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Oklahoma lawmaker will fight to end death penalty if Glossip executed

OKLAHOMA CITY (KFOR) – Execution dates were announced Friday for six inmates on Oklahoma’s death row, and they include Richard Glossip, an inmate whose guilt is in question.

Glossip’s been sentenced to death three times already, and now a new execution date of Sept. 22 has been set by the Oklahoma Court of Criminal Appeals.

A month ago, a group of lawmakers and lawyers released the results of an independent investigation into Glossip’s case. It was prepared by the law firm Reed Smith, whose attorneys specialize in justice for prisoners. Their 350-page report concluded there was no proof that Glossip hired a man to beat businessman Barry van Treese to death.

“I’m a firm believer in the death penalty in Oklahoma,” stated Glossip supporter and Republican Oklahoma State Rep. Kevin McDugle Friday. “But if we execute Richard Glossip, then I will fight to end the death penalty in Oklahoma, and I’ll do anything and everything I can, because we can’t have a process that allows for an innocent man to be executed.”

Glossip was convicted in the 1997 murder of his boss and hotel owner Barry van Treese.

He was accused of hiring Justin Sneed to beat van Treese to death, but Sneed ultimately testified against Glossip in return for a life sentence.

Richard Glossip, image KFOR

Friday morning, Glossip’s attorney filed for a hearing with the Court of Criminal Appeals, proclaiming his innocence based on Reed Smith’s report.

“There were 200 people that they interviewed that had never been talked to before. Never,” McDugle explained. “Now they have 27 affidavits out of those 200 people saying Justin Snead told them that he lied to get himself off of death row.”

McDugle said there’s also new video of detectives coercing Sneed to pin the murder on Glossip.

Glossip’s execution date of Sept. 22 was announced Friday with six other upcoming executions.

Oklahoma Attorney General John O’Connor released the following statement:

“Today, the Oklahoma Court of Criminal Appeals set execution dates in six cases involving the murders of eight individuals: Albert Hale, Barry Van Treese, Brianna Cole, Adam Broomhall, Mary Bowles, Jerald Thurman, and A.J. and Patsy Cantrell.

The earliest of these murders was committed in 1993, and the most recent was in 2003.

The family members of these loved ones have waited decades for justice. They are courageous and inspiring in their continued expressions of love for the ones they lost. My office stands beside them as they take this next step in the journey that the murderers forced upon them.

Oklahomans overwhelmingly voted in 2016 to preserve the death penalty as a consequence for the most heinous murders. I’m certain that justice and safety for all of us drove that vote.”

ATTORNEY GENERAL JOHN O’CONNOR

Glossip’s attorney, Don Knight, said the court should remove Glossip’s execution date until it has considered the report.

“We respectfully disagree with the decision of the Oklahoma Court of Criminal Appeals to set an execution date for Richard Glossip before the findings of the Reed Smith Report on his case, and new evidence of his innocence, can be heard in a court of law.

Just weeks ago, an independent investigation requested by Republican lawmakers was completed by more than 30 highly respected attorneys from nationally renowned law firm Reed Smith. These lawyers, who spent over 3,000 pro bono hours investigating this case, discovered a police investigation riddled with errors and neglect, detectives with fatal ‘tunnel vision,’ a reckless prosecution, unconscionable destruction of evidence, a miserable failure by Glossip’s court-appointed attorneys, and new evidence showing that Rich Glossip had nothing to do with the murder. Richard Glossip has been through three tortuous execution dates already. It does not serve justice to set a fourth execution date for an innocent man before all this new evidence can be fully considered in a court of law.

Public reaction to this new evidence makes clear that Oklahomans, even those who support the death penalty, do not want to see an innocent man executed. We implore the Oklahoma Court of Criminal Appeals to strike Richard Glossip’s execution date until this new information can be fully considered.”

DON KNIGHT, ATTORNEY FOR RICHARD GLOSSIP

McDugle is in full agreement with Knight.

“I personally believe he’s innocent,” he concluded. “All we’re asking for is let’s have another hearing and show all this new evidence, and if you guys have real proof that he’s guilty, then show it.”

KFOR asked the attorney general’s office if they plan to review the new evidence or hold Glossip’s execution date and they responded, “Our office cannot comment on any pending or active litigation.”

The scheduled execution dates for all six death row inmates is as follows:

  • James Coddington – Aug. 25, 2022
  • Richard Glossip – Sept. 22, 2022
  • Benjamin Cole – Oct. 20, 2022
  • Richard Fairchild – Nov. 17, 2022
  • John Hanson – Dec. 15, 2022
  • Scott Eizember – Jan. 12, 2023

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Farm Protection In Manitoba – Safe Harbour Or A Trap For The Unwary? – Insolvency/Bankruptcy


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The Farm Protection Regime in Manitoba is built upon a
disjointed combination of Federal and Provincial Statutes. Through
multiple notice requirements, various administrative stays, Federal
and Provincial Mediation Boards and, in some cases, Court
supervision, farmers in financial difficulty are afforded a
generously wide safety net against the actions of their creditors.
While this provides a more than reasonable opportunity to
restructure and negotiate settlements through mediation, creditors
must read carefully or risk the hardship of starting the entire
process over again in accordance with the statutory
requirements.

Background

Before delving into the legislative abyss that governs farm
protection in this province, it must not be forgotten that there is
also a co-existing regime governing relations between debtors in
financial difficulty and their creditors. Pursuant to the Federal
Governments’ jurisdiction over insolvency, there are two major
statutes pursuant to which creditors can seek protection and
endeavor to effect arrangements with their creditors:
the Bankruptcy and Insolvency Act R.S.C. 1985
c.B-3 as amended (“BIA”) and the Companies
Creditors Arrangements Act
 R.S.C. 1985 C-36
(“CCAA”). While a detailed discussion of these statutes
is beyond the scope of this paper, it must not be forgotten that
they exist and are available to farmers and farm corporations to
restructure their affairs. It should also not be forgotten that
once the various farm protection mechanisms have been exhausted
secured creditors must still proceed to affect their realization in
accordance with the applicable legislation that governs realization
of the respective security including The Real Property
Act
, when dealing with mortgage sale and
foreclosure, The Personal Property Security
Act
 and/or Bank Act when dealing with
the personal property security realizations and The Farm
Machinery and Equipment Act
 when endeavouring to
repossess farm machinery and equipment under the jurisdiction of
that Act.

The two major pieces of legislation that specifically govern
farm protection in Manitoba are the Farm Debt Mediation
Act
 S.C. 1997, c.21 (“FDMA”)(this is the 1997,
successor to the original Farm Debt Review Act) and The
Family Farm Protection Act
 C.C.S.M. c. F-15
(“FFPA”). These are two separate and distinct statutes
which arose in response to the farm crisis in the mid 1980’s.
During the recession of the 1980’s unusually large numbers of
farmers were unable to meet their debt obligations. Consequently
there was a disproportionate number of farm foreclosures and
receiverships which forced many farm families off the land. While
some major farm lenders such as Farm Credit Corporation voluntarily
adopted a temporary moratorium on farm foreclosures, that provided
only limited relief. The deepening farm crisis and the inadequacy
of existing farm aid created pressure on the Federal and Provincial
Governments for a legislative solution. In response, both levels of
government enacted separate farm protection statutes.

On January 26, 1986 the House of Commons passed
the Farm Debt Review Act S.C. 1984-85-86, C33
(“FDRA”). It came into force on August 5, 1986. This Act
established Farm Debt Review Boards in each province to assist
farmers in financial crisis to obtain third party assistance to
review their affairs and negotiate with creditors. It did not
impose mandatory obligations upon creditors to compromise but, it
did provide for a stay of proceedings for up to 120 days. It also
provided an obligation on secured creditors to give notice of their
intention to realize on security and to inform the farmers of their
right to seek the assistance of the Farm Debt Review Boards. If the
secured creditors were unwilling to compromise by the end of the
stay, they were free to continue realization proceedings. The
stated purpose of this legislation was to assist those farmers who
were financially viable in the long term whose difficulties could
be overcome with the cooperation of the creditors. In 1997 the FDRA
was replaced with the FDMA which firmly imbedded mediation into the
process.

The Province of Manitoba’s response to the farm crisis was
the FFPA which received Royal Assent on September 10, 1986. This
legislation prevented creditors from realizing against farm land
without first obtaining Court approval. The Court has discretion to
grant leave only where it was “just and equitable” to do
so after the creditor and the farmer had the opportunity to mediate
their differences before the Manitoba Farm Mediation Board
(subsequently renamed the Manitoba Farm Industry Board). Initially,
this legislation contemplated the application process to apply to
farmland, machinery and equipment, and in certain circumstances,
livestock. While the provision in the FFPA dealing with farmland
were proclaimed in force in December 1986, those dealing with
machinery and equipment and livestock have never been proclaimed.
Accordingly, the FFPA only applied where the lender’s security
includes farm land.

Current Regime

The practical effect of the farm protection legislation in
tandem with other related statues is that before a secured creditor
can commence enforcement of its security, it must overcome a series
of hurdles including statutory notices, administrative stays and at
least one level of Mediation. If the security involves farmland, it
is also necessary to proceed with the Court application process
under FFPA though on June 1, 2021 the previous requirement to
involve the Manitoba Farm Industry Board in an additional round of
mediation was abolished.1

Notice Requirements

While the specific statutory notices will vary depending on
circumstances, at least two, and sometimes three, separate forms of
notice may have to be given by a secured creditor along with the
traditional demand letter before even considering moving on to the
next stage of the enforcement process. These are as follows:

1. Notice of Intention to Enforce Security under Section 244 of
the BIA

This Act applied to secured creditors who intend to realize on
security on any insolvent person, not just farmers. This is a
prescribed form (BIA Form 86). This notice must be utilized where
the secured creditor contemplates taking possession or control of
“all or substantially all” of: the “inventory”,
“accounts receivables” or the “other property”
of an insolvent person.

What that means is that the secured creditor cannot take any
steps to realize on that security until either expiry of 10
calendar days following service of the notice or once the debtor
waives the notice in writing after service. If the debtor has not
sought protection under the proposal provisions of the BIA within
that 10 day period (and thereby obtained a stay against the
creditors) the secured creditor may proceed with its remedies. The
BIA has specific provisions for the creditor to seek the
appointment of an interim receiver prior to expiry of the 10 day
period in the event that it is necessary for the protection of the
interests of the creditor or the debtor’s estate.

2. Section 21 FDMA Notice of Intent by Secured Creditor

Any creditor who seeks to enforce its security as against any
property of a farmer must serve the prescribed form of Notice of
Intent to Realize on Security under this legislation. This is a 15
business day notice and requires actual service on the farmer or as
prescribed under the regulations. This notice not only give the
farmer notice of the secured creditor’s intention but of the
right to make application for protection under the FDMA. Unlike the
BIA, there is no obligation on the farmer to seek protection under
FDMA prior to expiry of the notice. A farmer may, and often does,
delay applying for the stay until it has the most strategic benefit
– such as when the bailiff arrives or just before a mortgage
auction sale or before the final Order for Foreclosure can be
filed. During the notice period the secured creditors is prohibited
from taking any proceeding or steps in a proceeding, judicial or
extra-judicial which would have the effect of taking the farmers
property. Pursuant to Section 22 any steps taken by a creditor in
violation of this notice are deemed to be “null and
void”. While the statute does not specifically state that the
notice cannot be waived it is the position of the Minister of
Agriculture that no such waiver would be recognized as it would be
contrary to public policy. The Courts have also held that the right
afforded under the FDMA cannot be waived: Intec Holding v.
Grisnich
 2003 ABQB 993 additional reasons at 2004 ABQB 43
(CanLii). More significantly, it does not matter that the parties
mediated and negotiated a settlement before the notice is sent.
The Intec Holdings case recognized that the
farmer could take advantage of the mediation agreement and still
set aside the foreclosure proceedings because the creditor had not
complied with FDMA Section 21.

3. PPSA Section 37(7) Notice Regarding Seizure of Growing
Crops

If the secured creditor is contemplating seizing “growing
crops” it must first give a 15 calendar day notice to not only
the debtor but any other party that may have an interest in the
growing crop or the lands on which they are being grown. Any
recipient of the notice may apply to Court for an Order postponing
its removal.

An interesting question is whether any or all of these notices
can be served concurrently. My own view is that notwithstanding the
different time/notice periods, the secured creditor can serve all
three at the same time. I am not aware of any case which
specifically addressed this issue, but I do know of several counsel
in this province who take the position that a more prudent practice
is to serve the FDMA Notice of Intention and await expiry of the 15
business days before serving any other notices. The concern is
whether or not these other notices could be construed as a step in
a proceeding and thereby trigger the possibly devastating
consequences of Section 22 of the FDMA2. My view is that
as all of these notices are conditions precedent to either
enforcement or commencing proceedings and therefore can be issued
concurrently without violating the FDMA.

Please note the holder of a guarantee is not considered a
secured creditor nor obliged to give a FDMA notice, unless that
guarantor is a farmer and has provided collateral security in
support of the guarantee: CIBC v.
Verbrugshe
 (2006) Carswell Ont 3502 and 4461
(Ont.S.C.J.).

Stays of Proceeding Under the FDMA

An insolvent farmer may apply for a stay of proceedings as well
as financial review and mediation through the Farm Debt Mediation
board. The full nature and extent of this stay is set out in
Section 12:

“Notwithstanding any other law, during any period in which
a stay of proceedings is in effect, no creditor of the farmer:

(a)shall enforce any remedy against the property of the farmer;
or

(b)shall commence or continue any proceedings or any action,
execution or other proceedings, judicial or extra-judicial, for the
recovery of a debt, the realization of any security or the taking
of any property of the farmer.”

As was the case with the FDMA notice referred to above, any act
done in contravention of this stay is deemed to be “null and
void”. The consequences of such contravention cannot be any
more clearly set out than in the unfortunate situation
of M & D Farms Ltd. v. MACC 1999 CanLii 648
(S.C.C.). This case arose under the similar provisions of the FDMA.
Clearwater, J. at first instance identified the farmers’
conduct in abusing the system and multiple utilization of FDMA
stays as “almost unconscionable” and “almost
inexcusable”. Notwithstanding the farmers’ conduct, when
MACC proceeded with the application for leave under FFPA
notwithstanding the FDMA stay, the Supreme Court of Canada held all
of the subsequent steps in the proceedings to be a nullity. It set
aside eight years of mortgage sale proceedings and related
litigation (not to mention untold legal fees and administrative
costs) and forced MACC to transfer back the lands which had been
foreclosed upon to the farmer before it could then start the entire
farm mediation process all over again.

Upon a farmer’s application, the Farm Debt Mediation Board
will grant an immediate 30 day stay and has the power to grant
three additional 30 day stays for a total of 120 days. Furthermore,
under Section 20(1) the farmer may re-apply every two years to go
through the process again.

During the stay the Farm Debt Mediation Board will conduct a
financial review and appoint a mediator for the purposes of
endeavouring to reach a mutually acceptable arrangement. There are
provision dealing with earlier termination of the stay where an
arrangement is not possible or where the farmer jeopardizes the
assets. In most situations the affected farmer will be appointed
guardian of his own assets although the administrator of the board
can nominate another qualified person selected by the secured
creditors or the administrator.

Applications under the FFPA

Except for farm machinery and equipment finance through dealers
under The Farm Machinery and Equipment Act, once the
applicable notices and/or any FDMA stay has expired, secured
creditors may proceed with enforcement remedies against the
personal property charged under the security. In other words, the
secured creditor can seize, sell, appoint a receiver or take any
other relief provided under the security without the need for any
further application. This is not the case with farm land.

The FFPA prevents a creditor from pursuing mortgage and other
remedies on farmland including proceeding for sale, possession,
receivership or foreclosure unless leave has been granted by the
Court of Queen’s Bench. By virtue of Section 22 of the FDMA
this FFPA application cannot be filed concurrently with service of
the Section 21 FDMA Notice.

To satisfy the requirement of the FFPA, a Notice of Application
must be filed in the Queen’s Bench. While the Applicant can
file the initial Application in any Judicial Centre the affected
farm may seek to transfer the proceedings to a more convenient
Judicial Centre. Once the application has been filed it must be
served upon the affected farmer within 30 days.

Prior to May 20, 2021 a statutorily prescribed application form
was required to initiate the Court application which has to be
served upon the Manitoba Farm Industry Board which was then obliged
to mediate and provide a report to the Court within 90 days. This
mediation process was not unlike what would have already been
pursued under the FDMA. The involvement of the Manitoba Farm
Industry Board, the additional mediation and the requirement for a
Court Report were abolished in 2021 with the proclamation
of The Reducing Red Tape and Improving Services
Act
 S.M. 2021 c.48 ss. 8 to 10. However, the FFPA
Regulations have not kept up with the 2021 amendments and the Court
of Queen’s Bench is currently (Summer 2022) requiring that the
prescribed application form be appended to the Notice of
Application with appropriate deletion of the Manitoba Farm Industry
Board references.

With the 2021 amendments the creditor can simply set the hearing
date at the time of filing the Notice of Application together with
supporting Affidavit material detailing the history of the
relationship, difficulties between the parties and related
financial information to enable the Judge hearing the matter to
determine if the Leave Order under FFPA should be granted.

The farmer must receive at least 15 days’ notice of the
hearing unless the Court can be persuaded to abridge the notice
period.

The decision on whether or not to grant the creditor leave to
proceed with its remedies are at the “discretion” of the
presiding Judge. Section 9(8)(b) does say that a Judge can grant
the relief sought if he or she is “satisfied that it is just
and equitable to do so”. That said, FFPA s. 9(4) sets out the
factors the Judge may consider:

“When making a decision under subsection (3.1), the court
may consider any factor, condition or circumstance it considers
relevant, including the following:

(a)whether any agreement might be reached between the applicant
and the affected farmer with respect to the issues giving rise to
the application without the necessity of further proceedings;

(b)whether the affected farmer is likely to receive financial
assistance or concessions from any creditor or from any other
source in an effort to satisfy the issues giving rise to the
application;

(c)the effect of factors beyond the control of the affected
farmer which may account for the issues giving rise to the
application, including any general or local adverse agricultural,
economic and climatic conditions such as an inability to market
agricultural products, depressed prices for agricultural products,
high costs of production hail, flood, drought, frost or
agricultural pests;

(d)the financial capacity of the affect farmer and the affected
farmer’s farming operation to meet existing and anticipated
cash flow requirements;

(e)the value and condition of the farmland which is described in
the application, including its state of cultivation;

(f)the impact of the loss of the farmland which is described in
the application on the ongoing viability of the affected
farmer’s farming operation;

(g)the impact of the loss of the farmland which is described in
the application on the affected farmer, the affected farmer’s
family and the community of which the affected farmer is a
part;

(h)the farming and financial management skills of the affected
farmer;

(i)whether the affect farmer is making a sincere and reasonable
effort to meet the obligations incurred by the affected farmer in
respect of the affected farmer’s farming operation.

Existing jurisprudence  highlights four
factors for consideration before exercising the Judge’s
discretion on whether or not it is “just and equitable”
to grant relief:

(a)Is there any indication that the farmer will ever be able to
repay the debt;

(b)Is it likely that the farmer will be able to receive
financial assistance or concessions from any other source;

(c)does the debt by far exceed the value of the lands in
question; and

(d)Has the farmer presented or attempted to present a viable
plan as to how he would be able to arrange his affairs to
accommodate the mortgagee.

Arborg Credit Union Ltd v. McIvor et al 2011 MBQB
264 at para. 12

Typically the Court is fairly swift in dealing with otherwise
hopeless situations. However, if there is a substantive issue, such
as an interest rate dispute or a question as to the validity of the
security, the FFPA haring may be adjourned pending a determination
of the issue.

Once the Judge has made an Order there is a right of appeal to
the Manitoba Court of Appeal on question of law only.

Assuming that the Leave Order has been granted, the creditor can
then commence the legal proceedings necessary to commence mortgage
sale, foreclosure, receivership or other relief available under the
security.

Some counsel have endeavoured to shoe-horn into their FFPA leave
motions requests for substantive enforcement relief such as an
Order for Possession. My own view is that this is not appropriate
as FFPA Section 8 mandates that a Leave Order must be granted
before a creditor can “commence or continue” enforcement
activities. Recently, however, a mortgage lender was able to obtain
an Order for Possession without commencing a separate action or
application: Triple D Land & Cattle Inc. v. Dyrda et
al
 2009 MBQB 270, affirmed 2010 MBCA 5. It is
respectfully submitted that the facts
in Dyrda were unique insofar as that at the time
of the initial hearing, Menzies, J. was only prepared to grant the
FFPA Leave Order and then adjourned the balance of the relief
sought under the Notice of Motion. Almost a year later, the motion
was brought back on before Schulman, J. where counsel for the
farmer candidly admitted that his client was deliberately stalling
and that there was no defence to the relief sought. Needless to
say, Schulman, J. granted the Order for Possession. Subsequently,
Dyrda retained and instructed new counsel who brought the matter
back on before Schulman, J. on the grounds that the Order for
Possession should have been brought on by way of a separate
proceeding i.e. a separate Notice of Application or Statement of
Claim. Schulman, J. was not prepared to set aside his previous
Order nor grant a stay pending appeal as any procedural concern was
effectively waived by counsel’s candid admissions at the
previous hearings. The Court of Appeal acknowledge that the
Appellant’s position on the procedural defect was
“technically correct” but it still refused the appeal.
The point being that separate proceedings should be still taken for
enforcement relief aft eh Leave Order is granted.

It is also important to note that pursuant to Section 31 of the
FFPA any agreement to waive the provisions of that Act or to modify
or abrogate its effects are void. Furthermore, contravention of the
Act may leave the culprit susceptible to prosecution with a fine
not exceeding $50,000.00 or imprisonment for a term not exceeding
two year or both.

Commentary

What all this means is that any creditor which finds it
necessary to realize on its security from a farmer in financial
difficulty must be patient and prepared to slavishly follow the
notice requirements and participate in the mediation process. For
example, with personal property security the creditor could be
delayed four to five months after service of the Section 21 Notice
if the full extent of the FDMA stay were granted. If that creditor
also had a real property security it would likely be necessary to
tack an additional time to complete the provincial Leave
Application process under FFPA – and longer if the court
proceedings are contested.

These legislative hurdles have at least in part accomplished the
original objective of restraining secured creditors from enforcing
their security before the affected farmer has an opportunity to
mediate and/or restructure the farm operations. Prior to the
mid-1980’s a secured creditor who had lost patience with a
farmer could have appointed a Receiver over the farm with a few
days’ notice and liquidated the assets as quickly as local
market conditions permitted. The current statutory regime prevents
this from occurring.

Interestingly, the statutory delays have not in my experience
prompted creditors to expedite the statutory notices and mediation
in an attempt to jump start the process. Over the decades since
this farm protection regime was enacted, creditors have become more
pragmatic and will typically afford farms significant time in which
to try to overcome their difficulties. There may be other causes
for this but most financial institutions have learned that a bad
settlement may well be preferable to an otherwise successful
liquidation. They are prepared to do what it take to get a deal
done and to do so wherever possible with and without resort to the
various mediation boards. Accordingly, a great deal of the
“farm realization” work tend to result in voluntary
forbearance agreements and other negotiated arrangements long
before the creditors see fit to issue the formal notices. In other
words, our farm protection regime has created a temporary safe
harbor for farmers to weather the storm of financial difficulty and
negotiate mutually acceptable arrangements with creditors.

That being said, there are situations where the existing regime
poses serious and practical difficulties. For example:

What can a secured creditor do when the farm assets are
disappearing rapidly, whether by virtue of the aggressive
enforcement tactics of other stakeholders or in the admittedly rare
situation where the farmer is dishonest? What if the farmer has
effectively abandoned the farm operations but is not prepared to
consent to the lender taking control? The immediate reaction of
creditors and their lawyers is to try to “close the barn doors
before the horse gets away”. But how can you do that if the
section 21 Notice has not yet been sent, let along the 15 business
days expired under the FDMA?

At one time it was possible to distinguish between “the
stay” under Section 12 where a farmer has applied for relief
under the FDMA and the “stay” under Section 21 pending
expiry of the statutory notice period. A careful reading of the
distinctive language of the  two sections suggested that:

(a)The Section 21 stay prevents secured creditors from
exercising secured creditor remedies, but does not expressly
prevent exercise of unsecured creditor remedies. For example a
Mareva injunction or Prejudgment Attaching Order are not secured
party remedies. Similarly, where a secured creditor also has an
unsecured component to its debt, there was the opportunity to file
an application for Bankruptcy Order against a farm corporation or
partnership (though not individual farmers) and seek an ex
parte
 Interim Receiving Order under Section 46 of the
BIA. A Section 46 Interim Receiver does not actually take
possession or control of the farm property, but effectively creates
a monitor who can oversee the farmer’s actions and seek further
assistance from the court to maintain the status quo.
This was done in CIBC v. Bruce & Bob Stewart
Management (1994) Ltd.
, Unreported Manitoba Queen’s Bench,
March 5, 2001 Kennedy, J.;

(b)Section 21 does not have a provision which states
“Notwithstanding any other law”. Accordingly, if there is
some other legal basis for granting relief you may be able to
persuade the court to provide assistance. For example,
in Jacob’s Hold Inc. v. CIBC (2000) 28 CBR
(4th) 50 (Ont.S.C) Jarvis, J. granted a secured creditor
an Interim Receiver Order under Section 47 of the BIA which did in
fact permit the Receiver to take charge and control over the farm
assets even though the 15 business day notice period had not
expired. While this is an Ontario decision where there is no
equivalent provincial legislation to our FFPA, arguably there is an
operational conflict between the Provincial FFPA Leave requirements
and the Federal BIA’s jurisdiction to appoint Interim Receivers
in insolvency situations.  As such, the doctrine of federal
Paramountcy could be used to circumvent provincial farm protection
restrictions. Such a paramountcy argument was utilized to obtain a
BIA s. 47 Interim Receiver Order without complying with the
provincial FFPA requirements: Farm Credit Canada v. Mesa
Swine et al
, Unreported Manitoba Q.B. August 24, 2004
(McKelvey, J.)

However, more recent jurisprudence 
involving The Saskatchewan Farm Security
Act
 calls into question such attempts to circumvent
provincial farm protection regimes. For example, in HCI
Ventures Ltd. v. S.O.L. Acres 
2020 SKCA 24 the
Saskatchewan Court of Appeal upheld a decision where the secured
creditor who had not satisfied the FDMA notice requirement was
effectively stayed from exercising unsecured debt remedies and
rendered its civil action a nullity. More significantly, the
Supreme Court of Canada in Saskatchewan v. Lemare Lake
Logging
 2015 SCC 53 did not accept that the provincial
farm protection regime constituted an operational conflict with the
Receiver appointment provisions of the BIA.

If the farmer has already been able to apply for protection
under the FDMA and a Section 12 stay in effect, I do not believe it
is possible to utilize any of the extraordinary remedies referred
to above. Certainly, once that stay has been issued it is clear
that no step in any proceedings can be taken without risking
violation of Section 22 of the FDMA and certainly no bankruptcy
application can be issued or proceeded with until the stay
expires: Re North 40 Farms  (1999) 11 CBR
(4th) 82 (Registrar); (affirmed) Unreported Manitoba
court of Queen’s Bench, March 10, 199 (Steele, J. as she then
was). However, if a Receiver has already been appointed prior to
issuance of the stay, the Court might not interfere with the
existing appointment.

If the Section 21 stay is in place before the creditor obtains
adequate protection there are several options. Firstly, once the
farmer applies for a stay under Section 21 he is prevented from
disposing of any assets except with express consent of the
creditors. If the farmer’s conduct is jeopardizing the
security, the Farm Debt mediation Board is obliged to terminate the
stay. Secondly, it is possible to apply to the Board to substitute
guardians. As mentioned previously, ordinarily when a farmer make
application under this legislation the board leave the farmer as
the “guardian” of the farm assets. Pursuant to Section 16
of the FDMA the board can instead appoint “any other qualified
person” whether chosen by the board or by a secured creditor.
If the secured creditor selects a different guardian it would
likely be obliged to pay its costs. It is important to note that
the guardian’s duties are fairly limited and include preparing
an inventory, periodically checking on the existence and conditions
of the assets and advising the board of anything that would
jeopardize those assets.

What can you do if the FDMA notice period or stay has expired
but there is also farm land to be dealt with under the FFPA? In
those circumstances there is case law to support the proposition
that the creditor may appoint a Receiver and/or Receiver Manager
over all of the assets and undertaking of the
debtor excluding the farm land:

Portage Credit Union v. 620031 Manitoba Ltd. 
(1989) 59 Man.R. (2d) 308 affirmed (1989) 62 Man.R. (2d) 300
(Man.C.A.)

Another problem deals with settlement or Forbearance Agreements.
One downside of creditors preferring to negotiate settlements is
that certain aspects of our farm protection regime may limit or in
fact undermine the parties’ abilities to negotiate an
enforceable forbearance or arrangement. While you would assume that
the spirit and intention of the law would be complied with where a
voluntary settlement had been negotiated between the parties, this
may not necessary be the case.

For example, when negotiating with ordinary debtors on an
arrangement, the creditor is typically being asked to afford
additional time and perhaps even more credit in return for which
the debtor will provide a consent to enforcement on default thus
giving the creditor a “hammer” or leverage to enforce the
settlement. Similarly, in many civil litigation matters it is not
uncommon for Consent Judgments and Orders to be entered into
between the parties and held in trust until default. These I
believe to be generally accepted in practice and should be
supported and encouraged by the Courts in most circumstances on
public policy grounds as reasonably acceptable means of promoting
settlement.

Unfortunately, difficulties arise when the debtor happens to be
a farmer. As noted previously, a secured creditor must still serve
the FDMA s. 21 notice before taking any enforcement action even
though the farmer may have already consented to it under the terms
of a Mediation Agreement: Intec Holding v. Grisnick,
Supra
. Also, it does not matter that the farmer has
acknowledge service of the FDMA s. 21 notice and the 15 day period
expired, the farmer may still apply to the Farm Debt Mediation
Board for a stay provided that one has not been issued at least in
the last two years. Accordingly, even if the parties had agreed to
forebear for one or two years in return for a quit claim or
voluntary transfer of land, there is nothing to stop the farmer
from applying for a stay under the FDMA and delay enforcement of
the agreement. Just how long the Farm Debt Mediation Board would
let the stay continue in the face of a formal forbearance or
settlement agreement may be a matter of debate but it does not give
creditors a great deal of certainty that their willingness to
extend deadlines will be reciprocated with a clear cut remedy on
default. This can certainly be a fly in the ointment when
endeavouring to negotiate settlements and may be cause in some
circumstances for the creditor to not only issue all notice but
also require as a condition of forbearance that the farmer actually
apply for and exhaust its stay rights under the FDMA during the
forbearance period.

It is also tricky to deal with the FFPA when endeavouring to
negotiate settlements on farm land security. For instance, if at
the end of the forbearance period there is a default, the creditor
wishing to proceed with mortgage sale or appointing a Receiver
would still have to obtain a Leave Order from the Court of
Queen’s Bench. To expedite this process some settlement
agreement include a Consent for Leave from the affects farmer to be
held in trust by the secured creditor’s counsel. Unfortunately,
enforcement of such consent might be problematic: the
anti-avoidance provision of the FFPA are a concern. Section 31 of
that Act provides as follows:

“Every agreement or bargain, verbal or written, expressed
or implied, whether entered into before or after the coming into
force of this Act, that this Act or any part or provision of this
Act or any provision of any Act similar to this Act shall not
apply, or that any benefit or remedy provided by this Act or any
similar act is not available, or which in any way limited, modified
or abrogates or effects, limits, modifies or abrogates the benefit
or remedy, is void.”

It might be possible to argue that the Consent Leave should be
characterized as limiting, modifying or abrogating the benefit of
the FFPA. That said, it is clearly not a waiver and these devices
have been frequently used without objection in our Courts.

Fortunately, notwithstanding these difficulties, the overall
effect of the farm protection legislation in Manitoba has been
positive. Creditors are generally able to reach practical solutions
with farmers without the need for adversarial proceedings. While
they must still tread carefully with the procedural requirements of
the farm protection legislation, creditors should still be able to
protect and enforce their rights in the event a negotiated solution
can not be reached – it may just take more time.

Footnotes

The Reducing Red Tape and Improving Services
Act
 S.M. 2021 c.48 ss. 8-10

2 In Saskatchewan, the concurrent service of the
prescribed notice under the Provincial Farm Security
Act
 S.S. 1988-89, c.S-17 and the FDMA s. 21 notice was
found to be a nullity under FDMA s. 22: Chmil v. National
Leasing Group
 (2006) 29 C.B.R. (5th) 205
(Sask.C.A.). I am not aware of any case which suggests service of
the BIA 244 notice and the FDMA s. 21 notice concurrently would be
defective.

Originally presented at the Manitoba Bar Association
Mid-Winter Conference, January, 2003. It was updated and revised
for the 2011 Pitblado Lectures and again updated in June,
2022.]

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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Spurned California DAs turn to SCOTUS

Three California district attorneys are asking the U.S. Supreme Court to review a Ninth Circuit Court of Appeals ruling that denied their right to intervene in a lawsuit challenging the constitutionality of the state’s lethal injection protocol.

San Bernardino, Riverside, and San Mateo County DAs Jason Anderson, Michael A. Hestrin, and Stephen M. Wagstaffe petitioned the Court for a writ of certiorari late last month. 

In 2018, a federal district court disqualified the district attorneys from intervening in a lawsuit filed by prisoners on California’s death row. The men challenged the state’s three-drug lethal injection protocol, arguing that it constituted cruel and unusual punishment. After Gov. Newsom put executions on hold in 2019, the plaintiffs and the state attorney general agreed to dismiss the litigation without prejudice since the question of the method was now moot. The district attorneys then attempted to intervene. After a federal judge denied their motion, they appealed to the Ninth Circuit, which found they had no standing in the litigation. A panel of the Ninth Circuit affirmed the lower court ruling in March.

So, the district attorneys are now turning to the Supreme Court.

“The first question is whether the Supreme Court will take this up. Ordinarily, such a convoluted and back-door attempt to advance a clear political agenda would be rejected. This is an attempt on the part of intervening” district attorneys to undermine the established power of a governor and attorney general. But we are not in ordinary times. This Supreme Court has been going out of its way to establish the power of prosecutors (and governors they like) to enforce unjust laws,” says criminal defense lawyer and DPF board member Robert M. Sanger. 

“This petition really has no basis. The hook they use is Penal Code section 3604.1, which was part of the hodgepodge that was Prop 66,” Sanger adds. “Their petition sounds like the offended DAs think they are empowered to roll up their sleeves and start injecting people themselves.”

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U.S. Supreme Court lets stand a factual error that could prove deadly

(Reuters) – The U.S. Supreme Court on Monday decided not to correct a factual error it made in a previous opinion, making it much more likely that two death row prisoners who have made credible arguments that the lower courts got their case wrong will be executed.

The court declined a motion to modify its ruling last month against Barry Jones and David Ramirez. Justice Clarence Thomas’ opinion in favor of Arizona included a line saying Jones and Ramirez had conceded that they would lose their appeals unless they were able to introduce newly discovered evidence. But the statement wasn’t true.

Both men were sentenced to death for murder. But Jones’ conviction has been overturned by lower courts in light of new evidence, and Ramirez’s claim of ineffective legal counsel has been backed by his own trial lawyer.

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The court’s decision not to modify the line means that a lower court could actually abide by that language. That would almost certainly reinstate the men’s death sentences because virtually all the exculpatory evidence in their cases was discovered only after their state-level trials (and before the ongoing federal-level appeals).

The Supreme Court’s conservative bloc ruled against Jones and Ramirez in May, holding that people can appeal to federal courts if their state-court attorney was incompetent but can’t actually introduce new evidence to support those claims. There is no need to allow new evidence, Thomas wrote, because that undermines states’ sovereign power to “enforce societal norms through criminal law.”

The ruling is in keeping with court’s stance since 2020, an approach that has seen the court repeatedly clear the way for executions after a 17-year hiatus, often in ideologically split decisions, and notwithstanding plausible innocence claims, or disagreement from lower courts, prominent conservative lawyers and even the (virtually apolitical) American Bar Association.

That anemic analysis in Thomas’ May opinion – a policy determination that it’s societally preferable to strictly limit post-conviction appeals, regardless of the weight of newly discovered evidence – underscored the conservatives’ indifference to the wrongful convictions epidemic (to say nothing of the judicial integrity concerns raised by that holding).

The inaction on Monday puts a fine point on it.

The justices declined to correct a single line in a previous ruling, even though the court frequently modifies its opinions, from small spelling errors to substantive statements of law, sometimes publicly and sometimes surreptitiously.

It did so even though Arizona, which refurbished its gas chamber last year and carried out its first execution in eight years in May, agreed with opposing counsel that the court should make the modification.

Moreover, the decision effectively punishes death-sentenced petitioners for the justices’ own mistake – even though the court forgave the same kind of misstep when the state seeking the death penalty was actually at fault. (More on that below.)

As a practical matter, the court’s inaction doesn’t condemn the men to death just yet. Their attorneys can rely on a few last-ditch arguments when the case goes back to lower courts – like judicial estoppel, which precludes litigants from taking positions that contradict their arguments in previous proceedings (here, the state’s agreement to the modification request indicates that it can’t also argue that Jones and Ramirez had in fact conceded that they can’t win without new evidence).

Arizona solicitor general Brunn Roysden III didn’t respond to a request for comment. Robert Loeb, an attorney at Orrick, Herrington & Sutcliffe who represents Jones and Ramirez, declined a request to comment, noting the sensitive nature of the litigation.

On its face, Thomas’ sentence essentially blocked Jones’ and Ramirez’ last remaining path to a successful appeal. It’s premised on a “use it or lose it” principle – a legal doctrine that says certain defenses are automatically forfeited if not raised by a certain point.

Jones and Ramirez “do not dispute, and therefore concede, that their habeas petitions fail on the state-court record alone,” Thomas wrote.

In reality, none of the parties or the state court actually argued or considered whether the appeals could be decided based solely on the state-court record, Loeb said in the June 3 motion for modification. In other words, it simply hadn’t been an issue, so there couldn’t have been a forfeiture.

Nor was the question presented to the Supreme Court for an answer.

The Arizona solicitor agreed with Loeb after a discussion, according to Roysden’s response to the motion. Roysden notified the Supreme Court that Arizona was fine with a correction clarifying that the court had not made a formal finding that Jones and Ramirez conceded that they lose on the state record alone.

Supreme Court corrections aren’t as rare as they might sound.

The justices make sometimes glaring factual and legal mistakes, including in landmark decisions, according to a ProPublica report in October 2017.

Relatedly, on Monday, the court’s liberal justices wrote that the majority “misconstrues the facts” in a watershed ruling that realigned the legal principle of separation of church and state in the U.S. The majority opinion in that case described a football coach’s post-game prayers as “quiet” at least 14 times, but that’s a misrepresentation, as the dissenting justices (and a lower court judge) pointed out.

Besides errors, corrections are also surprisingly common. The justices often modify opinions “for the Court and for themselves individually for wide-reaching and potentially open-ended reasons,” according to a seminal 2014 research paper on the topic by Harvard Law School professor Richard Lazarus.

What’s more remarkable, Lazarus said, is that the court was only transparent about this practice for a fleeting period – during the 1930s and 40s. The court made changes before that period and has continued to ever since, “only in a far less transparent fashion.”

Here, the court rejected an opportunity to transparently correct a factual error of its own making and one that makes it more likely that two men will be put to death.

To make matters worse, Arizona actually made the same mistake that Thomas inaccurately ascribed to Jones and Ramirez – but the Supreme Court simply discounted the state’s omission.

Ramirez argued that it was in fact Arizona that had forfeited one of its main arguments: The state did not object to the introduction of new evidence in the initial appeal, and so it was barred from arguing to the Supreme Court that Ramirez is precluded from introducing new evidence, Ramirez maintained.

“Because we have discretion to forgive any forfeiture, and because ‘our deciding the matter now will reduce the likelihood of further litigation’ in a 30-year-old murder case, we choose to forgive the State’s forfeiture,” Thomas wrote in May.

The court’s refusal to correct its own potentially deadly mistake is a stark illustration of how far the new conservative justices will go to exert their power.

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Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Thomson Reuters

Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com

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Furman v. Georgia – Death Penalty Focus

Fifty years ago this week, the United States took a historic step toward a more fair, humane, less racist criminal justice system.

On June 29, 1972, the Supreme Court ruled, in Furman v. Georgia, that the death penalty constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The decision halted executions nationally, and more than 630 people sentenced to death in the U.S. were resentenced to life in prison.

In the majority were Justices William O. Douglas, William J. Brennan Jr., Potter Stewart, Byron White, and Thurgood Marshall. Dissenters included Warren Burger, Harry Blackmun, Lewis F. Powell, Jr., and William Rehnquist.

Three separate cases comprised Furman, and all three petitioners were Black men. William Henry Furman was convicted of murder in Georgia, and Lucius Jackson, Jr., and Elmer Branch were convicted of rape, Jackson in Georgia, Branch in Texas. All three were sentenced to death in their respective cases.

The enormity of the ruling was such that the Court issued a short per curiam opinion, and each of the nine justices wrote his own separate opinion, with Justices William J. Brennan, Jr., and Thurgood Marshall writing separate concurring opinions, further arguing that it was unconstitutional under any circumstances. 

“For the state to kill, the state denies the defendants’ humanity. Death is a uniquely severe punishment that is increasingly unusual in modern society,” Brennan wrote. “Its use presumes that there exist criminals who will commit a crime if the punishment is life in prison but will not commit a crime if the punishment is death; this assumption is blatantly wrong.”

Racism and the probability of executing the innocent were two of Marshall’s objections. 

I believe that the following facts would serve to convince even the most hesitant of citizens to condemn death as a sanction: capital punishment is imposed discriminatorily against certain identifiable classes of people; there is evidence that innocent people have been executed before their innocence can be proved, and the death penalty wreaks havoc with our entire criminal justice system,” Marshall wrote.

For Douglas, it was essential to acknowledge that the meaning of “cruel and unusual” is based on evolving standards of decency. “It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class,” he wrote. He emphasized the meaning of “unusual” and that a discriminatory, irregular punishment applied to only certain groups of people is unusual. Equal protection under the law is implicit in the phrase “cruel and unusual.”

This high point in American jurisprudence lasted only four years, until 1976, when capital punishment was reinstated in Gregg v. Georgia. The Court confirmed that capital punishment was legal in the United States, but under limited circumstances. It rejected automatic death sentences and said they can’t be characterized by “arbitrariness and capriciousness.” The ruling led to the use of presenting aggravating and mitigating circumstances in capital cases.

But the truth is that the death penalty is no more constitutional today than it was in 1972. The reasons cited in the majority’s opinions in Furman can be cited today. Capital punishment in the U.S. is just as racist, classist, inhumane, arbitrary, unjust, and barbaric as it was 50 years ago. The Death Penalty Information Center reports that since 1976, 8,281 men and women have been sentenced to death, and 1,547 have been executed. And in the last 49 years, the total number of people sentenced to death who have been exonerated based on evidence of innocence is 191. The National Academy of Sciences estimates that at least four percent of women and men on death row are innocent. 

“The death penalty. . . .  is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice,” Justice Stewart wrote. “And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.”

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RSS-Linked Muslim Body Muslim Rashtriya Manch Demands Death Penalty For Udaipur Tailor’s Killers

Udaipur Murder: RSS-linked Muslim body demands that these terrorists must be given harshest punishment.

New Delhi:

Muslim Rashtriya Manch (MRM) on Wednesday demanded capital punishment for those who brutally killed a tailor in Rajasthan’s Udaipur, calling them “terrorists and devils”.

In a statement, the RSS-linked outfit said the perpetrators of the “barbaric” incident have “disgraced” Islam and brought “disrepute and shame” to the “peaceful” Muslims in India and other parts of the world.

“The Manch is deeply shocked by such a heinous murder, and strongly condemns it,” the MRM said.

Two men armed with a cleaver allegedly killed Kanhaiya Lal in Udaipur’s Dhan Mandi area on Tuesday and posted videos online that said they are avenging an “insult to Islam”, triggering stray cases of violence in the Rajasthan city, a part of which was placed under curfew.

In a video clip, one of the two assailants declared that they had “beheaded” the man and went on to threaten Prime Minister Narendra Modi, saying their knife will get him as well.

“The Manch demands that these terrorists and devils be given harshest punishment. They must be hanged till death for the barbaric crime that they have committed. The government should set up a fast track court for the trial of the accused in the case,” the statement added.

The police have arrested Riaz Akhtari, the man who allegedly hacked at the tailor’s neck, and Ghouse Mohammad, who allegedly filmed the crime, and detained three others for their involvement in the case.

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)

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Rights of Accused Before and After Arrest in India

As per Article 21 of the Constitution of India, “No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India”. It also covers a just and fair trial without any arbitrary procedure, which confers that arrest should not only be legal but also justified. In this context, this article consists of the procedural and constitutional rights of the accused before and after the arrest in India. Except when exceptions are created, the accused person, unless and until provided otherwise, is considered innocent until proven guilty before the court of law. 

Rights of an accused person 

Rights to know the grounds of arrest 

1. Article 22 of the Constitution of India deals with the protection against arrest and detention in certain cases-

  • No person who is arrested shall be detained in custody without being informed, as soon as possible, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice.

2. Section 50 of the Code of the Criminal procedure (Cr.P.C.) states that the person arrested has to be informed of the grounds of arrest and his right to bail- 

  • Every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offense for which he is arrested or other grounds for such arrest.
  • Where a police officer arrests without warrant any person other than a person accused of a non-bailable offense, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

3. Section 50-A of the Code of the Criminal procedure (Cr.P.C.) talks about the obligation of the police officer making the arrest to inform about the arrest to a nominated person –

  • Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person to give such information.

4. Section 55 of the Code of the Criminal procedure (Cr.P.C.) deals with arrests when a police officer deputes a subordinate to arrest the accused without a warrant.

  • When any officer in charge of a police station or any police officer making an investigation under Chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest order in writing, specifying the person to be controlled and the offense or other cause for which the arrest is to be completed and the officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order. 

5. Section 75 of the Code of the Criminal procedure (Cr.P.C.) provides that the police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested and, if so required, shall show him the warrant.

A landmark judgment of Joginder Kumar vs. state it was held that although the police had the absolute legal powers to arrest a person in a criminal case, every arrest had to be justified. Arrests could not be made routinely, merely on an allegation or a suspicion of their involvement in a crime.

Every arrest should be made after the police officer reached a reasonable satisfaction after the Investigation that the complaint was genuine and bona fide, the accused was complicit in the Crime, and the arrest was necessary and justified. 1 

Right to be produced before the Magistrate without unnecessary delay 

1. Article 22 (2) of the Constitution of India provides that every person who is arrested and detained in custody shall be produced before the nearest magistrate within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of detention to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

2. Section 55 of the Code of the Criminal procedure (Cr.P.C.) stipulates that the subject to the terms of the arrest, a police officer who arrests without a warrant should produce the arrested individual without undue delay before the Magistrate with jurisdiction or a police officer in charge of the police station. 

3. Section 76 of the Code of the Criminal procedure (Cr.P.C.) states that the person who is arrested is to be brought before Court without delay. 

  • The police officer or other person executing a warrant of arrest shall without unnecessary delay, bring the person arrested before the Court before which he is required by law to produce such person: 

Provided that such delay shall not, in any case, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. 

Rights to be released on Bail 

Section 50 (2) of the Code of the Criminal procedure (Cr.P.C.) states that where a police officer arrests without warrant any person other than a person accused of a non-bailable offense, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. 

Right to a fair and just trial 

Article 14 of the Constitution of India states that every person is equal before the law means that every person in the dispute shall have equal treatment. 

The Supreme Court has held in several judgments that a speedy trial is guaranteed by Article 21 of the Constitution. The right to a speedy trial is first mentioned in that landmark document of English law, the Magna Carta. In the case of Huissainara Khatoon vs. Home Secretary, State of Bihar, the Hon’ble court held that the State could not avoid its constitutional obligation to provide a speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure a speedy trial, and whatever is necessary for this purpose must be done by the State. 2 

In Ashim vs. National investigation agency, Hon’ble Supreme Court held that the deprivation of personal liberty without ensuring a speedy trial is inconsistent with Article 21 of the Constitution of India. 3 

Right to consult a Lawyer 

1. Article 22 of the Constitution provides that no arrested person shall be denied the right to consult a legal practitioner of his choice. 

2. Section 41D of the Code of the Criminal procedure (Cr.P.C.) provides that when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation.

3. Section 303 of the Code of the Criminal procedure (Cr.P.C.) deals with the rights of the person against whom proceedings are instituted. Any person accused of an offense before a Criminal Court or against whom proceedings are created under this Code may be defended by a pleader of his choice.

4. Article 39 A of the Constitution of India states that the State shall secure that the operation of the legal system promotes justice based on equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities.

In the landmark case of Khatri v. the State of Bihar, Hon’ble Justice P.N. Bhagwati made it mandatory for Session Judges to inform the accused of their rights to free legal aid and to advise individuals if they are unable to retain a counsel to defend themselves caused by poverty or destitution. 4 

In Sheela Barse v. Union of India, the Hon’ble Court ruled that a person’s fundamental right to a speedy trial is contained in Article 21 of the Indian Constitution5 . 

Also, in the case of Suk Das v. Union Territory of Arunachal Pradesh, Hon’ble Justice P. N. Bhagwati stated that India has many illiterate people unaware of their rights. As a result, it is critical to developing legal literacy and awareness among the general public and is also an essential component of legal aid. 6 

5. Section 304 of the Code of the Criminal procedure (Cr.P.C.) provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defense at the expense of the State.

Right to keep silence 

When a confession or statement is made in court, the magistrate must determine whether the announcement was made voluntarily or not. No one can be compelled to speak in court against their will. The right to remain silent is not recognized in any law, but it can be based on constitutional provisions or the Indian Evidence Act. The right to a fair trial is important because it helps ensure that people are treated fairly in court.

Article- 20(2) of the Constitution of India reiterates that no person, whether accused or not, cannot be compelled to be a witness against himself. This act of exposing oneself is the principle of selfincrimination.

In the Landmark judgment of Nandini Sathpathy vs. P.L. Dani & others, the Court noted that Article 20(3) existed in the form of general fundamental right protection and was available to every accused person in India. Still, its wording was not very specific about which situations it applied to. Also, no one can forcibly extract statements from the accused, and the accused has the right to keep silent during interrogation (investigation).

Right to be examined by a Doctor 

Section 54 of the Code of the Criminal procedure (Cr.P.C.) stipulates that when a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody, that the examination of his body will afford evidence which will disprove the commission by him of any offense or which will establish the commission by any other person of any crime against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for vexation or delay or for defeating the ends of justice.

Additional rights available to an arrested person 

1. Section 55A of the Code of the Criminal procedure (Cr.P.C.) deals with the health and safety of an arrested person- It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. 

2. Section 358 of the Code of the Criminal procedure (Cr.P.C.) deals with the compensation to persons who got arrested groundlessly- 

  • Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding [one thousand rupees], to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.
  • In such cases, if more persons than one are arrested, the Magistrate may, in like manner, award to each of them such compensation, not exceeding [one thousand rupees], as such Magistrate thinks fit. 
  • All compensation awarded under this section may be recovered as if it were fine, and, if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs unless such sum is sooner paid.

3. Section 41A of The Code of the Criminal procedure (Cr.P.C.) provides the notice of appearance of arrested person before a police officer. 

  • The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offense, to appear before him or at such other place as may be specified in the notice.
  • Where such a notice is issued to any person, it shall be that person’s duty to comply with the terms of the notice.
  • Where such person complies and continues to adhere to the notice, he shall not be arrested in respect of the offense referred to in the notice unless, for reasons to be recorded, the police officer believes that he should be arrested.
  • Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court on this behalf, arrest him for the offense mentioned in the notice. 

In Arnesh Kumar vs. State of Bihar &Anr, the Supreme Court had inter-alia directed that the notice of appearance in section 41A CrPC should be served on the accused before making the arrest. The Court had issued the direction to prevent unnecessary arrests, which, in the opinion of the Court, bring humiliation, curtail freedom and cast scars forever. The endeavor of the court was to ensure that police officer do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. The Supreme Court also gave the following directions:

  • All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C.;
  • All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); 
  • The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the magistrate for further detention;
  • The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
  • The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
  • Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; 
  • Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction. 
  • Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

The judgment of the Supreme Court in Munawar Vs. The State of M.P., since the police had failed to issue a notice under Section 41A Cr.P.C., as mandated by the Supreme Court in Arnesh Kumar Vs.the state of Bihar, the applicants ought to have been straightway admitted to interim bail .

4. Section- 46 of the Code of the Criminal procedure (Cr.P.C.) stipulates the mode of arresting an accused person, including submission to the custody by the accused, physically touching the body, or to a body.

Except when the person to be arrested is accused of an offense punishable by death or life imprisonment, when the accused person is attempting to resist his arrest by becoming violent and aggressive unnecessarily, or when the accused is trying to flee, the police officer must not cause the death of the accused person while attempting to arrest the person.

5. Section 49 of the Code of the Criminal procedure (Cr.P.C.) stipulates that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

In D.K. Basu vs. State of West Bengal Supreme Court held that under Section 49, the police are not permitted to use more restraint than is necessary to prevent the person’s escape. The court further stated that the police officer would be held in contempt of court and subject to a departmental inquiry if they could not carry out his duties correctly. Any High Court with jurisdiction over the case above may be approached for such a dispute. 

6. Section 41B of the Code of the Criminal procedure (Cr.P.C.) states the arrest procedure and duties of the officer making an arrest. Unless the memorandum is attested by a member of his family, inform the person arrested that he has a right to have a relative or a friend named by him be informed of his arrest.

7. 41D of the Code of the Criminal procedure (Cr.P.C.) stipulates that when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation. 

Conclusion

Modern constitutional law has come a long way in terms of protecting and safeguarding the rights of persons guilty of crimes. Patrol officers are especially prone to making mistakes since they serve under public scrutiny and are expected to achieve speedy results. India has a significant problem with illegal arrests and custodial deaths, primarily caused by unlawful arrests. According to India’s legal system, which supports the concept of “Innocent until proven guilty,” an accused person has certain rights as an arrested person that are untouched whenever a police officer knocks on his door to make an arrest. The Supreme Court of India in D.K. Basu vs. West Bengal is not being effectively implemented. There should be proper execution of provisions and guidelines stated in this case to ultimately assist in decreasing the proportion of illegal arrests and resulting custodial deaths.

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At least two of the 25 men OK plans to execute have strong innocence claims

The Oklahoma City law firm that conducted a pro bono independent investigation into the case of Richard Glossip, the second in line of the 25 men Oklahoma Attorney General John O’Connor is seeking to execute beginning in August, released its findings earlier this month. Its statement was unequivocal.

Considering the facts we uncovered, and that there exists no physical forensic evidence or credible corroborating testimony linking Glossip to the crime, our conclusion is that no reasonable juror hearing the complete record would have convicted Richard Glossip of first-degree murder.

Glossip has been on death row since 1997, convicted of engineering the murder of Barry Van Treese, the owner of a motel where Glossip worked. The actual killer, Justin Sneed, serving a life without parole sentence, implicated Glossip as the crime’s mastermind. Glossip has always maintained his innocence, and in February, an ad hoc committee of state legislators asked the law firm, Reed Smith, to conduct an investigation. The result is a 343-page report concluding that “Glossip’s 2004 trial cannot be relied on to support a murder-for-hire-conviction. Nor can it provide a basis for the government to take the life of Richard E. Glossip.”

The report was all Republican state representative Kevin McDugle, a death penalty supporter, needed to hear. He vowed that if the state goes ahead with its plans to execute Glossip, “I will fight in this state to abolish the death penalty simply because the process is not pure,” CNN reports.

Tremane Wood, sentenced to death in 2001, is also on the state’s list of 25 execution requests. UPI reports that he filed an appeal this month, saying his lawyer was ineffective because of his cocaine addiction. 

Wood’s brother, Zjaiton “Jake” Wood, confessed to the killing of Ronnie Wipf during a botched robbery and was sentenced to life in prison, but Tremane Wood, who was present, was sentenced to death. His current lawyer said “Jake” Wood avoided a death sentence because he was represented by three experienced public defenders, while Tremane was represented by “a contract lawyer who received a meager flat fee” to represent him, according to UPI. The lawyer, Johnny Albert, provided an affidavit admitting to not being adequately prepared for Tremane Wood’s case.

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Prosecutors seek death penalty for man charged in random St. Pete shootings

The Pinellas-Pasco State Attorney’s office plans to seek the death penalty against a man police say shot randomly chosen people in St. Petersburg’s Bartlett Park neighborhood and elsewhere in the Tampa Bay area, according to court records.

Police arrested Johnny Carnegie, 34, in April in connection with the shooting deaths of Vernon Williams, 60, and Corlenzo Williams, 24, who were killed two days apart.

According to a search warrant connected to the case, each of the victims was walking in St. Petersburg in the early morning hours when they were shot by a man driving a Lincoln MKZ. Police said the man pulled over to have a conversation with the people before shooting them.

A third victim came forward to police, telling them a man driving a silver four-door vehicle approached him and asked for a “light” before holding a gun to his head. The victim ran away and was not injured.

Carnegie was later arrested on a warrant charging him with aggravated battery with a deadly weapon. Police described an incident similar to the St. Petersburg shootings, saying Carnegie pulled out a gun on a man getting out of a car in the parking lot of the Warehouse Bar, at 4023 W Gandy Blvd. in Tampa. Carnegie appeared to act without provocation, police said.

Carnegie faces two first-degree murder charges and an attempted first-degree murder charge in the St. Petersburg shootings.

In the state attorney’s notice of intent to seek the death penalty, prosecutors noted two aggravating factors: Carnegie has been convicted of “another capital felony or of a felony involving the use or threat or violence to the person” and prosecutors believe the killing was “cold, calculated, and premeditated.”

Assistant state attorney Courtney Sullivan said Carnegie’s prior felony is an aggravated assault on a law enforcement officer charge from 2006. She added that when a person is charged with two first-degree murders, one of the charges can act as an aggravating factor when prosecutors are seeking the death penalty.

Carnegie’s lawyers with the Pinellas-Pasco Public Defender’s Office did not immediately return calls seeking comment.