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A Defence lawyer's perspective on issues in criminal law
Please be aware that all commentary in my blog is designed to promote discourse on a variety of topics. Though I certainly do some research on the topics discussed and often offer my "two-cents", please keep in mind that nothing I say in this blog is meant to be taken as authoritative on any subject. My comments are really just me exercising my freedom of expression for the purpose of offering some insight on topics related to the practice of criminal law. As with all topics of discussion, it is important for you to be critical. If you need a defence lawyer, please call 403.452.8018 for a free telephone consultation or consult with an experienced Calgary criminal lawyer. Happy reading! Happy watching!
More than just an Utterance: Differential Treatment for crimes by Police
Posted in UTTERING THREATS, Tagged Criminal Defence BlogJuly 3, 2019
Interestingly, in a post launched just a day ago: Mark Norman: What of those without the Resources to Defend their case?, I wrote about an imbalance in our criminal justice system. Just a day later, after the airing of the video of an RCMP officer threatening a man in Pelican Narrows, another imbalance was identified. In the opinion of this Calgary criminal lawyer, there is an overwhelming hypocrisy in the manner in which the police investigate themselves versus the manner in which they investigate ordinary citizens. There is also an overwhelming imbalance with respect to who is more likely to be charged.
rcmp member utters threat
The video from Pelican Narrows is shocking, not just the image but the sound. The video clearly captures a police officer pointing a firearm at a man being handcuffed. At the same time, the officer is yelling: “I’m going to f*#@*^g kill you! Shut the f*#k up”.
To my mind, from what we see in the video, there was certainly no cause for a killing.
As reported by the Globe and Mail, this incident occurred in the Northern Saskatchewan community of Pelican Narrows. The man on his knees can be heard telling the officer, “I just want to go home”.
Yes, this video is disturbing. It is so because those words are from the mouth of a member of the Royal Canadian Mounted Police (RCMP) -- Canada’s police force -- employed to serve and protect.
VIDEO PROVES THE CRIME OF UTTERING A DEATH THREAT
What is striking about this video is that it minimally establishes reasonable and probable grounds to believe that the officer committed a crime. Though, I say minimally, my opinion is that the video clearly proves a criminal offence.
Section 264.1(1) of the Criminal Code stipulates that “every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat to cause death or bodily harm…”.
The word “every one” means that even a police officer can be guilty of uttering a death threat during the course of his or her duty. The words "any person" means that even a suspect can be the victim of a death threat. The words, "I'm going to kill you", clearly meet the definition of a threat. Objectively speaking, the man was also being managed by a second police officer who had control over the suspect's arms, while he was on his knees.
From watching the video, I am even left to ponder whether the officer, in the circumstances, should have had his gun pointed at the suspect at all. After all, clearly the officer's partner was directly behind the suspect, in the line of fire. Does this officer not understand how a bullet operates? Did he fail to appreciate that "f-ing killing" the suspect may have "f-ing" killed his partner too? What a genius!
Are these seriously the kind of people hired by the RCMP? Perhaps I am being a wee bit harsh? Before going further, I should emphasize that there are a great many exceptional police officers -- indeed, many more good than bad. Many of these good police are probably inwardly disgusted by the behaviour of this unidentified member from Pelican Narrows.
Returning to whether the utterance constitutes a crime.
What makes the officer’s utterance criminal are the words spoken, objectively evaluated alongside his behaviour, body language and the fact that he was pointing an instrument of death (a firearm) at a fellow human being. Even if the officer had grounds to arrest the man for a crime, does not mean that he was entitled to threaten to kill the suspect during the course of arrest; after all, that person is presumed innocent until proven guilty.
It is noteworthy that the presumption of innocence applies to this police officer as well. At this point, I am not saying this officer is "in fact" guilty. Rather, I am saying that there are strong grounds to lay a charge and prosecute. Will this happen?
As disturbing as the video may be, it is not, in my opinion, what is most disturbing. Consider that had the threat uttering man pointing the gun not been a police officer. I suggest to you with confidence that such a man would have almost certainly been arrested, charged and perhaps held in custody pending a bail hearing. His name may have been splattered all over the media; certainly it would not be protected.
In my view, the hypocrisy is palpable.
We have become all to accustom to differential treatment between ordinary citizens accused of crime and law enforcement. Drawing from my experience, where an ordinary citizen is immediately charged, police are not. Where ordinary citizens are named, the identity of the suspect officer (even if captured on video) is protected. Where ordinary citizens are at extreme risk of losing their job, accused police officers are confined to “desk duty”, shuffled off to other districts or as in this case, reassigned to a different community altogether.
With that in mind, I am left to wonder: doesn’t the community deserve to know about its police?
Rather than being treated like an ordinary citizen and being immediately charged, the RCMP in this case have commenced “an investigation”. This investigation -- which for any ordinary person would take a couple of hours -- will for these super sleuths at the RCMP likely drag on for weeks or even months. As reported by the Globe and Mail:
An investigation will look into the factors around the arrests, as well as the police tactics and actions taken by the officer. Chief Beatty said the RCMP has promised to keep the community updated with the continuing investigation and share their findings.
How many witnesses do the police need to interview? Lets do an inventory of witnesses from the video. The bad cops partner? That makes one. The person who took the video? Two. Maybe the dog? Three.
Of course, there is that video. That pesky little piece of incontrovertible evidence where the officer can clearly be heard yelling: “I’m going to f*#@*^g kill you! Shut the f*#k up”. Just as I am sure when the officer said “Shut the f*#k up”, he wasn't referencing the "right to silence", I am sure when he told them man that he was going to kill him, he wasn't uttering those words in jest. I am left to wonder: do the words "I'm going to kill you" mean something different when they come from the mouth of a police officer pointing a gun than an ordinary person? Is RCMP language different than that spoken by everyone else?
My point is, even if the RCMP needed to interview a dozen witnesses, this could be accomplished in a day or two. And no matter how many witnesses they interview, the suspect -- who was apparently being controlled by a another officer -- didn't need to be threatened with death at gunpoint. Surely there were many other words the officer could have chosen other than uttering a death threat?
The fact is, interpreting Chief Beatty's statement, it appears he is doing little more than buying time; for over time people will lose interest in this case. Once folks lose interest, the furor in relation to this RCMP officer will quiet to a murmur and eventually be silenced altogether.
Where the ordinary citizen would have likely shouldered the stress of a criminal prosecution from day one, this police officer will ride a desk and eventually -- when the incident is forgotten, once again ride in his patrol car -- the folks of his new community none the wiser.
David G. Chow
If you have been charged with uttering threats, a weapons offence or any other crime in Calgary or elsewhere, do your research when hiring your criminal defence lawyer. Choose wisely. David Chow is one of a few Calgary criminal lawyers who offers a free telephone consultation. Call 403.452.8018.
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