Justice System Comparisons #3: Bail, Extradition, and More Crimes In Canadian Law
Posted by Chimera
1. Overview Of My Multi-Part Series
Italian justice has become very slanted toward the defendant, often at the considerable cost of the victim.
Canadian justice does not do that as much. It tries harder than most systems, including the Italian, to be equally fair to both, to balance their interests to the maximum that is possible. So it makes for a good comparison. Although, to be fair, it is still frequently criticised as ‘‘soft on crime’‘.
-First degree murder falls under a number of categories. In many cases, the police and prosecutors do not even have to prove intent. Section 231 defines first and second degree murder, and under cc 231(5)(b) (sexual assault), cc 231(5)(c) (sexual assault with a weapon), 231(5)(d) (aggravated sexual assault), and cc 231(5)(e) (kidnapping and forcible confinement), the trio would face 1st degree for either one of those circumstances. The penalty is an automatic life sentence, with no chance of parole for 25 years. No spontaneous declarations for defendants, no automatic appeals.
-There are a number of laws, including those enshrined in the Canadian Charter of Rights and Freedoms to ensure fair criminal proceedings.
-Public Mischief (cc 140), is usually an indictable (felony) offence, and it is when someone falsely accuses another of committing a crime, does does something to divert attention from their own crime, or falsely reports someone has died. Punishment can be up to 5 years. In Italy, it is called ‘‘calunnia’‘. It is something Knox has been convicted of, and others, including Sollecito, remain accused of.
-Perjury (cc 131), is lying under oath, or in judicial proceedings, or falsely making sworn statements. It is an indictable (felony) offence. Punishment can be up 14 years in prison. Unlike in Italy, defendants CANNOT do it at their own trials. Knox, Edda Mellas, Sollecito, and Guede, could all have been charged.
2. Some Background On The Case
Amanda Knox, Raffaele Sollecito, and (at the time Lumumba), were arrest November 6th, 2007, for the sexual assault and murder of Meredith Kercher. They went before Judge Claudia Matteini, who saw enough probable cause to detain the 3 of them. Lumumba was cleared and released a few weeks later, and Rudy Guede implicated instead. See this post. Judge Matteini, even without complete information was able to see enough cause for concern to keep them detained.
Knox and Sollecito tried to have the Italian Supreme Court (Cassation), overturn those decisions, but Italy’s High Court found that the decisions to keep AK and RS in prison, and away from house arrest. Psychologically tested earlier, the results were disturbing enough to keep the paired detained until trial. See here. Also see here.
In 2008, Judge Paolo Micheli presided over Rudy Guede’s ‘‘short form’’ trial. Guede was found guilty, and given 30 years, the maximum allowed under the ‘‘short-form trial’’ rules Judge Micheli also ruled there was enough evidence to send Knox and Sollecito to trial, as Guede’s accomplices. Guede was denied house arrest prior to trial, and has been in custody ever since his arrest in late November 2007, and was denied day release recently.
The 2009 trial of Knox and Sollecito took almost the entire year of 2009, and was presided over by Judge Giancarlo Massei. In December, the Massei Court found AK and RS guilty. The pair received 24 years for murder with sexual violence, an additional year for staging a crime scene and transporting a knife, and Knox one more year for her false accusation of Patrick. The sentence was originally 30 years for murder, transport and staging, but 5 years were cut off for ‘‘mitigating factors’‘. While AK and RS lawyers planned to appeal, the Court found no reason to let them out prior to the appeal.
The unintended consequence of the 24 years for the murder (with sexual violence), is that Guede, who took the short form trial, ended up receiving 1/3 less than AK and RS, effectively cutting his sentence in half, from 30 years to 16.
The appeal of AK and RS in 2011, before Judge Claudio Hellmann stunned Italy. Hellmann acquitted the pair on appeal, despite the following:
-He said in his ruling, the truth may very well be otherwise
-His report only added confusion, it did not help clarify anything
-Knox still had outstanding charges for falsely accusing police officers of assault
-The appeal effectively was a new trial, but only with the defence presenting
-He said Knox’s false accusation was due to duress, not malicious intent—and then INCREASED her calunnia sentence
-The defence had cherry-picked a few pieces of evidence, but left huge amounts unchallenged
-Rudy Guede was apparently a total liar, EXCEPT for the time of death
Knox and Sollecito were released, and AK immediately returned to the U.S. Sollecito stayed in Italy. However, the Supreme Court annulled Hellmann’s ruling in March 2013. See here.
A new appeal was to be held in Florence, the fall of 2013.
Knox refused to attend.
AK did, however, send an email to Appeal Court Judge Nencini, which repeats many of the false accusations. See here.
She claimed, among other things, financial hardship, despite receiveing a $3.8 million book deal with HarperCollins. See here.
Although refusing to return to Italy, AK has repeated tried to contact the Kercher family, and creepily demanded to visit Meredith’s grave. RS has also admitted to trying to contact the Kerchers, and claimed he has visited the grave.
And Knox lets this bombshell out See here.
Sollecito also received a book deal, from Simon and Schuster, and it also stunk of blood money, just like Knox’s. See here.
Sollecito attended sporadically, visiting the Dominican Republic in between court dates, and apparently shopping for an American bride to help him get around extradition. See here.
January 30th, 2014, the date Nencini confirmed the Massei conviction, RS was caught near the Austrian border. He denies he was trying to flee, but still had his passport confiscated, and was barred from leaving Italy. Judge Nencini was also not the least bit amused by the goings on of the FOA See here.
And of course, the defence, in the spirit of fairness and sportsmanship, pulls this stunt: See here.
AK, on the other hand, hit the talk shows, fake-crying about how scared she is, and how she’ll remain a fugitive if necessary.
3. Canadian Law on Bail
Section 11 of the Canadian Charter of Rights and Freedoms deals with criminal matters and procedures
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
Marginal note:Treatment or punishment
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
Section 11(e) refers to the topic of bail, and states that reasonable bail should not be denied without just cause
Actually getting to trial can take a long time. Depending on the nature of the offence(s) charged, it may or may not be in the public interest. Canada actually has pretty strict requirements about how soon an accused must be brought for a bail review.
In fact, the police don’t have to take the person into custody. There is discretion to charge the person, and then release him/her on a promise to appear. Here is a direct quote from cc 503(2), dealing with conditional release.
(2) If a peace officer or an officer in charge is satisfied that a person described in subsection (1) should be released from custody conditionally, the officer may, unless the person is detained in custody for an offence mentioned in section 522, release that person on the person’s giving a promise to appear or entering into a recognizance in accordance with paragraphs 498(1)(b) to (d) and subsection (2.1).
Here is a quote from a practicing Toronto lawyer on why you would be denied bail. See here.
Why would I be denied bail?
Detention is justified only if deemed necessary on one or more of the following grounds:
to ensure that you attend court; e.g., if you have a history of failing to attend court or abide by other court orders
to protect the public; e.g., you could be detained if you have a criminal record for similar offences; in the case of an assault or threatening charge, a history of violence against the same complainant works in favor of detention
to maintain confidence in the administration of justice; the court will consider the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding its commission and the potential for a lengthy jail term
Normally, police or prosecutors have to justify why a person should remain locked up. There are however, circumstances in which the accused has the ‘’‘reverse onus’‘. In other words, circumstances which the person has to justify why he or she should be released. These include circumstances like being released (while accused) of a similar offence, and certain gun, drug and gang offences.
4. Contacting Victims or Their Families
This is a quote directly from section cc 515(2) of the Canadian Criminal Code:
(2.1) In addition to the conditions referred to in subsection (2), the peace officer or officer in charge may, in order to release the person, require the person to enter into an undertaking in Form 11.1 in which the person undertakes to do one or more of the following things:
(a) to remain within a territorial jurisdiction specified in the undertaking;
(b) to notify the peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;
(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;
(d) to deposit the person’s passport with the peace officer or other person mentioned in the undertaking;
(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;
(f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;
(g) to abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical prescription; or
(h) to comply with any other condition specified in the undertaking that the peace officer or officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence.
Clause (c) specifically states to avoid communicating directly or indirectly with any victim or witness in the case. This would obviously extend to avoid any contact with the Kercher family. Also, it would include having friends and family attempt to contact a witness or victim. This prohibition extends to telephone calls or emails, everything from asking for a private meeting, to asking to visit your alleged victim’s grave. This would also seem to violate clause (h), which is to ensure the safety and security of any victim or witness. There are reasons for this.
1) To avoid any possible threats or intimidation, which would cause the integrity of the system to be questioned
2) To avoid any type of underhanded tactic, such as appealing for mercy, underneath the court
3) To promote fairness in the trial process.
5. Harassing and Stalking of Victims
This is a quote directly from section cc 264 of the Canadian Criminal Code:
264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
Marginal note:Prohibited conduct
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.
(3) Every person who contravenes this section is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
Marginal note:Factors to be considered
(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened
(a) the terms or conditions of an order made pursuant to section 161 or a recognizance entered into pursuant to section 810, 810.1 or 810.2; or
Not only would it be a cc 215(2)2.1(c) of the criminal code, which refers to conduct while released on an undertaking, harassment and stalking themselves are serious crimes. Note that cc 264(4) considers it to be an aggravating factor if this harassing occurred while the subject was under a court order not to contact the person anyway. In any Canadian proceedings, defendants would be barred from contacting family members of the victim, as well as the actual victim.
It is reasonable to assume that the Kerchers want nothing to do with Knox. After all, this woman allegedly sexually assaulted and stabbed to death their daughter/sister, and then made a mockery of the court process, all while pretending to be the victim. Yet Knox has repeatedly tried to make contact with them.
A court sketch, common in media back in pre-camera days
6. Contempt of Court
This is a quote directly from section cc 708 of the Canadian Criminal Code:
708. (1) A person who, being required by law to attend or remain in attendance for the purpose of giving evidence, fails, without lawful excuse, to attend or remain in attendance accordingly is guilty of contempt of court.
(2) A court, judge, justice or provincial court judge may deal summarily with a person who is guilty of contempt of court under this section and that person is liable to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding ninety days or to both, and may be ordered to pay the costs that are incident to the service of any process under this Part and to his detention, if any.
(3) A conviction under this section may be in Form 38 and a warrant of committal in respect of a conviction under this section may be in Form 25.
Knox refused to attend her 2013/2014 appeal in Florence, the one she keeps referring to as a ‘‘new trial’‘. This would not be tolerated under Canadian law. Her bail would have been forfeited, and she would have been arrested.
She would have remained in custody for the duration of the appeal. And should the appeal have confirmed her guilt, she would most likely have remained in custody while it was being appealed further.
Skipping out on your criminal proceedings without valid grounds is contempt. Sollecito did it as well when he took a vacation in the Dominican Republic. Not only is it disrespectful, but it shows a lack of maturity.
Also note, from c.c. 515(2)2.1 of the Criminal Code—see section on harassing—these actions certainly would have violated clause (a), which is to remain in the jurisdiction while the proceedings are ongoing.
7. Cashing in on the Notoriety of a Crime (Son of Sam laws)
In September 2012, Simon & Schuster released Sollecito’s book, ‘‘Honor Bound: My Journey to Hell and Back With Amanda Knox’‘. In May 2013, HarperCollins released Knox’s book ‘‘Waiting to be Heard’‘.
What was particularly disturbing was that both Knox and Sollecito were still accused of murder when these books came out. Knox was in the worse situation, as it came after the March 2013 Cassation ruling, which confirmed her calunnia against Patrick Lumumba, and annulled Judge Hellmann’s appeal acquittal. However, since Cassation left the Massei trial verdict intact, their legal status was ‘‘guilty, pending further appeals’‘.
Setting aside the sheer idiocy of releasing a book while still accused, it is still illegal to do. Right now, Canadian provinces seem to be writing their own laws. Here are 4 of them.
This is from the website, Victimsofviolence.on.ca See here.
The Province of Alberta: See here.
The Province of Saskatchewan: See here.
The Province of Ontario: See here.
The Province of Nova Scotia: See here.
The provinces do have some small differences in the laws, but the point to be taken here is that you can’t cash in on the notoriety of your crime. In America, this is referred to the ‘‘Son of Sam Laws’’ after serial killer David Berkowitz, who called himself the Son-of-Sam.
8. Laundering the Proceeds of Crime
This is a quote directly from section cc 462.31 of the Canadian Criminal Code:
Laundering proceeds of crime
462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds, knowing or believing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of
(a) the commission in Canada of a designated offence; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.
(2) Every one who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction.
(3) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under subsection (1) if the peace officer or person does any of the things mentioned in that subsection for the purposes of an investigation or otherwise in the execution of the peace officer’s duties.
Raffaele Sollecito and Andrew Gumbel wrote ‘‘Honor Bound’’ (although they now blame each other). Amanda Knox wrote ‘‘Waiting to be Heard’‘, which was ghostwritten by Linda Kuhlman. Knox claims that she used her $3.8 million advance (less the taxes), to pay her lawyers, and her family.
The problem is that the books themselves are bloodmoney, cashing in on a crime they committed. That is illegal to do. The million dollar advances were (if Knox is truthful here), essentially converted into legal payments for her lawyers, and to her family.
Unless Knox’s family really did spend a million or more to visit her, the money Amanda claims went to them could be seen as ‘‘gifts’’ or ways to hold onto such funds. Even if the Knoxes/Mellas did spend that much money, Amanda is paying those debts off with illegally obtained money.
Sollecito has not been nearly as open about where his book advance went (rumoured to be $950,000). However, he would have the same legal issues facing him as Knox.
9. Prostitution and Soliciting of Prostitution
This is a quote directly from section cc 213 of the Canadian Criminal Code:
Offences in Relation to Offering, Providing or Obtaining Sexual Services for Consideration
Marginal note:Stopping or impeding traffic
213. (1) Everyone is guilty of an offence punishable on summary conviction who, in a public place or in any place open to public view, for the purpose of offering, providing or obtaining sexual services for consideration,
(a) stops or attempts to stop any motor vehicle; or
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place.
(c) [Repealed, 2014, c. 25, s. 15]
Marginal note:Communicating to provide sexual services for consideration
(1.1) Everyone is guilty of an offence punishable on summary conviction who communicates with any person — for the purpose of offering or providing sexual services for consideration — in a public place, or in any place open to public view, that is or is next to a school ground, playground or daycare centre.
Definition of “public place”
(2) In this section, “public place” includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.
R.S., 1985, c. C-46, s. 213; R.S., 1985, c. 51 (1st Supp.), s. 1; 2014, c. 25, s. 15.
In Canada, the prostitution laws are constantly being challenged. Due to lobbying efforts, the punishments are actually becoming much harsher for soliciting than for providing.
Knox met Federico Martini (the man she calls ‘‘Cristiano’’ in her book), on a train in Italy. She had been providing sex, and getting drugs, and it kept happening up to the night she was arrested. It had been known for years in Italy, but only released to the American media in the summer of 2014.
The thing is: this would actually be considered prostitution. It doesn’t matter if he offered cash, or a bag of coke. Martini, the client (a.k.a the John), was providing material goods in return for sex. In Canada, legally speaking , Amanda Knox was prostituting herself (a.k.a. hooking).
10. Fraud Over $5,000
This is a quote directly from section cc 380 of the Canadian Criminal Code:
380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,
where the value of the subject-matter of the offence does not exceed five thousand dollars.
Marginal note:Minimum punishment
(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.
Knox wrote her book ‘‘Waiting to be Heard’’ for a reported $3.8 million. Sollecito (or was it Gumbel?) wrote ‘‘Honor Bound’’ for a reported nearly $1 million. Problem here, is that both of these book deals were obtained under false pretences.
Due to the spike in publicity of white-collar crime, the Canadian government imposed a 2 year minimum jail term for fraud that exceeds one million dollars. Considering that the books are fake, the payoff (at least for Knox), exceeds that amount, she would be facing at least 2 years for that.
Also, I have no idea Knox or Sollecito have raised via their websites, or Twitter accounts, or via PayPal. But they could face additional charges of either fraud over $5,000, or fraud UNDER $5,000.
11. Carrying a Concealed Weapon
This is a quote directly from section cc 88 of the Canadian Criminal Code:
Possession of weapon for dangerous purpose
88. (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction.
It was one of the charges Knox and Sollecito faced. Guess what? Can’t do it here either
12. Fabricating Evidence
This is a quote directly from section cc 137 of the Canadian Criminal Code:
137. Every one who, with intent to mislead, fabricates anything with intent that it shall be used as evidence in a judicial proceeding, existing or proposed, by any means other than perjury or incitement to perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 125.
Knox and Sollecito were alleged to have staged the crime scene at the house to make to look like someone had broken in through Filomena’s window, ransacked the place, killed Meredith during a bungled robbery, then fled. The Courts (Micheli, Massei, Nencini, 2 Cassation panels), also believed that Knox and Sollecito had attempted—albeit unsuccessfully—to selectively clean the house, making it look like Rudy Guede was the sole killer.
Knox was a resident in the upstairs part of the house, and therefore had a reason to make it look like an outsider did it. If there were no obvious signs of a burglar, the police would immediately zero in on the other 3 women who lived in the house.
13. Jurors Speaking out During (or After) Criminal Proceedings
Quoted directly from the Canadian Criminal Code:
Disclosure of jury proceedings
649. Every member of a jury, and every person providing technical, personal, interpretative or other support services to a juror with a physical disability, who, except for the purposes of
(a) an investigation of an alleged offence under subsection 139(2) in relation to a juror, or
(b) giving evidence in criminal proceedings in relation to such an offence,
discloses any information relating to the proceedings of the jury when it was absent from the courtroom that was not subsequently disclosed in open court is guilty of an offence punishable on summary conviction.
The secrecy that jurors are sworn to survives even after the trial. In the case of Ms. Ballerini talking to the media about the 2013/2014 Florence appeal just before the March 2015 Cassation ruling, it would not be allowed here either. Financial need would not be considered an acceptable defence.
While summary offences carry a maximum of 2 years in prison, in reality, jurors would not see the inside of a cell. A fine and/or probation would be much more likely.
14. Canadian Law on Extradition
Amanda Knox has made it known publicly (and idiotically) that she will never return to Italy, even if it means remaining a fugitive. She claimed that she skipped her last appeal out of fear of a wrongful conviction, even though she claimed she had faith in the Italian Courts. Yes, she’s a hypocrite. Well, Italy does request extradition of convicted criminals, which is what Knox is (pending confirmation by Cassation).
Amusingly, she claims again to have faith in the Supreme Court, while remaining in the U.S. out of fear.
However, many countries extradite both suspected and convicted criminals. Knox’s situation is even weaker, as she will not only be ‘‘convicted’‘, but will be ‘‘convicted, with all appeals exhausted.’’ Considering she has not attended court once since Hellmann released her (she missed Cassation 1, Nencini, Cassation 2), she is not likely to garner much sympathy.
Canada both requests and complies with requests for extradition.
There are a few exceptions however:
(a) Canada generally refuses to extradite if they death penalty is sought
(b) Canada generally refuses to extradite if the person faces inhumane treatment at home.
Note: Almost all options to block extradition are not available if the person has received a sentence of at least 6 months. (This was 2 years, but recently lowered). Knox’s 28.5 years is definitely above that threshold. See section 3 of the Extradition Act, and note 3(3) in particular.
Marginal note:General principle
3. (1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on — or enforcing a sentence imposed on — the person if
(a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and
(b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada,
(i) in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and
(ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.
Marginal note:Conduct determinative
(2) For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterized by the extradition partner in the same way as it is in Canada.
Marginal note:Extradition of a person who has been sentenced
(3) Subject to a relevant extradition agreement, the extradition of a person who has been sentenced to imprisonment or another deprivation of liberty may only be granted if the portion of the term remaining is at least six months long or a more severe punishment remains to be carried out.
15. What Was Allowed In Italy But Would Not Be In Canada?
Here is a section copied directly from the Law Society of Upper Canada’s website. This is the regulatory body with licences and is able to remove lawyers in the province of Ontario. It covers the relationship between lawyers and the administration of justice.
[Amended – October 2014]
5.1-2 When acting as an advocate, a lawyer shall not
(a) abuse the process of the tribunal by instituting or prosecuting proceedings which, although legal in themselves, are clearly motivated by malice on the part of the client and are brought solely for the purpose of injuring the other party,
(b) knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable,
(c) appear before a judicial officer when the lawyer, the lawyer’s associates or the client have business or personal relationships with the officer that give rise to or might reasonably appear to give rise to pressure, influence, or inducement affecting the impartiality of the officer, unless all parties consent and it is in the interests of justice,
(d) endeavour or allow anyone else to endeavour, directly or indirectly, to influence the decision or action of a tribunal or any of its officials in any case or matter by any means other than open persuasion as an advocate,
(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct,
(f) knowingly misstate the contents of a document, the testimony of a witness, the substance of an argument, or the provisions of a statute or like authority,
(g) knowingly assert as true a fact when its truth cannot reasonably be supported by the evidence or as a matter of which notice may be taken by the tribunal,
(h) make suggestions to a witness recklessly or knowing them to be false;
(i) deliberately refrain from informing the tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by an opponent,
(j) improperly dissuade a witness from giving evidence or advise a witness to be absent,
(k) knowingly permit a witness or party to be presented in a false or misleading way or to impersonate another,
(l) knowingly misrepresent the client’s position in the litigation or the issues to be determined in the litigation;
(m) needlessly abuse, hector, or harass a witness,
(n) when representing a complainant or potential complainant, attempt to gain a benefit for the complainant by threatening the laying of a criminal charge or by offering to seek or to procure the withdrawal of a criminal charge,
(o) needlessly inconvenience a witness; or
(p) appear before a court or tribunal while under the influence of alcohol or a drug. [Amended – October 2014]
The problem here, is although there are rules of conduct, the rules of conduct also state that lawyers must take every avenue available to help out their clients. So, it seems that the line between zealous advocacy and professional misconduct gets rather blurry. While not necessarily criminal offences, these things would throw the law into disrespute, and could cause problems for lawyers. Cases in point:
i) After the Florence Appeals Court ruled against Knox and Sollecito in January 2014, defense lawyer Guilia Bongiorno tried to have Judge Nencini disciplined for making some rather innocuous remarks to reporters. This was baseless and vindictive. If you lose an appeal, you don’t maliciously try to take down the lead judge. It is a clear violation of clause (a).
ii) Judge Hellmann was installed as lead judge for Knox and Sollecito’s original first appeal. Hellmann was a business judge, and the much more qualified Judge Chairi was forced off the case. There was no legitimate reason for doing this—Hellmann was there as the result of ‘‘judge-shopping’‘. He then proceeded to make a complete mess of that appeal, so much so that Cassation completely annulled it in March 2013. Putting him on the bench in this case is a conflict of interest and violation of clause (c)
iii) Judge Hellmann also went out of his way to twist and distort much of what the prosectors had presented in the 2009 trial, including witness testimony and evidence. Few believe this was accidental. If intentional, it would be violations of clause (d),allowing influence other than as an advocate; and clause (f), distorting evidence and testimony.
iv) Judge Hellmann dragged out the appeal by holding it only a few times each month, which caused enormous burdens on both prosecutors, and the Kercher family. Not only is this rude, it could be seen as a violation of clause (o).
v) Knox’s lawyers, Luciano Ghirga and Carlos Dalla Vedova allowed Knox to make many accusations on the witness stand in June 2009. Among the most serious is Knox’s claim she was physically assualted November 5th/6th. Ghirga himself had said publicly Knox wasn’t hit. These lawyers also passed along Knox’s false email to Judge Nencini, and Vedova filed a bogus claim to the European Court of Human Rights. This is knowingly letting Knox do dishonest things, and repeated violations of clause (b).
vi) Knox and Sollecito’s defence has been shown to be relying many times on false facts and pretences. Although lawyers are obligated to defend their clients, deep down they have to know that the defences they are making is true. These are violations of clause (e), but are prime examples of duty to the court directly conflicting with duty to the clients.
vii) Ted Simon, Knox’s now (absent) U.S. lawyer, has changed his tune. He spoke out publicly in 2008 saying that there actually was a strong case against Knox (motive notwithstanding). However, when he came on board, he ‘‘adjusted’’ his views, and now claims that there is no evidence, never was, and never will be. Although not present at the trial or appeals, Simon has made claims that he himself knows to be false, violating clause (g).
viii) Bob Barnett helped Knox land her book deal with HarperCollins, even though proceedings were still underway, knowing that Knox made false claims, knowing that Knox had been convicted of making false accusations, and knowing that Son-of-Sam laws prohibited such actions. He helped Knox do something dishonourable, violating clause (b). Or, if Mr. Barnett didn’t know, then he is far too incompetent to be a lawyer.
While lawyers are obligated to advocate on behalf of their client, the line seems rather fuzzy as to what actually constitutes ‘‘advocacy’’ and what constitutes ‘‘misconduct’‘. I believe the examples above are all professional misconduct. They were done with the intention of helping AK/RS, but step far, FAR over the line. While this is quoted from the Ontario site, other Provincial and Territorial Law Societies have very similar rules.
16. Where This Series Is Headed Next:
This concludes the part of Canadian laws that would have applied to Knox, Sollecito and Guede, had they committed the crime here. #9, which Knox bragged about to her friends, wrote about in her book, and told to police, would be considered prostitution, when you realize she got drugs for it. And #13 was added after the juror from the Florence appeal, Genny Ballerini, decided to talk to the media. All of the crimes listed in the first 3 parts are all crimes under Italian law, even if they are called something different. These 3 parts were kind of a Canada v.s. Italy perspective.
The next pieces will cover other common law nations, and contrast their varying laws. Peter suggested giving an even wider context for crime and punishment across the globe. The final piece will be some loose ends, and requests for content are encouraged. If there is a topic I missed, or something that needs more depth, ask.
1st post appears here: An Overview.
2nd post appears here: Public Mischief and Perjury
3rd post appears here: Bail, Extradition & Other Crimes
4th post coming soon: Canada v.s. the U.S.A.
5th post coming soon: Canada and our Family
6th post coming soon: Loose Ends, and Reader Request
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