The “defence did not call any of its own evidence”

That’s the subhed to the CBC’s online story about Raymond Cormier’s acquittal on charges of murdering 15 year-old Tina Fontaine:

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The trial, which began on Jan. 29, was originally scheduled to last five weeks, but the Crown rested its case after presenting evidence over the course of 12 days, and the defence did not call any of its own evidence.

In a criminal matter, the accused doesn’t necessarily have to call any evidence in his own defence.  For most charges – including murder – the burden of proof lies completely with the Crown, and it’s not enough to show that the accused probably did it.  Nothing less than proof beyond a reasonable doubt is required.

In this case, it certainly appears that the evidence – including conclusive proof that this young girl was actually murdered – simply wasn’t there:

The Crown had no forensic evidence or eyewitnesses directly linking Cormier to Tina’s death, and the cause of her death remains undetermined.

Instead, the Crown’s largely circumstantial case relied on secretly recorded statements made by Cormier, along with testimony from witnesses who said they saw Cormier and Tina together in the days before she disappeared from the Best Western Charterhouse hotel in downtown Winnipeg on Aug. 8, 2014.

The Crown had no forensic evidence or eyewitnesses directly linking Cormier to Tina’s death, and the cause of her death remains undetermined.

Instead, the Crown’s largely circumstantial case relied on secretly recorded statements made by Cormier, along with testimony from witnesses who said they saw Cormier and Tina together in the days before she disappeared from the Best Western Charterhouse hotel in downtown Winnipeg on Aug. 8, 2014.

[…]

Cormier’s defence lawyers, Tony Kavanagh and Andrew Synyshyn, challenged that evidence, arguing the Crown’s case was built on inferences made from recordings that are difficult to hear.

First, with no cause of death, Kavanagh argued in his closing remarks that the jury cannot know for certain that Tina died as a result of an unlawful act, and Cormier should be acquitted “on that alone.”

They argued those statements allegedly made by Cormier in transcripts prepared by police could not be verified by listening to the audio recordings and pointed out that at no point in the transcripts did Cormier admit to the killing.

Even if the jurors accept the accuracy of the words written in police transcripts, defence lawyer Kavanagh argued that rather than admissions of guilt, Cormier’s words should be interpreted as those of a man who feels guilty for not doing more to help Tina.

“That is the guilt that is eating him,” Kavanagh said.

They also challenged the memories of witnesses who said they saw Cormier with the duvet cover and suggested there are other potential suspects who might have harmed Tina.

“We say that justice for Tina Fontaine does not result in an injustice for Raymond Cormier,” Kavanagh said.

Coming so soon after the Gerald Stanley case – another in which a white man was acquitted of killing a young First Nations person – the anger over Cormier’s acquittal is already trending on social media.  For me, the real question is whether a defendant of aboriginal descent, charged with murdering a young white person, would have received the same same benefit of the doubt.

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Obnoxiousness isn’t always a crime

The skeet who yelled a sexist meme at NTV reporter Heather Gillis during a live shoot has been acquitted of criminal charges:

A provincial court judge in St. John’s has ruled it could be illegal to shout a sexist slur at female reporters, but not in the case of what happened to NTV reporter Heather Gillis last year outside the city dump.

It was never a question of whether Justin Penton hurled the words at Gillis while she was interviewing St. John’s Mayor Danny Breen at the Robin Hood Bay waste management facility in April 2017. The issue for the judge was whether or not it constituted a crime in that context.

Gillis reported she was “humiliated, embarrassed and disgusted” by the comments. Breen said it made him uncomfortable.

But Judge Colin Flynn ruled an emotional disturbance does not meet the criteria for a charge of disturbing the peace.

“Something more than emotional upset and a momentary interruption in a conversation is needed to constitute the criminal offence,” Flynn wrote in his decision.

[…]

Last April, Gillis had just finished interviewing Breen, who was a city councillor at the time, and was following up with a few off-camera questions. Penton drove by in his truck and yelled “F–k her in the p—y” on his way into the dump.

A lower court judge is bound by Supreme Court of Canada decisions, and in this case it appears that Judge Flynn is following the 1992 Lohnes decision.  He even suggested that Parliament could, and probably should, add “emotional disturbance” to the Criminal Code provisions regarding causing a disturbance.

Needless to say, the University of Twitter College of Law respectfully disagrees:

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Twitter is angry about a court decision.  Dog bites man.  But even many of Newfoundland’s blue-checkmarks are calling out the decision:

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Newfoundland’s media world is a small one, in which most local journalists know each other well, so it’s not surprising to see the province’s media personalities coming to the defense of a colleague.

But would so many reporters, commentators and entertainers be piling on this if it didn’t happen to someone from their own world?

Why I quit Twitter (first in a continuing series)

You know my feelings about American gun laws (or lack of same), but I would never publicly shame a young Parkland massacre survivor who disagreed with me.

I guess that makes me considerably less woke than Pennsylvania journalist John Latimer.

 

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Connecticut did something

The United States government has done nothing to curtail the availability of firearms after several mass shootings – on a federal level, at least.

The state of Connecticut did tighten its firearms laws after the Sandy Hook massacre in 2012, and it is getting results:

In the aftermath of the rampage at Sandy Hook Elementary School in Newtown, where 20 children and six educators were killed in 2012, state lawmakers in Connecticut set out to draft some of the toughest gun measures in the country.

They largely succeeded — significantly expanding an existing ban on the sale of assault weapons, prohibiting the sale of magazines with more than 10 rounds and requiring the registration of existing assault rifles and higher-capacity magazines. The state also required background checks for all firearms sales and created a registry of weapons offenders, including those accused of illegally possessing a firearm.

[…]

Analyses by the Giffords Law Center to Prevent Gun Violence show that, with few exceptions, states with the strictest gun-control measures, including California, Connecticut, New Jersey and New York, have the lowest rates of gun deaths, while those with the most lax laws like Alabama, Alaska and Louisiana, have the highest. The center is named for former Representative Gabrielle Giffords, a Democratic lawmaker from Arizona who suffered a serious brain injury in 2011 during a mass shooting in which she was the intended target.

After Connecticut’s General Assembly passed the package of gun laws, and Gov. Dannel P. Malloy, a Democrat, signed it into law, gun-related deaths started to drop. According to the chief medical examiner’s office in Connecticut, the number of deaths resulting from firearms — including homicides, suicides and accidents — fell to 164 in 2016, from 226 in 2012.

[…]

State officials say Connecticut has experienced the fastest drop in violent crime of any state over the last four years. Gun-control advocates say the suspect in Florida, Nikolas Cruz, could not have bought the AR-15-style semiautomatic rifle believed used in the attack, or the high-capacity magazines, in Connecticut.

Presidential and Congressional elections get all the attention, but voting at the State and even municipal level can often get more done.

A uniquely American problem

The United States is reeling from another deadly mass shooting – this time at a high school in Florida.  And as usual, everyone on social media has retreated into their corners, with gun-rights enthusiasts insisting that the prevalence of and easy access to firearms is not the reason for America’s high rates of gun-related crime.

If lax gun laws aren’t the problem, than the only orther explanation is that Americans are intrinsically more violent that their Canadian or European cousins.  But it turns out that, once you remove guns from the equation, they aren’t.

This report, which compares crime statistics from OECD countries, shows that in 2012 the United States had an intentional homicide rate of 5.0 per 100,000 population.  Canada’s homicide rate was 1.8, and most Western European countries were even lower.

For other criminal offences, though, the American rate was in line with that of other Western countries.  In 2012 its rate of reported rapes was just barely ahead of Britain, and far lower than that of Australia or Sweden:

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Robbery was less prevalent in the United States than in several European nations:

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The American assault rate was middle-of-the-pack:

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And their rate of vehicle theft was even lower than Canada’s:

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Assuming things haven’t changed dramatically since 2012 (and I don’t think the election of Trump would affected this that much) American crime rates aren’t unusually high – except for homicide, which is over three times more common than in Canada and almost five times more common than in England and Wales.

There are many things that can affect the homicide rate, but it is deeply dishonest to deliberately exclude how easy it is to obtain a gun in America.  If you can name another reason for why homicide but only homicide is so much more common in the United States, I’m all ears.

(Stats via @notwokieleaks, who almost makes Twitter worth reading.)

Politicians aren’t juries

Some criminal lawyers are taking issue with the Prime Minister’s response to the Colten Boushie verdict:

“Saying anything that amounts to commenting on the correctness of the verdict, to improve your public image or ensure an appropriate approval rating, should be criticized in Canada,” said Michael Lacy, a partner in the criminal law group Brauti Thorning Zibarras LLP in Toronto.

On Saturday, federal Justice Minister Jody Wilson-Raybould said in a tweet that Canada “can and must do better,” after a jury found Gerald Stanley not guilty of second-degree murder in the shooting death of Colten Boushie.Prime Minister Justin Trudeau also weighed in at a news conference in California, saying Canada has “come to this point as a country far too many times.”Edmonton-based criminal lawyer Tom Engel said when politicians, especially the justice minister, appear to criticize verdicts, the public may believe that future decisions by the courts are influenced by the remarks.
Lacy added that politicians “have no business at all” in commenting on the outcome of a trial. “It undermines the independence of the judicial branch,” he said in an email.

[…]

[Chris Murphy, a lawyer for the Boushie family] also took issue with the fact that Stanley, despite living in an area with a large indigenous population, was tried by an all-white jury. Stanley’s lawyer was able to use peremptory challenges to prevent any potential jurors who appeared indigenous from sitting in the final panel, Murphy said.

Engel said the case does raise questions about the diversity of a jury and how members are selected. He said politicians could use this an opportunity to look at how legislative changes can improve those processes, while steering clear of discussing the verdict.

Ironically, Trudeau’s remarks may have tainted a possible appeal by the Crown:

Members of the Liberal government also voiced their displeasure with the justice system, which Toronto-based criminal defence lawyer, Sean Robichaud, said could have serious ramifications.

“By commenting on a particular case, it may affect the ability for Crown to proceed with the case if an appeal is granted,” Robichaud said.

“By commenting on a particular case, it may affect the ability for Crown to proceed with the case if an appeal is granted,” Robichaud said.

[…]

Robichaud said any public comments from the prime minister or justice minister questioning the credibility of the judiciary pose a threat to Canada’s democratic system, especially a potential appeal process, as the courts should be equal to the legislature.

Trudeau hasn’t gone nearly as far as a certain other North American leader in attacking the judiciary, but it’s a road he shouldn’t even think about going down.

A Liberal bait-and-switch

Kelly McParland on the Trudeau government denying summer job grant money to organizations opposed to abortion:

The Liberals, in their determination to force their abortion views on those who may disagree, say organizations applying for grants to hire summer students must attest that their core mandate is in line with the government’s position on “reproductive rights.” They have to check off a box confirming their acquiescence, and can’t submit the application unless they do. In other words, any organization that has qualms about Canada’s lack of an abortion law, or the Trudeau government’s whole-hearted support for unfettered abortion at any stage of the birth process, need not apply.

[…]

Neither Trudeau or [employment minister Patty] Hajdu appear to understand that there is no wording in the Charter that offers a constitutional right to abortion. Nor is there anything in the law, since there is no abortion law in Canada. The Supreme Court’s 1988 ruling on abortion threw out the legislation that existed at the time, but left a vacuum in its wake, which no government has had the nerve to fill. Suggesting Canada has “hard won rights and freedoms” that protect the right to terminate unborn children is simply not true. What it has is a total lack of rules, and a public unwilling to confront the commotion that would surely arise from any effort to re-open the matter.

This allows people like Trudeau to pretend that Canada has undergone a fierce debate over the issue, and “pro-choice” emerged victorious. He seized on this falsehood in his remarks in Hamilton, in which he used the term “rights” three times to describe a situation in which no rights have been codified. Simply because pro-abortion organizations habitually refer to “a woman’s right to choose” doesn’t mean it exists; women in Canada have the ability to choose — simply because there is nothing to stop them — but that’s not the same as a right. In fact, the 1988 decision indicated that the mother’s rights should be balanced against the child’s. People and organizations can oppose abortion and still be respectable, law-abiding citizens. It’s not clear whether the Prime Minister understands this distinction, or prefers to ignore it in favour of a less honest approach.

What Trudeau’s government is doing is to treat Liberal policy and pro-choice dogma as equivalent to Charter protection. It reflects the innate Liberal conceit that party policy inherently reflects national opinion, that if Liberals believe something, it must be right and true.

The government says there’s a difference between organizations which just happen to oppose abortion, and those whose very reason for being is to oppose and protest it.  If they want to deny funding to the latter, I think the Trudeau government is perfectly within its rights to do so: there is no right to government money, and I don’t think a government is obligated to fund those whose very mandate is to oppose its policies.

In practice, however, the government is effectively making applicants swear allegiance to Liberal Party policy:

The new “attestation” on the grant application is aimed at anti-abortion groups who have received the federal grants in the past. It requires stating that your organization’s core mandate respects “reproductive rights,” along with other human rights, and the online application can’t be submitted unless the box is checked.

But hundreds of churches, charities, day camps and other religious organizations who hire students for summer programming are upset about the attestation, saying they feel like they’re being forced to sign a statement that goes against their beliefs.

“As a small Christian church that was planning to apply for the Canada Summer Jobs program to offer a summer internship, the recent changes have been quite a shock and disappointment,” said Brad Jones, the pastor at Woodgreen Presbyterian Church in Calgary.

If the form was designed by mistake, it should be easily fixed.  If it wasn’t designed by mistake, the government is saying one thing and doing another, and it’s at least as much of a “dog whistle” to its supporters about scary Christian right-wingers as anything the Harper government did regarding Muslims.

How the Bundy case was bungled

David French explains why a federal judge (an Obama appointee, at that) dismissed the government’s case against far-right activist Cliven Bundy, whose band of misfits was involved in a standoff with Bureau of Land Management officers in 2014:

In its indictment, the federal government claimed that Bundy used “deceit and deception” to recruit its allied “gunmen” to defend his cattle from government seizure. As Mother Jones’s Stephanie Mencimer outlined in a lengthy report on the case, the alleged deceptions included claims that officers abused David Bundy when they arrested him a few days before the standoff and claims that the Bureau of Land Management had surrounded his property with snipers. Here’s Mencimer:

But those claims, dismissed by the government as fiction by paranoid anti-government activists, have largely turned out to be true. And it’s taken the government nearly two years, and three trials, to admit as much in court.

Oops. As Mencimer notes, this information dribbled out over the course of the court proceedings, at least until Larry Wooten, a BLM special agent who worked on the Bundy case, wrote an explosive whistleblower memo outlining a truly stunning series of government misdeeds that went well beyond withholding evidence at the trial.  To be clear, Wooten is no fan of the Bundys. He rightly accused them of pursuing an “illegal, uncivilized, and dangerous strategy,” but the same words apply to the federal government — the alleged guardians of the rule of law.

[…]

Wooten also claimed that the special agent in charge “ignored” direction from U.S. attorneys and from BLM management and instead chose to command “the most intrusive, oppressive, large-scale, and militaristic trespass cattle impound possible.” Wooten also claimed there existed “excessive use of force, civil rights, and policy violations,” including deliberate efforts to withhold exculpatory evidence. Wooten not only accused the government of misrepresenting the truth about snipers at trial, he specifically described the snipers’ armament and positioning.

In her ruling dismissing the case, Judge Navarro noted that the government also withheld information about threat assessments indicating that the Bundys weren’t violent, documents showing that cattle grazing “hadn’t threatened the desert tortoise,” and hundreds of pages of internal-affairs documents about the special agent in charge. (BLM had fired him for, in part, “improperly using his position to get coveted tickets for friends to attend the Burning Man arts festival in 2015.”)

Taken together, the evidence demonstrates that sometimes the paranoid are correct. In this case, evidence shows that a federal agency motivated by ego, anger, and prejudice launched the most militaristic and aggressive campaign possible against a rancher whom federal officials had deemed to be likely peaceful. There is evidence they abused that rancher’s son, ringed his property with snipers, and intended to “kick [him] in the mouth and take his cattle.” Then, when it came time to prosecute that same rancher, they withheld the truth and portrayed his accurate claims about federal misconduct as criminal deceptions designed to inflame public outrage.

Federal judges do not dismiss federal prosecutions lightly, and Obama appointees are hardly known to carry water for right-wing militias. Moreover, Judge Navarro’s dismissal is in no way a vindication of Bundy’s tactics. His allies, after all, went so far as to put women in the front of the firing line with the express hope that they’d die first in any firefight — and embarrass the federal government in front of the world. Others pointed guns straight at federal officers. That’s not civil disobedience, that’s armed resistance, and it’s entirely inappropriate when — as we see here — the law still offered redress against violations of Bundy’s civil rights.

The judge, however, understood her legal obligations. Who is the greater threat to public peace and the rule of law? A rancher and his sons angry that the government is destroying his livelihood in part through political favoritism and vindictiveness? Or a government that acts as if might makes right, abuses its citizens, and uses maximum force when far less intrusion and risk would accomplish its lawful purposes?

More here.  Above the Law’s Elie Mystal, of course, thinks the Bundys got away with it because they were white:

You know, if I rallied hundreds of armed black people to my cause to protest paying a federal tax, intimidating federal agents who had duly come to collect, I wouldn’t be in jail. I’D BE DEAD. They’d send in a robot to blow up my house, even if my children were inside. Then, at my posthumous trial, they’d put my family on the hook for all my debts.

I am, of course, non-white. …

[…]

Prosecutors withheld the evidence gathered from some witnesses because (wait for it) BUNDY SUPPORTERS ALLEGEDLY THREATENED WITNESSES.

“As a result of threats to witnesses and the speed at which personal information can spread on social media, the government concluded it could not simply turn over its entire database,” prosecutors wrote in a brief before Monday’s hearing. “Failure to disclose the information underlying the court’s mistrial order was due, in a few instances, to simple inadvertence, but in the overwhelming majority of instances to a good-faith,” they said.

This is the part where I’m supposed to say “two wrongs don’t make a right,” or “don’t worry about what other people have, worry about what you have,” or “the operation of laws should always be praised,” or some other child’s platitude made up by white America to explain why white people are able to get away with gun-toting acts of violence that would result in an IMMEDIATE DEATH SENTENCE to any person of color.

But I don’t have it in me.

Do you know how much the justice system looks like a supremacist JOKE when you let these people take a walk? It is PROOF that there is one set of rules for white people, and a different set of rules for everybody else. These dudes are out here in armed rebellion. Let that happen in East L.A. and Trump would send in a motherjumping DRONE STRIKE.

Whatever. White people win, again. ‘Twas always thus.

Actually, the Judge – again, an Obama appointee, not a Roy Moore type – dismissed prosecutors’ claims that evidence had to be withheld to protect its witnesses.  Interesting, when people like Mistal choose to unquestioningly accept prosecutors’ word.

Still, we’ve seen far too many examples of African-Americans’ rights being disregarded, and their lives taken, by aggressive, overly militarized law enforcement officers.   You may not agree with all of the Black Lives Matter movement’s ideas and tactics (I certainly don’t) but no honest observer can deny the movement has very legitimate reasons for being.

But I wish people would look at cases like the Bundys and say these rights should be protected for the most vulnerable Americans, instead of being disregarded for everyone.

The do-it-yourself marriage that wasn’t

The National Post reports on an unusual case from my home province, in which a couple exchanged rings and started calling themselves husband and wife, but never officially got married.  When the relationship ended, Linda Dwyer argued that she was entitled to equal division of her ex-partner’s property, but a judge disagreed.

That ruling has now been upheld by the Newfoundland and Labrador Court of Appeal:

They took turns saying vows and exchanged rings. But there was no officiant; nor were there any witnesses. And they didn’t bother getting a formal marriage licence. Still, they held themselves out to family, friends and fellow church members as “husband” and “wife” for years.

When Bussey abruptly broke off the relationship in 2014, Dwyer felt she was entitled to a “division of matrimonial property,” like any other spouse. But Bussey disagreed, setting the stage for an acrimonious and novel legal battle over what constitutes “marriage.”

In a 2-1 decision late last month, a provincial appeal court upheld a lower court decision that said the retired couple — Dwyer is 65 and Bussey is 74 — did not meet the definition of a married couple or qualify as spouses.

“I was his wife to his family, friends and neighbourhood, and as far as I can see, I should have been recognized as his spouse,” Dwyer told the National Post.

[…]

…Newfoundland and Labrador Supreme Court Judge Jane Fitzpatrick sided with Bussey. In a June 2015 decision, she wrote: “Holding ceremonies yourself without a marriage licence, an officiant or witnesses and exchanging rings can only be recognized in this province as a common law union.”

Moving to a broader interpretation would only invite a “myriad of uncertainties,” the judge added, citing language used in an Ontario court case.

Dwyer appealed the decision.

In late November, an appeal court panel upheld the earlier decision in a 2-1 ruling. Creating an “ambiguous” intermediate class of people who are not legally married but still qualify as spouses would create too much uncertainty and lead to “needless, acrimonious litigation,” Judge Charles White wrote for the majority.

“The formalities of a legal marriage ensure clear evidence of the parties’ intentions.”

The full decision is here.  There was a dissenting opinion in the case, so an appeal to the Supreme Court of Canada remains a possibility.

For now, though, the law continues to draw a distinction between formal marriages and common-law relationships, at least where division of property is concerned.

A tattoo is not a legal document

According to a recent letter in the New England Journal of Medicinedoctors at Florida’s University of Miami Hospital had to decide whether an unconscious patient’s “Do Not Resuscitate” tattoo should be honored:

His anterior chest had a tattoo that read “Do Not Resuscitate,” accompanied by his presumed signature.  Because he presented without identification or family, the social work department was called to assist in contacting next of kin. All efforts at treating reversible causes of his decreased level of consciousness failed to produce a mental status adequate for discussing goals of care.

We initially decided not to honor the tattoo, invoking the principle of not choosing an irreversible path when faced with uncertainty. This decision left us conflicted owing to the patient’s extraordinary effort to make his presumed advance directive known; therefore, an ethics consultation was requested…

The doctors noted that “tattoos might represent permanent reminders of regretted decisions made while the person was intoxicated.”

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A few too many Duff beers, and this could happen to you.

The decision was subsequently reversed, however, with an ethics consultant determining that if the guy went so far as to get a tattoo reading “Do Not Resuscitate,” he really meant it.  And it turned out that he had filed a written directive confirming these instructions:

After reviewing the patient’s case, the ethics consultants advised us to honor the patient’s do not resuscitate (DNR) tattoo. They suggested that it was most reasonable to infer that the tattoo expressed an authentic preference, that what might be seen as caution could also be seen as standing on ceremony, and that the law is sometimes not nimble enough to support patient-centered care and respect for patients’ best interests. A DNR order was written. Subsequently, the social work department obtained a copy of his Florida Department of Health “out-of-hospital” DNR order, which was consistent with the tattoo. The patient’s clinical status deteriorated throughout the night, and he died without undergoing cardiopulmonary respiration or advanced airway management.

The physicians conclude, “this case report neither supports nor opposes the use of tattoos to express end-of-life wishes when the person is incapacitated.”

My own suggestion is that you draft (or have a lawyer prepare for you) a personal directive setting forth your wishes regarding treatment should you become incapacitated, and/or appointing a substitute decision-maker.  And make sure your close friends and family know where it is and what it says.