Read together and harmoniously with the overarching purpose of s. 172.1 of the Criminal Code, the combined effect of subss. (3) and (4) should be understood and applied this way:

Where it has been represented to the accused that the person with whom he or she is communicating by computer is underage, the accused is presumed to have believed that the interlocutor was in fact underage.

This presumption is rebuttable: It will be displaced by evidence to the contrary, which must include evidence that the accused took steps to ascertain the real age of the interlocutor. Objectively considered, the steps taken must be reasonable in the circumstances.

The prosecution will fail where the accused took reasonable steps to ascertain the age of his or her interlocutor and believed that the interlocutor was not underage.

In this regard, the evidential burden is on the accused but the persuasive burden is on the Crown. Such evidence will at once constitute “evidence to the contrary” under s. 172.1(3) and satisfy the “reasonable steps” requirement of s. 172.1(4). Where the evidential burden of the accused has been discharged, he or she must be acquitted if the trier of fact is left with a reasonable doubt whether the accused in fact believed that his or her interlocutor was not underage.

See: R. v. Levigne, 2010 SCC 25

On August 14, 2010, the Brampton Flower City Centennial Rotary Club held its annual golf tournament at Royal Ontario Golf Club. The event was sold out and a tremendous success. Proceeds from this event have been targeted to the Breast Cancer Run and United Achievers.

(from left to right: Robert Jagielski, Rajiv Joshi, Aswani Datt, Miss Canada Tourism 2010 Marie, Claude Armstrong, Has Fernando and Bhagmatie Persaud).

Raksha Bandhan (रक्षाबंधन the bond of protection in Hindi, Marathi,Bengali Language,Punjabi, Oriya, Assamese, Gujarati,Telugu and many other Indian languages) is a Hindu festival, predominantly in Northern India, which celebrates the relationship between brothers and sisters. It is celebrated on the full moon of the month of Shraavana (Shravan Poornima).

The festival is marked by the tying of a rakhi, or holy thread, by the sister on the wrist of her brother. The brother in return offers a gift to his sister and vows to look after her as she presents sweets to her brother. The brother and sister traditionally feed one another sweets.

It is not necessary that the rakhi be given only to a blood brother; any male can be “adopted” as a brother by tying a rakhi on the person, irrespective of whether he is a cousin or a good friend. Indian history is replete with women asking for protection, through rakhi, from men who were not their brothers, nor Hindus themselves.

The rakhi may also be tied on other special occasions to show solidarity and kinship (not necessarily only among brothers and sisters), as was done during the Indian independence movement.

Rhéal Séguin
Quebec City — Globe and Mail Update

Former Justice Minister Marc Bellemare took direct aim Tuesday at Quebec Premier Jean Charest with damaging, detailed testimony about the role of senior Quebec Liberal party organizers in the appointment of judges.

Mr. Bellemare told the commission of inquiry into the nomination of judges in Quebec, which is headed by former Supreme Court justice Marc Bastarache, that on several occasions party organizers Franco Fava, a construction entrepreneur, and Charles Rondeau, an accountant, insisted that Liberals be appointed to the bench.

Mr. Bellemare testified that he had his first one-on-one meeting with Mr. Charest on Sept. 2, 2003, about four months after the Liberals took power,

“Who appoints the judges in Quebec? Is it Franco Fava or me?” Mr. Bellemare said he asked Mr. Charest during the meeting.

“I found that this (the handling of judges nominations) was unacceptable. I didn’t like it at all,” Mr. Bellemare told the commission Tuesday.

Mr. Bellemare said he explained to the premier that Mr. Fava and Mr. Rondeau exercised “colossal” influence in demanding that Marc Bisson be appointed a judge of the Quebec Court and that Michel Simard be appointed assistant chief justice of the Quebec Court.

Mr. Fava “was unequivocal with a certain arrogance” in insisting that the minister nominate loyal Liberals to the bench, Mr. Bellemare told the inquiry.

“ Mr. Charest told me: ‘Franco is a personal friend, a fund collector who is influential in the party. We need people like him… If he says nominate Simard and Bisson, then do it’. ”
— Former Quebec justice minister Marc Bellemare
Mr. Charest has denied previous allegations by Mr. Bellemare about political influence in judicial appointments under the Liberal government.

When they were first outlined by Mr. Bellemare last April, Mr. Charest immediately launched a $700,000 defamation suit against Mr. Bellemare and appointed the Bastarache commission the following day to examine the allegations.

Mr. Bellemare’s claims were made at the height of damaging accusations by the opposition Parti Québécois that government construction contracts were being awarded to companies with ties or fundraising links to the Liberals.

There was nothing illegal about the judicial nominations, Mr. Bellemare told the commission, but he added: “I didn’t find that this was right.”

The former minister, who held the justice portfolio for a year before leaving politics, said he joined the Liberal party because he wanted to change the province’s no-fault car insurance program, as well as to reform the administration of the province’s justice system. When the Liberal government failed to adopt the reforms, Mr. Bellemare quit politics in April 2004.

“If on September 2 (2003) I had known that the reforms wouldn’t go through, I would have quit on September 2nd . . .

There were ethical problems linked to these (judicial) nominations…but I remained loyal to my Premier,” Mr. Bellemare testified.

There were also potential political embarrassments linked to the nomination of Mr. Bisson as Quebec Court judge, Mr. Bellemare told the inquiry.

The former minister said he was warned by Mr. Fava and junior Transport Minister Norm MacMillan that Mr. Bisson’s father, Guy, was linked to the sponsorship scandal involving the federal Liberal party.

Guy Bisson was a senior Quebec Liberal party fundraiser in the Gatineau region. He was described by a witness at the Gomery inquiry in 2005 as one of the federal Liberal party workers who received improper donations.

“They told me that … ‘You have to be careful with that … Guy Bisson has ties to the sponsorship story’,” Mr. Bellemare told the inquiry Tuesday.

http://www.theglobeandmail.com/news/national/quebec/former-justice-minister-details-allegations-against-charest/article1683587/

वन्दे मातरम्
सुजलां सुफलां मलयजशीतलाम्
शस्यशामलां मातरम् ।
शुभ्रज्योत्स्नापुलकितयामिनीं
फुल्लकुसुमितद्रुमदलशोभिनीं
सुहासिनीं सुमधुर भाषिणीं
सुखदां वरदां मातरम् ।। १ ।। वन्दे मातरम् ।
कोटि-कोटि-कण्ठ-कल-कल-निनाद-कराले
कोटि-कोटि-भुजैर्धृत-खरकरवाले,
अबला केन मा एत बले ।
बहुबलधारिणीं नमामि तारिणीं
रिपुदलवारिणीं मातरम् ।। २ ।। वन्दे मातरम् ।
तुमि विद्या, तुमि धर्म
तुमि हृदि, तुमि मर्म
त्वं हि प्राणा: शरीरे
बाहुते तुमि मा शक्ति,
हृदये तुमि मा भक्ति,
तोमारई प्रतिमा गडि
मन्दिरे-मन्दिरे मातरम् ।। ३ ।। वन्दे मातरम् ।
त्वं हि दुर्गा दशप्रहरणधारिणी
कमला कमलदलविहारिणी
वाणी विद्यादायिनी, नमामि त्वाम्
नमामि कमलां अमलां अतुलां
सुजलां सुफलां मातरम् ।। ४ ।। वन्दे मातरम् ।
श्यामलां सरलां सुस्मितां भूषितां
धरणीं भरणीं मातरम् ।। ५ ।। वन्दे मातरम् ।।

NEAL PEIRCE / AUG 12 2010

For Release Sunday, August 15, 2010

The rest of the world is starting to notice the United States’ incarceration follies.

Case in point: “Why America locks up so many people,” the cover story of the British-based Economist magazine, showing the face of a forlorn Statue of Liberty behind bars.

The grim statistics noted: some 2.3 million people, more than the population of 15 of our states, are now incarcerated — one in 100 Americans. That’s quadruple our 1970 imprisonment rate. For hard-to-defend reasons, and at staggering fiscal cost, we incarcerate people at a rate five times Great Britain’s, nine times Germany’s, 12 times Japan’s.

Congress is on the brink of our first national reassessment in many decades. Sen. James Webb of Virginia is proposing a National Criminal Justice Commission instructed to take an 18-month, stem-to-stern look at the system, its shortcomings and alternatives. The bill recently passed the House without opposition; now the question is whether the Senate (where the measure has a 38 cosponsors) can avoid a procedural objection by Sen. Tom Coburn (R-Okla.) and bring it to a vote.

The Economist notes that along with truly dangerous serial rapists and murderers, as well as Bernie Madoff-like white collar criminals we want to punish severely, the United States incarcerates astounding numbers of low-level blue and white collar offenders.

Among them are street-level drug dealers (generally quickly replaced), people accused of such violations as embezzling, driving without an operator’s license or transgressing environmental laws. In addition to voluminous state laws, there are some 4,000 federally-defined offenses backed up by thousands more regulations — many virtually impossible for any layman to comprehend.

The Economist tells the story of George Norris, a 65-year old Texan who imported orchids. He was suddenly accosted in his home by armed police in flak jackets, frisked, held incommunicado for four hours as officers ransacked his home, and eventually charged with smuggling flowers into America, a violation of the Convention on International Trade in Endangered Species.

Norris, who believed himself innocent though he admitted some of his Latin American flower suppliers might have been sloppy in their paperwork, had never made more than $20,000 a year in his importing business. But he was thrown into prison with suspected murderers and drug dealers, accused of being the “kingpin” of an international smuggling ring, ultimately sentenced to 17 months — and then, despite his condition with Parkinson’s disease, put in solitary confinement for 71 days for bringing prescription sleeping pills with him to prison.

The tough question raised by the Norris case and others likes it: are some prosecutors going overboard, using their extraordinary powers beyond clear justice requirements? Under threat from prosecutors, it’s claimed, even defendants who are convinced they’re innocent may enter guilty pleas to shorten their potential sentences. Example: a prosecutor might threaten a middle-aged man that he’ll receive such a long sentence he’ll likely will die in a cell unless he gives evidence against his boss.

And then there’s the incarceration youth-aging syndrome. Americans seem anxious to get their youthful violent offenders behind bars, and it’s happening (with especially huge numbers among minorities). But in reality, there are few muggers over 30.

Why long sentences when classic penology says swift and certain punishment is what works? We already have over 200,000 prisoners over 50, often in failing health (with vast medical costs). Yet if released, they’re unlikely to offend again. When imprisonment costs vary from Mississippi’s $18,000 a year to roughly $50,000 in California, when schools and critical social services are being cut to the bone, do long sentences into middle- and late-age serve the public interest?

Webb acknowledges that when he started discussions on today’s criminal system, “we heard a lot of unease, particularly from law enforcement’s side.” But he then met with over 100 organizations, explaining the need and balance of his commission proposal — to include every relevant issue from arrest, prosecution, incarceration and prison administration to prisoner reentry. Now, he claims, the idea of his proposed commission has been “scrubbed through the entire philosophical spectrum with great support,” ranging from the NAACP and American Civil Liberties Union to leading national police officers’ groups.

There’s emerging evidence, developed by such organizations as the Pew Center for the States and the Vera Institute of Justice, that we’ve reached a point of diminishing if any public safety returns from cascading levels of imprisonment. Some states — even toughly conservative South Carolina and Mississippi — have begun to reform their practices, reduce incarceration, without impairing public safety. A typical measure: make non-violent drug offenders eligible for parole or probation instead of incarceration.

Reform’s potential net effect? Saving billions of public dollars, for sure. But also fewer deeply disrupted families, fewer deeply embittered ex-cons, and fewer communities impacted by high percentages of their youth imprisoned. And fewer, as the Economist puts it, decades-long sentences “watching hairs go white, and lifetimes ebb away.”

http://citiwire.net/post/2202/

Economist

THREE pickup trucks pulled up outside George Norris’s home in Spring, Texas. Six armed police in flak jackets jumped out. Thinking they must have come to the wrong place, Mr Norris opened his front door, and was startled to be shoved against a wall and frisked for weapons. He was forced into a chair for four hours while officers ransacked his house. They pulled out drawers, rifled through papers, dumped things on the floor and eventually loaded 37 boxes of Mr Norris’s possessions onto their pickups. They refused to tell him what he had done wrong. “It wasn’t fun, I can tell you that,” he recalls.

Mr Norris was 65 years old at the time, and a collector of orchids. He eventually discovered that he was suspected of smuggling the flowers into America, an offence under the Convention on International Trade in Endangered Species. This came as a shock. He did indeed import flowers and sell them to other orchid-lovers. And it was true that his suppliers in Latin America were sometimes sloppy about their paperwork. In a shipment of many similar-looking plants, it was rare for each permit to match each orchid precisely.

In March 2004, five months after the raid, Mr Norris was indicted, handcuffed and thrown into a cell with a suspected murderer and two suspected drug-dealers. When told why he was there, “they thought it hilarious.” One asked: “What do you do with these things? Smoke ’em?”

Prosecutors described Mr Norris as the “kingpin” of an international smuggling ring. He was dumbfounded: his annual profits were never more than about $20,000. When prosecutors suggested that he should inform on other smugglers in return for a lighter sentence, he refused, insisting he knew nothing beyond hearsay.

He pleaded innocent. But an undercover federal agent had ordered some orchids from him, a few of which arrived without the correct papers. For this, he was charged with making a false statement to a government official, a federal crime punishable by up to five years in prison. Since he had communicated with his suppliers, he was charged with conspiracy, which also carries a potential five-year term.

As his legal bills exploded, Mr Norris reluctantly changed his plea to guilty, though he still protests his innocence. He was sentenced to 17 months in prison. After some time, he was released while his appeal was heard, but then put back inside. His health suffered: he has Parkinson’s disease, which was not helped by the strain of imprisonment. For bringing some prescription sleeping pills into prison, he was put in solitary confinement for 71 days. The prison was so crowded, however, that even in solitary he had two room-mates.

A long love affair with lock and key

Justice is harsher in America than in any other rich country. Between 2.3m and 2.4m Americans are behind bars, roughly one in every 100 adults. If those on parole or probation are included, one adult in 31 is under “correctional” supervision. As a proportion of its total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan. Overcrowding is the norm. Federal prisons house 60% more inmates than they were designed for. State lock-ups are only slightly less stuffed.

The system has three big flaws, say criminologists. First, it puts too many people away for too long. Second, it criminalises acts that need not be criminalised. Third, it is unpredictable. Many laws, especially federal ones, are so vaguely written that people cannot easily tell whether they have broken them.

In 1970 the proportion of Americans behind bars was below one in 400, compared with today’s one in 100. Since then, the voters, alarmed at a surge in violent crime, have demanded fiercer sentences. Politicians have obliged. New laws have removed from judges much of their discretion to set a sentence that takes full account of the circumstances of the offence. Since no politician wants to be tarred as soft on crime, such laws, mandating minimum sentences, are seldom softened. On the contrary, they tend to get harder.

Some criminals belong behind bars. When a habitual rapist is locked up, the streets are safer. But the same is not necessarily true of petty drug-dealers, whose incarceration creates a vacancy for someone else to fill, argues Alfred Blumstein of Carnegie Mellon University. The number of drug offenders in federal and state lock-ups has increased 13-fold since 1980. Some are scary thugs; many are not.

Michelle Collette of Hanover, Massachusetts, sold Percocet, a prescription painkiller. “I was planning to do it just once,” she says, “but the money was so easy. And I thought: it’s not heroin.” Then she became addicted to her own wares. She was unhappy with her boyfriend, she explains, but did not want to split up with him, because she did not want their child to grow up fatherless, as she had. So she popped pills to numb the misery. Before long, she was taking 20-30 a day.

When Ms Collette and her boyfriend, who also sold drugs, were arrested in a dawn raid, the police found 607 pills and $901 in cash. The boyfriend fought the charges and got 15 years in prison. In a plea bargain Ms Collette was sentenced to seven years, of which she served six.

“I don’t think this is fair,” said the judge. “I don’t think this is what our laws are meant to do. It’s going to cost upwards of $50,000 a year to have you in state prison. Had I the authority, I would send you to jail for no more than one year…and a [treatment] programme after that.” But mandatory sentencing laws gave him no choice.

Massachusetts is a liberal state, but its drug laws are anything but. It treats opium-derived painkillers such as Percocet like hard drugs, if illicitly sold. Possession of a tiny amount (14-28 grams, or ½-1 ounce) yields a minimum sentence of three years. For 200 grams, it is 15 years, more than the minimum for armed rape. And the weight of the other substances with which a dealer mixes his drugs is included in the total, so 10 grams of opiates mixed with 190 grams of flour gets you 15 years.

Ms Collette underwent drug treatment before being locked up, and is now clean. But in prison she found she was pregnant. After going through labour shackled to a hospital bed, she was allowed only 48 hours to bond with her newborn son. She was released in March, found a job in a shop, and is hoping that her son will get used to having her around.

Rigid sentencing laws shift power from judges to prosecutors, complains Barbara Dougan of Families Against Mandatory Minimums, a pressure-group. Even the smallest dealer often has enough to trigger a colossal sentence. Prosecutors may charge him with selling a smaller amount if he agrees to “reel some other poor slob in”, as Ms Dougan puts it. He is told to persuade another dealer to sell him just enough drugs to trigger a 15-year sentence, and perhaps to do the deal near a school, which adds another two years.

Severe drug laws have unintended consequences. Less than half of American cancer patients receive adequate painkillers, according to the American Pain Foundation, another pressure-group. One reason is that doctors are terrified of being accused of drug-trafficking if they over-prescribe. In 2004 William Hurwitz, a doctor specialising in the control of pain, was sentenced to 25 years in prison for prescribing pills that a few patients then resold on the black market. Virginia’s board of medicine ruled that he had acted in good faith, but he still served nearly four years.

Half the states have laws that lock up habitual offenders for life. In some states this applies only to violent criminals, but in others it applies even to petty ones. Some 3,700 people who committed neither violent nor serious crimes are serving life sentences under California’s “three strikes and you’re out” law. In Alabama a petty thief called Jerald Sanders was given a life term for pinching a bicycle. Alabama’s judges are elected, as are those in 32 other states. This makes them mindful of public opinion: some appear in campaign advertisements waving guns and bragging about how tough they are.
Watching hairs go white, and lifetimes ebb away

Many Americans assume that white-collar criminals get off lightly, but many do not. Granted, they may be hard to catch and can often afford good lawyers. But federal prosecutors can file many charges for what is essentially one offence. For example, they can count each e-mail sent by a white-collar criminal in the course of his criminal activity as a separate case of wire fraud, each of which carries a maximum sentence of 20 years. The decades soon add up. Sentences depend partly on the size of the loss and the number of people affected, so if you work for a big, publicly traded company, you break a rule and the share-price drops, watch out.

Eternal punishment

Jim Felman, a defence lawyer in Tampa, Florida, says America is conducting “an experiment in imprisoning first-time non-violent offenders for periods of time previously reserved only for those who had killed someone”. One of Mr Felman’s clients, a fraudster called Sholam Weiss, was sentenced to 845 years. “I got it reduced to 835,” sighs Mr Felman. Faced with such penalties, he says, the incentive to co-operate, which means to say things that are helpful to the prosecution, is overwhelming. And this, he believes, “warps the truth-seeking function” of justice.

Innocent defendants may plead guilty in return for a shorter sentence to avoid the risk of a much longer one. A prosecutor can credibly threaten a middle-aged man that he will die in a cell unless he gives evidence against his boss. This is unfair, complains Harvey Silverglate, the author of “Three Felonies a Day: How the Feds Target the Innocent”. If a defence lawyer offers a witness money to testify that his client is innocent, that is bribery. But a prosecutor can legally offer something of far greater value—his freedom—to a witness who says the opposite. The potential for wrongful convictions is obvious.

Badly drafted laws create traps for the unwary. In 2006 Georgia Thompson, a civil servant in Wisconsin, was sentenced to 18 months in prison for depriving the public of “the intangible right of honest services”. Her crime was to award a contract (for travel services) to the best bidder. A firm called Adelman Travel scored the most points (on an official scale) for price and quality, so Ms Thompson picked it. She ignored a rule that required her to penalise Adelman for a slapdash presentation when bidding. For this act of common sense, she served four months. (An appeals court freed her.)

The “honest services” statute, if taken seriously, “would seemingly cover a salaried employee’s phoning in sick to go to a ball game,” fumes Antonin Scalia, a Supreme Court justice. The Supreme Court ruled recently that the statute was so vague as to be unconstitutional. It did not strike it down completely, but said it should be applied only in cases involving bribery or kickbacks. The challenge was brought by Enron’s former boss, Jeff Skilling, who will not go free despite his victory, and Conrad Black, a media magnate released this week on bail pending an appeal, who may.

There are over 4,000 federal crimes, and many times that number of regulations that carry criminal penalties. When analysts at the Congressional Research Service tried to count the number of separate offences on the books, they were forced to give up, exhausted. Rules concerning corporate governance or the environment are often impossible to understand, yet breaking them can land you in prison. In many criminal cases, the common-law requirement that a defendant must have a mens rea (ie, he must or should know that he is doing wrong) has been weakened or erased.

“The founders viewed the criminal sanction as a last resort, reserved for serious offences, clearly defined, so ordinary citizens would know whether they were violating the law. Yet over the last 40 years, an unholy alliance of big-business-hating liberals and tough-on-crime conservatives has made criminalisation the first line of attack—a way to demonstrate seriousness about the social problem of the month, whether it’s corporate scandals or e-mail spam,” writes Gene Healy, a libertarian scholar. “You can serve federal time for interstate transport of water hyacinths, trafficking in unlicensed dentures, or misappropriating the likeness of Woodsy Owl.”

“You’re (probably) a federal criminal,” declares Alex Kozinski, an appeals-court judge, in a provocative essay of that title. Making a false statement to a federal official is an offence. So is lying to someone who then repeats your lie to a federal official. Failing to prevent your employees from breaking regulations you have never heard of can be a crime. A boss got six months in prison because one of his workers accidentally broke a pipe, causing oil to spill into a river. “It didn’t matter that he had no reason to learn about the [Clean Water Act’s] labyrinth of regulations, since he was merely a railroad-construction supervisor,” laments Judge Kozinski.
Society wants retribution

Such cases account for only a tiny share of the Americans behind bars, but they still matter. When so many people are technically breaking the law, it is up to prosecutors to decide whom to pursue. No doubt most prosecutors choose wisely. But members of unpopular groups may not find that reassuring. Ms Thompson, for example, was prosecuted just before an election, at a time when allegations of public corruption in Wisconsin were in the news. Some prosecutors, such as Eliot Spitzer, the disgraced ex-governor of New York, have built political careers by nailing people whom voters don’t like, such as financiers.

Prison deters? Not much, not the worst

Some people argue that the system works: that crime has fallen in the past two decades because the bad guys are either in prison or scared of being sent there. Caged thugs cannot break into your home. Bernie Madoff’s 150-year sentence for running a Ponzi scam should deter imitators. And indeed the crime rate continues to drop, despite the recession, as Michael Rushford of the Criminal Justice Legal Foundation, an advocacy group, points out. This, he says, is because habitual criminals face serious consequences. Some research supports him: after raking through decades of historical data, John Donohue of Yale Law School estimates that a 10% increase in imprisonment brings a 2% reduction in crime.

Others disagree. Using more recent data, Bert Useem of Purdue University and Anne Piehl of Rutgers University estimate that a 10% increase in the number of people behind bars would reduce crime by only 0.5%. In the states that currently lock up the most people, imprisoning more would actually increase crime, they believe. Some inmates emerge from prison as more accomplished criminals. And raising the incarceration rate means locking up people who are, on average, less dangerous than the ones already behind bars. A recent study found that, over the past 13 years, the proportion of new prisoners in Florida who had committed violent crimes fell by 28%, whereas those inside for “other” crimes shot up by 189%. These “other” crimes were non-violent ones involving neither drugs nor theft, such as driving with a suspended licence.

And now the reckoning, in dollars

Crime is a young man’s game. Muggers over 30 are rare. Ex-cons who go straight for a few years generally stay that way: a study of 88,000 criminals by Mr Blumstein found that if someone was arrested for aggravated assault at the age of 18 but then managed to stay out of trouble until the age of 22, the risk of his offending was no greater than that for the general population. Yet America’s prisons are crammed with old folk. Nearly 200,000 prisoners are over 50. Most would pose little threat if released. And since people age faster in prison than outside, their medical costs are vast. Human Rights Watch, a lobby-group, talks of “nursing homes with razor wire”.

Jail is expensive. Spending per prisoner ranges from $18,000 a year in Mississippi to about $50,000 in California, where the cost per pupil is but a seventh of that. “[W]e are well past the point of diminishing returns,” says a report by the Pew Center on the States. In Washington state, for example, each dollar invested in new prison places in 1980 averted more than nine dollars of criminal harm (using a somewhat arbitrary scale to assign a value to not being beaten up). By 2001, as the emphasis shifted from violent criminals to drug-dealers and thieves, the cost-benefit ratio reversed. Each new dollar spent on prisons averted only 37 cents’ worth of harm.

Since the recession threw their budgets into turmoil, many states have decided to imprison fewer people, largely to save money. Mississippi has reduced the proportion of their sentences that non-violent offenders are required to serve from 85% to 25%. Texas is making greater use of non-custodial penalties. New York has repealed most mandatory minimum terms for drug offences. In all, the number of prisoners in state lock-ups fell by 0.3% in 2009, the first fall since 1972. But the total number of Americans behind bars still rose slightly, because the number of federal prisoners climbed by 3.4%.

A less punitive system could work better, argues Mark Kleiman of the University of California, Los Angeles. Swift and certain penalties deter more than harsh ones. Money spent on prisons cannot be spent on more cost-effective methods of crime-prevention, such as better policing, drug treatment or probation. The pain that punishment inflicts on criminals themselves, on their families and on their communities should also be taken into account.

“Just by making effective use of things we already know how to do, we could reasonably expect to have half as much crime and half as many people behind bars ten years from now,” says Mr Kleiman. “There are a thousand excuses for failing to make that effort, but not one good reason.”

http://www.economist.com/node/16636027

Diana Zlomislic Staff Reporter, Toronto Star

Canada’s $10 billion campaign to put more people in prison for longer periods of time will not make this country safer and may backfire by creating a larger criminal underclass, corrections critics warn.

“I don’t think they’re looking at the evidence,” Anthony Doob, a leading Canadian criminologist, told the Star.

Despite historically low crime rates, Canada is expected to spend $9.5 billion to build new prisons and retrofit old ones — a figure that has Conservative politicians scrambling to justify the cost. Last week, Treasury Board Minister Stockwell Day suggested Canada needs more prisons because of an “increase in the amount of unreported crime.” The federal government later cited a six-year-old Statistics Canada survey it said supported his comments.

“The real problem is crime policy is usually reduced to a slogan,” Doob said. “You’re simply increasing the cost to Canadians with no benefit. In the long run, you’re ending up with other kinds of secondary costs. These people are going to get out of prison, they’re going to be less likely to find jobs and they’re going to be burdens on society in a variety of ways, including crime.”

Even if the rate of crime were trending upward, building more prisons would not suppress the crime rate, said Craig Jones, executive director of the John Howard Society of Canada.

“To suppress the rate of crime, you have to frontload your welfare system so all your children have adequate nutrition, they live in non-violent, non-traumatizing environments — because that’s where your violence originates,” Jones said.

What’s staggering for many critics is that Canada seems to be moving toward an American-style prison model that’s being scaled back in favour of cheaper, more effective community-based programs.

Responding to the fiscal crisis and mounting evidence that high incarceration rates don’t result in safer communities, Michigan, New York, Ohio, Florida and California are now backing out of their penal state.

“As much as you can get political capital for looking tough on crime by putting people behind bars, you can’t sustain it in terms of budget,” says Justin Piche, a doctoral student at the University of Ottawa researching prison expansion in Canada.

The average annual cost of maintaining a single female federal offender is $343,810. Maintaining a male inmate in a maximum security prison costs $223,687. These figures, which represent the 2008-2009 fiscal year, were released in a report from the Parliamentary Budget Office in response to legislation passed earlier this year that will dramatically change the corrections system in Canada.

Bill C-25, the centerpiece of the Conservative government’s tough-on-crime agenda, could double annual prison costs from $4.4 billion to $9.5 billion in five years, according to Parliamentary Budget Officer Kevin Page. The bill ends the practice of judges awarding two-for-one credit to offenders for time served in pre-sentence custody.

Page released a report in June that examined the economic impact of implementing the Truth in Sentencing Act.

Under the new legislation, Ottawa would have to build new and bigger prisons to house an expected increase in inmates, the report says. That would cost an additional $618 million a year in operational and maintenance costs, and another $1.8 billion for construction over five years.

The report says changing the law would lengthen the average time in custody from a year and a half to just under two years. Longer stays would mean an average of 17,058 inmates at any given time compared to an average of 13,304 inmates in fiscal 2007/08.

The report estimates that would require an additional 4,189 cells, at a cost of $363 million a year over the next five years to expand existing prisons and build new ones.

Public Safety Minister Vic Toews disputed the figures, standing by his earlier claim that officials at Correctional Services Canada told him the initiative would cost $2 billion over five years. (He originally said the price tag would be $90 million.)

His office did not respond to the Star’s interview request.

The correctional service has begun rolling out plans to accommodate more prisoners by retrofitting dozens of institutions across Canada. The service has a three-year plan to add spaces for more than 2,700 offenders nation-wide. This figure does not apply to the construction of new prisons, plans for which have not yet been released.

“Construction is taking place at institutions and locations where we expect the greatest increase of offender populations and where there’s the greatest need,” said Melissa Hart, a Correctional Service of Canada spokesperson.

The overhaul begins in the Maritimes with Springhill Institution, a medium-security facility in Nova Scotia. It opened in 1967 and accommodates 355 inmates but has been operating over-capacity for some time. It currently holds 456 offenders. The project will see 192 spaces added by 2012, Hart said.

“All of the parties need to give their heads a shake and really critically examine how these laws that are being passed are going to negatively impact the entire country,” said Kim Pate, executive director of the Canadian Association of Elizabeth Fry Societies.

Correctional investigator Howard Sapers, who recently submitted his latest annual report on systemic problems plaguing Canada’s prisons to the Public Safety Minister, paints a troubling picture.

“We’re already seeing the (correctional) service not be able to deliver programs in a timely way,” he said. “We’re already seeing offenders not being prepared properly for release at their parole eligibility dates. We’re already seeing recruitment issues and unfilled positions.

“All of these issues are just going to be made worse if the service is expected to simply house more people without more resources.”

With files from Joanna Smith

http://www.thestar.com/news/canada/article/845272–ottawa-s-prison-plan-won-t-work-critics-say

Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house.

Ordinarily, they should give: (1) notice of presence by knocking or ringing a door bell; (2) notice of authority, by identifying themselves as law enforcement officers; and (3) notice of purpose, by stating a lawful reason for entry.

While the “knock and announce” principle is not absolute, where the police depart from it, there is an onus on them to explain why they thought it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants or about the destruction of evidence.

The police must be allowed a certain amount of latitude in the manner in which they decide to enter premises and, in assessing that decision, the police must be judged by what was, or should reasonably have been, known to them at the time.

See: R. v. Cornell, 2010 SCC 31

Globe and Mail Editorial:

Setting free a suspected procurer of weapons for al-Qaeda, because the United States paid Pakistan $500,000 (U.S.) to capture and hold him, was the wrong thing for a Toronto judge to do.

Abdullah Khadr is a 29-year-old Canadian citizen who was captured in Islamabad, Pakistan, six years ago when the U.S. was tipped off by his brother, Abdurahman, who was then working for the U.S. Central Intelligence Agency. Abdullah Khadr should be held responsible for whatever actions he may have taken in support of terror. He gave a voluntary statement on videotape to the RCMP – whose actions were exemplary – in which he implicated himself. He was a free man in Toronto when he gave that statement.

The abuses of his rights described by Mr. Justice Christopher Speyer of the Ontario Court of Justice, in and of themselves and in the circumstances of the fight against terrorism, are not so egregious that his extradition to the U.S. should be blocked.

Judge Speyer says that the sum of the human rights violations was “both shocking and unjustifiable.” Here are the violations he found: under Pakistani law, the 14-month detention of Mr. Khadr, held without access to legal counsel in a secret jail, was illegal; Mr. Khadr was beaten when captured, and later mistreated, though not tortured; the U.S. and Pakistan worked together to delay Mr. Khadr’s access to Canadian consular services for three months; and the U.S. pressured Pakistani intelligence to delay his repatriation because it wasn’t happy to see him released without charge. (Pakistan refused to turn him over to the U.S. without Canadian consent, and Canada wouldn’t consent.)

Judge Speyer argues that extraditing Mr. Khadr to the United States would bring Canadian justice into disrepute. How? Canada’s hands are clean. As for the U.S., it had little choice but to work with Pakistan. That is where a large part of the fight against terrorism is happening. That is where Mr. Khadr went of his own volition. His treatment in custody was not extreme. He was not tortured. He was interrogated for intelligence purposes. He was not subject to rendition. He was not held for years and years. He was released to his home country. Any information he gave U.S. authorities while in Pakistan (or later in Toronto, where the FBI questioned him) isn’t necessary to make the case for extradition.

The case of Abdullah Khadr is very different than that of his younger brother Omar, who is to go to trial before a military commission at Guantanamo Bay next week. Omar Khadr was 15, not an adult, when he was captured by the U.S., and statements he gave without counsel, in a coercive environment, may be part of the case against him.

The power to block an extradition because of an abuse of process “applies to any conduct that reaches into this jurisdiction and undermines the integrity of [the] judicial system here,” Judge Speyer writes, citing an earlier ruling. The integrity of the Canadian judicial system would be better served by extraditing Mr. Khadr to face charges in the U.S.

http://www.theglobeandmail.com/news/opinions/editorials/this-khadr-is-not-welcome-back/article1665030/

DATE: SATURDAY AUGUST 14TH
REGISTRATION: 7:00AM
TEE TIME: 8:00AM—SHOTGUN
LOCATION: ROYAL ONTARIO GOLF CLUB
6378 Trafalgar Road, Milton, ON (905) 953-9966

$200.00 PER SINGLE
$800.00 PER FOURSOME
$1000.00 PER FOURSOME + HOLE
SPONSORSHIP
HOLE SPONSORSHIP—$300.00 PER HOLE
LUNCH ONLY—$45.00

Dhaman Kissoon
dkissoon@belnet.ca
Maltee Garraway
Maltee.Garraway@td.com
Robin Singh
robin@nerdforce.com
Claude Armstrong
claudearms@hotmail.com
Bhagmatie Persaud
Bhagmatie.persaud@bmo.com

National Post:

In my 28 months as a guest of the U.S. government, I often wondered how my time in that role would end. I never expected that I would have to serve the whole term, though I was, and am, psychologically prepared to do so, now that I have learned more of the fallibility of American justice, which does convict many people, who, like me, would never dream of committing a crime in a thousand years.

Most evenings as a captive, I telephoned my wife, Barbara, at between 11 and 11.30 p.m., just before the telephones were shut down for the day. I did so on Monday, July 19. Her opening gambit was “What have you heard?” and I dimly replied “Nothing special.”

“You haven’t heard?”

Thus did I learn, as the emails had been down in the entire compound for five days, that my appeal bond application had been granted. Half an hour later, when I was in bed using my night light to do a crossword puzzle, two fellow residents approached, a few minutes apart, to say that they had heard of it on the BBC World Service.

Tuesday was a day of feverish to-ing and fro-ing, as bond was discussed and arranged, and terms debated, and the local personnel of the Bureau of Prisons strove to keep up with the paperwork as my status inched, line by line, on their computer screens, toward the gate.

As a matter of principle, I refused to pack up anything until I was assured of actually leaving. To pack up belongings and then have to unpack them would have been insufferably demeaning. I made only very cautious replies to inquiries about leaving “Soon, I hope.”

The court appearance to fix terms was in Chicago on the morning of Wednesday, July 21, where I was represented, with his customary agility, by my outstanding counsel, Miguel Estrada.

By prearrangement, I called my wife at shortly after 11 a.m. Again, she began “What have you heard?” “Nothing,” was my dynamic response, which surprised her, as there were already extended television accounts of the Chicago proceedings. “You leave today. Bail of two million dollars has been posted (by my dear and generous friend Roger Hertog), A car is coming to collect you at about 3. I’ll see you tonight.”

Barbara was in Toronto and it was our 18th wedding anniversary. She couldn’t make her reservation on Air Canada because she could see on television the driver she had arranged to pick me up marooned outside the gates of the prison complex. He had no authorization to prove he was ordered for me and not simply a ruse of the press. Faxes flew back and forth delaying her departure.

Finally, the only way to get to Palm Beach that night, just before midnight, which she was able to do, was to charter from a well-wisher at a knock-down rate, (basically the cost of aviation fuel), a very tired and sluggish medevac plane without a washroom.

In the Coleman Low Security compound, there are 1,800 residents and it is a little universe terminally addicted to gossip about the custodial system and especially the goings-on of the group confined there. By this time there were large numbers of journalists and photographers clustered at the gate of the Coleman complex and ongoing television coverage watched with some bemusement by my fellow residents in the television rooms of the residential units.

A steady stream of well-wishers from all factions of the compound came to say goodbye, as I put my books and papers and a few clothes items into cardboard boxes. (The only article of clothing that I took that was not among the few things I had bought myself was the nondescript brown shirt bequeathed to me when he left by the don of one of the famous New York gang families).

The Mafiosi, the Colombian drug dealers, (including a senator with whom I had a special greeting as a fellow member of a parliamentary upper house), the American drug dealers, high and low, black, white, and Hispanic; the alleged swindlers, hackers, pornographers, credit card fraudsters, bank robbers, and even an accomplished airplane thief; the rehabilitated and unregenerate, the innocent and the guilty, and in almost all cases the grossly over-sentenced, streamed in steadily for hours, to make their farewells.

Most goodbyes were brief and jovial, some were emotional, and a few were quite heart-rending. Many of the 150 students that my very able fellow tutors and I had helped to graduate from high school, came by, some of them now enrolled in university by cyber-correspondence.

Veterans of even 20 years in the federal prison system could not recall anyone being bailed in mid-sentence like this, and particularly not on the heels of unanimous Supreme and Circuit Appeals Court decisions.

I was overwhelmingly enthused to leave, especially in these circumstances, after the U.S. Supreme Court’s rewriting of the open-ended statute that had been used against me, a catchment, as the chief justice of the U.S. said at our hearing, for anyone a prosecutor takes against.

It had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.

I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.

And I had heard the vehement allegations of many fellow residents of the fraudulence of the public defender system, where court-appointed lawyers, it is universally and plausibly alleged, are more often than not stooges of the prosecutors. They are paid for the number of clients they represent rather than for their level of success, and they do usually plead their clients to prison. They provide a thin veneer for the fable of the poor citizen’s day in court to receive impartial justice through due process.

And I had the opportunity to see why the United States has six to twelve times as many incarcerated people as other prosperous democracies, (Australia, Canada, France, Germany, Japan, and the United Kingdom), how the prison industry grew, and successfully sought more prisoners, longer sentences, and maximal possibilities of probation violations and a swift return to custody.

Before I got into the maw of the U.S. legal system, I did not realize the country has 47 million people with a criminal record, (most for relatively trivial offenses,) or that prosecutors won more than 90% of their cases. There, at Coleman, I had seen the courage of self-help, the pathos of broken men, the drawn faces of the hopeless, the glazed expression of the heavily medicated, (90% of Americans judged to require confinement for psychiatric reasons are in the prison system), and the nonchalance of those who find prison a comfortable welfare system compared to the skid row that was their former milieu. America’s 2.4 million prisoners, and millions more awaiting trial or on supervised release, are an ostracized, voiceless legion of the walking dead; they are no one’s constituency.

Of course, I was glad, jubilant, to leave, (though a return is not an impossible result of the pending rehearing), but also grateful for many of the relationships I had formed; enlightened by my observation of American justice on the other side of the wall; and happy to have got on well in an environment very foreign to any I had known before.

My departure was processed quite cordially and the personnel even conducted us to a back exit, through a padlocked gate, far from the media, and shook hands and waved as I slipped the bondage of the U.S. government. It had been 28 months and 18 days since I arrived. The send-off was more congenial than the reception and the ride back to Palm Beach was on the same roads over the same flat, scrubby landscape of strip malls and bungalows as the approach. It seemed more verdant and welcoming on the way back. The drive was contemplative and uneventful.

I was delighted to be back in my home, which the prosecutors had tried to seize for years. For the first time since I was last there, I enjoyed pristine quiet, free of loudspeakers, screamed argument, and the snoring of a hundred men. I had a glass of wine, and waited for Barbara, to celebrate the happiest of all wedding anniversaries.

http://fullcomment.nationalpost.com/2010/07/31/conrad-black-my-prison-education/

Mississauga Criminal Lawyer

Aswani K. Datt was elected as President for the Brampton Flower City Centennial Rotary Club on July 15, 2010. The term is for the 2010-2011 Rotary Year. The Brampton Flower City Centennial Rotary Club has become the most diverse and engaged Rotary Club in the Region of Peel. More information on the club can be found at www.flowercityrotary.org

Our club holds the prestigious distinction of being founded on the centennial anniversary of the Rotary movement. Since 2005, Brampton Flower City Centennial Rotary Club has continued to grow in size, attracting both outstanding local leaders and accolades from the Greater Brampton community over the work accomplished in the club’s short history.

Doctor Hutchinson CEO of the Brampton Neighbourhood Resource Centre presented fellow Rotarian Aswani K. Datt with a Certificate of Appreciation for his presentation at the Ex-Offender Community Restoration Forum held at Sheridan College on Thursday, October 29, 2009. Aswani K. Datt was the closing speaker and presented: A Final Challenge, “Restorative Justice: Implications for Diverse Communities”.

The Supreme Court of Canada has affirmed the availability for damages for Charter breaches. The language of s. 24(1) of the Charter is broad enough to include the remedy of constitutional damages for breach of a claimant’s Charter rights if such remedy is found to be appropriate and just in the circumstances of a particular case.

The first step in the inquiry is to establish that a Charter right has been breached; the second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches.

Once the claimant has established that damages are functionally justified, the state has the opportunity to demonstrate, at the third step, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. Countervailing considerations include the existence of alternative remedies.

Claimants need not show that they have exhausted all other recourses. Rather, it is for the state to show that other remedies including private law remedies or another Charter remedy are available in the particular case that will sufficiently address the Charter breach. Concern for effective governance may also negate the appropriateness of s. 24(1) damages. In some situations, the state may establish that an award of Charter damages would interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity.

If the state fails to negate that the award is “appropriate and just”, the final step is to assess the quantum of the damages. To be “appropriate and just”, an award of damages must represent a meaningful response to the seriousness of the breach and the objectives of s. 24(1) damages. Where the objective of compensation is engaged, the concern is to restore the claimant to the position he or she would have been in had the breach not been committed. With the objectives of vindication and deterrence, the appropriate determination is an exercise in rationality and proportionality.

Generally, the more egregious the breach and the more serious the repercussions on the claimant, the higher the award for vindication or deterrence will be. In the end, s. 24(1) damages must be fair to both the claimant and the state. In considering what is fair to both, a court may take into account the public interest in good governance, the danger of deterring governments from undertaking beneficial new policies and programs, and the need to avoid diverting large sums of funds from public programs to private interests. Damages under s. 24(1) should also not duplicate damages awarded under private law causes of action, such as tort, where compensation of personal loss is at issue.

See: Vancouver (City) v. Ward, 2010 SCC 27

The Brampton Flower City Centennial Rotary Club held its annual Gala on July 15, 2010 at the Mississauga Grand Banquet Hall. The event was sold out and was a tremendous success in recognizing community service and leadership. Peel Regional Police Chief M. Metcalf was honored for his leadership and dedication to the community and was presented with the 2010 Citizen of the Year Award.

Toronto Criminal Lawyer

Picture: From left to right (Claude Armstrong, Aswani K. Datt, Peel Regional Police Chief M. Metcalf and Dhaman Kissoon)

The following is an excerpt that I wrote on a paper dealing with Restorative Justice

In the criminal sphere, the modern restorative justice movement flowed out of the prison abolition movement and the application of aboriginal and Christian teachings to informal dispute resolution methods. In the civil law context, restorative justice is beginning to be recognized as an important aspect of alternative dispute resolution in situations where wrongs have been committed.

Although restorative justice also has origins in other cultures, the major influences on the North American movement are aboriginal teachings, faith communities, prison abolition advocates, and the alternative dispute resolution movement.

John Braithwaite has described restorative justice as encompassing the following specific objectives:

• • Restore property loss

  • Restore injury

  • Restore sense of security

  • Restore sense of empowerment

  • Restore deliberative democracy

  • Restore harmony based on a feeling that justice has been done

  • Restore social support

To be clear, restorative justice is not considered a “lighter punishment” by the courts. As a general matter restorative justice involves some form of restitution, reintegration into the community and empowerment to victims of crime.

In 1996, the Canadian Parliament enacted Bill C-41, reforming Canada’s sentencing regime and explicitly incorporating restorative principles into Part XXIII of the Criminal Code. Restorative justice principles now permeate the sentencing process in several ways.

Two of the six objectives of sentencing that the Criminal Code requires a judge consider in all sentencing decisions explicitly incorporate principles of restorative justice: the reparation of harm done to victims or the community, and the promotion of a sense of responsibility and acknowledgment of the harm done by offenders. Rehabilitation has been understood as restorative in nature by the Supreme Court of Canada.

Section 718.2(e) of the Criminal Code sets out further principles of sentencing and stipulates that judges consider “all sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders.” This provision has been held to mandate that incarceration be the sanction of last resort for all offenders at sentencing.

Finally, Parliament created the conditional sentence of imprisonment, whereby a court may order an offender to serve a sentence of imprisonment in the community. The conditional sentence of imprisonment has been interpreted as a sentence that can fulfill both restorative and punitive objectives.

During a conditional sentence order, the offender is obliged to comply with a number of compulsory conditions, and optional conditions crafted for the specific offender may also be imposed. If any of the conditions are violated, the offender may be ordered to serve the balance of the term in custody. The purpose underlying the conditional sentence was to reduce, in a safe and principled way, the number of offenders committed to custody.

In R. v. Gladue the Supreme Court of Canada was asked to rule on the effect of specific sentencing provisions in the Criminal Code directed at Aboriginals and First Nation Peoples. While the case dealt with a true crime, the concept of restorative justice as a sentencing tool was affirmed by the court. Restorative justice was described by the Supreme Court of Canada as:

an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime.

Restorative Justice has existed in Canada prior to these legislative changes as part of a patchwork of laws. Under section 717 of the Criminal Code and section 4 of the Young Offenders Act 1984, the police may refer the case to alternative measures or other diversion programs before they lay charges. After the accused has been charged, matters may be referred to alternative measures programs or community justice committees. If the matter is successfully resolved at this stage, the charges may be suspended.

Tracey Tyler

LEGAL AFFAIRS REPORTER

An influential trial lawyers’ association – which includes many of Canada’s top litigators – has thrown its support behind Toronto defence lawyers who are boycotting legal aid cases.

The citizens of Ontario can no longer afford the cost of a legal aid system that pays so poorly only the least-experienced lawyers are willing to accept cases, said Marie Henein, vice-president of The Advocates’ Society.

It creates too many inefficiencies in the justice system, she said.

“The adage, which applies to this market as well, is you get what you pay for,” Henein told the Toronto Star today.

“What is happening is the lawyers who are being driven out are the people who are able to negotiate resolutions (to cases before a trial) and have the presence and seniority to manage clients and the ability to streamline the process,” she said.

Raising the legal aid tariff makes good business sense because it will attract the most experienced lawyers back into doing the work, argues the society, a broad-based organization that includes family and immigration lawyers as well as civil litigators.

Criminal lawyers launched their boycott June 1 to protest the provincial government’s refusal to raise the tariff, which currently pays $77 to $98 an hour depending on their experience level, with caps on the number of hours paid.

The boycott, which involves lawyers with more than five years experience, applies to all homicide and gangs and guns cases.

Since the late 1980s, the government has increased the hourly rate by 15 per cent, well below the rise in the cost of living.

Three reports for the provincial government in the past year have recommended the tariff be boosted.

Last November, the authors of one report – Patrick LeSage, former chief justice of Ontario’s Superior Court of Justice, and former law professor Michael Code, who was recently appointed a judge – said raising the tariff to levels that would bring seasoned lawyers back to legal aid work is a solution to runaway trials.

Between 1999 and 2007, there was a 15 per cent decline in the number of senior lawyers taking on these cases.

Yet during their research, LeSage and Code noted in their report, senior police officers, Crown lawyers and judges “forcefully submitted that it is much better to conduct a long complex trial with one of the leading members of the bar because they will generally focus on the real issues in the case, will consistently prepare in advance and will have no reason to unduly prolong the case.”

“While you pay more on an hourly basis, in the end, when you talk about the overall cost of delays to the system, including court costs and the cost of a judge, there is a cost saving,” Henein said.

Code and LeSage recommended that Ontario follow the model developed by the Legal Services Society in British Columbia, which pays $125 an hour for particularly complex cases known as “enhanced fee cases” — considerably higher than the top hourly rate of $92.29.

The B.C. legal aid plan also carefully screens lawyers who are eligible for the enhanced fees and a panel of three senior lawyers must determine if the case is of sufficient length and complexity to merit the higher rate.

Attorney General Chris Bentley has offered no substantial response to the boycott, only repeating previous assurances that he wants to move the legal aid system “to a better place.”

He told the Star earlier this month he was concerned the boycott might backfire, but declined to elaborate.

Henein said the time and cost savings that would result from raising the tariff would fit well with other efforts Bentley now has underway to improve the efficiency of the criminal justice system, which he has called his “Justice on Target” initiative.

http://www.thestar.com/news/ontario/article/650650

High court says defendants have right to device’s code

By David Hanners
dhanners@pioneerpress.com

Updated: 05/01/2009 07:44:17 AM CDT

A woman suspected of driving drunk follows the instructions of State Trooper Adam Flynn and walks heel to heel after being pulled over for exceeding the speed limit on 35E about 1:30 a.m. Friday morning December 19. A field sobriety breathalyzer test administered a few minutes later revealed that she exceeded the legal limit of .08 percent alcohol concentration and she was subsequently arrested. Flynn has led all troopers with DWI arrests for the last four years. (Pioneer Press: Chris Polydoroff)

Minnesota may be forced to drop thousands of driving-while-impaired cases and change the way it prosecutes others in the wake of a state Supreme Court ruling Thursday, prosecutors and defense attorneys agreed.

The state’s highest court ruled that defendants in drunken-driving cases have the right to make prosecutors turn over the computer “source code” that runs the Intoxilyzer breath-testing device to determine whether the device’s results are reliable.

But there’s a problem: Prosecutors can’t turn over the code because they don’t have it.

The Kentucky company that makes the Intoxilyzer says the code is a trade secret and has refused to release it, thus complicating DWI prosecutions.

“There’s going to be significant difficulty to prosecutors across the state to getting convictions when we can’t utilize evidence to show the levels of the defendant’s intoxication,” said Dakota County Attorney James Backstrom.

“In the short term, it’s going to cause significant problems with holding offenders accountable because of this problem of not being able to obtain this source code.”

Law enforcement officers can still have a motorist’s blood-alcohol level determined through blood tests or urinalysis, but that option comes with a pricey, time-consuming caveat: Most of those tests are done only in the lab run by the Minnesota Bureau of Criminal Apprehension in St. Paul.

“The BCA labs are overwhelmed now with their current workload, and I’m not sure they
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can handle doing blood and urinalysis tests in all DWI cases in Minnesota,” said Backstrom. “It’s going to be a big problem.”

“I think there’s going to be a lot more blood and urine tests asked for,” said Derek Patrin, an attorney involved in the cases decided by the Supreme Court. “And that will back up the BCA. They’re short-staffed already, and with the budget crisis we’ve got already, well, that’s one of the reasons they wanted to use the Intoxilyzer in the first place. It was inexpensive to use.”

Andy Skoogman, a spokesman for the Department of Public Safety, the BCA’s parent agency, said officials there felt it was “premature” to stop using the Intoxilyzer. But he said the lab would be able to handle the workload if police agencies switched to blood tests and urinalyses.

“The BCA will make adjustments,” he said. “We’ll look at retraining staff and perhaps look at purchasing more test kits until this situation is resolved.”

The Intoxilyzer 5000EN is the standard device used by Minnesota police to determine if a driver is impaired. The state bought 260 of the machines from the manufacturer, CMI of Kentucky, in 1997, and state law presumes the devices’ results to be reliable.

The device is used with nearly eight of every 10 suspected drunken drivers who are tested in Minnesota.

But defense attorneys have argued that if they can’t examine the source code, the computer program that runs the machine, they have no way to tell if the Intoxilyzer is reliable. District judges across Minnesota have handled defense requests for the source code with a patchwork of rulings: Some say a defendant has a right to examine it; others say it isn’t relevant.

The Supreme Court’s ruling came in two driving-while-impaired cases that Backstrom’s office prosecuted. In each, district judges ordered that the source code be turned over to the defendants, but when Backstrom appealed to the Minnesota Court of Appeals, the rulings were overturned.

The appeals court said the defendants hadn’t shown why getting the source code was relevant to their guilt or innocence.

But the Supreme Court said that at least one of those defendants showed that the code was relevant. The court noted in its 18-page ruling a list of evidence that defense attorneys may now use as a blueprint to request the source code.

Police had stopped the defendant, Timothy Arlen Brunner, 38, of Farmington, in July 2007 and the Intoxilyzer showed his blood-alcohol content was 0.18. Minnesota law presumes that a driver with a concentration greater than 0.08 is impaired.

Patrin, his attorney, asked a district judge to order prosecutors to turn over the source code. He accompanied his request with a memorandum and nine exhibits. Among them: a computer science professor’s testimony that defects had been found in the code used in voting machines, as well as a report saying problems had been found in the code used in the breath-testing machine used by police in New Jersey.

The Supreme Court said Brunner’s submissions “show that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and, in turn, would relate to Brunner’s guilt or innocence.”

Skoogman, the Department of Public Safety spokesman, said the agency was disappointed in the ruling.

“We feel it is premature at this stage of the game for our law enforcement partners to test for only blood and urine,” Skoogman said. “We continue to stand by the Intoxilyzer and the accuracy of the test results. Our message to law enforcement is to stay the course at this point as we examine our options.”

The state’s access to the source code is the subject of a separate lawsuit in U.S. District Court. Hearings are scheduled in the case May 22 and June 4.

Backstrom said the source code issue would haunt prosecutors until it is resolved, and the Supreme Court decision makes things worse.

“I believe that this decision is a significant setback to law enforcement’s ability to protect our communities from drunk driving, at least in the short term,” he said. “We’re not going to be able to use the Intoxilyzer machine until we get the source code.”

David Hanners can be reached at 612-338-6516.

http://www.twincities.com/ci_12267906

TONDA MACCHARLES
IN OTTAWA
BETSY POWELL
Toronto Star

The Conservative government says it will legislate an end to the practice that allows judges to calculate a “two-for-one” sentencing credit for time that prisoners spend in pre-trial custody.

Weeks after British Columbia justice officials made an impassioned appeal to Ottawa for the measure, Justice Minister Rob Nicholson said he would introduce legislation tomorrow to further curb judges’ sentencing discretion.

Judges now can give credit for so-called “dead time” that offenders spend in detention centres prior to trial and sentencing. It’s seen as a way to account for time served in cramped cells
while a case wends its way through the courts.

Credit for time served can in some cases lead to criminals walking free upon sentencing: a convict who spends two years in custody pre-trial, for example, and is sentenced to four years in prison, could avoid returning to jail if given double credit for time already served.

Those calling for change say some defendants purposely build up their “dead time’’ so they receive shorter penitentiary sentences.

It is already the law in Ontario that if a prisoner delays a guilty plea to accumulate “dead time,” he will not be given such credit.

But an array of critics accused the government of political pandering.

Defence lawyer Heather Pringle said before introducing the law, the justice minister should spend time in pre-trial custody.

“A few days spent locked down for 18 hours at a time and no access to rehabilitative programs, coupled with nights spent sharing his cramped cell with two other guys, a shared toilet and some vermin, might give him a more informed understanding of this issue,’’ she said. “This legislation is simply political pandering, and its impact will be to unduly punish the poor who can’t afford a release on bail.”

Nicholson defended the move, saying the Conservatives want “more truth in sentencing.”
It’s unclear whether the government will remove judicial discretion altogether, or simply try to limit it.
Nicholson refused to provide details until the bill is tabled.

The announcement prompted a scathing rebuke from the Criminal Lawyers Association, which called the proposal a “step backward” that would “promote harsher sentences, produce fewer guilty pleas and give Parliament’s approval to inhumane detention facilities.”

The bill was endorsed “in principle” by the federal Liberals who said they are ready to expedite parliamentary approval. The BQ also supports it. But the NDP, which also backs the principle, warned there should be room for judicial discretion as a way to force governments to deal with prison conditions.

Pointing to dreadful conditions at Toronto’s Don Jail, Joe Comartin, NDP MP and public safety critic, said the bill is unlikely to “avoid a successful Charter challenge unless we retain a reasonable amount of discretion in the hands of our judges.”

Conditions at the Don Jail, particularly overcrowding, have led to the jail’s censure by Amnesty International and has on occasion led judges to give three-for-one credit.

http://www.thestar.com/News/Canada/article/608602

Be a part of history and celebrate the 100th Rotary convention, which will take place in Birmingham, the heart of England!

I f you haven’t been back to Birmingham since the 1984 convention, you may not recognize this former industrial town. Now a lively canal city known for its outstanding shopping and dining, Birmingham — or Brum, as the natives call it — underwent a dramatic facelift in the 1990s. The transformation resulted in a modern, more pedestrian-friendly city that retains traces of its medieval and Industrial Age roots.

On Saturday, former Ontario Premier William Davis is the keynote luncheon speaker. Dr Jean Clinton is the keynote speaker at the Governor’s Dinner. Entertainment is provided throughout the day by Red Spirit, The Ault Sisters and Men to Boys.

Download the convention booklet for more reasons to come to Birmingham in 2009. This 24-page booklet also contains registration, hotel reservation, and Host Organization Committee forms.

Register early and save

Register early for the convention to take advantage of special pricing!

First deadline: 15 December
Second deadline: 31 March

Register online . It’s convenient and secure. Your confirmation materials will be e-mailed to you.

Or download the registration form . For more information click here.

The Brampton Flower City Rotary Club is proud to present its 2nd Annual Golf Tournament. The event is set for Saturday, June 13 ,2009 at 10:30am at the Royal Ontario Golf Club. $250 for a single player and $1000 for a foursome. You can obtain further information from either:

Dalkeith Palmer at 905.866.5180 or email: dpalmer@prousedash.ca
Dhaman Kissoon at 416.234.4116 or email: dkissoon@bellnet.ca

The deadline to register is June 8, 2009. Part of the proceeds is going towards the Breast Cancer Society.

Download Form Here

From the Toronto Star:

Bob Mitchell
Staff Reporter

A Brampton Justice of the Peace has been exonerated of any misconduct, including being drunk on the job.

JP John Farnum, 65, is expected to soon return to his duties on the bench at a Brampton courthouse.

He was paid to stay home for the past year until allegations, some dating back five years, were investigated and heard by the Justices of the Peace Review Council. He has been a JP since 1988.

In finding no basis for misconduct, Madam Justice Mary Hogan said Farnun’s “pattern of behaviour put the public first” and that he appears to always try to not “inconvenience” the public “or keep them waiting” in the course of his duties in one of Canada’s most demanding courthouses.

Farnum made mistakes but they didn’t amount to the pattern of misconduct alleged by Crown counsel Gavin Mackenzie, she said in her recently-released written decision.

“Everyone can make mistakes in these circumstances,” she said. “JP Farnum testified that he learned from his mistakes.”

Five allegations of misconduct were levied against him, including that he was intoxicated at work on Feb. 14, 2006 and that he had abdoned his duties.

A fellow JP testified she thought he was drunk but three other JPs denied ever telling her they agreed with her or smelled alcohol on him.

She testified she smelled alcohol on him when he passed her in the hall as well as in an office he was using.

The inquiry heard that another JP sent Farnum home because he was ill, not because he was drunk.

Farnum denied he was intoxicated when he testified at the inquiry. He felt ill and didn’t hear himself being paged to a courtroom. Nobody phoned his office.

He was also accused of using a van of a paralegal while on duty on Aug. 13, 2003. He admitted driving it and parking it in the secured indoor parking area not for the public.

He testified he was called to attend court that day after being at another court but his car was in the shop. Not wishing to be late, he accepted the paralegal’s offer to use his vehicle.

Hogan found he also simply made a mistake when he convicted a man of a traffic offence on Jan. 15, 2004 but registered a conviction for a lesser offence and a smaller fine.

He was accused of hearing a matter involving two friends in his office on May 18, 2004 when he wasn’t scheduled to be the intake justice before the cases went to trial the same day. He was found not guilty of showing favouritism.

He was also found to have made an error in judgement in re-opening a criminal matter on Aug. 16, 2004 without having documents or recording the matter.

Farnum could have been suspended with or without pay or fired had he been found guilty .

http://www.thestar.com/article/588783

From the Economist:

Sir John Mortimer, barrister and freedom-fighter, died on January 16th, aged 85

EVERY true-born Englishman knows that the law is an ass. Rules are better honoured in the breach than the observance. Judges are best represented in a chorus line at the D’Oyly Carte. The English constitution is a vague formulation in someone’s head, and that foundation of English liberties, Magna Carta, is best known for banning eel-traps in the Thames. The firm clip of the law is for the other fellow. Behind the furled umbrellas and decorum, Englishmen are anarchists. Or, as John Mortimer liked to think of them, votaries of “my darling” Prince Kropotkin.

Mr Mortimer’s great service to his country was to sum up in one person both the weight of the law and a sharp, rollicking scepticism of it. He was an eminent lawyer, entering chambers in 1948 and becoming, in time, a Queen’s Counsel and a master of the bar. Few excelled him in cross-examination (the art of which, he liked to say, was “not to examine crossly”). Yet the law was only his day job, giving him the money and the material to write novels. At the bar he dressed scruffily, lest anyone take him for a conventional lawyer. He made fun of the “old sweethearts” on the bench, who would pass a death sentence and then go out for buttered muffins. And as for the law itself, “the great stone column of authority which has been dragged by an adulterous, careless, negligent and half-criminal humanity down the ages”,

Those words were not exactly his, but those of Horace Rumpole (seen above right, played by Leo McKern), whose adventures at the criminal bar Mr Mortimer tirelessly depicted in books and TV plays from 1975 onwards. He denied that Rumpole was entirely himself. There was much of his barrister-father in him, especially in his habit of quoting poetry to ward off unwelcome conversation, as well as borrowings from colourful colleagues. Rumpole was a cheroots-and-cheap-claret man (“Pommeroy’s claret keeps me astonishingly regular”), where Mr Mortimer favoured cigars and, at the dawn of the writing day, champagne. He often lost his cases, where Mr Mortimer was notably successful. Home for Rumpole was a mansion flat off Gloucester Road, where he lived in a state of miserable, snappish fidelity to Hilda, “She Who Must be Obeyed”. Mr Mortimer graced the well-heeled, pretty Chilterns near Henley-on-Thames, where children, stepchildren, a love-child, two wives called Penelope and the “Mortimer-ettes”, a claque of intelligent, charmed women, paid court to him and he to them.

A golden thread

Where Rumpole and Mr Mortimer fused together was in their sense of how lawyers should behave. Both were freedom-fighters. They refused to prosecute: their role was to defend the individual against the weight and follies of the law. Rumpole, grubbing round the Old Bailey cells with their “perpetual smell of cooking”, refused to let his clients plead guilty while the smallest doubt remained. He liked to quote Lord Sankey’s words on the presumption of innocence, the “single golden thread” that ran through English law.

Mr Mortimer, also tracing that thread, took on the most celebrated free-speech cases of the 1970s, and won them all. Largely thanks to him, the lord chamberlain’s censoring hand was lifted from the theatre. Thanks to him, Englishmen could read “Lady Chatterley’s Lover” and “Inside Linda Lovelace”, could see Rupert Bear with an erection in Oz magazine, and could endure a Roman soldier’s tryst with the body of Jesus in Gay News. Mr Mortimer hated pornography. But “Liberty is allowing people to do things you disapprove of.”

He took that conviction into politics, too. It led him to support foxhunting and to resume smoking in old age, just to defy the ban. He played the devil’s advocate on behalf of freedom everywhere, from the Oxford Union to the dinner table. Bishops were a favourite target, rapiered for the “absurdity” of life and the worse absurdity of heaven, which had to resemble “the lounge of a Trusthouse Forte hotel”. People, he thought, should be regularly shocked. Offence “makes society move”.

All this, he admitted, came close to anarchism. Yet at its base was something different. He took up the law, which made all else possible, out of obedience to his father. Clifford Mortimer was blinded when John was 13, yet continued his law practice and his life as though nothing had happened. For his son—as he explained in his play, “A Voyage Round My Father”, in 1971—a career at the bar was an extension of all the other duties he assumed for his demanding, unseeing parent, from tying up the dahlias and trapping earwigs to handing him his boiled egg, or his coat.

The freedom-fighter defied most laws but not this one, family love.

http://www.economist.com/obituary/displaystory.cfm?story_id=13012615