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District Jail. Any members interested in this cause should contact Courtney Sieradzki for further infor-mation.
2. That the KDLA is in favour of sponsoring a legal stakeholders banquet this December that hopes to bring the Kenora Dis-trict legal community to-gether for a night of in-trigue and entertainment. We look forward to hearing more about this exciting event.
The semi-annual meeting was followed by a fantastic dinner in the Riverview Lodge dining room (see photo).
We confirm that the KDLA AGM will be held in Kenora on March 31, 2017 at a time and place to be announced. Please save the date.
On September 30, 2016, the Board of Directors, and several KDLA members, attended the Riverview Lodge in Dryden for the KDLA semi-annual meet-ing. We received regular reports from standing com-mittees, including a report from Sharon Scharfe of the Library Committee con-firming the positive state of our library but noting that the Library Committee requires new members. If anyone is interested please contact Sharon Scharfe. We also received a detailed report from Andreas As-mus, Director General for NW District for Legal Aid Ontario, regarding the sta-tus of LAO and the news that David Field will be replacing Bob Ward as President and CEO. Our CPD committee has all but disbanded, however, with
the assistance of dedicated KDLA members, we will endeavour to provide some CPD programming over the coming months.
We note that our librarian, Maria Berezowski attended the CALL conference in Vancouver, BC this spring and is looking forward to attending the COLAL con-ference in Toronto.
Additionally, the Executive attended the FOLA Spring Plenary in Toronto, and is very excited to be attending the FOLA Annual Plenary in beautiful Brampton, ON this coming November.
Resolutions were passed on two items of significance at our meeting:
1. That the KDLA is in support of the for-mation of a Stakeholder Roundtable to address conditions at the Kenora
Highlights from the Fall Semi-Annual Meeting
By Sayer Down, KDLA President
Inside this issue:
Gladue Study Group 2
Meeting Advance Notice 2
Book Review: Just Mercy
3
Thoughts on Elections 6
Aliens and the law 6
Lexis Advance 7
New in the Library 8
Citizen’s Arrest 4-5
Kenora District Law Association
KDLA News FALL 2016
Sayer Down, KDLA President
Members of the Kenora District Law Association sat down to dinner following the Fall Semi-Annual Meeting in Dryden on Sept 30.
ing facility has been established in the community.
Andrew has been working with the people of Pikangikum for over thirty years.
Andrew will describe the history of the project and how it fits into the culture and values of the people of Pikangikum. He will also talk of the roadblocks to development.
To date the Study Group has heard from Corbin Cawkell LL.B. on Summers 2013 OCA 147 (pre-trial custody credit); Fergus O’Connor LL.B. on Ipeelee 2012 SCC 13 (a re-statement of the meaning of Gladue); Lloyd Comber, inter-preter, on his personal experi-ence with life in the north; Aa-ron Grupp on Gladue and Bail; Robert Sinding LL.B. on Leonard 2012 ONCA 622 (the intersec-tion of extradition law, Gladue and the Charter); Evelyn Baxter LL.B., claims adjudicator, on the
Residential School Claims pro-cess; Anthony Doob, criminolo-gist, on FASD and the criminal justice system; Aaron Mills, PHD student, on indigenous concepts of justice in stories and teachings; Dr. Laurence Hunt, psychologist, on what he has learned from his work with in-digenous people; and Elaine Bright LL.B. and Eric Myles LL.B., Department of Justice lawyer, on the Residential Schools Claim process.
We encourage participation from court and justice workers, law-yers and judges.
Meetings run from 4:30 to 5:30 and hours count for self-study credits.
We welcome topics and present-ers.
Peter Kirby (468-5930; [email protected])
THE GLADUE STUDY GROUP—An Invita on to A end
The Gladue Study Group contin-ues to present programs to per-mit lawyers and all participants in the justice system to under-stand the indigenous context in which the system operates—the people and their history, the land, the economy, and the teachings.
On October 26 at 4:30 at the Legal Aid Office, Andrew Chapeskie will present on the Whitefeather Forest Initiative—an economic development project of Pikangikum First Nation which allows the First Nation to harvest wood in a vast tract of land under a Sustainable Forest Licence—the first Indigenous Sustainable Forestry Licence in Ontario.
The Whitefeather Forest Licence offers the people of Pikangikum immense economic development opportunities. Already, a few residents have been trained as forestry technicians and a train-
Page 2 KDLA NEWS
“We encourage
participation
from court and
justice workers,
lawyers and
judges.
Meetings run
from 4:30 to
5:30 and hours
count for self-
study credits.”
e
ADVANCE NOTICE—2017 ANNUAL MEETING
Please mark your calendars
District of Kenora Annual General Meeting
Friday, March 31, 2017
In Kenora
Time and location to be announced
Just Mercy’s author is Bryan Ste-venson, lawyer and executive director of the Equal Justice Program in Montgomery, Ala-bama.
He has written an inspiring book and sobering story about the senseless cruelty within the Unit-ed States justice system—the story of his work to free those on death row or serving sense-lessly long sentences.
Mr. Stevenson is not an angry man and the book is not a po-lemic. His approach to his sub-jects is personal and low key and he does not overstate the an-guish which anyone reading the book will feel.
Until he took cases to the Su-preme Court of the United States, the states were executing or forcing to serve “life means life”—no possibility of parole sentences—people tried and convicted as juveniles.
When you read the story of four-teen-year-old Trina Garnett, convicted and jailed for life for arson causing death which oc-curred in 1976, you cannot help but being repelled.
Her father abused Trina’s moth-er in horrific fashion; and when Trina was just nine, her mother died, leaving Trina homeless.
When imprisoned she was raped by a guard and gave birth while shackled to a prison bed.
Bryan Stevenson recounts that shackling was abandoned for federal prisoners in 2008 and has been abandoned in twenty-four states. That a woman giving birth could ever be shackled, is emblematic of inhumanity, in any country, at any time.
As a Harvard law student and young lawyer, Mr. Stevenson’s initial concern, however, was not
about juveniles, but adult prison-ers, tried and convicted as adults, on death row in the state of Alabama, a stated which, in 2009, had the highest per capita execution rate of any of the states.
The story of Walter McMillan is the narrative thread which con-nects the chapters together. Wal-ter’s story began in 1986, when a married white woman was mur-dered in Munroeville, Alabama. The legal story continues with his trial, conviction and death sentence, Bryan Stevenson’s investigation and preparation of motions and applications and appeals to overturn his convic-tion and ends with the day of his release—after spending six years in custody for a crime which he clearly did not commit.
Walter had an alibi. He was at a family fish fry. The chief prose-cution witness made a plea bar-gain in exchange for his evi-dence, though put on death row to put pressure on him not to change his story, recanted more than once. Most damaging to Walter was the tunnel vision of the police investigation and prosecution: someone had to pay for the murder of a white wom-an alleged to be having “relations” with a black man.
Without the help of Bryan Ste-venson, Walter would have died by lethal injection. Mr. Steven-son, in a tremendous labour of love, was able to investigate, summon witnesses and convince an Appeals court to overturn the conviction.
There was some mercy for Wal-ter McMillan: he was freed after spending only six years on death row, at age fifty-one.
However, though able to cele-brate his victory and travel with
his lawyer to conferences and speaking engagements, he started to decline in body and mind and ended up in a nursing home. He died in 2013 at age sixty-three.
Bryan Stevenson breaks up Wal-ter’s story, with the story of Tri-na Garnett and several others, outlining along the way, the weaknesses of the United States’ system: the lack of funding in states like Alabama which allows courts to appoint lawyers experi-enced with civil case to defend those charged with murder; the manipulation of the system to keep African-Americans off jury panels; the mass incarceration, largely a result of drug sentenc-ing laws; the terrible conditions of prison life; and the general discrimination against the poor.
However, the most important take-away from Just Mercy is the example Mr. Stevenson’s gives us: his courage, dedication and persistence. In the face of preju-dice, harassment and humilia-tion, this African-American has not been broken or lost his dig-nity. Though he has witnessed cruelty we will never experience, he has not become cynical or angry.
He ends the book with a plea. In speaking at Walter McMillan’s funeral, Bryan Stevenson told the congregation that mercy, just mercy, is “most empowering when it is directed at the unde-serving”, those who “who have not earned it” and “who haven’t even sought it.”
Bryan Stevenson’s life’s work demands that we take his words seriously.
Just Mercy, (2014, Spiegel & Grau)—available at the KDLA library
BOOK REVIEW : JUST MERCY by Bryan Stevenson
Submitted by Peter Kirby
Inside Sto
Bryan Stevenson, author of Just Mercy.
Page 3 FALL 2016
“In the face of
prejudice,
harassment and
humiliation, this
African-
American has
not been broken
or lost his
dignity. Though
he has witnessed
cruelty we will
never
experience, he
has not become
cynical or
angry.”
“Citizen’s Arrest” was an episode of the Andy Griffith show that aired December 16, 1963 starring the memorable Don Knotts as Deputy Barney Fife and Jim Nabor as Gomer Pyle. Source: http://mayberry.wikia.com/wiki/Citizen%27s_Arrest
“citizen’s arrest.” When they got to the detachment, an OPP officer who had been alerted they were coming, separated the parties and questioned them. He then released the young man and charged the two men with forcible confine-ment. One can imagine the men’s shock to be themselves arrest-ed instead of their suspect. "Forcible confinement" is a Criminal Code hybrid offence under s. 279(2). It was relevant to this case that it is not a defence that the person con-fined did not resist unless an accused proves that the lack of resistance was not due to coercion of some sort. There are provisions in the Criminal Code allowing citi-zens to make so-called "citizen arrests,” arrest without a warrant, s. 494, but only un-der very narrow circumstances: during the commission of an indictable offence or while the perpetrator is escaping and
being freshly pursued, or in the case of property owners, if they find the person commit-ting a crime and arrest them at that time, or within a reasona-ble time where they have rea-sonable grounds to believe that it is not feasible for police to arrest. It was relevant to this case that police appeared to be dragging their heels in terms of investi-gating though it was nev-er argued that this gave the two men “reasonable grounds.” Rather, the nuances of “citizen’s arrest” were not ar-gued in defence. Neither coun-sel Danny Gunn nor Mark Van Walleghem argued that their clients had made a valid citi-zen’s arrest. Rather, they ar-gued simply that there was no “confinement.” Justice Peter Bishop agreed, acquitting the two men in his judgment delivered July 12, 2016. He found reasona-ble doubt as to whether the young man was forced against his will to accompany the men. Although the circumstances as described in oral evidence suggested a high degree of coercion, the young man also admitted that he did not recall what happened the night in question, that he may have been at the bar, that it was conceivable that he did what they said he did, and, if he did, Continued on next page
R v CLARA: CITIZEN’S ARREST OR FORCIBLE CONFINEMENT? submi ed by Robert Labossiere
An important criminal case with implications for race rela-tions throughout the northwest was recently tried at the courthouse in Sioux Look-out. The facts are roughly these: on August 29th, 2015, two men in Sioux Lookout, one a store owner, suspected a young na-tive man of attempting to break and enter the store a few days earlier. The incident had been reported. There was some evidence that there was a video camera on site and that police viewed the tape but it was never admitted in-to evidence. The men appar-ently felt police were dragging their heels so they did some investigating of their own, which lead them to the young man. They went to his house. They told him to come with them. They gave him a chance to change his clothes. Then they drove him to the local OPP detachment a few minutes away, affecting what they may have thought to be a
Page 4 KDLA NEWS
“The men
apparently felt
police were
dragging their
heels so they did
some
investigating of
their own”
e
The MS Kenora out of the water at its temporary home. Inspectioin and maintenance have since been completed, and the vessel is back at its regular berth on Kenora’s Harbourfront.
that he was prepared to make restitution. Listening to his testimony, there was a sense not just of his possibly culpa-bility but that he went with them because he thought things might be cleared up by the OPP. In the words of Judge Bishop, "[the young man’s] credibility suffers be-cause his behaviour and ac-tions conflict with his verbal description of this event.” The case is indicative of ten-sions between the native and non-native population of Sioux Lookout, latent frustra-tion about order on one hand and liberty on the other, and about property rights versus personal security. Sioux Lookout has one of the highest call-rates for OPP as-sistance in the Province yet receives less than a proportional subsidy for po-lice services, the result being what many people consider to
be an exceptional and unfair burden on taxpayers. A taxpay-ers’ coalition was very vocifer-ous in the last municipal elec-tion. The OPP detach-ment here is also reputed to be a training ground for new of-ficers, filled with rookies. These are widely held percep-tions, unconfirmed by this writer, but I think it fair to say that just as perceptions they speak to a certain apprehension in the community over polic-ing, whether it is fair and whose interests are being pro-tected. On the other side of things, the criminal courts up here are filled with native people and the OPP are tasked with deal-ing with wide cultural differ-ences as well as their underly-ing chronic poverty and sub-stance abuse. In my person-al experience, the local OPP are well trained and tuned in to the situation. I’ve watched
them approach and handle public drunkenness with great sensitivity, acting with kindness and gentleness while also get-ting the desired result, people off the street when they are in no state to be on it. So was this a case of a neglect-ed store owner and his side kick "getting off” because they were justified in their radical efforts to see justice served, or a case of po-lice successfully sending out a signal to the community that no one in this town is to take the law into their own hands? To this newcomer to the re-gion, it was a little bit of both: a great object lesson in balanc-ing: how gingerly tensions have to be and can be handled. The case is reported at [2016] O.J. No. 3779
Robert Labossiere prac ces law in Sioux Lookout with Beamish and Associates.
Page 5 FALL 2016
“There are
provisions in the
Criminal Code
allowing
citizens to make
so-called
"citizen
arrests,” arrest
without
a warrant, s.
494, but only
under very
narrow
circumstances”
The MS Kenora passed by my window on September 18 en route to the MNR boat launch where a makeshift drydock was set up to al-low a comprehensive inspection.
CITIZEN’S ARREST Continued from previous page
Alberta.
Another law governing contact with extraterrestrials comes to us from the USA.
Known as “The Extra-Terrestrial Exposure Law” (Title 14, Sections 1211 of the Code of Federal Regulations) was adopt-ed on July 16, 1969, just days ahead of the Apollo 11 Moon landing.
Did you know that the French town of Chateauneuf-du-Pape is officially a “no parking” zone for UFO’s?
In 1954. following reports of UFO sightings in areas north of Chateauneuf-du-Pape, the town passed the following municipal decree:
“The overflight, landing, and takeoff of aircraft known as flying saucers or flying cigars, whatever their nationality is, are prohibited on the territory of the community.
“Any aircraft, known as flying saucer or flying cigar, which should land on the territory of the community will immediately be held in custody”
Visiting aliens need not despair, as space ship parking is available a mere 5000 km to the west at the UFO landing pad in St. Paul
“Contact between US citizens and extra-terrestrials or their vehicles is strictly illegal. Any-one guilty of such contact auto-matically becomes a wanted criminal to be jailed for one year and fined $5000.”
The Extra-Terrestrial Exposure Law was revoked in 1977, and formally removed from the Code of Federal Regulations in 1991.
Thoughts on Elections
Extra-Terrestrials and the Law
UFO landing pad in St. Paul Alberta.
Whenever election time rolls around I am reminded of a passage from chapter 28 of Douglas Adams' The Restaurant at the End of the Universe.
"The major problem — one of the major problems, for there are several — one of the many major problems with govern-ing people is that of whom you
get to do it; or rather of who manages to get people to let them do it to them.
To summarize: it is a well known fact that those people who most want to rule people are, ipso facto, those least suit-ed to do it.
To summarize the summary: Anyone who is capable of
getting themselves made president should on no ac-count be allowed to do the job.
Page 6 KDLA NEWS
“it is a well
known fact that
those people
who most want
to rule people
are, ipso facto,
those least
suited to do it. “
Pre-search filters enable researchers to re-strict queries to relevant jurisdictions, con-tent types and practice areas without finding source or database codes,
Copy & paste text with citation automatical-ly by simply selecting text or a document name.
There are tutorials available on the LexisAdvance website, and a printed guide is available at each of our lawyer workstations. Ask Maria about them on your next visit to the Law Library.
The latest platform for the Quicklaw service is now available in our library. According to Lex-isNexis “the redesigned interface in Lexis Ad-vance Quicklaw is clean and intuitive and offers new and improved tools developed through close collaboration with customers”. Highlights include:
The intelligent red search box which searches across all content simultaneously without selecting sources,
A new search algorithm for Natural lan-guage searching yields highly relevant re-sults,
LexisNexis updates QuickLaw
Page 7 FALL 2016
The Kenora District Law Associa on
presents
Smoke & Mirrors Holiday Bash:
A Legal Community Celebration
Please join us on SATURDAY, DECEMBER 10 at 6pm for dinner, entertainment and
general merriment.
Doors open at 6:00pm at the Seven Genera ons Event Centre.
Individual ckets— $50, a er November 30 – $65
8 person table – $350
Get your ckets at the KDLA library and any member of the organizing commi ee.
Please direct all inquiries to Emily Delaney: 807‐633‐2611, [email protected].
Criminal Law for Legal Profes‐sionals (Gulycz & Kelly)
Criminal Lawyers’ Trial Hand‐book (Kenkel)
Debtor‐Creditor Law (Babe, Olivo & Gonsalves)
Defending Drinking and Driv‐ing Cases 2016 (Gold)
Evidence: Principles and Prob‐lems (Delisle et al) 11th ed.
From Crime to Punishment (Pink & Perrier) 8th ed.
A Guide to Canadian Con‐struc on Insurance Law (Reynolds & Vogel)
Handling Provincial Offence Cases in Ontario 2016 (Allen & Libman)
Human Rights Policy in Ontar‐io – 2011 ed
Helping Jurors Understand (Wa )
The Law of Contempt (Miller) 2nd ed.
NEW BOOKS
The 2016 Annotated Ontario Highway Traffic Act (Segal)
Accessibility for Ontarians with Disabili es Act Imple‐menta on Guide (Dosis)
Addressing the Jury: Achieving fair verdicts in personal injury cases (Oatley) 2nd ed.\
Agency and Partnership Law Primer (Harvey & MacPher‐son) 5th ed.
Capacity to Marry and the Estate Plan (Whaley et al)
Challenging the Validity of Wills (Hull)
Charitable Giving in Canada (Hoffstein & West)
Consolidated Ontario Family Law Statutes and Regula ons 2016‐17
Court Mo ons Handbook (Hendriks) 2nd ed.
The Law of Criminal A empt (Meehan & Major) 3rd ed.
Ontario Civil Prac ce 2017 (Watson & McGowan)
Ontario Small Claims Court Prac ce 2017 (Zuker)
Problems with Liens (Kirsh & Alter)
Prosecu ng and Defending Youth Criminal Jus ce Cases (Greenspan & Rondinelli)
Wa ’s Manual of Criminal Evidence 2016 (Wa )
NEW CLE From LSUC
The Duty to Accommodate in the Workplace
Introduc on to the Law on Impaired Driving
Solo & Small Firm Conference 2016
District of Kenora Law Association
District Court House 216 Water St. Kenora, Ontario P9N 1S4
YOUR LAW
LIBRARY
Maria Berezowski,
Librarian
PHONE:: 807‐468‐9335
TOLL FREE: 1‐866‐684‐1164
FAX: 1‐807‐468‐1758
E‐MAIL: [email protected]
HOURS
Monday, Wednesday,
Thursday
8:00 AM‐1:00 PM
Tuesday
8:00 AM – 2:30 PM
KDLA EXECUTIVE
President—SAYER DOWN
Hook Seller & Lundin LLP,
Kenora
VP—CARLYNN S. BELL
McAuley & Partners,
Dryden
Secretary/Treasurer
KIM RIEDIGER
Hook Seller & Lundin LLP,
Kenora
Recent Library Acquisitions
A View from My Window
The view from the Law Library windows at exactly 9:21 AM on September 22, the exact time of this year’s Autumnal Equinox.
