the daily snivel
When the system fails us
Marshall, Morin, Milgaard, Truscott. Names that are synonymous with the miscarriages of justice that occur when too much deference is given to police tunnel vision and misplaced prosecutorial zeal. Today we can add another name to the list of Canadians who have been wrongfully convicted. James Driskell. From the CBC:
Everyone wants to feel that their community is safe, but calls that we get "tough on crime," as though we weren't already, always leave me feeling a bit sick to my stomach. As a lawyer, I cherish my duty to ensure that the justice system is honoured and respected, and to conduct my professional affairs in a way that preserves and enhances the integrity of the system, but we as citizens have another duty, which is to hold the government accountable for the system's failures.
If you put too many resources and too much emphasis onto on side of the equation -- the law and order agenda -- without balancing the other side of it -- namely, ensuring that the right to a fair trial and access to justice is diligently upheld -- injustice is the only possible result.
Now, we could cut crime if we imprisoned absolutely everyone charged with an offence by denying them bail before trial, and then literally locked up convicted offenders and threw away the key after they were found guilty, but what kind of system would that leave us? It would be manifestly unjust and full of human misery.
Wrongful convictions can be avoided by demanding that the players in the system scrupulous adhere to the requirements procedural fairness and the presumption of innocence. Crime can be decreased if we spend more money on prevention as well as detection. But nothing is really solved by the simplistic demand to lock more people up for longer durations, absent stronger steps in other directions.
An inquiry's report into the James Driskell case blames Winnipeg police and prosecutors for his wrongful murder conviction, saying "what happened in this case is just plain wrong."
The inquiry's final report, released Thursday, says the jury in Driskell's trial was "seriously misled" on issues including the reliability of a key Crown witness. The report also said the failure of the Crown to disclose information to the defence was "careless indifference."
The inquiry's commissioner, former Ontario chief justice Patrick LeSage, said in the report that members of the Winnipeg Police Service failed to relay important information to Driskell's lawyers before, during and after his trial.
LeSage also said Winnipeg police Chief Jack Ewatski contributed to the miscarriage of justice by not releasing a report that he prepared as an inspector in 1993 once he became chief in 1998. That report contained information that raised doubts about Driskell's guilt, but it was not made available to Driskell's lawyers for a decade.
Everyone wants to feel that their community is safe, but calls that we get "tough on crime," as though we weren't already, always leave me feeling a bit sick to my stomach. As a lawyer, I cherish my duty to ensure that the justice system is honoured and respected, and to conduct my professional affairs in a way that preserves and enhances the integrity of the system, but we as citizens have another duty, which is to hold the government accountable for the system's failures.
If you put too many resources and too much emphasis onto on side of the equation -- the law and order agenda -- without balancing the other side of it -- namely, ensuring that the right to a fair trial and access to justice is diligently upheld -- injustice is the only possible result.
Now, we could cut crime if we imprisoned absolutely everyone charged with an offence by denying them bail before trial, and then literally locked up convicted offenders and threw away the key after they were found guilty, but what kind of system would that leave us? It would be manifestly unjust and full of human misery.
Wrongful convictions can be avoided by demanding that the players in the system scrupulous adhere to the requirements procedural fairness and the presumption of innocence. Crime can be decreased if we spend more money on prevention as well as detection. But nothing is really solved by the simplistic demand to lock more people up for longer durations, absent stronger steps in other directions.
Rigging the scales of justice
So today in the Globe and Mail we have Mr. Harper's admission that he's interested in picking judges who will help him advance Conservative Party objectives. This after heated criticism of the partisan way in which he has stacked judicial appointment committees with party loyalists and those -- like police officers -- favouring a heavy-handed "law and order" perspective. Mr. Harper stated, “We're bringing forward laws to make sure that we crack down on crime — that we make our streets and communities safer,” he told the House of Commons. We want to make sure our selection of judges is in correspondence with those objectives.”
Despite assertions that Canada has at any point in recent memory been "soft on crime," statistics indicate that we have one of the highest incarceration rates among in the West, even if we trail the U.S. Even if some among us are not shocked to the core by knowing that the courts may be stacked in a partisan fashion (and Mr. Harper admitted such an intention today), there is little reason to believe partisan judges will be able to do more to make our streets "safer."
The government is intending to increase penalties for certain offences with legislation, but this isn't because judges aren't tough enough. Anyone who spends time in the criminal courts knows that judges are not afraid to impose sentences proportionate to the crime. You may disagree with what is "proportionate," but it is based on precedent and a balance of admissible aggravating and mitigating facts that come before the court. The heavily criticized Homolka sentence was a case of the court working with what evidence it had in a difficult case.
But our justice system is premised on more than locking people up and throwing away the key. We have entrenched notions of trial fairness; of disallowing evidence obtained through coercion or unconstitutional state activity; and the presumption of innocence until guilt is proven beyond a reasonable doubt. Even so, the courts as often as not will allow evidence to be admitted that was somewhat tainted, because it would shock the conscience of the community to exclude it.
If a partisan judge decides that it truly is better to rubber stamp a government's politically motivated legislation, despite the power and the obligation democratically created by the Charter to ensure that all laws of Canada comply with the constitution, or to favour the prosecution or police unfairly, then justice will never be done. At any time any of us could be wrongly charged with a criminal offence, sued for a debt we didn't incur, or fired without cause and without compensation, and you wouldn't want to be before a judge who'd decided the outcome or favoured one party over another before you even stepped into court to protect your rights.
Finally, it's no answer to say "Well, the Liberals had patronage appointments, too, so turnabout is fair play." No one has ever been so blatant about ideologically stacking the courts before, and two wrongs don't make a right. Indeed, Mr. Harper came to his current position as leader of a minority government on the promise that he would end such abuses. It ought to be troubling and saddening to anyone who cares about the justice system to see him now deciding to play the same old game, only more ruthlessly.
Wednesday, February 14, 2007 Despite assertions that Canada has at any point in recent memory been "soft on crime," statistics indicate that we have one of the highest incarceration rates among in the West, even if we trail the U.S. Even if some among us are not shocked to the core by knowing that the courts may be stacked in a partisan fashion (and Mr. Harper admitted such an intention today), there is little reason to believe partisan judges will be able to do more to make our streets "safer."
The government is intending to increase penalties for certain offences with legislation, but this isn't because judges aren't tough enough. Anyone who spends time in the criminal courts knows that judges are not afraid to impose sentences proportionate to the crime. You may disagree with what is "proportionate," but it is based on precedent and a balance of admissible aggravating and mitigating facts that come before the court. The heavily criticized Homolka sentence was a case of the court working with what evidence it had in a difficult case.
But our justice system is premised on more than locking people up and throwing away the key. We have entrenched notions of trial fairness; of disallowing evidence obtained through coercion or unconstitutional state activity; and the presumption of innocence until guilt is proven beyond a reasonable doubt. Even so, the courts as often as not will allow evidence to be admitted that was somewhat tainted, because it would shock the conscience of the community to exclude it.
If a partisan judge decides that it truly is better to rubber stamp a government's politically motivated legislation, despite the power and the obligation democratically created by the Charter to ensure that all laws of Canada comply with the constitution, or to favour the prosecution or police unfairly, then justice will never be done. At any time any of us could be wrongly charged with a criminal offence, sued for a debt we didn't incur, or fired without cause and without compensation, and you wouldn't want to be before a judge who'd decided the outcome or favoured one party over another before you even stepped into court to protect your rights.
Finally, it's no answer to say "Well, the Liberals had patronage appointments, too, so turnabout is fair play." No one has ever been so blatant about ideologically stacking the courts before, and two wrongs don't make a right. Indeed, Mr. Harper came to his current position as leader of a minority government on the promise that he would end such abuses. It ought to be troubling and saddening to anyone who cares about the justice system to see him now deciding to play the same old game, only more ruthlessly.
My newest love
On this Valentine's Day, I thought I would proclaim to all the world that I have a shiny new love to warm my heart. We met this week and I've been left to wonder just how it was that I ever managed to get on before.
I love the Coinstar (TM) machine at the Loblaws on Rideau Street.
Love it.
Owing to some crazy expenses this month (it's more expensive being a lawyer than you would think), my roommate and I were rather short on funds and some basic necessities like milk and bread. To solve this problem, I raided the vast reserves of change that we'd been hoarding -- most of it pennies that had been rolled for a rainy day like this one, but a great deal of it also came from a piggy bank I'd been filling with any pennies, dimes or nickels I'd received in change since about this time last year -- and took it with me to the grocery store.
There, in all its resplendent, shiny green beauty, was the Coinstar machine.
For those unfamiliar with the concept, the machine has a large, pivoting tray onto which you place your loose coins. From there, you can pivot the tray upwards and slowly slide the coins into its sorting slot. The coins fall into the sorting mechanism and are tallied up based upon denomination. The total number of each type of coin, as well as the final value, are tallied on the screen as the machine sorts the coins you deposit. Once all the change is sorted, you press a button to confirm that you've finished, and the machine prints out a voucher indicating a total value. You can then take this to any cashier and have it redeemed for cash in much larger and more useful denominations.
The machine takes a cut of approximately 10% from whatever you bring in. This is a small price compared to what you have to put up with if you want to bring change just about any place else.
First of all, if it isn't rolled, no one will take it. Even then, your best bet is to bring it to a bank, but most banks will not accept rolled change unless you have an account with them. Even then, the look of utter horror and contempt on the face of any teller who has to take the change off your hands, as though the last thing any banker should have to do is change money, makes the whole experience so demoralizing and disheartening that -- as far as they're concerned -- you might as well just go spend that ill-gotten cash on mouthwash and drink your way to ethanol poisoning.
The Coinstar machine, in contrast, does not judge you. It doesn't care why you're bringing it all that change. It doesn't roll its eyes or consider you an inconvenience. It just dispenses thermal paper transaction records and, in my opinion, just a sprinkle of love.
I was over $32.00 richer (richer in the sense of having bills that anyone would accept in my hands, rather than ten pounds of assorted pennies, nickels, and dimes that nobody would) at the end of that encounter. How many dates can you say have paid off so well?
I love the Coinstar (TM) machine at the Loblaws on Rideau Street.
Love it.
Owing to some crazy expenses this month (it's more expensive being a lawyer than you would think), my roommate and I were rather short on funds and some basic necessities like milk and bread. To solve this problem, I raided the vast reserves of change that we'd been hoarding -- most of it pennies that had been rolled for a rainy day like this one, but a great deal of it also came from a piggy bank I'd been filling with any pennies, dimes or nickels I'd received in change since about this time last year -- and took it with me to the grocery store.
There, in all its resplendent, shiny green beauty, was the Coinstar machine.
For those unfamiliar with the concept, the machine has a large, pivoting tray onto which you place your loose coins. From there, you can pivot the tray upwards and slowly slide the coins into its sorting slot. The coins fall into the sorting mechanism and are tallied up based upon denomination. The total number of each type of coin, as well as the final value, are tallied on the screen as the machine sorts the coins you deposit. Once all the change is sorted, you press a button to confirm that you've finished, and the machine prints out a voucher indicating a total value. You can then take this to any cashier and have it redeemed for cash in much larger and more useful denominations.
The machine takes a cut of approximately 10% from whatever you bring in. This is a small price compared to what you have to put up with if you want to bring change just about any place else.
First of all, if it isn't rolled, no one will take it. Even then, your best bet is to bring it to a bank, but most banks will not accept rolled change unless you have an account with them. Even then, the look of utter horror and contempt on the face of any teller who has to take the change off your hands, as though the last thing any banker should have to do is change money, makes the whole experience so demoralizing and disheartening that -- as far as they're concerned -- you might as well just go spend that ill-gotten cash on mouthwash and drink your way to ethanol poisoning.
The Coinstar machine, in contrast, does not judge you. It doesn't care why you're bringing it all that change. It doesn't roll its eyes or consider you an inconvenience. It just dispenses thermal paper transaction records and, in my opinion, just a sprinkle of love.
I was over $32.00 richer (richer in the sense of having bills that anyone would accept in my hands, rather than ten pounds of assorted pennies, nickels, and dimes that nobody would) at the end of that encounter. How many dates can you say have paid off so well?
