‘You don’t look like a lawyer.’ Female lawyers and lawyers of colour angered by mistaken identity in court

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During the early years of her career, Lori Anne Thomas would sit near the front of the courtroom, only to be told to move by court staff as the area was reserved for lawyers.

Except she is one.

“I’ve heard more than enough times, ‘You don’t look like a lawyer.’ I know exactly what that means, which is that I’m not a tall, white man,” said Thomas, a Toronto lawyer who specializes in criminal law and who recently became president of the Canadian Association of Black Lawyers.

“It hits at you and just on top of dealing with everything else, being a recent call (to the bar), trying to figure out how to do everything and navigate the legal community and also build a practice, to then also have that obstacle of being constantly reminded that you’re kind of not expected to be here.”

Thomas’s story is one shared by other female lawyers and lawyers of colour, some of whom have been mistaken in courtrooms and other legal settings for assistants, interpreters and even an accused person.

Toronto criminal defence lawyer Janani Shanmuganathan said she’s been mistaken several times for a Tamil interpreter at the Scarborough courthouse, where staff or a Crown attorney will approach her in the hallway telling her she’s needed in a courtroom.

Other times, staff will approach her in the courtroom, even though she’s seated in the reserved area for lawyers.

“I don’t think people are saying that to be mean or in a negative way, but I think the gut reaction for people is that I don’t fit the stereotype of who they think a lawyer should be,” she said.

“It’s very frustrating and sad. I’m a child of immigrants. I’m the first lawyer in my family. I worked really hard to get to where I am. It’s unfortunate that I have to constantly be demanding my space and the right to be recognized for the lawyer that I am. It’s disheartening.”

According to the Law Society of Ontario, which regulates the legal profession in the province, about 43 per cent of lawyers are women. And the final report released in 2016 from the law society’s Challenges Faced by Racialized Licensees Working Group noted that the proportion of racialized lawyers in Ontario had doubled between 2001 and 2014, from 9 per cent to 18 per cent.

Ottawa lawyer Erin Durant, who specializes in civil litigation, said she’s become increasingly annoyed as the years go by, having been mistaken for a court reporter or an assistant.

“It’s tough. What I would like to say, especially if it’s an older male lawyer, is: ‘No, are you an assistant?’ But I haven’t grown the guts to say that yet,” she said. “I think it’s more of a societal change and letting the public know that not only are there female lawyers, but we’re actually pretty close to being the majority.”

Toronto lawyer Raj Anand, who co-chaired the law society’s working group, told the Star that the issue of unconscious bias, and people assuming who are lawyers and who aren’t, was something heard “loud and clear” during his group’s study.

“I think it’s part of a culture change,” he said. “One would hope that both court offices and judges would clearly recognize that we’re dealing with a changing demographic, and more than half of students graduating from law school are women, and something like 25 to 30 per cent are racialized in Ontario. That obviously plays a role in who appears in court.”

He said education and greater awareness for the judiciary and court staff could be helpful — something that his group recommended be done for lawyers.

Thomas said it’s a systemic issue, highlighting that the court staff in Brampton who told her she couldn’t sit in the lawyers’ area in the courtroom were also people of colour.

“It’s not just this perception of white or non-racialized individuals,” she said. “It is a systemic belief that is ingrained in all of us that people in certain positions look a certain way.”

The Ministry of the Attorney General, which is responsible for staffing and operating the courts, takes this issue “very seriously,” said spokesperson Brian Gray.

Staff and managers receive training on a number of topics, including “bias awareness, unconscious bias, diversity dialogues and anti-racism,” he said.

Lawyer Trevin David said he can’t even count the number of times he’s been confused for a Tamil interpreter at the Scarborough courthouse. He also recalls an incident at a Toronto courthouse where a Crown attorney confused him for an accused criminal.

“I was in the Crown’s office waiting to speak to somebody else and the Crown attorney runs in and starts yelling at me about how I’m late, and I said, ‘What are you talking about?’ And it becomes very clear that he thought I was a self-represented accused person,” David said. “And he didn’t apologize. He just said he was really busy.”

David said it takes a few moments to process what is going on in such exchanges, and sometimes the conversation is over by the time he’s ready to react.

“Even when you’re confused with being the interpreter, you’re still ultimately there for your client, so sometimes it might not be in your client’s best interests to get really angry, even though that’s what your initial reaction is. Sometimes you have to bite the bullet and laugh it off,” he said.

“It’s not that these are just other random members of the public. These are people that work in the courts every day. These are Crowns and clerks. If they can’t imagine that you’re a lawyer, what larger story does that tell?”

Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant

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Justices spar with Ford government lawyers over cancellation of basic income pilot

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Ontario Superior Court justices blasted the Ford government Monday for saying participants in the now-cancelled basic income pilot project were wrong to expect the study to run for three years.

Despite signing documents that said they would receive income for “up to” three years, it was not a “guarantee of three years,” government lawyer Christopher Thompson argued before the three-judge panel being asked to overturn the decision to kill the project.

But an incredulous Justice Fred Myers took aim at Thompson’s legal parsing of the English language.

“Are you here to suggest that the Liberal government under (then) premier (Kathleen) Wynne didn’t intend this to be a three-year program? You are lawyering like crazy over two words,” Myers said, leaning forward in his chair. “Of course it intended it to be a three-year program … It’s perfectly obvious.”

It was one of several testy exchanges between the justices and government lawyers who argued the courts do not have the power to overrule policy decisions or force governments to spend money.

Under the three-year initiative launched by the previous Liberal government in April 2017, about 4,000 people in the test communities of Hamilton-Brantford, Thunder Bay and Lindsay were to receive up to $16,989 annually. Couples were to get up to $24,027 while individuals with disabilities were eligible for a $6,000 top-up.

The goal was to see if regular payments with no strings attached would give people living in poverty the security and opportunity to reach their full potential.

It was also studying whether a basic income would be a simpler and more economic way to deliver social assistance than the current demeaning and rule-bound system.

Although cabinet policy decisions may be supreme, Perry urged the justices to consider the government’s ethical responsibility to human research subjects in the study.

When Social Services Minister Lisa MacLeod pulled the plug July 31, the government left vulnerable participants in the dark for a month before informing them their payments would continue until the end of March this year, as part of a wind-down plan, Perry noted. That was a full year earlier than originally planned.

The government signed a research protocol with an independent ethics board to oversee the study, a move that committed the government to abide by certain ethical behaviour, he said.

But despite the government’s agreement to seek the board’s approval for any changes to the project, no approvals were sought, nor granted when it ended the initiative, Perry said.

Instead, when the ethics board rejected the cancellation and “wind-down plan,” the government “fired” the board, Perry told the court.

Thompson argued cabinet’s policy decisions can’t legally be fettered by research ethics boards or any other unelected entity. Nor can they be questioned based on reason or rationality, he added.

Even if the court were to rule it has jurisdiction, the decision was rational, he argued, because basic income was too expensive for Ontario. And the new government prefers a more employment-focused approach to social assistance.

“The government does not intend to pursue a basic income policy across Ontario,” he said.

But panel chair Justice Julie Thorburn said it was “silly” for the government to argue it was cancelling the experiment because it would cost $17 billion to extend the payments to all low-income Ontarians.

“Wasn’t the whole point of the study to find out if there was data to show whether or not they should?” she asked, during the hearing at Osgoode Hall in Toronto.

“It’s a research experiment. So you get the data and then you make a decision to do it, or not to do anything, based on the data,” she chided. “Nobody is suggesting the government . . . (had to) do anything after the three years.”

But the justices wondered whether the case would be better handled in civil court as a class action.

“To the extent to which participants have a legitimate expectation (of payment,) isn’t the proper forum a class action?” Justice Thorburn asked.

Perry, who is not a practising lawyer and is handling the case pro bono, has also launched a class-action on behalf of the four participants.

But he argued judicial review of the decision was a “pro-active” approach and the “first available remedy.” If successful, there would be no need to pursue the class action.

“We put up a fight, it got covered and the voices got heard,” he said outside court.

The justices have reserved their decision.

Laurie Monsebraaten is a Toronto-based reporter covering social justice. Follow her on Twitter: @lmonseb

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Canadians could now be charged with drunk driving — even if not drunk, lawyers warn

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Canadians could now face criminal charges for driving with illegal amounts of alcohol in their system, even if they were stone cold sober while behind the wheel, under tough new impaired driving laws passed by Parliament, according to criminal defence lawyers.

Bill C-46, which came into effect last month, gives police wide-ranging new powers to demand sobriety tests from drivers, boaters and even canoeists.

Police no longer need to have any reasonable grounds to suspect you’re impaired, or driving with a blood alcohol concentration (BAC) of more than .08, which is 80 milligrams of alcohol in 100 millilitres of blood, before demanding you submit to testing.

Refusing the test can result in a criminal charge.

But even drinking within two hours after you’ve stopped driving or boating could now get you arrested, if your BAC rises over .08

Defence lawyer Daniel Brown says part of the bill may be unconstitutional. (CBC)

Law is unconstitutional, lawyer says

« I think anyone should have a problem with this legislation, because it’s unconstitutional, » Toronto lawyer Daniel Brown said.

When introducing the bill, federal Justice Minister Jody Wilson-Raybould said the law would help crack down on people who consume large quantities of alcohol in a short period, then drive or boat, hoping to get home before the alcohol is fully absorbed into their systems.

Previously, if drivers could prove they weren’t yet over the legal limit  when they were stopped by police, a court could find them innocent.

The new law removes that defence.

« Its primary purpose is to eliminate risky behaviour associated with bolus drinking, sometimes referred to as drinking and dashing » Wilson-Raybould told Parliament.

But Brown calls the law a solution for a problem that rarely existed and claims it will « criminalize Canadians who have done nothing wrong. »

He points to number of scenarios where people park their cars with no intention of driving anytime soon, then start drinking.

« You can imagine a situation where a husband and wife are out together. The husband drives to the bar knowing the wife will be the designated driver on the way home, and she’s not going to be consuming alcohol that night. The husband drinks alcohol and is now over the limit and has driven a vehicle within the previous two hours, » said Brown.

Brown says police can legally enter the bar, or wait for the couple to leave the establishment and demand a breath sample from the husband.

« Even if he’s walking to the passenger side of the car, if he is now over 80, » added Brown, he could be arrested.

Arrest has serious consequences

An arrest for driving over the limit comes with an automatic 90-day driver’s licence suspension and potentially increased insurance premiums. Those who fight the criminal charge in court would likely have to spend thousands of dollars on legal fees as well.

According to several lawyers canvassed by CBC News, police can come to your home up to two hours after you stopped driving or boating to test your sobriety.

RCMP Const. Raymond Lee speaks with a motorist while looking for impaired drivers during a roadside check in Surrey, B.C. A Toronto lawyer says a bill that toughens impaired driving laws is ‘a breach of the charter.’ (Darryl Dyck/Canadian Press)

Potentially complicating matters is the fact the charge is considered a « reverse onus » in legal terms. Essentially, that means police don’t have to prove your BAC was over the limit when you were driving, or boating two hours earlier.

It’s now up to you to prove you were sober.

It’s unclear if anyone in Canada has been arrested under the new two hour law yet, but lawyers CBC News has spoken to insist any such case will be fought all the way to the Supreme Court of Canada to test the law’s constitutionality.

And Ontario’s Criminal Lawyers’ Association has warned the government the law could result in thousands of wrongful convictions.

‘Fear mongering,’ MADD says

But Andy Murie of Mothers Against Drunk Driving (MADD) says lawyers have got it wrong and accuses them of « fear mongering. »  

Murie, who is not a lawyer, insists police still need probable cause to demand a sobriety test.

« Only if [police] suspect that you’ve committed an offence of drunk driving and they are following the investigation, and that investigation took them to your house or your bar » can they demand a sobriety test, he said.

Murie says a spot check would be an exception, and police can legally test everyone stopped.

Toronto criminal defence lawyer Calvin Barry, who has defended hundreds of drunk driving cases, says MADD has it wrong.

« Police do not require reasonable suspicion any longer, » Barry told CBC News..

Barry also warns Canadians they can be arrested and charged within the new two-hour time frame if their BAC has risen over the limit — even if they had been sober when they parked their car and planned to take a cab or transit home later.

« That is just a flagrant contravention of one’s civil liberties and a breach of the charter, » Barry said.

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Closure of Pro Bono Ontario courthouse help centres will make justice even more difficult, lawyers say

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The pending closures of courthouse-based centres that help unrepresented individuals navigate civil and small claims court will make access to justice even more difficult in Ontario, lawyers say.

The three centres, run by registered charity Pro Bono Ontario, are located at two courthouses in Toronto and one in Ottawa where lawyers volunteer their time to assist people with everything from filling out court forms to providing advice on the potential success of a claim.

The Toronto courthouse at 47 Sheppard Ave. E., one of two locations in Toronto to house a Pro Bono Ontario help centre.
The Toronto courthouse at 47 Sheppard Ave. E., one of two locations in Toronto to house a Pro Bono Ontario help centre.  (Chris So / Toronto Star)

Pro Bono Ontario has said the centres will be closing in December due to lack of funding to cover costs such as paying rent and administrative staff. The charity has been able to keep them open so far by using its core funding, provided by the Law Foundation of Ontario, which is in turn primarily funded by the interest on lawyers’ mixed-trust accounts.

As demand has grown exponentially for the centres’ services — Pro Bono says they serve nearly 18,000 people a year — the charity says so has its need for financial assistance. It recently asked the provincial government for $500,000 to keep the centres open for the next year.

The request was denied, as it was under the previous Liberal government.

“We’ve had usually generous funding from the Law Foundation and they’ve helped us with some bridge financing as we got into this tight spot, but the Law Foundation has a very broad constituency and they can’t be expected to support law help centres because there are other people who need the money as well,” said David Scott, chair emeritus of Pro Bono Ontario.

“Our position is that it’s the responsibility of the provincial government (to provide funding), more specifically the attorney general, because the attorney general is responsible for access to justice in the province and for the moment, the attorney general does not agree.”

A ministry spokesperson said Attorney General Caroline Mulroney recognizes the importance of pro bono services and wants to preserve access to justice, adding the government provides Pro Bono Ontario rent-free space worth $580,000 at courthouses in Toronto and Ottawa and is prepared to continue with that arrangement.

(Pro Bono said it does pay rent at one courthouse in Toronto and contributes to rent in Ottawa.)

“The attorney general and officials from the ministry have met with Pro Bono Ontario three times since July of this year to encourage Pro Bono Ontario to work with its private sector partners, Legal Aid Ontario, the Law Foundation of Ontario, and the Law Society of Ontario, to find solutions to its long-term funding issues,” said ministry spokesman Philip Klassen.

Those who have volunteered in the centres say there has never been a shortage of lawyers willing to do the work, and say the centres help to make the courts more efficient, as a self-represented person trying to navigate the system on their own can inevitably cause delays.

“This isn’t just affecting the individuals who will no longer have access to the services, it really threatens the efficiency of the system as a whole,” said Toronto lawyer Lindsay Scott, who has volunteered at the centre at 393 University Ave., which houses the city’s civil courts.

“Of course there’s a way to fix this, and it’s an obvious answer. It’s just a question as to whether the political will exists.”

An external study by a U.S. consulting firm found that Pro Bono Ontario’s services overall to self-represented litigants provided a $10 return for every dollar invested. Among other things, the study identified $2.29 million in savings to the Ontario government — which funds and operates the courts — which were achieved by Pro Bono helping to keep claims of “doubtful merit” out of the system.

“To have this disappear would be a significant detriment to justice in Ontario,” said lawyer Erin Pleet, who has also volunteered in a centre. “These are people who couldn’t afford lawyers’ rates and shouldn’t be a burden to the system just because they can’t afford a lawyer.”

Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant

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Tens of thousands of Canadians could soon be eligible for a pot pardon, but lawyers warn about limitations

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The Liberal government’s announcement that it will expedite the processing of pardons for people with minor cannabis-related criminal records is welcome news to tens of thousands of Canadians who have been convicted of possession offences.

And while the Parole Board of Canada might soon be inundated with record suspension requests — more than 500,000 Canadians have a criminal record for having pot on their person, according to a 2014 study — advocates claim the Liberal plan might not go far enough to reverse decades of « historical injustice » from cannabis prohibition.

The number of Canadians convicted of simple pot possession offences each year has been on the decline since Prime Minister Justin Trudeau announced his plan to legalize and regulate the drug. His 2015 election victory all but assured a legal change — and yet some 55,000 Canadians were arrested for cannabis-related possession offences in 2016 alone, according to Statistics Canada.

Even if one were to assume many of those arrests do not ultimately result in convictions, the number of Canadians with a criminal past for possession of the drug — one that is now legal — is still a staggering figure.

Watch as Trudeau speaks about cannabis legalization: 

The Prime Minister spoke to reporters as he arrived for his weekly caucus meeting on Wednesday morning 2:25

Thus, the government’s pledge to waive the steep fee for a record suspension (pardon) — it normally costs $631 — and do away with the standard waiting period (five years for a summary offence, 10 years for an indictable offence) could be a truly life-changing move for a sizeable minority of Canadians.

« I think today’s a historic day. Canada is doing something monumental, » Akwasi Owusu-Bempah, the director of research at Cannabis Amnesty, a not-for-profit that has fought for a solution for those with criminal records for cannabis possession, said in an interview on Wednesday.

« It’s fantastic to hear the government is recognizing the harms that have been done by criminalizing people, » he said.

Public Safety Minister Ralph Goodale said the move will « shed the burden and stigma » and break down barriers to jobs, education, housing or volunteer work.

A record suspension does not erase the fact someone committed a crime. Rather, it keeps the record separate from other criminal records in the Canadian Police Information Centre (CPIC) database.

Lack of a pardon timeline problematic

The government was light on details Wednesday — affirming only that the process would be free, and waiting periods would be eliminated — while promising legislation would soon be introduced in the House of Commons.

Michael Spratt, a prominent criminal defence lawyer in Ottawa, said the pardon pledge is a « step in the right direction » but the lack of a firm timeline is problematic.

« It’s a bit charitable to call it a plan. There’s no legislation before Parliament and there aren’t many details, » Spratt said in an interview with CBC News.

« A lot of things remain to be seen about how it’s actually going to play out and, given the upcoming election, if it’s going to play out at all. »

A big question for Spratt is just how broad the government will « cast the pardon net, » and he questions whether the application process will be open to people convicted of other offences or for people who have breached probation.

With a standard processing time of 6-12 months for a record suspension, people with a history of cannabis convictions are still at least a year away from having some form of record relief.

« A plan to deal with historic marijuana offences is something the government shouldn’t have waited on. It’s widely acknowledged the devastating harm that a criminal record can have and so every day we delay in correcting those injustices is a day too long, » Spratt said.

David-George Oldman smokes marijuana outside the Supreme Court of Canada in Ottawa. (Fred Chartrand/Canadian Press)

When asked why a bill was not already drafted and ready for introduction Wednesday — the legalization date has been known for months — Goodale said the government did not want to pursue such a regime until the 100-year-old prohibition of the drug was officially lifted.

Pardons have limitations

And despite the promise of having a record suppressed, criminal lawyers are warning that a pot pardon has its limitations.

Firstly, it is not an expungement, which is another, far more robust form of record relief for people who have been convicted of a crime.

An expungement goes one step further than a pardon, destroying all known government records of the offence.

When an expungement is ordered, the person convicted of the offence is deemed never to have been convicted of that offence in the first place. With a pardon, a person is still considered a past criminal and they would still have to check the « convicted of a criminal offence » box on an application for housing or employment.

Watch as Prime Minister apologies to LGBTQ people:

The Prime Minister apologizes to LGBT people who lost their careers in the military and security services because of the sexual orientation 1:06

The government recently offered to expunge criminal records for LGBTQ people who were convicted of certain crimes that have now been deemed « historically unjust, » with eligibility limited to three offences: gross indecency, buggery and anal intercourse.

Owusu-Bempah said a similar expungement should be extended to people with a cannabis possession criminal history in large part because those laws were often applied disproportionately to Indigenous people and black Canadians.

« I think historical injustices come in to play [with cannabis] as it was done with crimes of buggery. There were disparities across the country in the application of some of the law. Indigenous populations and black peoples have been saddled with the impact of a criminal record, the burden of a criminal record, when the drug has been widely used, » Owusu-Bempah said.

A spokesperson for Goodale said while there is no doubt « certain communities have been disproportionately affected » by the way cannabis laws have been enforced, « expungement is an extraordinary measure intended to be used when the injustice is inherent in the law itself, as was the case with the prohibition of sexual activity between same-sex partners, rather than a matter of how the law is enforced. »

Application process onerous for marginalized people

Spratt said many of the people who have been hit with possession-related charges in recent years — even as police have slowed such activity — are overwhelmingly marginalized groups like racial minorities, people with prior records or mental health issues, and the poor.

« I’ve definitely seen a decrease in white, middle class university students who are facing these charges, » he said.

Spratt said many disadvantaged people will have trouble fulfilling the « onerous » process required to apply for a pardon, including obtaining court records, procuring digital fingerprints and generally fulfilling all the other requirements of the 10-step process.

A woman smokes marijuana during a 4/20 rally in Toronto. (Mike Cassese/Reuters)

« I don’t think it would be unreasonable to just offer blanket expungements for those offences, » Spratt said. « I’m worried the process … might still have some disproportionate impacts on some of the very people you want to help. »

Spratt also noted the government said Wednesday a person has to complete their criminal sentence before applying for a pardon, which includes paying all fines and victim fine surcharges that might be associated with a conviction.

« A $500 fine might be something that a more affluent person can easily pay but if you’re living in poverty, and your drug record is preventing you from moving ahead in a pro-social way, it might be difficult to pay off those fine orders before the pardon is available, » he said.

Moreover, even if one is successful in securing a pardon, it does not mean it will make it easier to cross the Canada-U.S. border.

No guarantees at U.S. border

The U.S. Custom and Border Protection agency was clear Wednesday: the U.S. recognizes foreign convictions for something that would be a crime in their country, and it does not recognize foreign pardons.

Speaking in Buffalo, Richard Roberts, the CBP assistant director of border security, said Canadian pardons or « amnesty » are simply not considered under U.S. border admissibility law.

Watch as Public Safety Minister warns Canadians who use cannabis about issues at the U.S. border: 

Public Safety Minister Ralph Goodale warns Canadians who use pot that crossing into the United States isn’t a guarantee just because it’s now legal in Canada. 1:36

« They could still be found inadmissible, » he said. « Yes the law has changed [in Canada] but really, at the border, this is business as usual for us. »

But Goodale’s office noted, in the case of the U.S. border, there might actually be an upside to government offering pardons rather than expungements for cannabis offences.

« If the United States has a record of your expunged conviction and denies you entry, there will be no records to retrieve while seeking a waiver to enter the U.S., » a spokesperson said.

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Lawyers catch a whiff of trouble for K9 drug units adapting to new pot laws

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As legalization looms, K9 units across the country are facing a problem: their dogs are outdated.

Drug-sniffing dogs undergo training from a very young age to be able to detect a wide variety of drugs, including cannabis, which will be legal in Canada on Oct. 17.

And while some have been forced into early retirement, many will remain in their jobs, raising questions for legal experts concerned that law-abiding citizens might be stopped and searched by police based on an alert for a perfectly legal substance.

Some organizations said they’ll be totally unaffected by legalization. Since crossing the border with cannabis will remain illegal without a permit, the Canadian Border Services Agency said all their drug-sniffing dogs will remain in the same role.

“Through its programs and services, the CBSA will continue to uphold laws governing the illegal cross-border movement of cannabis, while facilitating the free flow of legitimate people and goods,” spokesperson Jayden Robertson said in a statement.

Even in forces that are adapting to legalization, change will come slowly.

In January, the Winnipeg Police Service’s (WPS) K9 unit added Ivy, a 20-month-old Belgian Malinois, to its roster. Ivy got all the regular training except cannabis odour detection. But all 14 WPS canines, all of whom except Ivy are trained to detect cannabis, will continue working until the end of their careers, the WPS said — instead, change will be grandfathered in as new dogs won’t undergo cannabis training.

Since the Calgary Police Service (CPS) said “nearly all” of their searches initiated by drug-sniffing dogs involve a previously obtained warrant, they’ll be keeping theirs too. Drug-sniffing dogs are also used at traffic stops, the CPS said, albeit rarely.

Sometime this fall, the CPS Canine Unit will employ dogs both with and without cannabis training.

“This will allow flexibility in a variety of investigative needs,” the CPS said.

The RCMP said it has prepared for legalization by training a new crop of drug-sniffing dogs over the summer who only detect illegal drugs, to be used for traffic stops and interdiction work.

The current crop of 14 dogs in those roles, spread out across British Columbia, Alberta, Manitoba, Nova Scotia, New Brunswick, and Newfoundland and Labrador, will all enjoy early retirements.

But those dogs only make up 12 per cent of the RCMP’s total canine force. The vast majority of “general duty” dogs will remain in place with their current training.

“There will still be offences related to cannabis, such as the unlawful sale or distribution of cannabis, including its sale or distribution to young persons, and the unlawful possession, production, importation and exportation of cannabis,” the RCMP said in a statement.

This is where the law could get fuzzy, experts say.

Toronto cannabis lawyer Paul Lewin said it was “ridiculous” that police forces plan to keep their cannabis-trained dogs.

“It’s absolutely pointless. It’d be like a tomato-detecting dog,” he said. “[The dogs] aren’t going to tell us if it’s illicit cannabis. The dogs aren’t trained that well. The dog won’t know how much cannabis is there. I’m baffled.”

When cannabis was illegal, police had reasonable grounds to search a person if a dog smelled cannabis on them. Now, Lewin said, though cannabis-related offences will still exist, the waters are muddied.

Since dogs don’t distinguish their alerts based on specific drugs, police won’t know whether a dog is alerting them to the presence of fentanyl or a joint.

Toronto cannabis lawyer Harrison Jordan said he expects to see court challenges where dogs alert their handler for the presence of a drug that turns out to be legal cannabis, and the cop finds a different illegal item, like a handgun — will that charge hold up in court, since the initial search was for a legal substance?

“It really depends on the reasonable grounds that they have,” Jordan said.

For instance, most provinces will allow police to search a vehicle if they believe the driver is carrying cannabis in an open container — similar to open container laws with alcohol — but police generally can’t just search every car at a RIDE stop checking for impaired driving, Jordan said.

In any case, Lewin said he expects to see many cases where “false positives” are tested in court.

“The Charter frowns on searches for no good reason,” he said. “There’s really some serious rights at stake here.”

To make sure you stay on the right side of the law as much as possible, make sure your cannabis stays fair away from airports and border crossings, Jordan said.

“Don’t try to take your stuff out of the country, or into the country, because that’s where you’re most likely to encounter a sniffer dog,” he said.

-With files from The Canadian Press

Jack Hauen is a breaking news reporter, working out of the Star’s radio room in Toronto. Follow him on Twitter: @jackhauen

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Lawyers in Mark Norman case take aim at Liberal minister, court documents reveal

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Lawyers defending Vice-Admiral Mark Norman have taken aim at one of the Liberal government’s senior cabinet ministers in a court filing, alleging political interference in the program to deliver an interim supply ship to the navy.

The former second-in-command of the Canadian military faces one charge of breach of trust after being accused of leaking cabinet secrets to the Davie shipyard in ​Lévis, Que., which was proposing a $668 million lease arrangement with the federal government.

Treasury Board President Scott Brison will be the Crown’s most important witnesses, and lawyers for Norman went to court Friday to force the government to disclose documents pertinent to his defence.

Prosecutors allege the former vice-chief of the defence staff, when he was head of the navy, disclosed classified information to shipyard executives, which eventually found its way to the media and was published by CBC News reporter James Cudmore, who was later hired as a policy adviser to the defence minister.

The motion seeking the documents was filed in an Ottawa court. A copy of that motion was obtained by CBC News.

The MV Asterix, the navy’s planned temporary supply ship, at the Davie shipyard in ​Lévis, Que., in early July 2017. The contract to lease the vessel to the federal government was at the centre of an RCMP investigation into the leak of cabinet secrets.

The Liberal government, newly elected in November 2015, sought to delay the supply ship lease project, and Norman’s lawyer Marie Henein wrote the defence believes « Brison was behind the effort to delay and potentially terminate the Davie agreement » and that he may have done so at the behest of corporate rival, Irving Shipbuilding, of Halifax.

« Minister Brison appears to be close to the Irvings, » said the court filing. « He has frequently been lobbied by James Irving on behalf of the company. »

Part of Brison’s job as head of the Treasury Board is to examine and challenge government spending decisions.

None of the allegations have been proven in court.

A spokesperson for Brison would not comment on the court filing, but the minister has in the past denied any wrongdoing.

Similarly, a spokesperson for Irving Shipbuilding said Saturday that there was nothing improper in the company’s communication with the Liberal government over the temporary supply ship program, in which it had also submitted a proposal.

« We expressed our concerns with the procurement process to the new government as part of an ongoing transparent dialogue, » Sean Lewis said in an email. 

« Our outreach highlighted our concerns and requested that our proposal be fairly evaluated. Other shipbuilders who also participated in the process to provide a [supply ship] solution also expressed concern with the project and how the government made its decision. »

Upcoming trial begins during election

The motion provides a taste of the political minefield that’s ahead for Liberals next year when Norman’s case goes to trial, likely during the next federal election campaign.

Henein is demanding government disclose all communication between Brison’s office and the Irvings prior to a crucial cabinet committee meeting on Nov. 19, 2015.

It was at that meeting the Liberal government decided to risk a multi-million dollar penalty and put the supply ship program on hold.

News of the pause leaked to the media, which the RCMP allege was orchestrated by Norman. The government eventually proceeded with the program.

The Liberals, however, were embarrassed. They ordered an RCMP probe and Brison told investigators the leak prevented cabinet from doing its job.

How the cabinet decision leaked

Henein pushed back, in the court filing on Friday, revealing — for the first time —  that the federal police investigation had identified how some documents prepared for cabinet made their way into the hands of lobbyists.

« The RCMP’s investigation discovered that a government employee, Matthew Matchett, gave a lobbyist then working for Davie the classified Memorandum to Cabinet (« MC ») and slide deck relating to the Liberal Government’s November 19, 2015 … Cabinet committee meeting, » said the court documents.

There is no allegation that [Vice-Admiral] Norman provided documents protected by cabinet confidences to anybody.– Court filing

The documents noted Matchett had not been charged, and that both a Davie executive and a lobbyist had been granted immunity from prosecution. 

« There is no allegation that [Vice-Admiral] Norman provided documents protected by cabinet confidences to anybody. »

CBC News reached out on Saturday to Matchett but received no response.

Defence lawyer Marie Henein wrote that, contrary to the prosecution’s claim, Norman was leaned on by the previous Conservative government to deliver the program. (CBC)

‘No evidence of any personal benefit’

The documents also alleged an internal government investigation into how the cabinet decision leaked found that there were in fact six separate leaks and 73 people within the bureaucracy knew the outcome of the meeting.

The RCMP alleges in a search warrant, released publicly last year, that Norman leaked the information in order to ensure that the interim supply ship program went forward and that it was his preferred option.

In order to prove breach of trust, the Crown must demonstrate that the accused had something personal to gain.

Henein wrote that, contrary to the prosecution’s claim, Norman was leaned on by the previous Conservative government to deliver the program.

Former prime minister Stephen Harper’s government signed the initial contract with the shipyard, but it was left to the Justin Trudeau’s Liberals to implement it.

There is no evidence of any personal benefit to [Vice-Admiral] Norman or of any other ‘dishonest, partial, corrupt, or oppressive purpose.’– Court filing

« There is no evidence of any personal benefit to [Vice-Admiral] Norman or of any other ‘dishonest, partial, corrupt, or oppressive purpose,' » said the filing.

« He worked to deliver what elected government wanted, what the Navy needed, and what was in the interest of all Canadians. He obtained absolutely no personal benefit. »

Defence’s allegations

Norman’s defence alleges that senior defence and public works officials, who opposed the leased supply ship program, worked to kill it, contrary to the direction of the previous Conservative government.

Henein has asked the Crown to waive cabinet secrecy on all documents related to the case and thus far has been rebuffed.

« The Prime Minister through the Office of the Privy Council has refused to waive any Cabinet confidences except those required to prosecute [Vice-Admiral] Norman, » she wrote.

« The [Privy Council Office] initiated the RCMP investigation, yet it controls the entire flow of information and has to date refused to provide any transparency. »

The defence team also alleged the government retroactively invoked secrecy on documents investigators had deemed not confidential.

They pointed to a letter sent to Brison, Defence Minister Harjit Sajjan and former procurement minister Judy Foote by the Irvings, prior to the controversial cabinet meeting, as proof.

« Although the RCMP asserted that the Irving letter was not classified, the PCO now claims that the letter would in fact be a Cabinet confidence, » said the court documents.

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