Torture Logic

The Law Society of Upper Canada case linked below (and here) has another aspect – the accused attorney contends that he was tortured!

Mr. Sumner says that Mr. Kochis engaged in torture when he used his position of authority to coerce or extort him into signing the Waiver of his rights to a civil remedy against his former roommate. Mr. Sumner argues that the communications he seeks to exclude were derivative to the torture under which he signed the Waiver and are covered by the principles on exclusion of evidence obtained by torture.

The Society opposed the granting of the motion on the basis that the evidence did not support the conclusion that Mr. Sumner was tortured or that the communications it seeks to rely on in this application were obtained as the result of torture or were derivative of the torture…

 Mr. Sumner argues that Mr. Kochis, by virtue of his position as the assistant district attorney responsible for responding to Mr. Sumner’s application for a Declaration of Factual Innocence, was a person in a position of authority. Mr. Sumner argues that, by withholding his consent or non-opposition to the grant of the Declaration, Mr. Kochis used his position to coerce or extort Mr. Sumner into signing the Waiver. Mr. Sumner says he signed the Waiver out of fear that the state would otherwise oppose the grant of a Declaration of Factual Innocence and out of fear for damage to his reputation if it was not granted.

In order to find that there was torture at the hands of a public official, there must be evidence of intentional infliction of pain and suffering. There is no evidence on which we can find that Mr. Kochis intended harm to Mr. Sumner.

Mr. Sumner acknowledges that the Law Society is not seeking to rely on the Waiver but argues that the communications the Law Society seeks to admit are derivative to the torture that coerced his signature on the Waiver. In order for evidence to be derivative, there must be some plausible connection between the event deemed to be torture and the evidence.

The facts do not support such a connection. There is no temporal connection between the original incident and the communications that the Society wishes to introduce. The alleged torture occurred in 2009, while the communications by Mr. Sumner were made starting in 2012 and continuing to the present.

There is also no causal or other connection between the original incident and the communications. There is no evidence that Mr. Sumner was subsequently forced to write emails or make the phone calls or any of the communications as a result of signing the Waiver.

The Society seeks to introduce these communications as evidence that Mr. Sumner has engaged in conduct unbecoming a lawyer. There is no evidence that Mr. Sumner was coerced, extorted or forced to author these documents, so as to require them to be excluded.

Another failed argument

Mr. Sumner’s last motion was brought on the basis that the Society’s motion for a partial electronic hearing made it an accessory to the behaviour of Mr. Kochis, such that the application should be stayed. The motion was dismissed.

Mr. Sumner argued that, in bringing its motion to have Mr. Kochis testify electronically, the Society is interfering with Mr. Sumner’s legal right to arrest Mr. Kochis.

The Criminal Code defines an accessory as:

23 (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.

Mr. Sumner’s intent was to arrest Mr. Kochis in Toronto if he attended to give evidence in this proceeding. The Law Society has no obligation to facilitate that arrest nor does it have any legal right to require Mr. Kochis to attend to testify in person. There is no evidence that, in bringing its motion, the Law Society is “receiving, comforting or assisting” Mr. Kochis in escaping arrest.

There is also no evidence that any of the Society’s investigators, the Proceedings Authorization Committee, or the Society’s counsel have the required intent to enable Mr. Kochis to escape after having committed an offence.

(Mike Frisch)