Kachkar is Found Not Criminally Responsible – What does this really mean?

Posted on March 27, 2013 by basigalawfirm

Richard Kachkar, who was accused of stealing a snow plow and killing Toronto Police Sergeant Ryan Russell, has been found Not Criminally Responsible for his actions by an Ontario jury – this, according to the Globe and Mail article that can be found at:

http://www.theglobeandmail.com/news/national/man-not-criminally-responsible-for-cops-death-as-feds-vow-crackdown/article10435954/

What, exactly does it mean to say that Mr. Kachkar is “not criminally responsible”?  According to s. 16(1) of The Criminal Code of Canada, a person is not criminally responsible “for an act committed…while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act…or of knowing that it was wrong.”  The onus of proving the mental disorder “is on the party that raises the issue.”  (s. 16(3) of The Criminal Code of Canada.)  A complete version of this section, and of the Code in general, can be found at:

http://laws-lois.justice.gc.ca/eng/acts/C-46/page-5.html#docCont

This has always been a very controversial section of the Criminal Code: on one hand, those who are against this provision, view it as nothing more than an “excuse” to justify horrendous criminal acts.  (See the previous post that cites Mayor Rob Ford’s comments as an example of this viewpoint.)  While on the other hand, those who are in favour of allowing Accuseds to plead “not criminally responsible” argue that placing the burden of proving the mental disorder upon the Accused is tantamount to forcing the Accused to prove him or herself “innocent”.  In any event, the defence of “mental disorder” or “not criminally responsible” is almost invariably met with chagrin.

So, having successfully pleaded this defence, does Mr. Kachkar get released?  No.  He is confined to a hospital or institution where he will be treated for his mental disorder, and will then be subjected to a hearing by a Review Board.  Pursuant to s. 672.47(1) of the Criminal Code, the Review Board initially has 45 days after the verdict of “not criminally responsible” to hold a hearing to determine if the Accused is a danger to society.  If the Review Board finds that the Accused continues to be a danger, the Accused can be held, arguably, indefinitely.  However, if the Review Board finds that the Accused is no longer a danger, the Review Board must discharge the Accused.

This is not to be confused with pleading that the Accused is not fit to stand trial.  Not only does that argument have its own set of rules and regulations, but the Review Board’s actions, in that case, are also different – in the case of “unfitness”, once the Review Board finds the Accused “fit”, the Accused is then remanded back into the Court’s jurisdiction and the Accused’s case begins anew.

Ultimately, while the media and the general public may jump to the conclusion that Mr. Kachkar is now a free man, the reality is vastly different than perception.

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Mayor Rob Ford Comments on Murder Trial

Posted on March 26, 2013 by basigalawfirm

As a lawyer, I try to keep my blog as free from my personal opinions as possible.  But, in today’s Globe and Mail, I read a story that outraged my sense of Justice:

http://www.theglobeandmail.com/news/toronto/mayor-rob-fords-radio-comments-on-murder-trial-criticized-by-defence-in-court/article10320669/

Mayor Rob Ford, who recently benefited by the impartiality of Canada’s justice system, had the audacity to criticize the defense of an accused in a murder trial.  According to the article, he is quoted as saying “One of our finest got killed.  Left behind a wife and a little son.  And we’re trying to find an excuse why this guy stole a…snow plow and killed a police officer…You can’t defend that…we’re trying to justify this?”

For those who have not been following the trial of Mr. Richard Kachkar, he is accused of stealing a snow plow and driving it into a police cruiser, where Police Sergeant Ryan Russell was killed.  The Defence has asked the jury to find Mr. Kachkar Not Criminally Responsible by reason of a Mental Disorder.

Without a shadow of a doubt, the death of a police officer, is a tragedy.  I even concede that seeking a verdict of Not Criminally Responsible by reason of a Mental Disorder, is highly controversial.  But, the tragedy of an officer’s death does not negate what the law has found to be a valid defence.  The beauty and the beast of the law is that it is unemotional and impartial – it does not give greater weight to one side over the other, nor should it be swayed by the randomness of emotion.  Whatever our personal proclivities may be, an impartial trier of fact is called to the much higher purpose of deciding cases based on evidence, not emotion.

It would seem, however, that this higher purpose is completely lost upon Mayor Ford.  While Canada’s judiciary suffered Mayor Ford’s high praises when he was on trial, that same judiciary is now the target of this former-accused’s criticisms.  Apparently, it is ever so easy for Mayor Ford to quickly forget that he was the beneficiary of an impartial judiciary, and even easier for him to play on the emotional content of this trial.

I cannot and will not comment on the murder trial itself – I am not a member of that jury nor was I privy to the facts or evidence of that case.  My outrage is directed solely at, what I view, to be the hypocrisy of a man who should consider the weight of his words:  Mayor Rob Ford.

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100 Car Pile-Up in Alberta; One Driver Criminally Charged

Posted on March 22, 2013 by basigalawfirm

Although I live and practice in London, ON, I am originally from Edmonton, AB.  So, with a tragic sense of shock and awe, I read about the 100 car pile-up on Highway 2 near my hometown of Edmonton, AB.  According to an article in today’s National Post, a young woman and two children were killed with many others suffering from a range of injuries.  The full article can be found at:

http://news.nationalpost.com/2013/03/22/three-dead-hundreds-injured-after-a-day-of-extreme-weather-around-edmonton-area/

According to this article, the multiple-car crash was caused by a head-on collision between a compact car (carrying the deceased) and a truck driver, who is now facing criminal charges.  Among those criminal charges is the “Dangerous operation of motor vehicles…causing death.”  (Section 249(2) of the Criminal Code of Canada).  If convicted of this charge, the truck driver could be facing up to 14 years of imprisonment.

Searching through other news articles, I could not find many more details other than what was reported by the National Post article.  All of the articles, however, repeated the official warnings to stay off of the roads unless absolutely necessary.

From London, ON to all of my fellow Albertans: be safe, stay warm, and stay home if you can.

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Should London, ON hire an Integrity Commissioner?

Posted on March 21, 2013 by basigalawfirm

According to an article yesterday’s London Free Press, the controversial question of whether or not London should hire an Integrity Commissioner, was presented to The Urban League of London.  The full article can be found at:

http://www.lfpress.com/2013/03/20/integrity-commissioner-the-hot-topic-at-urban-league-of-london-meeting

So, what, exactly does an Integrity Commissioner do?  Succinctly put, the Integrity Commissioner would oversee London City Counsel to ensure that its officials comply with the municipal code of conduct.  The Commissioner would have the power to issue sanctions against offending officials in order to enforce that code of conduct.  Given the recent issues facing Mayor Joe Fontana, as well as the London City Counsel in general, it is no surprise that the topic of ethics and integrity are coming to the forefront.  

As lawyers, ethics and codes of conduct permeate virtually every facet of our profession.  No doubt, we have all enjoyed the “ribbing” of a good “lawyer joke”.  In fact, I know of very few other professions that bear the brunt of so many cynical, but yet, very funny, remarks.  That being said, lawyers in every jurisdiction are bound by some form of ethical code of conduct: in Ontario, the Law Society of Upper Canada enforces the rules of Professional Conduct; in Michigan and Illinois, the respective State Bars play identical roles in enforcing their rules of Professional Conduct.  Whether it is a Law Society or State Bar, these organizations have the necessary power and have developed the requisite procedures to ensure that its members comply with these rules.

As far as the City of London is concerned, an argument can certainly be made that her local politicians answer to her citizenry, and that an independent commissioner is unnecessarily redundant.  But, the response that London’s citizens are only able to take indirect action and are only able to act at election times, is equally as compelling.  Given recent history surrounding the members of the London City Counsel, as well as the scathing number of complaints and declining level of confidence, perhaps hiring an Integrity Commissioner on a temporary basis, may not be such a bad idea?

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Police crack down with 218 charges | Local | News | The London Free Press

Posted on March 19, 2013 by basigalawfirm

Police crack down with 218 charges | Local | News | The London Free Press.

As of May 22, 2012, the City of London’s “Nuisance Law” came into effect.  The public policy driving this new law was to prevent a re-occurrence of the Fleming Drive riots that took place during last year’s St. Patrick’s Day celebrations.  Essentially, the bylaw seems to prohibit large parties where alcohol is involved; specifically, the new bylaw prohibits “nuisance parties” which are defined as:

“a social gathering on Premises within the Municipality and which, by reason of the conduct of the persons in attendance, results in any one or more of the following activities occurring so as to constitute a public nuisance whether occurring on neighbouring public or private property:
(a) disorderly conduct;
(b) public drunkenness or public intoxication;
(c) the unlawful sale, furnishing, or distribution of alcoholic beverages or controlled substances;
(d) the deposit of refuse on public or private property;
(e) damage to or destruction of public or private property;
(f) pedestrian traffic, vehicular traffic, or illegal parking that obstructs the free flow of traffic or could interfere with the ability to provide emergency services;
(g) unreasonable noise, including loud music or shouting;
(h) unlawful open burning or fireworks;
(i) public disturbances, including public brawls or public fights;
(j) outdoor public urination or defecation;”

The full bylaw itself can be downloaded from:

Click to access public_nuisance.pdf

According to an article in the London Free Press (the link can be found at the top of this posting), the London Police Service enforced this new bylaw at least nine times on Sunday. According to the bylaw itself, under section 8, the fines could range from a minimum of $500 to a maximum of $10,000!

As of the writing of this post, I do not know of any case that has issued a legal challenge to this new bylaw. However, with the potential fines nearing the 5-digit mark, and with nine potential cases under this new bylaw, that challenge may be forthcoming.

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Canadians can make “Citizen’s Arrests”! But be warned…

Posted on March 12, 2013 by basigalawfirm

As of March 11, 2013, the new changes to the Criminal Code of Canada went into effect, pursuant to the new Citizen’s Arrest and Self Defence Act.  Previously, Canadians did have the right to make a citizen’s arrest, but only in circumstances where the perpetrator was “in the process” of committing a crime.  One of the most important changes that came about was to Subsection 492(2), which now includes:

“(2) The owner or a person in lawful possession of property…may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and…(b) they make the arrest within a reasonable time after the offence is committee and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.”

However, despite these broader permissions, those who think to avail themselves of this law, should read the Department of Justice’s “Backgrounder” about this precarious right.  Readers can find this document online at: http://www.justice.gc.ca/eng/news-nouv/nr-cp/2013/doc_32865.html.  The DoJ’s publication speaks to making a citizen’s arrest under Self-Defence and Defence of Property situations, but it also consistently warns that there must be “reasonable grounds” for the citizen’s arrest.  What are “reasonable grounds”, readers may ask?  That depends on the circumstances of each case, which are evaluated by law enforcement officials.  The DoJ issued a more detailed “checklist” that can be found at: http://www.justice.gc.ca/eng/dept-min/wyntk.html.  Again, I strongly urge everyone to read through this very, very carefully.

As a practising lawyer, I cannot stress enough the importance of reading and heeding to DoJ’s warnings.  If a citizen improperly arrests another under this law, the civil, and even criminal, ramifications will be extraordinarily severe.  Everyday citizens are not trained to make judgment calls on arrests, nor are they trained on the proper procedure for doing so.  A judgment error has led to serious consequences for some police officers – I would hate to imagine the extent of those consequences for private citizens!

So, yes, the new law grants citizens a broader scope in which to make citizen’s arrests, but this is not something that I would readily recommend to anyone.

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Sarah Thompson vs. Rob Ford – Sexual Assault or Borderline Defamation?

Posted on March 11, 2013 by basigalawfirm

As reported by the National Post over these past few days, Ms. Sarah Thompson has accused Mr. Rob Ford of sexual assault.  One of the several articles can be found at the following:

http://news.nationalpost.com/2013/03/11/its-a-waste-of-time-sarah-thomson-on-why-she-wont-tell-police-about-rob-ford-incident/

In this latest article, Thompson stated that she is not going to seek criminal charges against Ford.

Whether she seeks an investigation into this, is for her to decide.  However, I wonder if this accusation comes too close to civil defamation.  Defamation, in Canada, is essentially “a communication about a person that tends to hurt the person’s reputation…The statement must be false to be classified as defamation.” (http://www.cba.org/bc/public_media/rights/240.aspx).  In one of more famous defamation cases, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, Mr. Hill was awarded $1.6 Million by the jury for the Church’s defamation of Mr. Hill.  Libel is the written form of defamation, while slander is spoken.  There are a limited number of defences; truth being the most obvious.  Claiming that the statement was made under some sort of privilege (e.g. a Parliamentary privilege, for example) or they were merely a personal opinion, may also be used as defences.

But, in this case, I genuinely question whether or not Ms. Thompson’s statements would fit into any range of the available defences.  Certainly, she could claim truth – but, as she conceded, this defence then becomes an issue of proof.  In other words, she would have to prove her claim to be true – that Mr. Ford did, in fact, touch her behind during a photoshoot.

The moral of this story is simple: Freedom of Speech may be a constitutional right, but, like all rights, it comes with the price of responsibility.

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