Filtering by Tag: CPC

The PMO, Arthur Hamilton, the Senate, and the Razor's Edge

The octopus like Senate scandal has directed its tentacles of suspicion at a wide range of individuals: Stephen Harper, the PMO, Duffy, Wallin, Brazeau, Wright, and most recently the Conservative Party's lawyer Authur Hamilton. 

In an excellent series of recent articles (here and herePostmedia's Stephen Maher details some of the concerns that have emerged regarding Mr. Hamilton.  Maher is right to ask questions about Hamilton.

As a starting point it must be acknowledged that there is a vacuum of information with respect to some of the specifics of the relationship between Hamilton and the PMO's office.  None the less, Maher's reports and Duff's disclosure of Hamilton's involvement in the sordid incidents at the heart of the scandal merit reflection.

The CBC recently asks: Who is Arthur Hamilton.  Mr. Hamilton seems to be the Conservative Party's go to lawyer:

 

 

Any consideration of Hamilton's transfer of $13,560 from his firms accounts to pay Duffy's legal bills or his other involvement in the current scandal must be viewed in light of his past and substantial involvement with the Conservative Party.

Harper's centralized system of control is also relevant when considering the flow and control of information (after all this is the 'Harper Government'). 

It must also be remembered that Hamilton is not Stephen Harper's lawyer.  He is counsel for the Conservative Party.  However, Harper and the Conservative Party are not entirely distinct entities.  There comes a point when Hamilton and Harper must have shared information relating to the current Senate scandal.  This is the real issue and an issue that could put the lie to Harper's version of history.  

Inferences about the flow of information between Harper and Hamilton can be found in the rules that govern lawyers.  Lawyers in Ontario are governed by the Law Society of Upper Canada and must follow the Rules of Professional Conduct.  

Lawyers have concurrent obligations to their clients and to the administration of justice.  Sometimes lawyers are required to walk the razor's edge in order to comply with both of these competing duties.  It is however, a path that should not be sought out.  One can be forgiven for wondering if Hamilton is walking the razor's edge.  

Lawyers have a duty of honesty and candour with their clients.  In relation to a lawyer acting for an organization rule 2.02 of the Rules of Professional Conduct advises:

While the organization or corporation will act and give instructions through its officers, directors, employees, members, agents, or representatives, the lawyer should ensure that it is the interests of the organization that are to be served and protected. Further, given that an organization depends upon persons to give instructions, the lawyer should ensure that the person giving instructions for the organization is acting within that person’s actual or ostensible authority.

Was the Duffy payment in the interests of the Conservative Party?  Was Wright acting with appropriate authority?  What inquiries were made?  

 

Lawyers are also bound by rule 2.02(5) which deals with dishonesty and fraud by a client.  A lawyer shall not

 

(a) knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct; 

This rule applies whether the lawyer’s knowledge is actual or in the form of wilful blindness.  The Law Society instructs that once a lawyer acting for an organization learns that the organization has acted, is acting, or intends to act in a wrongful manner, then the lawyer must report the matter “up the ladder” of responsibility within the organization until the matter is dealt with appropriately.  This ladder leads to Harper. 

 

The Rules speak of dishonesty.  Stephen Harper has called Wright's act a 'deception'.  This sort of deception is surely captured under rule 2.02(5).  

Did Hamilton know of the deception?  Was he willfully bind to it?  Did Hamilton report up the ladder as required? 

Given the history and background between Hamilton and the Conservative Party there can be legitimate questions raised about the duty of candour and potential organizational dishonesty.   

A lawyer and his organizational client cannot structure affairs in such a way as to insulate those in power from responsibility.   A lawyer should not be their client's dupe.

As Maher and the opposition parties have pointed out - there is reason to question Hamilton's involvement in the Senate affair.  This is not necessarily to call into question Hamilton's compliance with his duties.  Quite the opposite in fact.  The reason questions about Hamilton's involvement must be asked is to test Harper's assertions of innocents and naïvety.  

If one assumes that Hamilton acted ethically, at some point he must have gone 'up the ladder' and had conversations with Harper.  These conversations could not have possibly occurred given Harpers version of history (although that is in and of itself a bit of a moving target).  The conflict is obvious.  

Were there conversations between Hamilton and Harper or between Hamilton and others in the PMO's office?  If so when and about what?  If not, given the admitted deception, why not?

Hamilton may very well be walking the razor.  Ironically he may be walking the very razor that proves fatal to Mr. Harper's story. 

 

 

Politics, Law, and Baseball

Politics, law, and baseball are three of my most favourite things. 

I love baseball for it's history, nostalgia, and importantly for the ability to quantify the game through modern metrics.  There are countless books that evaluate baseball using these quantifiable methods, with Michael Lewis's Moneyball being the most famous example (although there are other books I would recommend more highly). 

This new, sometimes called Sabermetric, approach to evaluating baseball focuses on evidence.  True to the scientific method proponents of sabermetrics develop a hypothesis and then look to the quantifiable evidence to evaluate that hypothesis. 

Thus we now know how valuable a stolen base actually is, why one should almost never bunt, and how being a 'clutch' player is mostly a myth. 

Keith Law recently wrote a fantastic article on the problems with the 'clutch' argument.  'Clutchiness' or the supernatural ability to raise ones level of play in high leverage baseball situations, is largely a myth.  It is not supported by the evidence.  It is a narrative (and sometimes a compelling one) which is used in a post hoc fashion to fit our observations.  

What does this have to do with politics and law? 

As I wait anxiously for the Conservatives speech from the throne I can't help but wish that the Conservative Party read Keith Law's articles and other sabermetric writing. 

I have written before on the Conservatives Partty's love of ideology over evidence.  I continue to wish that the Conservatives would look to the evidence when considering policy and developing legislation. 

Canadians' deserve a government that relies on evidence and not partisan post hoc thinking when developing policies and laws.   It is only through the use of evidence and intellectual rigour that we can be confident that policies and legislation will accomplish their states goals.

Sadly I don't hold much hope of finding evidence based policy in today's speech from the throne. 

It is a tragedy when more intellectual rigour can be found between the foul lines than in Parliament.


Presumption of Innocence and DNA

In a recent interview Conservative Justice Minister Peter McKay floated the idea of seizing DNA samples from people who have been accused but not found guilty of a crime.  As reported by the Globe and Mail McKay said:

"I know there’s always privacy considerations in the backdrop to this and it has to be balanced in the bigger picture... But I think that, you know, the timing of the taking of DNA is something that could very well emerge in the future as another issue of importance."

The presumption of innocence forms the bedrock of our judicial system.  It is the golden thread that runs through all criminal law.  If McKay's vision comes to pass it will represent yet another erosion of the presumption of innocence.

Currently the Identification of Criminals Act allows the photographing and fingerprinting of most people accused of criminal offences.  Indeed this forms the justification used by the proponents of pre-conviction DNA sampling. 

In short, the simplistic logic is that a DNA sample is just the modern version of a finger print.  This narrow view misses the point.

The Identification of Criminals Act's primary purpose is to confirm the identity people charge with a serious offence.   Fingerprinting fulfills the purpose of the act.  The taking of DNA for this purpose would be surplusage. 

Quite simply, the taking of DNA would not be to identify the accused but to run the DNA information through databases to further other investigations.  This is not the primary purpose of the Identifications of Criminals Act.

The Supreme Court discussed the issues in R. v. Beare; R. v. Higgins :

"Fingerprints serve a wide variety of purposes in the criminal justice system. These include linking the accused to the crime where latent prints are found at the scene or on physical evidence; determining if the accused has been charged with, or convicted of other crimes in order to decide whether, for example, he should be released pending trial or whether he should be proceeded against by way of summary conviction or indictment; ascertaining whether the accused is unlawfully at large or has other charges outstanding; and assisting in the apprehension of an accused should he fail to appear. As well, fingerprints taken on arrest are used to identify prisoners with suicidal tendencies, sex offenders, career criminals and persons with a history of escape attempts so that they can be segregated or monitored as may appear appropriate.

Fingerprints are also of great assistance in the judicial process. Thus in addition to their utility in positively identifying an accused, they may also assist the Crown in determining the punishment it should seek by revealing, for example, whether the accused is a first offender or otherwise. This, of course, will be of assistance to the court in imposing an appropriate sentence."

The Supreme Court  went on to find that the taking of fingerprints valid because it did not represent a penetration into the body or the removal of a substance from the body:

"It seems to me that a person who is arrested on reasonable and probable grounds that he has committed a serious crime [...] must expect a significant loss of personal privacy. He must expect that incidental to his being taken in custody he will be subjected to observation, to physical measurement and the like. Fingerprinting is of that nature. While some may find it distasteful, it is insubstantial, of very short duration, and leaves no lasting impression. There is no penetration into the body and no substance is removed from it."

Clearly the taking of DNA is more intrusive and very different in nature than the taking of a fingerprint.

The power to fingerprint incident to arrest for an indictable offence has its roots in and exists at common law.  The existence of a common law authority to fingerprint persons in lawful police custody is supported by the decision of the Supreme Court of Canada in R. v. Stillman  In that case the Court was careful to distinguish the taking of fingerprints on the one hand from the taking of blood samples or hair samples.

DNA is not a modern version of a fingerprint.  DNA is the building blocks of who we are as individuals.  DNA contains information about our intimate personal characteristics.  Its extraction requires intrusion into our body.  Its nature is ripe for misuse.  

There are currently institutional problems with the retention of fingerprints of individuals ultimately found to be not guilty.  Quite simply once the state has an innocent persons fingerprints there is an uphill battle in ensuring the prints destruction. 

It does not strain the imagination to conceive of the privacy problems with the state having DNA samples of any citizen ever charged with a crime. 

Demonstrating the rankest example of simplistic (and circular) logic employed by proponents of pre-conviction DNA seizure, Calgary's Chief of Police Rick Hanson told the Calgary Sun:

“There’s a thousand reasons that people would say no and there’s only one reason to go ahead with it and that’s because it’s the right thing to do in this day and age,"

Logic like this has no place in any rational dialogue.  It may be politically advantageous for Mr. McKay to suggest a pre-conviction DNA databank.  It may even assist in solving some crimes.  Against the 'thousands of reasons to say no' this does not justify DNA sampling of the presumed innocent (and in many cases factually innocent). 

The purpose of laws in a free and democratic society should be to liberate and to maximize freedom.  McKay's proposal is overly intrusive and antithetical to those ideals.

 

Evidence Based Policy: Conservative Party Announces New Sex Offender Legislation

The Conservative Party of Canada has recently announced new legislation targeting those who commit sexual based offences.  The legislation would require those convicted of sexual offences to notify police in advance of international travel plans, and authorize broad information sharing between Canadian and international agencies.  

Most problematically Mr. Harper also promised a national, online database accessible to the public that would list information about offenders. 

A publicly accessible online database of offenders is a step that should be taken very hesitantly and with very careful examination given the potential disastrous implications (examples of which can be seen here and here).

Laws should be based on evidence with an honest accounting of all the potential costs and benefits.  This honesty is missing from Conservative Party policy.  

Given the Conservative Party's track record with criminal justice legislation I do not hold out much hope that any new laws will represent anything more than ideological pandering. 

Quite simply the Conservative Party does not draft laws based on evidence.  They legislate based on public reaction and ideology.  The Conservative Party legislates under the guise of public safety but their measures do little to make us safer.

From the Conservative perspective you either stand with the government or you stand with the sex offenders.  This mind set is not only intellectually dishonest but it is unsafe.

Will Mr. Harper listen to the evidence as it relates to sexual offenses?

A 2008 study found that New York’s Sex Offender Registration and Notification Law had no impact on reducing sexual re-offending by rapists, child molesters, or other sex offenders.  The study concluded that:

One of the main reasons that sex offence registries and community notification schemes do not have any impact is that the recidivism rate for sex offenders is not remarkably high. Most sex offences, it appears, are committed by those who have not previously been convicted of a sex offence. “Because registration and community notification laws were based on false assumptions regarding sex offenders and sexual offences, attention and resources are diverted from those most common types of sex offences – those committed by first-time sex offenders and those who have a pre-established relationship with the victim – to ones perpetrated by the stereotypical sex offender

A 2003 study dealing with sex offenders registration and community notification came to the conclusion:

Clearly, registries and notification systems are not without their own problems and, as such, demand careful scrutiny before being implemented. This warning gains even more salience when one recognizes that their proclaimed benefits have yet to receive empirical support. 

A 2007 study found that notification systems are in fact more likely to negatively effect overall safety and do not reduce recidivism rates:

Clearly there are negative consequences of efforts to publicize the identity of those who have been released from prison after serving time for sex offences. Given the absence of convincing data on the efficacy of these procedures in reducing recidivism, it would appear that these broad notification policies “are more likely to undermine the stability of sex offenders than to provide the sweeping protection they intend to achieve” 

Many studies have shown that communities are not made safer by the type of legislation embraced by the conservative, see:

  • During, Caleb (2006). Never Going Home: Does it Make Us Safer? Does it Make Sense? Sex Offenders, Residency Restrictions, and Reforming Risk Management Law. Journal of Criminal Law & Criminology, 97(1), 317-363.

  • Harris, Andrew J. R.; Hanson, R. Karl (2004). Sex Offender Recidivism: A simple Question. Ottawa: Public Safety and Emergency Preparedness Canada.

  • Levenson, Jill S.; Cotter, Leo P. (2005). The Impact of Sex Offender Residence Restrictions: 1,000 Feet from Danger or One Step from Absurd?. International Journal of Offender Therapy Comparative Criminology, 49(2), 168-178.

  • Petrosino, Anthony J.; Petrosino, Carolyn (1999). The Public Safety Potential of Megan’s Law in Massachusetts: An Assessment from a Sample of Criminal Sexual Psychopaths. Crime and Delinquency, 45 (1), 140-158.

Sexual offences are reprehensible and must be dealt with seriously.  At the same time criminal laws dealing with sexual based offences should consider the available evidence. 

It may be that Canada requires new legislation to deal with emerging criminal law issues, but it is only when evidence is considered that communities can be made safer.  Sadly it seems that this is not  Mr. Harper goal.  Quite tellingly Mr. Harper said: 

“We do not understand why child predators do the heinous things they do and, in all frankness, we don’t particularly care to.” 

If Mr. Harper truly is interested in making communities safer he should care.  We should care.  Legislation should not be reactionary.  It should not be ideological.  As citizens we deserve logical and evidence based policies.

Reactionary legislation may make us feel safer, but this is a cold comfort if the protections offered are more illusory than real.

The Right Not To Be Identified

Christie Blatchford wrote a thoughtful piece yesterday on the lasting impacts innocent accused face after they have been exonerated. 

The major impact an innocent accused faces is publication of their identity.  When an accused is charged with an offence it is not unusual for the police to public identify them.  For example, the Ottawa police post news releases that identify many persons who are charged with offences (police do not post releases when these people are found not guilty).  Police publication is just the beginning not the end of the problem of stigmatization as identification continues throughout the court process.  

It is common for media to publish names of accused persons and details of the allegations.  Sadly, as Ms. Blatchford points out there is less media attention paid to acquittals then there is to charges and convictions.  When media do report on acquittals it is often less visibly placed than when they reported on the initial allegations.        

Once an accused is identified the proverbial cat is out bag and onto the internet.  The mere fact that an individual is charged is enough to ruin a good name - even if the charges are eventually found to be untrue.

There is relatively little that can be done to mitigate the potential damage of publication.  There is no protection for an accused in the criminal code.  Irronically the only time  publication of an accused name is prohibited is when the publication may identify the victim.  

This is a situation that must be addressed given the new realities of the internet and permanence of information.  

As Justice Minister Peter MacKay tours Canada trumpeting victims' rights little is being done to asist in mitigating or preventing damage to an innocent accused.  

There must be action on this issue.  

The starting point of course is that accused persons whose names are published are presumed innocent.  The name of an accused should not be published until the presumption of innocence is removed unless there exist exceptional circumstances.     

There should also be financial relief for individuals who are found to be not guilty.  As governments cut back on legal aid and financial assistance, more accused are forced to the brink of financial disaster to clear their name.  At a minimum litigation costs should be tax deductible.   

As millions are poured into victim services, accused persons are left named, branded, exposed, and financially devastated.  There must be action to give meaning to the presumption of innocence.  

Being found not guilty is a hollow victory indeed when it comes at the expense of ones good name at the cost of financial ruin.