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Author: Andrew

Edmonton Criminal Lawyer Ziv > Articles posted by Andrew
09 December
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All Eyes on ICC – Seeking Arrest Warrants for Israeli Officials – Problems with Process

Posted by Andrew
in Criminal Code, Criminal Lawyer, criminal lawyer edmonton, ICC, warrants

Article by Rory Ziv

Overview

[1] There has been public disagreement about the issuance of arrest warrants by the International

Criminal Court “ICC” for the current Israeli Prime Minister Benjamin Netanyahu, and former Israeli

Defense Minister Yoav Gallant.1 These warrants are under appeal.2

[2] The main goal of the ICC as described by the ICC’s governing statute, “the Rome Statute”,3 is

laudable: to ensure that perpetrators of the most serious crimes against humanity, who cannot

otherwise be prosecuted in national criminal jurisdictions, are prosecuted.4 It is non-negotiable that

this objective is sound.

[3] The Canadian Prime Minister, Justin Trudeau, has publicly stated that he would without question

cooperate with the warrant process5 while the official opposition leader, Pierre Poilievre, has signaled

he does not approve of the warrants.

6 Some countries who are signatories with the ICC have indicated they would either not honour

the warrants or are non-committal.7

[4] Whether Canada should or should not endorse the warrants is beyond the scope of this paper.

However, Canada, as an independent sovereign country, should at least make its own inquiries and

conduct its own analysis. It does not benefit Canada to be passively compliant in partner with the ICC.

Canada’s international reputation and our international relationship with other countries, including

those who are and who are not members of the ICC, is paramount and certainly justifies our government

undertaking a fulsome and independent review of the ICC process that led to the arrest warrants that

we are being asked to support.

The Allegation

[6] On May 20, 2024, the ICC Prosecutor issued a public statement9 saying he was seeking the arrest

of Netanyahu and Gallant. In the statement, the following was alleged [emphasis added]:

My Office submits that these acts were committed as part of a common plan to use

starvation as a method of war and other acts of violence against the Gazan civilian

population as a means to (i) eliminate Hamas; (ii) secure the return of the hostages which

Hamas has abducted, and (iii) collectively punish the civilian population of Gaza, whom

they perceived as a threat to Israel.

The effects of the use of starvation as a method of warfare, together with other attacks

and collective punishment against the civilian population of Gaza are acute, visible and

widely known, and have been confirmed by multiple witnesses interviewed by my Office,

including local and international medical doctors. They include malnutrition,

dehydration, profound suffering and an increasing number of deaths among the

Palestinian population, including babies, other children, and women.

[7] From this statement it is apparent that one of the central allegations being made by the

Prosecutor was that Israel, as part of a common plan, was setting out to collectively punish the

population of Gaza and that the use of starvation was implemented.

[8] In support of the allegation, the Prosecutor adds: As an additional safeguard, I have also been

grateful for the advice of a panel of experts in international law, an impartial group I convened to support

the evidence review and legal analysis in relation to these arrest warrant applications.10

Assertion of Impartiality

[9] The Prosecutor advances a position of impartiality: “an impartial group I convened”. How did

the Prosecutor convene this panel of impartial experts? Who are they? Are they impartial? Why were

they chosen? Certainly, a random selection of experts would extinguish the appearance of bias and

ensure that an objective perspective was being relayed back to the Prosecutor – for the Prosecutor’s sake

and the appearance of neutrality.

[10] The legal arena is fraught with differing viewpoints on the issuance of the warrants. There are

dozens of legal briefs filed with the ICC by other international law experts refuting the ability of the ICC

to issue arrest warrants. Opposition to the warrants have formed mostly on traditional partisan lines

where countries like the United Kingdom (before their July 2024 election) and USA have filed legal briefs

disagreeing with or questioning the arrest warrant requests.11

[11] Even renowned International Lawyer Alan Dershowitz has publicly disagreed with their issuance

from a legal perspective,12 and has threatened to form a consortium of international experts to challenge

the ICC Prosecutor’s position.

Reasonable Apprehension of Bias: The Prosecutor

[12] In Canada, the law recognizes a concept called Reasonable Apprehension of Bias “RAB”. This is

different from actual bias. The question is not whether a decision maker is factually biased, but whether,

by their actions, the reasonable observer would have cause to question their impartiality.13 What

impression is left with the observer?

[13] There have been briefs filed with the ICC asserting actual Prosecutor bias. For example, Eli M.

Rosenbaum, former Director of the United States Department of Justice, Office of Special

Investigations14, concluded in his brief to the ICC: “[w]ith the OTP’s [office of the prosecutor] credibility

on the line, the Prosecutor should be required by your Honors to satisfactorily address the questions

raised herein regarding apparent bias, including whether OTP has unfairly applied to its Israeli targets

standards that it has not applied to others”.15

[14] This writer does not have to go as far as saying the Prosecutor or the expert panel he selected

is actually biased. Their actions do however suggest RAB.

Public Statement

[15] On May 20, 2024, the Prosecutor issued a public statement16 that he was seeking the arrest of

the Israeli officials. In a brief filed on behalf of the Office of Public Counsel for the Defence “OPCD”17, it

was pointed out that going public was not routine and impacted fair trial rights, including implicating

the presumption of innocence.18

[16] As stated by counsel for the OPCD: “While communications of the ICC Prosecutor to the press

are not barred, such pronouncement runs afoul of the aforementioned jurisprudence, is outside of usual

OTP practice, and runs contrary to advice of the Chambers Practice Manual …”. Why did the Prosecutor

decide to make public the issuance of the arrest warrants? His response to this charge was simply that

it was not the first time he had done so.19 Even so, making information public seems to be the exception,

not the rule and his response – that he is allowed to – falls short of a satisfactory answer.

[17] An OTP spokesperson explained that the matter went public because the Prosecutor had

“significant concern[s] regarding the ongoing nature of many of the alleged crimes cited in the

applications.”20

[18] Some may argue that going public by itself says nothing about an outward appearance of bias.

After all, the Prosecutor also asked for arrest warrants for Hamas leaders. This argument is weak. It

would be akin to saying the Prosecutor is fair and impartial because in addition to seeking warrants for

Winston Churchill, he also sought warrants for Hitler. Seeking a warrant for the latter is easy,

noncontroversial and obvious. Arresting Hitler or Sinwar doesn’t show impartiality. The Prosecutor

would have had no real decision to make regarding these fiends.

[19] In any event, in his public statement, the Prosecutor said: “I convened [an impartial group] to

support the evidence review and legal analysis in relation to these arrest warrant applications.” In fact,

there is a major flaw with the legal process used.

Complementarity has not been Analyzed

[20] First, the “evidence review” that the Prosecutor speaks of is not available for public scrutiny. He

compiled it, showed it to his experts, and then presented it to the judges, who then issued the warrants.

[21] What the panel was not asked to do was legally analyze whether the court should take the case

because of admissibility (complementarity) concerns. In fact, the first footnote of the panel’s decision

is that they did not advise on this issue.21

What is Complementarity?

[22] Recall, the objective of the ICC is to ensure that perpetrators of the most serious crimes against

humanity, who cannot otherwise be prosecuted in national criminal jurisdictions, are prosecuted.

[22] Paragraph 10 of the Preamble, Article 1, 17 of the Rome Statute22 addresses the issue of

complementarity, also known as admissibility. What this means is that if Israel is unwilling to investigate

and prosecute Israeli officials for war crimes then the ICC can intervene.

[23] The Prosecutor’s position is that the interpretation of the Rome Statute on the issue of

admissibility is not relevant when seeking arrest warrants “[c]onsistent with the Court’s settled

jurisprudence, the Chamber need not assess complementarity for the purpose of the present article 58

proceedings [obtaining an arrest warrant] because there is nothing requiring it to do so.”23 This will

likely be one of the issues that will be litigated going forward.

[24] The Israeli Bar Association submitted a brief explaining the steps already taken to investigate

those accused of war crimes, and further advised the ICC that Netanyahu and Gallant were being sued

in Israel, petitions filed in March 2024, for humanitarian violations within Gaza.24

[25] In addition, Israel’s Notice to Appeal the warrants asserts:

On 1 May 2024, Israel notified the OTP [office of the prosecutor] that it “is willing and able

to investigate and, where necessary, prosecute any alleged violations of international law

relating to the current conflict,” and requested that the Prosecutor “defer any investigation

it may be conducting in relation to any alleged criminal acts attributed to Israeli nationals

or others within Israel’s jurisdiction, in favour of Israel’s processes for review, examination,

investigation and proceedings under its national legal system, as further explained below.”

The Prosecutor was specifically invited to bring to Israel’s attention any alleged crimes

attributed to Israeli nationals or others within its jurisdiction so that “relevant Israeli

authorities can examine and investigate those allegations with a view to ensuring

accountability in line with the applicable law.”25

[26] Israel, in their appeal notice seems to suggest, that the Prosecutor was non-communicative on

this point.26

[27] To date, and despite the complementarity issue being a threshold issue or bar or litigation, this

issue is irrelevant at this early stage because the ICC has sided with the Prosecutor’s interpretation of

the law – that the issue of complementarity need not be considered at this stage (the warrant stage).

[28] In any event, when the Prosecutor says his expert team supported “the evidence reviews and

legal analysis” [emphasis added], it is a misspeak and an important one. His panel specifically did not

address the issue of complementarity.

The Evidence

[29] The charge was and is that Israel, as part of a systematic plan, chose to collectively punish

Palestinian civilians by starving them, as retribution by Israel not only on Hamas but on the Gaza

population for the acts committed by Hamas. It is an extraordinary claim and “extraordinary claims

require extraordinary evidence”.27 The evidence is secret, but the panel’s report offers some clues.

[30] The report says that Netanyahu and Gallant are responsible for the killings of civilians who died

as a result of starvation.28 This claim ignores key facts, including that aid resumed on October 21, 202329,

and that food supplies were consistently hijacked by Hamas30. In addition, the claim of starvation in the

two weeks immediately following October 7 would mean that Gaza had no food reserves.

[31] A group of professors in a legal brief to the ICC cited evidence that there was a “significant

under-reporting of foodstuffs entering the Gaza Strip and concluded that the former claims of “famine”

were not supportable.31 In addition, Hamas claimed thirty-four deaths were caused by starvation, but

all published cases relate only to children and all of these children were confirmed to have suffered

from other serious co-morbidities.32

[32] Another group, the High Level Military Group “HLMG”, a group of High Ranking military officials

(retired) from the U.S., Italy, UK, France, and Spain, specifically refute the charge of starvation. They

visited entry points built by Israel into Gaza to facilitate delivery of aid. In addition, the HLMG questioned

Israeli IDF commanders, and they were not aware of any policy established by Israel to purposely

prevent the facilitation of aid into Gaza.33

[33] The world requires proof of any policy statement by Israel that says, “Starve the Palestinians as

payback for October 7, 2023”. Extraordinary claims requires extraordinary proof.

[34] Allegations of total siege by Israel are also questionable. The Rafah crossing between Israel and

Egypt was not under Israeli control between October 8, 2023 and May 6, 2024, but under Egyptian

control.34 A CNN report says: “A Palestinian border official told CNN that Egypt had blocked the gates of

the crossing with concrete slabs. Egypt has denied reports that it has closed its side of the crossing, and

said the Palestinian side has been damaged by repeated Israeli airstrikes.”35 These facts will have to be

adjudicated at trial (if there is a trial) but firsthand witness accounts, like that of a Palestinian border

officer is more reliable, not positions of partisan governments and agencies.

[35] The Prosecutor publicly suggested that there was a total siege of Gaza. However, if Israel built

roads to let aid into Gaza, and there was no Stalin-like starvation policy undertaken by Israel, then the

Prosecutor’s position, both publicly and legally, is significantly compromised.

[36] Unfortunately, none of these refutations have been considered by the ICC because of the legal

maneuvering to date and the Court’s interpretation of the Rome Statute. Hopefully, the Court in future

will issue reasons that are transparent on the issue of complementarity.

[37] The final flaw in the legal analysis/legal process used by the ICC, in this discussion, pertains to

the panel itself.

Reasonable Apprehension of Bias: The Panel

Unanimity

[38] The panel’s report was stated as unanimous.36 As an observation, what is the likelihood that six

impartial experts would come to the same conclusion, especially in such a contentious war?

[39] Granted, it is entirely possible that the evidence presented to the panel by the Prosecutor was

so one-sided that a broad consensus would have been reached by any credible person reviewing the

evidence. However, as mentioned above, the evidence is redacted and therefore not available for public

viewing.37

[40] This fact alone, that the evidence is hidden should have necessitated a rigorous mechanism

employed for selecting a panel. Selecting panel members who were unanimous in their conclusion, who

also happen to support the Prosecutor’s position and theory, is optically concerning.

[41] What if the Prosecutor had selected experts who have written in opposition to the warrants?

Would the same conclusions have been reached? Likely not, and that is the point. This exercise by the

Prosecutor of selecting an “impartial panel” is a show. It’s quintessential confirmation bias.38

[42] The panel was assembled in January 2024.39 The New York Times reported that many of the

panel members has known strong anti-Israel views.40 When examining some of the panelists pre-

engagement positions, the following is revealed.

[43] Danny Friedman, an international lawyer, in an article dated October 17, 2023 wrote: “There are

some aspects of Israel’s response that already cause significant concern … To be clear, collective

punishment [emphasis added] is prohibited by the laws of war.”41

[44] Friedman’s article signals that Israel’s military response to October 7, 2023, was concerning,

and while he may or may not have reached any firm conclusion on collective punishment when he wrote

the piece, it was clearly on his mind. It should have disqualified him from sitting on the panel because

this appears to be a central theory the Prosecutor was asking him to confirm.

[45] This is not a criticism of Friedman, but of the Prosecutor. Since Friedman’s comments were public

before the Prosecutor assembled the panel, there is a very real perception, true or not, that the

Prosecutor knew Friedman’s slant on the issue before he was selected.

[46] Likewise, Baroness Helena Kennedy KC, in an interview given on October 24, 2023 to a magazine

called Prospect, warned against collective punishment.42 To maintain the appearance of impartiality, she

should not have been selected as a panelist. On March 14, 2024, while still sitting on the Panel and prior

the panel’s conclusion she said: “The ICJ has given a warning to Israel; now is the time for all of us to say:

enough is enough.”43 There is RAB. She is sitting as a de facto judge and has pre-judged.

[47] Panelist Amal Clooney is the wife of the famous actor, George Clooney. She is also a human

rights lawyer and appears to be involved in an admirable charity called the Clooney Foundation for

Justice. Their work is documented on their website, cfj.org. What is also documented on the website is

the fact that Helena Kennedy sits as a trial board advisory member44 and that the Prosecutor has publicly

endorsed Mrs. Clooney45 wherein he has stated, “I have the great honour that Amal accepted an

invitation to be my special advisor on Sudan …”. This would have pre-dated her January 2024 selection

to the panel.

[48] There is likely nothing sinister about the relationships the panel members have with each other

and the past relationships they have had with the Prosecutor, but those relationships cloud the claim of

impartiality. The appearance of arms-length relationships is important, especially on such a delicate and

controversial topic.

[49] Would Friedman or Kennedy have been selected had they written ten days post-war that Israel’s

response to cutting off aid (if that happened) was entirely proportionate, justified, and valid in the

circumstances? This is the point. Superficially, it appears as if the Prosecutor has selected a panel to

confirm his theory, as he knew they would. This is confirmation bias presented as impartiality. It is

concerning.

Conclusion

[50] War is horrific for all caught in the conflict. This week tragic scenes of bread queues were

reported and evident in Gaza. Hundreds, if not thousands of people amassed around a bakery, with some

even being crushed to death by the weight of the crowd while waiting to buy bread.46 This has been a

hard war and it has been a visible war. It has been well documented. The Nazis tried to cover up their

crimes, but Hamas recorded their crimes, with glee, on their Go-Pros. The depravity of Hamas is hard to

describe. Kidnapped babies and emergency responders observed the body of a baby that had been

cooked alive in an oven at Kibbutz Kfar Aza: “the body became swollen and as a result of the heating

element of the oven became attached to the body itself.” 47

[51] Many have questioned the severity of Israel’s response. This time, Israel’s response was not half

measures. Thousand killed, injured and hundreds raped or kidnapped should invoke a powerful reprisal.

From Israel’s viewpoint, no apology is needed or will be made for quashing the horrific and inhumane

evil-doings of Hamas. Perhaps if the world had stood united with one voice about removing Hamas

quickly from all forms of influence, the war would have ended sooner.

[52] Unfortunately, equivocation and moral confusion prevented a swift response. “All eyes on Rafah” (where

that Hamas leader Sinwar met his demise) slowed the IDF’s progress. This moral confusion, at least from

a RAB viewpoint, has permeated into the ICC. Canada should take a cautious approach with these warrants.

If the Attorney General on behalf of the Prime Minister is required to sign off on an arrest warrant, some

pause, reflection and deliberation would be prudent.

1 https://www.euronews.com/my-europe/2024/12/03/fact-check-where-do-eu-countries-stand-on-iccs-arrest-warrant-for-netanyahu

2 ICC-01/18-385 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180a1deda.pdf and ICC-01/386 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180a1dedb.pdf

3 Rome Statute https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf

4 This is the writer’s synthesis of the preamble of the Rome Statute

5 https://nationalpost.com/news/canada/trudeau-netanyahu-icc-arrest-warrant

6 https://x.com/PierrePoilievre/status/1860043648177508681

7 See footnote 1 and https://www.euronews.com/my-europe/2024/11/22/brussels-warns-orban-over-netanyahu-visit-its-your-duty-to-comply-with-icc-warrants

8 Hizballah and Hamas are listed as terror organizations by Canada see https://www.publicsafety.gc.ca/cnt/ntnl-scrt/cntr-trrrsm/lstd-ntts/crrnt-lstd-ntts-en.aspx

9 May 20, 2024, Public Statement https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-applications-arrest-warrants-situation-state

10 Ibid [emphasis added]

11 ICC-01/18-171 https://www.icc-cpi.int/sites/default/files/RelatedRecords/0902ebd180892e1f.pdf and

ICC-01/18-300 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd1809236df.pdf

12 https://www.israelhayom.com/2024/11/30/the-icc-is-100-political-alan-dershowitz-leads-legal-dream-team-defending-israel/

13 A description by the famous British Jurist, Lord Denning describes the concept, as quoted by the Supreme Court of Canada in R. v. S.(R.D.) 1997 3 SCR 484 at para 11.

14 https://en.wikipedia.org/wiki/Eli_Rosenbaum

15 ICC-01/18-280 at para 17 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180922ed1.pdf

16 See footnote 9

17 An ICC body employed to safeguard those who have no standing at the initial stages of an investigation.

18 ICC-01/18-342 at paras 14 and 20 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180939437.pdf

19 ICC-01/18-346 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180949087.pdf at para 41.

20 ICC-01/18-280 at para 10 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180922ed1.pdf

21 Expert Panel Report https://www.icc-cpi.int/sites/default/files/2024-05/240520-panel-report-eng.pdf

22 Rome Statute https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf

23 ICC-01/18-346 at para 34 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180949087.pdf

24 ICC-01/18-313 at para 29 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180925313.pdf

25 ICC-01/18-385 at para 11 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180a1deda.pdf

26 ICC-01/18-285 at para 12 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180a1deda.pdf; and the Rome Statute, Article 53(4) permits the Prosecutor to consider new information at any time. https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf

27 An expression attributed to Carl Sagan

28 Para 31of the report https://www.icc-cpi.int/sites/default/files/2024-05/240520-panel-report-eng.pdf

29 https://www.npr.org/2023/10/21/1207753842/egypt-gaza-border-crossing-opens

30 ICC-01/18-267 at para 7 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180920f26.pdf

31 ICC-01/18-279 at para 16 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180922ed0.pdf

32 Ibid at para 17

33 ICC-01/18-267 at para 3 https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180920f26.pdf

34 Ibid at para 18

35 https://www.cnn.com/2023/10/13/middleeast/egypt-rafah-crossing-gaza-palestinians-mime-intl/index.html

36 https://www.icc-cpi.int/sites/default/files/2024-05/240520-panel-report-eng.pdf

37 The writer wrote to the ICC on November 27, 2024 and they confirmed this.

38 This is almost an identical observation made by Eugene Kontrovich in his New York Times article https://archive.ph/4QqGg

39 https://www.icc-cpi.int/sites/default/files/2024-05/240520-panel-report-eng.pdf at para 7

40 https://archive.ph/4QqGg

41 https://yachad.org.uk/wp-content/uploads/2023/10/FT-British-Jewish-Lawyers.pdf

42 https://www.prospectmagazine.co.uk/ideas/law/63640/helena-kennedy-had-hoped-the-world-would-be-in-a-better-place-by-now

43 https://www.theguardian.com/books/2024/mar/14/dont-look-left-by-atef-abu-saif-review-in-the-line-of-fire

44 https://cfj.org/trialwatch-advisory-board/

45 https://cfj.org/our-story/ – please note, on the date I accessed this site for publication this reference had been removed, therefore I have attached my screenshot of this reference to this document.

46 https://www.cnn.com/2024/11/29/middleeast/gaza-bakery-crush-palestinians-killed-intl-latam/index.html

47 https://www.thejc.com/news/i-saw-a-baby-who-had-been-baked-in-an-oven-says-israeli-emergency-worker-qw2nn4os

48 The Sin of Moral Equivalence: Sam Harris; https://www.youtube.com/watch?v=k6VCF_csmDg

02 October
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Is Carrying an Ordinary Kitchen Knife in Public a Crime in Canada?

Posted by Andrew
in Criminal Code, Criminal Lawyer, criminal lawyer edmonton, Dangerous to the Public, Edmonton, Knife, weapon

Article by Rory Ziv

The definition of a weapon is found in s. 2 of the Criminal Code of Canada. It is reproduced below. 

weapon means any thing used, designed to be used or intended for use

  • (a) in causing death or injury to any person, or
  • (b) for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thing used, designed to be used or intended for use in binding or tying up a person against their will; 

The answer to the question will in large part depend on whether the knife can be categorized as a weapon based on the above definition? 

 If the answer to this question is yes, the next issue is whether carrying the weapon is a crime. For example, if a person is on a court order not to possess a weapon and they carry a kitchen knife determined to be a weapon then they have committed a crime. 

Ordinarily, carrying a kitchen knife, which is a weapon, by itself is not a crime, unless it is being carried for a purpose dangerous to the public, see R. v. Kerr 2004  SCC  44.

So, can a kitchen knife be categorized as a weapon? The best answer is found in the case R. v. Vader 2018 ABQB 1 at para 20 where Justice Clackson says “an item which is both violent and non-violent in potential use will be found to be a weapon where the context supports the inference that was the accused’s design and the context does not support any other reasonable possibility”. 

For example, a person who is carrying a kitchen knife in a bar may have some explaining to do. It may very well be that without a reasonable explanation the knife will be categorized as a weapon. 

A reasonable explanation for carrying a knife in a bar is that you just purchased the knife and stopped in the bar for a quick drink. If this explanation is not rejected, then the kitchen knife would not be a weapon.

23 September
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Past Communications about Present Intention (a thought experiment)

Posted by Andrew
in Assault, Intent

Article by Rory Ziv

Imagine a situation where one person texts another person “meet me at the school playground at 2 pm tomorrow if you want to fight?”. Assume the fight takes place the following day, at the agreed upon location and time, and one person is charged with assaulting the other. 

It should be apparent from this fact pattern that a lawyer would want to explore why a person was charged, since ostensibly, it appears as there was evidence that the fight was consensual.    

Remember, an assault is a non-consensual touching. Ordinarily, consensual fights would not be a crime (there are exceptions like bodily harm intended and caused or actions outside the scope of the agreed upon conduct).

In the realm of the law of assault the text message “meet me at the school playground …” would be admissible evidence as some evidence showing consent. It may not be determinative depending on the facts, but it would certainly be relevant especially if the accused person was suggesting the fight was consensual. 

Enter the topic of sexual assault, which is also a non-consensual touching, the difference is that it is of a sexual nature. Change the text message to the following: “meet me in my bedroom tomorrow night at 8 pm I want to have sex with you”. 

Some arguments, supported by some cases, have taken the position that this type of text message is not relevant because consent must be given at the time of the event in issue and past agreements about consent cannot be relevant to whether there was actual consent at the relevant time. 

In my opinion this type of reasoning is flawed because it bypasses a threshold relevance issue. Some thinkers don’t consider the possibility that some past communications could show proof of present intention. While it is not direct evidence, it is circumstantial evidence.  

A person can agree with having sex in the future, but that sex must still be agreed upon at the relevant time for it to be consensual. That doesn’t make the past communication –irrelevant—the past communication is still a piece of evidence that can be used by the accused person, to show along with other evidence, that there was consent at the relevant time. 

There has in my opinion been a fundamental breakdown or break up of the fundamental building blocks of what is “relevancy” and as a result I am particularly concerned that there are going to be wrongful convictions that flow.   Two recent appeal decisions arrive at different conclusions of a very basic and fundamental issue. See the following cases: R. v. Reimer 2024 ONCA 519 but see R. v. MacMillan 2024 ONCA 115. 

16 September
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Alternative Measures Program (AMP)

Posted by Andrew
in Alternative Measures, Diversion, Restriction on use, sentencing

Article by Isabela Ene

The Adult Alternative Measures Program (AMP) is a program that is available to divert someone accused of a crime away from the traditional criminal justice system. The AMP is a preferred approach to resolving criminal matters because, if an accused successfully completes the AMP, charges against them will be withdrawn, which means no criminal record will result from the matters resolved under the AMP.  

AMP is an option that is available to individuals who don’t have a criminal record, didn’t participate in the program previously, and are charged with minor criminal offences or summary conviction offences. An individual may be eligible for a second chance to do the AMP if at least two years have elapsed since the last completion of the program or finding of guilt.

Participation in this program is at the Crown’s discretion (I often get the question “Who is the Crown?” The Crown is the prosecutor, representing the government). 


Pursuant to Section 717 of the Criminal Code, the Adult AMP is authorizedand contains the following requirements of eligibility:

S.717 When Alternative Measured May Be Used
(1) Alternative measures may be used to deal with a person alleged to have committed an offence only if it is not inconsistent with the protection of society and the following conditions are met:
(a) the measures are part of a program of alternative measures authorized by the Attorney General or the Attorney General’s delegate or authorized by a person, or a person within a class of persons, designated by the lieutenant governor in council of a province;
(b) the person who is considering whether to use the measures is satisfied that they would be appropriate, having regard to the needs of the person alleged to have committed the offence and the interests of society and of the victim;
(c) the person, having been informed of the alternative measures, fully and freely consents to participate therein;
(d) the person has, before consenting to participate in the alternative measures, been advised of the right to be represented by counsel;
(e) the person accepts responsibility for the act or omission that forms the basis of the offence that the person is alleged to have committed;
(f) there is, in the opinion of the Attorney General or the Attorney General’s agent, sufficient evidence to proceed with the prosecution of the offence; and
(g) the prosecution of the offence is not in any way barred at law.

(2) Restriction On Use
Alternative measures shall not be used to deal with a person alleged to have committed an offence if the person
(a) denies participation or involvement in the commission of the offence; or
(b) expresses the wish to have any charge against the person dealt with by the court.

The summary conviction offences include:

  • Assault (simple assault);
  • Causing a disturbance;
  • Fraud under $5000;
  • Mischief under $5000;
  • Obtaining sexual services for consideration;
  • Theft under $5000;
  • Possession of stolen property under $5000;
  • Possession of a controlled substance;
  • Taking a motor vehicle without consent;
  • Uttering a forged document.

Traffic offences and serious offences such as drug offences involving trafficking in a controlled substance, those resulting in the death of an individual, violence, and sexual offences among others, are not eligible for the AMP.

The Crown must be convinced to divert the matter to the AMP. For that, it is imperative that the defence lawyer have a good handle on the facts of the case, the law and the client’s background such as the family situation, job, education, goals, motive and if the individual is willing to take responsibility. At Ziv Law, we have successfully convinced the Crown to divert many of our clients to the AMP.

Once the Crown agrees to divert the matter to the AMP, the client will sign an AMP form indicating that they have taken responsibility for the offence. This doesn’t mean that you plead guilty, entered into a guilty plea or admitted any of the allegations.

The individual will have a number of months 4-6 to complete the AMP. 

The AMP may include any or all of the following: 

  • Completing community service work; 
  • Participating in community counselling or an intervention program; 
  • Performing personal service to the victim(s); 
  • Completing a written essay; 
  • Apologizing to the victim(s) personally or in written form; 
  • Providing restitution, compensation, and a returning of property to the victim(s); 
  • Participating in a restorative justice program; 
  • Volunteer work; 
  • Charitable donation; and more.

Upon completion of the program, the charges are withdrawn, but before that, the individual is required to provide proof of completion of the AMP to the program coordinator and the Crown. The individual will not have a criminal record. There will be no conviction. 

However, your participation in the AMP may show up on some high-level criminal record checks (such as a government security screening) for a period of 12 months. Also, a CPIC (police database) query will show your enrollment in the program.

If you have been charged with a minor criminal offence and have completed the program more than two times, you should call Ziv Law about your options. 

We all know that being charged with a criminal offence is a serious matter that can affect your employment, ability to travel, education, and can have overall lifelong consequences. The AMP is a program that can help to minimize the impacts of your charges. 

Ziv Law can help determine if the AMP is a good option for you.  

** Please note, this article is intended as a general overview on the subject of criminal law, and is not intended to be legal advice. If you are seeking legal advice, please consult Ziv Law Lawyers.

09 September
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How we fail to absolve those that are not criminally responsible by mental disorder in minor crime scenarios

Posted by Andrew
in burden of proof, Defence of mental disorder, Jury instruction

Article by Matthew Pagels

‘This will be my first blog entry for the Ziv Law Group, and I’m excited to write it. I’m going to talk about an issue that is very near and dear to my heart. Something that plagues our criminal justice system, and I would venture to say every criminal justice system that makes an effort. I’m going to talk about the relationship between mental illness and criminality. But this is too vast a topic to contain in a blog entry, so I’m specifically going to focus on those cases where the crime is something much less than murder and the mental illness may range between leaving the Accused with no capacity to make meaningful rational choices, or something nearing that lower degree of capacity on that spectrum. 

The following two examples should make the problem I am talking about more clear. These are real people and examples, but significant details have been changed to protect client identity. Of course, everyone at Ziv Law Group is entitled to confidentiality. Here, I have respected that sacred duty by keeping details vague enough that it could be anyone, with a dash of fabrication, all while preserving the core of the scenario to make the point.

The first example is a client that had some major cognitive delay and unfortunately assaulted a care giver impulsively. This person struck the care giver on the face and body, pulled hair, and shouted that they would “end” the victim before intervention came. This person was an adult, but was residing full time in an institutionalized care unit under 24/7 supervision. They were also subjected to an adult guardianship order which places members of their family in charge over the major medical and life decisions. The evidence was that although there was some freedom for this individual to decide what they wanted day-to-day, such as what to have for breakfast or what to wear, the true ambit of this person’s personal freedoms was actually very limited. For instance, they could not simply declare that they were going to a park or the library. These things had to be scheduled in advance, and might be considered “goals” at the next care plan meeting that the individual was invited to. This person would never be allowed to go to a pub, get intoxicated, play a few games of billiards with a new love interest, and then go explore that further in private. 

The second example is a client that was in a serious motor vehicle accident and appeared to have some organic brain damage from the accident. During their stay in the hospital for treatment from that same accident, they became aggravated, confused, and were insisting on going home because they had important things to do. This was, to put it bluntly, and insane choice and one that would have put the person in extreme jeopardy. The hospital, likely quite properly, ordered this second individual physically restrained because they were thrashing about and threating violence on hospital staff. The doctor found that the person knew what they were saying and doing, but nevertheless lacked the mental capacity to make reasonable choices concerning their personal health at the time. A few days later, while recovering and fully restrained by arm and leg harnesses, this person freed a limb and struck a hospital staff member while demanding to be freed.

Both of these example clients were prosecuted by Alberta Justice, and unfortunately according to the law as written, both are “guilty” in law of criminal assault. I posed the issue using these two examples, because I am hoping you as a reader will have the same common sense revulsion that I do. In both of these cases, we as a society have already decided that the individual does not bare the same responsibility as another ordinarily functioning adult in our society. We’ve already said they can’t make their own decisions. This alone, to my mind, demands an approach that is distinct from the stigma and moral culpability involved in criminal sentencing. No one hearing about these cases is going to feel like “justice” is done regardless of how heavy or light the ultimate sentence turns out to be. “Justice” will be done when we address both the mental disorder and the quality of care and supervision as the problem, rather than punishing the disordered individual as if they were the problem.

As it stands today, our criminal law draws a bright line between “not criminally responsible” and the rest of us. The test for “not criminally responsible” was, in my view, clearly modelled on the Accused with schizophrenia or other delusional disorder that commits a major crime such as murder under their hallucinations. The test is found in s. 16(1) of the Criminal Code of Canada.

Defence of mental disorder
16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

Historically, the roots of this test are from the case of Rex v. M’Naghten (1843) 8 E.R. 718; (1843) 10 Cl. & F. 200. Mr. M’Naghten was charged with murder for shooting and killing a man named Edward Drummond as he was under the delusional misunderstanding that Mr. Drummond was the British Prime Minister. The Court found him not guilty and the case went to the House of Lords, which found:

the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.

It is with even more delicious irony that I recall the case of John Hinckley Jr., the man who attempted to assassinate US President Ronald Reagan. Mr. Hinchley Jr. was similarly diagnosed with schizophrenia and was under a convoluted delusion that the assassination of Ronald Reagan would impress Jodie Foster, whom Mr. Hinckley Jr. was obsessed with. His specific delusions were an amalgamation of fact and fiction from the movie “Taxi Driver” and real life. History for our insanity defence(s) may have played out differently in the US and Canada had this infamous assassination attempt not generated incredible outcry for prosecution in 1981 and as his trial progressed. Mr. Hinckley Jr. was convicted for murder after the following jury instruction was provided:

The M’Naghten standard therefore survives in our s. 16(1) of the Criminal Code. I must pause to speculate whether Mr. M’Naghten himself would have been eligible under s. 16 of the Criminal Code today given the Court’s reasons in R. v. Landry, 1991 CanLII 114 (SCC), [1991] 1 SCR 99. Mr. Landry was found not guilty by reason of mental disorder under s. 16(1), and the Supreme Court of Canada found that he did not know what he did was morally wrong. The Court broke down s. 16(1) explaining that “knowing” the action was “wrong” referred to a moral wrong and not merely that it was illegal. However, whereas Mr. Landry believed his murder was a mission from God to kill the devil, I wonder whether Mr. M’Naghten’s more earthly and personal mission of killing a man he believed to be the Prime Minister would meet the test in a Canadian court today. You may have notices that assassination of the Prime Minister is still a murder and had Mr. M’Naghten’s delusions been true he would just be a guilty assassin. Mr. M’Naghten appreciated the nature and quality of his acts and would have known that the murder of a man, unlike the that of a devil, is wrong.

The burden is on the Government to prove beyond a reasonable doubt either that the defendant was not suffering from a mental disease or defect on March 30, 1981, or else that he nevertheless had substantial capacity on that date both to conform his conduct to the requirements of the law and to appreciate the wrongfulness of his conduct.

Yes, despite being obviously delusional and “insane” in the ordinary sense, Mr. Hinkley Jr. fell short of the M’Naghten standard as it developed in the US. 

Now I circle back at last to our two examples from my own practice, and what became of them. Well, I certainly didn’t raise a “not criminally responsible” defence under s. 16 of the Criminal Code. You see, upon successfully arguing a “not criminally responsible” defence, the Court refers the individual to a review board under s. 672.47 of the Criminal Code, and the process becomes an administrative medical decision. There are no minimum or maximum periods of internment for the crime, because the individual is no longer being punished – they are being treated. And said treatment could translate into real life pragmatic terms to a life sentence in a psychiatric unit. In real criminal law practice, responsible lawyers rarely raise the s. 16 defence except unless a life sentence is the alternative.

In cases where the Accused was committed some (comparatively) minor act of assault against a person, we defence lawyers are better off having our obviously mentally ill clients “accept responsibility” and argue for mitigation in sentencing rather than absolution. For the two examples I have given, society has already obviously decided that they were not fit to make even the most basic fundamental choices about their lives, but we will still criminally prosecute such people because we have bifurcated our criminal responsibility into the black and white categories set out in ss. 16 and 672.47 of the Criminal Code. You can either put yourself at the mercy of the review board or take it on the chin and be punished as a criminal.

I do have to admit that we are making slow progress in this department. Edmonton’s Mental Health Court is very good at parsing out medical and mental health histories of individuals and then directing appropriate probation conditions or treatment orders that might be within the Court’s power to set things right. Our friends at the Crown’s Prosecutor’s office that work in mental health court are often sensitive and very much alive to the degree of responsibility of these offenders. The Edmonton Mental Health Court is stymied by an inability to order assessments, and they do not have specialize resources, such as social workers to assign, housing supports, or an ability to refer offenders to the public trustee for guardianship. Edmonton’s Mental Health Court could be more effective with more support from government.

It is in this lesser sphere of heavily mitigated criminal responsibility where I believe we have failed the most. In cases where the offender is already institutionalized in some obvious manner, I say the issue of criminal responsibility has already been closed in favour of finding that this class of offender cannot possibly bare full criminal responsibility. As a start, I would be in favour of a second tier of criminal responsibility, similar to what we do under the Youth Criminal Justice Act. This would acknowledge not only the lower degree of responsibility of the offender, but force the decision maker and society to come to terms with our failings as stewards of our adult population in care. When violence and crime are committed by those we have already declared incapable, the responsibility is on us to make sure it doesn’t happen again as much, if not more, than it is on the mentally disordered individual.

07 June
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Impaired Driving: Legal Update, June 2024

Posted by Andrew
in Impaired Driving

This week Leman v Alberta (Director of Saferoads), 2024 ABKB 332 was issued by Justice Marion. Some of our successful cases were relied on to reach the conclusion that the adjudicator in the case erred in his reasoning process when he found that the motorist was served a Notice of Administrative Penalty “NAP”. 

Justice Marion cited Russell v Alberta 2023 ABKB 20 and Ngomesia v Alberta 2023 ABKB 57 both Ziv Law Group cases.

In this case the motorist, known as a Recipient, argued that he was not served a NAP a statutory requirement. When he woke up in the morning, he checked what documents he had received, and they did not include a NAP. The adjudicator held that he accepted that the motorist was served a NAP despite there being silence on this issue by the police officer. The adjudicator felt that because the motorist was drunk he could not accept his evidence. The problem with this reasoning was that the time frame at issue, the morning after was not the time the Recipient was impaired at. 

This case is useful because it confirms that there must be personal service of a NAP. Implicitly, service does not count as seeing a NAP on the portal. There must be functional service of the NAP (presumably) before a roadside appeal offered. 

The case is also useful because it lists the types of errors that lead to unreasonable decisions. These errors include (cited verbatim): 

  • treats the police (or the recipient’s) evidence as presumptively true, credible or reliable, or having a baseline of credibility;
  • presumes or assumes police compliance with statutory requirements;
  • fails to assess the weight that should be accorded to police evidence in light of legitimate credibility concerns;
  • requires or implies that a recipient must rebut all aspects of the police’s evidence, must have a verbatim recollection of the events, or must adduce a certain type of evidence to be successful;
  • starts with an assumption that the recipient’s evidence is untruthful; fails to account for or consider cogent evidence before it, including all the evidence of a recipient’s explanation or evidence from the passengers;
  • fails to resolve central credibility and reliability issues arising from the evidence; bases a credibility assessment on matters not grounded in the evidence;
  • makes inferences based on conjecture, speculation, or unfounded assumptions, or where there is no evidence to support them;
  • or makes findings based on, or relies on, evidence that is not actually before the adjudicator.