Three Strikes and You're Out - Part 2

by Gary McHale for May 04, 2011 Regional News

The preamble to the Canadian Constitution states, "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law..." We are a country of laws whereby no government official has the authority to suppress, ignore or nullify those laws.

This past week has seen just how far the Crown's office is prepared to openly violate the very laws they have been entrusted to uphold. All Constitutions within any democratic society are designed to limit and control governments and their agents. Constitutions are not restrictions upon the citizens but upon governments to ensure the rights and freedoms of all citizens.

The Canadian Charter of Rights and Freedoms is section 1 of the Constitution Act of 1982. As such it has supremacy over all governments and their agents - meaning it must be obeyed. The interpretation of the Constitution is in the hands of the courts - the highest being the Supreme Court - and not in the hands of government officials. Thus, when the Supreme Court rules those rulings are binding over all in Canada whether you are an average citizen or government official.

Why then does the OPP and the Crown openly and continuously violate the fundamental Laws of Canada? Such violations cannot be mere mistakes but a systematic attack upon the supremacy of the Rule of Law.

It is established law as part of fundamental justice as ruled by the Supreme court in the Stinchcombe ruling that investigating officers must (not optional) turn over their notebooks to the defence. So far the Crown has repeatedly refused to do so.

Last week I forced the OPP to explain to the court why they placed travel restrictions upon me. The officer who charged me took the stand and admitted he still has not turned over his notebook. I was given an opportunity to cross-examine him.

The officer testified he didn't know what the criminal code said about trespassers on private property nor about what it says about removing trespassers. He testified that he didn't know what the criminal code stated about who should be charged if there is an assault due to a trespasser. He testified he didn't take the time to review the criminal code before arresting me. He avoiding answering any questions about whether Tom Keefer had permission to be on the private property.

Both the Crown and the Justice of the Peace repeatedly demanded I not ask any questions related to who had legal right to use the property, who had authority to remove trespassers and whether the charge against me has any chance of getting a conviction at trial.

I realize that the ex-Commissioner had instructed OPP officers to overlook 'legal nuances' but we all should understand that 'legal nuances' are what makes something legal or illegal.

For example, a police officer charges someone with speeding but overlooks the legal nuance  of what is the posted speed limit. A police officer charges you with auto theft without checking to see whether you are the owner of the car. A police officer charges a parent with assault for slapping a child's hand once without first reviewing the fact that section 43 of the criminal code states "Correction of child by force: Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances."

It is those little legal nuances that ensure the rule of law is upheld properly. Both the OPP and Crown want to overlook the fact that the criminal code is clear that the trespasser, not the lawful user of private property, is to be charged with an assault if the trespasser resists being removed from the property. The law states, "a trespasser who resists an attempt by a person who is preventing his entry or to remove him, shall be deemed to commit an assault..."

The word "shall" in the criminal code means there is no option - it must be the trespasser who is charged with the assault not the legal user of property.

We all know the OPP doesn't care much about what the law states but for the officer not even to make an effort to review the criminal code before charging me shows a complete contempt for the laws of this country.

It isn't just the OPP that shows contempt for the laws of this country but the Crown as well. Most Justices of the Peace, unfortunately appear to simply follow whatever the Crown tells them.

For example, the Crown repeatedly demanded the Justice tell me not to raise any question about the strength or weakness of the Crown's case - the Justice agreed with the Crown. However, the Superior court has already ruled on this issue. The court stated, "the bail judge declined to consider the strength or weakness of the prosecution’s trial case; that is an error of law. "

Since my application was a bail variation hearing, the Justice is legally obligated to hear all evidence related to the strength or weakness of the case. In fact, the Supreme Court has stated, "Parliament has specifically identified the 'apparent strength of the prosecution’s case' as a factor to be considered at a bail hearing".

When the court says 'Parliament' it means that it is written in the law and thus you will find in section 515(10)(c)(i) it states that the Justice must review "the apparent strength of the prosecution’s case".

Furthermore, the Crown also demanded that I not be allowed to question the credibility of the witness - i.e. the OPP officer. In short, the Crown wanted the officer to be able to testify to any details the OPP wanted without me having the right to challenge whether that testimony was accurate or trustworthy.

Again the rules of fundamental justice are quite clear. The courts have ruled that, "the crown must call evidence either in the form of viva voce testimony or affidavits and that the evidence must be subjected to cross-examination to test its credibility."

The role of the Crown is to ensure the rule of law is upheld and that justice is served. Violating the law, court rulings and the Charter isn't the role of the Crown.

Part 3 next week.