Hunger, wherever it is allowed to happen, is a serious human rights issue, J. S. Vijaya told AdvocateDaily.com.

“If a prisoner is unable to give proper instructions to his lawyer during the trial because he is hungry, his instructions are not coming from an operating mind and are not meaningful,” says Vijaya, who has defended children and adults against charges including first degree murder, drug-related offences and armed robbery since 1997.

“The issue is not about preferential treatment but about trial fairness itself. Our Charter of Rights and Freedoms guarantees a fair trial to all people within our great nation. It is a fundamental right that cannot be taken away.”

Prisoner hunger is an increasingly high-profile issue in the Toronto criminal law community.

Last month, lawyer Craig Bottomley argued that the food provided by the Toronto Police Service at a cost of $1.19 per meal is woefully inadequate. A typical lunch is a sandwich of cheese or meat and a glass of water mixed with flavour crystals. A Toronto police spokesman called the lunches a balance between the needs of prisoners and reasonable use of tax dollars.

Before Bottomley’s case could be dealt with formally, the TPS agreed to let him carry-in extra food for his client, alleged Hells Angels Toronto president John Neal. He’d also argued that a famished client couldn’t concentrate and contribute properly to his defense.

Vijaya is urging other lawyers to join him in routinely beginning trials by asking judges to allow their clients more adequate food. It is his usual practice but has met with mixed results.

Still vivid in his memory is a case he defended earlier this year, that of RG, a 21-year-old man facing two charges of armed robberies. RG was so hungry that his growling stomach could be heard over witness testimony.

“He also told me that he was feeling faint from hunger and that he could not concentrate on what was going on inside the courtroom,” Vijaya said.

RG’s diet during his court days consisted of breakfast at the Don Jail before being transported to court, and “one child-sized sandwich containing a thin slice of mystery meat covered with wilted lettuce” for lunch, plus a glass of sugary-flavoured water.

To make matters worse, by the time prisoners are transferred back to jail at the end of the court day, dinner may be over.

“Typically the prisoners remain hungry until the next morning,” Vijaya said.

In the case of RG, the judge told Vijaya a second sandwich for one accused “would start a riot” in the cells.

“I remember feeling angry and ashamed of being a part of the judicial system that denied basic fundamental human rights to people accused of committing crimes,” he said.

After a three-week trial, Vijaya won the case. RG walked free – 15 pounds lighter.

The Neal story led some news outlets to feature photos of delectable-looking desserts (a butter tart was part of his first carry-in meal) and quippy headlines such as Prisoner Cuts Deal To Tart Up His Meals.

Getting people to take prisoner hunger seriously extends beyond the media, says Vijaya.

“The sad truth is that many of my friends, in their heart of hearts, truly believe that in Canada we coddle our prisoners. Whenever I bring up the issue of prisoners’ rights, there is the inevitable rolling of the eyes and some discussion about ‘real prisons’ in other parts of the world. The refrain, ‘It’s prison – it’s supposed to be unpleasant,’ is often repeated.

“As Canadians we are known across the world as being a fair and decent law abiding people. We should endeavour to protect the basic human rights of all people within our borders. We deserve nothing less.”

Toronto food writer Sheryl Kirby also views the situation as one of basic rights.

“Why is there no fruit? Why is the only beverage powdered fruit drink … Where is the milk or real fruit juice?” wondered Kirby, co-publisher of TasteTO.com, who saw the standard lunch as lacking in size, freshness and nutrition.

But on the TPS budget, Kirby doubted she could do much better.

“It would be tough. Almost any improvement in nutrition or quality is going to raise that price. They could switch to whole wheat bread. That would be about the only feasible change within that price range,” she told AdvocateDaily.com.

‘It’s important to remember that prisoners on trial are presumed innocent until the court determines otherwise. We still need to treat people with respect, fairness and dignity. And that includes what we feed them when they’re under government care.”

J. S. Vijaya is an experienced criminal trial lawyer who has been practising in the Toronto area since 1997. He has successfully defended a wide variety of criminal charges including first-degree murder, armed robbery, possession of handguns, possession for the purpose of trafficking narcotics, being a member of a criminal organization and others. He lives in Toronto with his wife and young daughter. He can be reached at 416-441-9499 or at justice@jsvlawyer.com.

I patiently tried to explain to my friend that we live in a free democratic country and we have a right to get involved in a peaceful protest.

“What are you talking about? Did you see the burning police car? That was no peaceful protest, my dear!”

My friend’s voice sounded slightly acidic and took on that snarky I’m-way-more-informed-than-you tone. I stared at my feet in silence. This conversation took place almost a year ago.

Today, we all know other facts that have come to our attention since the G20 police crackdown. The police beat many innocent people with their batons. The police first denied and then admitted that they shot rubber bullets at the protesters. The police also made up their own arrest and detention laws as they brought down the hammer on our collective civil liberties.

For those of us who have experienced brutal oppression brought on by a police state in other parts of the world, we simply could not believe that this scene was actually unfolding in downtown Toronto. I continually winced as I saw the police batons viciously rise and fall on the cowering bodies that had their hands up in the classic act of total physical surrender. The state was clearly the master. We were clearly being told to be the obedient servile servants.

As an experienced Toronto criminal lawyer I have defended many individuals accused of serious gun related crimes. A “typical” club shooting, for example, involves two groups of young men who take out their guns and start shooting at each other. Innocent people who just happened to be at the club on a given night are sometimes shot and killed. What is always amazing is that when being interviewed by the police, around 50 or more individuals at the club claim not to have seen anything or insist that they were in the bathroom at the time of the shooting. When no witnesses come forward, the police publicly wring their hands about the lack of “community cooperation” or the lack of “trust” between the police and certain visible minority community groups.

This wringing of the hands about cooperation and related blather about trust certainly did not apply to the police themselves when one of their own was being investigated in the aftermath of the G20 summit. No police officer who worked with Const. Glenn Weddell could recognize him as he allegedly beat a local Toronto man and shattered his arm.

It would appear that some police officers took great exception to the fact that they were being photographed as they meted out their version of street justice. Eventually, there were two “failed” investigations. There was a supposed total lack of evidence. The Special Investigations Unit (SIU) investigated and interviewed at least 11 police officers who were working alongside Weddell during the incident. One of the interviewed officers was actually Weddell’s roommate during the G20. Each and every one of these officers basically shrugged their shoulders and claimed that they knew absolutely nothing. They were all in the proverbial bathroom as this beating was going on. The truth appears to be that Const. Weddell was well protected within the thin blue line.

Only when the local media got involved and conducted their own separate investigation, did the SIU finally do something meaningful and laid the criminal charge of assault causing bodily harm against Wedell. These are some of the facts for us to carefully examine. We as a society must acknowledge these harsh realities. We cannot turn simply turn away and pretend that these events never took place.

During the G20 summit, our own government rubber-stamped secret laws that viciously and deliberately curtailed our freedoms. Our own government overspent millions of dollars turning downtown Toronto into an occupied war zone. In front of the whirring cameras, the police openly deployed a sadistic technique known as kettling. This brutal technique is designed to surround and corral a group of protesting citizens for a long period of time and eventually squeeze out the “criminal element.” A colleague who watched the television coverage of the G20 called it a “police batting practice.” To the best of my knowledge, no police department has ever apologized for the black-shirted, baton wielding assault of our constitutional rights.

I am well aware that not all of the police officers involved in the G20 security enforcement acted in an illegal manner. Many of them no doubt tried to carry out their duties with restraint. My point is simply this: not one police officer stepped up from the thin blue line breaking rank and said, “This is wrong, this has gone too far, we are acting illegally.”

For a few days last year the police became an unthinking, blunt, crushing monolith for the state. In the upcoming weeks I am looking forward to hearing the representatives of the selective law and order agenda loudly resist any notion of a public inquiry into the police conduct at the G20.

Canada is a great country. We are very fortunate to be living here. In my view we all should zealously stand on guard for our guaranteed rights and freedoms. The concept of freedom is fragile. There are those among us who think of the general public as nothing more than bleating sheep. There are those among us who truly believe that they are above the law because of their rank in the social order and the uniforms they are privileged to wear.

In a united, strong voice we should advise these individuals: we will not submit to being kettled. We will not embrace your perverted sense of justice.

“11. Any person charged with an offence has the right …
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;”

Juries in a criminal trial in fact are tempted to start off with the presumption of guilt. Most often the obvious question swimming in the minds of prospective jurors is, “Why would the police charge you if you did nothing wrong?”

We are constantly bombarded through the media with the stereotypical images of people who commit violent or drug-related crimes. Over time in our minds’ eye, we build a graphic social composite of what a real criminal is supposed to look like. Most often that pervasive image has to do with a black male in his early 20s.

In many instances our reptilian brains takes over and the analysis and the objectivity that we are supposed to have as reasonable people quickly gets lost. In any jury trial I tend to confront this reality head on. At times, the atmosphere in the court becomes very tense and uneasy when I openly speak of things like race and class, but I want to lay the cards on the table. I tend to speak of things the way they are, not as they ought to be. Perhaps it is trite to say, but juries, judges, the police and the lawyers within the criminal justice system do not live on Mars. We are all subject to the same prejudices and preferences that permeate the social ether at large.

The transference of the dark hidden prejudices within our society is often a subtle process. In Canada these realities are never obvious on the surface. To the casual observer who lives in the Obama era, we are all equal under the law and anything is possible regardless of the colour of one’s skin. Sadly, the reality in a typical criminal jury trial is different. In order to address this reality, the current law allows criminal trial lawyers in Canada to ask only one or two questions regarding race to a prospective juror. The exact nature of the racial bias question asked by a defence lawyer is very restrictive.

The law states that in some cases, even if a prospective juror has a racial bias against the accused but can still claim to be fair and impartial, that person is still eligible to sit on a jury! Anyone who is a student of human nature will acknowledge that in 2011 it is very difficult for any person to openly admit racial bias in a courtroom full of strangers and court officials.

As trial lawyers we tend to look for things beyond the mere spoken words by a prospective juror — we tend to rely on body language and a gut feeling. For an accused person, it is often a scary prospect to have a total stranger decide his fate. It is for this reason, that I usually have my client stand to my left as we are picking a jury. If he happens to have a “bad feeling” about a prospective juror, he is instructed to subtly touch my arm and I dismiss that prospective juror. The art of picking a jury is an inexact science, and it is not lost upon me that it is very likely that as lawyers we are often exercising our own prejudices and subjective biases that we have perfected over the years when picking a jury.

In any high-profile case where the media is involved, the more sensational the allegations, the inference of guilt usually quickly attaches. We have all seen the talking heads quickly appear on television screens and offer their “expert” opinions in strong low tones. We have all seen the recent instant media judgment that can be inflicted upon individuals who were supposed to be presumed innocent before their actual trial in the USA.

In the case of Dominique Strauss-Kahn, he was quickly labelled a monster and a rapist who had repeated this behaviour in the past. The not-so-subtle race and class analysis in a rush to judgment was also conducted. The initial story of a rich and powerful French politician raping an immigrant hotel maid was told to us in lurid detail. The talking heads spoke about the “French culture” and how men are allowed to behave totally above the law when it comes to sexually assaulting women in France.

We eventually discovered that the maid in question had previously made false gang rape allegations and now has other serious issues with her credibility including but not limited to her affiliation with serious drug dealers.

I remember when the DSK prosecutors were going to the media and saying things like “evidence is substantial and growing every day.” I also remember the prosecution repeating to the media that the complainant had told a “compelling and unwavering story.” The initial huffing and puffing about DSK’s “obvious guilt” have died down and the prosecutors seem to be trying to save face and desperately seeking a quick exit from this public fiasco. The initial public rush to judgment in this matter should be remembered by us when the matter finally is put to rest.

All of the juries that I have appeared before take their jobs very seriously. They well know that they are deciding the fate of a fellow citizen. I often remind them that they must raise themselves to a higher ground. The presumption of innocence is a cornerstone of our democracy. This inalienable right did not come to us naturally or without a vicious epic world struggle. We should remind ourselves that in other parts of the world the fundamental legal premise of being presumed innocent is not remotely applicable.

Criminal trials in such countries end in a few hours with the accused kneeling in a soccer field for a public beheading soon thereafter. We in Canada do not have a perfect system of justice, but we are certainly closer.

One of the biggest challenges defence lawyers face in practicing criminal law is defending individuals who have been charged with Participating in Activities of a Criminal Organization under 467.11 (1) of The Criminal Code of Canada. As an experienced criminal trial lawyer I have defended many people charged in “gang projects” in and around Toronto. These gang projects are usually given colourful names such as Project XXX, Project Pathfinder, Project Fusion or Project Corral. What this typically means is that almost every summer police swoop into poor neighbourhoods with their search warrants and battering rams and arrest about 80 to 100 people on a variety of criminal organization-related charges. The accused are usually brought to one special “gang prosecution” bail court and the dark comedy slowly begins to unfold.

In an era where theoretically race and class are not supposed to matter, most people who are arrested on these so-called gang projects will never be asked to model for an Abercrombie & Fitch catalogue. They are brought into court like cattle often looking confused and blinking endlessly in the cold glare of the antiseptic lighting. Some complain of hunger, some complain about not being allowed to take their prescription medicine. They commonly display the shoulders of defeated men and mumble softly when asked to acknowledge their names.

The second round of the accused usually involves their girlfriends and the wives who complain about not being allowed to see their children. To add to the circus-like atmosphere at the courthouse, fully-armed SWAT members with their big, scary, “I can kill you dead!” assault rifles are typically stationed outside the courtroom. The sorting out of the charges and the theoretical hierarchy of the gang from the Crown’s viewpoint usually takes one to two weeks. To conduct the actual bail hearing may even take longer. At the bail hearing the Crown usually focuses not on the individual accused but speaks in a low grave tone about the alleged gang itself and the number of weapons and the total amount of drugs that have been seized during the entire takedown. The allegations, of course, are at their highest at the bail hearing stage.

I once represented a grandmother in a gang prosecution who at the bail hearing was presented by the Crown as one of the masterminds and active participant in her son’s drug trade. She had no criminal record. She was denied bail in short order. The Justice of The Peace determined that this grandmother was a “danger to the public.” My client spent almost a year in jail because there was no one available to bail her out. When her bail review at the Superior Court of Justice was finally heard, the Crown vigorously sought her further detention. After a great struggle I managed to secure her release. After a few months as more disclosure came in her alleged role in the so-called gang prosecution became less clear. She was quietly offered a peace bond and all her serious sounding charges were withdrawn by the Crown. Although her picture appeared on the first page of a major Toronto newspaper when she was arrested, when her charges were finally withdrawn, no reporter came to cover the story.

Most people are not aware that a criminal organization is defined in the Criminal Code as being “composed of three or more persons in or outside Canada.” In short, if you are participating in a criminal activity with more than one person, you could be prosecuted under this gang legislation. In order to make things easier for the prosecution, the legislation also says the collection of three or more individuals may be “however organized.” What that means is that the prosecution does not have to show a strict hierarchy or a traditional organization between the people who have been charged.

When I was young I saw the movie West Side Story. In my head the image of finger-snapping, tight-trouser wearing, dancing Latino males gracefully fighting white working class hoods on their tip toes was forever seared into my brain. At the time I never questioned why only one girl in the entire Spanish Harlem opened her window and answered to the name of Maria! Times have changed.

The gang menace as portrayed by the movies and the local media appears to be deadly. The police and their spokesmen drum up support for their business by endlessly talking about the constant danger of gang culture taking over our schools.

The next time you hear the fear mongering being conducted by a strong-jawed crew-cut individual ask them why the Community Foundations of Canada in a 2009 report entitled “Canada’s Vital Signs 2009″ reports that overall crime is actually in a 15-year steady decline. After reading the statistics that can be found here ask these Crime and Punishment carnival barkers who likely have never read Fyodor Dostoyevsky why the hard numbers show that:

a) Homicide rate in Canada has NOT been increasing and in fact remains stable over the past decade.
b) Gang related homicide is on the decline.
c) Firearm-related homicide are down 12 per cent
d) Canadians are about six times more likely to commit suicide and about five times more likely to be killed in a traffic accident than they are to be a victim of homicide.

If you are still burdened with a sense of youthful mischief, next time you hear these self -proclaimed, self -appointed saviours of old testament morality and prefects of social order speak in public, start to bleat loudly as a lost sheep. Surely some people in the crowd will get the appropriate reference! You may choose to state that your right to bleat like a sheep in a public meeting is protected under s. 2(b) of The Canadian Charter of Rights and Freedoms.

As always, use your freedom wisely.

“My colleagues and I fear that some police officers on the street may interpret this decision as a clear and unambiguous green light endorsement from the judiciary to conduct search and seizure operations in any manner they see fit,” says Vijaya.

“A criminal trial is not always a straight pedestrian and narrow path to ‘the truth,’” he adds. “The truth in a trial has to be arrived at by a system of checks and balances which protects all of us from abuses that can be perpetrated by men who are authorized by the state to wear uniforms and carry guns.

“If we are going to look the other way when the police deliberately and wilfully choose not to play by the rules that are set out in our Charter of Rights and Freedoms; if we are going to politely dine on the ill-gotten fruits of real evidence, we will slowly, but surely, inch towards living in an unjust society where jack-booted men will arbitrarily stop us on a whim and demand to see our traveling papers and inspect our luggage,” says Vijaya.

Some of my fellow criminal lawyers have cynically pointed out that ultimately we lawyers alone will benefit from the draconian mandatory sentences that are attached to the new legislation. We will now be able to look clients in the eyes and say, “Well, why should you plead? There is no upside to ‘making a deal.’ Let us put the government up to task and let them prove their case beyond a reasonable doubt. It is not as if the judge will have any discretion in sentencing even if you were allegedly carrying on in the spirit of Mother Teresa!”

As an experienced criminal trial lawyer who has been around the block a few times, I now say this somewhat in jest, but similar conversations will indeed take place around Canadian jails between lawyers and clients in the coming few months, I guarantee it.

Does anyone with any modicum of intelligence still have to be convinced that mandatory sentences simply do not work in the real world? Does anyone really believe that all objective Statistics Canada figures showing that crime has been on a steady decline during the last decade are all bunch of lies made up by left-leaning, bean-sprout-eating “liberals”? How can we as a society justify and invest in harsher laws that seek to further curtail our freedoms? I personally do not blame Prime Minister Steven Harper or his leadership for these Old Testament retribution-filled, fire and brimstone-type changes. Mr. Harper did exactly what he said he was going to do. He is merely completing his mandate and keeping his promise made to the majority of Canadians who voted for him. For some of us, his new Malleus Maleficarum will absolutely root out the evil witches and other wrongdoers who are usually born out of poverty and lack of education. It would appear on the surface that the majority of Canadians are not really interested in the root causes of certain social realities such as gang warfare and violent crimes; we merely wish to warehouse the exotic specimens that carry these social diseases.

In practical day-to-day terms, I will no longer be able to speak to prosecutors and judges about doing what is right and disposing of matters. A few months ago I had a client who had no previous involvement with the law. He had no criminal record. He was a former businessman who had lost his business. To top it all off, he was a victim of a car accident where he got hit from behind and severely injured his back. He was in constant pain. One day he got the not-so-bright idea of raising a few marijuana plants in his solarium. In short, the police executed a search warrant and found six marijuana plants in his solarium. The police busted his front door down, his two young daughters had guns pulled on them. One of them relived herself in her pants. When my client returned home he immediately went to the police and made a full confession. The police weighed the plants (including all the soil of course!) and charged my client with a “Grow Op” under 7 (1) of the C.D.S.A. The police advised him that they were going to take his house away from him after his conviction because they considered the house as an “offence-related property” under 16 (1) of the C. D. S. A. In this particular case there were many serious search warrant-related issues and I was finally able to convince a senior Crown and a judge that my client was not a drug dealer and he was not engaged in this endeavour for commercial profit. At the end of the day my client plead to “simple possession” and paid a fine. Under the circumstances, it was the right result.

Under the new regime, a client facing similar charges would face a minimum of six months in jail. There will be no discretion, there will be no grey areas, there will be a fight, there will be a trial, and one side will definitely lose.

Naturally, the Harper government refuses to disclose the methodology behind the real costs attached to their overhaul of crime and punishment in Canada. Any disclosure of that kind, I suppose, would likely make us privy to the colour of underpants belonging to The Great Oz. That would not do! We do know however, that more prisons are going to be built, more prisoners are going to be warehoused. More eyes are going to willingly avert away from the plain truth. We shall ostensibly feel “safe.” For goodness’ sake folks, even the God-fearing, gallon-hat-wearing, George Bush-supporting Texans are shying away from the dull stench of failure attached to a “tough on crime” agenda.

The reality is that further down the road we too will realize that a “Just Say No” type of simplistic approach to crime and punishment taken in the 1980s by emaciated first ladies is not going to work. If we keep focusing on cosmetic solutions involving super-jails and more police with bigger guns, we will be guilty of marching along to the popular and populist banal rhythms of the fear-mongering politicians. We live in Canada. We have earned a well-deserved reputation around the world as being a decent and caring people. We must not be seduced into becoming a nation where we are fearful of the state and the police. We seem to be willing to trade the illusion of safety and security by losing our precious, hard-earned freedoms. If we don’t stay alert and vigilant, the hard rain will fall on us all.

Let me state my bias. I believe in the notion that all men deserve justice. When I say “all men” I mean exactly that. When I say justice, I mean actual procedural justice. Since May 2, I feel like we all have been forced to watch an old-fashioned professional wrestling match where good and evil is clearly defined.

a) As a Criminal Trial lawyer, I quickly learned to question the conventional wisdom that was being spoon fed to me since birth. With the recent killing of Osama Bin Laden and the attached unabashed celebration of good vs. evil I wanted to find out some answers to the following difficult questions that I believe must be contemplated by all thinking men and women. I believe that the evidence linking Osama to being the supreme “mastermind” to terrorist activity should have been tested in a court of law. Can we be comforted by a legal test which proposes a new standard that embraces “Well everyone knows that he was guilty!” I still remember General Powell’s show and tell hour before the UN stating with absolute certainty that Saddam was hiding Weapons of Mass Destruction in Iraq. That “evidence” was never tested either. At the time, the presentation was taken to be the absolute truth. In reality, Powell was unwittingly selling a deliberate lie to people all over the world. Do people in power always tell us the truth? Is it proper that a government decides when someone is absolutely “guilty” and orders an execution overseas? Is Pakistan a supposed independent sovereign nation and a separate legal jurisdiction?

b) Can somebody be considered so evil that a government can determine that he does not deserve a trial and only a killing can resolve all issues related to legal guilt? If that is true, why did we bother with presenting evidence against Nazi war criminals in Nuremberg after WW2? Why did the Israeli government bother to authorize the kidnapping of Adolf Eichmann in Argentina? Why did they bother to give him a full and proper trial in Jerusalem?

c) Even if Osama was evil beyond measure, and it seemed that he was in fact bent on death and destruction of countless innocent human beings, did we not stoop to his level of evil? Did we not deny him basic fundamental rights of due process? Is the ancient “eye for an eye” analysis legal? Is it proper and just? Should any of us have been celebrating the execution of another human being by chanting slogans in the streets? How do I explain to my young niece why people are jumping up and down celebrating the killing of a human being?

d) Did you notice when the first reports out of CNN stated that Osama was in a vicious gunfight with the navy seals? In other words, Osama resisted so he got killed. Only after some time CNN backed off that initial position and told the world that Osama was not armed before his execution. They still insisted that he somehow still “resisted.” The clear inference being that he deserved the execution. Initially CNN told the world that Osama used a woman as a human shield and accordingly she was shot. CNN eventually they backed off that story.

e) CNN also kept repeating that the execution Osama was justifiable because of “Fog of War.” Is it not the same fog that is responsible for hundreds and thousands of civilian deaths in Iraq, Afghanistan, Libya? Are we still trying to learn the repeated lesson throughout history that violence begets violence? Did anyone else get shivers when the macho military types spoke openly about “hitting” Moammar Gadhafi?

f) How can we not question the double standard of the US government regarding “justice”? We were told about concepts of justice and how they are beyond showing photos of “trophies” etc. How come not one individual from the press core asked any government spokesman about how it was possible for the Obama government to be so sanctimonious when there are so many prisoners being held for years in Guantanamo Bay without any specific charges against them? The same prisoners who were supposed to be released? Is it only me who remembers that president Obama “promised” to release these prisoners and shut down Guantanamo Bay before his election?

These are some of the questions that I have been thinking about since May 1, 2011. I want everyone to remember that in a democracy the government works for us. I want everyone to remember that the police and the army also work for us. We are the ones they must answer to. We have an absolute right to question their conventional wisdom and simple binary analysis of complicated issues. We have a right to voice our opinion. We have right to be contrarians to seek alternative “truths”. If we become afraid to question the reality as being interpreted by the government lens, we lose our freedom, we lose our guaranteed rights. We begin bleating like sheep in a concert hall. At times we must question the piper as opposed to always looking up admiringly at him.
Please remember that whatever I am writing here does not constitute actual legal advice. I am merely exercising my s.2b rights of self expression guaranteed by our Charter of Rights and Freedoms. Criminal law is serious business. Protect yourself at all times.
J.S. VIJAYA
Toronto Criminal Lawyer
416-559-9499
www.jsvlawyer.com

I usually advise my clients to never say anything to the police apart from their name and date of birth. After your arrest you should ask to speak to me immediately at 416 559 9499. Remember the following:

a) The job of the police becomes a lot easier if you confess or put yourself at the scene of the crime. It is for this reason the police do everything that they can to get you to talk. On serious cases the police may tell you that if you take a polygraph test you can clear your name if you pass. Remember that you are under no legal obligation to take the test. Remember that the results of the polygraph cannot be brought up in court. Remember that the guy giving the polygraph test works for the police. He is likely to tell you that you have ”failed” the test and then the cops come in and start the questioning by looking you in the eye and saying, “Well we know you are lying. The machine says so. Why don’t you tell us the real truth”. Most people by this time start sweating and talking. Don’t fall for this trick. There is no such thing as a truth machine.

b) Under the current law after your arrest the police are allowed to keep asking you questions even if you have already told them that you don’t want to say anything. This repeated questioning period can last for hours and hours. During this time you have to keep repeating that you have nothing to say. You have to be strong.

c) The police may try to get you to talk by bringing a form in and say something like, “All right, we understand that you don’t want to talk to us but we have to get some basic information, where do you live?”. You do not have to comply with any of their request for information. This is a trick to get you to start talking to the police. You can choose not to say anything apart from your name and date of birth. Most people who don’t know these police tricks and tactics and start talking actually help the police convict them.

d) This may surprise you but under the law the police are allowed to lie to you when they are questioning you. They may tell you things such as, we have your fingerprints and DNA all over the scene. They may tell you, we have video of you at the scene, what do you have to say about that? They may say that your buddy that you did the crime with has made a full confession and told us that you were the one who planned this crime and he just stood there, what do you have to say about that? Once again you have to be strong under these conditions to exercise your right to remain silent.

e) The police may even tell you that given the evidence that they have this is the last chance that you have to tell the judge that you are sorry for what you did and what really happened.

f) The police may even try to tell you that they totally understand why you did this crime and they would likely do the exact same thing. The police will pretend to have sympathy for you in order to try to get you to talk. Sometimes the police will play the old good cop bad cop routine. This is the classic tactic where one guy will be a total asshole and the other guy will be much nicer. When the asshole is not around the nice cop will “confess” to you that he does not approve of what the asshole guy does and how he does it. He will pretend to be your friend and try to get you to talk because now you will have a common “enemy”. You would be surprised how often this routine works and people start talking.

g) Under the current law you don’t have an absolute right to have your lawyer present when you are being questioned. The courts have said that it is all right for the police to give you one phone call to your lawyer and that’s it! After four hours of being questioned you may tell the police that you want to speak to your lawyer again and the police will likely tell you that you have already had your phone call.

h) There are times when police will send you back to the holding cells after their first attempt at getting you to talk and put an undercover officer in the cell beside you. This undercover officer will try to get you to talk by saying things like, he too is being screwed by the cops etc. Sometimes the undercover officer will pretend to be asleep and just listen carefully to everything you mutter or say aloud to yourself or to other prisoners. These undercover cops are usually excellent actors and look the part of belonging in a holding cell.

i) I have seen police officers talk about their own moms and dads and say things like, “How do you think your mother feels right now? Is this how she brought you up? You ever think about how you are hurting her?” I have seen some clients break down on video at that point and start talking.

j) The police even may tell you things like, “Yes we know you want to talk to J. S. Vijaya, but what is he going to tell you? We know he is going to tell you to say nothing. You think these lawyers care about you? This is the only chance you will get to tell your side of the story”. You have to be strong under these conditions to exercise your right to silence.

k) Remember that the police are experts at questioning. You give an inch and they will take a mile. A small detail that you got wrong will be used to make you look like a liar. In my view there is no advantage to talking to the police upon your arrest. Remember that if you talk about your innocence to the police some judge down the road at your trial may even say that the story you told at the police station was false and self serving. In my opinion, there is no upside to talking to the police once you have been arrested. It is always much better to wait until trial to tell your side of the story.

Please remember that whatever I am writing here does not constitute actual legal advice. If you have questions you should speak to a lawyer. Criminal law is serious business. Protect yourself at all times.
J. S. Vijaya, Toronto Criminal Lawyer
416 559 9499 www. jsvlawyer.com

I don’t wish to be the criminal lawyer who cried wolf. But, I am going to, because I believe we have some good reasons to be worried about our future. I believe that we are currently drowning in the political climate of fear and loathing. I believe that we are leaning towards the old school, Old Testament, retribution agendas. I believe we are slowly going to lose some of our rights guaranteed to us in our Charter of Rights and Freedoms. As we now all know, Prime Minister Stephen Harper and the Conservative party finally have a majority government.
In my view, Mr. Harper engaged in the folksy “us and them” binary analysis for the cameras and met his ultimate political objectives. For the next four years Mr. Harper and the Conservatives are going to decide what is best for our country with respect to law and order. Mr. Harper has repeatedly stated publicly that he does not want the judiciary to be making policy decisions. In short, he wants judges to simply follow the law and not engage in wielding their discretionary powers. Any criminal lawyer will tell you that behind the scenes, the entire criminal justice system is geared towards resolving the matter via a guilty plea. By entering into a plea arrangement, both the Crown and the accused typically benefit from resolving the matter and avoiding the risks and the related costs that attach to a trial proper.

Everyone who works within the system is all too aware that if every person charged with a criminal offence chose to embrace his or her constitutional right to go to trial, the entire system would collapse. The Truth in Sentencing Act (Bill C-25) enacted by Mr. Harper and the Conservative party in October 2009 did away with the notion that an accused person would typically receive two days’ credit for each day spent in jail by the presiding judge. In practice, this well established rule of thumb would tend to “sweeten” the deal for most accused individuals and more often than not, they would be persuaded to plead guilty. Under the new regime, where the accused are getting 1:1 instead of 2:1 enhanced credit, most of my in-custody clients are choosing not to plead guilty and are instead insisting on setting trial dates. My colleagues are experiencing a similar pattern with their own in-custody clients. The full impact of Bill C-25 is yet to be determined. I for one can see the dark clouds gathering. Get your umbrellas ready!
Crime rates in Canada are as low as they have ever been, and yet there is a great deal of daily talk about “punishing the criminals” with mandatory sentences. What amazes me is that most Canadians are still in denial about the cold, hard fact that minimum mandatory sentences simply don’t work and don’t actually reduce crime. This has been shown over and over in the United States. Keeping the blindfolds firmly intact, as promised, the Conservative government is about to pass the all-encompassing, omnibus crime bill. This legislation is going to bring the most aggressive right wing policy shift in the history of the Canadian justice system. The omnibus bill will introduce mandatory sentences for certain drug and sexual assault offences along with reintroducing some controversial aspects of anti-terrorism legislation. As an added bonus, the legislation will seek to curtail the right to bail when one is charged with serious offences, along with abrogating privacy rights for young persons who have been charged with crime.

Mr. Layton, now heading the official opposition, also seems to have bought into the urban fears and related police fantasies of gun-toting street gangs with scary tattoos crashing our Sunday church brunches and demanding our bland potato salad. Mimicking the Conservative government siren song, Mr. Layton also promised more police officers to fight crime. During the debates Mr. Layton actually accused Mr. Harper of not delivering on his promise to deliver more officers patrolling the streets. It would appear that anyone questioning these American-style policy shifts would most certainly be labelled as being “soft on crime.” I can just see into the future where a libertarian, a person who takes a reasoned approach to crime and punishment and does not want an armed police officer in his bedroom, will be asked, “Are you now, or have you ever been in the past, soft on crime?”
Another long-term implication of Mr. Harper’s recent win is the future decisions coming from the Supreme Court of Canada. It is well known within the legal circles that Supreme Court Justices Ian Binnie and Louise Charron will be stepping down very soon. This will mean that Mr. Harper will have direct input in appointing individuals who will carry his vision of law and order into the Supreme Court. Rest assured that the people who will be appointed will likely not be obvious card-carrying Conservatives who can play Beatle songs on the piano. The change at the top court will be more subtle. It is my fear that the decisions regarding alleged Charter violations from these individuals will likely tend to favour the police and the prosecution for decades to come. The Harper appointees will likely echo the law and order, tough on crime aria that has so infatuated Canadians at the voting booths of late.
The direct infusion of Mr. Harper’s political influence and related ideology into the gatekeepers of justice may not only stop at the Supreme Court of Canada level. Eighteen out of twenty four justices at The Court of Appeal of Ontario are scheduled to retire or semi-retire in the next four years. The appointments of the new justices for Ontario’s top court are not going to take place in a vacuum. It is a well known fact of life that if one has aspirations of appointment to the Superior Court or The Court of Appeal, one has to have the support of the ruling federal party. Yes, just like anything else, there are exceptions to this rule, but the reality is that you are not going to get “the call” from the federal Justice Minister unless you play by these well-established unwritten rules. The Hollywood-driven myth of “opposites attract” clearly does not operate in reality when it comes to being appointed to the bench. I fear that the oath of political allegiance that the new justices will carry to the Court of Appeal will also have a detrimental and a chilling effect on our democratic values.

There you have it. I have cried wolf! I know that the majority of the Canadian public will not care for my warning. They have already spoken with their votes. I truly believe that as a society we still have to learn to differentiate between our primitive desire to punish the criminals and separate that from getting to the root of what causes crime in the first place. The objective of punishing criminals is simple to rally behind. Our political champions have honed their oratory skills over centuries working on the same law and order, get tough on crime themes. Their songs are predictable, with rousing uplifting choruses, and we can all take out our lighters and sing along. The danger of course, is that we tend to forget what is truly happening outside the stadium, and the separation between “us and them” will only continue to grow. Now, please feel free to offer the polite tattooed gentleman your bland potato salad!
Criminal law is serious business. Protect yourself at all times.
J.S. VIJAYA
Criminal Lawyer
416 599 9499
www.jsvlawyer.com

The police officer pulls out his memo book and takes your name, date of birth, and your address down. He may demand to see your wallet. He does the same thing with your friend. Then he goes back into his squad car and after a few minutes he comes back and tells you that you are free to go. You have just gone through the process of a police officer filling out a 208 card with your name on it. The 208 cards are also known as Filed Information Reports. The information containing who you were with, what you claimed to be doing along with other information gathered from you will go into a computer FOREVER. 

Remember no one ever accused you of doing anything wrong. If you get charged with a criminal offence in the same area where your 208 information was taken they will use that information about you and your buddy being out late at night. At trial, the police officer will testify that you “volunteered” to freely give your information and you could have walked away at any time without answering his questions.  

In the real world of policing if you are stopped late at night in Toronto for the 208 card experience, in my experience as a criminal trial lawyer, you are likely going to be a young male between the ages of 15-25. You are also likely to have dark skin.  You are also likely to be near an Ontario Housing Complex or walking in an area where mostly poor people live.

Knowledge is power. You should be aware what 208 Cards are being used for.  The Crowns are now relying on this police tactic of gathering information and introducing it as “association evidence.” In other words, if Charlie and Billy were seen together and stopped by the police and “volunteered” to give their information in a given area…. Later on at trial the crown may try to assert that it is more likely than not that Charlie and Billy committed a crime in the same area late at night. The crown will argue that people commit crimes with people that they know and obviously Charlie and Billy know each other.

 The main issue for me with the 208 cards is that the Police and the State should not be allowed to gather “association evidence” from its innocent citizens going about their daily business by using subtle or direct coercion and then using the same data to assist in their prosecutions at a later date. While it is true that this investigative tool may assist the police in solving some crimes…the trade off is giving up our right to associate with people we like and have the names of our friends and relatives stored permanently in police computers. We must not allow ourselves to be constantly surveilled and investigated by the police for no reason. I don’t believe that most Canadians want to live in a state where the politics of fear dominate our daily lives. We are a free democratic nation. The police are answerable to us. We should not be made to fear paramilitary style police where men in dark menacing uniforms get to ask us for our papers and ask us questions at their absolute discretion. History has repeatedly shown that when the police are given such unchecked power over its citizenry under the guise of “public safety”, the chilling effect is usually antithetical to the very sprit of democracy itself.     

Please remember that whatever I am writing here does not constitute actual legal advice. If you have questions you should speak to a lawyer. Criminal law is serious business. Protect yourself at all times.
J. S. Vijaya, Toronto Criminal Lawyer
416 559 9499