Wednesday, March 7, 2018

Niagara Region Disembowels the Charter

The Regional Municipality of Niagara has eviscerated the heart of our Charter of Rights and it has done this with willing accomplices from the Niagara Regional Police and the Office of the Ombudsman. Regional Chair Alan Caslin cannot be permitted to shrug off the responsibility we call Regional Council and Regional Government. His leadership should have ended with the public knowledge of his personal association with Justice Edwards but this is Niagara, where truth, news and facts were filtered through a cheesecloth of censorship.

On December 7th 2017 a storm exploded at Niagara’s regional council meeting. The consequences of this storm spilled out of the teacup to affect the very foundation of our Canadian Democracy and our rights as Canadian citizens.

During a council meeting open to the public and media, it was announced that a closed door meeting was to be conducted. In many municipal council chambers that means the council and municipal members leave to another room and have that portion of the meeting. At Niagara’s Regional Council the public and media are asked to leave the chamber and only return once that portion of the meeting is over. On December 7th 2017 Fort Erie Regional Councillor Sandy Annunziata claimed that Preston Haskell, who was sitting at the media table, had hidden his voice recorder under his cap and left the chamber. The implication here is that Preston Haskell wanted to secretly record the closed-door portion of the council meeting.

Sitting next to Preston Haskell was reporter Bill Sawchuk from The Standard, with his laptop open and note pad. Bill Sawchuk also left the council chamber, leaving behind his laptop on the media table.

Councillor Annunziata’s apparent panic resulted in the seizure of Bill Sawchuk’s laptop, notes, and Preston Haskell’s personal recorder. In addition Sawchuk was told by Region’s General Manager Chris Carter to leave the building, and if he did not comply he would have to deal with Niagara Regional Police (NRP) officers.

It has to be made clear from the beginning that the seizure of private property was by Niagara Regional Staff not by the Niagara Regional Police. This was an unlawful seizure of personal property by Regional Staff. No law in the Criminal Code of Canada had been broken by either Haskell or Sawchuk, no section of legislation from the Municipal Act had been breached, and no municipal by-law exists that prohibits the recording of council. Who provided the legal authority to anyone at Region to seize personal property?

Bill Sawchuk called his newspaper, The Standard called their lawyer, and Sawchuk’s laptop and notes were returned to him four hours later. Preston Haskell on the other hand is a blogger and private citizen and if he called anyone it may have been his wife. His recorder was kept by Region and turned over to Niagara Regional Police the next day.

Now the destruction of the very basic principles as guaranteed by our Charter of Rights and Freedoms really becomes alarming. No crime of any kind had been committed, not by Sawchuk nor Haskell. Haskell’s recorder was seen on the desk clearly in the open and in the livestream recording of the meeting until the closed-door meeting was called. Since the seizure by Region of the recorder, Regional Councillor Tony Quirk from Fort Erie had posted on Facebook as saying that it is “a violation of the criminal code to attempt to record a conversation or deliberation to which the party attempting to record does not have standing." That is absolutely false and Councillor Quirk has been asked to explain his statement. Councillor Annunziata laid claim to “political skullduggery,” and has since refused to comment. All of this points to an insane overreaction by Regional Councillors and the mindless response by Regional Employees. The Director of Legal and Court Services, Donna Gibbs, was present; surely she is aware of the law? 

The seizure had been committed by a private individual; yes this person is in the employ of the Regional Municipality of Niagara but still a private individual. This seizure was unlawful and may even be considered as theft. Niagara Regional Police had been called but only to bully Bill Sawchuk to leave the building. Those police officers did not speak to Preston Haskell, who had left the building before the police arrived, nor did they seize any other property or search anyone. After returning Sawchuk’s personal property Regional Staff kept Haskell’s recorder and later handed it to Niagara Regional Police. The first screaming question is what did the regional employee say to the police? Police officers are expected to have a fundamental understanding of the law and if in doubt then it would be expected that an officer would approach someone with more stripes for clarification. What was the justification or motivation for NRPS to accept this piece of personal property? Did they ask how did it become the possession of Regional Staff, and why? Regional staff had no lawful authority to seize personal property when no crime had been committed.

Researching the law surrounding seizure of property in the Criminal Code of Canada and the Canadian Criminal Law Notebook written by Peter Dostal, a lawyer with the Public Prosecution Service of Nova Scotia, only more alarming questions arise. As Peter Dosal states, “The Canadian Criminal Law Notebook is a legal reference covering the principals and rules set out by the Criminal Code and case law. The Canadian Criminal Code and the years of accompanying case law have created a dense field of law full of rules and expectations that are not always readily known to most people including practitioners.” These last words appear to hold a great deal of weight. Mr. Dostal finishes his introduction with: “It is divided into five essential areas, substantive criminal law, criminal procedure, search and seizure, evidence and sentencing.”

Canada’s Charter of Rights and Freedoms under section 8 states, “Everyone has the right to be secure against unreasonable search or seizure.” The Canadian Criminal Law Notebook (CCN) expands further on section 8 of the Charter when there appears to be an intrusion on a person’s reasonable expectation of privacy. “An expectation of privacy is a normative rather than a descriptive standard. It is concerned with the degree of privacy needed to maintain a free and open society, not necessarily the degree of privacy expected by the individual or respected by the state in a given situation.” The CCN continues, “the determination of privacy rights is made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy.”

Did Bill Sawchuk and Preston Haskell, both sitting at the media table, side-by-side, have a reasonable expectation of privacy? Sections in the Criminal Code, such as s.487 and s.489, provide the rules for Search and Seizure. Further, s.490 provides a comprehensive scheme for the management, return or disposition of items that have been seized. Ideally in any situation any seizure of property should occur after a Warrant to Search and Seize has been approved by a justice. There are circumstances where Warrantless Seizure is permitted under s.489, depending on specific circumstances of an incident. The whole issue of seizure with or without warrant has to be based on a peace officer’s belief of reasonable grounds that the item seized was a) obtained by crime, b) used in a crime or, c) affords evidence of a crime.

“This provision permits an officer who is executing a warrant to make a warrantless seizure of anything he believes on reasonable grounds has been used in the commission of an offence. The legal test for reasonable grounds to believe should be the same as that for Warrantless Arrests. It must involve an objective basis for the belief which is based on compelling and credible information. It is something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities.”

As stated, the rules surrounding search and seizure – with or without a warrant – are intricate and legally extensive. On December 7th 2017 no police officer seized any item of personal property belonging to either Bill Sawchuk or Preston Haskell. In fact the NRP were called on the advice of Regional Councillor Dave Augustyn. Those NRP officers were only used to bully Sawchuk into leaving the building without his personal property. The seizure had already occurred behind closed doors, with no witnesses other than self-interested regional staff. If Sawchuk had not agreed to leave the building on what grounds could the NRP physically escort or arrest him? How can anyone behind those closed doors be trusted as a witness to the facts? Were cameras still recording after the doors were closed as a record of the closed door meeting?

Rules relating to seizure without a warrant state, “Every peace officer and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may without a warrant, seize anything that the officer believes on reasonable grounds, 

a) has been obtained by the commission of an offence against this at any other Act of Parliament;

b) has been used in the commission of an offence against this or any other Act of Parliament; or

c) will afford evidence in respect of an offence against this or any other Act of Parliament.”
Who at Region was the public officer appointed or designated to administer or enforce any federal or provincial law? It appears Regional Councillor Sandy Annunziata did the search of private property claiming, “heightened awareness of the presence of political skullduggery,” and Councillor Dave Augustyn advised to call the police in the panic. Are either of these two councilors qualified under this rule? A regional employee was then instructed to physically take Sawchuk’s computer, notes and Haskell’s recorder, and take them somewhere. Who gave this direction, was it Regional Chair Alan Caslin? All of this was done behind closed doors and under the nose of Donna Gibbs, Director of Legal and Court Services.

Sawchuk’s computer and notes were returned to him after four hours as the newspaper unleashed its legal people onto Region, but not the recorder belonging to Haskell as previously stated. It was not until the following day that Region took the recorder to the NRP. Where was it held? Who had access to the recorder all those hours? What was said to the police to justify the unlawful seizure and custody of personal property?

As with Arrests and Search and Seizure there are rules under the Criminal Code for the detention of seized items. Under s.490 a Report to Justice must be provided as soon as possible regarding the thing seized. Normally this report is brought to the justice who signed the search warrant, in this case no warrant existed: a third unlawful party had seized the voice recorder, not the NRP. What did the NRP provide to a justice as reasoning why the thing was seized? What crime did the NRP claim was committed and by who? Sections 489 and 487 provide the parameters for any seizure yet how did this unlawful seizure by a third party satisfy those sections and the justice?

In R v Garcia-Machado, 2015 ONCA 569, “the judge found that Garcia-Machado had “a high expectation of privacy in the items seized, both of which contain a high level of personal and private information.” He concluded that “police failure to report to a justice as soon as practicable rendered the otherwise valid search unlawful and unreasonable, contrary to S.8 of the Charter.” He then excluded the evidence under s.24(2) and acquitted Garcia-Machado.” (Blue Line, ‘Untimely report to justice breached charter’ by Mike Novakowski, September 8th 2015)

This was the result when the initial search was valid and conducted by a police officer. The Crown appealed to the Ontario Court of Appeal arguing that s.8 of the Charter had not been breached but the court rejected the Crown’s submission. It is difficult to understand what the NRP used in the report to justice in this issue, and what crime was claimed to have been committed.

It was interesting to read Regional Councillor Tony Quirk’s comment thread on Facebook when he said, it is “a violation of the criminal code to attempt to record a conversation or deliberation to which the party attempting to record does not have standing.” This sounded like official or formal language but sadly it was only Councillor Quirk’s paraphrasing technique. Councillor Quirk was asked where did he find this quote in the Criminal Code and his first response was short and simply stated a reference to Section 184.

Section 184 of the Criminal Code has a heading which reads Interception of Communication, with subsection (1) stating: “Everyone who, by means of any electro-magnetic, acoustic, mechanical or other device, willfully intercepts a private communication is guilty of an indictable offence.” It is this that Regional Councillor Quirk paraphrased and posted on Facebook. At this point it should be noted that some sections of the Criminal Code require cross-referencing to other rules and common practices leaving the language of the Code somewhat dated. One such section relates to Duelling and in today’s society might be outdated, unless street racing somehow loosely falls under its jurisdiction.

Still subsection (1) Interception has directly below it “Saving provision,” a get out of jail free card so to speak. Here it states, “Subsection (1) does not apply to, (a) a person who has the consent to intercept, or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it.”

As Preston Haskell had his recorder sit on the media table in front of him in full view of any and all council members, with permission to record the council meetings, Councillor Quirk was asked if he read this subsection. Like a politician anywhere Councillor Quirk ignored that question. Instead Councillor Quirk said in his second email, “Those Search and seizure provisions don’t apply to equipment left behind and abandoned. Which is what happened. The owners forfeited those rights when they left the equipment behind in closed doors.”

According to Regional Councillor Tony Quirk any individual who may leave to go the washroom, or leave for any other reason expecting to return and find the doors close behind them lose ownership rights and protection of the law. Councillor Quirk seems to only paraphrase the Code and ignore little things like Reasonable Expectation of Privacy, as discussed earlier.

Preston Haskell published this statement on his blog in relation to the seizure incident at Region: “It turned out that security had my hat, scarf, coat, camera and even the recorder pouch but no recorder. Dangling the recorder pouch in my face security asked if the recorder for the pouch was mine. I answered in the affirmative. He said it was too bad because it was confiscated and I wouldn’t be getting it back.”

Haskell repeatedly said that he left the council chamber to go to the washroom before the closed door meeting was called. This can be easily verified by the video recording of the meeting as to the truth of Haskell’s statement. It also explains why security came out to give him back his property, namely the hat, scarf, coat and camera. Yet it does not explain why Councillor Quirk would say in writing ”…equipment left behind and abandoned. Which is what happened.” Why would Councillor Quirk make a statement such as this which is false?

The seizure of personal property by regional staff was clearly unlawful. Handing over of the illegally seized item to the Niagara Regional Police continually raises the question as to why did the NRP take this illegally seized thing. In an email dated February 14th 2018, Stephanie Sabourin, NRP Media Relations Specialist said, “The recording device remains in the possession of the NRPS pending a determination by the Ombudsman. We maintain possession of the device under a detention order made following a Report to Justice. This allows us to maintain possession during our investigation, other proceedings and while determining lawful ownership.”

This response by Stephanie Sabourin for the NRP was bewildering as the device was illegally seized, no crime had been committed nor any law broken, at least not by Haskell, and its legal ownership was clearly stated from the moment it was seized. All of this simply did not make sense so further clarification was sought from NRP’s Chief of Police. Acting Inspector Luigi Greco, Executive Officer to the Chief of Police responded with an email on February 15th 2018. Acting Inspector Luigi Greco supported the information provided by Stephanie Sabourin and added, “I can confirm that the property in question is in the lawful possession of the Niagara Regional Police Service to ensure the continuity of the item in respect of the ongoing investigation by the Office of the Ombudsman.” Preston Haskell had never been charged by the NRP for a crime, nor was there any crime committed by Preston Haskell. The Ombudsman has no power or authority to do anything but make recommendations to government bodies, he has no authority over private citizens or their personal property.

Ontario’s Ombudsman has an Act in the Legislature which sets out its powers and authority. The Municipal Act under sections 238 and 239, and in particular 239.1 also sets out procedures for meetings, procedural by-laws and investigations. All of this simply details the process of the investigation by the Ombudsman, and even that authority is limited over the members of government not private individuals. No Ombudsman has any authority to seize personal property, compel a private citizen to provide any information or testimony, nor to instruct the police to have possession of personal property on their behalf.

“Ombudsman to Investigate Incident At Niagara Council Meeting” was the title of a press release dated December 14th 2017. According to the press release provided by Linda Williamson, Director of Communications, there had been “several complaints related to the incident” received by the Ombudsman. In response SORT was unleashed, the Special Ombudsman Response Team, leaving images of suited individuals sliding down ropes from choppers in the sky. Somehow this vision is deflated like with the last paragraph of the release by Linda Williamson.

“The investigation will be completed as quickly as possible, Mr. Dube said. Under the Ombudsman Act, he may find the actions of a public sector body to be (among other things) contrary to law, unreasonable, unjust, oppressive, improperly discriminating or wrong – and make recommendations for improvement. Although the Ombudsman’s recommendations are not binding, they are almost always accepted.” These words leave a warm fuzzy feeling of confidence that everything is going to be alright now.

Linda Williamson was asked in an email dated February 16th 2018 whether or not the Ombudsman’s Office had requested Niagara Regional Police to maintain possession of the Haskell recorder. Her response was “our office cannot comment until our investigation is completed and the Ombudsman’s report is issued.” The secrecy of a report that is nothing more than a non-binding recommendation is almost comical.

Bill Sawchuk was asked if he had been questioned about what he saw that night in December of 2017, after all he was sitting next to Preston Haskell. Sawchuk’s response arrived with a cute cat emoji, “I was asked about what happened by both the ombudsman and police. The ombudsman has asked me not to talk about my interview until their report is issued.” Preston Haskell was asked if he had been questioned by the Ombudsman’s Office but he refused to answer.

At the end of all this nothing will happen and no one will face any consequences for their illegal actions. Regional staff simply stole personal property in plain sight and handed it to Niagara Regional Police, who are aware of the ownership of the property but claim to retain possession for Mr. Dube, the Ontario Ombudsman and his investigation. No laws had been broken by the owner of the property, namely a voice recorder, and the Ombudsman’s report is nothing more than a pompous folly.

Finally one thought pops up like teenage pimples. What would be the result if one was to take a handheld voice recorder, put a hat over it, and attempt to record a group of a dozen or more individuals speaking some 15 to 20 feet away?

What was this all really about?