Anthony Moustacalis' submission to the Miscarriages of Justice Commission consultation
Anthony was pleased to be invited to make (oral) submissions to the Miscarriages of Justice Commission consultation in November of 2021. He supports the creation of a committee to review wrongful convictions and an amendment to the Criminal Code to give the Court of Appeal the power to review convictions that are unsafe. The current Criminal Code which requires a conviction to be unreasonable has not been enough to prevent wrongful convictions. Anthony is watching for these changes to add force to his arguments for his clients who are appealing their convictions.
The Miscarriages of Justice Commission
A report on the creation of an independent commission to consider wrongful conviction applications from the Hon. Harry LaForme and the Hon. Juanita Westmoreland-Traoré
The report was submitted in November 2021.
Consultations were held from June to September 2021 with interested stakeholders, as well as representatives of criminal case review commissions abroad. Consultations focused on the creation of an independent commission in Canada to consider miscarriage of justice applications. The report summarizes the input received during the consultations on various reform options and provides recommendations on the path forward.
More about this report on the Government of Canada website
Sex-assault victim appeals conviction for breaking publication ban on her identity
Canada’s first victim of sexual assault to be prosecuted for violating the publication ban on her own name is appealing the conviction even though she pleaded guilty and agreed that her plea amounted to a confession.
The notice of appeal, filed on Wednesday in Ontario Superior Court, highlights the treatment of sexual-assault complainants in the criminal-justice system. Publication bans are routinely applied in sexual-assault cases under federal law to protect the identity of complainants. The stated aim is to promote reporting of crime and hold offenders accountable.
Making the case not merely egregious but difficult to believe, women’s advocates say, is that the complainant in the publication-ban prosecution was the man convicted of sexually assaulting her – her ex-husband, whose identity is protected only because any mention of his name would identify her. He had been sentenced to a year in jail for a violent sexual assault that occurred with their two children sleeping nearby.
Sex-assault victim’s breaking of publication ban results in calls for legal, policy changes
“It just boggles my mind,” the woman’s new lawyer, Robin Parker, a former federal Crown attorney, said in an interview, “that someone in the Crown’s office sat down and thought it was important to prosecute without considering the larger impact it would have” on her client and victims generally. She said the conviction, if not quashed, will have a chilling effect on the already low levels of reporting of sexual assault.
Also shocking, she said, was that Ontario prosecutors not only turned “the machinery of the state on a sex-assault victim,” but “they didn’t appear to have turned their mind to whether or not what she had done was actually a crime.” Ms. Parker’s notice of appeal argues it was not a crime, because the woman had no intent to violate the law and because she did not widely disseminate the ruling, but merely sent it to family and friends who already knew her identity.
Federal law says a judge in a sexual-assault case may order that “any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.”
Specialists in sexual-assault law and women’s advocates in several provinces told The Globe and Mail the conviction of a victim for violating a ban on her own identity appears to be unprecedented.
The appeal is also unusual, because of the woman’s guilty plea and because she had legal counsel when she made that plea. A statement of facts presented jointly by regional Crown counsel Brian White and her defence lawyer, Valeria Ruoso, to Ontario Court Justice Thomas McKay on March 17, said the statement would be understood to be a confession in any subsequent legal proceeding.
The appeal leaves Ontario with a decision to make: whether the Ministry of the Attorney-General wishes to fight for a conviction and fine that are now in the public eye. “As this matter is in the appeal period, it would be inappropriate to comment,” spokesman Brian Gray said in an e-mail.
The woman, who is in her 40s, is also appealing her $2,600 fine, though it, too, was requested in a joint submission by Mr. White, the prosecutor, and Ms. Ruoso, her defence counsel.
The notice of appeal says the fine – which includes a $600 surcharge to pay for government-subsidized services for victims – “brings the administration of justice into disrepute and is contrary to the public interest.”
The woman’s ex-husband was convicted of sexually assaulting her in the context of an acrimonious divorce in September, 2019, by Ontario Court Justice Karey Katzsch. The ruling was not published, and the victim ordered a transcript from the court.
A transcript from the March hearing shows Justice McKay chiding the woman. “I understand sort of the emotional impact, being a victim of a crime. I know that a crime such as this, it is particularly personal and people have a reaction to that. That being said, court orders have to be followed, particularly ones that deal with people’s privacy.”
The reason the woman pleaded guilty and accepted the fine, Ms. Parker said, was that “the Crown told her lawyer at the time that he was gunning for a conviction. … she was worn down and she was just broken by the system.” She was involved in a divorce where custody was at issue, and had endured difficult criminal proceedings as the complainant in the sexual-assault trial.
She decided to appeal “because what happened was a complete travesty of justice,” Ms. Parker said. The conviction would leave her with a criminal record that could affect her ability to enter the United States or apply for certain jobs.
“And she is not a criminal. She is a victim. Throughout the sentencing hearing the Crown kept referring to her as the complainant in a sexual-assault case. She wasn’t the complainant any more. She was a victim.”
Constance Backhouse, a University of Ottawa law professor and historian, said that the appeal is “very good news,” and the legal strategy was an innovative one.
“The hurdles are not insurmountable”, Anthony Moustacalis, a former head of the Criminal Lawyers‘ Association, said in an interview.
“Is it difficult? Yes. Is it impossible? No. Like all things in law, it’s fact specific.”
(Mr. Moustacalis has no involvement in the case.)
Ms. Ruoso declined to comment, and Mr. White did not reply to a request for comment.
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.
Update: April 2021
“Recently the federal justice minister announced public consultation on the creation of an independent Criminal Case Review Commission. The team is headed by notable and progressive retired Judges including The Honourable Harry Laforme and the Honourable Juanita Westmoreland-Traoré. We have seen how long it takes to reverse injustice on major cases, such as Mr. Assoun’s case. In order to be effective, such a commission needs to be well-funded to permit access to all Canadians who complain of wrongful convictions. My concern is that such a commission needs to be broad enough in scope to quickly and effectively examine all cases, great and small, jury and non-jury. Cases, such as sexual assault, which are victim sensitive, should still be able to be reviewed as the opportunity for injustice can be overwhelming to the individual convicted. Many victim rights groups are calling for alternatives to the Criminal Court system which is stressful to survivors and not always what they want. Regardless, given the complications with these cases, a robust review mechanism for all potential wrongful convictions must be afforded to all Canadians.
In addition broad powers need to be considered. Some are obvious such as the power to summon witnesses and records. Others, would be progressive, such as the right to recommend true pardons, release from custody pending determination of cases, and the appointment of lawyers with fair remuneration, to ensure proper treatment of these cases.
I look forward to the consultation process and invite all colleagues to make submissions.
Ontario government’s changes to how judges are named opens the door to patronage appointments, legal organizations argue
There is mounting opposition to the Ontario government’s proposed changes to the way judges are appointed, which critics argue will open the door to patronage appointments.
The changes to judicial appointments are included in an omnibus justice bill titled the “Accelerating Access to Justice Act,” tabled last month and which is being studied by a legislative committee this week at Queen’s Park.
The provincial government said the changes reflect feedback received from lawyers and other justice-sector players, and will both speed up access to justice and increase diversity on the bench.
Yet many of the province’s legal organizations — including those representing Black, Muslim, Asian, and South Asian lawyers — say they did not ask for these changes, and argue most of them are unnecessary and risk harming the independence of the judicial appointments process in Ontario.
“We’re particularly concerned with how future governments may use these changes, because these changes would bring back patronage appointments and would undermine the high quality of judicial candidates being appointed to the Ontario Court of Justice,” said Daniel Brown, vice-president of the Criminal Lawyers’ Association.
Advocacy group Democracy Watch said in a news release Thursday that it will challenge the changes in court should they become law, arguing they violate the independence of the judiciary.
Judicial candidates for the Ontario Court of Justice are vetted and recommended to the attorney general by the independent judicial appointments advisory committee (JAAC), made up of judges, lawyers and members of the public.
The JAAC currently submits a ranked shortlist of at least two candidates for appointment. Under the proposed changes, the committee would now have to provide a shortlist of at least six candidates.
“It allows for a bigger look at what’s out there in terms of creating some diversity and creating more choice,” Attorney General Doug Downey told the Star when he tabled the bill last month.
The attorney general could also reject the six-person shortlist and ask to see the names of the next six candidates, as he is currently permitted to do with the two-person shortlist.
Anthony Moustacalis, board director of lawyer advocacy group the Advocates’ Society, said adding more names to the shortlist “politicizes the selection process and affects the appearance of justice.”
With the current shortlist of at least two candidates, “you’re actually selecting from a small pool of extremely qualified candidates,” said Moustacalis, “so if you add many more numbers to that, then the risk is that we don’t know if you’re picking from the most highly qualified or you’re picking from people who are not as highly qualified.”
He said there may also simply not be six qualified candidates for a judicial vacancy in some smaller jurisdictions.
The Ontario Bar Association said the longer list “allows for more diverse choices than a list of two,” while proposing that an amendment be added so that the attorney general has to report on the number of times they have sent back the list rather than choose a candidate, in order to avoid “list shopping.” (Others including the Advocates’ Society have also proposed such a change.)
“We are underestimating the high-quality bar in this province if we imagine that a short list of six will necessarily introduce political bias,” said OBA president Charlene Theodore in an emailed statement.
Concerns have also been raised with a provision that states records maintained by the committee “in relation to the consideration of an individual for appointment as a provincial judge” will be kept confidential and not disclosed “except as authorized by the chair of the committee.”
The chair is appointed by the attorney general under the current system for a three-year term, but under the proposed changes the chair would be appointed for “up to” three years, meaning they could potentially be replaced at any time, which critics say points to another example of the government taking further control of what is supposed to be an independent appointment committee.
With the current shortlist of at least two candidates, “you’re actually selecting from a small pool of extremely qualified candidates,” said Moustacalis, “so if you add many more numbers to that, then the risk is that we don’t know if you’re picking from the most highly qualified or you’re picking from people who are not as highly qualified.”
“It creates the obvious risk of a chair feeling under pressure to give the attorney general or others information as the possible price of remaining in the chair position,” argues former judge, deputy Ontario attorney general and deputy attorney general of Canada George Thomson in a submission to the standing committee on the Legislative Assembly, which is holding public hearings on the bill this week.
Brown pointed out that the selection process, in which the committee vets candidates and makes “discrete inquiries” about them, is supposed to be confidential, and that the provisions could discourage people from applying to become a judge.
A spokesperson for Downey said the government is “exploring options to address the concerns that have been raised” before the standing committee this week.
The provision on confidentiality “would formalize the existing framework for confidentiality on the JAAC. This new provision does not entitle the attorney general or anyone else to receive information about the JAAC and its processes beyond what is already allowed,” said spokesman Nicko Vavassis in an email.
The proposed change to the appointment of the chair “would align with the statutory language used for the chair of the justices of the peace appointments advisory committee’s term and other statutory agencies,” he said.
Another proposed change would mean the three legal organizations with representatives on the committee — the Law Society of Ontario, the Ontario Bar Association and the Federation of Ontario Law Associations — would no longer pick their own representatives, but would submit a shortlist of three candidates for the attorney general to choose from.
The attorney general already picks the seven public members of the 13-person committee; the other members are judges.
The Federation of Ontario Law Associations has previously stated the change “gives the appearance of allowing the (attorney general) to have even greater control over the composition of the JAAC.”
Theodore at the OBA said she sees providing more names for her association’s representative “as an opportunity,” noting the OBA has a diverse and fair-minded membership. The Law Society has previously stated it supports a system that produces diverse and qualified judges.
“The suggestion that this change politicizes the process undermines the professionalism of the OBA, Law Society and FOLA, who will be putting forth recommended candidates,” said Vavassis. “Our government rejects the implication.”
The Ontario Trial Lawyers’ Association — whose statement endorsing a six-person judicial candidate shortlist the government included in a news release announcing the changes last month — told the Star that it “strongly recommends” the three legal associations continue to be able to select their own representative on the JAAC.
Article originally posted in The Star by
Appeal Court case shows uneven playing field for unrepresented appellants, say lawyers
Faced with a relentless rise in self-represented litigants, two criminal defence lawyers are questioning why the process of obtaining state-funded legal representation for impoverished clients seeking to appeal their convictions remains so difficult — and is often further complicated by the Crown.
“This is a symptom of an endemic problem with the lack of funding of indigent defence,” lawyer Anthony Moustacalis of Toronto-based Anthony Moustacalis & Associate told The Lawyer’s Daily, referring to a recent experience with an application under s. 684 of the Criminal Code for court-appointed counsel on an appeal.
In a Sept. 18 Ontario Court of Appeal decision in R. v. Campbell 2020 ONCA 573, Moustacalis and co-counsel Christen Cole successfully argued for a government-funded lawyer for their client, Andrew Campbell, who is appealing his November 2018 convictions for kidnapping, pointing a firearm and assault causing bodily harm. Campbell is currently serving a seven-year jail sentence, less credit for pretrial custody and time spent on restrictive bail conditions.
Under a s. 684 application, the appellant bears the burden of proof and the three-part test begins with the court considering the merits of the appeal. But because the record is often incomplete at the time of the application, the applicant need only satisfy the court that the proposed grounds of appeal are arguable, noted Appeal Court Justice C. William Hourigan, acting as application judge. As a precedent, he pointed to R. v. Bernardo [1997] O.J. No. 5091.
The next component of the interests of justice analysis looks at the complexity of the arguments and whether the appellant can advance the appeal — or the court can decide on it — without the assistance of counsel.
The final step of the s. 684 test considers financial eligibility, the decision stated, and balances the government’s limited financial resources to fund legal representation with the interests of justice and the appellant’s fair appeal rights. Justice Hourigan cited R. v. Le 2016 ONCA 798 as an example.
The appellant must be clear and transparent in disclosing his or her financial affairs, and “the court must be satisfied that he or she has exhausted all other means of paying for counsel,” he wrote.
In a sworn affidavit, Campbell said he had earned less than $11,000 a year since 2013 and had exhausted financial assistance from his mother and aunt. The Crown argued that Campbell was not credible and that one of his cousins might be able to give him money for a lawyer.
But “I found those submissions speculative and I am satisfied that the appellant does not have the means to retain counsel,” ruled Justice Hourigan. “The appellant has met his onus on the test for a s. 684 order and the application is granted.”
It’s not unusual for the Crown to oppose s. 684 applications because appointing government-funded counsel is considered exceptional, said Moustacalis. But the barriers that impoverished accused and appellants must overcome to obtain legal representation can be daunting.
Prior to his trial, Campbell was rejected by Legal Aid Ontario as ineligible, but succeeded in obtaining government-funded representation through a Rowbotham application, which is similar to a s. 684 application on appeal.
It’s not unusual for the Crown to oppose s. 684 applications because appointing government-funded counsel is considered exceptional, said Moustacalis. But the barriers that impoverished accused and appellants must overcome to obtain legal representation can be daunting.
“Here we were fighting the same battle again with legal aid after an earlier trial decision said that … he wasn’t eligible,” explained Moustacalis. “And unfortunately somebody who has an appeal with merit is forced to rely on the good graces of finding a lawyer that will bring this application at their own expense because it’s not guaranteed that we’re going to be covered for the time and the expenses that we had with this application.”
Working pro bono, lawyers who agree to take on a s. 684 application face an additional challenge, noted Cole. The three-part test necessitates that the appeal has some merit for it to be in the interests of justice to fund counsel for the appellant. But obtaining the full trial record can be prohibitively expensive. The task is difficult for a trained lawyer, and virtually impossible for a self-represented litigant.
“If they don’t have a complete record in front of them,” she explained, “if they don’t have a lawyer there to frame it properly, to argue it property, then it makes if very difficult for the court to properly assess merit.
“So it’s difficult on these applications to try to accurately and fully represent the grounds of appeal,” she added. “At this stage, the court may say the grounds of appeal aren’t particularly strong. But on a more full record, on a complete record, they may well conclude differently.”
In the Campbell application, as is typically the case, Cole and Moustacalis said they had to rely on trial transcripts that were selectively ordered by the Crown, so they were left only with the judge’s charge to the jury and transcripts of the testimony by two out of 12 witnesses. Now that they’ve been appointed for the appeal, they will have access to all the transcripts.
Moustacalis said in a number of other countries, including the United States, an appeal is funded as a matter of right if the prospective appellant meets the financial eligibility requirements.
“The potential tragedy of this case,” he said, “is here’s someone who said, ‘I’m innocent, I testified, I did my side of the story, I don’t like some of the things that were said to the jury because I think they were misleading, and there were some other mistakes that were made in the case. I need a lawyer to assist me.’
“And it’s a very difficult process to get to that under the present system,” he added. “And this process was meant to be a safeguard because it assumed there would be a more robust legal aid process. Now that the legal aid process is not as strong as it used to be because of the decline in federal government payments and cuts provincially, it becomes a very challenging process for someone to get a review of their conviction.”
At the Sept. 23 Opening of the Courts of Ontario ceremony, the chief justices of the province’s three levels of court called on the federal and provincial governments to invest more in legal aid.
“When litigants are unrepresented and unsupported,” said Ontario Court of Appeal Chief Justice George Strathy, “the justice system slows to a crawl, valuable resources are drained, and other cases are held back. More important, the most vulnerable members of society, those whom our justice system purports to protect, are further victimized because their playing field is uneven.”
Lorne Goldstein, a partner and specialist in criminal law with Ottawa-based Abergel Goldstein & Partners LLP, said most trial Crowns he knows want the accused to have a lawyer. The motivation to oppose Rowbotham and s. 684 applications may be more political than legal, he suggested.
“There’s no political gain for funding criminals,” he told The Lawyer’s Daily. “This [Campbell] was an example of a particular odious opposition. To make the submission that he has to go down the entire family tree and you should do a search on Ancestry.ca before the Crown will concede that you’ve exhausted all funding possibilities is silly.”
In our adversarial judicial system, argued Goldstein, your adversary should not have the right to decide whether you, as the accused, get counsel.
“That’s not an even playing field,” he observed. “And the judge in this case said very clearly it’s a low standard, quite properly.
“So I don’t know if defence lawyers have much to take from this decision — it’s what we already knew,” he added. “But I think it’s a decision that should be considered by prosecutors to remind them that they are not the guardians of the minister’s wallet and they should be very, very reluctant to oppose an even playing field — and that means having experienced counsel.”
Lorna Bolton, the Crown attorney in the application, referred a request for an interview to the Ministry of the Attorney General’s communications department. A spokesperson for the Ministry, Maher Abdurahman, declined to comment, saying it would be “inappropriate” because the case is before the courts.
Article originally published in The Lawyer’s Daily, September 29, 2020 by John Schofield. View original post.
Assoun case shows police accountability in wrongful convictions lacking: experts
– View updates to this article below –
More than a year after a federal report became public revealing that police erased and suppressed evidence that might have freed him, Glen Assoun is wondering whether anyone will be held accountable for his wrongful imprisonment.
“It affects me in that the governments just don’t care,” he said last week in a phone interview from his Halifax apartment. “They have no feelings about what happened to me.” Assoun, now 64, spent almost 17 years in prison on a murder charge and five more years under strict parole conditions before a court declared his innocence in March 2019. He says he’s suffering from mental illness and heart disease as a result of his years in prison. And he is not alone in questioning who will answer for the actions that upended his life.
Ian Scott, the former head of the unit that investigates police misconduct in Ontario, backs Assoun’s view that both a criminal investigation and public inquiry are warranted, saying his case fits a pattern of poor Canadian police accountability for wrongful convictions.
“The case ought not to rest …. The stakes are too high in these circumstances to have it end there, saying it was just a mistake,” Scott said in a recent interview. Assoun was convicted in 1999 of the murder of Brenda Way, who was found with her throat slashed in a Dartmouth, N.S., parking lot in November 1995. The crime remains unsolved. His original conviction has long been criticized by Innocence Canada — a group that has helped free 23 wrongfully convicted people — for issues at his trial that ranged from the use of videotaped evidence from a dead witness through accepting a knife discovered at the scene 10 months after police dogs had scoured the area as a potential murder weapon. However, in July 2019, revelations of the troubling actions of the RCMP and the Halifax police before Assoun unsuccessfully appealed his conviction brought his case to national attention.
Following a court application by The Canadian Press, CBC and the Halifax Examiner, a report by the federal agency that probes wrongful convictions was released, saying an RCMP unit in Halifax had destroyed an officer’s database of information about other suspects, along with physical evidence gathered to back his theories, prior to a 2006 appeal hearing. The report noted that Const. Dave Moore had tried repeatedly to tell his superiors his work was relevant, and yet it was never disclosed.
The RCMP’s only public response has been to point to an internal review about the destruction Moore’s findings and state there was “no malicious intent.” The RCMP was asked for comment on whether they had changed their position, and had not replied more than a week after the original request from The Canadian Press. The defence that there was no malicious intent doesn’t sit well with some experts on police misconduct and criminal law who have reviewed the case.
Anthony Moustacalis, a former president of the Criminal Lawyers’ Association, says that, like Scott, he believes there are potential grounds for a criminal investigation.
“We have a constable going up the chain of command to insist the evidence be produced, and it is not produced,” he said. “It is very disturbing.”
The experts formed their views after considering portions of the preliminary assessment of Assoun’s case by the Criminal Conviction Review Group.
The 2014 document by federal lawyer Mark Green surveyed problems with the original investigation by the Halifax police. This included a revelation that a woman who testified Assoun confessed to the murder as he sexually assaulted her had altered her story and was now identifying serial killer Michael McGray as her attacker.
Green also wrote that in the years prior to Assoun’s appeal, the RCMP’s Moore had unearthed new information pointing to McGray and other suspects in the Way murder. Specifically, Moore’s use of the police database system know as ViCLAS in 2003 led him to believe Assoun was innocent and that McGray — who’s admitted to multiple murders and was convicted of seven — was a suspect.
In addition, Green reported statements from McGray, at least 10 notebooks of interviews from his investigations of the Way murder, a psychological profile and correspondence had disappeared at some point after the analyst was suddenly shifted out of the unit in 2004. Moustacalis says any police officer who knows of non-privileged evidence relevant to a trial has a duty to disclose it. Regardless of whether a criminal probe proceeds, both Moustacalis and Scott say a public inquiry is needed to examine the wider issues involved.
Meanwhile, the Assoun case is seen by Innocence Canada as the visible tip of a larger pattern of provincial attorneys general not ordering independent criminal investigations into police actions in cases of wrongful conviction.
McGray, serving a life sentence, has declined interview requests from The Canadian Press about the allegations. In an interview in 2000 with The Canadian Press, McGray included a Halifax murder in the list of locations of killings he said he carried out across Canada but he did not identify the victim or the circumstances. The serial killer’s claims were never proven. During his investigation, Green produced documents showing that Assoun’s lawyer in the appeal, Jerome Kennedy, had specifically asked for the Crown to disclose ViCLAS-related evidence.
A 2014 internal investigation by RCMP Insp. Larry Wilson, then the head of major crimes in Halifax, concluded the missing files in the Assoun case were deleted for “quality control purposes,” but the actions were “contrary to policy and shouldn’t have happened.” Scott said a probe by an independent investigator is needed to get to the bottom of the matter. “There should be a further investigation because there could be potential criminal liability by the officer who ordered those documents destroyed,” he said.
Both Scott and Moustacalis say an obstruction of justice case is a difficult one to win, as prosecutors must show there was an intent to destroy evidence knowing it would have an impact on Assoun’s case. “The hard part is proving it was wilful,” Scott said. Meanwhile, the question remains of why neither Moore’s work nor its deletion was disclosed to Assoun’s defence counsel before his appeal, despite evidence a high-ranking officer in the RCMP knew of the analysis.
In his report, Green noted that on Jan. 27, 2005, Insp. Leo O’Brien, the head of the ViCLAS unit in Ottawa, and an RCMP lawyer discussed the issue of disclosure with the local RCMP officer who was the liaison with the Crown.
A handwritten note reproduced in Green’s report noted, “they would argue (1.) no new evidence” in response to Kennedy’s request for information about ViCLAS information on alternate suspects. Several days after the Jan. 27 discussion, O’Brien started an email exchange with Moore in which the constable alleged his evidence had been “suppressed” and outlined his investigations into alternate suspects.
Green noted in his report that, “O’Brien’s response was that he was not in a position to do anything.” In addition, there was a Halifax police liaison officer, Sgt. Ken Bradley, on the ViCLAS unit, who Wilson said was aware of Moore’s work being deleted. The Halifax police declined comment, “in light of the potential for future legal processes and in keeping with our practices in relation to unsolved crimes in our community.”
Moustacalis says any police officer who knows of non-privileged evidence relevant to a trial has a duty to disclose it. Regardless of whether a criminal probe proceeds, both Moustacalis and Scott say a public inquiry is needed to examine the wider issues involved. Meanwhile, the Assoun case is seen by Innocence Canada as the visible tip of a larger pattern of provincial attorneys general not ordering independent criminal investigations into police actions in cases of wrongful conviction.
The organization reviewed seven public inquiries going back to the 1989 royal commission on the wrongful prosecution of Donald Marshall Jr. in Nova Scotia, and found only a single instance of an officer being prosecuted in a wrongful conviction, and the case was dropped due to the officer’s poor health.
“Although, almost every commission of inquiry makes recommendations related to police investigations generally, none of them seem to directly address police misconduct of individual officers,” wrote Innocence Canada counsel Bhavan Sodhi after reviewing the commissions’ findings.
At his home in Halifax, Assoun says he continues to struggle to leave his home and be around other people, and suffers from bouts of depression that would make it difficult to endure an inquiry or court case. But he said he’d willingly sit through either to hear the truth behind his tragedy. “There has to be accountability,” he says.
Update: April 2021
“Recently the federal justice minister announced public consultation on the creation of an independent Criminal Case Review Commission. The team is headed by notable and progressive retired Judges including The Honourable Harry Laforme and the Honourable Juanita Westmoreland-Traoré. We have seen how long it takes to reverse injustice on major cases, such as Mr. Assoun’s case. In order to be effective, such a commission needs to be well-funded to permit access to all Canadians who complain of wrongful convictions. My concern is that such a commission needs to be broad enough in scope to quickly and effectively examine all cases, great and small, jury and non-jury. Cases, such as sexual assault, which are victim sensitive, should still be able to be reviewed as the opportunity for injustice can be overwhelming to the individual convicted. Many victim rights groups are calling for alternatives to the Criminal Court system which is stressful to survivors and not always what they want. Regardless, given the complications with these cases, a robust review mechanism for all potential wrongful convictions must be afforded to all Canadians.
In addition broad powers need to be considered. Some are obvious such as the power to summon witnesses and records. Others, would be progressive, such as the right to recommend true pardons, release from custody pending determination of cases, and the appointment of lawyers with fair remuneration, to ensure proper treatment of these cases.
I look forward to the consultation process and invite all colleagues to make submissions.
Open courts during the pandemic
Recently, the Ontario Court of Justice has announced a near shut down of court operations because of the Covid19 virus. While this makes medical sense, and reflects the emergency and quarantine laws of our governments, I wonder about the impact of such a restriction to access on the open court principle – that justice must be seen to be done. Just now, the Local Administrative Judge in Oshawa has issued the following directive. No one is allowed in, in person that is, except necessary justice officials and staff. Defence counsel are prohibited from attending the building in person (even the library-for those who don’t know it is a good library with 24/7 access for lawyer members) and phone lines for calls into courtrooms have been set up.
Duty Counsel, who are like public defenders in the U.S. except they only do guilty pleas, provide some summary advice, arrange for adjournments and conduct bail hearings for the indigent, also have to call in. Crown prosecutors, it seems are allowed in person, as are people who come to sign bail. This all makes sense in these difficult times, except that it offends the principal of public accountability which could be accomplished now through allowing a virtual eye into the court, or at least this part seems to be missing. I do not know of any website that allows virtual access during this restriction of public access.
Our courts have held the right of the public to attend court hearings as a fundamental right. There are certain, and rare cases, where the public can be excluded from courtrooms. Historically these were limited to things like extortion trials, where to repeat or publicize the blackmail would frustrate the justice system. Similarly in commercial secret or patent litigation, where confidential business secrets or inventions would get out, the courts naturally would protect the aggrieved parties. When it comes to excluding the media (and by implication the public at large), that cannot be done except in certain rare circumstances and only on notice to the media. The legal test has be described by the Supreme Court of Canada as follows and is known as the Dagenais/Mentuck principle in the case of Toronto Star Newspapers Ltd. v Ontario, 2005 SCC 41:
[26]The Dagenais test was reaffirmed but somewhat reformulated in Mentuck, where the Crown sought a ban on publication of the names and identities of undercover officers and on the investigative techniques they had used. The Court held in that case that discretionary action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests and that a publication ban should only be ordered when:
- (a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
- (b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. [para. 32]
[27]Iacobucci J., writing for the Court, noted that the “risk” in the first prong of the analysis must be real, substantial, and well grounded in the evidence: “it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained” (para. 34).
I think it is a stretch to say that locking out the media is a risk to the proper administration of justice because of medical reasons, given that an underlying cornerstone of our justice system is that it be open to public view. So sacrosanct is the open court principle that failure to allow the public proper access could void the proceedings.
Regardless, the addition of a camera and microphone to the courtroom is relatively easily accomplished, and linking it to a publicly accessible website would serve to enhance the public’s view of our justice system.
When I was articling, I saw an early experiment with TV in a courtroom. The presiding judge was Patrick LeSage, later Chief Justice of the Superior Court, known for his judicial temperament, even-handedness and humanity. The Crown was Robert Ash, Q.C., someone I worked with as a student on a couple of cases, who was very skilled and bilingual. The camera was at the back and filmed the whole courtroom. There were no zoom-ins permitted. It was respectful, and soon everyone ignored it. Although it worked, it was never pursued again in Ontario other than for a few appeals in the Court of Appeal, in the Truscott reference, or the Carbon Tax Reference, but not in the trial courts. Also the Supreme Court of Canada webcasts all of its appeals, unless publication is restricted for familiar legal reasons outlined above. Even the traditional Law Society of Ontario went to live webcast a few years ago too for its meetings of elected officials known as benchers.
It may be time for some real- time live internet webcasts in the Ontario Court of Justice to preserve the validity of the pandemic process in the courts. And it might make for some entertainment for us bored legal beagles wanting to research the approach of judges we don’t always appear in front of regularly.
Update:
Shortly after writing this blog, the Ontario Court has provided for limited media access upon request.
While this alleviates some of the concerns, the issue remains that public access is not facilitated electronically, and that is something that should be addressed in my view.
Second Update: April 6, 2020:
Late Thursday April 2, 2020, the Superior Court of Justice issued a new practice direction which now provides for a more effective process to access remote court hearings by the public. The court will be providing a list of hearings and court proceedings in advance, and an email where the public can ask to listen in on a hearing, subject to certain rules, eg you cannot record the proceedings or broadcast them without court order.
The Ontario Court of Justice does not seem to have addressed permitting the public to attend court by listening in to a phone hearing. Recently Alyshah Sanmati Hasham of the Toronto Star was told by a court official that she could attend in person at a court proceeding in the Ontario Court of Justice. This seems odd given that the front security are given strict controls as to who to let in, given that lawyers are told to phone certain numbers to access the court and given that it appears no one else is there either. The safest solution is to do what the Superior Court of Justice has done, and give the public limited but fair access to the phone call hearing.
View the The Superior Court practice direction. The relevant part is set out below:
D. Public and media access to criminal proceedings
The Ontario Superior Court of Justice remains committed to the open court principle throughout the COVID-19 pandemic.
Any member of the media or the public who wishes to hear/observe a remote proceeding may email their request to the local courthouse staff in advance of the hearing. The person requesting access should provide their name, the hearing they wish to hear/observe, and their contact information.
Every effort will be made to provide the requestor with information on how they may hear/observe the proceeding.
Section 136 of the Courts of Justice Act restricts the recording by a member of the public of a court hearing.
Certain proceedings are closed to the media and public by legislation or court order.
The Court will seek to post on a public website matters scheduled to be heard by the Court, so that the media can choose to hear or observe a proceeding.
Ontario judge says coronavirus not a factor in sentencing serious crimes
A Toronto judge says an outbreak of COVID-19 is inevitable in corrections facilities, but serious crimes still deserve custodial sentences.
Had the act of dangerous driving that killed a motorcyclist deserved just a few months on top of the 10 months that Marc Laurin had served while awaiting his trial, Ontario Court Justice Kimberley Crosbie said she would have sentenced him to the time he’d already served, sparing him the health risks.
But in a case that some consider a barometer of how judges view putting offenders in jail during a pandemic, Justice Crosbie said Mr. Laurin deserves three years behind bars. She then subtracted nine months for inhumane conditions while in a provincial detention centre (such deductions are growing more frequent of late in Ontario), and 14.5 months based a standard credit of 1.5 days for each day in pre-trial custody, leaving Mr. Laurin with a little more than a year to serve.
She sentenced Mr. Laurin on Monday, amid a widespread shutdown that has affected everything from schools to restaurants to the courts themselves. Although there have been no reports of COVID-19 behind custodial walls, Justice Crosbie said she has no hesitation in agreeing with Mr. Laurin’s lawyer, Jeff Rybak, “that it is a matter of when, and not if, the jails are affected.”
She then expressed some skepticism about the jails’ ability to handle the risk of disease. “In light of much-publicized reports of questionable, if not disgraceful, conditions at some detention centres in recent times, it gives a sentencing judge pause to consider how the pandemic will play out within their walls.” She made the comments in a draft ruling obtained by The Globe and Mail. She delivered the ruling orally in court.
Marc Laurin, a 31-year-old sociology student at the University of Toronto, had sped up to 119 kilometres an hour – the speed limit was 50 – to beat a yellow light in a busy area. His car struck and killed motorcyclist Gary Huffman, 71. A victim-impact statement filed by a family member said Mr. Huffman had spent years caring for his elderly mother, who died just a few months earlier at age 99. He had just started living his life free of his caregiving duties, Justice Crosbie said.
The prosecutor, James Dunda, asked for a five-year sentence, and Mr. Rybak 12 to 24 months. When the pandemic worsened, Justice Crosbie asked the two sides to make further submissions. Mr. Dunda said the pandemic should not affect the sentence in this case. Mr. Rybak said that, as in cases involving immigrants who can be deported if they receive more than six months in jail, sentences may be adjusted slightly downward to avoid harsh extra consequences.
But Justice Crosbie said a strong message needed to be sent to Mr. Laurin and to society regarding dangerous driving. Mr. Laurin had a long criminal record before causing Mr. Huffman’s death in August, 2018, and fled the country almost immediately afterward. He did, however, phone the police from abroad and admit to the crime; he was arrested on his return, and pleaded guilty.
Mr. Rybak said judges are prepared to keep people out of jail where they reasonably can – but the judge did not see it as reasonable in this case. “Anyone we can keep out of jail right now, the system wants to keep them out of jail,” he said in an interview.
Anthony Moustacalis, a criminal lawyer who was not involved in the case, said courts have the power to review the continued custody of an individual who faces a dangerous situation. The individual’s lawyer would need to bring a habeas corpus application, a means of arguing against an unjust detention.
“It may become the weapon of choice for people in custody, either provincially or federally, if dangerous health concerns are not addressed,” he said in an e-mail.
As Published in:
The Globe & Mail
Full Article:
More provinces suspend jury trials, delay legal processes amid coronavirus outbreak
Prospective jurors are being told to ignore their summonses in several provinces, and people charged with crimes and waiting in custody for trials face a slower-than-usual legal process while Canadian courts struggle to remain open without contributing to the spread of the novel coronavirus.
Measures to reduce the number of people who might spread the pandemic through courthouses and prisons include postponing trials, banning the public from some courts and preventing lawyers from visiting clients in prison.
Criminal-defence lawyers are calling for creative approaches: release some kinds of offenders; drop less serious charges; and use video and other technology more often to replace in-person hearings.
“Given government neglect of our jails, the hellish conditions … it’s going to result in death in our jails,” said Ottawa lawyer Michael Spratt, who urged the release of non-violent provincial offenders, plus all those who are serving their sentences on weekends.
Trying to find a balance between preserving public health and business as usual, the Supreme Court of Canada is banning visitors to its hearings; only those directly involved may attend. (Hearings will be webcast as usual, and journalists can attend.) The parties may ask for a delay, or appear on teleconference or video link. The court’s registry remains open for filing documents, with staff wearing medical gloves, said Ottawa lawyer Eugene Meehan, who specializes in the Supreme Court.
The Tax Court of Canada has cancelled sittings for the next two weeks, and the National Judicial Institute has cancelled training sessions for judges until further notice.
Gatherings of prospective jurors have been postponed in Alberta, Manitoba, British Columbia, Ontario and Nova Scotia. Jury trials scheduled in Manitoba but not under way are cancelled, and the accused may opt for a trial by a judge alone or wait for a jury. The public (but not the media) is being told to stay away from all Manitoba courts unless necessary to the proceedings. Newfoundland and Labrador Supreme Court Chief Justice Raymond Whalen decided on Friday to delay four jury trials until May 31.
The Ottawa-Carleton Detention Centre has told lawyers not to visit clients.
Other legal bodies are taking precautions, too. The Law Society of Ontario has postponed solicitor exams set for March 17, while exams set for June are still on. And it is delaying all in-person disciplinary hearings until April 30. Lawyers heading to the Centre for Addiction and Mental Health for hearings of Ontario’s Consent and Capacity Board face screening protocols.
John Struthers, president of the Criminal Lawyers’ Association, said the courts should largely close, but leave the possibility of bail hearings. (A hearing within 24 hours of being charged and detained is a constitutional right.)
But Dan Chivers, past president of the Alberta Criminal Trial Lawyers’ Association, said access to the courts is essential.
Others say the criminal-justice system, already overburdened, should reduce the numbers facing trial or already in jails, where inmates, some of whom may be in poor health, would be unable to escape the spread of the disease.
Criminal defence lawyer Anthony Moustacalis of Toronto said prosecutors should “just drop charges that aren’t as important,” and encourage the courts to make more use of technology, setting dates or hearing legal motions and even some evidence by video, for instance.
He said judges are worried about sending vulnerable people to jail where they may become ill. “I’ve spoken to some of my judge friends and they’re concerned about sending people to detention because of this.”
He also said that, for a period on Thursday, correctional officers at Toronto South Detention Centre refused to take new inmates because they felt plans to deal with the spread of the illness were inadequate.
A spokeswoman for the Ontario Solicitor-General’s Ministry, which oversees the jails, confirmed the incident. She added that if an outbreak is suspected, officials take immediate containment measures, including notifying the local medical officer of health, and provincial health professionals.
The Correctional Service of Canada said in an e-mail it will screen all visitors, and all individuals with symptoms will be tested and, if necessary, treated.
As Published in:
The Globe & Mail
Full Article:
'Treated as a criminal': Walmart receipt and bag checks anger customers. Your rights explained
An apparent step-up of receipt and shopping bag checks at Walmart has sparked customer complaints, raising concerns about shoppers' rights.
"It was not a request, it was a demand," said Penny Rintoul of Vaughan, Ont., about a recent receipt check just before she exited Walmart with her purchases. She said her local Walmart increased its checks in the spring.
"It's very angering and demeaning."
The Canadian Civil Liberties Association (CCLA) said it's investigating the practice of retailers doing routine security checks at the exit, concerned that the way they're conducted may jeopardize customers' rights.
Michael Bryant, CCLA's executive director and general counsel, said retailers should get consent before checking receipts or bags. And if no consent is provided, he said, customers are under no obligation to comply.
"Their right is to say, 'Thanks, but no thanks,' and walk away," said Bryant.
"Some people feel strongly about their privacy and, in fact, the way our laws work, that privacy and liberty is protected."
In a 2016 ruling on a case involving a suspected shoplifter, an Ontario Superior Court judge wrote that a retailer can detain a suspect if there are reasonable grounds, but — even then — it would have to get consent to do a search.
Walmart didn't directly address questions from CBC News about customers' rights including what happens if shoppers refuse receipt checks. The retail giant also didn't say if it has stepped up its security checks.
"To assist in our efforts to manage costs and offer everyday low prices, customers may be asked to show their receipts as they exit our store to ensure the checkout process went smoothly," said Walmart Canada spokesperson Adam Grachnik in an email.
CBC News interviewed several customers who said they weren't "asked," and instead felt pressured to comply.
Paula Fletcher of Renfrew County, Ont., said that in August, a Walmart employee watched as she scanned her groceries at self-checkout, and then insisted on inspecting her receipt and shopping bag.
"She did not make it an option," said Fletcher.
"I don't like being treated as a criminal," she said. "If they don't trust us, they shouldn't have self-checkout."
Walmart's recent addition of self-checkout machines appears to be a driving force behind receipt checks. In response to customer complaints on social media, the retailer has replied repeatedly that it's doing the checks to ensure the self-checkout process "went smoothly" and that all items have been scanned.
Studies suggest that stores adding self-checkouts can experience more theft because thieves believe the risk of getting caught not scanning items is low.
Amy Fraser of Sydney Mines, N.S., said she has experienced frequent receipt and occasional shopping bag inspections in the past five months at Walmart, both after using self-checkout and checking out with a cashier.
She said she reached her limit last month when a Walmart employee demanded to check her receipt, just as she prepared to feed her baby before exiting.
"He's like pouncing, 'You have your receipt?'" said Fraser. "I just [felt] like walking out and being like, 'No, no, call the cops on me.'"
So what happens if a retailer calls the cops? Toronto security consultant James Reese said a retailer needs to have evidence of theft for police to take action.
"If they did not see you take something, they cannot come after you just for refusing to show your bags or receipt," he said.
In the 2016 case involving the suspected shoplifter, the judge also wrote that "if a store owner is mistaken and no theft has occurred, their detention of a customer makes them liable for … false imprisonment."
However, shoppers rejecting receipt checks do risk being banned from the store, said Reese.
"That's within the merchant's prerogative."
What about Costco?
Retail giant Costco also checks customers' receipts.
However, Costco customers are required to sign up for a membership, which means they may have provided consent — depending on how clearly the rules are laid out, said CCLA's Bryant.
"They need to tell people about it."
Costco didn't reply to requests for comment, but CBC News found its policy on its website in the "membership conditions" section. It says customers are required to show receipts to ensure that "you have been properly charged for your purchases" and to maintain accurate inventory control.
At Walmart, there's no membership requirement and customers interviewed said they saw no in-store warnings that they'd be checked.
Last week, CBC News did discover signs at several Toronto-area Walmarts which stated, "Please have Receipt ready for Proof of Purchase." But a Toronto criminal lawyer argues that's not good enough.
"Just because there's a sign doesn't mean that someone's read it or understood it," said Anthony Moustacalis.
"Consent does need to be fully informed," he said. "That generally means that you need to know that you have a right to refuse."
There's no question that shoplifting is a problem for retailers, especially when it comes to self-checkout. But retailers still need to play by the rules, even when tackling emerging technologies, said Bryant.
"New technology should never mean giving up your rights."
As Published in:
CBC News
Full Article:
https://www.cbc.ca/news/business/walmart-receipt-check-costco-1.5355527
Ontario to hire more judges, prosecutors to tackle trial delays
Ontario has announced the biggest expansion of its criminal-justice system in more than two decades, two weeks after a judge scrapped a first-degree-murder charge because the accused had spent four years in jail waiting for his trial to be completed.
The expansion is an attempt to meet new Supreme Court deadlines for timely trials. Ontario Attorney-General Yasir Naqvi said on Thursday the province's criminal courts are "bottle-necked" and there is no "sugar-coating" the challenge facing them.
The government will add 13 judges, 32 prosecutors, 16 duty counsel serving accused people and 26 court staff. It also announced several measures aimed at improving its bail system and ensuring low-risk people do not languish behind bars until their trial is completed. The price for the expansion and bail changes is $25-million a year.
The last time additional prosecutors were hired for courtroom work was for a guns and gangs unit in 2007; a few new prosecutors were also brought in for regional projects such as one for combatting sexual violence, said Kate Matthews, president of the Ontario Crown Attorneys Association. Apart from those examples, "we have not had a single extra trial Crown in Ontario for more than 15 years. Last year, we were concerned about how we would stave off lay-offs. There was a palpable feeling of despair amongst prosecutors."
The previous major infusion of prosecutors was in 1990, after a Supreme Court ruling in a case known as R. v Askov caused thousands of criminal charges to be thrown out for unreasonable delay, she said. The court set timelines, but then made them flexible and delays grew again.
Last month, an Ottawa judge stayed a murder charge against Adam Picard in the shooting death of 28-year-old construction worker Fouad Nayel. Proceedings had lasted nearly four years and the judge said the delay violated the defendant's right to timely justice.
A month earlier, an Alberta judge threw out a charge of first-degree murder over a five-year delay. Alberta has not added new judges or prosecutors since that ruling, although it created 10 new spots for judges on its superior courts – which the federal government has to fill. Ottawa has not yet done so.
Alberta's prosecution service has begun a "triage" process to give priority to cases of serious violence. The province has also expanded legal-aid funding.
In July, the Supreme Court of Canada, in a case called R v. Jordan, set time limits of 18 months in provincial court and 30 months in superior court, from charge to completion, except in exceptional circumstances. While they do not directly apply to cases already in the system, they have rung alarm bells throughout the country; in jurisdictions such as Nova Scotia, homicide cases routinely take longer than 30 months. The Supreme Court's majority said its previous flexible guidelines led to a "culture of complacency."
Rick Woodburn, president of the Canadian Association of Crown Counsel, said he hopes other provinces will follow Ontario's lead. Newfoundland and Labrador has added three prosecutors, he said. "Hopefully, it will catch on across the country," the Halifax-based prosecutor said in an interview.
The Ontario government said it will expand its bail verification and supervision program to the entire province. The program aims at supporting low-risk individuals who may not have anyone in the community to supervise them. Currently, it operates in about half of the province.
Anthony Moustacalis, president of the Criminal Lawyers Association, praised the bail changes as a "very helpful step in moving on what has been a three- or four-year project to reduce the number of people in pretrial custody."
The government also said it will set up a supervised housing program for low-risk individuals in five Ontario communities, make duty counsel available for bail hearings at six correctional facilities and create special supports for indigenous people in the bail and remand process. Mr. Naqvi also appointed former chief justice Brian Lennox, former deputy attorney-general Murray Segal and deputy Crown attorney Lori Montague to advise him on further bail improvements.
Across Canada, more people in provincial jails are waiting for trial than have been convicted.
The government will "embed" Crown attorneys at two police stations, including Toronto's downtown 51 division, beginning next month.
As Published in:
The Globe & Mail
Full Article: