Law Times

www.lawtimesnews.com Page 8 February 4, 2008 / Law Times Holster the Taser and get back to old-time policing W e do not have the death penalty in Canada, and yet the news has been clotted with the deaths of people in custody. In Ontario, the role of a defence lawyer is limited when it comes to curtailing excessive police powers. Part of that is because of the insurance scheme for lawyers in Ontario (defence counsel pay the lowest fees if they undertake not to take any civil cases) and part of it stems from the now-historical excising of most civil matters from the Ontario Legal Aid Plan. The defence can argue the violation of their client's rights in the context of an application to exclude evidence. If the violation occurred in some way that did not result in the obtaining of evidence, then Charter relief is unlikely. If, for example, the client has trashed his jail cell after being held too long, counsel can ask to have the mischief charge stayed or the evidence excluded. But if the client was not brought before a justice of the peace within 24 hours and merely mouldered in his cell without making a statement, the defence is hard- pressed to get a remedy other than a couple of days off any sentence. I recently had a case of 'riding a bicycle while black.' My client had made a rolling stop through a stop sign late at night. His bicycle light had fallen forward and was off. One officer told another to "grab" or "stop" him, and by the time that the first officer had arrived, the second had arrested my client. Ultimately, my client faced multiple charges under the Criminal Code (obstruction, resisting arrest, possession of spiked wristbands, and causing a disturbance) and the Highway Traffic Act, even though the first officer testified that he had been considering giving him a warning. Multiple police cars arrived. We wound up in Superior Court, where all of the evidence, fortunately for my client, was excluded, including the real evidence of the wristbands. Another situation we see is that of clients who have some injury as a result of their arrest. I had one client whose hands were numb and tingling for a long period after he was cuffed with the plastic handcuffs duirng his arrest for drinking and driving. He had not been difficult. He had no record. He could manage — barely — to pay for a criminal lawyer, but not for a civil litigator. He was a barber. One client with a really lengthy record was pistol-whipped in the back of a police car while cuffed. I contacted the OPP in Long Sault to request an investigation and referred the civil matter to Lawrence Greenspon. The Ottawa police officer was charged and convicted but still works for the force. The client has a scar on his face but received a satisfactory settlement. When a private investigation is possible — and Legal Aid will generally issue some funds for that — the defence is on better footing. An old client of mine was forcibly arrested for fraud while leaving a friend's building. The police were doing "static surveillance." He had a small amount of cocaine on him. The apartment he had left was entered, without a warrant, and a gun pulled on the young woman inside. The Crown considered my photographs of the client's injuries, witness statements, and withdrew the cocaine charge. To obtain justice for these people takes some creativity, or a well-placed referral. Seeing the physical signs of a forceful arrest on a client is disturbing. Without video footage or an independent witness, a remedy is unlikely. The candour of the first officer, in the case that I cited above involving the bicyclist, won the day for my client. But I started this article with the Taser ("Thomas A. Swift's Electric Rifle"). A Taser was actually drawn on that bicyclist during the melee that followed. He is lucky to be alive. A Taser might be used in a life-threatening case but never for convenience. Now that we know how dangerous the Taser is, with multiple inquiries underway, why don't we just go back to old-time policing? And given that we don't have the death penalty, why don't we ban the Taser? Rosalind Conway practises criminal law in Ottawa. She can be reached at rosalind.conway@magma.ca COMMENT 1235 Bay Street, Suite 800 Toronto, Ontario M5R 3K4 Tel: (416) 921-1700 • Fax (416) 921-8936 www.nzgfamlaw.com Practice restricted to Family Law Barristers LLP A Criminal Mind By Rosalind Conway LT Criticisms aren't novel The Supreme Court of Canada has said that, under the Charter, "reputation" was a value equivalent to that of freedom of expression, since it is "closely related to the in- nate worthiness and dignity of the individual." More discerning crit- ics have questioned this observa- tion. Lawyers and public relations experts can purchase reputations at a price; character is a trait that has to be earned. As one pundit put it, "Many a man's reputation would not know his character if they met on the street." To pierce the fog of reputation in order to reveal the essence of a person's character is the very role of investi- gative journalism, and that is why the rule formulated by the court and supported by the association was so disappointing. None of these criticisms are novel. They have been said before much more eloquently by oth- ers and can be found in my text on The Law of Defamation in Canada. Of course, counsel for the media did not refer to the text in their facta, even though in 1994 a recommendation for reform in precisely the terms argued by the media defendants was inserted in the text. Nor did the appeal court ad- dress any of these matters. It is not that the court was unfamiliar with the text (it was), or that no other Canadian texts on defama- tion were consulted or cited (they were). It is not that these criticisms are necessarily right; it is just that in the most important decision made by a provincial appellate court affecting the liability of the media, a number of important considerations were overlooked or ignored by the court. A perceptive critic once com- pared the law of defamation to the anecdotal description of the design of a camel: "An ungainly child of compromises." The Court of Appeal has added another ugly hump to the camel, and the asso- ciation provided the design. Who is guarding the hen- house? Professor Raymond Brown is the author of The Law of Defamation in Canada. His email address is reb1649@hotmail.com Federal Pension Legislation Consulting Editor: Susan G. 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For a 30-day, no-risk evaluation call: 1 800 263 2037 or 1 800 263 3269 www.canadalawbook.ca LT1105 Pension Titles Col 1/30/08 9:44 AM Page 1 Continued from page 7 LT *Pages 1-20.indd 8 1/31/08 6:56:18 PM

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