Order in the Court? When Premiers Attack

Hi guys, welcome back to the TC Legal Podcast.

I'm joined today by my friend and colleague Curtis, who I've effectively been working with since about 2014, when you came to Calgary for articling, right?

That's correct.

I articled with Roulston Urquhart Criminal Defence with you, Tim Foster and Katherine Beyak, and you were basically my principal.

We did a lot of impaired driving — almost exclusively impaired-driving Criminal Code defence work.

Yeah.

Since then, you've really branched out.

You've been an independent practitioner in that same office for the past — I guess 12 years at this point?

Twelve calendar years. About ten and a half actual practising years, plus one year of articling.

But yeah, everything from shoplifting and a lot of youth cases to multiple murder cases.

I've appeared at every level of court in the province.

Just gunning for the Supreme Court of Canada now, hey?

Yeah, right.

Curtis, I'm really happy you were able to join us today.

Obviously there's some new drama coming out of Ontario, with Premier Ford suggesting that a judge in the Zameer case should apologize to officers who had potentially colluded at trial, following a report from the OPP that essentially "cleared" them of those allegations.

We'll get into that a little bit later.

Just to give our viewers some background before we dive into that, I honestly had to refresh my memory about this case because it's been quite some time, and I don't know that I realized this report was coming out.

The Zameer case involved a very tragic incident.

An individual got into a vehicle in a parkade and was approached by a number of plainclothes officers.

His version of events was that he didn't realize they were police officers, that he was scared, and ultimately he ended up running over and killing one of the officers.

He was charged with first-degree murder, held for a bail hearing and ultimately released on bail pending trial.

After the delay that comes with these types of cases, he eventually had a jury trial where he was acquitted of first-degree murder.

Right.

The major issue in that trial came down to the other officers who were there but were not struck by the vehicle, their testimony about what happened, and how inconsistent portions of it appeared to be with the available video evidence.

At the same time, certain parts of their evidence were remarkably consistent with each other.

Exactly.

There was security footage from the parkade that wasn't perfectly clear, but it did provide a fairly good picture of what happened.

One of the police officers testified about the deceased approaching the vehicle and standing in a particular position.

That testimony appeared inconsistent with the video and, I think, fairly inconsistent with Mr. Zameer's recollection of what happened as well.

The judge then commented that the other two officers had remarkably similar, if not virtually identical, versions of events.

That became concerning because if something did not actually happen, it would be unusual for three different witnesses to independently describe that same event in such similar terms.

The judge felt the evidence had dovetailed enough that she needed to address the possibility of collusion in her jury charge.

For viewers who don't know, the jury charge is the legal instruction the judge gives jurors before they deliberate.

Right.

It could affect credibility, reliability and ultimately the jury's ability to accept the officers' evidence.

Right.

It was a really interesting case.

I think the acquittal came out about two years ago, and it took some time for this subsequent report to be completed.

The report itself is interesting because it was completed through a police investigation rather than through an independent adversarial process.

It appears to revisit or reweigh a lot of evidence that had already been challenged at trial without necessarily going deeply into how reliable or credible that evidence would be if it were tested again today.

Without an adversarial process.

Correct.

Then the report comes out and we have Premier Ford calling for an apology and saying the report cleared the officers of wrongdoing.

There's been considerable backlash from the legal community, including criminal defence lawyers, constitutional lawyers and law school academics.

The criticism is essentially: not only is this report potentially incomplete because it wasn't an independent trial process, but publicly using it to attack the judge can undermine confidence in both the justice system and judicial independence.

First of all, viewers should understand this was a jury trial.

That's an important distinction.

The findings of fact about the credibility and reliability of the officers were ultimately for the jury to determine, not the judge.

That's particularly important because Doug Ford has asked the judge to apologize.

But in a jury trial, the judge instructs the jurors and the jurors assess credibility and reliability.

Yeah, and I think that's a really important distinction.

The judge said that, based on how the evidence unfolded and her experience, she felt she had to explain this legal issue to the jury.

She explained what collusion meant and how it could potentially affect their assessment of the evidence.

But ultimately it was up to the jury.

As you and I know, juries don't have to explain what they believed, what they rejected or how they reached their decision.

We don't get to know anything about their deliberations.

All we really know is that the evidence was concerning enough that the judge felt the jury needed to be instructed on that issue.

Ultimately, though, it was the jury's decision.

Even though they acquitted him, there's no suggestion that the jury specifically found that collusion occurred.

So really, the judge is being asked to apologize for giving the jury information about the law of collusion.

Sure.

Where my mind goes from there is: what legal consequence is supposed to follow from that?

Other than a politician weighing in on what a judge instructed a jury to consider, what does it actually accomplish?

Another thing to remember is that prosecutors in Ontario have an appeals division that would have reviewed the jury charge.

In serious murder cases, appeals are common.

When somebody is convicted of murder and is facing life imprisonment, appealing is often their final opportunity to challenge the result.

Whether there's merit to an appeal is a separate issue.

It's your last kick at the can.

You have to.

It's your last stand.

That's right.

The Crown appeals division in Ontario would certainly have been able to review the jury charge.

For viewers, a jury charge in a significant case can involve a very lengthy set of instructions explaining how jurors must apply the law to whatever facts they find proven beyond a reasonable doubt.

The jury charge is often a major subject of appeal because, unlike a judge-alone trial, we don't know how the jurors deliberated.

We don't necessarily know which evidence they accepted or rejected.

We simply know their verdict.

That's right.

The Crown would have had the ability to appeal a legal error in the jury charge if they believed one occurred.

I didn't see anything suggesting that happened.

In fairness, it's possible something was filed that I didn't come across, but I didn't see anything indicating that the Crown successfully challenged the acquittal or that there was a retrial.

The OPP investigation also took considerably longer than the period available to initiate an appeal.

When I researched the case, I didn't see anything about the Crown successfully appealing the acquittal.

Neither did I.

That's one reason this feels much more like an attack on the judge and judiciary in the court of public opinion than a legal challenge to something that supposedly went wrong at trial.

Exactly.

It seems like a political stance demonstrating that Doug Ford's government supports the police and disagrees with what happened.

Even going back to the original case, there were comments about the accused being released on bail.

Government and police representatives publicly expressed disappointment.

Then after the acquittal, there were comments that this wasn't the outcome they wanted.

That has been flagged as problematic by legal experts, criminal defence lawyers and constitutional lawyers because it starts to look less like criticism of a particular decision and more like an attack on judicial independence.

Correct.

That's also a significant issue in Alberta right now.

There's been commentary from the provincial government about wanting greater involvement in judicial appointments and disagreement with certain court decisions.

Across the board, the concern expressed by many people in the legal community is that political involvement in the judiciary can threaten judicial independence.

And judicial independence is a pillar of our democratic system.

Right.

This Ontario situation is another example of that larger issue.

So how problematic do you think this is moving forward, particularly when we're talking about maintaining an informed public?

Very problematic.

As someone who's in court every day, you understand how much evidence actually goes into a trial.

There are reporters who cover criminal cases and do very good work.

But the reality is that a case like this can involve weeks of evidence, expert testimony and hours upon hours of witnesses being examined.

Then the general public may learn about it through a short online article.

They're getting a tiny fraction of what actually happened at trial.

Sometimes I catch myself doing the same thing.

I'll read a headline about a Calgary case that has significant public attention and intuitively start forming an opinion.

Then I have to remind myself, "Hang on. There's probably much more underneath this."

There are hours of evidence, testimony and ultimately findings made by the jury.

What the public sees is a small portion of that.

And anytime a police officer is killed in the line of duty, it's obviously an enormous issue.

It's tragic.

Nobody wants police officers to be harmed.

The public becomes emotionally invested.

Police officers also support each other, so I can understand why they would have a strong interest in the outcome.

We've had cases in Calgary where officers have been killed in the line of duty.

Police attend court.

They sit through the proceedings.

They watch the case.

I think anyone can understand why they have a personal interest in what happens.

That's human.

The problem becomes when senior members of government or senior representatives of a police service speak publicly in ways that undermine the role of judges or prosecutors.

I've seen body-worn camera footage where officers talk to victims and say things like, "The justice system just lets people go," or that the courts don't care.

Maybe they're trying to comfort someone or encourage them to participate in the justice system.

But when someone representing a police service publicly challenges senior judges or prosecutors, it creates concern about what members of the public understand those institutions are actually supposed to do.

It also affects how people understand the justice system when they're voting provincially or federally.

Political messaging about being "tough on crime" or "catch and release" can be very powerful.

But if those headlines are the only information people have, I'm concerned about whether the public is properly informed about the Charter, the justice system and judicial independence.

These are fundamental concepts.

Yes.

The "tough on crime" thing always reminds me of Paul Rudd's character in Parks and Recreation taking the brave stance of saying, "I'm against crime."

It's like, congratulations.

Everyone is against crime.

To circle back to the broader issue about an informed public, there's an entire discussion we could have about misinformation online.

Social media.

I don't have Facebook or Instagram, but when my wife shows me comments about my cases on Facebook, I can barely read them.

It's infuriating.

People take one headline, make one or two sarcastic comments and suddenly think they've solved the entire case.

Going back to police commenting on legal cases, it's also important to remember that police officers are not lawyers.

They receive legal training relevant to policing, including Charter training, but they don't practise evidence law.

They don't make the same admissibility decisions that judges and lawyers have to make at trial.

That area of law gets extremely complicated.

There are issues the Supreme Court of Canada has to weigh in on repeatedly.

If the Supreme Court decided something once and suddenly everyone understood every possible application, there wouldn't be much impaired-driving litigation.

But these issues come up again and again.

In the prosecution system, Crown prosecutors make decisions about whether to prosecute, discontinue charges, negotiate resolutions and assess evidentiary problems.

Those decisions involve a host of considerations.

Police have a different role.

They investigate offences, arrest individuals when appropriate, compile the investigation and provide that disclosure to the Crown.

The Crown then has to exercise independent judgment.

Before we turn to comparable issues in Alberta, one thing that's important about this later report is that it's not a trial.

It's not evidence being tested in an adversarial proceeding.

It's an investigation into whether the officers should face further consequences for potential collusion, dishonesty or misconduct.

Right.

The report ultimately came back and people have described it as clearing them.

But essentially it concluded there wasn't sufficient evidence to pursue further consequences.

That's different from having a new trial where all the evidence is tested again.

The evidence in the report wasn't challenged in the same way evidence would be challenged at trial.

There wasn't defence counsel cross-examining witnesses or presenting competing evidence.

As far as I understand, there wasn't an external adversarial response testing every conclusion in the report.

That's why it's problematic to hold up the report and say, "Obviously the judge was wrong."

That's right.

I'd also be interested to know whether investigators interviewed the accused, reviewed the full trial transcripts and confronted officers with specific portions of testimony.

Another important issue is the burden of proof.

The accused was acquitted under the criminal standard of proof beyond a reasonable doubt.

Police disciplinary or regulatory proceedings operate differently.

The legal standards and burdens can be different.

Going back to the jury instruction, the judge was dealing with evidence from officers that was remarkably similar in certain respects.

If she concluded that the jury legally needed an instruction explaining how to assess that issue, she had a duty to properly instruct them.

If the Crown believed the instruction was legally wrong, they had mechanisms to object or potentially appeal.

I didn't see anything indicating that happened successfully.

The evidence at issue included an officer describing very specifically how the deceased was standing or approaching the vehicle, including aspects of his body position.

There was video evidence that appeared inconsistent with that account.

Other officers testified to a very similar version of where he was standing and what he was doing.

That's where the concern arose.

If the video doesn't show the event happening that way, then extremely similar descriptions by multiple witnesses can raise questions.

What a coincidence.

Right.

That was essentially the concern.

If I recall correctly from what I read, one part of the later report was that investigators concluded there wasn't much opportunity for the officers to collude.

But these officers worked together.

They were at the scene together.

How long does it actually take for someone to say, "This is what I saw," and somebody else to agree?

It can take seconds.

Collusion doesn't necessarily require some elaborate month-long plan.

Someone could simply say, "I saw his hands up," and another person who didn't get a clear view could adopt that recollection.

I'm not saying that's what happened.

It's just an example of how quickly influence between witnesses could theoretically occur.

I do feel somewhat bad for Ontario police because they've had a lot on their hands.

But this also reminded me of a situation in Edmonton involving a manslaughter resolution where Edmonton Police publicly criticized the outcome.

I don't think the Alberta government weighed in significantly, which I think was the appropriate approach.

But even having the police service issue a public statement disagreeing with a prosecution decision can influence the court of public opinion.

It can undermine not only the justice system but also the prosecution service and the decisions prosecutors are required to make.

Yes.

Then you get angry members of the public posting online.

Prosecutors, meanwhile, have ethical obligations.

They have a duty to apply the law to the evidence and assess their case independently.

When police publicly attack a prosecution decision, they're putting their thumb on the scale.

Maybe they believe they're advocating for victims.

In the Edmonton situation we're talking about, there had been an extremely tragic death.

But police aren't necessarily in a position to assess every legal issue that ultimately affects whether a case should proceed in a particular way.

They conduct the investigation and provide it to the Crown.

Issues like admissibility, hearsay, expert evidence, notice requirements and medical evidence can completely change a case.

A prosecutor may have considered all of those things before agreeing to a resolution.

In the Edmonton case, I read the reported decision.

The judge actually treated the public conduct of the Edmonton Police Service as a mitigating factor in sentencing because the public commentary had effectively placed a target on the accused.

From my time at the Crown Prosecutor's Office, both as a prosecutor myself and watching senior prosecutors make difficult decisions, I would have found it really offensive if a police service publicly suggested I simply didn't want to run a case or was trying to save court time.

There are very senior prosecutors handling homicide cases.

They're meeting with victims.

They're meeting with police.

They're preparing these files carefully.

They want to prosecute cases where prosecution is appropriate.

Particularly in serious cases, they're not casually resolving matters because they have vacation plans.

That's not what's happening.

What bothered me about some of the public reaction was that police commentary made it sound like prosecutors were lazy, didn't care or that the justice system simply wasn't working.

Most members of the public haven't gone to law school.

They don't know every evidentiary or procedural issue that might have come up.

They also may not understand the limitations on what judges can do when lawyers present a joint resolution.

So you have to place significant trust in experienced prosecutors to understand the case they're handling.

In Alberta, we have experienced prosecutors handling serious matters and they're willing to litigate them.

That's why I found some of the public commentary difficult.

People can jump on a headline immediately without understanding what actually happened.

That's also why comments from premiers about judges, or proposals to give governments more influence over the judiciary, are concerning.

We have a public that relies heavily on headlines and social media.

Media organizations, influencers and political actors all want engagement.

That creates an incentive to post flashy clips that make people feel like they understand the entire case when, in reality, they may have read two lines from a novel.

That's right.

So let's play out the demand for an apology.

The judge says, "I'm sorry for putting that in my jury charge."

What happens then?

Does that somehow trigger the Crown to reconsider the case?

It doesn't really work that way because the Crown still has to apply legal principles.

From everything I've read, these officers have obviously suffered reputational consequences and potentially career consequences.

So I understand why people might want some form of vindication for them.

But that's not necessarily what the justice system is designed to provide.

If you want a definitive independent review, then obtain an independent review where evidence can be properly challenged.

There's a major difference between saying, "The evidence proves this did not happen," and saying, "There is insufficient evidence to proceed with further consequences."

That's right.

I don't know what the demand for an apology accomplishes other than influencing public opinion.

It comes back to why the judicial branch is supposed to be independent.

Part of the reason is so courts can maintain public confidence without being constantly undercut by politicians.

Today, social media gives people access to much more information about criminal cases than they had in the past.

Before I went to law school and became interested in criminal law, I wasn't following courthouse updates every day.

I probably couldn't have told you where the courthouse was.

Now people constantly see criminal cases on Twitter, Facebook and other platforms.

They have more information, but they often don't have the legal foundation needed to understand how those decisions are actually being made.

Not because that information isn't available.

It's just not catchy.

Nobody wants to watch an hour-long explanation of section 8 of the Charter.

You're probably not getting a million views.

Maybe you're not even getting 10.

That's why it's problematic when police or politicians weigh in on complicated legal cases without considering the effect those comments have on an informed public.

That's right.

I have significant concern about people participating in our democratic system while believing the justice system is failing based only on incomplete information.

That creates uninformed voters.

Absolutely.

And the only thing worse than a non-voter is an uninformed one.

That's a huge concern.

In Canada, we don't elect our judges.

No.

In parts of the United States, judges do run in elections.

I'm of the view that creates serious problems because suddenly campaign advertisements can focus on conviction rates or individual cases.

You get attack ads saying, "This judge acquitted someone charged with sexual assault. Don't vote for them."

In my opinion, that's not how we want judicial decisions being evaluated.

We want judges making decisions according to the law and evidence, not worrying about the next election.

There's also been discussion in Alberta about having more provincial influence over the appointment of federally appointed judges.

The concern is that people begin thinking judicial appointments should reflect a provincial government's political preferences.

But we don't have separate partisan systems of criminal law from province to province.

Alberta does appoint provincial court judges, but superior court appointments involve the federal appointment process.

It's concerning when public messaging causes people to think judges are supposed to represent a political government.

Right.

Then people start questioning whether judges are actually independent or unbiased.

Going back to the United States, Supreme Court justices are federally appointed, but many state-level judges are elected.

In those systems, judges can effectively become politicians with law degrees.

One of the benefits of the Canadian justice system is that it doesn't operate that way.

Judicial appointments aren't supposed to depend on whether someone votes NDP, Liberal, Conservative or doesn't participate politically at all.

That's an important strength of the system.

Political attacks on judges can cause the public to lose sight of that.

I do feel for Ontario police.

I think they're trying to rebuild public confidence in their service.

I'd like to think that Premier Ford and others who spoke publicly were partly trying to accomplish that.

I just fundamentally disagree with how they went about doing it.

Right.

There were many ways they could have said, "This report concluded further charges or consequences were not warranted," without attacking the judge, attacking the justice system or undermining the prosecution.

That would have made the same point without creating the same institutional problem.

I think that's really what happened here.

Naming an individual judge can also become problematic.

The judge's identity is public information, but when a politician uses a judge's name while trying to rally public opinion, it can place that individual under a very different kind of spotlight.

We've seen examples of that becoming extremely problematic in the United States.

Then you can bring this back to Alberta, where judges have effectively said, "Keep your thumb off the scales of justice."

The judiciary is an independent branch.

Canada's parliamentary system depends on the judiciary being separate from the executive and legislative branches.

That's not a new idea.

It's one of the oldest concepts our democratic system is built on.

The chief justices of Alberta's three levels of court — the Alberta Court of Justice, Court of King's Bench and Court of Appeal — released a joint statement emphasizing the importance of judicial independence.

For quite some time, that statement was displayed prominently on Alberta court websites.

You had to scroll past it before reaching resources that would ordinarily appear first.

I've been practising for about 14 years.

I've never seen anything quite like that.

I've talked to senior lawyers around the courthouse and I think it's fair to say it was an extraordinary response to tensions between government and the judiciary.

It reminds me of disagreements during the Harper government between the federal government and Chief Justice Beverley McLachlin.

There were major debates at the time about tough-on-crime legislation and limits on conditional sentences.

At that time there was far less social media and much less public coverage.

If you weren't in law school or closely following legal news, you may never have known about it.

But even then, I remember thinking, "I don't think you can do that."

Whenever this type of issue comes up, the fundamental question is simple:

Do you want the judges who are sitting in court, who understand the law and have heard hours or weeks of evidence, making the decision?

Or do you want a politician sitting in the legislature making it?

You want the judge making the decision based on tested evidence and the law before them.

You don't want judges wondering whether they're going to be publicly called out, whether their name will appear in political messaging, or whether they need to worry about their family because they made an unpopular legal decision.

That's a huge line to cross.

It'll be interesting to see how these tensions play out moving forward.

But that's all the time we have today.

Curtis, thank you for coming on the podcast and chatting about this.

Thank you for having me.

It's an interesting topic, but also a delicate one.

Until next time, we'll see you guys later.