The most lucid and literate response to this Post I could imagine.
And of course the TPP cuts those challenges and court cases down to a secret tribunals....
Well done Machjo............
I was speaking from personal experience.
The CBSA charged a tourist with working illegally in Canada and tried to deport her without even giving her the chance to defend herself.
Knowing her innocence, I'd found her a lawyer so she got a hearing at the IRB. Now remember that unlike criminal charges which guarantee the right to be presumed innocent putting the onus on the prosecution to prove guilt beyond reasonable doubt, an IRB hearing guarantees only the right to the rule of the balance of probabilities whereby the accuser needs only prove that it is more probable that the accused is guilty than that he isn't based on the available evidence. Such a low standard of proof therefore makes it far more shameful for the CBSA if the accused is found not guilty by such a standard since unlike the presumption of innocence whereby a person could be found not guilty in spite of proof showing that he is probably guilty but just not beyond reasonable doubt, an IRB ruling in the accused's favour can happen only if the judge concludes that it is more probable that the accused is not guilty than that he is!
I was present to hear the judge's judgement and it was pretty harsh towards the CBSA. I even have a copy of the transcript. He had concluded that:
1. the CBSA did not make sufficient effort to collect evidence, the only 'evidence' presented being the statements of two police officers (one of whose did not even address the matter of the accused) and a CBSA officer's statements, many of which were later proved false!
2. The CBSA interviewing officer misinterpreted the accused's statements during the interview which resulted in recording false statements that the accused had later proved to be false at the bond hearing.
3. The CBSA's charges were too dependent on guilt by association and racial profiling.
4. When the accused's lawyer requested that the CBSA obtain detailed witness statements from all available witnesses who had been identified in the police statements as well as invite the arresting officer to defend his statement and the CBSA officer to explain how the errors in her statement occurred, why she never called me when provided my name and number, and how her misinterpretation of the interview might have affected her decision to have the accused deported, the CBSA's lawyer resisted on all counts, defending the statements of anonymous police officers (whose names were crossed out from the copy provided to us) and the erroneous statements of the CBSA officer as sufficient.
Worse yet, though the judge never mentioned this, the accused and I suspect that the CBSA probably did collect witness statements but suppressed them because they supported her claims. After all, that would have been the easiest way to prove her guilt and the CBSA obviously intended to do just that.
Even the IRB interpreter had confided to the us during a break that she was shocked at the lack of evidence and the confused logic that the CBSA's lawyer was presenting at the hearing!
The judge naturally ruled in the accused's favour. He had also added that while the CBSA could appeal, he doubted that it would given that she was a tourist in Canada and would have to either leave the country or change her status within a few months anyway. He'd signed his judgement and given each of us a copy saying that all the accused had to do the next day was to show that paper to the CBSA to obtain her passport and the bond money. The CBSA refused for a week to do so until it had received a warning letter from the acquitted's lawyer stating that whoever refuses to return her her passport the next day when she picks it up would face legal concequences reminding them that to refuse to return the passport was illegal.
The CBSA did return it the next day, but it never should have come down to that.
To our shock and dismay, the CBSA also intended to appeal the IRB ruling.
It was shocking on two counts:
1. The appeal thus required her to either remain in Canada or return to Canada for the appeal hearing or face an arrest warrant should she not appear for the appeal for the purpose of determining whether to remove her from Canada, and
2. Had the CBSA so wanted to prove the acquitted's guilt, why had it actively resisted the presentation of evidence (which we have reason to believe it had in its possession) at the first admissibility hearing?
When I'd pointed out how vexatious it was for the CBSA to force her to either remain in Canada or return to Canada for an appeal hearing to determine whether to remove her from Canada (especially after the CBSA itself had resisted the presentation of evidence and witnesses at the first hearing), the CBSA officer (the same one who'd botched the interview on the day of the acquitted's arrest) said that she did not want the acquitted to leave Canada of her own free will but to be removed from Canada forcefullly. That was her explanation of why she was illegally refusing to return the passport to avoid a flight risk. The acquitted had obtained her passport two days later.
Even the acquitted's lawyer said that the appeal made no sense, that the judgement in the acquitted's favour was so solid that there is just no way the CBSA could possibly win the appeal.
She'd speculated that it could be out of desperation to fight a setting of precedent whereby the CBSA would have to actually present proof to win a case next time, but that even that made no sense since no judge would support that. When we mentioned that we suspected that it was just a vexatious appeal, her lawyer actually said that given the CBSA's chances of winning the appeal, that was probably what it was.
This is a perfect example of the CBSA wielding the appeal process as a weapon of vengeance at taxpayers' expense for daring to challenge its power.
In such a case, especially when the accused wins not based on the presumption of innocence but on a balance of probabilities and the CBSA itself resists the presentation of witness statenents, and when the rationale of the appeal is as ludicrous as to force her to remain or return to Canada to determine whether to remove her from Canada, the CBSA should simply not be allowed to appeal in such cases since the intent is obviously vexatious with intent to harass the acquitted.
To be honest, I'd like to know how much all of this cost taxpayers all because the CBSA was too lazy to collect a bit of evidence beyond a Chinese face and then took personal offense at having its power challenged.
If this is the caliber of criticism we can expect from the Conservative opposition then it's going to be sunny ways for at least a decade.
Don't kid yourself. If you had a referendum asking whether a police officer could ever err and whether we should remove the presumption of innocence from the Constitution, probably half of Canadians would vote that a police officer is incapable of blackmail, racial profiling, finding guilt by assiciation, or any other form of corruption, and that a police statement should be all the proof a court should need to find a person guilty, and that only the guilty benefit from the presumption of innocence.
The Canadian Charter of Rights and Freedoms is a significantly flawed document compared to the UDHR, but under the present circumstances, it's better than nothing and so just as indigenous Canadians defend the Indian Act as better than replacing it with nothing at all, so I would defend the CCRF over replacing it with nothing at all.
Sometimes even a severely flawed text is better than none at all.
