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October 19, 2015

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Page 2 OCTOBeR 19, 2015 • LaW TIMeS NEWS S.M. "What exactly is a police agent allowed to do?" asks Jason Rabinovitch, a Toronto defence lawyer. Nicholas Bala, a law professor at Queen's Uni- versity, says there have been cases in Canada where parents have been called to testify about statements made by their children. He's not aware of any other example where police have enlisted a father as an agent. "I found the police actions to be very trou- bling. Hopefully, the judge's ruling discourages this kind of investigation," says Bala. The court heard that S.M. was 15 when his fam- ily moved from Toronto to Bowmanville, Ont., in 2013. The teenager often looked after his 10-year-old brother while his mother was out of the house work- ing as well as the three much younger children of his half-sister. One of those children, a four-year-old boy, died in August 2013 as a result of multiple blunt- impact injuries. The child's mother was in Jamaica and S.M's mother was at work. Durham police enlist- ed S.M.'s father, referred to in the decision as M.F., as part of its investigation. The father has a long criminal record and very little past involvement with his son. He initially agreed to have his calls with the teen- ager intercepted. A few months later, the father en- tered into a formal agreement with police to be an agent. Durham police provided a scenario instruc- tion sheet as well as money for the father to buy his son gifts, such as Air Jordan shoes for a birthday present, along with meals and a rental car. They also gave him tips on how to build a rapport with his son. "In this case it is clear that the police were exploiting the parent/child relationship," wrote MacLean. Transcripts of the recorded meetings show that the father was repeatedly pushing his son to tell him what happened to the four-year-old boy. S.M. de- clined to do so, but he was adamant that his 10-year- old brother wasn't involved. (S.M. was unaware that the brother was the only other police suspect. After the brother testified in July of this year, the court was invited to find S.M. guilty of manslaughter. The sentencing proceeding is still ongoing). Rabinovitch says there were a number of factors that made the use of the father as a police agent improper. "The man- ner in which the father pushed for information was so overbearing, it was found to be an abuse," he says. At the same time, police also charged S.M.'s moth- er with failing to provide the necessities of life. S.M. was subject to a non-communication order with his mother at that time. "I found this to be particularly problematic," says Rabinovitch. The judge agreed and found that once police had charged the mother, the special rights to consult with a parent under the Youth Criminal Jus- tice Act meant S.M. could speak only to the person who was acting as a police agent. In ruling the statements inadmissible, MacLean also referred to the concurring decision last year of Supreme Court Justice Andromache Karakatsanis in R . v. Hart, a case that examined so-called Mr. Big stings by police. Karakatsanis stated that psychologi- cal manipulation by state agents harms not only sus- pects but also the integrity of the justice system. The use of a parent as a police agent calls out for possible legislative reform, says Rebecca Bromwich, a lawyer and professor with the department of law and legal studies at Carleton University. While there's an explicit right for a young person in detention to speak with a parent under the Youth Criminal Justice Act, "the roles and duties of parents are not always clear," says Bromwich. "To what extent should they be trusting police? It puts parents in a difficult spot," she adds. The case of S.M., who was 15 and took care of four young children for several hours a day, also raises questions about priorities around the use of public money, she suggests. "One of the issues here is child care," says Bromwich. LT REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT 8JUINPSFUIBOQBHFWJFXTBOEVOJRVF WJTJUPSTNPOUIMZDBOBEJBOMBXMJTUDPNDBQUVSFTZPVSNBSLFU FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at with an annual Gold or Silver Enhanced listing package. ENCHANCE YOUR LISTING TODAY! CLLweb_LT_Sep8_15.indd 1 2015-09-02 2:24 PM Use of father as agent found improper Continued from page 1 is an example of the government's disregard for the justice system in general. "My view is that this government has very little regard for its re- sponsibility in the administration of justice," he says. "This is just another further example. They've known about this problem for some period of time and they've not taken any steps, not even con- ceptual steps, to correct this." Brendan Crawley, a spokesman for the ministry, says the gov- ernment is now taking steps to correct the errors. "We are taking immediate action to address this discrepancy and are instituting additional processes to screen out any prospec- tive jurors who are ineligible because of this change," said Crawley. Crawley noted there are a number of steps in place to establish a jury and the questionnaire is only the first among them. When a court proceeding requires a jury, a jury panel is randomly selected from the jury roll for the local Superior Court of Justice location, Crawley explained. At that stage, an officer is authorized to ran- domly conduct criminal record checks on jury panel members. If any of them have convictions for an indictable or hybrid offence, their names are removed. "I can tell you that there are provisions in the Criminal Code and the Juries Act that anticipate this type of circumstance," said Crawley. "An oversight on eligibility or qualifications of jurors is not a ground for overturning a verdict." Bergman says that for recent jury trials, an objection during the proceedings would have to precede an appeal based on an improperly composed jury. "One of the questions would have to be was there ever any issue at the actual trial where this was raised and an objection was raised," he says. "If that was the case and the jurors remained on the jury panel, that is probably a more fruitful appeal. I suspect, though, if it's found out after the fact, there's not likely to be much success on appeal. I think the real way to cure this problem is not through the courts or even through an appeal route. The way to cure it is to clarify the form." Julianna Greenspan of Greenspan Partners LLP says she, too, would like to see simpler language in the forms. "Start removing complicated language that only a lawyer would understand," she says. "The forms are f lat-out wrong, and it will get fixed, but I doubt this [error] will cause a taint of juried trials. Still, what we want to make sure is that this does not happen again. . . . It shakes confidence. "If you're going to keep changing the Criminal Code, then you have to keep the jury questionnaire up to date as well and what we really need to know is where did this fail. My guess is we won't see anyone who sat on a jury who fits into this problem, but the core issue is the system became f lawed and now it needs to be fixed and that affects everybody." Greenspan says one issue with making a simpler form is that it might also mean that it needs to be longer, something that can also open the door to more errors. Hillier would also like to see changes. "When you look at what is in front of us on this issue, I think we can easily determine that they've made what should be a simple form into a very complicated and convoluted form," says Hillier. "The law, by and large, has become a very convoluted concept for the laypeople to understand, and I think that's why it becomes incumbent upon the ministry to start speaking clearly and with brevity but in being concise with what they are looking for from a juror." LT Continued from page 1 Eligibility oversight 'not a ground' to overturn Promote your law firm by ordering reprints of articles from the voice of the profession — Law Times! 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