Unrecommended legal strategies (II)

There’s an old (possibly apocryphal) American case where the Judge said, “The defendant says, ‘as God is my judge, I cannot pay this tax.’ He’s not. I am. You do.”  We could use someone like that presiding over the Via Rail bomb-plot case:

A terror suspect charged in an alleged plot to attack a Via Rail passenger train is having difficulty finding a lawyer who will try convincing a court to judge him against the Qur’an.

Chiheb Esseghaier appeared in a Toronto court via video link on Monday to discuss his attempts to find legal aid representation — a process which has so far been unsuccessful due to the specific and unusual demands he has made.

“I want that the lawyer help me to change the reference of my case from the laws used by humans to the laws of the holy book,” he told the court. “I cannot take a lawyer who is not able to fulfil my need.”

[…]

As the Crown prosecutor told the court the last potential lawyer offered to Esseghaier had been unable to represent him based on his demands, the Montreal man repeatedly asked to be allowed to comment.

“It’s not me I refuse the last lawyer,” an adamant Esseghaier said.

“He write on a piece of paper, he write and he sign that he is not able to convince the court to change the reference of my case from the Criminal Code to the holy Qur’an.

“He said to me I am not able to fulfil your need, so what I can do? I cannot accept him.”

Esseghaier’s comments on Monday echoed previous statements in which he’s said he doesn’t recognize the secular authority of the Criminal Code in judging him.

Rehtaeh Parsons: a thought experiment

Christie Blatchford’s controversial National Post column from last week purports to explain why prosecutors in Nova Scotia decided not to proceed with charges against the four boys who allegedly raped Rehtaeh Parsons.  According to anonymous sources (who, of course, could be desperately trying to cover their asses) there were serious problems with the case, and convictions in court weren’t likely:

…Postmedia sources point to huge problems with the case that made it virtually impossible to take to court, chiefly the shifting accounts from Rehtaeh herself and independent evidence, including retrieved online messages, that supported the suggestion the sex that took place was consensual.

Even the notorious cell phone picture, first sent by one of the alleged assailants and re-circulated thereafter, shows virtually nothing that would stand up in court.

The photo is of a male naked from the waist down, giving a thumbs-up sign, pressing into the bare behind of another person who is leaning out a window.

[…]

The case was handled by a joint Halifax Regional Police/RCMP sex assault team, the lead investigator a woman.

It took almost a year for the police to bring the case to a senior Crown attorney within the province’s Public Prosecution Service (PPS). Also a woman, she is an experienced sex assault prosecutor.

While in a few provinces, Crown attorneys have to approve charges, Nova Scotia isn’t one of them, though police often ask for legal advice.

(These two arms of the province’s justice system have different legal standards to meet. For police, it’s what’s called RPG, or reasonable and probable grounds, to lay a charge. For prosecutors, it’s “a realistic prospect of conviction” in court.)

Essentially, what police ask is, “Do I have a case here?”

The prosecutor “looked at it really thoroughly,” PPS spokesperson Chris Hansen told Postmedia in a telephone interview Thursday. “She concluded there was no realistic prospect of conviction.”

The officer then turned her mind to a possible child-pornography charge, so the prosecutor referred her to a colleague, one of two PPS specialists in cyber crime, particularly as it relates to child pornography.

“He looked at it carefully as well,” Ms. Hansen said, and also concluded the case had no realistic chance of conviction.

Among the general public – and even among some alleged lawyers who should know better – there seems to be a sense that this matter should have been brought to trial, regardless of any misgivings prosecutors may have had about whether Parsons’s alleged attackers would have been convicted.

But think about what a trial would entail.  Rehtaeh Parsons would have been obligated to tell her story in court, in front of the people who allegedly violated her.  (She may have been allowed to testify behind a screen, so she wouldn’t have to look at the accused, but this wasn’t certain – and in any event, she still would have been in the same room.)   Then she would be cross-examined by counsel for the defendants, who would not be timid in their interrogation of the complaint.

And after all that, a verdict of “not guilty” could have been the result.  It’s not enough for the judge or jury to believe the accused likely carried out the offence.  Guilt must be proven beyond a reasonable doubt, even for accusations like these.  (Actually, especially for serious accusations like these.)

Imagine that you have to decide whether to prosecute this matter.  You believe there are serious, perhaps fatal, weaknesses to the case.  You know forcing this young girl to tell her story in court could be extremely traumatic.  And you think she could be put through all of this only to have the accused walk away.

Without the benefit of hindsight, what would you do?

Rehtaeh Parsons: be outraged – but careful

A day after The Chronicle Herald‘s atom bomb of a story about Parsons, I’m still haunted by what happened to that poor girl – especially that her fellow classmates not only circulated photos of her alleged rape, they tormented her personally.

The story has now spread around the world, and there is pressure on the provincial government to commence in inquiry into the case, particularly the RCMP’s seemingly inexplicable decision not to lay charges against the animals who allegedly raped Rehtaeh Parsons and then circulated photos of their own brutality.

I agree wholeheartedly.  The “system” – our schools, our police, our social workers – is supposed to protect young people.  And in this case, it failed miserably.  But here’s the thing: once an inquiry is called, it must be allowed to do its job.

Lawyer and Liberal Party operative Warren Kinsella undeniably speaks for many people in this “open letter” to the controversial online hackers’ collective, “Anonymous”:

Rehtaeh was thereafter harassed and abused and bullied by students at her school.  The torment got bad enough that Rehtaeh had to move to another town.  Months later, she returned, but the bullying and abuse never stopped.  She was sent messages calling her a “slut.”

You may ask what happened to the four males who raped her, and who circulated the photograph of Rehtaeh being raped – which, incidentally, meets the definition in Canadian law of child pornography.

Nothing.  Nothing happened to them.

The RCMP, who allegedly investigated, are led in Nova Scotia by Alphonse MacNeil.  He calls himself a “consensus builder” and has two daughters.  I’m sure you could find his email address if you needed to.

The Nova Scotia government, which agreed with – and energetically defended – the RCMP’s decision to do nothing about the rape or the child pornography, is led by NDP leader Darrell Dexter.  Interestingly, he represents Cole Harbour in the provincial legislature.  His email isn’t readily available, either, but I know you’ll find that, too.

His Attorney-General is Ross Landry.  Yesterday, Landry refused to reopen the case; by the afternoon, he had seemingly changed his tune.  His constituency office email is here.  I don’t know what his email is.

The names of the little bastards who did this, and who are still alive and walk free in Cole Harbour, are unknown to most of us.  But, as in the Steubenville, Ohio case, I am certain anyone who is sufficiently motivated can find out who the little bastards are, and name and shame them.

I’m unclear how to appeal to you, Anonymous.  But if there was ever a case that cried out for your attention – and if there were ever men like MacNeil, Dexter and Landry who deserved to be fired, or worse, for their pathetic responses – I don’t know what it is.  What happened to Rehtaeh and her family is so horrible, so evil, I am ashamed that it happened in my country.

In closing, I should note that Rehtaeh’s heart was sent to Toronto yesterday, to be transplanted into another person.  I don’t know why I feel a need to mention that to you, but I do.

Maybe because, in some way, it feels like Rehtaeh is still watching now, to see who will do something, and who will do nothing.

My own feelings about this kind of online activism are decidedly mixed.  The Steubenville, Ohio case – the first one that came to mind when I read about Rehtaeh’s story yesterday – may never have been resolved at all had it not been for the work of Anonymous.

But I also know that online activism – especially when particularly reprehnsible criminal allegations come into play – can go very, very wrong.  When George Zimmerman shot unarmed teenager Trayvon Martin while patrolling a gated community in Florida, Zimmerman’s address and contact information quickly circulated online.

Just one problem: it wasn’t the same George Zimmerman:

An elderly Florida couple have been forced to move into a hotel after their home address was wrongly tweeted as belonging to the man who shot teen Trayvon Martin.

The tweets were traced back to a man in California and the address was also reportedly retweeted by director Spike Lee to his almost 250,000 followers.

The couple, aged 70 and 72, have been harassed with hate mail, been hassled by media and had scared neighbors questioning them since the tweet, their son Chip Humble told the Orlando Sentinel.

Fearful for their safety, and hoping to escape the spotlight, the couple have temporarily moved to a hotel.

The confusion seems to stem from the fact the woman’s son is named William George Zimmerman and he lived briefly at the address in 1995.

When William Zimmerman pleaded with the man who tweeted the address, the man responded, “Black power all day. No justice, no peace” along with an obscenity.

One of the most devastating books about the legal system I’ve ever read is Dorothy Rabinowitz’s No Crueler Tyrannies, about the infamous Fells Acres abuse cases in Massachusetts.  The Amirault family, who ran a child care centre, were caught up in the “Satanic Ritual Abuse” hysteria – remember that? – of the mid-to-late 1980s, and falsely accused of molesting young children in the most shocking ways imaginable.

The Amiraults were innocent, but thanks to overzealous prosecutors, exploitative media coverage and opportunistic politicians, their lives were destroyed.  If the internet had been around then, do you believe they wouldn’t have been targeted online as well?

I went to high school, I know how freaking horrible teenagers can be, so I’m inclined to believe Rehtaeh Parsons’s grieving mother.  However, we are only hearing her story – we have not heard from the police, her teachers or school officials, or her classmates.

That’s why I want an inquiry.  But emotional cases like this can lead to bad information, bad law, and innocent people getting caught in the net.  I work on criminal cases myself – albeit on the defense side – and I know how what gets reported in the media can bear only the slightest resemblance to what actually happened.

Even before Kinsella posted his open letter to Anonymous, they were already on their way to tracking down, naming and shaming the people who did this to that poor girl.  If they find them – and if they actually did it, assuming they get the right guys in the first place – well, I will shed no tears.

Justice must be done.  But our system protects criminal defendants, and places the burden of proof squarely on the prosecution, for very good reasons.

Postscript: according to CTV, Parsons’s family says donations in her memory “can be made to the East Coast German Shepherd Rescue, Metro SPCA, and the Laing House – a Halifax-based peer support organization for youth with mental illness.”

The St. John’s drug scene

CBC’s David Cochrane on the darker side to oil-fueled prosperity in my hometown:

St. John’s is the hottest cocaine market in Atlantic Canada. At least that’s what the drug dealers whom the Royal Newfoundland Constabulary arrests tell the police officers.

The volumes of cocaine coming into the city are enormous,in spite of the many arrests and the relative geographic isolation. The spike in disposable incomes from the local oil boom and commuter workers from western Canada is fueling the demand. It is the dark side of prosperity.

Friday’s announcement of a $1-million police task force to tackle drugs and organized crime shows how true that is.

But embedded into that drug trade is a streak of hidden and unreported violence. There’s a rash of drug dealers ripping off other drug dealers. There are home invasions in areas much nicer than Tessier Place where stick-up crews are trying to rip off a dealer’s dope stash or his bank roll.

Police and prosecutors hear of severe beatings using bats,crowbars,brass knuckles and bear spray. The victims of these beatings often refuse to give the police a statement even if they end up in hospital with life-threatening injuries. After all,how do you tell a cop that the guy who hurt you did it in order to steal your cocaine stash?

Doug Christie’s selective free-speech activism

Christie, a B.C. lawyer known as “Counsel for the damned” because of his advocacy on behalf of neo-Nazis and white supremacists, passed away from liver cancer last week at age 66.

I strongly believe that even people whose views I find repellent should have the right to express these views, so I always had a kind of grudging respect for Christie.  But I also felt that the guy went beyond merely representing extreme right-wingers in court, and actually believed in their cause.  Tom Hawthorn, in a vicious poison-pen “obituary” in The Tyee, goes further, and notes that Christie tried to stifle free speech as often as he defended it:

On his website, Christie grandiloquently declared himself to be “Canada’s greatest free speech defender.” What nonsense. When did Christie ever defend speech with which he did not agree? He gained a national platform defending clients against hate-crimes laws and human-rights tribunals, but less well remembered was his own frequent use of the courts to stifle the speech of opponents.

In the late 1990s, Christie represented clients who sued newspaper cartoonist Josh Beutel, the New Brunswick Teachers’ Association, the author Warren Kinsella, a college professor in B.C., and a television station in Kelowna. (The latter was a case in which I was to become an unwilling figure. More about that later.) “I do believe this is a concerted effort on the part of members of the extreme right to stifle those who are dealing with hate-mongers,” Bernie Farber of the Canadian Jewish Congress said at the time.

In 1984, Christie sued Edmonton Sun columnist John Geiger for describing Christie’s Western separatist movement as “just an Alberta version of the Ku Klux Klan.” The lawyer was awarded $30,000 in damages, a decision upheld by the Supreme Court of Canada.

The following year, Vancouver radio hotline host Gary Bannerman delivered an editorial in which he said, “Doug Christie has aligned himself so many times with these perverted monsters that he has to be viewed as one himself, in my view.” Christie sued. A jury ruled the comment to be defamatory, but fair comment.

No publication was too small, no comment too innocuous. In 1997, Christie threatened the Martlet student newspaper at the University of Victoria with a lawsuit for publishing an editorial describing members of his Canadian Free Speech League as “extremist thugs.” The students consulted a lawyer and refused Christie’s demand of a retraction. Who defended free speech in that round?

Recently, Christie told CBC’s As It Happens: “Free speech is the one thing you have to give to your worst enemy if you want to keep it for yourself.” The quotation was included in the CBC’s online obituary and, on Twitter, good people cited and retweeted the comment without knowing the hypocrisy behind it. It’s a fine sentiment, of course, but one Christie did not practice.

[…]

In 1998, I got a front-row seat to Christie’s courtroom theatrics. Eileen and Claus Pressler of Salmon Arm sued college professor David Lethbridge and Westcom TV Group for a report that aired on CHBC. The lawyer for Westcom subpoenaed me to testify about a story I’d written a few years earlier for The Province in which the Presslers were identified as local sponsors of a tour by David Irving, the notorious British author who discounts the Holocaust.

My time on the stand was a farce. I was ordered to surrender a notebook, which was then entered into evidence. It was placed in a plastic bag like a dagger from a murder scene. At one point, Christie caused a fuss because the stated number of pages on the front of the notebook did not match the number of pages he counted in the notebook. He made allegations of perfidy until a lawyer for the other defendant pointed out the notebook had lines on both sides of the page.

We were nearing the conclusion of my testimony when Christie barked, “Are you a Jew?”

The words hung in the courtroom.

I was stunned. I blinked several times in disbelief. Had I heard what I thought I’d heard? “Are you a Jew?” What the hell kind of question is that? I wondered what had sparked the question. Of course. I had made a “solemn affirmation” instead of swearing an oath on the Bible. I turned from Christie to look at the judge, who nodded his head as though I were to answer. “No,” I told the court.

In the end, Christie was for the extreme right what Lynne Stewart was for the extreme left: both crossed the line between defending the most hated members of society to the greatest extent possible, and actively supporting their clients’ radical causes.  The former is the cornerstone of our criminal justice system; the latter makes a mockery of it.

Another reason not to drink and drive

It’s dangerous, you could get jail time, and it could cost you your vehicle, too:

The Supreme Court of Canada has overturned a lower court ruling and allowed the Crown to seize a vehicle belonging to a repeat drunk driver.

In a 7-0 decision today, the justices ruled that the judge in the Quebec case was wrong to deny the forfeiture order.

The case involved Alphide Manning, who was arrested near Baie-Comeau in April 2010. He subsequently pleaded guilty to two counts of impaired driving and was sentenced to 12 months on one charge and five months on the other.

The Crown also moved to seize the truck Manning was driving when he was arrested.

Manning argued that the loss of the $1,000 vehicle, his sole asset, would be overly harsh.

[…]

The justices said Manning’s record had to be considered.

“The trial judge erroneously emphasized Mr. Manning’s personal circumstances and failed to give appropriate weight … to Mr. Manning’s criminal record, including five convictions on alcohol-related driving offences and three for breaches of probation orders or undertakings.”

The ruling comes as the Quebec government is looking to crack down on drunk driving by making vehicle seizures routine.