Wrongly Accused of Domestic Violence or Victimized ?

   As a lawyer who handles both the defence of criminal allegations arising from domestic violence occurrences and prosecutes civil actions for malicious prosecution and negligent investigation arising from these allegations it is clear to me that countless numbers of innocent, hard-working individuals in Ontario are all too often wrongly charged with domestic-related criminal offences.

   We have all met and heard of individuals who have found themselves charged and removed from their homes for nothing more than restraining or otherwise seeking to avoid the commission of an assault on their person. It is not a crime to do this. One is entitled in law to defend one's person. The question is whether the response is reasonable and proportionate in the circumstances.  Included in this category of cases are cases involving what has come to be referred to as the Battered Spouse Syndrome defence.  The Battered Wife Syndrome involves a situation where a historically battered spouse  retaliates in self-defence - possibly killing the other spouse.

   Domestic violence in Ontario is a very serious issue. Public policy in Ontario has seen fit to pass clear and mandatory standards regarding how police services in Ontario are to investigate these cases.  The problem is these polices are more often than not disregarded by police officers and others in the criminal justice system.  Crown counsel instinctively refuse to produce such policies as Stinchcombe disclosure often resulting in non-production of what is relevant evidence to the defendant's ability to make full answer in defence of the allegation against him or her.

 
About the author:  E.J. Guiste deals with both civil and criminal domestic violence cases. If you have been charged or are a victim of domestic violence and want to know your rights with respect to civil redress for the harm caused to you call me for a consultation. Tel.(416) 364-8908 - E mail: ejguiste@yahoo.com

In Flanders Fields - John McCrae

   In Flanders fields the poppies blow
Between the crosses, row on row, 
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the Dead. Short days ago
We lived, felt dawn saw sunset glow, 
Loved and were loved, and now we lie, 
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

By Lt Col John McCrae

Huscroft J.A.'s dissent in Fleming Followed by SCC

   Poor Mr. Fleming, a Canadian man of European descent, decided to exercise his right of freedom of expression by waving a Canadian flag with a group called "Canadian Advocates for Charter Equality" in Caledonia where a group of Indigenous Canadians were occupying Crown-owned lands only to be forcefully arrested by OPP officers in order to avoid a breach of the peace.  Mr. Fleming had done no wrong known to law.  The police, supposedly acting on past experience and speculation, determined that Mr. Fleming's rights of expression should be denied in the name of preserving the public peace.

   Understandably, Mr. Fleming did not agree with this brand of justice and filed an action against the OPP officers and Her Majesty the Queen in Right of Ontario for unlawful arrest, excessive force(assault and battery) and violation of his rights Charter Rights. After carefully considering all of the evidence at trial the learned trial judge concluded that poor Mr. Fleming was unlawfully arrested and excessive force was used on him. She awarded Mr. Fleming $139,711.90 in damages plus costs.

    The police defendants appealed to the Ontario Court of Appeal.  Their argument that it was lawful for them to forcefully arrest poor Mr. Fleming even though he committed no offence in law and was merely exercising the most fundamental of legal rights in a democracy - the right of freedom of expression was well received by a majority of that court led by Nordheimer J.A.  Norheimer J.A. set aside the award of damages on the basis that the learned trial judge committed "overriding and palpable error"  and concluded that the police had the authority at common law to arrest poor Mr. Fleming.

Laskin C.J.Like Dissent:

   When it looked like the days when we once had powerful and well-reasoned dissent judgments from our appellate courts was all over along comes Mr. Justice of Appeal Huscroft.  Huscroft J.A.'s dissenting judgment takes us back to a time when another former academic named Bora Laskin penned dissents which often went on to make law thorough-out the Commonwealth.   Huscroft J.A., himself a former academic writes with a soundness, clarity and honesty that brings back memories of the dissenting judgments of the late Chief Justice Laskin. The dissent is noteworthy because Huscroft J.A. takes issue with the majority on very serious and fundamental points of law.  These points of law have the potential to impact the very substance of the fundamental rights which are often at stake when the rights of citizens and the state collide.  The points of law that Huscroft J.A. takes issue with Nordheimer J.A. on include the following: standard of review  and the role of the appellate court in reviewing findings of fact made by a trial judge - the lawfulness of the arrest and the right of political expression and when it can be denied.  The soundness of the decision is best demonstrated by quoting excerpts of it directly.

[76]   The primary issue raised by this appeal is whether the police were justified in arresting the respondent to avoid a possible breach of the peace.  My colleague Nordheimer J.A. concludes that they were.  With respect, I disagree.

[78]   My colleague defers to the police in their decision to arrest Mr. Fleming, rather than to the trial judge, whose decision came following an 11-day trial.  The trial judge found that Mr. Fleming's arrest was not justified in the circumstances.  In my view, there is no basis for this court to interfere in her decision.

[80]   The burden is on the appellants to demonstrated an error of fact or an error of mixed fact and law that is both palpable and overriding. It must be palpable, in the sense that the error is obvious or apparent without further inquiry or explanation.

(81)   In my view, none of the alleged errors identified by Nordheimer J.A. rises to this high standard.  As a result, it is not open to this court to substitute its view as to lawfulness of Mr. Fleming's arrest.

[89]   The trial judge found that the evidence was "clear" that the police intended to prevent Mr. Fleming from walking up Argyle Street with a Canadian flag.  Not only did she accept Mr. Fleming's testimony that he left the shoulder because of the police vehicles, but she noted that Inspector Skinner conceded that the O.P.P. had pre-emptively decided to limit the rights of the Flag Rally participants and that, for him, public safety "[took ]priority over other rights such as the freedom of expression and the freedom to walk down the street."

   Huscroft J.A. spends a great deal of necessary time demonstrating how "My colleague characterizes things differently than the trial judge."...Mr. Fleming, he says, chose to leave the shoulder of Argyle Street for reasons that are unclear on the record....He then suggests that Mr. Fleming is the author of his own misfortune - that he might have avoided his problems by remaining at the side of Argyle Street."

[92]   With respect, it is not open to this court to recharacterize the evidence in this fashion and substitute its inferences for those made by the trial judge.  The trial judge made findings that were open to her on the evidence.  It cannot be said that they constitute palpable and overriding error.

[99]   ...Mr. Fleming was entitled to attend and participate in the Flag Rally regardless of its effect on the governments political goals at Caledonia or anywhere else, and, in particular, regardless of whether the Flag Rally was considered provocative by the government or the protesters.

[100]   Political expression will often be provocative, and so considered problematic, but there is no doubt that its protection is a core purpose of freedom of expression.

   Indeed, the key difference in the Huscroft J.A. dissenting reasons and that of the majority stems from the deference they accord to the findings of the trial judge. Huscroft J.A. accords her the deference called for in our law while the majority appears to go out of its way to interfere with her findings of fact.

[177]   I can see no basis to interfere with these findings or the trial judge's conclusion.  In my view, the deference my colleague accords to the operations decisions of the police is more properly due to the decision of the trial judge.

Supreme Court of Canada:

   "As there is no common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by others, the police in this case did not have lawful authority to arrest F.  The trial judge specifically found that F had not done anything unlawful before being arrested; there was no evidence before her that he had committed any offence in walking along the street, entering the occupied property or standing there with his Canadian flag. Nor was there evidence that he had himself been about to commit an indictable offence or a breach of the peace. The Province and the police have not sought to challenge that finding on appeal, nor have they cited or relied on any statutory power to arrest F.  They rely entirely on a common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by other persons - a power that does not exist.  In light of this conclusion, a new trial on the issue of excessive force is not necessary.  As the police were not authorized at common law to arrest F, no amount of force wold have been justified for the purpose of accomplishing that task." (Case Headnote - Fleming  v. Ontario 2019 SCC 45)


About the author:  E.J. Guiste is an lawyer of African-Canadian descent who represents individuals like Mr. Fleming in actions and appeals involving fundamental rights against police and other state actors.

Does Crown Counsel Get a Pass on "Civility" ?

Background:

   After repeated requests to the trial judge to restrain Crown Counsel's aggressive and abusive cross-examination of an African-Canadian female complainant on a domestic violence trial in which Crown Counsel elected not to call the alleged victim as his witness to prove an alleged assault on her but to call the person she said assaulted her instead, I made the following off-the-cuff and passionate request to the trial judge:

The Plea:

   "Your Honour, my friend's being very disrespectful to this witness, and I don't know if it's on account of her race, or what it is, but can you please caution him to (sic) finish her narrative ?  He keeps interrupting, and bellowing like he's some big, bad-ass dog or something."

"Bellow"**:  1. roar like a bull; 2. utter loudly and angrily (Concise Oxford Dictionary)
If someone bellows, they shout angrily in a loud, deep voice.(Collins English Dictionary)

Immediate Apology on 
the Record:

   Within less than a minute of those words being uttered a frank and fulsome apology
was communicated to Crown Counsel in order to preserve the integrity of the record
and proceedings.  Crown Counsel rejected the apology and asked the trial judge for an
adjournment in order for him to bring a complaint before the Law Society of Upper Canada.

Trial Judge Denied
Crown Request:

   The trial judge denied the Crown's request.  She stated:

THE COURT:  I think that I would like for us to take a 15 minute break, and then for us to return and continue the trial.

MR. RINALDI:  I can tell Your Honour I'm not in a position to do that.  I - I - I - sic and to make some inquiries, and I've had enough of this.  He called me names on the record and if...

MR. RINALDI: ...Your Honour wants to put up with that, that's your perogative.  I'll come back to set a new date, but I intend on speaking to the Law Society about the comments that have been put on the record about me. They were completely slanderous and inappropriate.

   Crown Counsel walked out on the trial judge.

Complaint to LSUC 
by Witness in Court:

   A member of the public who was in the courtroom and observed Crown Counsel's conduct made a formal written complaint to the Law Society of Upper Canada.  Her complaint raised the following regulatory issues:

1.  Crown Counsel was disrespectful to the trial judge by refusing to comply with her order;

2.  Crown Counsel was disrespectful to the witness - badgering her and raising his voice at her**; and

3.  The witness, a member of the public, stated, "I sat in stunned disbelief at the disrespect that the Crown showed to Justice Brewer by going against her order to take 15 minutes break."

Law Society of 
Upper Canada Response
to complaint:

    "After reviewing the information your provided, we have found that the concerns you raise are not something that the Law Society can deal with.  We can only act on complaints that provide information suggesting a lawyer had done something contrary to our Rules of Professional Conduct. As you aware, Mr. Rinaldi is a Crown Attorney.  As it appears your concerns about him relate to the exercise of his discretion within the context of his position as a representative of the Crown, you may address your concerns to:  The Ministry of the Attorney General, 720 Bay Street, Toronto, Ontario, M5G 2K1."

   On the other hand, the Law Society of Upper Canada has sent Crown Counsel's complaint against defence counsel, E.J. Guiste, to a formal hearing some six years after the fact and counting.  The Law Society of Upper Canada Notice of Hearing asserts that defence counsel was disrespectful to the trial judge and Crown Counsel - even though the trial judge never made any such complaint and went on to acquit defence counsel's client.

Case outcome:

   I was fully successful in defending my client. Yes - not guilty !  The learned trial judge found that my client did not assault his spouse her sister assaulted her causing injury to her eye.  More than five years later I am forced to defend myself against this Crown Attorney's complaint against me to the Law Society of Upper Canada - as they were known then.

How is this in the public interest ?

Is the late Eddie Greenspan Right ?

   One of Canada's best criminal lawyers had the following to say about the regulators tendency to prosecute defence lawyers but not prosecutors:  "The Law Society does not enhance its reputation by selectively prosecuting defence counsel for alleged misconduct in the face of the court, but not prosecutors. And such prosecutions will have a chilling effect on advocates." (Edward Greenspan
and L. David Roebuck, "The Horrible Crime of Incivility - Globe and Mail - August 2, 2012)




 

 
   

Is it "Professional Misconduct" for a Lawyer to Comment on a Judge's Unfairness ?

In Dore  v.  Barreau du Quebec [2012] 1 S. C.R. 395 the Supreme Court of Canada pronounced that:

"In dealing with the appropriate boundaries of civility for a lawyer, the severity of the conduct must be interpreted in light of the expressive rights guaranteed by the Charter, and, in particular, the public benefit in ensuring the right of lawyers to express themselves about the justice system in general and judges in particular.  We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer's right to expression and the public's interest in open discussion."

The Supreme Court of Canada stated:  "Proper respect for these expressive rights may involve bodies tolerating a degree of discordant criticism.  The fact that a lawyer is criticizing a judge, a tenured and independent participant in the justice system, may raise, not lower, the threshold for limiting a lawyer's expressive rights under the Charter."


The Ontario Court of Appeal had the following to say in Amato  v.  Peske 2010 ONCA 708:

"There are times when trial counsel can be expected to raise objections, especially when they feel that a trial judge is exceeding the bounds of judicial propriety and taking up the cause of one of the parties.  Polite but firm objections, in these circumstances, are entirely appropriate.  Counsel should not feel constrained for fear of judicial censure. 

Prohibited Conduct

A licensee shall not engage in professional misconduct or conduct unbecoming a lawyer.

s.33  The Law Society Act

With the authorization of the Proceedings Authorization Committee, the Society may apply to the Tribunal for a determination by the Hearing Division of whether a licensee has contravened section 33.

s.34 The Law Society Act


The Conduct:

1.  "Well, your Honour, I think you should give some thought to what you are doing, because you're trying to derail me".

2.  "Your Honour, you've got to - you've go to do you job now.  She - he asked that, and she said, five times. I mean come on."

3.  "Your Honour, I would have thought that you would've intervened, as the trial judge, but what's the purpose of this ?

4.  "I don't think you're listening to me very carefully, so I'm going to be very precise."


The learned trial judge made no complaint in court.  The learned judge made no complaint to the regulator. The learned trial judge went on to fully exonerate my client.


Guarantees for the functioning of lawyers

Governments shall ensure that lawyers(a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

Basic Principles on the Role of Lawyers - United Nations

Corruption Allegations Force Province to Install an Administrator at Durham Region Police

   When police officers make reports of corruption against their chief and others this is a sign that there is something wrong in the service.  When the Ontario Government appoints an administrator to oversee the operation of a police service in Ontario this is a signal that there is a very serious problem which is interfering with the operation of that service.

    This is a matter that members of the public must watch closely.  Let us see how this unfolds for the Durham Region Police and their supporters.


NOTE:  In October, 2014 the writer served a subpoena on the Chief of Police or Designate seeking production of that services Domestic Violence Investigation Policy.   The writer was made to understand from the proceeding that Durham Region Police Service does not have a Domestic Violence Investigation Policy.   It simply uses the proposed guideline.  Anyone having information on this point kindly contact the writer. Phone: (416) 364-8908 - E mail: ejguiste@yahoo.com

How I Successfully Advanced a Racial Profiling Defence in a Drug Importation Case: Part 2

   We have all heard it said that cases are won and lost on their facts.  Nowhere is this statement more true than when it comes to advancing a racial profiling defence in a criminal case.  When seeking to advance a racial profiling case you are seeking to establish facts that speak to what the Ontario Court of Appeal said about racial profiling and the difficulty of proof with direct evidence. Hence, you will want to do two things.  Firstly, you will want to establish that one or more officers is simply not telling the truth on material points - like the reason for the referral to secondary or their observations of the subject.  You will want to exploit any inconsistencies in their version of what happened. Secondly, you will want to bring out any overt acts of discriminatory conduct on the part of the officers towards your client.  Sarcasm and even the manner of looking at someone can covey strong discriminatory vibes.  I have reproduced below the supporting affidavit used in my recent case - which resulted in the Crown withdrawing importation charges involving some four kilograms of cocaine.

SUPERIOR COURT OF JUSTICE

(Brampton)

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

- and -

                                                                                                                     Applicant

                                                SWORN AFFIDAVIT OF

            I,     of the City of Toronto, MAKE OATH AND SAY AS FOLLOWS.

  

1.            I am the Applicant on this application and as such I have personal knowledge of the matters hereinafter deposed to.

2.         I swear  this affidavit following my attendance for trial  on June 12^th, 2017 before Justice Durno.  At that time, the Crown sough an adjournment asserting that they were caught by surprise by the scope of my Charter application. The Crown indicated that they were not aware that I was raising any issues other than that the decision to send me to be searched was tainted by irrelevant considerations including racial profiling.

3.         Following submissions by the parties, I understood that Justice Durno directed my lawyer to prepare an affidavit delineating my evidence and to prepare a factum – as Justice Durno determined that the original factum was deficient.

Background:

4.         I am a person of African descent from Jamaica with noticeably dark skin.

5.         I am forty-four years of age – having been born January 6^th, 1973 in St. Catherines, Jamaica.

6.         I obtained my Landed Immigrant Status in Canada on December 17^th, 1987.

7.       I am a mother with four children ranging from nineteen to twenty-eight years of age, all of whom were born in Canada.  All but the eldest currently reside with me.

 8.     My father and various relatives continue to reside in Jamaica and consequently give me occasion to have to visit there from time to time.

Trips to Jamaica

9.         On or about August 22^nd, 2014 I travelled to Jamaica from Toronto in order to care for my elderly father who was hospitalized as a result of a severe stroke.  He is paralized and unable to walk or to independently conduct bathroom functions.

10.       On that occasion, I stayed in Jamaica for three weeks caring for my father.  While there, I made arrangements with my aunt, Ms. , for her to assist with his care in my absence.  Ms.  is my father’s sister.

11.       On or about October 14^th, 2014 I received a call from Jamaica informing me of Ms. ’s passing.

12.       I later received information regarding the funeral plans.  I decided to attend the funeral and made arrangements with my mother, Ms. , to provide me with a loan of $1,500 to enable me to travel to the funeral.  I paid off my obligation to my mother in December, 2016.

13.       I personally purchased my ticket using the funds loaned to me by my mother.  I paid $500 in cash and the balance of $273.46 by way of debit from my personal bank account.  Attached to this my affidavit as Exhibit “A” is a true copy of the two page invoice statement from Flight Centre with respect to my purchase of my ticket.

14.       I did not at anytime inform Officer 1 that my mother purchased my ticket for me.  Officer 1 asked me – “if you are not employed, how could you afford to buy your ticket” ?  I responded “my mother”.  Officer 1 did not ask me about my occupation.

15.       I now understand that Officer 1 maintains that a third party purchased my  ticket.  I did not tell her that. Exhibit “A” above speaks clearly to that point. My mother was not even present when I purchased my ticket.

Sarcasm From

Officer Tankus:

16.       Officer Tankus looked me straight in the eyes, smiled and said to me, “your mommy must really love you to buy you a ticket to go to your aunt’s funeral” ?

17.       I did not respond to Officer 1.  Officer 1's sarcastic statement told me that she had concluded that I was not worthy of belief or fairness.

Scanning Me

Up and Down

With Her Eyes:

18.       Officer 1 scanned me up and down with her eyes in a manner which conveyed to me a sense of contempt and intolerance.  I had previously experienced this feeling and knew right away that my race, place of origin and the fact that I mentioned to Officer 1 that I was not working presently placed me in a category of persons who are not deserving of her respect.

19.       My voice was not trembling during my interaction with Officer 1 and I consistently maintained proper eye contact with her.

20.       It was and remains my practice to place all my relevant travel documents together for presentation to the officer.  This was my practice on this occasion.  I provided my passport, boarding pass, flight centre invoice/statement, permanent resident card, and funeral program.  I did not volunteer to show her a funeral invitation.

21.       The document pertaining to the funeral which was among the documents I submitted to Officer 1 was a copy of the funeral program and not an invitation.  Attached to this my affidavit and marked as Exhibit “B” is a true copy of the funeral program which was among the documents submitted to Officer 1.

Referral to

Secondary Search:

22.       I do verily believe that Officer 1's decision to send me to secondary was tainted by irrelevant considerations and the unconscious operation of racial profiling and that the narrative which she has provided which is document 1 in my motion record is simply a pretext to mask this unconstitutional conduct. This document when contrasted with the under oath evidence of Officer 2 and Officer 3 on September 20^th, 2016 – found at tab 3 of my Motion Record and Officer 2 on September 19^th, 2016 – found at tab 2 of my Motion Record along with my own observations calls into question and undermines her pretext evidence.

 23.       As a direct result of her actions, my luggage was unreasonably searched. I was subjected to a humiliating strip-search nothing like that described by the officers in my case maintain.  They did not do my strip search in parts. I was stripped totally naked and they searched my vagina and anal areas and had me squat and cough in order to expel anything which may have been lodged in my vagina or anus.  There was nothing.

24.       It was only after I was thoroughly searched and humiliated was I provided any opportunity to speak to counsel.

25.       I swear this affidavit in support of my application seeking a remedy for the violation of my Charter rights and for no other or improper purpose.

Sworn before me this

12th day of June, 2017

at the City of Brampton, Ontario.                           ______________________________

                                                                                               

                                                                                      ____________________________________

Ernest J. Guiste, Trial & Appeal Lawyer

A Commissioner of Oaths (Ontario)


NOTE: This pieces is published here as a public service on an issue of public importance.  It is not put here to give legal advice or to make any representation on the law. The message or lesson is simply to highlight how I obtained a successful result for my client through the law articulated by ONCA in R  v.   Brown.  It can be done. It was done.