The Court of Appeal has allowed the appeal of a homeless man from the granting of an interlocutory injunction that resulted in the arrest and imprisonment of 48 people who had been squatting in the abandoned Woodward’s building in Vancouver in the fall of 2003. The decision recognises that procedural rights must be afforded persons who are targeted by legal proceedings.

The Court also allowed the appeal of Provincial Rental Housing Corp., a Crown corporation that owned the building, from an order requiring it to pay $100 in court costs to each of the unrepresented persons who were arrested and later brought before the lower court.

Finally, in a separate decision, the Court of Appeal dismissed the appeal of other homeless people who had alleged procedural irregularities in the granting of the City of Vancouver’s application for a second interlocutory injunction.

The decision of the Court of Appeal to set aside the injunction is significant, in that the Court of Appeal acknowledged the importance of free expression and dissent and sharply criticised the manner in which the lower court enjoined the homeless people’s protest.

Injunctions, and the court’s power to punish for contempt if injunctions are disobeyed, are strong weapons that are often brought to bear on demonstrators in British Columbia. Examples of this practice, which some feel is draconian, are the Clayoquot Sound demonstrations, where some 900 people were jailed, and the case of Betty Krawczyk, the elderly activist who spent about 9 months in a jail cell after symbolically sitting on a public logging road and refusing to move. Her conviction for contempt of court is under appeal.

Read the recent Court of Appeal decisions:

2005 BCCA 36 Provincial Rental Housing Corporation v. Hall

2005 BCCA 37 Vancouver (City) v. Maurice

On Friday, January 21, 2005, Vancouver Police Chief Constable Graham arranged a news conference to discuss the adjudicator’s decision in the Police Complaint Commission Public Hearing in respect of Constable David Bruce-Thomas. The adjudicator determined that Cst. Bruce-Thomas did not use excessive force when he fatally injured Jeff Berg during an arrest on October 22, 2000. The complainant, Jeff Berg’s sister Julie Berg, is considering an appeal.

Some aspects of Graham’s diatribe are offensive, in that he publicly attacked the deceased victim, his sister and her lawyer. I find his conduct disappointing and do not propose to descend to that level.

However, some incontrovertible facts are worth pointing out:

The VPD internal investigation that purported to gather some of the evidence presented to the adjudicator was overseen by Inspector Rob Rothwell. On December 19, 2002 (two years and two months after Jeff Berg’s death), Insp. Rothwell advised Ms. Berg that “no further action is warranted”. Insp. Rothwell and Cst. Bruce-Thomas are not only long time VPD colleagues, they have raced together on the VPD’s “Pacer” racing team.

Jeff Berg was with three acquaintances the night he was fatally injured. None of the three were tried or convicted of a “home invasion” or any other criminal offence arising from the events that immediately preceded their arrests.

Jeff Berg had no criminal record, was unarmed and had no drugs or alcohol in his system when he was fatally injured.

Much has been made of a “replica handgun”. Jeff Berg had no weapons on him, replica or otherwise. A plastic toy gun, in several pieces, was located in the neighborhood. Sworn police testimony at the coroner’s inquest into Jeff Berg’s death confirmed that it had no connection to the incident.

If there was a “scuffle” between Jeff Berg and Cst. Bruce-Thomas, only Berg sustained injuries, including at least ten separate injuries to his face, head and neck. According to eyewitnesses and the pathologist, several of these were kicks inflicted while he was lying on the ground. Cst. Bruce-Thomas was completely uninjured.

As between Jeff Berg and Cst. Bruce-Thomas, only Cst. Bruce-Thomas had a documented record of violence as of October 22, 2000, having been found guilty of abusing his authority in assaulting an innocent woman in an alley a few years before. She also successfully sued him for damages for assault and battery. On December 18, 2000 (less than two months after after Jeff Berg died) Cst. Bruce-Thomas asked his Chief Constable to expunge the abuse of authority conviction from his disciplinary record. After a recommendation from the VPD’s Internal Investigation Section, then Chief Constable Blythe did so, on January 30, 2001.

Chief Graham has resorted to the time-honoured tactic of blaming the victim. Whatever Jeff Berg may or may not have done before he was killed (and I have yet to see admissible evidence that he was a “criminal” as Chief Graham has alleged) the question was whether Cst. Bruce-Thomas abused his authority in the way he performed the arrest. The adjudicator found he did not. Chief Graham also blamed Julie Berg for a four year “campaign” against Cst. Bruce-THomas. Much of this time period was due to investigative foot-dragging and inadequate work by the VPD investigators. One can hardly fault the dead man’s family for seeking answers, answers that were extraordinarily slow in coming through no fault of their own.

British Columbia’s system for processing complaints about municipal police officers is seriously flawed and needs to be reformed if it is to have any effectiveness. That is the gist of a letter we have sent to the province’s Premier, Solicitor General, Police Complaint Commissioner and others.

After giving the new system some six years to iron out its kinks, we have reluctantly concluded that, from the point of view of civilian complainants, it is simply not working. We have found fundamental flaws at each stage of the process.

After a complaint is lodged, it is investigated by police themselves, who often take over a year to reach the conclusion that the complaint is “unsubstantiated”. The investigative report is then delivered to the Police Complaint Commissioner and the Chief Constable of the police force involved, but kept secret from the complainant and the public. In the few cases where a public hearing is ordered, the complainant faces a completely one-sided and unfair hearing process. The complainant must deal with a battery of publicly funded lawyers representing the police interests and the Police Complaint Commission. No legal aid funding of any kind is available to the complainant, who is effectively excluded from participating as a result.

Effective civilian oversight is essential in any society that wants to ensure that police do not abuse their substantial powers. That oversight must be patently independent, transparent and effective. Right now, it has none of those attributes.

Read our letter to the Premier

Every so often, when controversy erupts over the handling of a high profile case, those of us with some experience with the system are in a position to clarify issues that may concern the public. The recent disposition of the Todd Bertuzzi case raises some issues worth commenting on.

First, a couple of disclaimers: I was not involved in any way, so these general comments are based only upon the media accounts of what happened. Second, nothing that follows should be taken as a criticism of the sentencing judge, who heard full submissions from the parties before him and made, by all accounts, a careful and well-reasoned decision in imposing sentence.

Todd Bertuzzi, a member of the NHL Vancouver Canucks, chased, caught and punched Colorado’s Steve Moore from behind late in a hockey game last March 8. The incident was witnessed by thousands of people in attendance and watching on television. Several weeks later, Mr. Bertuzzi was charged with assault causing bodily harm. After a few more court appearances, a trial date was scheduled for January 17, 2005 in BC Provincial Court. This scheduling was consistent with the procedural constraints inherent in a justice system that generally measures time in weeks, months and sometimes even years.

According to media accounts, the Crown and defence reached a plea agreement on Monday, December 20 and appeared in Provincial Court on Wednesday, December 22 to enable the defence to enter a new plea of guilty. So far, there is nothing particularly untoward about this procedure, which occurs frequently in the courts of the province.

Where this case becomes curious is in the Crown’s handling of the sentencing hearing. Unlike many cases which have no victims or involve disinterested victims, this case involved an injured victim and his family who were vitally interested in the outcome. They were on the other side of the continent and apparently wanted to fully exercise their rights under s. 722 of the Criminal Code to present victim impact statements to the judge. The Crown, as guardian of the public interest, should have ensured that Mr. Moore had this opportunity. All of the participants, their lawyers and the court had reserved time less than a month later for the hearing. Even if the interests of justice dictated that the new plea be entered on December 22 (which I doubt), I have heard no satisfactory explanation from the Crown why sentencing could not have been handled on January 17. A word from the Crown, which had carriage of the case, could probably have made that happen. Instead, the parties spent a full day, and then some, making submissions on sentence a few days before Christmas.

The Crown should answer some questions: How did it get a full day of court time on such short notice? Why didn’t the Crown simply deal with sentencing on January 17, given the Moore family’s desire to be present? Does the Crown deal with all victims of crime in this fashion? Until these questions are answered more fully, there will be a perception that Mr. Bertuzzi was treated differently than others may have been. That perception does nothing to enhance confidence in the system we lawyers have dedicated our professional lives to.

On December 6, 2004, The Vancouver Sun ran a tiny story from Metairie, Louisiana: “A man sheriff’s deputies had shot twice with a Taser stun gun died Saturday, a day after he was pulled over for driving erratically, officials said”. The item recounted that the victim, 35 year old Patrick Fleming, had been tasered at the traffic stop and then again at the jail.

Why should this death matter? Because, according to recent reports from Amnesty International, at least 74 people in the United States and Canada have died after being subdued by this “non-lethal” high-tech weapon. It is apparent from media reports, including recent stories in the Miami Herald, that law enforcement officials are using Tasers routinely and have employed them against young children and the elderly.

Here in British Columbia, four people have died after being hit with the Taser’s 50,000 volt charge: Terrance Hanna, Clayton Willey, Roman Andreichik and Robert Bagnell. In at least a couple of these cases, the victims were not breaking any laws, but were apparently being subdued for their own protection.

It should be apparent to any rational observer that independent scientific studies are required to determine whether these weapons are safe for use against humans. Instead of pushing for a truly independent review, British Columbia’s Police Complaint Commissioner has commissioned a study from the first Canadian police department to use the devices. Victoria police sergeant Darren Laur will be involved in preparing the final report. In September of 2000 Laur was quoted as saying, “my goal is to see a Taser in every police car”. So much for objectivity.

British Columbians, and Canadians, need an immediate moratorium on the use of Tasers and a comprehensive independent scientific analysis before more people die unnecessarily.

Postscript: Another man has died after being tasered, this time in Hollywood Fla. on Wednesday, December 15, 2004.

Post-postscript: Yet another man has died, this time in Delray Beach, Fla. on Thursday, December 22, 2004.