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


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34 replies to this topic

#26 Diplock

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Posted 06 January 2017 - 06:09 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.

 

Well, I don't agree. It's true I went to more serious cases, but those happen to be the ones I have at hand. A shop lifting case with no eye witnesses and an accused person who gave a statement without being advised of right to counsel could easily raise Charter issues. And you'll say it's poochy. And maybe it is. Now the guy is on probation. He's ordered not to be in the store he (allegedly - okay, factually) stole from. But he can't stay away. A breach or two later, he can't get bail anymore. Crown is citing primary ground concerns. So he starts pleading guilty to breaches. Time served the first time. Didn't do the job. Step principle says next time it's a week. And we go from there.

 

And YES, in that robbery example, we had to fight tooth and nail to get these guys on legal aid. I don't know what's what in Alberta, but in Ontario legal aid is dependent on risk of custody. And if a "reasonable" Crown is only seeking a suspended sentence and a long probation, that can end up screwing a client totally because now he doesn't quality.

 

I'm not an impaired lawyer. If I were, I'd probably need to rant for an entire page about your description of drunk driving cases as requiring only five minutes to see if there's an issue. But I guess we all see what we get good at seeing.

 

Here's my honest to God true opinion. You haven't hit me with the strongest argument against my concerns, yet, so I'll spar with myself for a second. The state has limited resources. There are policy-based decisions to be made about the allocation of funds and resources, and the simple truth is that we'll never have a fully just system. If there's some fudge factor around poochy shop-lifting cases, then maybe that's okay but only in relation to the fact that there's going to be slippage somewhere and better there than the next attempt murder case that goes without being properly resourced. I can accept the argument that society is providing all the justice it can afford. I don't know if that's true, but it's at least a valid position to take. At some point, there's just no more money. But I reject and refute the suggestion that there's no slippage at all. People plead guilty all the time to charges they could beat simply because they don't know any better and can't get enough help to identify the weaknesses in the Crown's case. The Crown itself may not even spot the weaknesses, even supposing the Crown would be willing to play absolutely fair and point them out. Now you may be okay with that. Possibly I'm even willing to tolerate it, reluctantly. But let's not pretend it isn't happening.



#27 Yogurt Baron

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Posted 07 January 2017 - 08:02 AM

I often don't understand highfalutin legal jargon, and I don't usually ask you guys to dumb it down for me, because not understanding stuff is the price of hanging around with lawyers online while not actually being one. But could somebody please define the seemingly-not-that-highfalutin term "poochy"? It seems like a lot of this debate hinges on what that means, and I'm over here picturing this guy.
http://vignette3.wik...=20071211215228



#28 CarmelaIsabella

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Posted 07 January 2017 - 10:00 AM

I often don't understand highfalutin legal jargon, and I don't usually ask you guys to dumb it down for me, because not understanding stuff is the price of hanging around with lawyers online while not actually being one. But could somebody please define the seemingly-not-that-highfalutin term "poochy"? It seems like a lot of this debate hinges on what that means, and I'm over here picturing this guy.
http://vignette3.wik...=20071211215228

 

I think of this instead (I used to have the pink one)

http://img.wennermed...-1386265903.jpg



#29 Skweemish

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Posted 08 January 2017 - 08:31 AM

I often don't understand highfalutin legal jargon, and I don't usually ask you guys to dumb it down for me, because not understanding stuff is the price of hanging around with lawyers online while not actually being one. But could somebody please define the seemingly-not-that-highfalutin term "poochy"? It seems like a lot of this debate hinges on what that means, and I'm over here picturing this guy.
http://vignette3.wik...=20071211215228

Nah that's about right.

#30 t3ctonics

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Posted 10 January 2017 - 08:55 AM

Well, I don't agree. It's true I went to more serious cases, but those happen to be the ones I have at hand. A shop lifting case with no eye witnesses and an accused person who gave a statement without being advised of right to counsel could easily raise Charter issues. And you'll say it's poochy. And maybe it is. Now the guy is on probation. He's ordered not to be in the store he (allegedly - okay, factually) stole from. But he can't stay away. A breach or two later, he can't get bail anymore. Crown is citing primary ground concerns. So he starts pleading guilty to breaches. Time served the first time. Didn't do the job. Step principle says next time it's a week. And we go from there.

[...]

 

This just reminded me of my days in retail security. In 2007 or 2008, the mall security at the mall I worked in started asking the police to request no-go orders for the whole mall whenever anyone was arrested in the mall. Previous to this, we (the loss prevention department of the store I worked at) would occasionally ask for a no-go for our store only if we had a repeat offender. No-go for the whole mall quickly became a blanket policy for the police, and some orders went way beyond the boundaries of the mall (by several blocks).

 

Anyways, this turned out to be a terrible policy for just about everyone involved. Lots of people got caught breaching for just walking through the parking lot to meet their buddies, or trying to get a cheap breakfast from the food court (i.e. pure breaches, not breaching while committing a new offence). In addition, more shoplifters started fighting when they got caught because they knew they'd also get hit for breaching.

 

Also, almost every shoplifter we caught ending up pleading guilty. In the 6 years I worked loss prevention I was only called as a witness twice, and that's out of a few hundred arrests. Both times, the accused changed their plea to guilty when I showed up. However, I know other LP departments were less strict than ours (for example, we had a 100% continuity policy, and we always gave a Charter warning before speaking to the people we caught) and I'm sure their arrests could often be challenged. I wouldn't be surprised if dozens of people each year in Saskatoon alone plead guilty to theft under $5,000 charges they could have beat and then end up going down the breach spiral.


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#31 Hegdis

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Posted 10 January 2017 - 09:19 AM

And then they get that legal bully letter telling them to pay five hundred bucks to "settle" a potential civil claim....
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#32 Trigger

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Posted 12 January 2017 - 04:53 PM

This just reminded me of my days in retail security. In 2007 or 2008, the mall security at the mall I worked in started asking the police to request no-go orders for the whole mall whenever anyone was arrested in the mall. Previous to this, we (the loss prevention department of the store I worked at) would occasionally ask for a no-go for our store only if we had a repeat offender. No-go for the whole mall quickly became a blanket policy for the police, and some orders went way beyond the boundaries of the mall (by several blocks).

 

Anyways, this turned out to be a terrible policy for just about everyone involved. Lots of people got caught breaching for just walking through the parking lot to meet their buddies, or trying to get a cheap breakfast from the food court (i.e. pure breaches, not breaching while committing a new offence). In addition, more shoplifters started fighting when they got caught because they knew they'd also get hit for breaching.

 

Also, almost every shoplifter we caught ending up pleading guilty. In the 6 years I worked loss prevention I was only called as a witness twice, and that's out of a few hundred arrests. Both times, the accused changed their plea to guilty when I showed up. However, I know other LP departments were less strict than ours (for example, we had a 100% continuity policy, and we always gave a Charter warning before speaking to the people we caught) and I'm sure their arrests could often be challenged. I wouldn't be surprised if dozens of people each year in Saskatoon alone plead guilty to theft under $5,000 charges they could have beat and then end up going down the breach spiral.

 

Fair idea with the breach spiral, but most first-time shoplifters are released on an appearance notice from the scene. In fact, if it's their first time and there isn't a good reason to take them in, I can't see anyone not being released at the scene. The 'no-go' is a condition of an OIC undertaking, which usually would be your repeat offenders (maybe in some circumstances, people with no connection to the area or other extenuating circumstances such as the goods being worth a significant value). They may not have been repeat offenders at your specific area of employment but they would likely be repeat shoplifters in general. I can see the confusion with the 'asking for a no-go' but if you are crafting an undertaking for a repeat shoplifter or someone with a history of property crimes, it is usually a given that it will include a no-go to the place where the offence was alleged to have been committed, whether it is asked for or not. In these cases, where there is a history of criminality related to a retail environment, or the person hasn't shown the capacity to handle themselves around easily lifted property, I think the no-go is warranted. I will go further and say that if you released said person without a no-go, despite their past behaviour, it may even be a little irresponsible. The purpose of an undertaking is to release the accused with conditions that will help to satisfy the need to prevent the recommission of the offence, ensure they will appear in court, etc. etc. And the accused is not obliged to sign the undertaking or agree to the conditions of that release.

 

In cases where you have requested a 'no-go' for someone who is released at the scene, that's enforceable under your respective trespass legislation for your province (not familiar with Sask) and breaching that wouldn't likely start a 'breach spiral'. Again I'm not familiar with how things are done in Saskatchewan but at least in Ontario, a provincial offence wouldn't constitute a breach for a 'keep the peace and be of good behaviour' condition even if the accused happened to be bound by such a condition.



#33 artsydork

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Posted 12 January 2017 - 04:57 PM

Yeah... Try not signing an undertaking and see if you're still being released.


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#34 Trigger

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Posted 12 January 2017 - 05:05 PM

Yeah... Try not signing an undertaking and see if you're still being released.

Haha yes... I didn't say not agreeing to the conditions would still allow you to be released. Signing onto the conditions may be the 'persuasive' option, but still technically optional.



#35 t3ctonics

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Posted 13 January 2017 - 09:55 AM

Fair idea with the breach spiral, but most first-time shoplifters are released on an appearance notice from the scene. In fact, if it's their first time and there isn't a good reason to take them in, I can't see anyone not being released at the scene. The 'no-go' is a condition of an OIC undertaking, which usually would be your repeat offenders (maybe in some circumstances, people with no connection to the area or other extenuating circumstances such as the goods being worth a significant value). They may not have been repeat offenders at your specific area of employment but they would likely be repeat shoplifters in general. I can see the confusion with the 'asking for a no-go' but if you are crafting an undertaking for a repeat shoplifter or someone with a history of property crimes, it is usually a given that it will include a no-go to the place where the offence was alleged to have been committed, whether it is asked for or not. In these cases, where there is a history of criminality related to a retail environment, or the person hasn't shown the capacity to handle themselves around easily lifted property, I think the no-go is warranted. I will go further and say that if you released said person without a no-go, despite their past behaviour, it may even be a little irresponsible. The purpose of an undertaking is to release the accused with conditions that will help to satisfy the need to prevent the recommission of the offence, ensure they will appear in court, etc. etc. And the accused is not obliged to sign the undertaking or agree to the conditions of that release.

 

In cases where you have requested a 'no-go' for someone who is released at the scene, that's enforceable under your respective trespass legislation for your province (not familiar with Sask) and breaching that wouldn't likely start a 'breach spiral'. Again I'm not familiar with how things are done in Saskatchewan but at least in Ontario, a provincial offence wouldn't constitute a breach for a 'keep the peace and be of good behaviour' condition even if the accused happened to be bound by such a condition.

 

Yes, the first-timers were almost always released from the scene with an appearance notice unless there were special circumstances (e.g. they assaulted one of us during the arrest, had a bunch of drugs on them, or wouldn't cooperate with the police) but the vast majority we caught were repeat offenders.

 

I thought the no-go made sense for repeat offenders at our store, but it seemed unreasonable how the conditions expanded from our store to the entire mall to as much as a 6-block radius around the entire mall.