Monday, December 15, 2008

Creba sentencing (sort of)

As promised, here's your update. Last Thursday, the Crown laid out its intentions in the sentencing of the youth known as J.S.R. He was recently convicted of second degree murder in the Jane Creba shooting from Boxing Day 2005.

We've already gone through our discomfort with the procedure followed and the verdict. The evidence seemed weak. The Globe and Mail pointed out that the Crown relied heavily on eyewitness testimony:
As well, the eyewitness in this particular case, a man named David Tarnowski,
was relentlessly cross-examined over the inconsistencies in testimony he has
given at other proceedings and in statements to police, particularly in his
vague and occasionally contradictory descriptions about the gunman he saw
that day. He was never able to pick JSR out of a police lineup, and was
alleged to have once identified him, moments after the shooting, as a white
man, though Mr. Tarnowski maintained what he'd been describing was the
gunman's T-shirt, not his skin colour.

The Crown has now stated that they intend to pursue an adult sentence against J.S.R. This means, according to CityTV:

If the court decides to grant the Crown's request, JSR could be sent to prison
for life with no parole eligibility for seven years. If he's put behind bars as
a youth, he can't get any more than seven years in detention - and it's likely
only four of those will be served in custody. But even if he were to get a lighter sentence, his co-accused know that he gave statements to police implicating others in the shooting. And he'll likely be forced to testify against them when their trials begin next year.

Frankly, I wouuld have thought, based on the lack of evidence against him and the fact that the Crown needs to rely so heavily on JSR for testimony against the others that they would at least allow a youth sentence. But who knows.

[Source: Globe and Mail, CityTV]

Friday, December 12, 2008

[Satire] SCOTUS overturns Bush v. Gore

In one of the Onion's better spoofs in recent memory, they paint a fanciful picture of the Supreme Court of the United States overturning Bush v. Gore, the case that handed George W. Bush victory in the 2000 Presidential Election.

There's a lot to be laughed at in this article, but I think my favourite part is the fake Republican anger:
Although the president has already instituted a number of impressive
environmental initiatives, he has drawn criticism from Republicans who claim
that he is completely unprepared to deal with the current national climate.

"Throughout the entirety of his 2000 campaign, never once did Gore mention
the tragedy of 9/11, or our conflicts in Iraq and Afghanistan," Sen. Arlen
Specter (R-PA) said. "Does he not care about our national security? Does Al Gore
plan to ignore the needs of our brave men and women on the ground? What kind of
world does Al Gore think we still live in?"

Now if only SCOTUS would make a definitive ruling on that pesky gay marriage issue, they may make themselves more relevant.

[Source: The Onion]

Thursday, December 11, 2008

Even the victims families are unhappy with the 9/11 tribunals

Now, it needs to be made clear that this only a tiny sample of the relatives of the victims.

33 relatives of those who died in the 9/11 attacks have written an open letter stating their opposition to these military tribunals, claiming they are illegitimate and politically motivated. This is a bold step from individuals who are no doubt seeking justie for the terrible tragedy.

Not everyone is as happy. Other relativies of the victims, those brought to witness the recent tribunal hearings have praised the tribunals or giving the accused some sort of a fair trial.

The statement, posted on the American Civil Liberties Union website is pretty broad and actually appears to criticize a lot of things about the process. Including, of course, the fact that the relatives brought to witness the tribunal hearings are chosen by lottery. These individuals are claiming that the relatives brought to Guantanamo (the ones who praised it as fair) were not representative of the rest of their views.

To be honest, I find this next statement the most intriguing:

We believe that the secretive and unconstitutional nature of these proceedings
deprive us of the right to know the full truth about what happened on 9/11.
These prosecutions have been politically motivated from the start, are designed
to ensure quick convictions at the expense of due process and transparency, and
are structured to prevent the revelation of abusive interrogations and torture
engaged in by the U.S. government. Unfortunately, any verdict borne of these
proceedings will lack legitimacy and leave us wondering if true justice has been
served. No comfort or closure can come from military commissions that ignore the
rule of law and stain America's reputation at home and abroad.

We here at Think Legal wholeheartedly support due process and access to justice. In fact, I strongly believe that a transparent and truly fair judicial process would do significantly more to improve the American image in the world than many other initiatives. It is a proud way of demonstrating this "freedom" that American likes to claim as their heritage. Further, it serves to reassure the families of the victims and the American people in general that the person charged truly did commit the crime.

This in no way should accuse the horrible crimes that were perpetrated, it simply means that extra care should be taken to ensure that the right person is indeed convicted. To paraphrase the old axiom at the core of many Western judicial systems: It is better to let ten guilty men go free than to convict one innocent one.

Again, the President-Elect has committed to closing this prison and bringing the accused to stand trial in civilian courts. This will help shore up the deplorable degredation of the rule of law in the last few years, and will hopefully yield a just result for all involved.

[Source: BBC News]

Wednesday, December 10, 2008

This should have been a hate crime

Anji Dimitriou and Jane Currie are a Canadian lesbian couple who were just going about their normal business. What kind of madness were they up to? Picking their kid up from school.

While waiting outside the Gordon B. Attersley public school in Oshawa, Ontario, the couple was brutally assaulted by the father of another student. The report from the Toronto Star has this to say:

"Which one of you two 'men' spoke to my kid? F------ dyke. Lesbians," he said, spitting in Dimitriou's face. As she wiped her face, eyes closed, he punched her on the cheek and wound up again, slamming her backward into her truck. As Currie ran toward him, she remembers him shouting, "F------ dyke bitches," and punched her on the cheekbone so hard the skin burst apart, blood splattering.

Apparently this guy had been yelling insults at them other times, but this is the first physical assault. And this guy sure sounds unstable.

But the sad part of this is that despite the obvious motivation behind the crime, the Crown has decided not to try and charge this guy with a hate crime. According to the Crown, the assault simply doesn't meet the narrow definition of what a hate crime is. The charge under the Criminal Code of Canada would be under s.318 or s.319.

Advocating genocide

318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
(2) In this section, “genocide” means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,
(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.
(4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.

Public incitement of hatred
319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

Since, in their words, the man was not trying to incite others to hatred, and was not advocating genocide, he cannot be prosecuted under the current hate crimes laws. This is a travesty. In my opinion, the mere fact that he was uttering these epithets in a very public place should be sufficient to meet this criteria. Unfortunately, Canada's extremely narrow view of a hate crime does not allow for this interpretation just yet.

Canada desperately needs to update its hate crimes legislation and, to start, they could follow H.R. 1592, the US' Local Law Enforcement Hate Crimes Prevention Act of 2007. S.3 of that act reads as follows

Section 3 -
Defines "hate crime" as a violent act causing death or bodily injury because of the actual or perceived race, color, religion, national origin, sexual orientation, gender, gender identity or disability of the victim.

This is the way it should be. In Canada, a hate crime should not only exist when the aggressor is trying to incite others to attack and do harm. Instead, if they commit a violent act (like this assault) , and clearly indicate that their motivation is due to one of the prohibited grounds, they should be charged with a hate crime.

[Source: Toronto Star, Toronto Star again]

Tuesday, December 9, 2008

First conviction in the Creba boxing day shooting in Toronto is a dangerous precedent



On Boxing Day, back in 2005, Jane Creba was out doing some shopping at the Eaton Center in downtown Toronto. Clearly this is a busy time of year, and you wouldn't imagine too much going on.

But Creba got caught in the crossfire just outside the mall and was tragically shot and killed. 8 people were arrested in connection with the shooting, including several minors.

The first one to go to trial is a youth identified as J.S.R. Under the Canadian Youth Criminal Justice Act, youth cannot generally be identified if they were minors at the time of the crime. J.S.R. was 17 when the shooting occured. Now, J.S.R has just been convicted of second-degree murder, an interesting and severe conviction based on the lack of evidence available. But I will get to that in a moment. He is to be sentenced soon, which will be fascinating to watch. Without a doubt J.S.R deserves punishment for his involvement, but the question remains if that sentence should be second-degree murder and whether he should be sentenced as an adult or as a youth.

Now onto the facts and problems of the case itself. J.S.R was, everyone agrees, arrested in possession of a gun. The gun itself was 'forensically linked' to the crime scene in the sense that it was fired there. But there is no evidence to link the gun itself to Creba's actual death. Further, although there was gun powder residue on J.S.R.'s hands, it was inconclusive in proving that he ever actually fired a gun, let alone that gun. J.S.R claims that the gun was handed to him by another individual after the fight because of the fact that he was a minor and would not be in as much trouble if he was caught.

CTV News quotes the lawyer for the defence as saying the following:

"We've never, ever, ever had a stronger defence case," he said. "We maintain that our client is innocent and we won't stop fighting as far as we can go in order to make sure that everyone knows that he is innocent."
"I can't explain the jury's verdict. Most observers can't explain this jury's verdict," he continued. "This verdict is completely unreasonable and completely not supported by the evidence presented in this case."

Further, no eyewitnesses even attempted to link J.S.R. to the shooting itself. Basically, no one could positively say they saw him fire the gun in question. Even more shockingly, the dominant source of D.N.A. on the gun was from Louis Raphael Woodcock, the guy that J.S.R. claims handed him the gun.

So far, all evidence seems to collaborate J.S.R's story, and would at the very least provide the jury with reasonable doubt for the conviction. At the very least, this is a huge hit to the credibility of J.S.R, with the jury essentially saying that he is not to be believed. While this itself may be a fair judgment, in my opinion it shows a marked lack of foresight on the part of the prosecutor.

J.S.R. cooperated with police and voluntarily provided statements implicating others in the shootings (though the jury was not told about these statements). This testimony will be heavily relied on when the rest of these individuals come to trial next year. So, by allowing the jury to rule now on what could be seen as the credibility of this witness, it seems to me that this will make proving the more significant case against those who actually shot Creba much more difficult.

Currently there is weak evidence suggesting J.S.R actually fired a gun at all, let alone fired the shot that killed Jane Creba. So how could he be convicted of second-degree murder?

The Crown arguments did not appear to be going well until Justice Michael
Moldaver interjected and suggested trying a section of the Criminal Code that had never been raised before Judge Nordheimer.

The appeal court interpreted the rarely used section to find that a defendant can be found guilty of murder as long as they fired a gun in a shootout where someone was killed, even if they did not fire the fatal shot.

This seems a bit of a stretch to me and is a far broader interpretation of the section than I would have thought possible. Understandbly J.S.R. is guilty of an offence. There is evidence linking him to a robbery shortly before the murder. In fact, the mere fact that he knowingly handled a gun used in the shootout would mean he is guilty of an offence. However, I do not think this is sufficient to allow a conviction for second degree murder.

Stay posted for information on the sentencing.

[Source: Image from CTV News, facts from National Post]

Monday, December 8, 2008

9/11 suspects plead guilty

The military tribunals set up to deal with prisioners held in Guantanamo have been contentious at best. In fact, these tribunals have been a major source of concern during the election itself, with Obama making Guantanamo's closure a campaign centerpiece.

Further, the US Supreme Court had decided in June 2008 that prisoners at Guantanmo should have the constitutional right to challenge their detention in civilian courts, not just these military tribunals. Although this decision hasn't really taken effect yet, progress is being made. The ability to try these cases in civil courts is a huge step forward in terms of the rights of these 'unlawful combatants'. They would, essentially, receive many of the same constitutional rights that other foreign citizens receive in the United States. Although different court procedures may take place (perhaps similar to Canada's security certificate procedures), there would not be the same type of kangaroo court that the military tribunals have become.

Thus, it is interesting that some of the major 9/11 suspects (including Khalid Sheikh Mohammed) have told a military judge that they wish to plead guilty to the charges against them. This would, in essence, guarantee their execution. Originally, Mohammed had entered a defence and appeared as if he wanted to contest his detention. Now, the new plea would withdraw these pleadings and enter a guilty plea, hastening his demise.

The fascinating aspects of this case include the fact that this change of heart may have to do with Obama's intention to close the prison and allow civilian courts. There is the possibility that the death penalty would no longer be an option, and therefore these suspects would be denied the martyrdom they claimed to be seeking.

[Source: BBC News]
---------------------------------------
UPDATE - Dec 9, 2008

It seems I was right in guessing that the guilty plea entered by the 9/11 plotters was a bit of a sham.

The guilty plea would have actually exempted them from the death penalty, something the five defendants were seeking so they could gain martyrdom. In fact, Khalid Sheikh Mohammed directly asked the court, when told about this, "Are you saying if we plead guilty we will not be able to be sentenced to death?"

And then the plea gets withdrawn, so it sounds as if they are looking to be found guilty the good old fashioned way. I am unclear if, under the current military tribunal, a guilty plea exempts you from the death penalty while a conviction makes you eligible for it. So far this is unclear.

More importantly, I guess, is the concern over what will happen now that Obama is trying to close Guantanamo. I am interested to see if the closure and subsequent dismantling of these military tribunals will happen before the full trial of these five plotters.

[Source: UPI]

SCOTUS decides Obama is American after all

Justice has been served, thankfully. Conspiracy theorists in the US have been pursuing lawsuits challenging Barack Obama's citizenship, but the US Supreme Court has just dismissed one of these lawsuits.

As you all know, one of the criteria to be President of the United States is that the candidate must be a natural-born citizen. This is one of the main things that has kept Gov. Arnold Schwarzenegger from running for the position (because he was born in Austria).

To be fair, the lawsuit also claimed that John McCain is not a natural born citizen (as he was born in Panama), but that doesn't make this any less ridiculous. Obama has produced a birth certificate, the Secretary of State for Hawaii has vouched for him, and there is even a birth announcement in the Hawaiian paper from when Obama was born. Still, Leo Donofrio and Phillip Berg were pursuing two separate lawsuits challenging the validity of Obama's citizenship.

There was a lot of political bickering when Justice Clarence Thomas of SCOTUS referred Donofrio's case to the whole court for a conference. There were allegations that he did so because of Democratic opposition to his candidacy. However, I think he did the right thing in this case. By allowing the full court to decide to dismiss this case, it gives it an air of non-partisanship and refutes the inevitable allegations of political influence.

Berg's lawsuit is still making its way through the system, but Donofrio's has been dismissed by SCOTUS. The absurd claims are likely politically motivated and appears to be a waste of judicial resources. Now hopefully the court can get on to more important issues.

[Source: Washington Post]

Australian Court's child pornography ruling opens a new set of liability

The BBC is reporting that an Australian Court has dramatically broadened existing child pornography law in a landmark case in Australia. The case in question is over an internet cartoon a man made that depicted characters from the television show "The Simpsons" engaging in sexual acts.

Just a cartoon, right? Wrong, according to Justice Adams. Despite the fact that all the individuals involved are fictional characters and don't even resemble real people (a fairly strong defence in my opinion, considering they are four-fingered, neon-yellow-skinned never-aging cartoons), the court ruled that wasn't enough. BBC News says:

Justice Michael Adams said the purpose of anti-child pornography legislation was to stop sexual exploitation and child abuse where images of "real" children were depicted.

But in a landmark ruling he decided that the mere fact that they were not realistic representations of human beings did not mean that they could not be considered people.

In his opinion, the purpose of the law was stop the victimization of children (a correct assertion), and that this cartoon managed to "fuel demand for material that does involve the abuse of children".

In my opinion, this is a bit of a stretch. Obviously, I haven't seen the cartoon in question, and it is entirely possible that it's so offensive it deserves some punishment. But regardless, there's some concern that reading such a broad meaning into this law will allow more and more "artistic" creations to come into question. Now, whether or not this is a good thing is a different question, because obviously the protection of children is paramount.

Now the judge showed some restraint and merely fined the accused instead of assigning jail time. Still, a conviction for child pornography is not something to be taken lightly.

[Source: BBC News]