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The new Rules of Court

September 19, 2013 in News

Chris Harvey, Q.C., the retiring editor of The Advocate, has fired a parting shot at the Rules of Court in the September edition of that august journal.  He concludes:

“We should abolish the current civil rules and start over.  They have been an unmitigated disaster.  They purport to provide a framework that is ‘just speedy and inexpensive’ but in fact is the opposite.  We should accept no replacement rule unless in a practical way it serves to reduce delay and expense and promotes getting at the truth at trial.”

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The news that James Forcillo has been charged with second degree murder in the death of eighteen year old Sammy Yatim in July indicates that the Ontario system of criminal justice, while perhaps not perfect, is still light years ahead of this province’s in such cases.

No British Columbia police officer has ever faced a criminal trial as a result of a death caused by the application of force.  We should soon know if that perfect record remains intact when special prosecutor Mark Jette completes his review of the Paul Boyd shooting.

British Columbia police officers have shot, beaten and Tasered people to death with impunity for years, secure in the knowledge that Crown Counsel have never prosecuted a police officer as a result of such homicides.  Indeed, although the Crown knew that Paul Boyd was crawling across a Vancouver street on his hands and knees, unarmed, when the fatal shot was fired into his brain by one of the numerous Vancouver police officers on the scene, the prosecutors somehow concluded (more than two years later) that there was insufficient evidence to establish that the police use of force was excessive. Only when a bystander’s video graphically depicted the enormity of the matter did the Crown act to refer the case to a special prosecutor for an independent assessment.

I have dealt with enough grieving families to understand that they do not seek revenge when their loved ones die at the hands of police officers-they just want a fair and unbiased application of the criminal law that supposedly exists for the benefit of every Canadian.  In British Columbia, unlike Ontario, they haven’t had that…yet.

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A few of the other egregious fatalities in which Crown Counsel concluded, after lengthy reviews of over a year in each case, that charges would not be laid against the police officer who killed the deceased:

Ian Bush: unarmed, shot in the back of the head after being taken into custody on a minor liquor infraction.

Kevin St. Arnaud: unarmed, shot in the chest from 15 feet away, there was evidence that  St. Arnaud’s hands were raised in surrender at the time.

Jeffrey Berg: unarmed, beaten and kicked eleven times in the head and neck while offering no resistance.

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I’m not sure what is more disturbing…the news story reproduced below, or the apathetic shrug the vast majority have on hearing the news that police will stop people engaged in perfectly legal activity (e.g. walking down the street with an unopened bottle of wine) and confiscate their property if not satisfied with the explanation.

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VANCOUVER (NEWS1130) – Vancouver Police are surprised people continue to take booze to events like the Celebration of Light, despite repeated warnings not to.

But there is a way to get back any liquor the cops may confiscate. If your booze isn’t open, an officer will hand you a receipt, sort of like a coat check, so you can take it to the police station later to reclaim your alcohol.

Cst. Brian Montague explains what happens if you don’t go back to get it. “It’ll just be unclaimed property. Like any other unclaimed property, it would get destroyed. Other property is burned, I don’t know if they would add it to the incineration pile but it’s destroyed with other property.”

If your drink is already open, it will poured out in front of you.

Montague says an officer can use his or her own discretion. “I had a situation last week, stopped a man and woman walking down the beach and they had a perfectly logical explanation as to where they were coming from, where they were going to, they were able to provide me with some basic information and I let them proceed on their way, alcohol in hand.”

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When the Missing Women Commission of Inquiry was established on September 27, 2010, many observers felt it might be a waste of time and money.  It concluded its work on November 22, 2012 when the Commissioner delivered his report recommending, among other things, that the “Provincial Government establish a compensation fund for the children of the missing and murdered women” and “a healing fund for the families of the missing and murdered women”.  At this point, more than eight months later, the funds have not been established and the children and families of the missing and murdered women have yet to receive a dime of compensation for the losses of their loved ones.  One could say they have been forsaken yet again by a government that does not care a whit about the disadvantaged and marginalized.

Some others were well funded by the government, however.  When the province’s Public Accounts for the fiscal year ending March 31, 2013 were released Tuesday, they revealed that Wally T Oppal (the Commissioner) received $405,000 for the fiscal year, making his total remuneration $839,535 for a little over two years’ work (including $324,267 for 2012 plus $110,268 for 2011).  All this presumably went into his personal pocket, as office, staffing and other resources were budgeted separately.

Commission Counsel Art Vertlieb Q.C. was paid $219,744 for the year ended March 31, 2013.  When added to his payments for 2012 ($483,741) and 2011 ($197,171), he took home a total of $900,656 for his service to the inquiry.

Associate Commission Counsel Karey Brooks did much of the counsel work at the hearings.  She billed BC taxpayers $373,920 for the year ended March 31, 2013, through her law firm Janes Freedman Kyle Law Corporation.  With billings of $482,139 in 2012 and $95,571 in 2011, Ms. Brooks’ firm raked in $951,630 for the duration of the Commission’s mandate.

Mr. Vertlieb’s friend John Boddie, a former Vancouver police officer turned stock promoter who served as the Commission’s Executive Director, apparently received $268,352 for 2013 through billings rendered by his wife’s firm, Paula Boddie and Associates.  Mr. Boddie’s total haul was $668,665 (including $100,506 for 2011 and $299,807), which is not bad for a former beat cop.

When it’s added up, these four- Oppal, Vertlieb, Brooks and Boddie- were paid a total of $3,360,486.  That’s $3.3 million of taxpayers money for the services of just four people, which is a fraction of the total spent on the legions of police lawyers, other staff, experts, office administration, hearing room fees, court reporters etc.  On the other hand, the children and families of the fifty women who were murdered by Robert William Pickton and his associates while the police ignored the disappearances are still waiting for something tangible to come of the whole thing.

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On May 7, 2013, the Court of Appeal delivered oral reasons for judgment dismissing an appeal from a lower court ruling that the province’s Attorney General is not required to be a lawyer.  We had earlier appeared as counsel for the Appellant, Lesslie Askin, and argued that British Columbia law displaced any royal prerogative that may have enabled the Crown to appoint anyone it chooses to the position.  The Court of Appeal decided that the four provincial statutes we relied upon, the Constitution Act, the Attorney General Act, the Queen’s Counsel Act and the Legal Profession Act did not expressly state or necessarily imply that the Attorney General needs legal qualifications to perform her duties.

Lawyers hired by the Law Society of British Columbia took the lead role in opposing the appeal, supported by counsel for the Attorney General herself.  The transcript of the Court of Appeal’s decision should be available in about two weeks.  Ms. Askin has 60 days to file an application for leave to appeal the decision to the Supreme Court of Canada.

Incidentally, the Honourable Shirley Bond is the fourth Attorney General in the history of British Columbia who has lacked legal education or training.  Since Confederation, the only federal lay Attorney General was the Honourable Joe Clark, who briefly served as Acting Attorney General in the 1980’s.  For over five hundred years, lawyers have served as Attorneys General in England.

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