Law Times

Law Times • November 16, 2009 COMMENT Anti-gun folks down, but battle not over that approved in principle the abolition of the national gun registry. The move was pre- dictable but still unexpected. The vote was 164-137 to abolish the reg- T istry. Twelve New Democrats voted with the Conservatives. That was a surprise. So did eight Liberals. That, too, was unexpected. Now it goes to commit- tee. All it can debate are the details of the legislation, not whether or not it should be scrapped. Details? Well, that's where the devil resides. It's not over yet. The anti-gun people promise they will be back. They will regroup and try again. The pro-gun folks will be ready, too, with their unregistered firearms. The anti-gun MPs may try to talk the leg- islation to death in committee so it doesn't pass third reading and dies automatically when the next election is called. In that scenario, Prime Minister Stephen Harper would be able to tell his pro-guns fans that he did the best he could and still count on their votes in the election. Even if the legislation passes the Com- mons, it still has to pass the Senate. That takes forever sometimes. That's unless Harp- er stacks the Senate with appointed friends and party members to speed up passage. In the last 10 months, he's appointed 27 non-elected senators, something he prom- ised he would never do. But sometimes in life we have to break our promises, especially when one is a politician. Harper needs just 10 to 12 more sena- tors, depending on how many resign, retire or die between now and the next election, to get his agenda through. But in doing so, Harper will face oppo- sition from Quebeckers. They've been very anti-gun ever since 1989 when Marc Lépine went on a shooting spree and slaughtered 14 young women at the Ecole Polytechnique in Montreal. That's the place where they train women as engineers, a profession Lépine be- lieved should be a man's domain. A Harris/Decima poll last week showed Quebeckers still support the gun registry with about 56 per cent of people there want- ing to keep it. Ontario was evenly split. In every other province, the poll showed people want to abolish the registry, mostly because they think it costs too much. The poll showed an urban-rural split on the issue. People who live away from the city are more likely to be against the gun registry. Canada has a higher rate of violent crime in rural areas than it does in urban areas. That's a rarity among developed countries. Police, Letters to the Editor WARSHAK ON PARENTAL ALIENATION I appreciate Law Times' coverage of the important issue of parental alienation and want to clarify a few points about my work and opinions following your Nov. 9 article "Judge reverses parental alienation ruling." 1. The arbitrator's finding that the chil- dren in S.G.B. v. S.J.L. are irratio- nally alienated from their mother is not based on my report. I made it clear in my testimony that I hadn't evaluated the children. 2. Not only has my work been submit- ted for peer review, it has passed a rigorous and thorough process of such review by a panel of experts in the field. Some of my work has been published by the American Bar As- sociation and the Texas Bar Associa- tion. 3. The fee for the Family Bridges work- shop ranges from $5,000 to $20,000. In most cases, the workshop fee equals the expense of approximately he anti-gun lobby took a hard hit this month. It lost a big vote in the Commons however, are big fans of the gun registry. They use it all the time to check up on peo- ple — about 8,000 times a day. They don't just look up convicted crimi- nals. They also check up on folks who seem like nice, decent, and upstanding people un- til the registry shows them to have an arsenal of weapons tucked away in the barn. On Nov. 4, the day the registry abolition The Hill By Richard Cleroux bill passed second reading, up in the pub- lic galleries sat anti-gun advocate Wendy Cukier along with other support- ers of the Coalition for Gun Control. She was surprised, shocked in fact, that the vote was so deci- sive. She was aghast. "It wasn't even close," she said later on the ra- dio. "We lost an important fight for public safety today." Cukier vowed to mobilize police to help fight for gun control. There are also a lot of women with her who have a thing against guns. Even in rural areas, they are for the registry. Rifles and shotguns are the weapons of choice for killing women in Canada. In other countries, it's revolvers or handguns, but since 1934, Canadians have had to reg- ister those weapons. As a result, there are a lot less of them around. A possible resolution to the issue, how- ever, would be the compromise that Mis- sissauga Liberal MP Albina Guarnieri first tossed around when then-justice minister Allan Rock was launching his gun registry. Guarnieri suggested reducing the penalty for failing to register a rifle or shotgun from the current indictable offence under the Criminal Code to a simple violation punish- able by a fine, something like $5,000. What a nice way to assuage gun owners who don't like being called criminals for not registering their weapons. Their feelings count, too. They pay taxes like other people. For them, criminals are bad guys they want to protect us from, not decent folks like themselves. Still, there could yet be another solution to save the gun registry while keeping police happier and a little safer in their daily work. Quebec Premier Jean Charest is mulling over the idea of the provincial government taking over the national registry rather than have the Conservatives throw it in the gar- bage can. But be careful, Jean. Such a move would require re-entering all the informa- tion in the registry into French. If you think $13 million a year to keep it up to date is a lot of money, then try $13 million plus the cost of translation. LT Richard Cleroux is a freelance reporter and col- umnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. PAGE 7 Time to kill Mr. Big? T BY JAMES MORTON For Law Times he criminal justice sys- tem exists to convict and punish the guilty. But convicting the innocent creates two failures: someone is unjustly punished and, almost as importantly, a criminal goes free. Such wrongful conviction cases have become all too famil- iar in Canada. The cases of Don- ald Marshall Jr., David Milgaard, and Erin Walsh have all shown the fallibility of Ca- nadian justice. The Kyle Unger case is just the latest example of an innocent man freed af- ter a wrongful conviction and years in prison. He was con- victed of the brutal sex slaying of a teenager at a rock concert, a killing that now seems likely to have been committed by some- one who told the RCMP Unger was the culprit. What went wrong? How could the courts convict the wrong man? There was some mischaracter- ized physical evidence; for exam- ple, a hair supposed to be from Unger wasn't his. But that evi- dence wasn't enough to drive the wrongful conviction. As Manito- ba Justice Minister Dave Chomi- ak said, "all the other available evidence would not have sent him to jail." What convicted Unger was a confession that, in hindsight, was clearly false and one police obtained in a highly question- able fashion. That's where the problem aris- es. Unger's confession was the re- sult of a notorious investigative method, the Mr. Big technique. In a Mr. Big operation, un- dercover police pretend to be members of a criminal gang. They befriend a suspect, whom they offer to let join the gang by promising enticements such as money, drugs or sex. Eventu- ally, they introduce the suspect to the fake head of the supposed gang, Mr. Big. Mr. Big then de- mands a confession to some seri- ous crime in order to prove the suspect is worthy of joining the gang. That's where the confes- sion comes in. In Unger's case, the technique led to the evidence 64 hours of professional time, not including after-care services when needed. This is comparable to a course of twice-weekly counselling sessions for seven months. 4. The quote attributed to me regarding parental alienation syndrome is tak- en from an article I wrote that, in the course of reviewing various concep- tualizations of this problem, defined how others use that term. The term I use to denote children who suffer unreasonable aversion to a parent is pathological alienation, and I recog- nize that multiple factors contribute to this problem. Richard A. Warshak, author and psychologist, Dallas, Texas www.lawtimesnews.com Speaker's Corner people who are bragging. With- out some corroboration, such as information that only the real killer would know, they are next to worthless. Obviously, it's easy to blame people like Unger for making a false confession as he was trying to join a criminal gang. But even if there is some fault on Unger, the Mr. Big technique allows the real criminal to escape justice and, perhaps, to kill again. Moreover, confessions, no matter how they come about, receive great weight even by ed- ucated people. I teach a course on evidence at Osgoode Hall Law School, where almost ev- ery year students, on hearing some confessions aren't admis- sible, say they can't even imagine that they're false. But the effect of letting a jury hear a confes- sion is overwhelming. If it's false, a wrongful conviction is very possible. Police must have the freedom to use a broad range of investi- gative techniques. Mr. Big is one that can work but only where it leads to hard evidence directly linking the suspect to the crime. Standing alone, Mr. Big is closer to a Mr. Zero. It leads to unreli- able and misleading confessions and shouldn't be allowed in Canadian courts. LT James Morton is a lawyer with Steinberg Morton Hope & Is- rael LLP and a past president of the Ontario Bar Association who teaches evidence at Osgoode Hall Law School. LSUC SEEKS BALANCE: CEO Re: "Compromise could get street law- yer doing good works," Nov. 2, 2009. All Ontarians deserve access to jus- tice. The challenge for the Law Society of Upper Canada in the case described in your editorial is to find the appropri- ate balance between protecting the pub- lic while supporting lawyers providing pro bono services. The law society has facilitated options that achieve that balance. We cannot ignore our mandate to see that clients are protected when provided with legal services. Malcolm Heins, CEO, Law Society of Upper Canada that convicted him. The tactic is not considered entrapment because the police are neither committing crimes nor inducing the suspect to commit an offence. The right to silence doesn't come into play since police don't detain the suspect. Constitutionally, there is no reason to exclude the evi- dence of a Mr. Big confession. But such evidence can be un- reliable. Almost by definition, the confessions come from desperate

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