Sunday, June 27, 2010

David Chen: the Law versus Common Sense

Look no further than the criminal charges against Toronto shop keeper David Chen to see how law enforcement can morph into farce.

May 2009: A security camera showed Anthony Bennett, a thief with 43 convictions, stealing $60 in plants from Chen's store, the Lucky Moose in Chinatown. The thief returned an hour later, and was apprehended by Chen and his employees. They held him until the police arrived four minutes later.

In addition to charging Bennett with shop-lifting, the zealous constable charged Chen and his employees with assault, kidnapping, forcible confinement, and possession of a concealed weapon. The weapon was a box cutter used in Chen's retail business, and attached to his belt. (Shades of the killing of Robert Dziekanski where the RCMP claimed a stapler an offensive weapon.)

Crown Prosecutor Colleen Hepburn offered to drop the kidnapping and assault charges if Chen pleaded guilty to forcible confinement and possession of a weapon. For this he would receive an 18-month suspended sentence and a criminal record. Chen refused. The kidnapping and possession charges were dropped anyway.

A charge of kidnapping entitles defendants to a jury. The Prosecutor rightly feared Chen's peers would do the sensible thing and find everyone not guilty. The two remaining charges will be heard by a judge sitting alone.

For pleading guilty to this and yet another theft charge, serial criminal Bennett got 90 days jail time reduced to 30 days on condition he testify against Chen -- a despicable use of prosecutor discretion.

The criminal code allows a citizen to arrest someone if caught committing the crime, a law that goes back to ancient times of hue and cry. Since then, surveillance cameras have been invented. They operate in lieu of the shopkeeper standing guard all day. Any reasonable judge would modernize the concept of citizen arrest to include the Chen situation, and accept camera evidence as sufficient grounds for later arrest.

Should the judge find guilt, the vagaries of the law will reveal themselves. We can be sure fee-sniffing, ambulance-chasing lawyers are already salivating to offer Bennett a deal -- split the take in a civil suit against David Chen. Given the quirks of the legal system, a judge might well award damages to the thief. But that's for another post.

October 29, 2010: Chen and his employees were found not guilty. On occasion, judges do the right thing. The law under which they were arrested was amended in June 2012.

Thursday, June 24, 2010

The Media and CSIS

This post has been sent to The Globe and Mail editor

Under the headline, "Fadden raises espionage alarm," The Globe and Mail reporter Sarah Boesveld begins, "At least two provincial cabinet ministers and a number of other government officials and employees are under the control of foreign countries as part of espionage schemes, Canada's top security official said Tuesday." (Italics mine)

No such thing was said by Richard Fadden, director of the Canadian Security Intelligence Service (CSIS). Not until the fourth paragraph does Boesveld let him speak, "We're in fact a bit worried in a couple of provinces that we have an indication there are some political figures who have developed quite an attachment to foreign countries."

A report from the CBC's Brian Stewart constitutes the bulk of the remainder of this news item. According to Stewart, Fadden "deems" the two cabinet ministers to be "agents of influence" or "secret supporters." Boesveld correctly attributes these words to Stewart, not Fadden.

Beware of reporters quoting each other, especially when the original reporter claims that a third party was merely "deeming" something. One reporter's speculation becomes another's fact. The next day, a Globe editorial massaged Stewart's "deeming" into a "declaration".

As did most other media, the Globe missed the real point, the real need in this affair. Fadden alerted malleable politicians that they are being watched.

Suggested solution: All politicians should immediately post on their websites the source of all gifts from, and free trips to, foreign countries. Then, investigative reporters might check relevant voting records to determine the truth of these "deemings." The innocent have nothing to fear.

Saturday, June 12, 2010

Equality of Punishment

of the Canadian Criminal Code reads in part: "A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender . . ."

When sentencing someone convicted of a crime, judges consider many things -- the background of the accused, motivation, physical ability to endure prison, financial ability to pay a fine, the efficacy of the proposed punishment, and so on.

Applying court reasoning, this is a plea for equality of punishment for parking and driving offences. A thousand dollar fine may annoy a wealthy person. It would devastate a poor one. There is no equality of punishment. To bring such about, vehicles will be categorized by their cost, as there is a co-relation between the cost of the car and the owner's income.

If the fine for a parking offence is $30 for the owner of a basic car, the fine for the operator of an extravagant model may be $100 or more for the same offence. And the others in between.

The same thinking applies for driving offences. Finland assesses speeding tickets in proportion to the violator's income. Fees, fines and costs varying with ability to pay constitutes acceptable, indeed desirable, discrimination.