Book review – “Tough Crimes: True Cases by Top Canadian Criminal Lawyers” by Christopher D. Evans and Lorene Shyba

[originally posted at Canadian Lawyer]
It’s the question every criminal lawyer has been asked more than any other (after “Why did it cost that much?”): “How can you defend a person you know to be guilty?” And my answer is always that it’s really not that hard, relatively speaking.
If I know or strongly suspect my client is guilty, I still believe the Crown must prove its case beyond a reasonable doubt, without relying on means that violate the Charter of Rights and Freedoms.If a person’s liberty is to be taken away by the state, we’d better be sure the state has made its case. That protects the rights of everyone, not just the accused.

But defending a person whom I believe to be innocent, now, that’s the kind of case that keeps me up at night. The innocent person’s freedom depends largely on my competence as a lawyer, this can be emotionally exhausting.

Marie Henein, a contributor to the absorbing compilation Tough Crimes: True Cases by Top Canadian Criminal Lawyers and who is now in the spotlight as Jian Ghomeshi’s counsel, feels the same way. Recounting her representation of former Ontario attorney general Michael Bryant when he faced a charge of dangerous driving causing death, she notes, “any lawyer will tell you that it is the innocent who are the toughest to defend . . . I can think of no case in which I agonized so much over the strategy.”

Edited by C.D. Evans and Lorene Shyba, Tough Crimes features essays by several eminent Canadian lawyers, discussing the most interesting, notorious, or compelling cases they’ve worked on.  The most noteworthy thing about the book is that it illustrates the emotional toll criminal law can take on the people who practise it.

Vancouver’s Richard Peck, spent more than four years of his life representing Ajaib Singh Bagri, charged — and ultimately acquitted — in the Air India bombing case.

On the Crown side, meanwhile, New Brunswicker Fred Ferguson, discusses his emotionally exhausting participation in the heartbreaking case of John Ryan Turner, a young boy abused, neglected, and killed by his parents. The case reduced this hardened, experienced lawyer to tears.

Even where the client undeniably bears some responsibility for the alleged crime, there are sometimes mitigating circumstances that can make counsel more emotionally invested in the case.

Stan Koebel certainly made mistakes that contributed to the Walkerton contaminated water tragedy, but his lawyer William Trudell recalls his client’s feelings of soul-crushing remorse, and how other parties tried to make Koebel a scapegoat for their own errors and failings. Similarly, the teenager who opened fire on his classmates in Taber, Alta., did indeed pull the trigger, but his horrific act came only after a lifetime of sadistic bullying.

Tough Crimes also offers considerable insight into the idiosyncratic thinking that separates Canada’s top lawyers — the ones deemed worthy of contributing to this volume — from their peers.

Henein, for example, decided it was in her client’s best interests to disclose the evidence compiled for Bryant’s defence to the Crown, in the hopes that prosecutors would decide he was not criminally responsible for killing a pedestrian with his car, and refrain from laying charges in the first place.

Most of us would keep that evidence far away from the Crown, on the basis it’s their job to prove the guilt of the accused, not the job of the accused to prove his innocence. But Henein’s gamble paid off; the evidence very clearly showed Bryant was defending himself from an agitated, unstable, and violent “victim,” and no charges were laid.

The first essay in Tough Crimes is by none other than the recently deceased Edward Greenspan, describing a case in which a jury convicted his client despite absolutely overwhelming evidence he was not guilty. Every dedicated lawyer does everything he or she can for the client, and voluntarily takes on a heavy emotional and intellectual burden in doing so. But as Greenspan’s case illustrates, even the best can’t win ’em all.

Garry Trudeau shows those murder victims who’s boss

Why the foiled Halifax shooting plot (allegedly) wasn’t terrorism

This Canadian Press article by Laura Kane explains how the distinction between “terrorism” and mere criminal activity can be blurry, and why the alleged plot to shoot up the Halifax Shopping Centre this past weekend doesn’t qualify as a terror plot:

Police said there is no evidence that ideology or culture is part of the allegations. But if plotting to cause mass murder in a public place is not called terrorism, then what is?

Defining terrorism is a complex task, one that has preoccupied governments since the Sept. 11 attacks on New York and Washington, experts say. And with Prime Minister Stephen Harper’s new anti-terror bill before Parliament, taking a closer look at the Canadian definition is all the more crucial.

“The problem of defining terrorism has been a thorny one from the get-go,” said terrorism expert John Thompson, vice president of Strategic Capital and Intelligence Group.

“Terrorism overlaps with so many other activities. When does a violent protest become terrorism? When does some sort of psychotic episode where someone is acting out become terrorism? It’s a very hazy border.”

In Canada, section 83.01 of the Criminal Code defines terrorism as an act committed “in whole or in part for a political, religious or ideological purpose, objective or cause” with the intention of intimidating the public’s security or compelling a person, government or organization to do or refrain from doing an act.


Andrew Mack, a security expert and professor in the school for international studies at Simon Fraser University, called the alleged Halifax plot a “deadly criminal offence,” but not a terrorist one.

“The important point there is political intent, and ‘political’ is fairly widely interpreted,” he said. “If we’re talking about (ISIS), for example, they will always justify what they’re doing in religious terms. But as far as law enforcement is concerned, that’s political.”

That’s the question: were the shooters motivated by any religious or political ideology?  A widely-shared article by Robert Devet, for the Halifax Media Co-op, argues that the would-be shooters’ fascination with Nazism is being downplayed:

The Tumblr blog of James Gamble, the 19-year old found dead in Timberlea, features pictures of Adolph Hitler and marching Nazis.

You go to the Tumblr blog of Lindsay Kantha Souvannarath, the Illinois woman now in custody, and a swastika is the first thing you see.

Meanwhile, thanks to the work of people who know their way around in the world of blogs, message boards and handles, there are strong suggestions that at least Souvannarath has along-time infatuation with fascist and white supremacist ideas.  None of this has made it into Nova Scotia news outlets.

One CBC reporter looked at Gamble’s Tumblr blog, and mentions the Nazi references in passing, almost as an afterthought.

The same for a Chronicle Herald story, where a reference to Nazi images warrants one sentence.

You have to wonder whether coverage would have changed in tone had the plotters been Muslims, and had the Tumblr images been of Osama Bin Laden, or ISIS militants?

That’s a good question, actually.  Justin Bourque, who murdered three RCMP during his shooting rampage in Moncton, was apparently motivated at least in part by his radical anti-government, anti-police beliefs, yet he wasn’t charged with terrorism-related offences.

Islamist terrorism is a very serious threat – we saw that in Copenhagen this past weekend, right around the same time as the Halifax plotters were being charged.  But not all terrorists are Muslims – and, it goes without saying, not all Muslims are terrorists.

The Carter ruling is correct, though I don’t agree with it

The Supreme Court of Canada struck down the Criminal Code provisions making assisted suicide illegal:

In a charter precedent that will go down in the history books as Carter vs. Canada, the court unanimously struck down the ban on providing a doctor-assisted death to mentally competent but suffering and “irremediable” patients.

The emphatic, unanimous ruling prompted tears of joy and frustration on both sides of the debate, reverberated through provincial health ministries and doctor’s offices across Canada, and left skittish federal parliamentarians groping for time to digest the implications.

“The prohibition on physician-assisted dying infringes on the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice,” the nine justices flatly asserted.

The judgment — left unsigned to reflect the unanimous institutional weight of the court — gives Parliament a year to draft new legislation that recognizes the right of clearly consenting adults who are enduring intolerable physical or mental suffering to seek medical help in ending their lives.

It does not limit physician-assisted death to those suffering a terminal illness.

And to put an exclamation mark on the ruling, the court awarded special costs against the government of Canada for the entire five-year course of the litigation, less 10 per cent to be paid by the government of British Columbia.

The court suspended its judgment for 12 months, during which the current law continues to apply, placing enormous pressure on Parliament to act in what is an election year.

(An aside: remember when Stephen Harphitler was going to pack the Supreme Court with Conservative loyalists who would rubber-stamp everything he did?  Didn’t quite work out that way, did it?)

I’m torn on the issue of assisted suicide.  I fundamentally believe a person should have the right to do what he wants with his body, and if you’re suffering from an incurable, terminal medical condition, I can understand why you’d want to end the misery on your own terms.

I also firmly believe that this starts the proverbial slippery slope toward extending this “right” to people who are not competent to make the decision to end their lives, young children, and that we will ultimately see people given the right to make end-of-life decisions for disabled people in their care.    (Indeed, supporters of Robert Latimer have been arguing for this ever since he took the life of his severely disabled daughter in 1993.)

Andrew Coyne argues that the Court did not seriously consider the implications of its ruling:

…on what grounds could any limit be placed on this right? Once we have embraced the idea of suicide, not as a tragedy we should seek to prevent, but a right we are obliged to uphold; once the taking of life has been converted from a crime into a service — “physician-assisted death” — to be performed at public expense; once we have crossed these sorts of philosophical and legal divides, how is it to be imagined that we could stop there?

The Court airily dismisses concerns that euthanasia will be expanded or abused, as it has been in those few jurisdictions where it has been legalized, as “anecdotal.” Very well. Perhaps the Court is right, that the “medico-legal culture” of Belgium, where assisted suicide is now provided to children and prisoners on demand, is different than Canada’s.

But it is not in the administration of the law that I fear we will see the “slippery slope” at work so much as it is in its interpretation. Perhaps the Court’s confidence that “safeguards” can be devised that will prevent the spread of euthanasia beyond the competently adult and the clearly consenting is well placed. But there can be no safeguard against the Court’s own future decisions.

Some day, someone is going to bring a case before the Court arguing that children with an incurable disease and in “intolerable” pain should also have the right to assisted suicide, perhaps with their parents’ consent. Is the Court really going to condemn them to endure years of excruciating pain until they are of age? Likewise, is it really prepared to leave the mentally incompetent to suffer unbearably, when with the signature of a legal guardian they could be released? Or if personal autonomy is all, why should a “grievous and irremediable medical condition” be required? Isn’t it enough that you want to be dead, but need someone to help?

So, I’m worried about what the Carter decision means.  And yet, paradoxically, I think the Court dealt with the slippery slope argument appropriately.

In deciding whether a law is unconstitutional, a Canadian court must then turn its attention to whether the infringement of a Charter right can be justified “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” as stated in section 1 of the Charter of Rights and Freedoms.

In layman’s terms, it must be established that the offending law has an important, pressing societal objective, and that it carries out this objective by infringing upon the Charter rights as minimally as possible.

The Court notes, correctly, that “slippery slope” arguments are speculative by nature:

[118]                      Canada also argues that the permissive regulatory regime accepted by the trial judge “accepts too much risk”, and that its effectiveness is “speculative” (R.F., at para. 154).  In effect, Canada argues that a blanket prohibition should be upheld unless the appellants can demonstrate that an alternative approach eliminates all risk.  This effectively reverses the onus under s. 1 , requiring the claimant whose rights are infringed to prove less invasive ways of achieving the prohibition’s object.  The burden of establishing minimal impairment is on the government.

[119]                      The trial judge found that Canada had not discharged this burden.  The evidence, she concluded, did not support the contention that a blanket prohibition was necessary in order to substantially meet the government’s objectives.  We agree.  A theoretical or speculative fear cannot justify an absolute prohibition.  As Deschamps J. stated in Chaoulli, at para. 68, the claimant “d[oes] not have the burden of disproving every fear or every threat”, nor can the government meet its burden simply by asserting an adverse impact on the public.  Justification under s. 1  is a process of demonstration, not intuition or automatic deference to the government’s assertion of risk (RJR-MacDonald, at para. 128).

[120]                      Finally, it is argued that without an absolute prohibition on assisted dying, Canada will descend the slippery slope into euthanasia and condoned murder.  Anecdotal examples of controversial cases abroad were cited in support of this argument, only to be countered by anecdotal examples of systems that work well.  The resolution of the issue before us falls to be resolved not by competing anecdotes, but by the evidence.  The trial judge, after an exhaustive review of the evidence, rejected the argument that adoption of a regulatory regime would initiate a descent down a slippery slope into homicide.  We should not lightly assume that the regulatory regime will function defectively, nor should we assume that other criminal sanctions against the taking of lives will prove impotent against abuse.

In practice, I do not believe assisted suicide will be limited to those who care competent to request it.  But I concede that this is speculative, and that our courts may very well rule that this is something the disabled and the young should be protected from, not a right that should be extended to them whether we really know they want to exercise it.

“Slippery slope” arguments are considered logical fallacies, and court decisions should not be based on logical fallacies.  I think my fears about assisted suicide may be borne out, but they aren’t inevitable.  And if they aren’t inevitable, the Charter right is not minimally infringed upon.

I know this seems pretty confusing, but it’s a morally complex issue (dominated, like most morally complex social issues, by the loudest and most extreme voices on each side).  To summarize, by head agrees with the Carter ruling, though my heart is worried about it.

The unluckiest man in Quebec

I feel awful for this poor guy, but if the convenience store clerk was telling the truth – that he warned him that his second ticket was for the following week’s draw – I think the courts have ruled correctly on this matter:

The Supreme Court of Canada has dismissed a Quebec man’s claim to a $27 million jackpot because his lottery ticket was printed seven seconds after the cut-off time.

On Thursday, Canada’s top court said it would not hear Joel Ifergan’s lottery case. The SCC dismissed his request for an appeal with costs.

Ifergan purchased two lottery tickets for the May 23, 2008 Super 7 draw at 8:59 p.m., one minute ahead of the weekly draw deadline. His first ticket printed with the May 23 draw date on it, but his second one came out seven seconds after 9:00, with the May 30 draw date printed at the top.

That second ticket had all the winning numbers for the May 23 jackpot, but Loto-Quebec rejected the claim because the ticket said May 30.

Ifergan says he’s entitled to half of the $27 million awarded in the May 23 draw because his tickets were purchased ahead of the deadline, regardless of whether they were printed after it. He blames Loto-Quebec’s 10-second processing delay for denying him his share of the jackpot, which was awarded to another winner.


Convenience store owner Mehernosh Iranpur says he sold Ifergan the tickets, and Ifergan knew the second ticket was for the next draw.

“I asked him, ‘It’s for next week. Do you want it or not?’” Iranpur said. “He says, ‘No, I’ll keep it.’”

Then again, for many lottery winners, the jackpot turns out to be more of a curse than a blessing.   Maybe Mr. Ifergan is luckier than he thinks.

The 50% divorce myth

Everyone “knows” half of all American marriages end in divorce, and that was indeed the case in the 1970s and 1980s.  But it isn’t true today:

Despite hand-wringing about the institution of marriage, marriages in this country are stronger today than they have been in a long time. The divorce rate peaked in the 1970s and early 1980s and has been declining for the three decades since.

About 70 percent of marriages that began in the 1990s reached their 15th anniversary (excluding those in which a spouse died), up from about 65 percent of those that began in the 1970s and 1980s. Those who married in the 2000s are so far divorcing at even lower rates. If current trends continue, nearly two-thirds of marriages will never involve a divorce, according to data from Justin Wolfers, a University of Michigan economist (who also contributes to The Upshot).

There are many reasons for the drop in divorce, including later marriages, birth control and the rise of so-called love marriages. These same forces have helped reduce the divorce rate in parts of Europe, too. Much of the trend has to do with changing gender roles — whom the feminist revolution helped and whom it left behind.

“Two-thirds of divorces are initiated by women,” said William Doherty, a marriage therapist and professor of family social science at University of Minnesota, “so when you’re talking about changes in divorce rates, in many ways you’re talking about changes in women’s expectations.”


The delay in marriage is part of the story, allowing people more time to understand what they want in a partner and to find one. The median age for marriage in 1890 was 26 for men and 22 for women. By the 1950s, it had dropped to 23 for men and 20 for women. In 2004, it climbed to 27 for men and 26 for women.

Perhaps surprisingly, more permissive attitudes may also play a role. The fact that most people live together before marrying means that more ill-fated relationships end in breakups instead of divorce. And the growing acceptance of single-parent families has reduced the number of shotgun marriages, which were never the most stable of unions, notes Stephanie Coontz, a professor at Evergreen State College and author of “Marriage, a History: How Love Conquered Marriage.”

Blasphemy is a crime in Canada

Not because we’re living under the Stephen Harper Christofascist dictatorship, though. (Sorry, Michael Harris.)  It’s actually a law that hasn’t been enforced successfully since 1935, but remains part of the Criminal Code of Canada:

Section 296 of the Criminal Code makes “blasphemous libel” punishable by up to two years in jail in Canada.

No one been prosecuted under the law since 1935. As late as 1980, the law was used to charge the Canadian distributor of Monty Python’s film Life of Brian; the charges were later dropped.

Only last month, the heads of Humanist Canada and the Centre for Inquiry, a national organization that promotes “skeptical, secular rational and humanistic inquiry,” met with Ambassador Andrew Bennett, head of the federal government’s Office of Religious Freedom, to note the law’s inconsistency with Canada’s policy of supporting religious freedom abroad.


Derek From, a lawyer for the Calgary-based Canadian Constitution Foundation warns that while the law may be dormant, it is not dead. Britain’s blasphemy law, for example, was considered “dead” until it resurfaced in 1977 when a pornographic magazine was charged with the offence for publishing gay poetry about Jesus.

“It is an open question whether the Charter’s guarantee of freedom of expression will offer any protection,” Mr. From wrote in a 2013 letter to Calgary-area MP and Minister of State for Finance Kevin Sorenson. “This is a constitutional question that has never been tested.”

“The conservative right gets bents out of shape about hate speech provisions because they see it as an unconstitutional restriction of their freedom of expression. But that’s exactly what people who are [irreligious] would say about the blasphemy prohibitions — that they cannot say what they want without freedom of prosecution,” Mr. From said.

There’s no way the offence of “blasphemous libel” is compatible with a modern, democratic society, or constitutional under the Charter of Rights and Freedoms.  That said, if threats of violence will keep people and media outlets from publishing material some people find blasphemous, what difference does it really make?

(Note: needless to say, an image of “Piss-Christ” was easily found on the CBC website.)

Je suis Charlie


“If a large enough group of someones is willing to kill you for saying something, then it’s something that almost certainly needs to be said, because otherwise the violent have veto power over liberal civilization, and when that scenario obtains it isn’t really a liberal civilization any more. ” – Ross Douthat

Apparently 12 people were killed because of this

The question is, will other Western media outlets show solidarity with Charlie Hebdo by lifting their self-imposed ban on showing images (satirical or otherwise) of the Prophet Mohammed?

Update: not promising: @Yair_Rosenberg notes that The Telegraph is blurring out Charle Hebdo‘s depictions of Mohammed.

I’m wondering which Western news writer will be the first to say Charlie Hebdo brought this upon itself, and how long that person has written for The Guardian.

Flashback: in 2009, Yale University Press published a book about the controversial Mohammed cartoons commissioned by a Danish newspaper – but would not reprint the cartoons in the book. (Via @Will_Antonin)

I distinctly remember The New York Times illustrating  a story about that cartoon controversy with a picture of…Piss-Christ.