Officer Murdered= Capital Punishment

8 03 2010

Today PC Vu Pham, 37, was murdered doing exactly what he was paid to do, “his job” according to OPP Commissioner Julian Fantino.

Pham had initiated a traffic stop on a suspect vehicle while enroute (for what is being widely reported – but not confirmed) to a domestic violence call.  A shootout occurred and unfortunately PC Pham was fatally hit.

I personally conducted thousands of traffic stops during my career and every once and awhile the hair on the back of your neck stands up with fear, anxiety, adrenaline, and excitement, but never do you picture yourself going down in a hail of bullets.

Many questions will need to be answered in the upcoming days that will allow future officers to learn from PC Pham’s murder.  If he was going to a domestic, why did he initiate a traffic stop with only one officer?  Could have he not followed the vehicle?  Although I will not reveal specific police tactical information, I can say that officers SHOULD NOT approach these sorts of situations alone.  Whether or not this played a role into PC Pham’s murder will only be revealed in time.

All we know about the 70 year old suspect is that he too was airlifted to London Health Sciences Centre, Victoria Campus.  He will undoubtedly face at least a charge of first degree murder.  What will happen after that will play out in our court system.

Perhaps its the former cop in me, but I for one would fully support a return of capital punishment for this offence.  The situations that police officers put themselves daily is generally one where when everybody is running from something, the police are running to something.  Some may argue that is what they are paid to do, and rightfully so, however, no officer is paid to lay their life down because of a job.

I also strongly feel that circumstances differ.  The murder of DC Rob Plunkett, a former colleague of mine, as tragic as it is, in my opinion would not qualify for the death penalty (if I had my way), because for how I understand the facts, the suspect was attempting to get away and the officer was killed during that attempt.  This is different compared to the shooting death of PC Pham.

I think I could probably go on for a long time on this issue.  But let us all remember that those who wear uniforms, drive emergency vehicles (not just the police – but also fire and EMS) all put themselves at risk everyday.

I personally thank PC Pham, my condolences to his family, the OPP, and all my former brothers and sisters in blue.  For heaven has another blue angel to watch over the rest of us.  Your watch is over, we’ll take it from here.

Ryan


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Categories : Criminal Law, Judicial Reform, News

OPP Officer Shot…

8 03 2010

This morning at about 10am, an OPP officer was shot, reportedly in the head during an exchange with an armed suspect.  Although details are still coming out, rumours are floating around that the officer died en route to the hospital.

The suspect is also reported to be in grave condition as both were transported to London Health Sciences Centre in London, Ontario.  The investigation has been taken over by the SIU.

As with events of nature, there is little to go on until an official press release is released, but I am hoping that he/she pulls through.  There has already been too many police deaths in Ontario in the last couple months.

I will update as information comes available.


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Girl, 10 – Tasered

20 11 2009

 

In an odd story out of Arkansas a 10 year old girl was tasered in part because she refused to take a shower.  The officer was subsequently suspended, NOT for tasering the girl, but for not activating the video camera during the incident.

Read the rest of the story at Law Is Cool


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Categories : Criminal Law, Judicial Reform

Save Criminal Law at UWO

6 11 2009

Today (November 6) there is going to be a meeting to attempt to save / reinstate the criminal law concentration at the University of Western Ontario’s Faculty of Law.

If you are at all interested, join us in room 205 at 13:00:

Here is the original email:

From Patrick Bruce, Student Academic Commissioner

“Hello guys,

I am writing to you in my capacity as Academic Commissioner. What has happened to the Criminal Law generally and the Concentration specifically in the past year has angered many and in my opinion, as a student formerly in the Criminal Concentration, rightfully so. I understand that many of you feel as if your thoughts and opinions have not been taken into consideration, or if they have it has been on an erratic and unorganised basis. I would like to meet with you as a group to really understand what you would like from the administration at this point. To this effect, I would like to meet with you in the next week or so and so I can solidify your/our position with regards to the Concentration and Criminal Law in general. I can promise you this, the Concentrations are being discussed currently and if we do nothing they will be gone, probably with nothing to replace them. To protect your interests I need to hear from you and understand what matters to you. My intention is formulate a concrete response and list of concerns and desires on the part of criminal law students at Western Law.

I understand a lot of you are busy with CLA, CLS, Police-Witness program and other endeavours, so I am trying to gauge when the best time to schedule a meeting is. To this effect, please copy and paste the following two questions with your answers in an email back to me. Just indicate “yes” next to the times you can meet, a blank space will indicate you are not available. Also indicate if there is another time you would be available.

1) Are you willing to meet to help to discuss how to restore criminal law and possibly the concentration to the school for a brief period of an hour?

2) If yes, what time works best for you?
a) Tuesday Nov. 3 @ 1pm-2pm @ 5-6pm Other:
b) Wednesday Nov. 4 @ 1pm-2pm @ 5-6pm Other:
c) Thursday Nov. 5 @ 1pm-2pm @ 5-6pm Other:
d) Friday Nov. 6 @ 1pm-2pm @ 5-6pm Other:

e) Monday Nov. 9 @ 1pm-2pm @ 5-6pm Other:
a) Tuesday Nov. 10 @ 1pm-2pm @ 5-6pm Other:
b) Wednesday Nov. 11 @ 1pm-2pm @ 5-6pm Other:
c) Thursday Nov. 12 @ 1pm-2pm @ 5-6pm Other:
d) Friday Nov. 13 @ 1pm-2pm @ 5-6pm Other:

Please take the time to do this, and please if possible make yourself available. I have already sat on a meeting of the Programs Committee, and they do care about what you think, but right now they seem confused about what you want. I will also be meeting with the Academic Dean Lynk on a regular basis, so we do have an opportunity to be heard.”

Hope to see you there,

Ryan


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Categories : Criminal Law, Law School

Is The SIU Playing Politics?

30 10 2009

The Toronto Police Service Association is accusing Ontario’s police watch dog of playing politics, by charging more officers only because of a scathing Ombudsman’s report, that called the Special Investigations Unit a “toothless tiger.”

Now the TPA is “barking back” and taking their message to the media.  A Toronto Sun article outlines some very key points in this debate.

For the full article, please visit Law Is Cool to view my full article.

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V.S.


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Police Instigated Montebello – Report Holds

25 10 2009

When the North American Summit Leaders’ Summit was held in Montebello, Quebec in August 2007, something came to the attention of Dave Coles, President of the Communications, Energy and Paperworkers Union.

Amidst a seemingly peaceful protest, Coles noticed that three bandana-clad “burly” men were attempting to incite the protestors to become violent toward riot police.

ot-youtube-montebello-070822

As with many of these situations at the national level, the R.C.M.P. has jurisdiction or control if you will over security, however, then Minister of Public Safety Stockwell Day indicated that security on the front line and directed toward controlling the protesters was the responsibility of Quebec’s provincial police agency, the Sureté du Québec.  That in my opinion, is fairly normal.

What Mr. Coles charged is that the three burly men were actually police officers.  This seems to go against the rationale to what the police were there to do.  To quell violence not insight it.  After concluding in quickie internal investigation there was no wrongdoing, the Comité à la déontologie policière said yesterday in a media release there was grounds to believe wrongdoing occurred on the part of the officers, and has now summoned them to a hearing on the matter.

Now the committee, which has the power to issue binding rulings on the Quebec police, will hold public hearings on the issue within the next six months. The three officers – Jean-François Boucher, Joey Laflamme and Patrick Tremblay – are required to appear - The Globe and Mail reports.

Aside from the obvious disciplinary sanctions that these officers now potentially face.  Mr. Coles and many like him are asking the tough question of who directed these officers to take such action?  Accountability needs to be had in order to restore faith in the public’s perception of how the police handle these situations.

Like one of my other articles, (also found here), I have the fortunate ability to break this down as a former police officer, who was also part of the York Regional Police’s Public Order Unit.  Just to qualify my skills, I receive basic Public Order training at Downsview park with the Toronto Police Service’s Public Order Unit, and did requalification training at C.F.B. Meaford with a number of Ontario police agencies.  I was also deployed to Caledonia at the height of the tension between the First Nations people and local residents.

In my training we were taught how to deal with such situations and my superiors would have never instructed officers to take up such actions.  Just as the protestors arms themselves with video cameras and other “weapons” of technology, so do the police.  In such public order situations, there could be plainclothes officers in the crowd monitoring situations, recording for evidentiary purposes, and watching certain groups known to police to cause problems.  Nothing wrong with that.

But the thought that the police were the ones instigating the problems is quite saddening.  I hope justice is swift, and those responsible, whether it is the Sûreté du Québec, R.C.M.P., or politicians are able to dealt with appropriately.

After watching the YouTube video,

Montebello Protest

And hearing all of the evidence the Committee has ruled in the following manner:

ALLOWS the application for review in respect of the three respondent

sergeants on the allegations stated by the Commissioner in his decision:

Was disrespectful or impolite towards any person (section 5 of the Code);

Used obscene, blasphemous or abusive language (section 5 of the Code);

8 Item 4.10 of the Commissioner’s investigation report.Failed to respect the authority of the law by inciting persons to violence (section 7 of the Code);

Refused to produce identification when a person asked him to do so (section 6 of the Code);

Furthermore, now that the Committee has overruled the Commissioner, the door has probably been opened for a criminal investigation in relation to assault charges against one officer, and potentially this:

Unlawful Assembly:

63. (1) An unlawful assembly is an assem- bly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on rea- sonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other per- sons to disturb the peace tumultuously.

(2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a man- ner that would have made the assembly unlaw- ful if they had assembled in that manner for that purpose.

Like all interesting developing stories, we shall see where this leads us.


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David Chen: Vigilante or Neighbourhood Hero?

23 10 2009

On May 23, when Anthony Bennett was captured on video camera stealing $60 worth of plants from David Chen’s, Mr. Chen’s Lucky Moose Market located in Toronto, it set off a chain of events that may lead to a reform of what is known as “citizen’s arrest” rights here in Canada.  Ironically, it was Chen who was also arrested by the Toronto Police Service, and charges are being sought by the Ministry of the Attorney General and the Toronto Crown’s office.  However, they are seeking a quick resolution and have offered Chen a guilty plea.  Refusing Crown offer of a guilty plea, Chen is hedging his bets on a legal challenge.  The Globe & Mail article spells out much of the previous facts.

David Chen

Facts:

Bennett stole the plants from the market then rode off on his bicycle.  About an hour later he returned to the market, for whatever reason.  Mr. Chen and two employees recognized the culprit and gave chase.  After subduing him and effecting a citizen’s arrest (which is lawful under s. 494(1) of the Criminal Code of Canada), they tied him up placing Bennett in a truck to await the arrival of the police.

As a result, Bennett AND Chen were arrested.  Bennett for two counts of theft under $5000, and Chen for forcible confinement, weapons offences, and assault.  Bennett has subsequently pleaded guilty to the theft charges, and received a sentence of 30 days.  When I first read this, it immediately became apparent to me that Bennett either has a long criminal history or there are aggravating circumstances surrounding his sentence.  This is an EXTREMELY long sentence for a simple theft under charge.  (After doing some digging… turns out he does have a long criminal record) Just to put it in perspective.  But I digress…

The Crown seems to be adamant to set an example of Chen for whatever reason, and they have even secured Bennett as a witness against Chen.  However, Chen and his lawyer Peter Lindsay are playing hardball, and not going the easy way out by accepting a deal.  Good for you!

That offer is “insulting,” Mr. Lindsay said, and he flat-out refused it despite warnings that the Crown will ask for a jail sentence for Mr. Chen if the offer is turned down.

Analysis:

This, for me anyway, is where it becomes interesting.  Lindsay has said that they plan on not only fighting the charges, but they are going challenge s. 494 of the Code:

Mr. Lindsay plans to challenge Canada’s citizen’s arrest laws. Right now, a property owner or someone acting on a property owner’s behalf can arrest someone without a warrant if they see that person committing a crime on their property.

That definition is too narrow to allow people to protect their property, Mr. Lindsay says: He argues it should be changed to allow private citizens to arrest people they suspect committed or will commit a crime.

Section 494 of the Criminal Code of Canada reads as this:

494. (1) Any one may arrest without war- rant

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

(2) Any one who is

(a) the owner or a person in lawful posses- sion of property, or

(b) a person authorized by the owner or by a person in lawful possession of property,

may arrest without warrant a person whom he finds committing a criminal offence on or in re- lation to that property.

(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

(I added the bold)

Clearly, since he would have witnessed Bennett’s theft of his own property from his store, the arrest is justified under s. 494(1)(b)(i).  I think it is here where the debate begins and continues to Chen’s actions after that raise the questions.

What is the legal definition of freshly pursued?  It is not listed in s. 2.  I did find a number of US definitions, however, they were all related to peace officers and not citizens.  I think the bulk of Lindsay’s argument is going to hinge on the lack of definition of “freshly pursued.”  Will the courts interpret his actions as freshly pursuing upon seeing somebody whom he believed on reasonable grounds had committed an indictable offence?

Had Bennett not come back to the store, this would all have been avoided, but perhaps Chen gave chase because he thoughts Bennett was about to commit another offence.  If it turns out in court that was the case, then the arrest would be deemed illegal because only peace officers have the ability to arrest on reasonable grounds that somebody is about to commit an indictable office:

495. (1) A peace officer may arrest without warrant

(a) a person who has committed an indicta- ble offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

From the interpretation I can gain from the quote in the Globe, it appears that Lindsay may also have issue with 494(3).  Now the definition of “forthwith” is not explicitly stated in the Criminal Code, however, in my experiences it means as soon as practicable.  The closest thing that I could find in the Code is this example:

254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by de- mand, require the person to comply with para- graph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordina- tion tests prescribed by regulation to enable the peace officer to determine whether a de- mand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will ena- ble a proper analysis to be made by means of an approved screening device and, if neces- sary, to accompany the peace officer for that purpose.

(Once again I added the bold)

This section is in relation to a testing for the presence of alcohol in a person, more commonly known as taking a suspect in so they can blow into the breathalyzer.

Now the article does not say much about the length of time between Mr. Chen’s arrest of Bennett and his contact of the police and their arrival, i.e. his “forthwith-ness”.  The only thing it mentions is that Bennett was bound and placed in the back of a truck.  One could only assume that Chen did this to ensure his detention while ensuring his own physical safety, since Bennett had escaped before and is known locally as a thief.  Bennett has been known to be violent in the past.

The actions of Chen and his employees immediately after the arrest will undoubtedly be the crux on which this case falls.  Should it be argued that “forthwith” has a broad scope and that Chen was justified in his detention of Bennett, he will in all likelihood be found not guilty.  However, if the court finds that a more narrow definition of “forthwith” is required, he may be found guilty.

Stay tuned, I know I’ll be following this one as it plays out.  Either way, this case has the potential to break some new legal ground here in Canada.


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Jane/Finch Fatalities, By Car Not Gun…

19 10 2009

On Sunday October 18th I woke up as I usually do, turning to the news to see what I missed while I was dreaming of something I would undoubtedly not remember… I recall rolling my eyes when I heard of another death in the Jane/Finch area, an area I visited on occasion in a past career and hear of often while watching the news.  Then the pictures flashed across the screen.  A BMW.  A Honda Odessey.  A seat.  Engine.  Bodies (yes that is PLURAL!).  All strewn across a street that normally attracts attention for shell casings, and knife blades.  I have seen fatal car accidents, dead bodies, but none of that amounted to the carnage inflicted to that minivan.

Then as first heard from CP24, and confirmed in this CBC article, the BMW, which police allege rocketed into the Honda at approximately 200 km/h, was being operated by a man who was being investigated for “driving related offences.”  When I first saw the newscast, it was saying that 21 year-old Roman Luskin, was known to police for previous impaired driving offences (the CBC article makes mention of this also).  Again???!!!

I do not want to make this article about drinking and driving and its effects.  We all know what the result is.

I want to discuss the legal ramifications of impaired driving causing death in Canada, and how those being convicted of such offences are getting away with murder.

This is the latest in a series of high profile cases that has outraged the public with relation to impaired driving cause death.  The most recent, and an open wound here in Southwestern Ontario is the death of the “Pie Ladies.” When these four ladies were killed by convicted impaired driver, Wladyslaw Bilski, only those seasoned in impaired driving cases would be able to predict that he would get off so easily with, a 4 year sentence.  Justice Abbey’s sentence, unfortunately, is in the realm of available sentences for this type of offence.  The problem is, why?

Impaired Operation of a Motor Vehicle:

253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the per- son’s blood exceeds eighty milligrams of al- cohol in one hundred millilitres of blood.

255. (1) Every one who commits an offence under section 253 or 254 is guilty of an indicta- ble offence or an offence punishable on sum- mary conviction and is liable,

(a) whether the offence is prosecuted by in- dictment or punishable on summary convic- tion, to the following minimum punishment, namely,

(i) for a first offence, to a fine of not less than $1,000,

(ii) for a second offence, to imprisonment for not less than 30 days, and

(iii) for each subsequent offence, to im- prisonment for not less than 120 days;

(b) where the offence is prosecuted by in- dictment, to imprisonment for a term not ex- ceeding five years; and

(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.

…

Impaired Operation of a Motor Vehicle Cause Death:

255. (3) Everyone who commits an offence under paragraph 253(1)(a) and causes the death of an- other person as a result is guilty of an indictable offence and liable to imprisonment for life.

Life.  Now how many people do you need to kill to get life?  Is an older person’s life less valuable than a young child’s?  If he had killed 4 infants or school-aged children, would Justice Abbey have seen that as a more aggravating factor in determining sentence?

When will Canadian courts stand up and take notice and actually digest the fact that criminal driving fatalities are the LEADING cause of criminal death in Canada, and punish the offenders accordingly.

I do, however, applaud the inclusion of s.752 of the Criminal Code which now excludes conditional sentencing as an option for “serious person injury offences.”  This December 2007 legislation should now certainly guarantee anybody convicted of impaired cause death of jail.

Prior to this legislation, it was the norm for a conditional sentence to be given to somebody convicted under s. 255.  Good deal for them.  Kill somebody, be held criminally culpable, yet serve your sentence from home.  This is what happened in this case:

YORK REGIONAL POLICE – MEDIA RELEASE

SENTENCING IN 2006 FATAL MOTOR VEHICLE COLLISION

A 55-year-old Vaughan man has received a conditional sentence in connection with a 2006 fatal motor vehicle collision that claimed the life of a 34-year-old woman in the City of Vaughan.

On Thursday, November 13, 2008, the Honourable Mr. Justice A. Stong sentenced David CLARK to house arrest for a period of two years less a day. He will then be placed on two years probation that includes 240 hours of community service. He has also received a three-year driving prohibition.

In April, 2008, David CLARK pleaded guilty to Impaired Driving Causing Death and Impaired Driving Causing Bodily Harm.

On Tuesday, May 16, 2006, a silver Nissan Maxima operated by Mr. CLARK was southbound on Huntington Road south of Major MacKenzie Drive. A blue Honda Civic being operated by a 30-year- old man from Vaughan was northbound on Huntington Road when it was struck by the southbound motor vehicle. The passenger in the Honda Civic, a 34-year-old woman from Vaughan, was killed in this collision.

Impaired driving remains the number one criminal cause of death in Canada. When you drink and drive you not only risk your life and those of your passengers, but the lives of every other driver and pedestrian on the road.

—

The unfortunate part of this is that I was part of this incident.  I saw the victim’s lifeless body.  I saw the paramedics try to save her.  I smelled the booze coming from the suspect.  I arrested Mr. Clark for impaired cause death.  And I was bitterly disappointed to learn of his sentence.

I do understand how sentencing takes part, and I’m learning more and more about the mechanics behind it every day that I attend in law school.  I also understand the adversarial system in our courts and how it is absolutely necessary for a defendant to be able to be provided the best possible defence they can receive.

But what I do not understand is why the Canadian government, whether under Liberal or Conservative authority, has yet to pass stricter legislation that provides for adequate sentencing for Canada’s most deadly form of criminal death.  Guns kill, that’s a given, but let us stop debating the gun registry, or handgun ban for a moment, and tally up the numbers.  What I did learn from my first year criminal law class, is that “there is a strong correlation with deterrence and high conviction appears to show that deterrence will be effective in reducing crime.”

Since impaired driving is such a technical offence with numerous requirements to satisfy the courts, perhaps this is not possible.  I recall from my early days as a police officer that a charge was withdrawn because the breath technician said “the suspect had 80 millilitres of alcohol per 100 millilitres of blood.”  What he should have said was “the suspect had 80 milligrams of alcohol per 100 millilitres of blood.”  I think only the judge and I noticed the difference in the testimony, because as soon as the Crown went forward to the next line of questioning, they withdrew the charge because one of the two required tests under law had not met the specifications as outlined by law.  I know I was shocked, and had I realized, I would have said something.

But it is this form of adversary that provides for justice to be done.  Had this little mistake been overlooked, and the suspect been convicted, it has the potential to open the floodgates.  But I digress into another area…

Consequently, it is not that I want harsher sentences because of any of a number of reasons.  I just feel that in this specific offence there is a HUGE disconnect between the offence and sentence.  One of the principles of criminal law sentencing is deterrence, and I do not believe that the current sentences for Canada’s leading criminal cause of death is being satisfied.

Let us hope that should Mr. Luskin be found guilty of what he is accused of, that the disconnect mentioned has be repaired.


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