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(Prime Time Crime exclusive Oct. 11, 2007)

R. v. Osmond  2007 BCCA 470

By Bob Cooper



Once again, it's the courts making the rules up as they go along.  They change the goalposts more times than a VPD Promotion Competition.  Some years ago, in order to facilitate the discharge of our 'implementational duty' under the Charter, governments set up the legal aid phone system that we presently use.  The police are told time and again that unless an accused's legal peril changes they get one kick at the lawyer and as long as we permit this consultation to occur in private then we've met the requirements of the Charter.

Make no mistake here, these guys followed the rules as they were set out at the time.  The Court itself, in paragraph 42, acknowledged this saying that George Roswell Osmond was properly advised of his rights.  Not only that, but it was further noted that Osmond had to be urged to make the call to legal aid.  Urged.  By the police.  Osmond was willing to talk to the police even after being read his rights in order to see what they had on him (a side note here, it's that curiosity that keeps most of them sitting there, not just the unsophisticated or overconfident).  According to what I've always been taught the police would have been within the Charter requirements had they just sat there and let Osmond talk.

But they didn't.  They felt this situation was so serious that they urged Osmond to get legal advice and saw that he did so before they questioned him further.  In other words they went beyond what the rules required of them.  They obviously did so out of a sense of decency and fairness, earning them scant credit in these proceedings.

The legal aid lawyer that Osmond spoke with testified that he told Osmond on at least 3 occasions not to speak to the police or any one in jail.  The conversation lasted about 3 minutes or so.  The Court ruled that this fell short of the requirements in that while Osmond was told to be quiet he wasn't told how.  I'm assuming here they are referring to the current practice of several Vancouver lawyers who rigorously school their clients in the Reid's technique to the point that they can recite all 9 steps in the proper order in better fashion than most of my students.  This seems incongruous with the Court's view of Mr.. Osmond as being unsophisticated and lacking in 'savoir faire'.  For a person of this nature, common sense would seem to dictate that the most effective advice would be the simplest, i.e.; 'Shut Up'.  How much more complicated do you want to make it?  

The Court paints a sympathetic picture of this simple, poorly educated young man engaged in a battle of wits with trained interrogators for which he was no match.  This strategy has been tried before.  In a case (the name of which escapes me) several years ago the defence made the identical argument.  The court in that case dismissed that proposition with words to the effect of 'skilled police work is to be congratulated not condemned'.  Following the Court's reasoning in Osmond I suppose the interrogators should have done more to level the playing field.  Before questioning Osmond perhaps they should have allowed him to finish high school along with a couple of years of post secondary topped off by a course in Interrogation tactics for good measure.  I didn't realize this was an 'even-steven' game.  I actually thought this was about the murder of a young girl.  Then I realized she was just a footnote, so insignificant to the proceedings she doesn't even have a name.  No, it's all about Mr. Osmond.  Nothing else matters.

There is a bias amongst certain members of the Bench against allowing any form of self-incriminating evidence.  To these judges the most offensive form of self-incriminating evidence is a confession, followed closely by wiretap evidence and they will throw either out on the slightest whim.  Unfortunately, far too few of these cases are appealed.  I personally believe the Court's reasoning in this case was badly flawed but that aside, it's not like the confession was the only evidence against Osmond.  The inevitability of discovery of the other evidence is as clear as Osmond's guilt.

Before anyone accuses me of 'court-bashing' I'd point out that the courts are only exercising a power that we as a country have granted them.

Like I've always said, people get the kind of society they deserve.

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