The Docket

Fresh off our #Clawbies2017 award we had a New Year party and invited all of our friends!

Emilie and I kick of 2018 with a call in show - with predictions, resolutions, and admissions from past Docket guests: Louise Arbour, Senator Kim Pate, Making a Murderer's Jerry Buting & Dean Strang, Naomi Sayers, Anne-Marie McElroy, Member of Parliament Nate Erskine-Smith, the crew at PolitiCoast podcast, Borderlines podcast's Peter Edelmann & Steven Meurrens, and good friend of the podcast Peter Sankoff.

Oh, Emilie and I also talk about our resolutions and some plans for 2018.

Thanks to everyone for listening and sharing the podcast. We had a fantastic year and can't wait dive into 2018.

Emilie and I take a depot dive into two new Supreme Court of Canada cases about text messages. In a majority decision, authored by Chief Justice McLachlin, the Court ruled that individuals have a privacy interest in the text messages they send - even if those messages are found on someone else phone.

And in a companion case the court clarified who can bring a privacy claim for text messages stored by telecommunication companies - hint: that person is you if the prosecution says you sent them. But the police don't need the more stringent wiretap authorization to get those stored message.

But before we do that we take a slightly detour to talk about Jagmeet Singh's "rookie blunder" of taking a principled stand on drug decriminalization. We don't think it is a blunder to do the right thing - no matter how unpopular. We also take a looks at hypocrites getting into the legal marijuana business. And I cop to an embarrassing inappropriate gavel admission.

A special guest! Ian Bushfield - the Executive Director of the @BCHumanist, @bccla board member, and the left half of @PolitiCoastPod - returns to talk about the Supreme Court. 

But we start with the important stuff - a deep dive into the red hot debate about the best Canadian TV show of all time. And I have an epiphany about Danger Bay.

Then we dive into some law an politics. Justin Trudeau announced his new pick for the Supreme Court - Sheilah Martin. We give the honest of hot takes on the new appointment.

We also take a look at the government's historic apology for past LGBTQ2 discrimination and ask why is legislation that would repeal zombie laws - including some of the discriminatory and unconstitutional offences that were used against LGBTQ2 communities - stalled at first reading?

Then we take a look look at some other legislation that seems to be stalled. As the Supreme Court is set to hear a constitutional challenged to the Conservative victim fine surcharge legislation the current government seems content to let their legislative fix languish at fist reading. 

We also take a quick look at the Bill Morneau debacle, why we need a law reform commission, and as usual talk about pot and pardons.

Cannabis legislation is being debated on Parliament Hill. One MP called me a renowned lawyer and one MP said marijuana was as dangerous as fentanyl. At lest one of those MP is batshit crazy. Yes, Peter Kent claimed that by legalizing marijuana we might as well as be force feeding our kids fentanyl - well that was the gist of it. So we make some fun of him.

We also update the tragic Ezekiel Stephan case. The Alberta Court of Appeal upheld Ezekiel's  parents conviction for their role in his death. We looked at the case way back on episode 41 and we will likely do it all again because this thing is headed to the Supreme Court.   

I also tell Emilie a long story about the worse courthouse in Ontario - welcome to Smiths Falls.

And then we talk about mental health in the justice system. The House of Commons Justice Committee is looking at the mental health of jurors. Ontario took action last year. But we need to do more for everyone in our courts.  We don't talk about mental health enough but maybe that is changing.

Hey look we have a sponsor! Let the podcast money start rolling in! But seriously a huge thanks to Emond Publishing. And holy hell this was a good episode.

We kick off the episode looking at the recent litigation in Toronto involving the best worse movie ever made - The Room. Tommy Wiseau tried to block the release of the documentary Room Full of Spoons. His performance in court was about as good as it was in his movie and the judgement is hilarious.

Then we take a look at the tale of two police interviews. One was cut short because of excessive farting and one was thrown out of court for the oppressive lack of bathroom breaks. And then something more serious. Charges were dropped against a number of police officers accused of obstructing justice, planting evidence, and lying in court. It seems the officer's own police force so badly botched the disclosure of evidence to the Crown that the trial would have had to be delayed. And in an unprecedented move the Crown conceded the resulting delay would have been unconstitutional - in the absence of any defence application or court ruling. Wow.

But then onto the main act. We are joined by Vancouver based immigration and criminal lawyer Peter Edelmann. He took a break from his preparation for the next day's Supreme Court hearing to chat with us. We talk about his case, immigration policy, and criminal law. Peter also is the host of the immigration podcast Boarder Lines - so you should go listen to that too.

The conversation about the justice system and sexual assaults has become a polarizing topic. But it should not be. It is possible to believe and support victims without throwing away the fundamental principles of our justice system. But it is a hard conversation.

Court cases like the latest debacle from Ottawa's Superior Court of Justice don't help. The case is simply called R. v. H.E - a husband raped his wife. He was acquitted. The judge got it wrong (and the case will be reversed on appeal). But this case does not prove that the law is broken - it proves that judges make mistakes. 

These conversations are hard - but they are necessary.

But before diving into sexual assault myths we talk about Ontario's new bail policy. It can be summed up as follows: "Hey Crown Attorneys - Follow the fucking law". Make no mistake this is a major development and a rebuke of Crown practices - but don't pretend it is the final fix or some progressive unicorn. It's not. So we tear it apart.

Good friend of the podcast Peter Sankoff makes a triumphant return to the podcast studio.

Peter was in town making arguments before the Supreme Court  of Canada in the very interesting case of R. v. Suter. You will want to follow this case - vigilant kidnapping, revenge thumb amputation, and some very poor advice from a lawyer.

We also talk about the most Canadian crime ever - Drunk Canoeing. Yes it is a crime. It should not be but it is. 

Speaking of pointless Criminal Code amendments, a Conservative wants to amend the Criminal Code to make theft of firefighting equipment illegal - the problem is that it is already a crime.

Then we debate who is the best judge ever.

Check out more of Peter Sankoff's work, videos, and writing at www.petersankoff.com

Its true. Canada has a drug problem but it is a problem of policy. The war on drugs has failed and the results are laid bare in our court, hospitals, and morgues. People are dying. This is not new only recently has the general public finally starting to engage in a rational conversation about drugs and how we can help prevent harm.

One of the reasons we are finally able to have a rational conversations about drug policy is because of the advocacy of people like Leila Attar.

Attar has her own personal story and lived experience with overdoses but she is much more than that.  She travelled across Canada this summer talking to parents, health professionals, and politicians about drugs, recovery, and harm reduction. She is a volunteer with Ottawa's first pop-up safe consumption site organized by Overdose Prevention Ottawa. She is a powerful advocate and a necessary rational voice for sensible drug policy.

Trust me, you will want to listen to this one.

Its back to school and we offer our advice to new law students - but it really applies to just about every one.  The short version - don't be a dick.

But before we tell you how to succeed in school we break down the Liberals' marijuana legislation - Bill C-45.

There is some promise in Bill C-45 but there are also serious flaws and room for improvement.

The Legalization bill does not go far enough in removing marijuana from the Criminal Code and this failing diminishes the bill’s potentially positive results. Bill C-45 is an unnecessary complex piece of legislation that leaves intact the criminalization of marijuana in many circumstances.

Canadian drug policy and legislation is in need of reform. The war on drugs has been a complete and abject failure. The social and financial cost of marijuana (and all drug) criminalization outweighs any illusory benefit. Every year, scores of young men and women are killed over relatively small amounts of marijuana — killed because marijuana is illegal, making it the focus of a vastly profitable and violent black market.

Bill C-45 may limit, but it does not end this problem.

Even worse Bill C-45 continues marijuana criminalization in many circumstances and imposes unreasonable penalties on a relatively low-risk vice. In the real world, a drug record means limited employment opportunities, travel difficulties, and many other devastating collateral consequences.

So there are big issues - head over to the blog at michaelspratt.com to read more.

This episode we are joined by Ian Bishfield - Executive Director of the @BCHumanist, @bccla board member, and the left half of @PolitiCoastPod. 

First we nerd out about British Columbia politics and then we talk about the strange case of Trinity Western University and the Supreme Court of Canada.  

We talked about the Ontario Court of Appeal's decision a few months ago - can the Law Society of Upper Canada refuse to accredit a law school with discriminatory and homophobic policies - the Ontario Court of Appeal says YES. 

But controversy erupted before the Supreme Court heard any arguments when Justice Wagner denied intervenor status to groups representing the LGBTQ perspective (Wagner gave the thumbs up to religious groups). The the chief justice reversed his decision, and then the Supreme Court issued a press release, and then Wagner spilled his guts to the Globe and Mail.

It was a rather strange affair and perhaps a rare glimpse into some politics at Canada's highest court.