coverage
of high-profile trials, including those of basketball star Kobe Bryant and
former investment banker Frank Quattrone.
Today, seven
journalists involved in three cases have been fined or ordered jailed for
refusing to identify their sources. Specifically:
--In
Providence, R.I., a federal court began collecting a fine of $1,000 per day
last week after a reporter for the NBC station, WJAR-TV, refused to obey a
court order to disclose the source of a secret FBI tape made during a
corruption investigation. A station spokeswoman, Clare Eckert, would not say
who was paying the fine, and said no appeal is planned for fear it would not
succeed.
--In
Washington, a federal judge held five journalists in contempt Wednesday for
refusing to reveal sources who gave them information about Wen Ho Lee, a
scientist who was once suspected of spying. The judge fined each of them $500
per day, a punishment put on hold pending appeals from the news organizations
including the AP, The New York Times and the Los Angeles Times. An ABC
reporter, who worked for CNN when the stories were reported, is also appealing.
--Last week,
another federal judge held Time magazine reporter Matthew Cooper in contempt
and ordered him jailed. Prosecutors also have subpoenaed at least three other
journalists as they try to figure out who leaked the name of a covert CIA
agent. Cooper remains free pending appeal.
A critical
mass of cases may force a re-examination of the law, media advocates say.
The national
journalists involved in these cases will not ``be intimidated into revealing
their confidential sources,'' said Lucy Dalglish, executive director of the
reporters' committee.
``I think
we're setting up a real showdown here.''
She and
others contend the issue is ripe for action by the Supreme Court or Congress.
But there are perils with each route: The court could impose stricter limits on
the press, or Congress could write a law that media organizations don't like.
Typically,
it's been easier for journalists to avoid testifying in civil cases, such as
Lee's, than criminal cases, like the CIA leak.
Prosecutors
say they try to avoid calling journalists to testify, but sometimes they must.
``The
question for a prosecutor is, `You know where the information lies, you know
who has it. Can we get to it?''' said Roscoe C. Howard Jr., a former U.S.
Attorney for the District of Columbia, now in private practice.
* * * * *
Ethical
Questions Raised on Legal Fee From Widow
By Adam
Liptak
When Joseph
P. Dowd, a small-time lawyer, met Mary Corcoran, newly widowed, at the bar of
Harpoon Louie's in Winthrop Harbor, Ill., in the spring of 1999, he at first
decided not to approach her.
"It
would have been too pie in the sky," he said at a deposition three years
later. "It went through my mind, should I buy her a drink? But I thought
it would be very tacky to do that, to pursue the case like that."
Mr. Dowd was
not interested in Ms. Corcoran herself. He wanted, rather, to represent her in
a lawsuit. He knew that a train had killed her husband, Michael, an employee of
the Union Pacific Railroad Company, while he was working on a track bed in
Chicago the previous October.
Ms.
Corcoran, negotiating without a lawyer, had already received a settlement offer
of $1.4 million.
Mr. Dowd
finally worked up the nerve to approach Ms. Corcoran. He told her she needed a
lawyer: him. At his deposition, he described his legal analysis: "Somebody
gets run over by a train and killed and leaves a wife and two children. That's
a good case."
But, after
two years of litigation, Mr. Dowd and a big Chicago law firm to which he
referred Ms. Corcoran advised her to settle the case for the $1.4 million she
had originally been offered. The lawyers had taken the case on contingency,
meaning they were entitled to a percentage of anything she received. The
Chicago firm waived its fee, which would have been $210,000, on the theory that
it had done nothing for her.
Mr. Dowd,
however, wanted his money. She declined to pay, but last December an appeals
court awarded him the fee called for by the contingency fee contract - 10
percent of the total, or $140,000.
"His
only role was to call us," said Thomas A. Demetrio, of the Chicago firm
Corboy & Demetrio, which represented Ms. Corcoran in the injury suit but
declined to take any money. "He didn't work on the case. In Illinois,
referral fees are permitted for just making a phone call."
Mr. Dowd is
not satisfied with the $140,000 the court awarded him. He has filed a new suit
for the interest that sum would have earned had he received it sooner. That,
Ms. Corcoran said in an interview, may amount to another $20,000. Last month
she filed a countersuit, for malpractice.
Mr. Dowd did
not respond to several messages seeking comment. His lawyer in the first fee
dispute, Michael W. Rathsack, said his client deserved the money.
"He's a
referring attorney who spends his life out there talking to people," Mr.
Rathsack said. "Those lawyers may spend five years talking to many people
before they find a case like this one."
Mr. Demetrio
described Mr. Dowd's explanation for pursuing the fee.
"His
stated reasoning was, 'Lookit, I'm just a little guy out in the suburbs and
this is a big deal to me.' "
Referral
fees, which are legal in all 50 states, play a valuable role, said Steven
Lubet, an expert in legal ethics at Northwestern University in Chicago.
"They serve
a client-protective function," Professor Lubet said. In the case of Mr.
Dowd and Ms. Corcoran, "you encourage him to get her in the hands of
someone who can do a more capable job."
Mr. Dowd
earned his law degree at night at Oklahoma City University. He passed the
Illinois bar on his second try and set up shop in Des Plaines, where he works
as a solo practitioner handling mostly divorce and bankruptcy cases. As of
2002, his biggest injury case ended in a $14,000 settlement, he said in his
deposition that year in the fee dispute case.
The appeals
court in Ms. Corcoran's case said that if she had wanted to pay a percentage
only of the additional money her lawyers obtained for her, she should have
negotiated such a deal with them.
Ms. Corcoran
wondered about the justice of that.
"I was
a naïve widow," she said.
Professor
Lubet said the court had another option.
"In
general, contingency fees provide necessary access to justice and appropriate
incentives for lawyers," he said. "But a contingency fee should be
contingent. It would not be untoward for a court to interpret 'contingent' to
mean 'contingent upon improvement.'"
Efforts to
limit contingent-fee agreements have not been successful.
Last year, a
group of lawyers, in a concerted campaign, filed petitions with state supreme
courts, bar associations or ethics commissions in 12 states seeking to cap
contingency fees at 10 percent of the first $100,000 of a settlement, and 5
percent of anything more. The petitions were denied in five states, rejected on
procedural grounds in two and remain pending in five, said Nancy Udell, the
general counsel of the legal reform group
Common Good,
which sponsored the petitions.
"To be
ethical," Ms. Udell said, "a lawyer's fee should be reasonable, based
on the time and effort spent. One-size-fits-all contingent fee agreements are
not ethical."
Lester
Brickman, an expert on contingent fees at Cardozo Law School, said Mr. Dowd's
conduct was both questionable and common.
"The
fundamental problem," Professor Brickman said, "is the zero-sum
accounting scam. Contingency-fee lawyers take the position that all claims are
worth zero and that they are responsible for every dollar they recover. In
fact, claims have value before lawyers add value to them."
Ms.
Corcoran, a 46-year-old former waitress, said she visited Harpoon Louie's that
day in 1999 because she and Michael, her husband of 23 years, had liked the
place.
"I
would go down there to reminisce," she said.
Now the
restaurant kindles other memories, of Mr. Dowd.
"It was
the biggest mistake of my life," she said of meeting him there. "I
feel so stupid. Every time I hear his name I cringe."
*
* * * *