Archive for the ‘criminal procedure’ Category

Don’t Judge A Book By Its Cover: Professional Misconduct Edition

January 7, 2014

Over at The Canadian Privacy Law Blog, David T. S. Fraser writes a damning post of prosecutorial misconduct in the wake of the scathing decision of Justice Mosley of the Federal Court in IN THE MATTER OF an application by [xxxxx xxxxxx ] for a warrant pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, 2013 FC 1275 [PDF].

See also, Fraser’s earlier post: Canadian Privacy Law Blog: Canadian intelligence agencies lied to obtain warrants, Federal Court judge says).

Fraser’s posts mince no word and I commend them both,  but here is the key point:

Courts are generally hesitant to go so far as to say that an affiant or a legal advisor lied to the court. That the Court did so in this case highlights how significant and egregious it was. This sort of conduct brings the administration of justice into disrepute and casts a pall over every warrant ever issued by the Court.

The decision names five Department of Justice lawyers who made “appearances” at the hearing of this matter but does not specify on whose specific advice CSIS was acting.

The warrant system only works if CSIS and their lawyers are truthful to the Court. This duty of candour is greatly elevated when they are the only ones appearing before the Court, as there is nothing adversarial to ensure that the truth comes out.

This cannot go unnoticed. This is not a “no harm, no foul” situation. The Government needs to appoint a special prosecutor to investigate how this came to be and the law societies governing those five lawyers should investigate what really appears to be egregious professional misconduct. Only a special prosecutor can do the job, as all five of the lawyers were arguing their case on behalf of the Deputy Attorney General of Canada, the country’s top lawyer and prosecutor. Anything less would be sweeping this under the rug. [emphasis added]

It’s Fraser’s choice not to name and shame the five Department of Justice lawyers who, acting for CSIS, committed professional misconduct, or as Justice Mosley’s put it:

“…The failure to disclose that information was the result of a deliberate decision to keep the Court in the dark about the scope and extent of the foreign collection efforts that would flow from the Court’s issuance of a warrant.

[118] This was a breach of the duty of candour owed by the Service and their legal advisors to the Court. It has led to misstatements in the public record about the scope of the authority granted the Service by the issuance of the 30-08 warrants. [emphasis added by Fraser]

Given that the decision is public record, I have no qualms in identifying the lawyers who in Fraser’s own words “[t]he Court specifically found that agents of the Canadian Security Intelligence Service — on the advice of and with the concurrence of their Department of Justice lawyers — misled the Federal Court of Canada in order to obtain a warrant or warrants under the CSIS Act.”

….

APPEARANCES:

Mr. Robert Frater

Ms. Isabelle Chartier

Mr. Jacques-Michel Cyr

Mr. Rémi Chapadeau

William F. Pentney

I have not heard of any of the lawyers, except Mr. Robert Frater, who some may know as the author of the leading text entitled “Prosecutorial Misconduct” (Canada Law Book, 2009) [ORDER IT HERE!]

Frater’s Canada Law Book author bio reads:

Robert J. Frater, B.A., LL.B., is Senior General Counsel with the Federal Department of Justice in Ottawa. He is currently a member of the Ontario bar, and has, in the past, been members of both the Northwest Territories and Nunavut bars. Mr. Frater has appeared before the Supreme Court of Canada and other appellate courts on numerous occasions, and has been counsel on many significant cases raising prosecutorial misconduct issues, such as R. v. Regan and Krieger v. The Law Society of Alberta. He has written and lectured on a wide variety of criminal law topics, and was for many years the chief writer/editor of the federal Crown’s policy manual, the Federal Prosecution Deskbook, which has been described as “one of the best sources of ethical guidance [for prosecutors.]“. He is the author of Prosecutorial Misconduct and co-author of Drug Offences in Canada, Third Edition (Canada Law Book). [emphasis added]

Oh, and this gem from the Federal Prosecution Deskbook, Chap. 9:

9.3.1 The duty to ensure that the responsibilities of the office of the Attorney General are carried out with integrity and dignity

Counsel can fulfil this duty:

  • by complying with applicable rules of ethics established by their bar association;
  • by exercising careful judgment in presenting the case for the Crown, deciding what witnesses to call, and what evidence to tender;
  • by acting with moderation, fairness, and impartiality;
  • by not discriminating on any basis prohibited by s. 15 of the Charter;
  • by adequately preparing for each case;
  • by not becoming simply an extension of a client department or investigative agency;Footnote24 and
  • by conducting plea and sentence negotiations in a manner consistent with the policy set out in this deskbook.Footnote25

9.3.2 The duty to preserve judicial independence

Counsel can fulfil this duty:

  • by not discussing matters relating to a case with the presiding judge without the participation of defence counsel;
  • by not dealing with matters in chambers that should properly be dealt with in open court;
  • by avoiding personal or private discussions with a judge in chambers while presenting a case before that judge; and
  • by refraining from appearing before a judge on a contentious matter when a personal friendship exists between Crown counsel and the judge.

9.3.3 The duty to be fair and to appear to be fair

Counsel can fulfil this duty:

  • by making disclosure in accordance with the policy set out in this manual;Footnote26

  • by bringing all relevant cases and authorities known to counsel to the attention of the court, even if they may be contrary to the Crown’s position;

  • by not expressing personal opinions on the evidence, including the credibility of witnesses, in court or in public;

  • by being conscious of the factors that can lead to wrongful convictions, such as false confessions and mistaken eyewitness identification;

  • by zealously guarding against the possibility of being afflicted by “tunnel visionFootnote27, through close identification with the investigative agency and/or victim, or through pressure by the media and/or special interest groups;

  • by remaining open to alternative theories put forward by the defence;

  • by not expressing personal opinions on the guilt or innocence of the accused in court or in public;

  • by asking relevant and proper questions during the examination of a witness and by not asking questions designed solely to embarrass, insult, abuse, belittle, or demean the witness. Cross examination can be skilful and probing, yet still show respect for the witness;

  • by respecting the court, defence counsel, the accused, and the proceedings while vigorously asserting the Crown’s position; and

  • by never permitting personal interests or partisan political considerations to interfere with the proper exercise of prosecutorial discretion.

Awkward.

“Swab First, Ask Questions Later”

June 5, 2013

Deoxyribonucleic acid (DNA): the wonder molecule.  It encodes the genetic instructions used in the development and functioning of all known living organisms and many viruses.

From genetic engineering to forensics to bioinformatics to nanotechnology, DNA is the defining characteristic of of human evolution and scientific progress. It is —for any fan of Law & Order of CSI — the stuff of which dreams of guilt or innocence are made of.

In his post, “The Slippery Swab (Update)” Scott Greenfield tackles the issue of DNA in a thought-provoking post on the U.S. Supreme Court decision in Maryland v. King, which approved the Maryland law permitting the taking of DNA from presumptively innocent defendants. Greenfield writes, (more…)

From the Censorious Criminal Libel Files (Canada Edition)

December 11, 2012

 

 

BCCLA demands watchdog investigate RCMP actions against critic | BC Civil Liberties Association.:

 

New information in unsealed court documents has the BCCLA demanding an investigation into the RCMP for seizing the computers of a man who says he was helping unhappy RCMP members post their concerns online. On August 18, 2012, Grant Wakefield’s computers and cell phone were seized in a joint RCMP Major Crime and New Westminster Police Department operation.

The RCMP has confirmed that Wakefield was the informant whose information and photographs started high profile code of conduct and criminal investigations into Port Coquitlam RCMP officer Jim Brown’s activities. Simultaneously, Wakefield was also anonymously assisting disgruntled members of the RCMP to run a blog called the “Re-Sergence Alliance” blog, a blog that posted alleged RCMP front line member concerns about RCMP management and policy online.

 

The BCCLA adds:

 

“We’re asked to believe the RCMP used the resources of their major crime section, computer forensics team, the Federal Department of Justice, and a search warrant, to investigate what amounts to conspiracy theories posted in the comment section of an erotic blog and a Twitter account with thirteen followers,” said Eby. “Defamatory comments are made every day on the internet, and the RCMP doesn’t send their major crime team to investigate. What makes this case unique is that the man who had his computers taken away by the police was using those computers to help unhappy RCMP members publish their concerns online.”

The BCCLA is demanding the Commission for Public Complaints investigate the entire RCMP operation against Grant Wakefield, and has written to them to file a complaint.

Click here to read the unsealed court documents >>

Click here to read the BCCLA’s letter to the Commission for Public Complaints >>

 

The decision of P. D. Gulbransen, J. partially unsealing the RCMP search warrant is reported at B.C. Civil Liberties Association v. Regina, 2012 BCPC 406 (CanLII).

 

Criminalization of defamation is a pernicious form of libel chill and is anathema to a free and democratic society.  It is high time for the archaic and illiberal criminal offence of defamatory libel to be relegated to the dustbin of legal history.

 

Cherry Picking at the Supreme Court of Canada: R. v. Cole

October 19, 2012

Today’s decision by the Supreme Court of Canada in R. v. Cole 2012 SCC 53 (S.C.C.) addresses the constitutional scope of the reasonable expectation of privacy based on unreasonable search and seizure under s. 8 of the Charter. By a 6-1 majority, the Court concluded that a warrantless search and seizure of laptop computer and disc containing Internet files breached the accused’s rights under s. 8 of Charter, but ought not to have been excluded pursuant to s. 24(2) of Charter. (more…)

Ontario appeal court: No reasonable expectation of privacy in using IP address to obtain customer info

October 3, 2012

In R. v. Ward,2012 ONCA 660, the Court of Appeal for Ontario has confirmed that that there is no reasonable expectation of privacy in identifying an internet user through his IP address in the course of a child pornography investigation.  (more…)


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