The Case for the Defence

There are changes being made to criminal law that will have an immense impact on the justice system and how it affects Canadian's lives. This blog tries to address some of those changes and evaluate their consequences.

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Sonny Yatim

The Sammy Yatim Shooting: Social Media’s Role in a Murder Charge.

  The power of social media has been reinforced and illustrated once again by the events following the shooting of teenager Sammy Yatim by Toronto police constable James Forcillo. What sets the incident apart from other shootings is its capture on video and the public outrage that soon followed.

  On July 27th, 18-year-old Yatim allegedly drew a knife aboard a streetcar at Dundas Street West and Bellwoods Avenue. Responding police officers repeatedly asked Yatim to drop the knife to no avail.

  Based on the captured video, 30-year-old Forcillo then shot at Yatim nine times – six of which were made after Yatim was already on the floor of the streetcar. After which, Yatim was stunned with a Taser.

  Social media sites overflowed with rage, confusion and discussions in a matter of hours after the videos were uploaded. To date, the videos have been watched online more than 1 million times.

  One Facebook page named “Sammy's Fight Back for Justice” was shortly created; a few hours later and the page already garnered thousands of “likes”. The page has since generated more than 11,000 fans, hundreds of discussions and countless comments – and the numbers keep on growing by the minute.

  Many commenters have pointed out the irony in the death of Yatim, who moved from Syria only four years ago to leave the war in his country and live a “safer” life in Canada.

  Beyond generating click-throughs and comment boxes, however, the social media interactions and discussions have also managed to mobilize Yatim’s supporters to stage rallies and marches toward the police headquarters on College Street. Vigils and gatherings were also held, most of which also organized through Facebook.

  On Change.org., a website dubbed as “the world’s petition platform”, a Toronto-based writer initiated a petition calling for charges against Forcillo to be put forward. In a period of 24 hours, the petition was able to gather more than 30,000 signatures.

  Forcillo was eventually charged by the Special Investigations Unit with second-degree murder on August 19th. He was granted bail for $510,000 but was told to stay in Ontario, where he must appear in court for a pre-trial hearing on September 30th.

  Analysts say that second-degree murder charges – implying an intent to kill – against police officers are rare. Convictions are even rarer, but Forcillo may face a different fate as his case involves not only video evidence, but also unforgiving social media unrest.

  How could have the events unfolded without a video camera, YouTube, Facebook or Twitter? No one knows for sure, but there is no doubt things would have turned out differently in one way or another. Would Forcillo still be charged with murder? Maybe. Would the same number of people care or even know about the issue? Probably not. Would public pressure to bring Forcillo to justice have been so intense? Definitely not.

  Jeffrey Reisman is a well-known criminal lawyer in Toronto (link to: http://www.torontodefencelawyer.com/) working out of his law practice on Steeles Avenue. Jeffrey focuses on several areas of criminal law, including DUI defences, theft defences, bail hearings and more. He has also established himself as a premier assault lawyer in Toronto (link to: http://www.torontodefencelawyer.com/dt_portfolio/assault-lawyer-toronto/)

      <END>

  <SOURCES>

http://www.huffingtonpost.ca/2013/07/29/sammy-yatim-video-toronto-streetcar-shooting_n_3671041.html

http://www.cbc.ca/news/canada/toronto/story/2013/08/20/toronto-yatim-shooting-officer-surrender-court.html

http://news.nationalpost.com/2013/07/29/toronto-prepares-for-anti-police-demonstration-after-shooting-of-sammy-yatim-as-top-cop-promises-answers/

http://www.thestar.com/news/crime/2013/08/20/sammy_yatim_court_appearance_for_const_james_forcillo.html

  <ADDITIONAL SOURCES>

https://www.facebook.com/SammysFightBackForJustice?ref=profile

http://globalnews.ca/news/755706/hundreds-gather-for-sammy-yatim-funeral/

http://globalnews.ca/news/791397/toronto-police-officer-charged-with-sammy-yatim-death-granted-bail/

http://en.wikipedia.org/wiki/Death_of_Sammy_Yatim

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The majesty of the criminal court

The majesty of the criminal process is sometimes not really there. I'm sitting in court in Strathmore, waiting for a trial to be finished. It is crushingly dull.

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Magical Thinking and the Omnibus Crime Bill

The Ominibus crime bill hasn't come into effect yet.  Its provisions will increase the number of people incarcerated in Canada.  However, the federal government is also decreasing the funding that Correctional Service of Canada will be receiving.  How does the government plan on squaring the circle?  How will more prisoners be housed with less money?

Prisons are being closed.  The Kingston Penitentiary and another facility are being shut. Support programs are being cut.  A program that help paroled prisoners re-integrate into society has been cut.  It all seems so shortsighted.

Many, if not most, of the new prisoners will be going into a provincial correctional facility. All sentence less than two years are served in a correctional facility.  These costs are borne by the province that is housing the prisoner.  No money is being set aside by the federal government to cover any of these costs of the Omnibus Crime bill.

The jails and penitentiaries are already full to capacity and beyond. If I treated my dogs like some prisoners in Canada are treated, I would have the SPCA all over me.

The main goal of the criminal justice system is the prevent crime.  There are several ways that it does this.  Those convicted of a crime are punished to deter others of a crime.  The punishment is also supposed to deter the convicted criminal from committing crimes in the future. Some convicted persons are incarcerated because they are dangerous to society and society needs to be protected from them.  Fortunately, these individuals are relatively rare.

A lengthy period of jail destroys a person's life.  They lose their job, their house, their possessions.  Programs that help prevent a released prisoner from committing new offences is cheaper than jail.

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The cost of the justice system

The Conservative government has simultaneously increased the cost of the justice system with the Safe Streets and Communities Act. However, budgetary pressures are remorseless.  The most recent federal budget is cutting the number of employees at the border. Over 1300 jobs are going to be cut at the Canada Border Services Agency.

The union is, of course, up in arms.  These cuts will, according to the union, reduce the security of Canadians.  I think the surest result will be fewer union members.

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The purpose of the justice system

One of the main reasons for the existence of the criminal justice system is to prevent revenge cycles. I was recently involved in a trial that featured a serious allegation of violence. The alleged attacker and the victims, some of whom were quite seriously injured, were in each other's presence in the court room. They kept meeting each other in the hallway, and spent some time in close proximity to each other.

In many societies, there would have been another physical incident when the victims would try to attack the person who harmed them and there would be an ever escalating cycle of violence. Because this matter was being handled by the police and the courts, the victims weren’t going to respond with violence.

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New drug sentencing laws

The changes to conditional sentence orders will result in all those convicted of drug offenses other than simple possession being incarcerated.

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More on the Safe Streets and Communities Act

The Globe and Mail had a good article yesterday on the anticipated costs of the Safe Streets and Communities Act.  Read it here.

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A lot more people in Canada are going to go to jail

Well, the Canadian government has finally been able to put into effect the various regressive sentencing measures that they were unable to get into law in year's past.  More people are going to go to jail.  What is curious, is that there appears to be little consideration for which government is going to pay for these changes.  All Criminal Code offences, as well as the cost of incarceration for sentences less than two years, are born by the provinces.  Most of the cost of running criminal courts are borne by the provinces.  The federal government is responsible for penitentiaries (sentences longer than two years) and the federal prosecutors (who mainly prosecute drug offences).

Even though the federal government makes criminal law, most of the expense of enforcing criminal law is paid by the provinces.  What I see here is a large increase in cost to the criminal justice system with more people going to jail for longer periods, but no increase in system resources to deal with the higher volume.  Something is going to have to give.

The Canadian Bar Association has identified some of the problems here.

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The Fallacy of Deterrence

One of the factors in sentencing is deterrence. Deterrence is the idea that by punishing this person for a criminal offence, other people will not commit criminal offences in the future because they know they will be punished. Most people are deterred from committing criminal offenses by the promise (or threat) of punishment. Most people are also fundamentally honest, and don't need the threat of punishment stay on the straight and narrow. However, deterrence doesn't work on everyone.

I live in a town on a river. I often walk my dogs along the river bank on a large floodplain. It is dog paradise. One of my dogs is a beagle /border collie cross. At the moment, I am waiting for him to come out if the trees. He has run off and I have no idea where he is. In dog terms, he has committed a criminal offense and is seriously misbehaving.

What do I do when he comes back? Do I beat him? Will that make him more likely to come back? Or will it make him less likely to come back? When he comes back, do I welcome him and simply keep him on a short leash? The dog isn't thinking about consequences ... all he is doing is chasing squirrels. Most people who are repeat offenders don't think of consequences either. If they had thought about what they were doing, they wouldn't have done it.

People aren't dogs. BUT, you don't get a dog to behave by beating it, and people are the same way.

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The Safe Streets and Communities Bill is about to become law

The Conservative government is about to massively change the criminal law in Canada.  The Safe Streets and Communities Act  will receiving its final reading in Parliament and will presumably get royal assent soon.  A summary of the proposed changes, which are very extensive, can be found at the Department of Justice website here.

The changes to the conditional sentence order regime are likely the most serious.  Essentially, these changes will result in a great deal more incarceration for all classes of offenders.  Personally, I think the main result will be to incarcerate a whole lot of low level drug dealers who now get conditional sentences.

I find it troubling that there isn't more opposition to these changes.  In a time of fiscal austerity, when our government is telling us that there is only so much money and services will be cut, there is lots of money to throw people in jail.

The Globe and Mail describes the bill here.

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The Human Cost of a Conviction

I recently had a client who was sentenced to two years less a day imprisonment for transport drugs.  Her family was seriously affected by this result, as there was a plan in place involving rehab and help for her.  The consequences of that sentence are described here.

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Why don't politicians read the Criminal Code before spouting off?

Sigh.....  The existence of conditional sentences appears to be a sore point for our Conservative government and many Canadians.  Many people seem to think that conditional sentences are a cakewalk that is handed out to all manner of violent criminal, sex offenders, and dangerous drug traffickers.  This is a completely wrong.  

Julie DiMambro, a spokeswoman for Justice Minister Rob Nicholson, put it succinctly in an e-mail when she said: “Conditional sentences ... should not be available for serious crimes such as sexual assault, kidnapping and human trafficking.”

She added that the legislation will “ensure that individuals who commit serious and violent crimes serve prison sentences that reflect the severity of their crimes.”

For too many years, the Canadian public has fumed as offenders convicted of serious crimes have walked away from the courtroom with conditional sentences. And for years, the Canadian public has been incensed when some of those offenders committed new crimes while still serving their slap-on-the-wrist time at home 

It is impossible to get a conditional sentence for sexual assault - it is specifically prohibited by the Criminal Code. It is also unlikely that anyone would get a conditional sentence for a violent offence either.  Conditional sentences are technically incarceration that happens to be served in the community.  A sentence can be served in the community only when the sentence is less than two years and there is no minimum period of incarceration specified by the Criminal Code. A conviction for kidnapping would usually result in a sentence greater than two years, which means no conditional sentence.

  Our government is pulling a bait and switch.  They are reducing the conditional sentences for every class of criminal offender by saying that violent criminals shouldn't get conditional sentences.  Violent criminals don't get conditional sentences in most cases.  They are trying the fix a problem that doesn't exist.

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Is Stephen Harper Channeling Sideshow Bob?

It seems more likely each day that our Conservative government is taking policy cues from The Simpsons character Sideshow Bob.  In an early episode where he rigs an election and becomes mayor, Sideshow Bob states: Your guilty conscience may move you to vote Democratic, but deep down you long for a cold-hearted Republican to lower taxes, brutalize criminals, and rule you like a king. That's why I did this, to save you from yourselves. Now, if you'll excuse me, I have a city to run.  Our government has taken the "brutalizing criminals" part to heart.  The current provisions of the Omnibus Crime bill are a return to incarceration, incarceration, incarceration as the all-encompassing policy response to crime. Maybe, in a case of life imitating art imitating life, our government is taking the "rigs and election" part of the episode seriously as well.  http://www.theglobeandmail.com/news/politics/ottawa-notebook/from-cautious-discipline-to-denial-and-accusation-the-tory-line-on-robo-calls/article2355036/ 

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Should bullying be a crime?

The Globe and Mail published the following article today: Majority wants bullying criminalized, poll finds TAMARA BALUJA  OTTAWA— Globe and Mail Update  Posted on Wednesday, February 29, 2012 12:40PM EST  

As Ontario and Quebec schools prepare to bring in anti-bullying legislation, a new poll says a large proportion of Canadians believe it is time for bullying to be regarded as a criminal activity.

Most Canadians agree bullying is a serious problem, with 94 per cent believing it happens in middle school and high school and 88 per cent in elementary school, an Angus Reid online survey of 1,006 Canadian adults found. (This compared to university, where only 43 per cent of respondents believed bullying was a serious problem.)........................

http://www.theglobeandmail.com/news/politics/ottawa-notebook/most-canadians-want-bullying-criminalized-poll-finds/article2354055/  As with so much of what our governments do these days with regards to criminal law, I am of two minds.  My first thought is that it will be good for business, as any expansion of criminal law means more work for lawyers.  The second thought is that it will be TERRIBLE for society.  The criminal law is an exceptionally blunt instrument.  Using it to address something like bullying is killing a fly with a sledgehammer. The article does point out that many things that constitute bullying, such as uttering threats, mischief, and harassment are already criminal offences.  In serious cases of bullying, these charges can be laid and the problem can be addressed.  However, do we really want to be dragging kids to court to get them to stop bullying? I once represented a 10 year old charged with 3 counts of sexual assault.  He had been playing "doctor" with one of his friends at school, and her mother called the police.  The fact that charges had been laid had created a terrible mess.  He was under a no-contact order with the "victim", which caused him difficulty at school. It was necessary to get counsel, because he could potentially be incarcerated for a long time if convicted.  The charges were a horrible waste of system resources, because they sucked up court time, prosecutor time, police time, for no real benefit.  His parent's had grounded him and taken away his Playstation.  What could the court do that was worse than that?