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?
(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.