Saturday, July 6, 2013

You and the Law.

Zach Neal is not a barrister nor a solicitor, and
neither does he play one on the tellyvision......

     A surprising number of people will tell you, “I know the law, man…” What is even more surprising is how wrong they can be.

     At some point if you are subject to harassment, you may have to get the law involved. Yet the police can be ineffective when dealing with harassment. For one thing, it is
extremely time consuming. In one case the local police had to spend $14,000 in overtime in order to catch a man harassing a former partner. They also expended untold man-hours during their regular duties. All these resources, all this time has to be paid for by the taxpayers, and it takes the police away from other duties. “Little cases,” or cases where there is some doubt in their minds, do not get the highest priority, it’s fair to say.

     In the stated case, the police knew the victim, they knew where she lived. They new where the perpetrator lived. Since he was a firefighter they knew his work schedule, they knew where he lived, where he worked, they had his photo, license number, they knew his vehicle, phone number, et cetera. Why was it so hard to catch him? It wasn’t, really—they caught him a number of times.

    Because of the nature of the court system, they had to have enough evidence, but they needed more than that. They had to get enough evidence to convince a judge and jury to give the gentleman a serious sentence, a previous conviction not being enough to convince the perpetrator to leave the lady alone. We won’t discuss the particulars of the actual evidence. However it is sufficient to say that a suspended sentence was not enough, probation was not enough, fines were not enough.

    The gentleman was convicted of various harassment and stalking-related offences. He got a two-year sentence, and since he threatened a police sergeant, he got an additional six months tacked on. If I was the victim, I would be fearful when he got released, and while time may hang heavy on the hands while a person sits in jail, to those on the outside it actually goes by pretty darned fast. She will have to confront this issue at some point in the future, and she may in fact still have to move just to feel safe—even in the absence of further incidents. Even in the absence of further incidents, the harassment, the stress, the anger, the fear just keep on and on. With all due respect to the reader, as a writer it would be uncomfortable to go and ask her about it. But I feel it’s true. (I know damn well it’s true.)

     The local paper over the course of time is full of these cases. By reading “provincial court,” you can get a pretty good idea of the type and nature of crimes of harassment. 

     When I realized I was the subject of harassment, in my case more of a witch-hunt really, I sought out some professional advice. Typically, a lawyer will provide a half-hour consultation free of charge, and I suggest that is one of your first steps. Nothing in this post should be considered a definitive statement of law. You need a real lawyer for that.

     Interestingly enough, the law says it is illegal to be a “false witch,” and provides stiff penalties. It is not illegal to actually be a witch. Presumably the onus would be on the Crown to prove you aren’t! (Some interesting case law might be written here, but we’ll leave that one for another day.)

     I was told, “Document everything,” but I really didn’t ask enough questions.

     So when followed by a certain vehicle, I made a note of it when I had a chance; you can’t take notes when driving down the street very well, although I got better at it.

    I wrote down the make and colour of the vehicle, license number if I could get it, number of occupants, but to get a good look at a number of individuals in your rear view mirror; it’s hard to make a description or even get a proper look. At night, in bad weather, or in heavy traffic, I could usually distinguish “two males, about twenty-five or thirty years old, average build,” that kind of thing. “One guy had glasses,” that kind of thing. So I wrote down what I could, but generally speaking, you have to be able to identify the
driver, and you also have to be willing and able to testify against them. So you have to give up some of your time.

     Going to court even as a witness is fearful; and most people aren’t willing to do that “just for one little incident.” That was my problem. In the early stages, no one single incident was enough to get me to go the police. After a year and a half of “attentions,” maybe then I was ready, but not at first. Within three months of buying a house, I knew there was some kind of a problem. At first, it was just noise, and when I called up one night to the  police with a noise complaint, the dispatcher asked me, “Is it really important? We’re having a kind of a busy night…” Well, I hemmed and hawed and pretty quickly decided just to try and make it through with no sleep, try not to get mad, it’s just a party, you know the score. I think we’ve all gone through a noisy party night in the neighbourhhood.

     The dispatcher asked me, “Have you tried talking to them, sir?” I told her, “I’m not going out there in the middle of the night and confront twenty-five or thirty drunks…”

     I should not have backed down to the police dispatcher. I’ve never had a lot of confidence. I don’t know why. Cops are intimidating, or something.

     But the harassment was already there. That’s why I called in the first place. After only three months I knew there was some kind of a problem.

     Bearing in mind the theories of medical science; this behaviour had already been habituated in the minds of the perps. And by the time a year and a half of stress had begun working its little magic on me...and I was already stressed because buying a home is always stressful, and I didn’t have a lot of disposable to money to throw around. After three months there was a problem, it took longer for it to be clearly harassment.

    “The fear often expressed by clients is that, if they tell the full story, a lawyer may refuse to take the case. A lawyer, and ultimately a court, must be armed with all the facts to properly solve a legal problem. Full disclosure is essential to this process and must be encouraged.”—Les Vandor, QC, Frequently Asked Questions About the Law, ECW Press, 2002.

     Every case is different, every new fact puts a new wrinkle on the case. Provincial and federal laws often vary, and they change quite often as well. Don’t ever think that you can handle a legal problem involving harassment or abuse yourself. You need a professional.

     The law starts with some general rules. Section 6 of the Criminal Code of Canada says you are presumed innocent until proven guilty. Section 13 says that no person under the age of 12 can be convicted, as child protection laws kick in; Section 14 says that you cannot consent to being killed.

     Perhaps more relevant, Section 19 says “ignorance of the law is no excuse.”

     Perhaps irrelevant, the laws says, “you have to commit a crime intentionally to be convicted of it.” How the judge reconciles these conflicts is what we call “justice.”

     In Sections 25 to 33 police are given the power to arrest and to use force if necessary.

     If you are arrested for an offence, and you know you are innocent, do not make them use force. You will have to go with them, and take up a complaint later, unfair as it seems. I’ve been on disability for about eleven years, and lawyers are expensive, but that’s just the way life is sometimes. If you are innocent, what is the point of being tasered? The cops have always had guns and batons, but I have some concerns about
tasers. They are lethal in a small number of incidents, and that just doesn’t happen with pepper spray. But pepper spray is “uncomfortable” for the officers, due to persistent effects of a good dose of liquid, which is all over the suspect. And then the officer has to put the suspect in a vehicle and drive him to the station. But my real concern is that while a gun or baton may be a tool of last resort, the taser seems to be more a tool of
convenience. A time saver for the police. It seems to place punishment in the hands of the police and takes it out of the hands of the court. Why punish yourself? Funny thing is, the court would never punish someone by ordering them to be tasered. It’s too risky—too much chance of death by heart attack.

     Ignoring the possibility of a heart attack or seizure, if you are innocent it’s definitely not worth it.

     In Section 34, self-defense is allowed if you are the victim of an unprovoked attack. If you charge someone, they may claim that you provoked them. Far from a confession of guilt, it becomes a “he-said-she said” kind of thing. The court has to decide which party’s evidence is more credible, which carries more weight. Sheer number of witnesses can tip the balance, with unfortunate results.

     In a noise incident, to go out and confront a large party, well in court, they might not be drunk, and they’re not going to testify against a buddy, are they? Don’t get assaulted if you can help it. Certain situations are just trouble waiting to happen, especially if you’re upset and come on like gangbusters.

     Self-intoxication, when you have no sense of what you are doing, is not a defense to a charge under the Criminal Code of Canada, often referred to as the “triple C.”

     If the police ask you questions, you pretty much have to answer them, otherwise you could be charged with interfering with a police investigation. Here’s something I didn’t know. The police do not have to warn you that every thing you say can be used to charge you; “until you become a suspect.” This one troubles me a bit, my advice is “never try to explain anything to a cop.” Explain it to a lawyer, and let him explain it to a court.

     If you call the police, and all of a sudden they seem to be taking the other party’s side, that is exactly the time to shut up. You’re teetering on the brink and it is time to back off, unfair as it will seem at the time, I say this for your own protection.

     According to Les Vandor’s book, “you are allowed to fence your property, and you are allowed to post signs that it is private property. However if a neighbour refuses to respect your property, you should give him or her ample warning that you intend to take appropriate measures. They include calling the police and using reasonable force to protect your property.” More on this one later.

     “Many cases require funding from Legal Aid plans as people just can’t afford a lawyer or the cost of a trial. Unfortunately many of these plans are running out of money and many a plan, in an effort to save money, has set the threshold for qualifying quite high.”

     In some provinces you will only qualify if you make below $12,000 a year. A bare subsistence living, in other words. If you make more, you won’t qualify for aid. Recently many lawyers in some provinces have gone on strike in support of more funding for their clients. Legal Aid will not help you with a civil suit, only if you are charged with a crime; and only if certain thresholds are met. In my case, a lady once came and took my application for Legal Aid. I later received a letter rejecting my application. The reason given: “Not much of a chance of my going to jail…” Interesting, eh? The original application was taken in a jail, while awaiting a bail hearing. What if I had been convicted? Because I had part-time work, as well. I might have made $12,001.00 dollars that year. The charge was later withdrawn, after nine months on bail.

     The conclusion I drew is that disabled, mentally ill people, permanently unemployable people, the working poor, are easier to harass. They can’t afford to sue, and if accused of a crime themselves, they simply can’t defend themselves. Once they get a rap sheet, they are even more vulnerable to abuse, and to abuses of the system as well.

     In the United Kingdom of Great Britain and Northern Ireland, people have lived with the threat of terrorism for a long time, stemming first from the Irish Republican Army and more recently Al Quaeda. The right to privacy is often subject to the needs of society.

     In England, public video cameras are the norm, and people have become accustomed to the loss or invasion of their privacy. However in Canada, the debate is ongoing; as to how much of our privacy to give up. When I lived in Oakville and Hamilton a few years ago, there were about 1400 video cameras along the highway system of the Queen Elizabeth Way, the 401 (Macdonald-Cartier Freeway), et cetera. You would have no reasonable expectation of privacy while driving or parked on these roads.

     Now, Section 184 of the Criminal Code dispels a very common myth: you cannot record the conversation of another person without their permission. And most people think that only one person, one side of that conversation; has to give permission. I think that’s due to U.S. TV influences—most of what we “know” about the law comes from TV. The code sets out guidelines for when the police can get a wiretap, and when a judge can grant permission to set up a wiretap. When you call some agencies and companies, a
recorded voice will tell you “this call is monitored for quality control purposes.” You can hang up if you want, and send a letter, but for the most part you should never threaten, harass, swear or otherwise abuse the people on the other end of the call, although it’s very tempting sometimes when you want the telemarketers to get off your back.

     The important thing to remember for the purposes of this book, is that your neighbour cannot videotape your comings and goings. That’s because you have the right to privacy, and to paraphrase a recent Supreme Court decision, you cannot photograph a person without their permission unless they are part of a crowd. Tip: two is company, three is a crowd. As the photographer, you don’t count.

     If someone calls you and makes threats, you cannot record that call. You need permission orally or in writing, and abusive people are rarely stupid enough to give it. I suggest you ask them for it, if they don’t hang up, turn on your tape recorder. Keep the recording, do not tell the cops about it. Let a lawyer listen to it, but not the cops. They can’t use it anyway. Evidence that is not gathered by the police is tainted, they don’t know how and when it was gathered, or under what circumstances it was gathered. And it can get you in deep shit.

     Let’s say someone is going around telling everyone that you are a thief. You are innocent. What can you do?

     According to Les Vandor, “When someone makes a statement about you that is untrue, you have the right to an apology and the right to sue for damages to your reputation. Damages may include lost income or opportunity caused by the false statement. If it is serious enough, the police may well get involved. Your first step is to get witnesses to support your version of events. You should then write a polite letter asking for an apology. If you get a letter of apology in return, you should send it on to whoever heard the false accusation. If you don’t get an apology, consider dropping the matter, or as a last resort, suing the person.”

     Essentially, if you don’t get a letter of apology, but the behaviour stops, the best thing is to try to forgive and forget. Make sure you keep a copy of your letter, this is part of the documentation process, which I consider all-important. That’s why it’s a good idea to tell other people if you feel you are being harassed, “within limits,” and if you can’t afford a lawyer, at least take advantage of the half-hour free consultation. At the very least now some credible person knows about your problem. Document your trip to the lawyer. Keep notes of what you do. If you can remember the date of an incident, you have a lot more credibility than someone who can’t.

     “Take notes—they help you to remember.”

     Anyhow, Section 297 of the Criminal Code covers criminal libel, and the law provides civil penalties for libel, slander, and defamation of character. The law also makes it illegal “to spread false news.” Quite frankly if someone is going around saying bad things about you, it endangers you, physically, psychologically, and even financially.

     You can sue someone for damaging your name and reputation, if you have the means to do so. This kind of damage is called defamation; if it is by printed words, it is called libel, if by spoken word it’s called slander. Both are regulated by the Criminal Code and are subject to “civil liabilities and remedies.”

     Your neighbours can be your best friends, or your worst enemies. People say, “I don’t care what the neighbours think,” that’s very short sighted. Your neighbours can get you hung, or they can prevent a lynching. Anyone who goes around attempting to label you something bad, that might be a prelude to something they plan to do later on.

     “To dehumanize someone is often a prelude to further civil and human rights violations.” In short, Jack the Ripper preyed on prostitutes, serial stalkers prey on women and other vulnerable types, abusive men would seldom beat up a female co-worker in the workplace. The wife waiting at home is so much more vulnerable, isolated, and available.

     So much safer. She is often to blame for everything from a bad night’s sleep to financial insecurity to a spouse’s drinking problem.

     To beat or attempt to beat another without actually touching them is called assault, the beating of another that includes touching is called battery; hence “assault and battery” charges.

     Collection agencies are regulated by federal and provincial laws. They may not threaten you, your employer or your family. They may demand repayment, they may sue you, but they cannot threaten you. If a collection agent threatens you, call the police.

     In your community, there may be a free legal assistance clinic staffed by several professional lawyers and a number of paralegals. 

     Talk to them. Get them to help you write that letter. It’s part of your documentation process. (I wish I had done that.) If the behavior stops, all well and good. But if it doesn’t, you have a record of the first incident. And other people know about it.

     When the police find that an offence has been committed, they “lay an information”against a person. This might cause an arrest warrant to be issued.

     Anyone can lay an information. You don’t have to be a police officer. If you complain to the police about some kind of incident or activity, and they refuse to proceed, under Section 504 you can lay an information about a person. This goes before a justice of the peace, who examines the evidence. If they are convinced there is ‘just cause’, charges may be laid and the police will have to arrest that person for trial. However, even if you fail to convince the justice of the peace, at least you have properly documented your complaint.

     The basic rule of life here, is “cover your ass.” And your ass comes ahead of any perp.

     Under Section 264.1 of the Criminal Code, it is unlawful to threaten to cause harm to a person, their property or a pet. The statute provide for up to five years in jail. 

     If someone hits you once, and you let them get away with it, over time it gets harder and harder to lay a charge. Losing has become habituated in the victim.
     Statements from victims are useful to judges in imposing sentences. This information is also considered when the convicted person applies for parole. You need to provide ways to document harassment and abuse; and to protect yourself for a number of reasons.

     At first it may be hard to talk about, but over time, you may wish you had done a better job of documentation. A history or documentation going back a few years might carry a lot of weight with a jury. Without being unduly alarmist; it could even help solve a murder or disappearance.

     Speaking of parole, let’s go back to the lab rat studies. When females are taken out of a social group and isolated for a certain amount of time, then re-introduced to the group, there is no big spike in violent behaviour.

     But when males are taken out of the group, and isolated, then returned after a time; there is a significant spike in violent behaviour. Males don’t do well in isolation, and males with a history of violence do even worse in isolation. Jail is social isolation, with massive stress levels built in.

     As a society, we have not confronted the problem of violence with any knowledge of human nature. “We ignore the beast we are trying to tame.”

     Men and women who are in jail are in there mostly for the same reasons: murder, arson, assault, fraud, theft, etc. They commit those crimes for all of the same reasons.

    There are fewer women in jail, but that’s because the court treats them differently.

     It is true that women commit far fewer crimes that we would consider classic: bank stick-ups, “running numbers for the mob,” or “hit men,” but then crime is under no obligation to be an equal opportunity employer. It’s probably fair to say that a lot of women live off or benefit from the proceeds of crimes committed by spouses, and some at least must be aware of it. Women are much more likely to be perceived as victims in this scenario; rather than as accomplices.

     Women are far less likely to go to jail, because they often have dependent children, and the state is unprepared to care properly for them. Women are far less likely to go to jail for anything but a seriously violent offense.  

     Women are less likely to re-offend, while some may believe this is gender-based, I think it’s because they weren’t incarcerated in the first place. The opinion among professionals is that the more people diverted from the prison system, the more crime rates fall. Crime rates are good for conservatives, reactionaries, interested parties, just who you’d expect.

     For women, in the workplace, a situation may develop when a co-worker goes beyond the boundaries of normal friendliness. There is a huge grey area legally; in terms of sexual harassment. It’s scary for both men and women, but for a normal male of the gentlemanly type, certain hints will work, they accept and realize that “no means no.”

     But if a man always stands where he can see down your top, or the boss makes disparaging remarks, insults you all the time, then you either put up with it, move on to different employment, make a formal written complaint, or lay a charge.

     “No one wants to bring a charge, it poisons the whole atmosphere in the workplace, but that unfortunately is the only thing sometimes,” according to women’s advocates. Yet some practical advice might help to solve the situation in a diplomatic manner. Look at the set-up of the office furniture, it may help to move some stuff around, put a couple of good chairs by the desk. Stake out your personal territory and defend it symbolically.

     Play the game, snap a little at the guy and blame PMS. Tell him your boyfriend’s mom is real sick, describe her colostomy operation. “What with the kids, the dog, Harry’s skin condition, I’m just worn to a frazzle…” Keep a bottle of anti-gas pills, or something for fighting diarrhea prominently displayed on your desk, workstation or dashboard.

     If unwanted sexual advances are persistent, yet the guy is basically well-meaning and is merely infatuated, first try and have a private talk. Make your position absolutely clear to him. If you have to comment again, do it in front of witnesses, but not the big boss.

    You may need to use it later. This is a measured response to a situation you don’t have to put up with. If the guy is clearly not a criminal, just has a big crush, a little firmness laced with kindness will work most of the time.

    Whatever. If a man grabs you in the warehouse or something, rake his shins with the side of your shoe, step down smartly on his instep, or boot him appropriately. No court in the land will convict you.

My novel, Master of Darkness, and my novella, the Painted Killer, are free from Smashwords until July 31.