Judge refuses to recuse himself over complaint about his ‘scowling visage’

Update:

The Court of Appeal for Ontario. photo by fightyourtickets.ca
The Court of Appeal for Ontario. photo by fightyourtickets.ca

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https://pbs.twimg.com/media/CQLolk2UcAATZR6.jpg
Justice David Doherty of Court of Appeal for Ontario. photo by Phil Brown Twitter.

Complainants can’t ditch judges over “specious partiality claims,” says the ruling.

The stern look from up high on the bench was apparently a bit too much for one man.

Kersasp Shekhdar recently tried to have Ontario Court of Appeal Justice David Doherty — considered the top criminal law jurist on the court —recuse himself for, among other issues, his tone of voice and “scowling visage” while presiding over a previous case involving Shekhdar.

Doherty refused to step back from the matter, while writing rather detailed reasons about the importance of an impartial justice system and why judges should take any claim of bias — real or perceived — seriously.

Court of Appeal for Ontario Office. photo by fightyourtickets.ca
Court of Appeal for Ontario Office. photo by fightyourtickets.ca

“In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim,” Doherty wrote in his decision released this week.

“That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge.

“They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.”

Shekhdar, who represented himself, lives in Pakistan, according to the decision. He told the Star by email that he intends to ask a panel of three appeal court judges to review Doherty’s decision.

Doherty also denied Shekhdar’s motion for extra time to seek leave to appeal a decision from a lower court. A request for comment from Doherty sent to the court was not returned.

“Different judges conduct themselves differently in court; some of them are very reluctant to intervene, some ask a lot of questions, some have a very kind and soft manner and some are a little more aggressive,” said Howard Krongold, a lawyer who specializes in criminal appeals and who was not involved in the case.

“I think anybody who has ever appeared in front of Justice Doherty would know that he’s exceedingly fair-minded, and perhaps this litigant got the wrong impression because of what he perceived in the tone of his voice.”

The Court House at 361 University Ave. photo by fightyourtickets.ca
The Court House at 361 University Ave. photo by fightyourtickets.ca

Doherty sat on two previous appeal court panels that heard matters involving Shekhdar.

The man argued that in both instances, the panels’ reasons for dismissing his cases “are so lacking in substance and so clearly wrong in law as to be explainable only by ‘racism, corruption and/or criminal case fixing,’” Doherty wrote, quoting part of Shekhdar’s written submissions.

Shekhdar further alleged that Doherty’s tone of voice and “scowling visage” while delivering the reasons in the previous case demonstrated his contempt for Shekhdar.

“He writes that he ‘suspects’ that my ‘contempt’ reflects my racism and disdain for anyone who is not a ‘white Canadian.’ Finally, the moving party (Shekhdar) asserts that I did not pay attention during the proceedings and fell asleep,” Doherty wrote.

He noted that Shekhdar has made allegations of misconduct against many judicial players in the past, including a number of other judges. Doherty found there was “no air of reality” to his accusations of bias.

“Judges are able in almost all instances to carry out their jobs impartially, and there are rare instances where a judge may create the appearance of bias, and in those cases it’s necessary for the judge to step away from the case,” said criminal defence lawyer Daniel Brown, who was not involved in the case.

“Simply showing a facial expression is not a basis to prove bias in any way, especially when there is no jury who could potentially be influenced by those facial expressions,” he said. “In fact, in many cases, the facial expressions are helpful to guide a lawyer on the weaknesses in their own arguments, and what they need to do to persuade the judge of their position.”

Supreme Court Rules Penile Swab Obtained in Illegal Search Did Not Violate Charter

Update:

Inside the Supreme Court of Canada's courtroom. photo by fightyourtickets.ca
Inside the Supreme Court of Canada’s courtroom. photo by fightyourtickets.ca

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Swab requested by police didn’t violate accused man’s rights under Section 8 of charter, court rules

An Edmonton man who was forced to conduct a penile swab on himself didn’t have his charter rights violated, the Supreme Court of Canada has ruled.

In 2011, Ali Hassan Saeed was arrested and charged with sexual assault and sexual interference after a complaint from a 15-year-old girl.

It was alleged that Saeed “viciously attacked and sexually assaulted” the teen, punching her several times in the face and brandishing a knife.

While he was in custody, police handcuffed Saeed to a wall in a cell with no toilet or running water for upwards of 40 minutes. They then had the accused conduct a penile swab on himself as two officers blocked the windows to his cell. The police didn’t have judicial authorization to conduct the search.

After the swab was tested, it revealed the complainant’s DNA was found on Saeed’s penis.

‘In light of these requirements, the penile swab in this case did not violate the accused’s rights under section eight  of the Charter.’ – Majority ruling

The trial judge ruled this was an illegal search, but said the results were admissible because the police didn’t act in bad faith and society has a high interest in seeing justice in cases of sexual assault.

Supreme Court of Canada. photo by fightyourtickets.ca
Supreme Court of Canada. photo by fightyourtickets.ca

Saeed was convicted, and the Alberta Court of Appeal upheld the ruling, citing several precedents.

The majority ruling was that the Section 8 charter rights of the accused were not breached and the evidence could be admitted.

Section 8 states that, “everyone has the right to be secure against unreasonable search or seizure.”

In its decision released Thursday, the court said that because the police had “reasonable grounds” to believe that there was evidence on the accused’s penis, the police officers were “sensitive to the need to preserve the accused’s privacy and dignity.”

The decision also notes that the accused was informed in advance of the procedure, and that there was no physical contact between the officers and the accused.

“In light of these requirements, the penile swab in this case did not violate the accused’s rights,” they wrote in their majority decision.

 Justice Abella
Supreme Court of Canada Justice Rosalie Abella was the only justice to state that the evidence shouldn’t be admissible. (Philippe Landreville, Supreme Court of Canada Collection)

Two dissents

Justice Andromache Karakatsanis dissented, but said that even though she believed that Section 8 was violated the evidence was still admissible, writing “there was no actual bad faith on the part of the police.”

She added: “Where the police act on a mistaken understanding of the law where the law is unsettled, their Charter‑infringing conduct is less serious.”

Justice Rosalie Abella was the only one of the justices to state that the evidence wasn’t admissible because of the lack of judicial authorization. Abella wrote “the police officers’ unjustified and unexplained avoidance of this requirement weighs against admissibility.”

According to Abella: “The deliberate failure to consider a warrant in the absence of exigent circumstances is, at its best, careless; ignoring the legal possibility that under Canadian law the police were not even entitled to take a penile swab, is fatal.”

The front door leading into the Supreme Court of Canada. This Court considers an average of between 500 and 600 applications for leave to appeal each year. The Supreme Court holds three sessions a year and hears on average between 65 and 80 appeals a year. Each session lasts three months. The first session begins in January, the second begins in April and the third begins in October. In recent years, it has been the Court's practice to start each session on a Monday. The Standard for Granting Leave The standard – even though it's circular – is set out in s. 40 (1) of the Supreme Court Act: "by reason of its public importance or the importance of any law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it " (emphasis added). photo by fightyourtickets.ca
The front door leading into the Supreme Court of Canada. This Court considers an average of between 500 and 600 applications for leave to appeal each year. The Supreme Court holds three sessions a year and hears on average between 65 and 80 appeals a year. Each session lasts three months. The first session begins in January, the second begins in April and the third begins in October. In recent years, it has been the Court’s practice to start each session on a Monday. The Standard for Granting Leave
The standard – even though it’s circular – is set out in s. 40 (1) of the Supreme Court Act:
“by reason of its public importance or the importance of any law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it ” (emphasis added). photo by fightyourtickets.ca

 

Ontario: HOV lanes will be introduced on the QEW in Sept.

Update:

HOV lane.
HOV lane. HOV lanes on the eastbound Queen Elizabeth Way. photo by fightyourtickets.ca

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1000 HOV lane Permits will be availabe to single drivers between Trafalgar Road and Guelph Line – for a fee of $180.00

Ontario is launching Canada’s first High-Occupancy Toll (HOT) lanes as part of a pilot project on the QEW–between Trafalgar Road in Oakville and Guelph Line in Burlington–to help manage congestion and add another option for travellers.

This new pilot project will start on September 15, 2016.  Existing High-Occupancy Vehicle (HOV) lanes on the QEW will be designated as HOT lanes. Carpools of two or more occupants will still be able to use the QEW HOT lanes for free, while single occupant drivers will now have the option to purchase a HOT permit to use them.

HOT permit applications from members of the public will be accepted online from August 1 to August 21 through ServiceOntario. A limited number of applicants will be selected to purchase permits through a draw.  The permit will cost  $180 for a three-month term.

As part of the pilot, Ontario is issuing a Request for Information seeking innovative technologies that can be used to support tolling, compliance and performance monitoring of HOT lanes for the purposes of testing during the pilot. Possible technologies include telematics, radio frequency identification, video-analytics, GPS, and infrared cameras. The pilot will be used to inform long-term planning for future HOT lane implementation and will also support Ontario’s innovation sector by providing an opportunity to test emerging traffic management and tolling technologies.

Ontario is making the largest investment in public infrastructure in the province’s history — about $160 billion over 12 years, which is supporting 110,000 jobs every year across the province, with projects such as roads, bridges, transit systems, schools and hospitals. In 2015, the province announced support for more than 325 projects that will keep people and goods moving, connect communities and improve quality of life.

Creating new travel options and supporting innovation is part of the government’s economic plan to build Ontario up and deliver on its number-one priority to grow the economy and create jobs. The four-part plan includes investing in talent and skills, including helping more people get and create the jobs of the future by expanding access to high-quality college and university education. The plan is making the largest investment in public infrastructure in Ontario’s history and investing in a low-carbon economy driven by innovative, high-growth, export-oriented businesses. The plan is also helping working Ontarians achieve a more secure retirement.

Gardiner Expressway. photo by fightyourtickets.ca
Gardiner Expressway. Congestion in the norm on the highways in and around the GTA. photo by fightyourtickets.ca

Quick Facts

  • Approximately 1,000 HOT permits will be made available each term of three months.
  • For the first term only, permits will be valid from September 15 to December 31, 2016, giving permit holders an additional two weeks of HOT lane use as an early incentive bonus.
  • A 15.5 km stretch of dedicated HOT lanes with electronic tolling in both directions on Highway 427 will open in 2021, from south of Highway 409 to north of Rutherford Road.
  • HOT lanes will complement other initiatives, such as the GO Regional Express Rail that will increase GO Train trips by 50 per cent over the next five years with more stops serving more communities.

Background Information

Additional Resources

Drivers sick of sitting in traffic on the QEW will have access to the highway's HOV lanes, for a fee, starting in September.
Drivers sick of sitting in traffic on the QEW will have access to the highway’s HOV lanes, for a fee, starting in September. (Ontario Ministry of Transportation)

 

Queen’s Park Looking At Increasing Penalties for Motorists Hitting Cyclists

Update:

"Cyclists

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A Liberal MPP whose husband, a police officer, was killed by a truck while he was cycling 10 years ago this week is pushing for tougher penalties against drivers who hit cyclists.

A Liberal MPP whose police officer husband was killed by a truck while cycling 10 years ago this week is pushing for tougher penalties against drivers who hit cyclists.

Eleanor McMahon (Burlington) moved an amendment to the Highway Traffic Act on Thursday that would increase jail time and fines for careless driving causing death or bodily harm.

“My life and the lives of so many people dear to me changed forever when a careless driver struck and killed my husband, OPP Sergeant Greg Stobbart,” said McMahon, who founded the Share the Road cycling coalition after his death in June 2006.

“Greg was killed while in a training ride in Milton on his bicycle. He was 44 years old. Greg’s death and his life’s work as an OPP officer have been the impetus for the direction I’ve taken in my life over the past decade,” she said.

Cyclists on road. photo by fightyourtickets.ca
Cyclists on road. photo by fightyourtickets.ca

Michael Dougan, the Grimsby trucker who hit Stobbart, was spared a jail sentence even though he already had five previous convictions for driving while suspended and four for driving without insurance.

Dougan was sentenced to a two-year probation term and lost his driver’s licence for a year. He had also previously served two jail sentences for criminal offences.

McMahon, first elected in June 2014 and touted to be elevated to Premier Kathleen Wynne’s cabinet in a shuffle expected next week, worked with MPPs from the opposition parties to build support for her proposal.

It passed second reading on a unanimous voice vote Thursday, just before the house broke for the summer recess, and will be examined by the standing committee on the legislative assembly this fall.

Cyclists in bike lane. photo by fightyourtickets.ca
Cyclists in bike lane. photo by fightyourtickets.ca

Transportation Minister Steven Del Duca praised McMahon’s efforts.

“It’s important to stress that Eleanor McMahon has done extraordinary work on this bill. She’s worked with all the stakeholders. Obviously, she has a profound sense of why it’s important to continually move towards making sure our roads and highways remain safe at all times,” said Del Duca.

“The Ministry of Transportation is always open to the conversation about how we can improve the situation,” he said.

Progressive Conservative Leader Patrick Brown said his party takes road safety seriously and is open to McMahon’s amendment.

“We do need to do more to combat reckless driving. Obviously, her story is a very personal one that speaks to why we should be looking in this area,” said Brown.

NDP Leader Andrea Horwath said “there’s no doubt that we need to do everything we can to try to protect the cyclists on the road from the devastation that occurs when there’s an accident that involves a motor vehicle.”

Horwath noted stiffer sentences could create “a heightened level of awareness” among drivers.

“They really do need to look out for cyclists as well as pedestrians, frankly,” she said.

Cyclist waiting for passengers to unload and load into a TTC streetcar. photo by fightyourtickets.ca
Cyclist waiting for passengers to unload and load into a TTC streetcar. photo by fightyourtickets.ca

To that end, McMahon’s bill would increase careless driving fines to up to $50,000, jail sentences to the provincial offence maximum of two years, and licence suspensions of up to five years.

Those convicted could also be ordered to complete a road-safety or driver-training course.

Her changes would extend the statute of limitations from six months to years in order to give police officers more time to investigate before charges are laid.

And it would make it easier for police to lay serious provincial charges.

“In order to charge a driver under the Criminal Code, there would need to be established intent to kill, or the motorist in question would have to be so outrageously dangerous that the driver would have known that killing someone was a likely possibility,” noted McMahon.

Toronto police Constable Hugh Smith, who works on traffic safety, said it is difficult to prove criminal intent when dealing with auto crashes.

“A lot of times with careless (driving), it was unintentional, so there was no intention for that person to have done it,” said Smith,

“So, by sheer fact of their environment or not paying attention — distraction — somebody got killed or seriously injured, but they are responsible for that.”

Bill 213, Highway Traffic Amendment Act (Careless Driving), 2016

Bill 213                                                                                                     2016

An Act to amend the Highway Traffic Act with respect to careless driving causing death or bodily harm

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

   1.  (1)  Section 130 of the Highway Traffic Act is amended by adding “Subject to subsection (2)” at the beginning.

   (2)  Section 130 of the Act is amended by adding the following subsections:

Penalty for careless driving causing death or bodily harm

   (2)  If the commission of an offence under subsection (1) results in the death of or bodily harm to any person, the convicted person is liable instead to a fine of not less than $2,000 and not more than $50,000 or to imprisonment for a term of not more than two years, or to both, and in addition,

  (a)  his or her licence or permit may be suspended for a period of not more than five years; and

  (b)  he or she may be ordered to complete a road safety course or driver training course.

Limitation period is two years

   (3)  Despite section 76 of the Provincial Offences Act, a proceeding in respect of an offence described in subsection (2) may be commenced on or before the expiry of two years after the date on which the offence was, or is alleged to have been, committed.

   2.  Subsection 214.1 (7) of the Act is repealed and the following substituted:

Penalty for careless driving or racing in community safety zone

   (7)  Every person who commits an offence under section 130 or section 172 in a community safety zone when it is in effect is liable, on conviction, not to the fine set out in the provision, but to a fine of not less than double the minimum fine and not more than the maximum fine set out in the provision, in addition to any other liability set out in the provision.

Commencement

   3.  This Act comes into force on the day it receives Royal Assent.

Short title

   4.  The short title of this Act is the Highway Traffic Amendment Act (Careless Driving), 2016.

B.C.: Penalty for Distracted Driving is Doubling and Worst

Update:

Starting June 1, 2016 first-time offenders will receive the $368 ticket and $175 for four penalty points on their driving records, for a total of $543. photo by fightyourtickets.ca
Starting June 1, 2016 first-time offenders will receive the $368 ticket and $175 for four penalty points on their driving records, for a total of $543. photo by fightyourtickets.ca

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Starting June 1, distracted driving tickets will cost first-time offenders $368, up from $167

The B.C. government is raising penalties for distracted driving next month, with the fine for a ticket more than doubling to $368. More penalty points will also be added, and there will be tougher penalties for repeat offenders.

“Some people are still not getting the message,” Transportation Minister Todd Stone said in a statement. “Today’s announcement … sends the message loud and clear. We will not tolerate distracted driving on our roads.”

The current fine in this province for distracted driving is $167, one of the lowest in the country according to the Canadian Automobile Association.

Starting June 1, first-time offenders will receive the $368 ticket and $175 for four penalty points on their driving records, for a total of $543.Beginning today, June 1, 2013 if a driver is observed driving while texting and the driver is convicted, the penalty of 3 points has increased to 5 points.

Repeat offenders will pay the same $368, but will receive escalating penalty points for each offence within 12 months:

  • 2nd offence: $368 + $520 in penalty points = $888
  • 5th offence: $368 + $3760 in penalty points = $4,128
  • 10th offence: $368 + $14,520 in penalty points = $14,888

Repeat offenders will also face an automatic licence review, which could result in a driving prohibition of three to 12 months.

Drivers in the graduated licencing program will have their licences reviewed after a first offence.

Increase fines for distracted driving from the current range of $60 to $500 to a range of $300 to $1,000, assigning three (3) demerit points upon conviction, and escalating sanctions on convictions for novice drivers.
Drivers in the graduated licencing program will have their licences reviewed after a first distracted driving offence. photo by fightyourtickets.ca

‘It’s got to stop’

“People really need to get the message that texting while driving, it kills people. It’s now almost killing as many people as drinking and driving and it’s got to stop.”

Last month, a Richmond woman finally lost her license on her 14th distracted driving charge.

According to one expert, distracted driving, especially texting while driving, will become the biggest cause of youth driver deaths in Canada in the not too distant future, overtaking impaired driving and speeding.

stats

All numbers based on police data, from 2010 to 2014. (CBC)