Flip Your Wig for Justice Day is February 26, 2015. A collective of non-profits are fundraising in support of access to justice programs in Ontario. Yes, funding is critical to support access to justice.
I believe we need more than funds. We need a shift in paradigm to support access to justice in the criminal context. We need distance from outmoded ways of thinking. We need more ‘out of the box’ thinking to best ensure meaningful, cost- efffective and timely access to justice in the criminal courts.
I went to law school, at least, in part to gain the confidence and intellect to make a meaningful difference in our society. One of the ways in which I have chosen to make this difference is by defending people, all kinds of people, the good, the ‘bad’ and the ‘ugly’ from allegations brought by the State that they are criminals and deserve punishment. I liken my role to that of both i) a referee, as I ‘blow the whistle’ when I perceive the State is crossing the proverbial line, whether it is the Crown, the Judge, or the police; and ii) a storyteller, in that my voice can receive the narrative of my clients’ predicament and shape it for its best presentation. I help my clients navigate the often unwieldy and uncaring criminal justice system, to best safeguard their liberties and freedoms.
Access to the courtroom to litigate a matter is expensive. In a criminal courtroom, we have Judges, Crowns, court reporters, court clerks, court officers all of whom get paid out of the public purse. Courtrooms need technology and infrastructure, and heat. The bricks, mortars and staffing of a courtroom I reckon can run up to $10,000 out of the public purse.
In England, the Government is dramatically hiking court fees (upwards of 600%) to defray the the pinch to the public purse for civil disputes. Senior judges and lawyers are concerned about this impact on they are hiking the fees to file civil litigation briefs upwards of 600%. Lawyers and judges alike are concerned about the access to civil justice for small to medium enterprises and litigants. http://www.theguardian.com/law/2015/jan/19/dramatic-increases-court-fees-deep-concern-senior-judges We grapple with similar conundrums in Canada.
The criminal courtroom has similarities to a civil courtroom and its financial considerations. When a litigant insists on his or her day in court, that day costs the taxpayers. There is a not very subtle belief that underlies the criminal arena. This belief flies in the face of the Canadian constitutional entitlement to be presumed innocent., section 11(d) of our Charter. The belief is that the police get it right, and do it right, and that there is little if any role for criminal defence attorneys. This belief runs deep and causes resistance when defence lawyers ‘blow the whistle’ or attempt to tell their clients’ tales, whether before trial or at trial. The resistance is built in to innumerable remands, Crown pretrials, and Judicial pre-trials, where quite often, the State simply wants to talk sentence not substance. Criminal defence attorneys are at times treated like ‘rink rats’ who are an obstacle to the State getting their man.
There are legions of hardworking Crowns, police and Judges that will listen and will withdraw where appropriate. But the system is not working optimally. It is tough to get a Crown to sit down with the brief and review it. The flow of the process is towards pleading guilty, not to sitting down and mediating to withdrawals or other solutions. Crowns have significant time challenges such that they are well versed in the nuance of a criminal brief on trial day, not very often before. A colleague of mine quipped this morning, ” There is nothing that focuses the mind like an execution in the morning.” Charges get stayed, or withdrawn on trial day, whereas if Crowns had the time, resources and training to meaningfully dialogue with defence counsel before trial dates were set, I believe we could engender a significant reshaping of the ‘access to justice’ issue in the criminal justice context.
I embrace a less pugilistic approach to criminal lawyering than I used to. I am for the most part, an ‘outlier’. An out-of the box thinker.
I mediate, I cajole, I negotiate wherever possible. I ‘power point’ reasonable doubt for my opponents. I prepare transcripts of the complainant’s statements and compose charts for my opponents of the improbabilities. I do this because legal aid is not available for most and hiring a criminal attorney to conduct a trial of any length is a very expensive endeavour. Unlike the civil system, where if a litigant is unable to fund the lawyer, the civil lawyer can generally bring an application to get off of the record, in criminal courts, the Judges are very keen to have a lawyer ‘on the record’ as once the lawyer is ‘on’ it is very difficult to get ”off the record’. Having a lawyer ‘on the record’ allows the proceeding to have the veneer of being fair. One of the inherent difficulties in being on the record in criminal proceedings these days, is that the State has the power to control access to the courtroom, and call the evidence. While a day may be set aside to hear the matter, many other matters can be put on top of your one day matter, such that your one day matter, may end up being three days of the lawyer’ time. The criminal lawyer either has to be able to see into the future for this sort of eventuality or ‘eat the difference’ or simply take on too many clients to care if this happens.
As just one example, of the financial risks a criminal defence lawyer is exposed to – I was once on record on a complicated regulatory trial matter. The client was paying me, in part out of the proceeds from the sale of his home. Just after the trial commenced, a related regulator from outside of Ontario, froze all of my clients’ assets. I was on the record for a lengthy trial with a client with a bank account that was just shot to zero, courtesy of the State.
As part of my mission to try to make a difference, I have been on a mission to explain to jurists and Crowns that I would prefer to exhaust avenues of resolution, including ‘showing my hand’ if necessary, rather than having my clients clean out their bank accounts to pay for a trial in advance if I believe on a thorough assessment of the evidence that an acquittal is the most likely outcome.
I encounter resistance with this approach. Not all of the time. But certainly some of the time. Crowns that know me, are used to this approach, and I believe, welcome it.
Police officers have noted up their notebooks with notations about my calling them repeatedly. I gather they find my approach disarming when they first encounter it.
I have had some Judges get rather exercised as to why a lengthy period has transpired without my setting a date for trial for my client. Most recently this occurred in the Toronto Superior Court. The Crown’s office was adamant that there was a reasonable prospect of conviction in a sexual assault matter. I was equally adamant that with a proper assessment of the disclosure and the complainant’s preliminary hearing evidence, an acquittal following a trial was a foregone conclusion. I stood my ground for months. I prepared my arguments and persisted in my approach, unyielding until the Crown had the time to look at the matter. They just informed me they agree and the charges are withdrawn.
Had I not persisted, the trial most likely would have already occurred, and the result would have been an acquittal. However, the client would have been forced to pay for the trial, both financially and with the emotional stress that comes from being an accused in a trial. The taxpayer would have had to pay for the trial too.
In another case I am working on, I am embracing a ‘restorative justice’ solution. The charge is one that normally would not be the sort that would be ‘diverted’ or subject to ‘Justice on Target’ which is a cost-saving access to justice solution, that works in part. This particular case requires real ‘out of the box’ thinking Crown and police officers. Fortunately, I appear to have these in this case. When we achieve our ‘restorative justice’ solution to the charges against my client, I hope that my Crown, the police and I can all ‘flip our wigs’ not only for ‘access to justice’ but for having the wisdom and imagination to see that the accused and their accusers may both be better served by alternatives to the adversarial system.