Archive For: English


All criminal prosecutions are carried out in the public interest. Although a crime may well have been committed, a prosecutor can, after a reasoned review of all the circumstances, conclude that it would nonetheless not be in the public interest to lay a charge. We see this approach most frequently when alternative measures are applied. In such cases, individuals, arrested for minor crimes and who are first offenders, are notified that they will not be charged. In other instances, charges may not be filed where, for instance, a charge would have been normally instituted by summary conviction but the complaint was made outside the 6 months delay allowable for summary proceedings. In such a case, the prosecutor may opt not to charge despite being in a position to file an indictable charge, which carries a heavier potential punishment but is not time-prescribed. The prosecutor may feel it would be unfair to pursue the charge where it belonged in the realm of summary conviction proceedings. There may be cases where the anticipated proof is limited to one witness who becomes reticent to cooperate with the authorities. In short, there are countless examples of the exercise of prosecutorial discretion in determining that the filing of a charge would not be in the public interest. That said, the culture that inhabits Crown attorneys is such that it is generally presumed that where evidence points to a crime, absent compelling circumstances, it is in the public interest to prosecute.


When the Criminal Code was recently amended to introduce remediation agreements, Parliament opened the door to negotiated out-of-court settlements of significant corporate crimes so long as specified criteria were met. Given the timing of the amendments, it can be safely argued that our legislators were concerned that some corporate entities, and in this case SNC-Lavalin, would be unduly damaged by a prosecution such that vital jobs would be lost despite evidence that the company had cooperated with the authorities, purged itself of the senior managers associated with the crime(s), had a healthy corporate governance strategy in place, and was in a position to make substantial financial amends. In fact, insofar as SNC-Lavalin is concerned, a number of its senior managers have indeed been prosecuted, convicted, and jailed.


Corporations don’t go to jail. Prosecutions of the type facing SNC-Lavalin are long, uncertain, costly, and, at the end of the day, can only result in the imposition of monetary punishment which can form part of a remediation agreement in any event. It is hard to imagine why prosecuting SNC-Lavalin would be in the public interest. The company could conceivably collapse during or as a result of the proceedings thereby terminating the gainful employment of thousands of innocent workers and to what end?


It is not surprising that the Prime Minister, and members of his cabinet, chose to confront the then Attorney General on her apparent decision not to intervene in the decision of federal prosecutors to pursue charges. In fact, one would think she would have expected it. The prosecutors in this case were surely subject to pressures from the police investigators involved. They, much like the Attorney general, are not confined to ivory towers. As stated above, the culture that inhabits prosecutors is such that they are generally inclined to lay charges where they are morally convinced they can establish guilt beyond a reasonable doubt. Such is their culture, historically. However, remediation agreements are new territory and in conflict with this culture. The stakes in this case are enormous and the Attorney General would not have be faulted for scrutinizing the decision to prosecute if she felt the attorneys involved failed to properly apply public interest considerations. They may have needed to be reminded that this was new legislation introduced to address the challenges of corporate criminal responsibility, requiring that the decision-making process be informed by a new culture.


The Prime Minister may have invoked legitimate factors and others less so, if they were indeed, as reported, of a political nature. But the Attorney General is a politician as well, and so long as the pressure was not undue, and her testimony before the Commons Justice Committee, emotions aside, did not suggest it was, there is little rational basis for the scandal that is now brewing. It would be hard to imagine how the prosecution of SNC-Lavalin would be in the public interest.

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With these words, Judge Rosemarie Aquilina sentenced Lawrence (Larry) Nasser to imprisonment for up to 175 years stating it was her “honor and privilege” to do so. Nasser had pled guilty to seven counts of sexual abuse, the victims being young athletes who sought his treatment as physician for the American gymnastics team.


The sentencing hearing was streamed over the Internet as over 150 alleged victims of Nasser were permitted to address him, many of whom had never been previously identified. While his crimes were despicable and worthy of harsh censure, one must question the wisdom of turning the courtroom into a stage for the mass denunciation of a lone accused. Then, in pronouncing sentence, Judge Aquilina exalted in the “signing” of a “death warrant” rather than show a modicum of reserve when sending this defendant to prison for the rest of his life.


Court proceedings can at times, appear theatrical. However a judge is much more than a stage manager. The court must endeavor to keep the process fair and solemn. Judge Aquilina misapprehended her responsibilities. Unfortunately, she chose to become a spokesperson for Nasser’s victims and many alleged victims, casting aside her role as an independent and impartial arbiter

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In the aftermath of the Weinstein affair and other similar scandals, there has been a litany of support for the alleged victims, who are lauded for their courage in speaking out. What is unfortunate, and this has oft been stated, is that the targets of these media-generated campaigns are smeared without any due process. The complainants’ versions of events are not subject to any scrutiny to determine the legitimacy of their allegations. What is further overlooked is a pattern of behavior whereby far too many victims readily seek the attention and favor of individuals in positions of power and prominence, and prove willing to silently compromise their own integrity in the vain hope of advancing their careers. The complaints usually arrive long after the complainants have achieved their professional ambitions or have resigned themselves to anonymity.

Let’s not kid ourselves as to the feigned naiveté of so many of these complainants who, while inebriated, decry inappropriate behavior occurring in hotel rooms with participants they barely know. While this does not excuse the conduct of an aggressor, it calls for some reflection on the values inculcated in these “victims” who, in their thirst for recognition and advancement, are willing to compromise their personal integrity.

This is much more a social problem than a legal one.

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Sanctifying the Victim

Too many victims of violent crimes have chosen to put themselves in harm’s way. The case of Daphné Boudreault is a classic example. She chose to embark on an intimate relationship with an apparently mentally unstable man with violent and controlling tendencies. Fearful of his behavior, she unsuccessfully sought police protection in order to return to his apartment to recover some of her personal possessions. Notwithstanding that the police did not accompany her, she nonetheless chose to enter the apartment alone, whereupon she was fatally stabbed.  The police were, in this instance, subject to harsh criticism.

The police are not a private protection service. Their resources are limited. Their would be little policing available for the victims of random crimes if those who consciously place themselves in harm’s way could call for police escort every time they felt themselves at risk.

It is sad indeed that Boudreault chose such a man. It is perhaps sadder that she endeavored to recover some personal possessions in circumstances where she feared for her life. One might ask why she was not accompanied by caring friends or family members who, moreover, might have convinced her to abandon, at least for a time, these personal effects. Rather than robotically sanctifying the victim, legitimate questions should be asked. It is far too easy to blame the police.

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Chelsea (formerly Bradley) Manning was a soldier in the U.S. army who divulged a massive amount of classified or sensitive military and diplomatic information to WikiLeaks in 2010. Manning was subsequently arrested, charged, and convicted under provisions of the Espionage Act, and then sentenced to 35 years imprisonment. On January 17, 2017, President Barack Obama commuted the sentence such that Manning will be released on May 17, 2017. Unfortunately, the notion of an executive power to pardon does not exist in Canada.


Manning was, in the classic sense, a whistleblower, who purportedly hoped that the disclosure of this material would inform the public and provoke a necessary and constructive debate on the merits of the ongoing American military campaign in the Middle East. Indeed, these disclosures showed for instance, in the case of the Baghdad airstrike video (entitled “Collateral Murder”) American soldiers aboard an Apache helicopter firing on a group of unsuspecting men who were mistaken for enemy combatants. Two of them were in fact Reuters journalists. When the strike was over, at least 12 people (including the 2 journalists) had been killed and several wounded, including children. The soldiers’ discussions prior, during, and subsequent to the strike shows their causal and detached attitude towards violent death, and approximates the banter one would expect while playing a video game. While no doubt the military would have happily kept all this secret, the release of this and other information, including torture at the Abu Ghraib prison, did at least spark some informed debate about the war in the Middle East, and compelled the upper military brass to begrudgingly show some accountability. For this, Manning should be lauded.


It is true that it can be argued that releasing classified information can imperil lives. In Manning’s case, there was no empirical evidence to that effect. While government executives, whether civil or military, have shown an insidious preference for shielding the public from the truth, Manning’s actions allowed the public to better understand how its leaders were managing a campaign which has resulted in the deaths of thousands of innocent people, uprooted communities, and generated the single worst refugee crisis the world has ever seen.


Manning has been jailed for 7 years. The commutation of his sentence speaks of wisdom and humanity, both of which appear absent from the discourse on military strategy in the Middle East.

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A Preventive Execution

On Wednesday, August 10, 2016, police sharpshooters shot and killed Aaron Driver as he entered a taxi. In an official statement, the Royal Canadian Mounted Police (R.C.M.P.) claimed to have received credible information that Mr. Driver was about to commit a terrorist attack. He was “engaged” by the police once he entered the taxi, and was then said to have detonated an explosive device injuring the cab driver. He was then further “engaged” (i.e. shot) prior to detonating a second device. In a press conference, a R.C.M.P. spokeswoman referred to the intervention as “amazing” and “exceptional”.


The police have the power to detain an individual where there are sufficient grounds to believe a terrorist act will be committed. They would also then have the power to conduct a search of the suspect. They did neither. Rather, they allowed him to enter the taxi, thereby exposing the driver to a dangerous situation, before intervening. That said, this all presupposes that they did indeed have “credible information”, that Mr. Driver did indeed have and detonate an explosive device, and that the taxi driver was injured as a result.


When a member of the public dies outside of a medical institution, a coroner’s inquiry is undertaken. This process allows public scrutiny of all events that may have precipitated the death. In this case, we have no notion as to what the specific “credible information” was although Mr. Driver did broadcast a threatening video showing him to be a committed ISIS sympathizer. We have no evidence as to the contents of the knapsack he was carrying and which allegedly contained the explosives. Further, when questioned by journalists, the taxi driver answered that the police had told him “not to talk to the media”. It was then reported that he had no visible injuries at all.


It is unlikely that a credible and independent investigation will ensue. Our collective apathy and willingness to drink the anti-terrorist tonic will ensure that we not only accept preventive arrests, but that we now accept preventive executions as well.

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Drone Warfare

The Obama administration recently permitted a partial lifting of the veil on its secret drone-assisted assassination program. This program targets alleged terrorist leaders in various countries such as Pakistan, Somalia, and Yemen. There is debate regarding the statistics, but even if one relies on the “official” source, the number of civilians murdered exceeds 100. The administration apparently now, after 6 years of thousands of drone-assisted killing missions, supports revealing this data and favors measures to reduce civilian casualties.


The U.S. is not at war with the nations where the impugned drone killings are carried out. There is no justification, either legal or moral, for this program. It is akin to a Star Chamber in which members of a secret politico-military inner council identify and murder supposed terrorists and, in the fallout, kill innocent people as well. Of course, this is not to mention errors in intelligence leading to the direct targeting and murder of innocent civilians.


The issue is not how to render the program more effective or accountable. Rather, it should be simply recognized for what it is: state-initiated criminal activity of the worst kind. Those responsible should be held accountable. They have and are committing murder.

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Extrajudicial Assassinations

In the wake of the massacre at the Bataclan club in Paris, the French authorities quickly mobilized to track down those responsible for this act of abject terrorism. However in so doing, they acted without regard for the due process of law. They took siege of an apartment in St-Denis where the principal suspect resided, firing in excess of 5000 projectiles, whereby all 3 occupants were killed.


Nothing about this operation suggests that the authorities had any intention of apprehending the suspects. Rather, the agents involved shot to kill. The suspects were surrounded but there is no evidence they were ever given an opportunity to surrender. The third suspect, who has yet to be identified, may have been involved in the terrorist plot, or may have simply known the suspects, or may have been a hostage himself.


Unfortunately, given the highly emotional context of these events, few questions will be asked and, over time, the page will be turned on this operation. We are all easily reassured that these actions were skillfully planned and necessary to effectively wage the war on terrorism. However, more should be expected of our political leaders who cloak themselves in liberal and democratic values. Whether it be Ben Laden, Khadafy, Mesrine, or countless other casualties of secret drone attacks, extrajudicial assassinations should never be tolerated.

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On June 29, 2015, the Supreme Court of the United States of America held, in Glossip v. Gross, that the State of Oklahoma’s protocol for the execution of death row inmates was constitutional. The challenge was brought by 3 death row inmates (“petitioners”) in the wake of the “Lockett” execution. Clayton Lockett was executed by lethal injection. The drugs administered to bring about his execution initially failed. Apparently unconscious, he awoke, wrestling against the restraints that had been applied, stating “this shit is fucking with my mind” and “the drugs aren’t working”. The state executioners then lowered the blinds and allegedly halted the execution, yet 10 minutes later, 40 minutes after the execution began, Lockett was pronounced dead.


Justice Samuel Alito wrote the Court’s rather caustic controlling opinion. He essentially held that the state has no obligation to develop a protocol ensuring a painless death, and that further, the 3 death row inmates had failed to show that a better alternative existed. It seems inconceivable to charge a condemned person with the responsibility of showing that there exists a more humane way to bring it about. It seems inconceivable that a society claiming to be civilized would have any confidence in any “death protocol” given compelling evidence of botched executions.


Justice Alito went to great pains to provide the facts of the murders the 3 petitioners had committed. They are chilling indeed, but not as chilling as the spectre of a court condoning a violent death associated with a state-sponsored execution. There is an alternative. Life imprisonment is enough.

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In the wake of the massacre of the journalistic staff of Charlie Hebdo, Western political leaders have ramped up their discourse on the “war on terror”.  Here in Canada and elsewhere, we will most certainly witness the continued expansion of police investigative powers at the expense of democratic rights and liberties.  We can further expect greater military intervention in the Middle East.

There is no doubt that the Charlie Hebdo massacre was an act of terror.  But how should one define the reality of innocent civilians who die each day as a result of Western bombing missions in the Middle East?  Can it not be said that they too are victims of terror?  And what of a police officer who arrests and detains an individual in the middle of the night on suspicion alone (a power enshrined in our Combatting Terrorism Act), particularly where the suspicion proves unfounded.  Would such a person not perceive the action as one of terror?

The tragedy of the Charlie Hebdo massacre and the subsequent murder of 4 hostages in a kosher supermarket must not serve to empower Western governments, in the name of the war on terror, to continue to erode our most fundamental rights and commit atrocities abroad

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