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Self Represented & Access To Justice (spliced from Diplock's AMA)


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#1 SSH2013

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Posted 03 January 2017 - 04:40 AM

I've taken a major research interest in access to justice issues, and I'm specifically interested in how access to justice is a problem for self-represented litigant's ("SRL's") in (a) criminal proceedings and (b) proceedings at administrative Tribunals, such as the Human Rights Tribunal of Ontario, for example. I apologize for the amount of questions I have, but I hope you can answer them! 

 

1.

 

What is your experience with SRL's in criminal defence? Do you commonly experience SRL's in the criminal justice system? 

 

2.

 

Do the courts attempt to accommodate SRL's? For example, do Judge's attempt to even the playing field between the accused and crown at trial? Do judge's intervene on behalf of the accused when the crown attempts to banter the accused with leading questions, etc? If they negotiate at all, does the Crown negotiate differently with an SRL as opposed to counsel? 

 

3.

 

Understanding that each crown is different, what is the general conduct of the crown like towards SRL's -- in your experience? Do they respect SRL's? Do they lessen their approach at trial (i.e., does an aggressive crown become a non-aggressive crown in an attempt to accommodate the SRL? Do they inform the SRL of their rights? 

 

4. 

 

Do you rely only on legal aid, or do you also provide assistance to those who are not eligible for legal aid? For those that are not eligible for legal aid, but also can't afford the costs of a lawyer, how do you help these individuals? ***As a sole practitioner, I understand that you need to make a healthy income, so this leads me to my next question***: How do sole practitioners sustain a healthy practice and livelihood, while attempting to balance the issues that commonly arise in access to justice? Is this something that is possible for sole practitioners? 

 

5. 

 

Have you ever defended a murder case, or some high-profile, stress-inducing, not-commonly seen case? If so, what the hell was that like? If not, would you ever want to defend a murder case, or some high-profile, stress-inducing, not-commonly seen case?  :razz: (note: I recognize that all cases are likely stress-inducing to some extent. I'm only referring to the big cases in this question -- murder, sexual assault, etc).  

 

Also, I'm not sure if this question has already been asked/answered, but I'll ask it anyway:

 

6. 

 

As you mentioned in an earlier post, the police have a job to do, and they do it. However, (and as I'm sure you know), there are times when the police violate the law in the execution of their duties. For example, if a police officer initiates a charge aganist an accused that has no standing, does the crown drop the charge, or do they proceed with it? I suppose an underlying question to this question is ----  what is the relationship like between the crown and police? Are the crown and police "buddies"? If a specific charge is brought aganist an accused that has no standing, does the crown still proceed with the charge (in the spirit of their friendship), or do they drop it and tell the police to grow up?  

 

Thanks in advance --- and I love this thread! 


Edited by SSH2013, 03 January 2017 - 04:58 AM.


#2 Diplock

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Posted 03 January 2017 - 06:11 AM

This is going to be a big answer, when I get to it. But I think I'm going to suggest that Hegdis (for some reason I assume it will be Hegdis) hive this off into a separate topic. It may require a lot of back and forth before we're done. Certainly I'll weigh in. But I may have the least to say among the criminal law practitioners, around here. Although there are interesting access to justice questions raised, by SSH, if your questions are really targeted at the experiences of self-represented litigants in the justice system, then I don't have a lot to do with them. By definition, if I agree to represent someone - even if I were to represent them for free - they are no longer a self-represented litigant. And if I'm not representing someone, I'm in no position at all to assist them. On the broadest theoretical level, the court can turn to any lawyer in the courtroom and direct us to assist someone. I mention that only because it's worth remembering that we are all officers of the court, bound to assist, and while we are retained by individual clients our broader duty remains. That's both historically interesting and still relevant, in terms of our wider duties. But practically speaking, we have duty counsel in court, and if there's a self-represented person flailing around the court is going to ask duty counsel to assist, not me. So yeah - I'll probably have the least to contribute here. MP is going to have a lot to say.

 

Will get back to this later. I have a non-self-represented person to attend to. =)


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#3 SSH2013

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Posted 04 January 2017 - 09:04 PM

I was wondering why this was removed from Diplock's thread. Initially, I thought I did something wrong, but I didn't receive a message so I wasn't sure.  :oops:  I like the idea of creating a thread for this; it provides more opportunity for others to contribute!

 

 So yeah - I'll probably have the least to contribute here. MP is going to have a lot to say.

 

When I was thinking of potential responses, I was specifically thinking of MP and you, so hopefully I receive answers from both. :) 



#4 Queensberry

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Posted 04 January 2017 - 11:33 PM

Most of these questions I'll leave to the practitioners, but you may want to take a look at the Crown policy manuals, especially re: your questions #3 & 6. AFAIK each province's manual is different, but all of them carry the same general principle of the Crown as a minister of justice rather than a pure adversary.

 

Here's the Ontario policy manual: https://www.attorney...glish/crim/cpm/

 

Your question #6 is answered (in theory, hopefully in practice) largely by the 'Charge screening' section. No reasonable prospect of conviction, it gets dropped. No public interest, it gets dropped. Absolutely never may a Crown proceed with a baseless, illegal charge. Also check out the Crown & police relationship section.

 

As far as I can help here as a law student rather than a practitioner, it seems that a big part of your concern is the role of the Crown. If you're researching for a paper (or out of interest, in which case kudos), you need to understand the foundational cases: Boucher (https://scc-csc.lexu...m/2741/index.do), Cook (https://scc-csc.lexu...m/1500/index.do), Stinchcombe (https://scc-csc.lexu...em/808/index.do) and Anderson (https://scc-csc.lexu.../14222/index.do). They all reinforce (or create) what I said above: the Crown is not, and cannot be, a pure adversary, but at the same time they cannot be 'buddy buddy' with anyone and go harder or easier out of personal sympathies. Not to the guy with Marie Henein or Brian Greenspan, and neither to the self-rep.


Edited by Queensberry, 04 January 2017 - 11:39 PM.


#5 artsydork

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Posted 05 January 2017 - 04:08 AM

Why are you excluding family law, where like 70% of cases are self-rep?

 

Re: #4. It's amazing how people can magically find some money when they realize that the government won't pay for their trial but that they're facing pretty significant consequences (like jail, house arrest or the like).

 

As Diplock mentions, duty counsel exists. In Ontario, the DC program is pretty substantial. They assist self-repped clients, clients whose lawyers can't make it (with that lawyer's instructions). Mind you, there is a financial eligibility threshold (32k for a person with 1 kid! Much higher than the certificate cut-offs, but still kinda low) to assist with a plea, bail variation request or crown resolution meeting. Duty counsel, for the most part, doesn't assist with trial. But student clinics do for summary offenses.

 

Counsel may be appointed to cross-examine for a self-rep (s. 486).


Edited by artsydork, 05 January 2017 - 04:15 AM.

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#6 kcraigsejong

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Posted 05 January 2017 - 10:59 AM

amount of questions

 

- Number. You have a number of questions.


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#7 Malicious Prosecutor

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Posted 05 January 2017 - 12:39 PM

I see I have been summoned!

 

So let's see where I can go with this...

 

Self-represented litigants are uncommon to rare in criminal law.  I've certainly dealt with them, but it's a small minority - at least when it comes to trials.  There are generally lots of options for people to obtain counsel.  Many people are able to retain private counsel, after all.  For those on limited incomes they will often retain junior counsel or articling students at steeply discounted rates.  There is legal aid of course, which covers anyone at risk of jail below certain income levels.  And finally there are law school clinics, who will serve anyone who is not at risk of custody.

 

So in order for someone to be a self-rep, they have to have income just above the legal aid cut-off, but not so high they can retain even an articling student.  They also have to have a matter that risks them going to jail (but which usually motivates someone to beg/borrow money for a retainer).

 

Someone mentioned family law, which really isn't my area, but it's true that's where you see the large majority of self-reps.  I think that's because family law matters have a habit of just going on and on seemingly without end.  Criminal law is much different - you get your trial, you get a decision, case is closed.

 

Now that's for trial.  It's pretty common for someone to walk up at their first appearance and say "I just want to plead guilty".  But even there there is duty counsel to assist, so they get the benefit of counsel that way.

 

Yes, courts will bend over backwards to assist a self-rep.  It depends on the judge but they'll typically give them a lengthy speech about their rights, and the trial process.  Nobody wants to see an appeal.  I don't understand the "banter an accused with leading questions".  Dealing with a self-rep is difficult as a Crown - you're always afraid that person is going to misconstrue, or deliberately lie, about what you tell them.  So you're careful to communicate only in open, preferably either in writing or with witnesses present.  The only time you would use leading questions is if the Accused testifies - when they're perfectly acceptable!

 

Dealing with a self-rep at trial of course the Crown is going to tell an Accused person about their rights.  We're not trying to trick people into being found guilty.  Do I "respect" a self-rep?  I try to treat them with all the dignity and respect that any human being should be treated with, but they're not subject to the law society or codes of ethics so I'm very, very careful with them as well.  Do I negotiate with them differently?  I don't think my offers are any different, but I have to be much more careful in explaining them, and again preferably in writing.

 

No, I've never dealt with a "serious" case with a self-rep.  Probably my most serious charges have been with Freemen, who really deserve their own thread (in fact I think there is one).  I know a colleague is in the midst of a 4-month-long QB trial with a self-rep - it sounds excruciating.

 

 

Finally, police-Crown relationships are a complex one.  We have different but complementary jobs to do.  I'm generally friendly with police (and count a few officers as genuine friends), but I'm also wary they're going to send a complaint to my superiors as well (and rarely, I've had to send in such complaints about officers to their superiors).  As well from time to time I'm asked to review and pass judgment on the actions of police officers for possible criminal charges.

 

Although BC is different, most jurisdictions work on a "charge review" model.  Police lay the charge.  Crowns then review the charge afterwards to make sure it is appropriate.  If the charge has no reasonable prospect of conviction I will kill it.  You'd never run a case just because the police tell you to.  Now if a case is on the line I may have a conversation with the officer to see if that officer can convince me to continue, but the decision is mine alone.


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#8 easttowest

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Posted 05 January 2017 - 01:22 PM

I did a quick search for "Freemen" because I really, really, really wanted to read that thread. 

 

Sadly MP's post is the only mention of the term.



#9 Jaggers

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Posted 05 January 2017 - 01:28 PM

I did a quick search for "Freemen" because I really, really, really wanted to read that thread. 

 

Sadly MP's post is the only mention of the term.

 

There is definitely some discussion on these guys. Try searching for "Meads".



#10 Malicious Prosecutor

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Posted 05 January 2017 - 01:35 PM

LOL - try searching for "fr33m3n" - mutliple hits.

 

I don't know that there's a unified thread, but they've been discussed numerous times.



#11 Draken

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Posted 05 January 2017 - 01:41 PM

Freeman, not freemen, also returns some hits



#12 Hegdis

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Posted 05 January 2017 - 01:41 PM

The alternate spelling is because they tend to google that word, and then show up en masse to argue their insanity.

You can imagine how attractive this forum would be.
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#13 epeeist

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Posted 05 January 2017 - 01:48 PM

Funnily enough, Meads showed up in Canlii's top 3 cases viewed this week (as reported by Slaw): http://www.slaw.ca/2...-on-canlii-197/



#14 easttowest

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Posted 05 January 2017 - 01:54 PM

Turns out my search settings were limited... to the scope of this thread. 

 

Much happy reading for me today. 



#15 Diplock

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Posted 05 January 2017 - 03:01 PM

The Canadian Bar Association offers various services at preferred rates to lawyers, including such things as life insurance. Maybe a tattoo and piercing shop has signed on?

 

Come to think of it, if one has, I'd like to know.


Edited by Diplock, 05 January 2017 - 03:02 PM.


#16 Diplock

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Posted 05 January 2017 - 04:09 PM

Okay. Finally got some time. Let's do this thing.

 

What is your experience with SRL's in criminal defence? Do you commonly experience SRL's in the criminal justice system?

 

Well, as noted in my first post, I don't really "experience" them as defence counsel, because everyone I represent is by definition not unrepresented. The only exception I can think of would be a case where there are co-accused, and one or more of the other accused persons are self-representing. That does happen, and in fact I can think of a colleague who is currently in a significant trial where there are self-represented accused and it's dragging on for exactly that reason.

 

I'm going to disagree with MP on the question of how common they are, however. And he's made a couple of odd comments that may strike me as odd only due to differences in provincial regulation and practice, but still, I'm having trouble parsing them. First, not in reply to MP but in general, someone assisted by duty counsel is still self-representing. Why? Because no one gets to retain and instruct duty counsel. They assist people, yes, but they aren't retained. I decline to get into what it would mean if we had a full-on public defender system, but it is possible to be assigned a lawyer and still retain them. That isn't what we do, in Canada - at least not in Ontario, and I don't think anywhere. Either you get legal aid and you retain someone, or you are "assisted" by duty counsel but not to the degree that they owe you what any other retained lawyer would owe you. Second, and at MP directly now, it may be possible to retain junior counsel cheaply (or just those of us who offer poverty rates) but I don't know what you mean by retaining an articling student. You can possibly retain a lawyer who employs an articling student, with the understanding that the student will do the bulk of the work under supervision, but that isn't the same thing. I note that because the definition of "retain" is so much at issue here.

 

Most particularly, I disagree with MP here, and I really don't know what he's trying to say when he says you'd need a matter where you risk going to jail to end up self-representing. Huh? Any case where you have no lawyer, any charge when you have no one to represent you, you are self-representing. The stakes may be lower in a case where the Crown isn't seeking custody, but it's still a criminal charge. Accused persons are still entitled to a defence, and that defence will either be mounted by some lawyer or by themselves. Is there an alternative I'm not aware of?

 

I think what MP is really saying is that practically speaking, when the stakes are low and/or when legal aid can't be obtained, many people simply end up taking some kind of deal offered by the Crown and the whole thing drops out of the system. That I would agree with. Of course when you put it that way it sounds worse, right? People simply giving up on defending themselves because they can't afford anyone to help. So I'm combining these points to say the following. Self-represented litigants are relatively common in criminal law. Any time someone pleads guilty "assisted" by duty counsel, they are self-repping. I'd agree it's relatively rare to see someone proceed to trial. But if you count by the total number of cases, rather than by how much time each case takes up, it's far, far more common. Just the cases where people are self-represented fold early.

 

Do the courts attempt to accommodate SRL's? For example, do Judge's attempt to even the playing field between the accused and crown at trial? Do judge's intervene on behalf of the accused when the crown attempts to banter the accused with leading questions, etc? If they negotiate at all, does the Crown negotiate differently with an SRL as opposed to counsel?

 

When a self-rep is before the court, judges absolutely have a positive duty to assist the accused person, and they almost always do so conscientiously. Sometimes accused persons can get away with things that no lawyer would ever even try, simply because the court tends to give them more leeway. There's a lot of commentary on this issue, because it puts the court in a strange position. The judge has a simultaneous duty to referee between the parties but is also trying to assist one of the parties. That's odd. But in practice, it usually does work.

 

I know the Crown is directed to work in certain ways with accused persons but I have very little experience with that, for obvious reasons. See MPs comments.

 

Understanding that each crown is different, what is the general conduct of the crown like towards SRL's -- in your experience? Do they respect SRL's? Do they lessen their approach at trial (i.e., does an aggressive crown become a non-aggressive crown in an attempt to accommodate the SRL? Do they inform the SRL of their rights?

 

The judge would ensure self-reps are aware of their rights. The Crown shouldn't need to do it. A wise Crown would avoid going after a self-rep the way they would against opposing counsel, but I question how much a Crown can totally switch gears. As litigators, we are who we are.

 

In my experience, some Crowns naturally show respect to accused persons and some don't. I doubt that changes if they are self-repping. I doubt that most Crowns respect any self-rep on the level of legal analysis, and I doubt I would either. It would take a pretty exceptional situation for me to respect the submissions of a self-represented party on a legal level. I've heard from counsel at times that a self-represented party can do a decent job on examination or cross-examination of a witness. That's the sort of thing you can wing and still do okay at, if there aren't complex rules of evidence at issue. But legal analysis isn't something you spontaneously learn how to perform.

 

Do you rely only on legal aid, or do you also provide assistance to those who are not eligible for legal aid? For those that are not eligible for legal aid, but also can't afford the costs of a lawyer, how do you help these individuals? ***As a sole practitioner, I understand that you need to make a healthy income, so this leads me to my next question***: How do sole practitioners sustain a healthy practice and livelihood, while attempting to balance the issues that commonly arise in access to justice? Is this something that is possible for sole practitioners?

 

There's a lot here. If you're asking if I represent people for free, the answer would be almost never. I offer very kind rates to various people who can't afford me otherwise. It's something I struggle with, because you never want to gouge people (okay, some lawyers want to gouge people, but I don't) and yet you can't offer a sweetheart deal to everyone. Of course no one shows up to a lawyer's office and says "I'm rich - charge me full price." Everyone comes across as a hard luck case. I would prefer to help the people who need it most, but it's often very hard to tell who that is.

 

You're thinking in terms of trials here, mainly, but one of the things you need to understand to make sense of criminal law is that most things don't go to trial. It's what happens in the interim that's the question, and how good a deal you end up with. I can get most things done for a couple thousand dollars, which is within the reach of almost anyone who hasn't qualified for legal aid. And I've accepted less. Most of what I do to promote access to justice consists of doing things properly for the sort of money that normally only gets you half-assed work. For example, a client who is eventually going to plead guilty on poochy charges might end up living under restrictive bail conditions for eight months before you get to a plea, and a lot of lawyers would be okay with that, especially if the retainer was shit. I'll tend to seek a bail variation anyway. I'll even show up to court after the fact to cut short a long probation, if I think the court will vary the order, which they sometimes will. When someone is throwing money at you, it's easy to dot every "i" and cross every "t." The hardest thing in a smaller, sole practice is to do things right as well as just get things done. I cut corners. Everyone does. But I try to always cut the right corners, and never do it on the backs of my clients.

 

Have you ever defended a murder case, or some high-profile, stress-inducing, not-commonly seen case? If so, what the hell was that like? If not, would you ever want to defend a murder case, or some high-profile, stress-inducing, not-commonly seen case?  :razz: (note: I recognize that all cases are likely stress-inducing to some extent. I'm only referring to the big cases in this question -- murder, sexual assault, etc).

 

I feel like this is a bit back to my original topic, and not about self-reps. I've had one major trial along those lines. It was stressful, yes. And as I noted in the other thread earlier, almost everyone wants those cases. You ask a professional athlete if they want to pitch in the big game, what do you think they are going to say? Some criminal defence lawyers only want the easy stuff. They never take things to trial, they always plead and tell their clients to plead, and if something looks like it's going to get complicated with things like Charter issues they run for the hills and let someone else do it. We call those lawyers dump trucks. It isn't a nice thing to call another lawyer. Professionally, it's as offensive as a racial slur. Real lawyers want to pitch in the big game.

 

As you mentioned in an earlier post, the police have a job to do, and they do it. However, (and as I'm sure you know), there are times when the police violate the law in the execution of their duties. For example, if a police officer initiates a charge aganist an accused that has no standing, does the crown drop the charge, or do they proceed with it? I suppose an underlying question to this question is ----  what is the relationship like between the crown and police? Are the crown and police "buddies"? If a specific charge is brought aganist an accused that has no standing, does the crown still proceed with the charge (in the spirit of their friendship), or do they drop it and tell the police to grow up?

 

As MP has said, police lay the charges and then the Crown decides what to do with them. The large majority of Crowns are reasonable and ethical when it comes to withdrawing a charge when there is no reasonable prospect of conviction. I'm not sure what you mean by a charge with no standing. That may just be sloppy language since you don't know this area of law. But basically, if the charge is garbage, Crowns will tend to withdraw, yes.

 

Police and Crowns do work together. At times, they may seem to be friendly. Perhaps the most direct example of this is how (at least in Ontario) charges tend to have an "Officer in Charge" or OIC who follows along with the case and is responsible for assisting the Crown. They work closely together, and a good OIC can be a huge asset to the Crown. If the case goes to trial, the OIC generally attends. The Crown is litigating the case but the OIC is often more familiar with the evidence, certainly at least prior to trial, and so they do work closely. That isn't to say they always see eye to eye.

 

Without going into specifics, I have a case right now where the police basically fucked up and they proceeded against my client in a way that's totally insupportable. Just talked out the matter in front of a judge, with the Crown. The Crown freely admitted the law was against them. I admitted, in turn, that if the police had actually done their job properly, my client would be in a far worse situation. I'm almost sure the Crown will withdraw and I've promised in return to bring my client in before a judge who's going to warn the shit out of him and then let him off the hook. This is a great example of how things should work, in my opinion. This is a Crown I respect. Most of them I do respect. A few, not so much.

 

I'll add, in this case, one of the reason I'm bringing my client in for a judicial scolding is because he really did get lucky here. I want him to know that, so if this shit continues and he gets less lucky next time, it won't be my fault. And in turn, I strongly suspect the Crown will be in touch with the police to inform them, in polite terms, how they fucked this up and why and how to avoid making the same mistake next time. Learning experience all around.


Edited by Diplock, 05 January 2017 - 04:14 PM.

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#17 artsydork

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Posted 05 January 2017 - 07:05 PM

"Either you get legal aid and you retain someone, or you are "assisted" by duty counsel but not to the degree that they owe you what any other retained lawyer would owe you."

 

Why the facetious quotations? Duty counsel still zealously advocate for their client. Duty counsel owe the duty of confidentiality to their client. Yes, their client. No, they're not "retained" but they still follow client instructions. I've seen duty counsel call hospitals, family members, interview family members/band members for Gladue submissions, get authorization to contact medical professionals/employers to get letters, attend crown resolution meetings, and so on. I mean, the large difference is that DC is assisting on the same day. Mind you, some will still pick up the phone to continue a scheduled call, or only get a return call from the doctor/employer/surety a few days letter. It's not like "poof" letter disappears because sorry, that accused isn't in today.

 

Yes, duty counsel obviously has limitations. 46 people in remand court on the docket for DC means perhaps a couple of minutes with a person vs that lawyer with that one matter in court. I mean, OMG duty counsel doesn't pick up the phone at 6 p.m. Well, Brydges duty counsel will pick up at 6 a.m. Visit jail? Nah, because if they're in jail, they can get a certificate.

 

For the most part, duty counsel isn't conducting trial, but doing the vast majority of bail hearings. Friday afternoon? Probably doing all of the releases, including finding and contacting sureties, referrals to shelters, bail variations...


Edited by artsydork, 05 January 2017 - 07:10 PM.

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#18 Hegdis

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Posted 05 January 2017 - 07:42 PM

My experiences with duty counsel has been it is massively dependant on the individual lawyer. Most are competent.

 

Some are really exceptional (like, should be getting paid triple what they are paid).

 

Some are... absent, although technically physically present. Best I can say.


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#19 Diplock

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Posted 05 January 2017 - 08:38 PM

"Either you get legal aid and you retain someone, or you are "assisted" by duty counsel but not to the degree that they owe you what any other retained lawyer would owe you."

 

Why the facetious quotations? Duty counsel still zealously advocate for their client. Duty counsel owe the duty of confidentiality to their client. Yes, their client. No, they're not "retained" but they still follow client instructions. I've seen duty counsel call hospitals, family members, interview family members/band members for Gladue submissions, get authorization to contact medical professionals/employers to get letters, attend crown resolution meetings, and so on. I mean, the large difference is that DC is assisting on the same day. Mind you, some will still pick up the phone to continue a scheduled call, or only get a return call from the doctor/employer/surety a few days letter. It's not like "poof" letter disappears because sorry, that accused isn't in today.

 

Yes, duty counsel obviously has limitations. 46 people in remand court on the docket for DC means perhaps a couple of minutes with a person vs that lawyer with that one matter in court. I mean, OMG duty counsel doesn't pick up the phone at 6 p.m. Well, Brydges duty counsel will pick up at 6 a.m. Visit jail? Nah, because if they're in jail, they can get a certificate.

 

For the most part, duty counsel isn't conducting trial, but doing the vast majority of bail hearings. Friday afternoon? Probably doing all of the releases, including finding and contacting sureties, referrals to shelters, bail variations...

 

Let me be clear. I have great respect for duty counsel and for the job that they do. I understand where you are coming from and why it would be easy to get offended by what I wrote. Some lawyers don't respect duty counsel properly. I could probably write pages of additional analysis but it would come down to this. Within the limits of their time and their ability to follow along with a case, duty counsel do a perfectly good job in most situations and sometimes an exceptional job. What they can't do is mainly limited by their time and ability to follow along, as noted.

 

The reason I put that in quotations is simply because much as I respect duty counsel, I hate and resist the notion that duty counsel are somehow an adequate guarantee of rights or that they are a substitute for the importance of retaining and instructing counsel properly. THAT is what pisses me off. And good duty counsel (meaning most) would agree with me.

 

I will give one example. No matter how well someone is assisted by duty counsel in making a plea, the decision to plead in the first place is essentially still motivated by the fact that the client doesn't have a lawyer able to adequately review disclosure, test the Crown's case, and say "you know what, this case is garbage - we're going to trial." And truthfully, a lot of cases don't go to trial anyway. A lot of the time we say the case is garbage, and the for whatever reason the accused person can't stomach the wait to a trial, or else the Crown gives a better deal in light of the issues we've raised, or whatever. In all events, simply the ability to say "fuck this, we're going to trial" is what gives me far more leverage. Duty counsel don't have that. They are, essentially, dump trucks by necessity. They may be very skilled and conscientious dump trucks. But they are still dump trucks, at least in relation to plea court. That's their job.

 

Seriously. I'm not hating on the job that duty counsel do. I'm hating on the suggestion that simply because they exist, that's enough.


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#20 artsydork

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Posted 06 January 2017 - 04:38 AM

Fair points, and some common frustrations cited by dc.

Still, you should probaby hug a duty counsel at court today.

Edited by artsydork, 06 January 2017 - 04:38 AM.

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#21 Malicious Prosecutor

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Posted 06 January 2017 - 09:17 AM

Most particularly, I disagree with MP here, and I really don't know what he's trying to say when he says you'd need a matter where you risk going to jail to end up self-representing. Huh? Any case where you have no lawyer, any charge when you have no one to represent you, you are self-representing. The stakes may be lower in a case where the Crown isn't seeking custody, but it's still a criminal charge. Accused persons are still entitled to a defence, and that defence will either be mounted by some lawyer or by themselves. Is there an alternative I'm not aware of?

 

 

What I meant is that in a case where the Crown has advised that a person is not looking at custody a person can retain a law student in university.  No, it's not as good as having an experienced lawyer (though law students are supervised by lawyers), but it's miles better than being a self-rep.

 

All in all I really disagree with your fairly negative comments about duty council - and I'm speaking as someone who has both run docket courts as a Crown, and years ago also done some appearances as duty council.  There is a significant minority of criminal accuseds who frankly do not need, and whose interests would be harmed, by waiting around to fully retain a lawyer.  Retaining a lawyer takes time.  If you're a fresh arrest you may be in a situation where waiting to retain a lawyer will take longer than your likely sentence, or you may need to speak to bail immediately and not wait to fully retain a lawyer.

 

The role of a good duty counsel is to be skilled at legal triage - to be able to know which accuseds have simple enough matters they can deal with, and just as importantly, to know when an Accused needs to fully retain counsel (even if the Accused doesn't think so).


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#22 Diplock

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Posted 06 January 2017 - 01:13 PM

What I meant is that in a case where the Crown has advised that a person is not looking at custody a person can retain a law student in university.  No, it's not as good as having an experienced lawyer (though law students are supervised by lawyers), but it's miles better than being a self-rep.

 

All in all I really disagree with your fairly negative comments about duty council - and I'm speaking as someone who has both run docket courts as a Crown, and years ago also done some appearances as duty council.  There is a significant minority of criminal accuseds who frankly do not need, and whose interests would be harmed, by waiting around to fully retain a lawyer.  Retaining a lawyer takes time.  If you're a fresh arrest you may be in a situation where waiting to retain a lawyer will take longer than your likely sentence, or you may need to speak to bail immediately and not wait to fully retain a lawyer.

 

The role of a good duty counsel is to be skilled at legal triage - to be able to know which accuseds have simple enough matters they can deal with, and just as importantly, to know when an Accused needs to fully retain counsel (even if the Accused doesn't think so).

 

To the first point, yes. Where custody isn't an issue and the accused person qualifies financially and according to the policies of the relevant student clinic and where such a clinic is available with capacity to take on the client, a person can be represented by a student currently in law school. That's agreed, and makes sense. I honestly didn't know that's what you were driving at earlier, or I'd have agreed then also. I actually just referred a couple of people in that position to DLS at U of T. Though note that leaves a heck of a lot of gaps.

 

This could quickly turn into a conversation about duty counsel, and maybe that's even appropriate, since the experience and condition of self-reps really can't be removed easily from the role of duty counsel. I've stayed off the bail topic because I actually think bail is an area where duty counsel shine not just in terms of their skills but also their institutional function. Side note - if you want to learn how to run bails properly, which not all defence counsel can do, see if you can work at all as duty counsel. You'll learn, believe me. So yes, duty counsel are good at this and it's usually (emphasis on usually, not always) a discrete stage in the proceeding where you don't need a lawyer following along. I've seen bails screwed up by duty counsel - screwed up in the sense that they were agreed to on terms that set up the accused person to fail - but private counsel could do that too. So let's agree that duty counsel are good at bails.

 

It's the rest that upsets me, most. I can't agree, based on the number of pleas I witness every day, that self-represented litigants are unusual. How could you ever say that? Their matters are resolved quickly and so they are unusual in the sense that they don't stay on the court docket for very long. You rarely see them in trial. But I insist that anyone who pleads guilty with only duty counsel to assist them (no matter how sincere that assistance is, within its limits) are at a gross disadvantage. They may easily have missed real issues in their disclosure, may not be aware of a substantive defence they would have access to, and at minimum are disadvantaged by losing all the negotiating power that fully retained counsel bring to the table. Again, I'll call them dump trucks by necessity.

 

I remember in law school, we learned about solicitor-client privilege and why it exists. Among all the theoretical lessons in law school, this one stuck with me. Some people are naturally better than others at understanding the law, at navigating complex systems, etc. If we leave everyone to their own devices, and without counsel, the better educated, the more astute, the more articulate accused persons will be at a gross advantage over the less educated, the ignorant, the inarticulate. In a lot of life, we accept that smart, able, articulate people are at a huge advantage. They get better jobs, make more money, attract partners more easily, etc. That's life. But in criminal law, when your liberty is on the line, it's simply wrong that someone ends up in jail only because they are ignorant, dumb, or bad at presenting and expressing themselves. That's repugnant. And so we provide everyone with the opportunity to engage fully with a professional - they can tell that professional everything with no risk of blowback - and the opportunity to retain that professional is what levels the playing field. It's not just theoretically sound. It's incredibly important. It's what makes my job about more than helping bad people keep doing bad things. It's about more than that.

 

Duty counsel, for all their skills and diligence, can't do for accused people what I and private counsel do. They can't level the playing field. They can make it less uneven, but that's all. And now we're not talking about keeping the system "just" at all - we're talking about how much injustice we're willing to tolerate. When we get outside a bail context, and start talking about matters that are moving to resolution, without the assistance of retained counsel, it's simply wrong. There's no other word for it.


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#23 Malicious Prosecutor

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Posted 06 January 2017 - 02:59 PM

I really think you're overplaying the abilities and influence of defence counsel on what are fairly ordinary and routine files.  Nobody is pleading out on a serious charge with only the assistance of duty counsel (or, if they do, it is despite the insistent advice of both the judge and duty counsel).

 

Lets say your average accused shows up for his docket appearance.  He's charged with, say, shoplifting.  Or drunk driving.  These are matters with pretty well established areas of defence, and pretty well established tariffs in terms of penalty.  Experienced duty counsel will always tell them about the option of finding a lawyer, but can also tell them about their prospects and the reasonableness of a Crown offer.



#24 Diplock

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Posted 06 January 2017 - 03:29 PM

I really think you're overplaying the abilities and influence of defence counsel on what are fairly ordinary and routine files.  Nobody is pleading out on a serious charge with only the assistance of duty counsel (or, if they do, it is despite the insistent advice of both the judge and duty counsel).

 

Lets say your average accused shows up for his docket appearance.  He's charged with, say, shoplifting.  Or drunk driving.  These are matters with pretty well established areas of defence, and pretty well established tariffs in terms of penalty.  Experienced duty counsel will always tell them about the option of finding a lawyer, but can also tell them about their prospects and the reasonableness of a Crown offer.

 

Well, let's just agree this is the point where I think you're over-playing the intrinsic reasonableness of the Crown. "Well established tariffs" is a myth of criminal law. I mean, come on. If you know and I know what every conviction is worth, more or less, why don't you rely on me telling you what my client will take, rather than expecting me to rely on you telling me what you'll give? I just had a Crown tell me that they were "troubled" by the fact that defence counsel, on hearing their first actual offer, pushed back. Apparently this Crown lawyer is so sure his first offer is fair that he considers it at least mildly unethical to not say "thank you sir, and we'll keep you in our prayers."

 

Look. Not every case is changed by having counsel involved. But I've had armed robbery charges withdrawn after we successfully convinced the judge (at a judicial pre-trial) and even the Crown that it was essentially a misunderstanding. The Crown was "willing" to settle for a suspended sentence and probation, prior to digging properly into it. This is exactly the sort of case that gets pled out, and where everyone assures the accused that he got a good deal and the Crown cut him a break. I've just had firearms seized under s. 117 (which is unusual for me) returned to my client without even a proceeding because the warrantless procedure by which they were seized was grossly defective - and this is only clear on reading the return that was filed in disclosure. An unrepresented accused might have gone into the s. 117 hearing either consenting to lose his firearms or at least just arguing that he's safe to have them returned. The slam dunk "you had no right to seize them in the first place" argument is only obvious on viewing disclosure.

 

I find Crowns grossly over-estimate the simplicity of "simple" cases and are content to have the court churning out minor convictions all day. A conditional discharge with year or two of probation is the criminal court's equivalent of a speeding ticket pled down to 14km over the speed limit, to avoid demerit points. Except that the speeding ticket will at most cost you some money and maybe hurt your insurance rates, eventually. But a discharge and probation can potentially fuck up your life in serious ways - if not immediately, then when the very next thing goes wrong. And again, a Crown's reply would be "stay out of trouble, and it won't matter, now will it?" To me, that's like a doctor saying "we probably don't need to remove this one kidney, but we're going to anyway, and if you take care of the other one you'll be fine." Who the fuck thinks that way?!? It's my job (it's every defence counsel's job) to think about what's going to happen if this client gets in trouble again. What happens if he breaches the probation that the Crown has so graciously consented to put him on, like it's some kind of favor? What happens if he can't live with the terms? And a Crown will say "well, that's his own problem." How is it his own problem if it's a sentence he could rightfully have avoided in the first place?

 

These cases all look simple to you because you don't look at them for more than five minutes. I don't blame you for that. It isn't your job to do more than that, if someone just says "fine, I'll plead." But don't tell me you know they are simple, and that there's no substantive defence. You're in no position to know that.


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#25 Malicious Prosecutor

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Posted 06 January 2017 - 04:09 PM

YOu and I seem to be talking about different kinds of files.  You give me examples of armed robbery and firearms cases.  No - those absolutely should not be pled out on first appearance with duty counsel!

 

I gave you examples of drunk driving and shoplifting.  Those are files that don't need more than five minutes to determine if there is an issue or not.


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