His Honour was feeling vital when I got to his chambers on the morning of Day 16. He had been for a morning swim at the Y and was expecting a shipment of olive oil from Greece. What judge wouldn't be stoked? Such was his generosity of spirit that when I produced a two-page research memo1 for him, he commended me for my initiative and pretended it wasn't at his request.
He told me that he had been speaking with Justice S-------- recently, and that they wanted to get the articling ball rolling for me. (It's gracious of both of them not to inquire as to why I haven't been able to move that ball on my own.) Like His Honour, His Honour didn't seem enthusiastic about my bright idea to take a year off, come what may.
I watched the direct- and cross-examination of an officer who conducted a motor vehicle stop that resulted in charges of fail-to-comply-recognizance and possession of crack cocaine. The stop took place in downtown Toronto's club district. My notes indicate puzzlement that the controlled substance was crack cocaine, not powder, but who am I to know what club kids are into these days? I was always more of a pub person.
Two different accounts of the incident emerged in the courtroom. Which story one subscribes to depends where one falls on the liberty/security, anarchy/order spectrum. According to the truncheon-swinging stormtroopers and their fascist cohorts, the incident was a matter of public safety wherein a person demonstrably dangerous to society was taken off the street and brought to justice after repeatedly abusing Her Majesty's patience and generosity. According to the glassy-eyed defence with its boundless tolerance for drug use and impaired driving, the incident was a series of escalating Charter violations culminating in a highly improper arrest. What is clear, however, is that both parties, police and accused, made some errors in judgment. Both views are noted below.
It was New Year's Eve, close to 3:00 a.m. The accused and his girlfriend were leaving Light Lounge at Richmond and Peter streets, en route to an after-hours club, when they were stopped by police for alleged reckless driving [accused mistake #1]. When the driver stepped out of his vehicle [accused mistake #2], the investigating officer noticed a cell phone on the front seat [accused mistake #3], in breach of the driver's recognizance.
(From the fact that the driver had been ordered not to possess a cell phone, we may deduce that he had some trafficking charges outstanding at the time he was pulled over. That makes the discovery of cocaine in his vehicle a good deal worse.)
After espying the cell phone, the officer lodged the driver in the back of his cruiser. At this point, it seems the officer either did or did not advise the
driver accused of his right to counsel, per s. 10(b) of the Charter. The officer's duty notes do not reflect whether the caution was issued [officer mistake #1]. Immediately after so advising or not advising but before placing the accused under arrest, the officer entered and searched the vehicle [officer mistake #2]. The thought process behind this was as follows:
"One cell phone having been found, [the officer] was searching for other telecommunications devices."
Right, because most people get two when they're forbidden from having any.
In due course, the officer located a baggie of crack cocaine [accused mistake #4].
Returning to the cruiser, the officer addressed the accused, and either
(a) held up the baggie of crack and asked, "What's this?", thereby posing an incriminating question before advising the accused of his right to remain silent [officer mistake #3],
OR(b) held up the baggie and said "Look what I found!" or words of like effect, thereby -- according to defence counsel -- attempting to elicit an incriminating statement from the accused before advising him of his right to remain silent,
to which the accused replied, "I forgot that was in there" [accused mistake #5].
Then it gets a little nutty. Not satisfied with the incriminating admission he had just elicited, the officer made as if to arrest the passenger in the vehicle, the accused's girlfriend. Right before placing the handcuffs on her, the officer turned back to the accused and said, eyebrows raised, "Are you sure?" [officer mistake #4] -- to which the accused replied, "Whatever you find in there, [my girlfriend] had nothing to do with it. If you find anything it's mine" [accused mistake #6].
Clearly, some mistakes were made on both sides. His Honour took stock of them and released his decision that afternoon.
So what happened? The evidence was
(a) obtained in a manner that gravely violated some or all of sections 7, 8, 9 and 10(b) of the Charter, such that, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute;(b) obtained in a manner that violated some or all of sections 7, 8, 9 and 10(b) of the Charter, such that admission of the evidence would not bring the administration of justice into disrepute;
OR(c) not obtained in a manner that violated the Charter.
I leave it to you to decide which.
Terms that lawyers use too much
- "on all fours with" -- who said this first? it sounds dirty
- "dispositive" -- is that even a word? my Google Chrome spell check thinks not
- "in terms of", "with respect to", "as far as", "by way of"; lawyers have had drilled into them the value of focusing the judge's attention; they use highly artificial segues to do so.
Apropos of nothing
- Where are these after-hours clubs? Is it like Mad Men -- are there passwords? Is one permitted to attend if one does not have crack cocaine on one's person?
- I sat at the counsel table throughout the evidence and Charter submissions. At one point the accused caught me drawing a cartoon of his lawyer holding a gun. He seemed to like it well enough.
- History will record Day 16 of my Old City Hall tour of duty as the day that Google added something called "Buzz" to Gmail users' accounts. It aggregates every note, chat, blog, tweet, flerg and squib that I post to the ether, and those of all my Gmail-using friends as well. It makes my phone vibrate twice as much as usual. As soon as I hit PUBLISH POST on this bad boy, it will do so again.
- Below: a misguided suburban youth takes a misguided stand, suggests drug trafficking as a viable alternative to a legal career
1 Would that I could bring such brevity to my blog posts. I omitted to tell His Honour that I drafted the memo between 7:30 and 9:00 that morning, having spent the previous night catching up on Lost. I had to skip showering and run to the courthouse to make it for 9:45. My suit smelled.