Memories Don't Just Fade Over Time

It's funny, as I was starting this article, I had Bob Seger's Night Moves playing and the lyrics "I remember, I remember, I remember, I remember" at the end of the song seemed ominously fitting. 

I came across a fascinating article this week online.  Northwestern University posted it back in 2012, so there may be newer research that exists now.  The article is called "Your Memory is Like the Telephone Game: Each time you recall an event, your brain distorts it" and you can read the full article here. The article summarizes a study published in the Journal of Nueroscience.

Basically, the researchers found that when you remember an event, the connections in your brain change in ways that can result in you remembering the event differently the next time. In the study, the lead author Donna Bridge wrote: "Your memory of an event can grow less precise even to the point of being totally false with each retrieval."

As a criminal defence lawyer, I can appreciate that by the time a witness attends court to testify, he or she may have recalled the event dozens of time. When something interesting or tramautic happens, most of us tell our friends or family about what happened. Partly, it is how we cope with things that happen to us but we also just really like telling stories. Each time you tell the story of what happened, you are retrieving that memory. For complainants, witnesses, and victims, they have to remember and tell what happened many times. First, to the police, and then to the Crown Attorney or Victim Services, and then to a preliminary hearing judge, and then to a trial judge. Nevermind all the times they share their story with their friends or family.

"Maybe a witness remembers something fairly accurately the first time because his memories aren’t that distorted,” [Donna Bridge] said. “After that it keeps going downhill.”

Bridge concluded that human memories are always adapting and that remembering an event in a new environment or in a different mood can cause the memory to integrate that new information. To me, it seems like this research is telling us that each time you remember an event it is like photocopying the last photocopy. The more times you recall the event, the less accurate it becomes - even more so if the environment you are in while recalling the memory or you mood is different. In a courtroom, a witness testifying may be nervous but he or she was likely concerned or even scared when they witnessed or experienced an incident. 

What I think we can learn from this is to try and verify what witnesses testify to as much as possible and be skeptical sometimes of what a witness thinks they remember while testifying. 

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

Cell Phones and Driving in Manitoba

Update

This blog post outlines the basics for cell phone use and driving in Manitoba. But, the penalties have increased since I first wrote this post in 2015. It is a good idea to review the two update posts as well.

• Cell Phones and Driving in Manitoba (June 2016 Update)
• Cell Phones and Driving in Manitoba (August 2018 Update)

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SteinbachOnline had a great article recently about the Steinbach RCMP actively looking for drivers who are using their cell phones while driving. Check out the full article here, Steinbach RCMP Nab Texters. Forty people were given tickets for $203.80 and drivers also face 2 demerits as well. Some people thought it was okay to talk on their cell phone if they used speaker phone and others thought it was okay to text while waiting at a red light.

In order to help clarify what you can and cannot do with a cell phone while driving, the best thing is to turn to the laws under the Highway Traffic Act here in Manitoba. Section 215.1 is the where the offence is defined and outlined.

A "hand-operated electronic device" is defined to include:

• cellular telephone
• another electronic device that includes a telephone function and is normally held in a hand or needs a hand to operate the device
• an electronic device that can send or receive email or text-based messages and is normally held in a hand or needs a hand to operate the device (e.g. an iPod touch)
• any other device listed in the regulations of the act

The word "use" is defined to include:

• holding the device in a position in which it may be used
• operating any of the device's functions
• communicating by means of the device with another person or another device
• looking at the device's display
• any other actions listed in the regulations of the act

So, to be clear, even if you glance down at your iPhone that is sitting in the cupholder of your car to check the time or preview a message, you are "using" the device and breaking the law. If you use your phone to play music in your car and you switch songs using the phone, you are "using" the device. If you mount your cell phone on the dash of your car, you are "using" the device every time you look at the screen of your phone, whether the phone's screen is actually on or not. You don't have to be holding the phone in your hand to be guilty of the offence, you simply have to be using it in one of the ways the law descibes above.

The law says you are NOT allowed to use a hand-operated electronic device while driving a vehicle on a highway UNLESS:

1. before using the device, you safely drive your vehicle OFF THE ROADWAY and then keep the vehicle stationary while using the device, or
2. the device is set up to allow hands-free use as a telephone and it is used in a hands-free manner (this is why using a Bluetooth headset is still legal or a built in phone system in your vehicle)
3. you are using a hand-operated electronic device with your hand to call or send a message to a police force, fire department or ambulance service about AN EMERGENCY (so you're allowed to make calls to 911 for emergency situations while driving)

So, now you hopefully know more about what you can and what you cannot do with a mobile phone in your car in Manitoba. If a fine and demerits aren't enough to encouarge you to follow the rules, using a phone while driving draws your attention away from the road and can lead to motor vehicle accidents. If you are texting before an accident and someone is injured or killed, you would likely be facing criminal charges and maybe even a jail sentence.

My advice is to buy a good Bluetooth headset to take phone calls and then leave your cellphone in a back seat or the trunk so it is out of reach and temptation.

Related articles

• Cell Phones and Driving in Manitoba (August 2018 Update) (michaeldyck.ca)
• Cell Phones and Driving in Manitoba (June 2016 Update) (michaeldyck.ca)
• How much does it cost if you get a DUI? (And why it is cheaper to hire a helicopter) (michaeldyck.ca)
• Can You Have Alcohol in Your Car (michaeldyck.ca)
• Preventing a Break and Enter in Your Home: Tips From a Criminal Defence Lawyer (michaeldyck.ca)

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

Supreme Court of Canada Series: R. v. Nur (Mandatory Minimums for Firearms)

On April 14, 2015, the Supreme Court of Canada determined that some mandatory minimum sentences for firearms offences are unconstitutional in R. v. Nur, 2015 SCC 15. The Court found the minimum punishments violated s. 12 of the Charter of Rights and Freedoms which says:

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

The key portion of the Criminal Code at issue was section s. 95 which talks about prohibited and restricted firearms that are loaded or could be loaded because there is ammunition nearby.  To learn more about these different classes of firearms, read my earlier post Firearms in Canada - Basics:

95. (1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of
     (a) an authorization or a licence under which the person may possess the firearm in that place; and
     (b) the registration certificate for the firearm.
(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 10 years and to a minimum punishment of imprisonment for a term of
          (i) in the case of a first offence, three years, and
          (ii) in the case of a second or subsequent offence, five years; or
     (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

In Manitoba, there were already two decisions from judges in the Court of Queen's Bench about minimum sentences for firearms offences and how they were unconstitutional. First, Justice Suche held the minimum sentence in section 95 violated sections 7, 12, and 15 of the Charter in R. v. Adamo, 2013 MBQB 225. An appeal has been filed by the Crown Attorney's office in this case and it was still pending at the time of this blog post but given the decision from the Supreme Court, I would think the appeal may be withdrawn.

Shortly after this, in October 2013, Justice Menzies concluded the section 12 was violated by a minimum sentence for a different firearm charge in the Criminal Code under section 244 of intentionally discharging a firearm into a place knowing that or being reckless as to whether another person was in that place under section 244 in R. v. McMillan, 2013 MBQB 229. An appeal has been filed by the Crown Attorney's office in this case and it was still pending at the time of this blog post. But this is about a different section of the Criminal Code than what R. v. Nur decided.

At the end of the day, removing the minimum sentence allows the sentencing judge to have discretion to impose a fit and appropriate sentence. In some cases, a 3 year jail sentence or more may still be appropriate. But minimum sentences turn the process into a one-size-fits-all when we know that sentencing is incredibly unique to each case and each set of facts. In fact, sentencing an accused is often described as an art more than a science. Removing minimum sentences allows judges to exercise their discretion and show mercy in cases that warrant it.

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

Criminal Law: Testifying in Your Own Defence

When an accused person testifies in their own defence, the judge must consider the legal test established by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742.  R. v. W.(D.) was about the proper instructions a judge should give to a jury before they begin their deliberations, called a jury charge. The Supreme Court held a proper jury charge where an accused testifies may be:

• First, if you believe the evidence of the accused, obviously you must acquit.
• Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
• Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

There was recently a case from Winnipeg where Queen’s Bench Justice Chris Martin had to assess the credibility of the witnesses who testified and of the accused. Here is a link to the article: Man found not guilty of gunpoint home invasion. Justice Martin questioned why the stories from the witnesses change so much and he concluded he could not place a lot of value about what they were testifying to in court. As for the accused himself:  "Generally, he cannot be described as a trustworthy individual," said Martin. "I neither believe Mr. Kolba’s alibi evidence, nor does it raise a reasonable doubt." Which means Justice Martin concluded the first and second parts of the test in R. v. W.(D.) were not satisfied. Justice Martin ruled it would be unsafe to believe anyone’s story and acquitted the accused.

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

Wrongful Conviction of Former Judge Jacques Delisle

The CBC posted a fascinating article recently Jacques Delisle didn't murder his wife, forensic experts tell CBC. CBC's the fifth estate was investigating the claims by the former judge that he was not guilty of murder, despite being found guilty by a jury in 2012. During their investigation, the fifth estate spoke to multiple experts who all concluded it was a case of suicide based on:

• the gun's angle
• the bullet trajectory
• gun powder burns

At this point, an appeal may not be possible, but "Convicted prisoners in Canada who have lost all their legal appeals are allowed by law to make a direct appeal to the federal justice minister, asking the government to re-open the case."

Overall, this was a case where the Crown Attorney had a perfect motive for Mr. Delisle - money. They argued he was having an affair with his wife and he would lose a million dollars in a divorce settlement.

My biggest question is why is it only now, after a conviction, that forensic and ballistic experts are looking at the evidence and providing their conclusions? Why wasn't this done during the police investigation or during the prosecution of the case? It is likely because of tunnel vision. The police and the Crown Attorney develop a theory of the case and then they look for evidence that confirms the theory and discount or ignore evidence that contradicts the theory. It is part of human nature but can, unfortunately, lead to wrongful convictions even though the police and the prosecutors have noble intentions.

I wrote a paper in law school for a course on Miscarriages of Justice called "Can’t Let Go: Why ethical prosecutors cannot acknowledge a miscarriage of justice." I looked at cases where DNA exonerated several people and how the prosecutors (mainly in the United States) still adamantly believed they were correct and the person was guilty. In this case, the Crown Attorney, Charles Levasseur seems that he may be suffering from tunnel vision as well because he "remains convinced Delisle pulled the trigger."

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.