Race and Windsor's Dean Search

I have been observing from the distance Dr. Emily Carasco's human rights litigation against the University of Windsor's Faculty of Law. Dr. Carsco - who is a woman of Indo-Canadian background - was an unsuccessful candiate for the vacant position of Dean of the Faculty of Law. She filed a human rights complaint with the Ontario Human Rights Tribunal asserting that the school had violated her right to be free from discrimination on the basis of race by over-looking her for the position.

In responding to her complaint the school retained high profile union/human rights lawyer Mr. Raj Anand to argue that the school's acts and omissions in the search for a Dean was devoid of any racial animus and thus not in violation of the Ontario Human Rights Code. Mr. Anand - like Dr. Carasco is of Indo-Canadian background. If the University of Windsor retained Mr. Anand because of his Indo-Canadian background they are well within their legal rights to do so but if nothing more the optics of their choice of counsel reminds me of the popular anti-racist response "some of my best friends are Indo-Canadian." It may be that I am less than objective on this issue since the same Mr. Anand once represented me in litigation against the same University of Windsor. I don't know. Mr. Anand is by all accounts an outstanding laywer. It may be that nothing short of an Indo-Canadian lawyer can competently represent the University of Windsor in this particular litigation. It may be that this is all a coincidence - Mr. Anand is an outstanding human rights lawyer who so happens to be of Indo-Canadian background.

NOTE: This piece is written for the sole purpose of shedding light on an issue of public importance. It is recognized that parties are free to retain the lawyer of their choice.

Jury Questions and Answers Point to Unfair Trial for Mr. Smith

The jurors in the Wilton Smith trial asked some critical questions of the trial judge, Justice Ewaschuk. However, the answers they received in response points to the inescapable conclusion that Wilton Smith did not have a fair trial and that his conviction for first degree murder was and remains a miscarriage of justice.

In an effort to illustrate the unfairness of the trial which resulted in Wilton Smith's conviction for first degree murder I will reproduce verbatim the questions asked by the jury and the answers provided. Where it is helpful to illustrate the unfairness of the trial process I will also quote various statements by the trial judge during his discussions with counsel. In this piece I will focus on two questions. I will in a later piece address the other questions.

Question
by jury:

How did Joseph Pryce Testimony
Came to be found ?

Answer by
trial judge (Justice Ewaschuk):

"There is no evidence in the case as to how the police came to know that Joseph Pryce may have had - may have known something relevant about the case. The only evidence is that Detective Bronson found Joseph Pryce. Joseph Pryce did not call the police. He was surprised at their arrival. That's the answer to number three."

Question
by jury:

At what time in relation to the
murder of Miss Innis did the machete
sharpening take place ?

Answer by
trial judge(Justice Ewaschuk):

"Joseph Pryce's initial testimony here was that he was not sure when the man came with the machete. Next he testified that the man may have come when it wasn't warm out and you needed a jacket. He said it may have been six months before the police arrived on January 6th, 1993. That's the date Detective Bronson interviewed him, January 6th, 1993. Still later he testified that the man came with the machete maybe one to three weeks before he saw the black/white profile of the man on television. That's the evidence."

There you have it. Two crucial questions from the jury and the answers provided by the trial judge. In the next issue I will analyze these answers and some of the comments of the trial jduge during the exchanges with counsel on how the questions will be answered.

Note: This publication is written for the sole purpose of drawing attention on a matter of public importance. Democracy and the rule of law works best when ideas and information is freely exchanged.

Mr. Pryce's I.D. Evidence Classic Tunnel Vision Overlooked by Justice Ewaschuk

The lawyer representing the Crown in Mr. Smith's trial called Mr. Pryce as a witness in order to make the connection which the preliminary inquiry judge had previously told the Crown was missing in their case, namely, in an effort to proffer some evidence linking Mr. Smith to the crime. The theory of the Crown's case was that the deceased was killed by a blow to her neck with a sharp instrument. In comes Mr. Pryce to testify that Mr. Smith came into his shop to sharpen a machete. Police then show up at his shop in January 1993 - some four months post commital to stand trial and show him 12 photos and he picks out Wilton Smith "as the man who came in to sharpen the machete."

I have taken the time to review the transcript of this man's evidence. The following is a summary of the key passages:

- Crown counsel asked - "Can you tell me when it is that the accused came in and
sharpened the machete ?

- Mr. Pryce replied - "No, I can't.

- Crown counsel asked - "Now, you told us that when the police officers came
to speak to you that day and they were in the car, that that -- you
didn't know they were coming and you didn't know what they were going to
talk to you about, is that right ?

- Mr. Pryce replied - "I have no idea."

- Crown cousnel asked - "And did you know you were going to be presented with
these pictures ?

- Mr. Pryce replied - "Nope, I didn't know."

Cross-Examination:

- Defence counsel asked - " "So this man was completely out of your mind for
all of this time ?

- Mr. Pryce replied - "Yeah, until I was at work. I was shocked when the
cops came."

- Defence counsel asked - "How long after was it ? You wern't able to tell
Mr. McDermott ?

- The Court (Justice Ewaschuk) - "So we're talking about the police came January 6th...

- Defence counsel - "'93"

- The Court (Justice Ewaschuk)- "'93. and let's assume you saw him on television some time
in March of '92 or a picture..."

- Defence counsel - "My lord, you've put the date to him."

- The Court - "Well, all right. Fine."

- Defence counsel - "I was trying to get his recollection."

- The Court (Justice Ewaschuk)- "Well, he says he doesn't have a recollection. He says he
sees the man on television. He's charged with murder. Now, is that
going to be in dispute ?

- Defence counsel - "Yes, it is, my lord. It's in very grave dispute."

- The Court (Justice Ewaschuk) - "It's not in dispute when the accused was charged."

- Defence counsel - "It's in dispute when this man saw him."

- The Court (Justice Ewaschuk)- "That's right. He says he can't remember. You can try to
help him if you wish. To ahead."

- Defence counsel - " You can't even say if it was March, can you ?

- Mr. Pryce - "No. Like I said, in these thngs I don't keep on track."

- Defence counsel - "You're not saying are you, that this man was in your
shop only a couple of weeks before the police came ?

- Mr. Pryce - "No, no."

- Defence counsel - "Couple months ?"

- Mr. Pryce - Hold on. I can't exactly remember. I know it was - it was a long
time before the cops came cause like I was totally even forget about it."

- Defence counsel - "Totally wiped out of your mind ?"

- Mr. Pryce - "Until they came."

- Defence counsel - "But you did pause for quite a long time considering
whether you'd agree with me when I suggested it was just a couple of months,
right ?

- Mr. Pryce - "Yep."

- Defence counsel - "So it could even have been in the fall of 1992, right

- Mr. Pryce - "Could be. I don't know."

Analysis:

Mr. Pryce did not have a recollection of when he made the observation he testified he made. The trial judge was clearly aware of this as he is quoted in the transcript above on this point. At one point he agrees with defence counsel that his observation could have been made in the fall of 1992. All he is sure of is that he was wearing a coat when the observation was made. In my view, this evidence is so unreliable that it ought not to have been admitted into evidence at all. It is clear that the trial judge's statement in his charge to the effect that - "Obviously, the identification was made at least ten to eleven months after Mr. Pryce had seen the man wit the machete at the machine shop." was prejudicial and improper.

Another serious problem with the evidence of Mr. Pryce is that it simply makes no sense and lacks any air of reality. Det. Bronson just shows up at Mr. Pryce's place of work one day and shows him a photo-line-up containing a picture of a man who supposedly attended at his shop to sharpen a machete some time in the past. No effort is made by the police to determine when the observation is made. No explanation is provided by the police on the important question of how it is that they came to attend at this shop on this day with the photo-line-up.

I am not a jurist. I am not a scholar. I am a mere rights litigation lawyer. Mr. Pryce's own testimony demonstrates that what ever evidence that Mr. Pryce had to offer with respect to Wilton Smith's guilt is highly suspect and in my humble opinion is no evidence at all. This is what this man said in response to questioning from Crown counsel:

Q. "What did Det.Bronson tell you that he was wanting to talk to you about ?

A. "About some murder, about a guy came in to sharpen a machete."

Clearly Det. Bronson knew about Mr. Pryce's "evidence" before he attended to speak with Mr. Pryce. Clearly Det. Bronson had already prepared the photo-line up with Mr. Smith's photo in it before meeting Mr. Pryce. How did Det. Bronson know to go to Micron Screw and speak to Mr. Pryce ? Mr. Pryce did not initiate the contact. You will recall that he was shocked when the police arrived at his place of work.

NOTE: This piece is written for the sole purpose of shedding light on an issue of public importance. Anyone having any information regarding this case is urged to contact the writer at ejguiste.rightslawyer@gmail.com

Wilton Smith's Photo published in newspapers on March 12th, 1992

I have now obtained a copy of the March 12th, 1992 stories published by both the Toronto Sun and Toronto Star on the Wilton Smith case. A photograph of Wilton Smith in prominently published on both publications. The Toronto Sun version has the following words under the photo: "Wilton Smith Surrendered". The photo of Mr. Smith appears to be the same photo in each publication.

The above information begs answers to the following questions:

1. Was Mr. Pryce a reader of either the Toronto Star or
Toronto Sun ?

2. Was the photo of Wilton Smith used in the line-up the
same photo which was published in the newspapers ?

3. What was the exact instruction provided to Mr. Pryce
when the line-up was shown to him ?

Note: This publication is made for the sole purpose of shedding light on an issue of public importance. Anyone having information on the issues raised in this publication are invited to contact the writer or the Toronto Police Service - Chief William Blair.

I had a dream: A law to protect women and children

I had a horrible dream the other night. It was in fact a very disturbing nightmare. I dreamt that Russell Williams, Robert Picton, Paul Bernardo, Clifford Olsen, and Ted Bundy were men of African descent - aka - Black. In my dream the government took drastic and draconian action and passed leglislation "designed to protect women and children." The legislation provided for the following:

An Act to Protect Women and Children:

Whereas emperical evidence demonstrates that men of African
descent present a clear and present danger to women and children
and that less intrusive means have proven to be ineffective in
remedying this pressing and serious social problem the
legislature hereby passes the within enactment. The following
is a summary of this law:

1. Segregation -men of African descent shall be banned
from owning property unless the government provides
express authorization;

2. Identification - all men of african descent convicted
of a designated sex crime or homocide shall be branded
with a P on their foreheads;

3. Identification - all men of african descent shall carry
a state issued i.d. card which they must show to police
on demand;

4. Incarceration - all men of african descent convicted
of a designated crime shall be jailed for life with no
chance of parole until their death.

I was quite relieved to wake up and find that this was all a dream. However, it has forced me to think about the following pressing questions:

1. Are law and policy makers doing enough to protect
women and children from the likes of Williams, Bernardo
Olsen, Pickton, and Bundy ?

2. Would the response be different if these men were Black ?

3. How does the budget dedicated to guns and gangs compare
to the budget dedicated to protection of women and children ?

What do you think ?

NOTE: This piece is written for the sole purpose of encouraging debate on a matter of public importance. Democracy works best when ideas are freely exchanged.

Did comments by trial judge(Justice Ewaschuk)invite guilty verdict for Wilton Smith ?

Recommendation 81 of the Commission on Proceedings Involving Guy Paul Morin is arguably the most direct and cost-effective antidote to curing the malaise of wrongful convictions in our system of justice. It reads as follows:

"The Government of Canada, upon recommendation of
the Canada Law Reform Commission, should consider
whether the common law should be altered, through
legislative amendment, to limit the ability of a
trial judge to express his or her opinions on
issues of credibility to the jury and further alter
the obligation imposed upon a trial judge to outline
the most significant parts of the evidence for the
jury."

While the common law practice of allowing judges to comment and give their opinion on evidence to the jury may have worked well in the social, economic and educational realities of pre-industrialized English society, it is inconsistent with the basic tenets of our adverserial system and the rule of law. In a criminal jury trial there are four parties, namely, judge, jury, prosecutor and defence counsel. The judge is the judge of the law. His or her role is to see to it that the trial is conducted in accordance with law. The jury is the judge of the facts. Allowing the trial judge to comment on the evidence and provide his or her opinion on it to the jury usurpts the fact-findng function of the jury. The fact that the trial judge informs the jury that they are not bound by his or her opinion does not detract from the potential for harm. The rationale for this is simple. It is impossible to know with certainty what - if any impact - the comments or opinion may have on the jury. The mere possibility that it could influence the jury should be sufficient to justify its abolition. It is for counsel for the prosecution and the defendant to put their version of the facts to the jury for its consideration.

In this session I will attempt to illustrate how the practice of the trial judge providing commentary or opinion on the facts of the case during the charge in the Wilton Smith prosecution may have influenced the jury's finding.

Trial Judge's (Ewaschuk J.)Comments in
R v. Wilton Smith:

"I am turning now to my comments as to the charge.
Let me point out the obvious. The accused has
denied he killed Patricia Innis and no one has
testified that he or she saw the accused do it. Thus,
the real issue is whether the accused or Iona Davis
killled Patricia Innis. This issue is for you to
resolve, if possible, and is not for me to resovle.
I assume for the following commentary that the Crown
has proven beyond a reasonable doubt that the accused
killed Patricia Innis."

"The person who killed Patricia Innis severed her
cervical or neck spine with one blow from a sharp,
heavy instrument. It is a reasonable and logical
inference that that person intended to cause Miss
Innis' death or, in the least, meant to cause her
bodily harm that he knew was likely to cause her
death and was reckless whether death ensued or not.
It is not a mandatory inference, but is the most
likely inference in this case. Simply bring to
bear your assessment of the accused and all of the
evidence of the case in determining whether the
accused's state of mind was such that he had
the requisite intent to murder Miss Innis at the
time when he struck her with the sharp, heavy
instrument by inflicting the one deadly blow to
her neck. I assume then that the accused had the
requisite intent for murder and turn next to the
issue of whether the murder was planned and deliberate."

"Certainly if the accused was the person who sharpened
the machete, if he phoned Delroy Benjamin with the
false promise of a job in order to lure him out of the
apartment and if the accused brought a fake present for
Miss Innis in order t gain entry into the apartment, all
of these factors may be taken into account in determining
whether he had formulated a plan to murder Miss Innis.
As for the question of deliberation, the issue is more
problematic since there is no evidence of what occurred
between the accused adn Miss Innis when he killed her.
It appears that Miss Innis did not cry out so that it is
likely that she was not expecting the blow. If so, they
were also likely not face-to-face quarelling otherwise
she would have expected the blow. She would have seen it
coming. It would, nonetheless, be open to you to infer
beyond a reasonable doubt that the accused had a plan to
kill Miss Innis and that the plan took him to her
apartment where, in accordance with the plan, he
deliberately murdered her. That inference is permissive.
It is not mandatory and the Crown must prove those
essential matters beyond a reasonable doubt. The
accused need not prove anything."

"Finally, I turn to the issue of manslaughter. I assume
that the accused killed Miss Innis but had formed
neither intent requisite for murder. On this scenario,
I agree with the concession of defence counsel that the
accused, if he killed Miss Innis, which they expressly
deny, is in the least, guilty of manslaughter."

"At this point, I am going to interject to say this -
that a review of Susan Kern's evidence indicates that
she found blood on both legs, outer legs of the accused's
jeans. If you want that evidence read back to you,
simply ask for it later through the form of a note. The
court reporter will gladly read it for you and would
gladly read any other evidence that you wish to have read
back to you."

"Obviously, the identification was made at least ten to
eleven months after Mr. Pryce had seen the man with the
machete at the machine shop."

Analysis and Commentary:

The following comments from the trial judge's comments to the jury had the potential to influence the jury in finding Wilton Smith guilty:

1. "I assume for the purpose of the following commentary
that the Crown has proven beyond a reasonable doubt
that the accused killed Patricia Innis."

2. "Simply bring to bear your assessment of the accused
and all of the evidence of the case in determining
whether the accused's state of mind was such that he
had the requisite intent to murder Miss Innis at the
time when he struck her with the sharp, heavy instrument
by inflicting the one deadly blow to her neck."

3. "I assume then that the accused had the requisite intent
for murder and turn to the issue of whether the murder
was planned and deliberate."

4. "It would, nonetheless, be open to you to infer
beyond a reasonable doubt that the accused had a
plan kill Miss Innis and that the plan took him to her
apartment where, in accordance with the plan, he
deliberately murdered her."

5. "Finally, I turn to the issue of manslaughter. I assume
that the accused killed Miss Innis but had formed neither
intent requisite for murdr. On this scenario, I agree
with the concession of defence counsel that the
accused, if he killed Miss Innis, which they expressly
deny, is, in the least, guilty of manslaughter."

6. "Obviously, the indentification was made at least ten
to eleven months after Mr. Pryce had seen the man with
the machete at the machine shop."

7. "At this point, I am going to interject to say this - that a review of Susan Kern's evidence indicates
that she found blood on both legs, outer legs of
the accused's jeans. If you want that evidence
read back to you, simply ask for it later through
the form of a note. The court reporter will
gladly read it for you and would gladly read any
other evidence that you wish to have read back to
you."

I have thought long and hard to find some valid purpose in support of the seven
above-noted comments by the trial judge on the evidence and with the greatest of respect I am unable to find one. Why the assumption of guilt in statements 1-3 ?
What exactly is the message the trial judge is conveying to the jury in statement
4 ? These comments appear to be pointing out an outcome to the jury which points to guilt. This conclusion is bolstered by the fact that portion of the trial transcripts which is headed comments does not invite a conclusion of acquittal anywhere. Points 6 and 7 are consistent with this. In point 6 the evidence as to when Mr. Pryce made his observations was a fact capable of raising reasonalbe doubt since Mr. Pryce's own evidence appears to have been that the observation was made when Wilton Smith was already in police custody. Point 6 effectively deprives Wilton Smith of that doubt.

NOTE: This piece is written for the sole purpose of shedding light on an issue of publice importance and encouraging public discourse on such issues. I invite those who are more qualified than I to share their views and knowledge on the questions raised above.


October 11th, 2010

LESSONS FROM MORIN INQUIRY OFFER HOPE TO WILTON SMITH AND OTHERS

"Guy Paul Morin was 25 years old
at the time of his arrest.
He had no criminal record.
He lived with his parents in
Queensville, Ontario. He had a
grade 12 education. He had
attended various courses in
auto upholstery, spray painting,
gas fitting, air conditioning and
refrigeration. He worked as
a finishing sander with a furniture
manufacturer in October 1984, when
Christine Jessop disappeared.
His acquittal by the Court of Appeal
on January 23, 1995 was based on
fresh DNA evidence which established
that he was not the donor of semen
stains found on Christine Jessop's
underwear. Senior Crown Counsel and
then the Attorney General of Ontario
conceded that Mr. Morin was innocent,
and apologized to him for the 10-year
ordeal he and his family had undergone.
Ultimately,compensation was paid to him
and his parents by the Government of Ontario."

The above quote is taken from the Executive Summary and Recommendations of the Commission on Proceedings Involving Guy Paul Morin. That commission was established by the Government of Ontario to inquire into the investigation of the death of Christin Jessop and the prosecution of the charge that Guy Paul Morin murdered Christine Jessop. The Commission made a number of thoughtful recommendations with a view to preventing similar miscarriages of justice in the future. A number of those recommendations provide invaluable insight, context and credibility to the theory that Wilton Smith was wrongly convicted of first degree murder in 1994 and that his conviction ought to vacated. In this issue I will outline a key recommendation from the Commission on Proceedings Involving Guy Paul Morin which is applicable to the Wilton Smith investigation and prosecution - namely - education respecting tunnel vision.

Recommendation 74:
Education respecting tunnel vision

"One component of educational programming
for police and Crown counsel should be the
identification and avoidance of tunnel vision.
In this context, tunnel vision means the single-
minded and overly narrow focus on a particular
investigative or prosecutorial theory, so as to
unreasonably colour the evaluation of information
received and one's conduct in response to that
information."

Analysis:

Wilton Smith was convicted of first degree murder following a jury trial in April 1994 with Justice Ewaschuk. No one testified to seeing him commit the act. No murder weapon was ever recovered. He testified in his own defence that the person who committed the act was Ms. Iona Davis - a crown witness who claims to have found the body and called the police. She did not testify to witnessing Wilton Smith commit murder.

You will recall that the preliminary inquiry judge told the lawyer representing the prosecution when they moved for committal on the charge that he did not find that there was any evidence linking Wilton Smith to the crime. The parties adjourned the proceedings and resumed in order that the prosecution would adduce this evidence linking Wilton Smith to the crime. Wilton Smith was committed to stand trial but we will never know what that evidence was since the transcripts of that important part of the proceedings were destroyed pursuant to the Ministry of the Attorney General of Ontario's Retention Policy.

Joseph Pryce did not
testify at the preliminary
inquiry:

Joseph Pryce - the Crown witness - who testified to seeing Wilton Smith come into his shop to sharpen a machete had his first contact with police investigators on January 25th, 1994. This was five days following Wilton Smith's first attendance in Superior Court after being committed to stand trial for first degree murder after a judge stated clearly that there was no evidence linking him to the crime.

Was Joseph Pryce
the missing link ?

"In this case you don't have to look
very far. You look at the very manner
in which Patricia Innis died, a fact
ladies and gentlemen, that is not in
in this case. Can't be in dispute.
So what the defence do dispute is that
the accused picked out - that Joseph
Pryce picked out the accused."

The reasonable conclusion to be drawn from the above-quoted words of the prosecutor with respect to the purpose and function of Mr. Pryce's testimony is that his evidence is indeed the missing link. Patricia Innis was killed when her neck was severed by a sharp instrument. Joseph Pryce 'picked out" Wilton Smith as a person who attended his shop to sharpen a machete therefore he is the killer.

Classic tunnel vision:

The above reasoning represents classic tunnel vision. The deceased was killed by a sharp instrument to her neck. A witness is brought in by investigators suggesting he saw Mr. Smith come into his shop to sharpen a machete. The witness is very sketchy on identification features and when he made the observation but somehow those significant frailties in his evidence are glossed over or overlooked.

In this particular case the evidence tends to suggest that tunnel vision appears to have made its way into the trial judge's charge to the jury. Notwithstanding Mr. Pryce's testimony in cross-examination that his observation was made six months ago the learned trial judge expressly told the jury otherwise. He told them, "obviously the observation was made at least 10 - 11 months after Mr. Pryce had seen the man with the machete at the machine shop."

Commentary:

Joseph Pryce's testimony "linking" Wilton Smith to the murder of Patricia Innis is akin to the informer evidence tendered against Guy Paul Morin - both should have been the subject of greater scrutiny and properly excluded from evidence. If Mr. Pryce saw a man come into his shop to sharpen a machete when Wilon Smith was already in police custody for the crime it stands to reason that he "picked out" the wrong man. The trial records that I have reviewed to date suggests that Wilton Smith was already in custody for the crime when Mr. Pryce puts him as sharpening a machete at his shop.

In the next issue I will discuss Recommendation 81: Outline of facts and personal opinions of the trial judge. In Ontario the trial judge is entitled to provide his or her opinion to the jury and to outline the significant facts.

Note: This piece is written for the sole purpose of encouraging public discourse on an issue of public importance. Democracy and the rule of law works better when the players are all informed.

Crown: Joseph Pryce Trustworthy - Justice Ewaschuk Appears to "Correct" the Timeline of his Observation

The lawyer representing the Crown made no reference to the very live issue of when Mr. Pryce's observations of the man sharpening the machete was made in his closing address to the jury. He skillfully made the following points to the jury:

1. Joseph Price got it right,
2. Joseph Pryce is an honest, hard working,
decent citizen with no axe to grind,
with nothing against the accused,
3. you can trust him; and
4. the deceased died by a sharp instrument to her neck.

Excerpt from Smith
Appeal factum:

"It is respectfully submitted that the misstatement of fact
regarding when Mr. Pryce saw the man with the machete was
highly prejudicial. One of the primary frailties of
identification is timing. If someone could not have been
there because they were somewhere else, i.e. alibi, this is
strong evidence of false identification. Here, at the times
given by Mr. Pryce, the Appellant was already arrested and in
custody. By incorrectly stating that Mr. Pryce saw the person
10 or 11 months before the police came, the learned trial judge
effectively took away this alibi. (R v. Quercia (1990) 60 C.C.C.
(3d) 380 (Ont.C.A.)"

Excerpt from Crown
Counsel's closing
statement to jurors:

"Joseph Pryce isn't a witness who came forward, who
volunteered, who was anxious to be here. He saw a picture
on tv - the accused. His picture was released to the t.v.
It's a sideways black and white just like Joseph Pryce said.
Joesph Pryce is also a careful man. He said, "I couldn't tell.
I couldn't be fair from that picture. It wasn't good enough
for him to identify the person. The caution that you have to
use in your justy room Joesph Pryce was using as well ladies
and gentlemen. He was being as cautious as you hae to be after
listen to what his lordship will tell you. He exercised some
restraint and he said, I looked at that picture and I thought
there's the guy who came in and sharpened the machete, but I
wasn't sure. Joseph Pryce wanted to be fair. Can you have any
doubt, ladies and gentlemen, that Joseph Pryce is anything but
an honest, hard working, decent citizen with no axe to grind,
with nothing against the accused ? He just came here and told
you exactly what he saw and did not get it wrong."

The Crucial Misstatement
by the trial judge (Justice Ewaschuk):

"Notwithstanding those limitations, Mr. Pryce identified
the accused later from a 12 man photo array as the
person with the machete. Obviously, the identification
was made at least ten to eleven months after Mr. Pryce
had seen the man with the machete at the machine shop."

COMMENTARY:

The identification evidence tendered by the prosecution against Wilton Smith at his trial for first degree murder comes dismally short of the standard of a fair trial. Clearly, Joseph Pryce did not testify at the preliminary inquiry. This is clear because police maintain they attended at his shop on January 25th, 1993 - a mere five days following Mr. Smith's first attendance in Superior Court on January 20th, 1993. Mr. Pryce or the Crown seems to suggest in his closing at least that Mr. Pryce may have responded to a photo of Mr. Smith which was published on the news. The following questions come to my mind and require answers:

1. Was there in fact any publication of Mr. Smith's
photo by any Toronto area broadcasters in and
around the time of his arrest ?

2. If there wasn't Mr. Pryce's testimony is unreliable.

3. How was the initial police contact made ?

4. Reading between the lines in the Crown's closing on this
point one is left with the distinct impression that Mr.
Pryce saw the photo on tv and contacted the police who
then attended with their photo-lineup. Was there in fact
evidence on this point called at the trial ?

5. What does Crown counsel mean by this - "Joseph Pryce
isn't a witness who came forward, who volunteered, who
was anxious to be here. He saw a picture on tv - the
accused. His picture was released to tv. It's a sideways
black and white just like Joseph Pryce said. Joseph Pryce
is also a careful man. He said, I couldn't tell. I couldn't
be fair from that picture. It wasn't good enough for him to
identify the person. The caution that you have to use in your
jury room Joseph Pryce was using as well, ladies and gentlemen."

6. Did the police also show Mr. Pryce the picture they maintain
was published on tv along with the 12 man photo-lineup on
January 25th, 1993 ?

7. Did the police show the photo array shown to Mr. Pryce to
anyone else ?

8. Did the police make any inquiries as to when Mr. Pryce made
his observations ?


September 15th, 2010

E.J. Guiste.

MR. PRYCE: THE CROWN'S "STAR" WITNESS

Earlier in this series the statement by the preliminary inquiry judge to the the prosecution was shared with you. The judge told the prosecution in no uncertain terms that they lacked evidence connecting Wilton Smith to the murder of Patricia Innis. The proceeding was adjourned for the prosecution to adduce some evidence linking Wilton Smith to the crime. Wilton Smith was in fact committed to stand trial on December 1st, 1992 but the evidence heard at the continuation dates of November 30th and December 1st, 1992 have either been destroyed or lost according to the Ministry of the Attorney General for Ontario.

You will recall as well that the deceased's head was severed with a sharp instrument. No one witnessed Wilton Smith commit the killing.

Police locate Mr. Pryce
two months post committal:

Mr. Pryce works in a store in North York which, among other things, sharpens knives. Police maintain that they attended at his store on January 25th, 1993, showed him some photographs and he identified Wilton Smith as having attended his store to sharpen a machete. Mr. Pryce was called by the prosecution and he testified that a man attended his store to sharpen a machete, he was shown some pictures by the police and he picked out Wilton Smith's as the man who attended at his store to sharpen the machete. As remarkable as it sounds this is exactly how it played out.


Serious and profound
flaws in Mr. Pryce's
evidence:

Mr. Pryce was unable to elaborate on any specific characteristic of the man he claimed attended at his store to sharpen a machete. In addition and perhaps more significant is that it appears that the man who attended at his store to sharpen the machete did so when Wilton Smith was already in custody for the crime and could not have attended. When questioned by Mr. Smith's lawyer in cross-examination when the man attended at his store he responded that it was six months ago. Six months from January 25th, 1993 would land us in July,1992. The records show that Wilton Smith was arrested on March 11th, 1992 and has remained in custody since that time. He could not have attended when Mr. Pryce says he claims he saw him. It is just impossible.

Ordinarily such effective cross-examination leads to a finding of acquittal. If the star prosecution witness says that he saw the man sharpen the machete in his store when the defendant was in fact already in custody it is an understatement to say that the prosecution case has a serious problem. However, what happens following this brilliant piece of cross-examination soundly calls into question the propriety of Wilton Smith's conviction for the killing of Patricia Innis.

Excerpt from trial judge's(Justice Ewaschuk)
charge to the jury:

"The witness Joseph Pryce testified that the accused
came into his work place, Micron Screw Products in
Downsview, to have his machete sharpened. Mr. Pryce
testified that he had only seen the person with the
machete once before at Caribana and that he did not stay
with him during the whole of the ten to fifteen minutes
the person was there sharpening the machete. Furthermore,
he did not notice a scar on the person's nose and could
only describe him as short and having black hair and black
skin. Notwithstanding those limitations, Mr. Pryce
identified the accused later from a 12 man photo array as
the person with the machete. Obviously, the
identification was made at least ten to eleven
months after Mr. Pryce had seen the man with the
machete at the machine shop."

In relaying the prosecution theory the trial judge made the following statements about Mr. Pryce's identification evidence:

1. "Joseph Pryce is a damning witness against the
accused";

2. "Pryce did not know the accused was out on bail
for charges against Miss Innis";

3. "Pryce did not even know Miss Innis";

4. "Yet he was able to pick the accused out of 12
different black men in the photo array";

5. "The machete, of course, was the perfect sharp,
heavy instrument to have caused the single,
clean slash in Patricia Innis' neck. The blow
was so forceful that it severed her cervical
spine."

Timing of Mr. Pryce's
machete sharpening sighting
a very live issue:

The question of when Mr. Pryce saw the man who the prosecution maintains was Wilton Smith was a very live issue in the trial. This conclusion is irrefutable from the trial judge's summary of the defence position to the jury. The trial judge stated the following to the jury:

As for Joseph Pryce, his identification of the
accused as the man with the machete is
inherently unreliable. He could not give the
police a detailed description of the man,
detected no accent and saw no scar on the man's
nose. At trial, he showed the length of the
machete as being about 23 inches whereas in his
statement to the police he said it was more than
12 inches long. He was not sure when the man
came in with the machete, but said it could have
been about six months before the police came.
The police, of course, saw Mr. Pryce about ten
months after Miss Innis' death. Furthermore,
it appears that City Pulse did not broadcast a
black-white profile of the accused after his
arrest."

Prosecution Response:

In the next session you will be provided with excerpts from the prosecution's closing to the jury. You will see how they address the very serious question of the timing of Mr. Pryce's observations. You will also be presented with excerpts from the appeal factum prepared on behalf of Mr. Smith.

"VERTICAL MOSAIC" IN RIGHTS ADJUDICATION ?

The Supreme Court of Canada's recent decision in Ward allowing a lawyer whose Charter rights were violated to recover compensation without the prerequiste of proving bad faith or malice on the part of the state actor reminded me of that outstanding scholarly work written by John Porter entitled The Vertical Mosaic. In this scholarly work the late John Porter pointed out that the Canadian mosaic is stratified along racial/cultural and socio-economic grounds with some groups on the top and some groups on the bottom. Porter's groundbreaking work revealed that persons of Bristish origin are overrepresented among the elites.

The question that came to my mind after reading the Supreme Court of Canada's decision in Ward was this - if we assume that the late Professor Porter's theory is sound then it stands to reason that a study of the highest court's pronouncements on rights issues compared by the race/cultural background of the litigants should reveal a similar hierachy.

I am not a scholar. I am not a sociologist. I am a mere rights lawyer. Based on my personal observations and experiences I feel confident in stating the following hypothesis: the adjudication of rights in Canada is far from equal based on race/cultural and socio-economic backround and some groups are at the top and some groups are at the bottom in the same manner as pointed in Porter's Vertical Mosaic. Aboriginal-Canadians and African-Canadians are at the bottom. Canadians of British background are at the top. Some will be tempted to explain this away by pointing to socio-economic factors. Again, I feel confident in stating that even if one controls for socio-economic factors that the hypothesis stands.

A young scholar looking for something worhwhile to study would be wise to tackle this hypothesis. They could start with the Supreme Court of Canada and then the various provincial and federal courts of appeal. At the end their work will contribute to making things a little better for all !


Note: This piece is written for the sole purpose of encouraging debate on a matter of public importance.

PROPOSITION 8 "OUTED"

The recent decision by the Federal Court declaring Proposition 8 unconstitutional is yet another classic example of the utility and power of the U.S. Constitution when properly interpreted. The ruling is significant not only because it represents a move towards greater understanding and tolerance but - in my view - because it demonstrates that fundamental rights such as equality and the right to marry are rendered merely illusory unless they be subject to judicial scrutiny. The notion that such fundamental rights could be left to the electorate to decide will be judged by history to have been not only wrong but a cowardly attempt to appease gays and lesbians with an inferior right while preserving the full right of marriage for the broader population. To put it succinctly, the Federal Court's ruling soundly "outed" the shortcomings of that legislative enactment and in so doing those who supported it.

Ernest J. Guiste, Trial & Appeal Lawyer

Note: This commentary is written for the sole purpose of encouraging public discourse on an issue of public importance.

Part II: No Transcript of Evidence Supporting Commital

In our last segment the preliminary inquiry judge specifically adjourned the proceedings in order to permit the Crown to adduce evidence linking Wilton Smith to the murder. Unfortunately, no one will ever be able to scrutenize the evidence which was said to have been presented at Wilton Smith's preliminary inquiry and which resulted in him being commmitted to stand trial on a charge of first degree murder in the Superior Court of Ontario. This is so because the Ministry of the Attorney General for Ontario either destroyed these documents pursuant to its "retention policy" or they lost them. Their position is somewhat ambiguous to me.


The Ministry Retention Policy:

When Wilton Smith retained me to look into the propriety of his conviction I naturally set out to review the evidence adduced at the preliminary inquiry and then move on from there. I could not believe the responses I received when I trieed to recover the transcripts and begin my work.

Ministry of the Attorney General's
letter dated February 28,
2008:

..."please be advised that all of the dates you requested are past the retention schedule set out by the Ministry of the Attorney General. Therefore, transcripts of the dates you requested cannot be produced in this matter."

Yours very truly,


Lynette McHale
Acting Supervisor


Follow up to Mr. Paul Lindsay,
Assistant Deputy Attorney General:

"I woudl be pleased if you would be good enough to provide me with an answer to the following questions:

1. What is the Retention Schedule which is referred to above by your agent ?

2. May I please have a copy of the said Retention Policy ?

3. What is the existing law in Ontario with respect to retaining or preserving transcripts on first degree murder cases or homicide cases generally ?

4. May I have a copy of that policy ?"


Ministry of the Attorney
General's letter dated March 4, 2009:

"Staff in the Toronto Region have now confirmed that tapes of Mr. Smith's preliminary inquiry are available if a transcript is still required. In order to obtain a transcript, please contact Aldo Bruno, Manager of Court Operations, 44 Yonge Street, College Park Building, 2nd Floor, Toronto, Ontario, M5B 2H4....If you still require information about our retention schedules, please let me know."

Yours very truly,


Diana Hunt
Director, Criminal/POA Policy and Programs Branch


Further response on behalf
of the Honourable
Christopher Bentley dated April 9, 2009:

"The Attorney General has requested that I respond to you on his behalf. Please be advised that your request requires further investigation. I have commenced this investigation and will be providing you with a detailed response in the near future.

Thank you again for writing.

Sincerely,


Lou Bartucci, A/Director Court Operations


Ministry of the Attorney General
expresses regret for lack of transcripts:

By way of letter dated June 30, 2009 Mr. Lou Bartucci concluded his investigation into the availability of the preliminary inquiry transcripts - in particular - the portion said to contain the evidence linking Wilton Smith to the crime. The following is what he wrote:

.."please be advised that the Ministry of the Attorney General has been unsuccessful in our attempts at locating the requested transcripts. Please be assured that staff at all levels of the courts have searched thoroughly in order to locate the transcript, as have staff in the Crown law Office but unfortunately a copy of the trancript or tape could not be found. I understand the importance of having the necessary transcripts in order to proceed with your matter adn I do appologize in advance for any inconvenience this may cuase."

Sincerly,

Lou Bartucci, A/Director, Court Operations


Commentary:

It is troubling to me that the requested transcripts are unavailable. It is even more troubling that I have yet to be provided with a clear answer as to their unavailability. To this day, no one from the Ministry of the Attorney General has provided me with a copy of their so called Retention Policy or provided an answer to the very simple questions I posed to Mr. Linday. I remain receptive to answers to these questions.

Note: This piece is written for the sole purpose of encouraging publice discourse on a matter of public importance. I encourage anyone with information regarding this Retention Policy to contact me without delay.

The Anatomy of a Wrongful Conviction: Wilton Smith's First Degree Murder Prosecution

On April 29th, 1994 my client, Mr. Wilton Smith, was convicted of first degree murder for the death of Patricia Innis in the Superior Court of Justice in Toronto. He has been serving a life sentence ever since. He has consistently maintained his innocence.

In an upcoming three part series I will outline the various flaws in Mr. Smith's prosecution and conviction which in my view call into question his conviction and continued detention.

Of course, I welcome any information which anyone may have that can assist me in assisting Mr. Smith to win his freedom. I may be contacted at:

Ernest J. Guiste, Trial & Appeal Lawyer
700 Bay Street, Suite 606, Box 130
Toronto, Ontario, M5G 1Z6
ejguiste@yahoo.com

R v. Wilton Smith - "I am innocent" - Part I

Wilton Smith came to Canada in search of a better life. As many others before him - he left his island country of Jamaica with big dreams and the hope of better days. This dream and goal came to an end when he was arrested and charged with first degree murder in connection with the death of his then girlfriend on March 10, 1992. Since this unfortunate day - Wilton Smith has been in prison for a crime he maintains he did not commit. In the first of a three part series I wish to share with who ever cares to read or listen his story. It is a story that is becoming all to common in our system of law.

Before embarking on some of the details of the evidence and the legal proceedings gernerally, I believe that it would be fruitful to do some preliminary work - such as outlining the Criminal Code offence of first degree murder and the prosecution and defence theories.

First Degree Murder:

Murder is first degree murder when it is planned and deliberate.


The key witnesses:

Wilton Smith: The defendant was involved in relationship with the deceased. He was charged with a threat to cause death to the deceased on or about December 1, 1991. However, between the time of charge and the resolution of that charge Wilton and the deceased had reconciled. Wilton did not have immigration status in Canada at the material time.

Patricia Innis: Wilton and Patricia were a couple. Patricia had a three year old daughter from a previous relationship who resided with her at her one bedroom apartment in Toronto. For some months prior to her death, Delroy Benjamin and his girlfriend Iona Davis resieded with Ms. Innis in her apartment. Both Delroy and Iona were from Jamaica and in Canada illegaly at the material time.

Iona Davis: Resided with the deceased along with her boyfriend Delroy.

Delory Benjamin: Resided with the deceased along with his girfriend Iona.

Joseph Pryce: Proscecution identification witnesss. Came into the picture after Wilton was arrested, charged and committed to stand trial. Toronto Police Service investigator, Det. Bronson testified that he attended an establishment in North York known as Microm Screw on January 25th, 1993 and spoke to the owner one, Mr. Latiff and an employee, Mr. Pryce regarding the case. Pryce ultimately testified at trial that he was shown a photolineup and that he picked out Wilton as having attended at the establishment to sharpen a machete. There are a wealth of serious issues which call into question the reliability of this witnesses evidence but that will be left for later.

Ava Hood, Judith Innis, Iona Davis and Margaret Creal were permitted to give hearsay evidence regarding utterences allegedly made to them by the deceased regarding her fear of Wilton Smith.


Prosecution Theory:

The prosecution alleged that Wilton Smith killed Patricia Innis by inflicting a wound to her neck with a machete on March 10, 1992. They maintained that he alone had a motive to kill her since he was previously charged with threatening to cause death to her on or about December 1, 1991.


Defence Theory:

Wilton testified in his own defence. He testitied that he was in fact present when Ms. Innsis was killed. He testified that Ms. Iona Davis killed Ms. Innis after he and Delroy Benjamin were involved in a fight and Ms. Innis attempted to intervene and threatened to call the police. Wilton testified that Ms. Davis struck Ms. Innis with a meat-cleaver in the neck area. He testified that there was considerable blood and this is how Ms. Davis' blood ended up on him. It is of some significance that although Iona and Delroy were a couple that in and aroud the time of her death Wilton maintains that she was carrying Delroy's child.


Preliminary Inquiry:

The first degree murder charge against Wilton was subjected to a preliminary inquiry under the Criminal Code of Canada from April, 1992 until December 1st, 1992 before His Honour Judge Bentley in what is now the Ontario Court of Justice at College Park in Toronto. A preliminary inquiry is a pre-trial proceeding in which the prosecution is required to lead evidence before a judge to establish that there is sufficient evidence to send the case to trial in the Superior Court. The standard of proof is quite low. The prosecution needs simply establish that there is some evidence upon which a properly instructed jury could return a finding of guilt. The preliminary inquiry judge does not weigh the evidence - that is the preliminary inquiry judge does not make credibility findings. His or her role is simply to receive the evidence in support of the charge and determine whether there is some evidence upon which a properly instructed jury could find guilt. The finding that there is sufficient evidence is referred to as a commital order.

Justice Bentley Expressed Reservations on the Record:

A transcript from the preliminary inquiry indicates that on July 29th, 1992 the court heard submissions on commital from counsel for the parties. This transcript reveals the following statement by the preliminary inquiry judge:

THE COURT: I've - I want to review the evidence again. I'm have some difficulties with this matter as you're probably aware. I want to review it in light of your submissions. I don't think I'm in a position to make a decision today."

Justice Bentley Reasserts his
Reservations and adjourns again:

On August 10th, 1992 Justice Bentley told the parties in open court that there was not sufficient evidence to commit Wilton Smith to stand trial on the charge of first degree murder. In simple terms the court told the prosecution that there was no evidence linking Wilton Smith to the crime. Here is an excerpt of one of his quotes from the transcript:

THE COURT: But, certainly, well, we would have a disagreement; I can't see it, quite frankly. There's all sorts of evidence which doesn't amount to real evidence, in my opinion. It amount to a great lot of suspicion, but suspicion isn't real evidence, and although the threshold is very low, there's no doubt about it, in a preliminary inquiry there has to be some real evidence linking the accused to the crime and I --

He later goes on to say the following:

THE COURT: Well, I haven't made a decision, okay I'll be candid with you. I have not made a decision. But is was my feeling, after reviewing the evidence, that I had sufficient concern that I wanted to address both of you in open court and advise you of my position....

THE COURT: So I understand it's a bit unusual, but it's a very serious charge and I feel that I am within my rights to do what I'm saying to you today.

The proceeding was accordingly ajourned to September 14th, 1992 so that the prosecution could put forward the evidence which would tie Wilton Smith to the crime as the preliminary judge recommended.


END OF PART I

In Part II I will pick up from where I left off.

Note: This commentary is written for the sole purpose of encourgaging debate on a matter of public importance and trying to shed light on what I believe having reviewed this case to be a miscarriage of justice. Truth can be surpressed but it can never be destroyed. In a similar way to how truth is a full defence to an allegation of defamation - truth is an answer to a wrongful prosecution. A jury's findings of fact is only as good as the reliability of the evidence put to it. If part or all of this evidence is flawed on a material point it must follow that the decision is wrong.

Anyone with information to share is encourged to contact me - Ernest J. Guiste. Tel. (416) 364-8908 or ejguiste@yahoo.com

Special Amendment to Public Works Proctection Act Unconstitutional

The recent decision by the Ontario Government to increase police arrest powers for the G20 Summit is unconstitutional and a callous disregard for fairness and fundamental justice. At the request of Toronto Police Chief, Bill Blair, the Ontario Government passed legislation authorizing police to request identification documents of persons within a prescribed proximity to the G20 site and to arrest and detain those who fail to comply but faild to formally publish these amendments to the public.

It is a well established principle in our system of law that in order for a law to have legal effect those affected by it must have fair notice of its enactment. The simple rationale for this is that one can not comply with a law that one is not aware of. This is not to say that one's subjective lack of knowledge will afford one a defence. In our system the passing of a law takes legal effect once it is published in a recognized publication like the Ontario Gazette. Once the law is so published the community are deemed to have knowledge of it.

The recent statutory amendment increasing police arrest powers has yet to be published in this fashion. My search of e laws - an Ontario Government website dedicaed to publishing the laws and regulations of the province revealed that amendment was filed on June 14th, 2010 and came into effect on June 21st, 2010. Assuming these facts to be correct - there is a clear absence of fair notice of this very fundamental change to our law.

A few years ago I had the opportunity to raise this defence when I defended a man charged with importing khat. Khat is a substance which is popular in the Somali and Kenyan communities. It is a plant which is chewed and is said to be a stimulant. At one time this substance was legal to use and import into Canada. However, a week or so prior to my former client's arrest the law was changed but the published law was not yet available at the Brampton Public Library. Charges against my client were stayed following a Charter Application alleging a lack of fair notice and thus a violaiton of the Charter. While the Canada Gazette publication in my client's case was published but not yet in the shelf at the Brampton Public Library and therefore not accessible to the public, the subject amendment to the Public Works Act does not appear to have been published as yet.

It is very easy and tempting to attempt to justify this serious breach of fair notice and fundamental justice in the name of public safety. However, this type of thinking misses the point. Faced with two very important competing interests, namely, public safety and the individual's right to liberty the Constitution and the rule of law dictate that such a change in the law be subject to the scrutiny of debate in the legislature. The inherent dangers involved in this type of law making should be obvious. Where does it end ? Who decides on the question of "public safety" and what is the criteria ? Government lack of respect or attention to fundamental justice and fair notice is like a cancer. It spreads and destroys if not cured !

EJ Guiste

Note: This commentary is written for the sole purpose of encouraging public debate on an issue of public importance. Democracy works better when people are informed and they participate.

CBC News - Toronto - Charges unfairly pursued: Toronto accused

CBC News - Toronto - Charges unfairly pursued: Toronto accused

Gay sex, Police Indecency: Thoughts on Equality

Law and policy makers have placed considerable emphasis on the goal or concept of equality before and under the law. In Canada this objective is articulated in section 15 of the Canadian Charter of Rights and Freedoms. In a nutshell this statutory enactment provides that all individuals are entitled to the equal protection and benefit of the law without discrimination based on a number of enumerated grounds including sexual orientation.

While most of us strongly support any goal or objective which aims to bring about a greater degree of fairness among the diverse groups and interests in our society, it is not enough that we have this principle reduced to writing in the Canadian Charter of Rights and Freedoms. The act of reducing this goal to writing and giving it constitutional status is clearly a move in the right direction but that alone will not bring the goal of equality to fruition. There exists some impediments which fruatrate this goal. The purpose of this brief commentary is to attempt to delineate some of the impediments which hinder the goal of equality and to propose some thoughts on what can be done to steer us in the right direction.

Education and custom:

In the specific context of this commentary - education and custom take on a broader meaning. Here - education and custom relate to our subjective knowledge and experience - what we were taught - whether formally or informally. For example, the vast majority of us are taught either formally or informally that homosexuality is unatural and immoral. As a direct result society constructs a social divide bewtween "straight" and "gay" people. We have "gay bars" and "straight bars". We have "gay ghettos" or "gay villages". This social divide is well chronicled by Proffessor Elkridge in his book entitled Gaylaw: The Apartheid of the Closet and Proffessor Gary Kinsman's The Regulation of Desire: Homo and Hetero Sexualities.

Our education and custom as I use these terms here are amongst the biggest impediment to the goal of attaining equality. Here is a splendid example. I sought leave to appeal from the Supreme Court on Canada in a case flowing from the misguided police practice of seting up a sting operation in a park in Kitchener, Ontario which saw not one but two men charged for allegedly sexually assaulting a police officer.(Webb v. Wateerloo Region Police Service (WRPS)- SCC Court File No.29397) The police maintained at the time that it was not their intent to scare the homosexual men out of the park by "outing them" but only to charge people who they saw indecently exposing themselves on account of public complaints they had received. The fact is one councillor received a complaint and brought it to one Sgt Cassidy. Sgt. Cassidy in turn issued a memo to - "attack the problem" of homosexuals loitering in Crsssman's Bush. Not a single person was charged with indecent exposure but two men were charged with sexual assault on the same officer in two separate incidents on the same day.

In Webb v. Waterloo Region Police et al Mr. Webb met a man whom he believed to be a regular park cruiser in Homer Watson Park, which is a well known cruising place for men interested in meeting other men. After a pleasant conversation he invited the man into the woods with him. The man accepted the invitation and followed him freely and voluntarily. While walking into the woods he asked the man whether he was a cop the man said, "no man. I can't even find a job." The two men walked into a heavily wooded area and as fate would have it the man posing as a park cruiser turned out to be Police Constable George Gillingham. Constable George Gillingham alleged that he was sexually assaulted when his crotch was grabbed. Waterloo Region Police then released information to the media which received wide spread publicity and resulted in the gentleman being "outed"(i.e.his sexual orientation being made public without his consent) However, when the case came to trial the sole Crown witness and Officer in Charge of the investigation was a no-show. His explanation was that he did not receive a subpoena. It is the job of an OIC to subpoena witnesses and otherwise secure evidence in support of the prosecution.

The case agaisnt Waterloo Region
Police in a nutshell:

The Statement of Claim asserted a breach of Mr. Webb's section 7 and 15 rights under the Canadian Charter of Righs and Freedoms. Section 7 provides that no one should be deprived of life, liberty and the security of the person except in accordance with fundamental justice. The section 7 violation on the facts of this case occurred because Mr. Webb was charged with a criminal offence when in fact he had committed no offence at all. It is not a criminal offence to touch another man's crouch with his consent or where one's belief in consent is reasonably held in all of the circumstances. The Criminal Code offence of assault calls for a lack of consent for the offence to be established. Consent has both a subjective and an objecive component to it. In the circumstances of this case while P.C. Gillingham may say that he did not consent to the touching the objective portion of the test overwhelmingly points to consent. Indeed, one of the issues put to the Supreme Court of Canada as an issue of national importance was the question of whether or not the offence of sexual assault or assauult was amendable to a police sting operation. The section 15 violation in this case stemmed from the manner in which WRPS "attacked the problem." Rather than warning park-users they mounted a sting operation. The violation stems from the fact that when public sex involves heterosexuals sting operations are not employed. An offier stumbling upon a heterosexual couple will never lead to a sting operation to entice either party to engage in sex with the police. It is just not done.

P.C. Gillingham's
stunning admissions
supporting consent:

The following admissions are from my cross-examinaiton of P.C. Gillingham at trial:

Q. O.K. But the gun and the handcuff not being visible, can you see where in that third party's mind, you are simply another park user. Can you appreciate that ?

A. Yes that's right.

Q. And isn't that what youe were trying to come across as ?

A. Yes sir.

Q. And I am going to suggest to you that when Mr. Webb made that invitation the only reason you went was becauuse you were carrying out an undercover operation and that was part of it, isn't that true ?

A. Yes sir.

Q. Had you not been carrying out the undercover operation you would have told him where to go, right ?

A. I would have just kept walking.

Q. So when he said, are you a cop and if you would have said, yes I am and I'm conducting sureveillance in this park and I would recommend that if you have any intention of engaging in sexual activity that you not do it here. So you agree with me that had you said that, there would have been no assault committed on your person ?

A. Yes sir.


P.C. Gillingham's identity
and consent:

Determining the question of whether P.C. Gillingham consented to Mr. Webb's touching involves more than an acceptance of P.C. Gillingham's denial of consent. A proper adjudication of this question involves an evaluation of both the subjective and objectiive evidence. From an objecive point of view P.C. Gillingham's identity is crucial to the question of consent. Mr. Webb was clealry not interested in P.C. Gillingham the police officer. He was interested in the man that P.C. Gillingham was pretending to be. Mr. Webb's trial testimony was that P.C. Gillingham was shirtless and carrying a wicker basket. The above excerpt of my cross-examination of P.C. Gillingham speaks volumes to the connection between his identity and the issue of consent. He deliberately hid his handcuffs and gun in order to play the role of a park cruiser. P.C. Gillingham's own testimony leads to the inescapable conclusion that he invited the touching of his person as part of the sting operation that he was spearheading. When asked why he lied to Mr. Webb about his identity he stated, "maybe the criminal offence that he was going to commit he wouldn't commit if he knew that I was a police officer."

Examples of impediments to equality at trial:

Before Mr. Webb's civil trial against WRPS started the trial judge stated, "Mr. Guiste I have reviewed the materials and I do not see any evidence that the police have done anything wrong. They were merely responding to public complaints and doing their job." My move for a mistrial was never acknowledged but it did not go unnoticed by the press. The Kitchener-Waterloo Record noted the comment and exchange in their coverage.

After giving reply evidence where he testified that the only thing which made the park encounter with P.C. Gillingham different from his other experiences was that the fact that George Gillingham was a police officer the trial judge posed a question of his own. This is what he said:

THE COURT: Before you sit down I have one question for you. In the tennants of the Anglican faith is sexual activity between persons who are not in the bonds of matrimony considered to be sinful ?

MR. GUISTE: Your Honour if I may... I want it indicated in the record that it is the position of counsel for the plaintiff that that is an irrelevant question. What the bounds and practices of the Anglican church are, are not a relevant consideration to the adjudication of this case. But you are the judge and I respect your authority and right to ask it but is's on the record that I don't see that as a relevant question.

Two expert witnesses were proffered on behalf of the plaintiff's case. The first witness - Professor Gary Kinsman was to assist the court in understanding the cruising culture and the objective indicias of consent. Dr. Kinsman was also to illustrate and chronicle the history of police regulation of homosexual sexuality. The second witnees Dr. James Hodgson, a former Toronto Police Service officer turned professor - was to provide expert evidence on the police standard of practice in negligence and constitutionally. Both men had been qualified as experts in the past. Dr. Hodgson was the expert used by Jane Doe in her case against the Toronto Police Service. The trial judge ruled that Dr. Hodgson had no evidence to offer other than his own opinion and drawn from his experience from the Toroto Police Service. The trial judge said the following in denying Professor Kinsman's proposed expert testimony:

"This is not a case of discrimination. If it was Mr.Guiste
if you are putting to me that this is a case of discrimination
I have no jurisdiction to deal with it. That jurisdiction has
been given to the Ontario Human Rights tribunal. The courts have
repeatedly said that matters of social policy are not the basis upon
which legal concepts of the admissibility of evidence and what is
relevant are to be considered. I do not believe that what this man
has testified to as social practices and social codes do not assist
the Court in coming to a conclusion on a matter of law with respect
to the evidence given by the plaintiff in this action so far.
The plaintiff has testified. I take it that Sgt. Gillingham
will testify. And I have to decide whether, on the basis of
their testimony, there was consent or a lack of consent. There
is nothing that social practices or social contexts, et ceter,
can assist me as to whether there was any consent."

Court of Appeal
on s.15 claim:

"Accordingly, in my view, while it may have been preferable
for the trial judge to further elaborate in his reasons upon
his consideration of the appellants claim under s.15(1) of
the Charter, it cannot be concluded that he failed to
consider the claim. To the contrary, the reasons of the trial
judge addressed the central alloegations of deliberate and
discriminatory entrapment and humiliating conduct by the
respondents, as pleaded by the appellant. The trial judge
findings in that regard are amply supported by the evidence.

Mr. Webbès s.15 pleading:

23 The plaintif plead that the Defendants have violated his
constitutional rights under the Canadian Charter of Rights
and Freedoms, particulars of which include the following:

(1) the defendant, P.C. Gillingham, by his words,actions, and
given the purpose for which he was in the park consentted
to and invited the Plaintiffs advance:

(4) the defendants violated the Plaintiff's rights under section
15(1) of the the Charter to equal protection and equal benefit
of the law without discrimination by deliberately setting out
to entrap and publicly humiliate an identifiable group of
which te Plaintiff is a part, namely, homosexual men in their
undercover operation.

Trial judge's reasons
provide no consideration
or analysis on key issue
of consent:

The trial judge's reasons for judgment is silent on Mr. Webb's main contention that he committed no criminal act because the officer invited and consented to the touhing and for this reason the method employed in the undercover operation was a violation of his s.15 rights to equality. Effectively the trial judge merely made conclusionary findings of fact favoring the police and somehow suggested in his reasons that "all parties submit that the credibility of the plaintiff's testimony lies at the heart of this case." The trial judge concluded that Mr. Webb's credibility was called into question because he had engaged in sexual acts in the park without incident previously. He disregarded the evidence which contradicted the police version of their objective in the operation, namely, that two men were charged with assaults on P.C. Gillingham and no one was charged with indecent acts. He also disregarded the evidence of both P.C. Gillingham and reporter from the Kitchner which clearly suggested that the objective of the police operation was to scare the gay park users from the park. Some of the proposed expert testimony which the trial judge ruled inadmissible was evidence which would demonstrate that the manner in which the defendant police service responded to this alleged complaint had a strong historical context.

It is clear that the trial judge did not see the case as one dealing with discrimination. He told me so before even hearing evidence and never ruled on my motion for a mistrial. He said so again when he denied the expert testimony of Dr. Gary Kinsman. "This is not a case of discrimination. If it was Mr. Guiste, if you are putting to me that this is a case of discrimination, I have no jurisdiction to deal with it. That jurisdiction has been given to the Ontario Human Rights Tribunal."

Supreme Court of Canada
Issues of national importance:

After the Court of Appeal for Ontario unanimously dismissed the appeal, I sought leave to appeal from the Supreme Court of Canada. Two of the issues put to this court as matters of national importance were framed in the following manner:


- Does a police officer who participates in an
undercover operation in response to alleged
complaints from the community about gay public
sex in a heavily wooded park violate sections
7, 9 and 15(1) of the Charter where he accepts an
invitation to go inot the bushes with an unknown
man, follows that individual into the bushes freely
and voluntarily, lies about his identity as a police
officer so as to have the individual commit the offence
of sexual assault on him and subsequently participates
in a media interview about the incident ?

- As a mattter of law and public policy is a sting
type undercover police operation involving the
offence of sexual assault consistent with the
principles of fundamental justice ?

The Supreme Court of Canada dismissed Mr. Webb's leave to appeal application with costs. The court is not required to provide reasons and accordingly did not provide any. It strikes me to ve a very dangerous policy to allow the police to employ sting-type operations with an offence which is dependent, in part, on their subjective belief in consent. The National Post recognized this when they wrote the following in their editorial entitled Police Indecency on February 18, 2000:

"It is one thing to arrest people who buy drugs
or solicit prostitution, since both are illegal.
But it is surely unacceptable for the state to invite
consensual sex and then portray the response as a
criminal act."


What law makers
need to do:

If law makers are serious about equality they must do the following:

1. It is said that if you raise the floor you must
also raise the ceiling. Requiring judges to adjudicate
issues involing equality rights requires that they be
equipped to do the job. Sensitizing judges to the
multitude of issues involved in this task is a must.

2. History is a powerful teacher. We must look to it for
guidance. Our recent legal history has an abundance
of examples of cases where individuals were denied
legal rights on account of irrelevant considerations
such as race, religion, sex, or sexual orientation.
Many of these cases show the dangers of credibility
findings and conclusionary findings without analysis
and cogent reasons. A training program where judges
are exposed to these historical realities ought to be
a must for any judge involved in adjudicating these
serious issues.

NOTE: This commentary is written for the sole purpose of encouraging public discourse on an issue of public importance. Readers may be interested to read the following editorials on this case: Police Indecency, The National Post, February 18, 2000; The Clergyman and the Park, The Cambridge Reporter, Februry 19, 2000) In addition, Dr. Gary Kinsman's book entitled The Regulation of Desire: Homo and Hetero Sexualities and Prof. William N. Eskridge Jr's Gaylaw: Challenging the Apartheid of the Closet are recommended readings.

Ernest J. Guiste, Trial & Appeal Lawyer

Ann Coulter, Jennifer Jeremiah and Threats of violence: Not so free freedom of expression

The recent censorship of conservative activist, Ann Coulter, at the University of Ottawa while regrettable appears to be entirely consistent with the current interpretation of the scope of the right to freedom of expression in Canada.

The objective of this commentary is to attempt to identify the sources which led to the censorship of speech in Ms. Coulter's case and compare and contrast her case with the recent leave to appeal application to the Supreme Court of Canada which I filed in Jeremiah v. Toronto Police Services Board and P.C. Elliot. By doing this I hope to accomplish two goals. Firstly, I hope to demonstrate that the ultimate source of the censorship in both cases flows from the overly broad discretion afforded police officers in this country with respect to protecting individuals and the public peace. Secondly, I hope to demonstrate that this censorship of the right to freedom of expression is not only misguided but inconsistent with the letter and spirit of the Canadian Charter of Rights and Freedoms in that it is overly broad and effectively leaves police officers with a right they ought not to have in a free and Democratic society.

The First Censorship Source:

The initial source of potential censorship in the Coulter case stemmed from the Criminal Code of Canada offence which prohibits a speaker or writer from inciting hatred. The censorship at this stage occurred when the University of Ottawa spokesman actually wrote to Ms. Coulter warning her to curtail the content of her speech in order no to go afoul of this law. This form of censorship is not the objective of this commentary. I simply wanted to point it out as one of the sources.

Protecting the peace:

The second and crucial source of censorship in the Ann Coulter case flowed from the police action to "protect Ms Coulter and the public peace." Here in Canada the content of speech is lawfully censored by police officers under the Criminal Code of Canada and the common law duty on police officers to maintain the public peace. It is an offence under the Criminal Code of Canada to utter a threat to cause bodily harm or death to someone. While this law may appear on the surface to serve an important societal function, the recent Supreme Court of Canada's dismissal of a leave to appeal application which I filed in Jeremiah v. Toronto Police Services Board and P.C. Elliott clearly illustrates that this law and its application is overly broad and unequivocally censors free and innocent speech. It will be necessary for me to set out the basic facts in Jeremiah v. Toronto Police Services Board and P.C. Elliot in order to demonstrate this point.

Jeremiah v. Toronto Police Services Board et al:

Ms. Jeremiah was employed as a cook at the Hudson Bay Company (HBC)for roughly 17 years. She had a regular shift where she started at 6:30 a.m. and finished at 3 p.m. She worked this shift for years. One day HBC decided that they would unilaterally change her shift. She opposed this. She obtained a medical certificate from her family doctor explaining that changing her shift was not good for her health. Ms. Jeremiah was a cancer survivor. She was also anemic. Her employer called her into a meeting one day and gave her an ultimatum - you either work the new shifts or you are fired. HBC management alleged that Ms. Jeremiah stated words to the effect - "I have a family and I have told them all about you and if anything happens to me they will be waiting for you." The meeting was ended by management a short time after this statement after their unsuccessful attempts to get the meeting back on track. Ms. Jeremiah was ordered back to the kitchen to finish her shift(knives in the kitchen). She finished her shift and came in the next morning for her 6:30 a.m. shift. She worked until around 11 a.m. and then HBC management informed her that she was "suspended pending investigation." The Toronto Police Service charged Ms. Jeremiah with uttering a threat to cause bodily harm based on the words alleged by HBC.

Innocent Meaning:

The screening Crown Attorney - Ms. Reina Weinberg wrote the following note to the Officer in Charge of the police investigation: "Al, this could mean anything. It sounds like the employer may be riding her and she is saying that if she drops dead in the workplace that her family may be there to sue the Bay. How is this a threat to cause bodily harm. Should this not be peace-bonded at best ?" A notation on the Crown Brief which the OIC, Det. Al Brown, identified as his writing wrote - "I agree." Det. Herman, a member of the Toronto Police Service was asked to deal with the Jeremiah Occurrence. He reviewed the Occurrence and concluded that no offence was committed. He called the complainant and told her so. He closed the occurrence and noted his conclusion on the
database. P.C. Elliot the officer who reported to the HBC call and created the Occurrence did not check the police database to see that the matter was closed by Det. Herman. He proceeded to arrest and charge Ms. Jeremiah. This police officer testified under oath that he failed to consider the possible innocent meaning of the alleged speech. He acted solely on what the complainant told him that she thought the speech meant.

The Supreme Court of Canada:

I made a direct request for the Supreme Court of Canada to consider as a matter of national importance the question of whether or not the Criminal Code of Canada offence of uttering a threat to cause bodily harm violated Ms. Jeremiah's right to freedom of expression under the Canadian Charter of Rights and Freedom. It struck me that on the facts of her case it clearly did. The words attributed to Ms. Jeremiah by her former employer were in my view capable of an clearly innocent and legitimate meaning. It is significant that the reader appreciate the fact that these were words alleged to be spoken by Ms. Jeremiah. The Supreme Court of Canada dismissed Ms. Jeremiah's leave to appeal application.

Analysis and commentary:

The second source of censorship in the Anne Coulter case stems from the actions of the police to "protect the public peace." Her speech at the University of Ottawa was cancelled because police determined that they could not guarantee her safety nor the safety of others. It is interesting for the reader to appreciate that it does not appear that Ms. Coulter demanded any guarantee of safety from the police. In addition, there was in fact to the best of my knowledge no arrests made by police in connection with the event.

Both of these cases demonstrate that the Criminal Code of Canada's provisions dealing with threats and both the common law and statutory duty on police officers to keep the public peace are overly broad and violate the right to freedom of expression guaranteed under the Charter of Rights and Freedoms. In the Coulter case it appears that it is entirely within the laws of Canada for the police to step in and prevent her speech if they determine that she or the public may be in danger if it proceeds. In the Jeremiah case is would appear that it is within the law for an individual to be charged criminally for innocent and legitimate speech in the context of a work dispute if the receiving employer or their agent believes that they are threatened with bodily harm.

Law makers who are serious about the right to freedom of expression need to re-evaluate this unfortunate state of circumstances. Freedom of expression is one of the cornerstones of a free and democratic society. These two cases demonstrate that we may not have the moral ground to criticize other countries that out rightly curtail free speech on the ground that it keeps the peace and is in the national interest.


Ernest J. Guiste, Trial & Appeal Lawyer

Note: This piece is written for the sole purpose of encouraging public discourse on a matter of public importance.

Jeremiah v. Toronto Police Services Board et al

I recently sought leave to appeal to the Supreme Court of Canada on a very fascinating little case involving racial profiling and what I thought was a gross violation of my client - Ms. Jennifer Jeremiah's rights under the Canadian Charter of Rights and Freedoms. The facts of the case are classic. Here they are:

- Ms.Jeremiah is a woman of African-Canadian background from Grenada.
- She was employed as a cook by the Hudson's Bay Company in Toronto.
- She was employed with them for roughly 17 years.
- She was a cancer survivor and was also anemic.
- Her employer unilaterally decided one day to change her work schedule.
- She opposed this on medical grounds. It was her doctor's opinion that a change in her shift would not be good for her health.
- She proferred a medical note to the employer and advised them of this fact.
- The employer refused to accommodate her and threatened dismissal.
- While in a meeting with management to discuss the issue she got upset at the employer's position and is alleged to have said: "I have a family and I have told them all about you and if anything happens to me they will be waiting for you."
- She was advised by management to go back to work. She went back to work in the kitchen - where there are knives etc.
- She finished her shift and went home and returned for her shift next morning at 6:30 a.m.
- At about 11 a.m. she was approached by a manager who told her that she was "suspended pending investigation" and that she must go home. She went home.
- Later that day the employer called the police.
- a police officer took statements from the two managers who were in the meeting with Ms. Jeremiah. The officer asked the alleged victim - who is of European descent - what do you think she meant by those words - "I have a family and I have told them all about you and if anything happens to me they will be waiting for you."
- The manager replied - "her family may waite for me after work and beat me up or burn down my house."
- Ms. Jeremiah was charged with one count of uttering a threat to cause serious bodily harm under the Criminal Code of Canada.
- After the investigating officer who attended at the place of employment and took the statments filed an Occurrence on the Toronto Police Service database another Detective from the CIB was asked to deal with the matter. After reviewing the Occurrence he concluded that "no offence was committed" and he called the complainant and informed her of this fact and closed the Occurrence. However, the original office failed to review the database before he proceeded to formally arrest and charge Ms. Jeremiah.
- When her matter went to trial - I represented her on the criminal matter. Disclosure in the file revealed a note from a prosecutor asking the officer in charge - "Al - this could mean anything. It sounds like the employer is riding her and she is saying that if she drops dead or somehting that her family will be there to sue the employer. How is this a threat ? Should this not be peace-bonded at best". The Officer in Charge wrote back - "I agree."
- The Toronto Police Service Occurrence noted Ms. Jeremiah's race as Black and the complainant's as White. The Toronto Police Service issued an Appearance Notice to Ms. Jeremiah with a condition that she not attended at her place of work. She ultimatley lost her job.
- The charge was ultimately withdrawn by the prosecution and Ms. Jeremiah sued citing a violation of her rights under the Charter and racial profiling.

Issues:

The following issues were raised before the Supreme Court of Canada:

1. The Applicant asserted that she was prosecuted on account of her race in circumstances where she committed no criminal act;

2. Can words spoken capable of an innocent meaning taken in the overall context in which they are uttered constitute an offence under section 264.1(1)(a) of the Criminal Code of Canada ?

3. If so - does such a charge violate the speaker's rights under the Charter, namely, sections 2(b), 7 and 15 ?

4. If not - does it not follow that a police officer's forumualtion of reasonable and probable grounds amounts to an unconstitutional application of the law ?

among others.


Decision:

The Supreme Court of Canada dismissed Ms. Jeremiah's application by way of order dated January 28th, 2010 with costs.

Comments:

The words uttered by Ms. Jeremiah were capable of an innocent meaning. The screening prosecutor, the officer in charge and the officer who closed the Occurrence recognized this fact and this evidence was all in the record. The police officer who laid the charge did not consider the obvious innocent meaning that the alleged words spoken were capable of. This too is in the record. Ms. Jeremiah had a solid expert report from one of the finest investigators in the history of the Toronto Police Service - Mr. Mark Mendelson.

At trial the trial judge exercised his discretion not to award costs against Ms. Jeremiah. The Court of Appeal for Ontario overturned this decision. The issue of the desire to establish a policy to deal with access to the courts for impecunious litigants was raised in the leave application before the Supreme Court of Canada.

The current offence of uttering a threat to cause serious bodily harm is much too broad and as this case illustrates is capable of causing serious harm to innocent individuals. The current law clearly has the potential to encroach on perfectly innocent speech in clear violation of the right to freedom of expression. If freedom of expression is for all then this law must be fixed !

March 16th, 2010

E.J Guiste on Law & Justice.

Note: Supreme Court File No.33399