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


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#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


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#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.


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#36 providence

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Posted 22 January 2017 - 08:43 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! 

 

 

1. I encounter SRLs commonly around the court - I see them in the halls asking questions or in the courtroom waiting to speak.  As my job is to represent clients, I only deal directly with SRLs when they are directed my way because they are looking for counsel.  I have been asked to do Rowbotham applications for SRLs to have the court appoint them counsel, or s.684 applications for appeals.  I have also been appointed pursuant to s.486.3(2) of the Criminal Code where an SRL is going to trial and is not permitted to cross-examine the complainant/s, so counsel is appointed to assist the court.  

 

2. I am actually reviewing transcripts right now for an SRL who wants to appeal a conviction.  From what I read so far, the judge did attempt to level the playing field by providing descriptions/explanations to the SRL about things like what a Khelawon application is, what kind of things to focus on in their argument, etc.  The judge also asked the Crown to be mindful that the person was an SRL a couple of times.  The judge was more lenient about filing deadlines for motions and what was in the materials, etc. However, the judge did not go nearly as far as their lawyer would.  I noticed quite a few times where the SRL clearly didn't understand something and nobody said anything, or things the judge let slide that I would have objected the hell out of.

 

3. My perception through my experience is that Crowns are irritated by SRLs and are always very happy if there is a lawyer now able to assist as they would much rather deal with a lawyer than the SRL directly.  I can't speak for all Crowns, but this is what I've seen through the 4 cases I have had where I was assisting an SRL or former SRL.  I did find that, no matter how irritated they are, they did make some allowances.  They weren't sticklers about the format of materials, they provided limited assistance in terms of explaining how procedures might go, that kind of stuff.  They also were urging the person to get counsel and telling them how they could do it.  An aggressive Crown isn't going to change their personality for an SRL, but they were definitely aware that they had to be a bit more accommodating.

 

4. I have both legal aid and fee-paying clients, probably half and half or so - the balance will vary a bit over time.  I will occasionally help someone pro bono, but it has to be a conscious decision and for a good reason, because I do have to make a living and contribute to office expenses etc.  If someone is refused legal aid and wants a lawyer, I can assist them with a Rowbotham application.  I will refer people to clinics or other community resources that may be able to help them, or assist them with legal aid appeals, etc. But ultimately, I can't spend a lot of time on people who generate no income for me.  I don't think it matters if you are a sole or not - that's true for any lawyer, or any professional or service provider in general.  I don't know many people who renovate houses, drive taxis or cut hair for free, apart from their immediate families and friends maybe.  And it's not just legal fees you have to worry about when someone doesn't have money - there are also disbursements on the file that have to be covered.  What if you take a criminal case pro bono and then need a $10 or 20K expert report which you don't have Legal Aid or the client covering?  Do you have to eat that?  What if you can't get off the file now because a judge won't allow it?  

 

There are access to justice issues beyond people not qualifying for Legal Aid that are of equal or greater concern to me and affect me more directly.  There are access to justice issues within legal aid - what they pay for, how much they pay for, what they do and don't cover, which cases are worthwhile and which are not, etc. etc. etc.  What if Legal Aid will pay for you to defend the client, but not the aforementioned expert report?  Now what?  Also there are issues within the system - who gets justice, what kinds of stereotypes and prejudices we operate under, who are the judges, blah, blah, blah.  One of my pet peeves is that people use "access to justice" to mean "people who can't afford lawyers" and ignore all the other issues.  

 

As well, at least some SRLs, and all the ones I've dealt directly with, weren't SRLs because they couldn't afford lawyers - they had made that choice because they didn't want to listen to lawyers or be constrained by the etiquette lawyers have to follow.  Later they either changed their minds or the court appointed counsel,  but finances was not the issue - it was their personality.

 

5. Just finished my first murder, and I have had several what I think would be high-profile, stress-inducing cases.  I wouldn't say sexual assault is not commonly seen - I have those all the time and at this point they're pretty run of the mill for me.  What was it like defending a murder?  I did it with a senior counsel, but I played a fairly large role in the case and they were there as support/quality control.  It was AMAZING.  The sense of knowing you literally hold someone's life in your hands and how much trust they are putting in you is very humbling.  We ended up having the person acquitted of murder but guilty of manslaughter which I think was a fair result.  A murder is like any other trial, but everything is just larger and more significant somehow.  It's hard to explain - you really have to do it to get it.  I've been a lawyer almost 6 years and I wouldn't have been able to anticipate what it was like until I did it.

 

6. The Crown is separate from police, and they have a duty not to proceed with charges that are not in the public interest or have no likelihood of succeeding.  I don't see Crown-police "friendships" that much to the point that they have each other's back - there is a healthy separation and in fact, I know some cops resent Crowns for tossing stuff the police wouldn't have.  I mean, some defence and Crowns are friendly - we went to law school together or whatever - but we don't allow our friendships to interfere with our duty to represent our clients zealously.  Yes, many times Crowns have stayed charges, sometimes on their own, sometimes after being pushed by me, but they are absolutely willing to do that where necessary.  And sometimes they won't stay it outright but will agree to lesser charges or not fight me on a discharge, etc. 



#37 providence

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Posted 22 January 2017 - 08:45 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).

 

As I say to clients sometimes.... if you can find money for meth, weed, molly, etc. you can find it for a lawyer!  They go "oh, okay" and come back with money.


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#38 providence

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Posted 22 January 2017 - 08:50 AM

Fair points, and some common frustrations cited by dc.

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

 

I gave a couple of them Christmas presents last year for helping me out of a couple of jams with my clients.  They're salt of the earth.  But there are situations where they just cannot substitute for full counsel of the person's choice, and they would be the first to say that.  I don't think DC are a panacea for the issue of unrepresented people, but they do serve an important function in keeping the system efficient.


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#39 providence

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Posted 22 January 2017 - 08:55 AM

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).

 

You can't really "retain" a law student, though.  A law student cannot give you legal advice.  I "represented" people as a law student.  You ask a supervising prof or lawyer  if your approach is correct, they go through it with you a bit, you go and do whatever it was you were going to do.  But the client does not have a competent, qualified, experienced lawyer.  They have a student, which is better than nothing.  I actually have issues with some of the stuff students do.  Even in law school myself, I could not for the life of me figure out why law students take impaired cases.  Just because the person is not going to jail does not mean that there cannot be some severe consequences to their future employment, finances etc.  And impaired cases are wickedly complicated.  There is no way that most students properly understand the law.  Just because you don't face jail doesn't mean you don't need a lawyer.



#40 providence

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Posted 22 January 2017 - 08:59 AM

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.

 

Right, but sometimes the disclosure doesn't show all the issues.  I can't tell you the number of times I've had what appears to be a simple, open-and-shut file where from the disclosure it looks like an easy, quick guilty plea.  Then you spend a couple of hours with the client and stuff starts coming out that isn't in the disclosure and it turns out there may be a Charter issue or whatever.  Not to say you're going to run to trial with it, but it may be something to talk the Crown down on, and that joint rec on shoplifting for 30 days that seemed reasonable may actually turn into the Crown agreeing to a suspended sentence.  And impaireds are wickedly complicated - I don't think those are appropriate for duty counsel at all because of all the things you have to look into that take more time than they have. 

 

Don't get me wrong, they do a heroic job, but the client's own lawyer is still preferable.



#41 providence

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Posted 22 January 2017 - 09:00 AM

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.

 

Drunk driving?  5 minutes?  Really?



#42 providence

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Posted 22 January 2017 - 09:12 AM

I kind of have a problem with how blase some folks are being about people sustaining criminal charges.  "It's just a shoplifting or an impaired so it should only take 5 minutes." That's awful.  I can't think of any lawyer charged with impaired (and yes, I know of a few) who would take that attitude.  They'd run and retain the most expensive, experienced person they can afford to help them.  A criminal conviction is a serious consequence to a person, even if they don't go to jail.  A probation order can lead to a lot more charges, especially if it's only explained in 5 minutes.  That's an access to justice issue right there.  We accept that there is a need for a lawyers and a reason to have them if you can afford them, but if you're poor, you get 5 minutes and a "no big deal" attitude.  The system just doesn't want EVERYONE coming with a lawyer showing them the many, many Charter issues there usually are that people let slide so out of efficiency, they want stuff plead out quickly so the system can continue to run.  That is not a "justice" system.



#43 artsydork

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Posted 22 January 2017 - 09:28 AM

Law students don't take super summary offences, Providence.

#44 providence

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Posted 22 January 2017 - 11:56 AM

Law students don't take super summary offences, Providence.

 

It depends where you are.  At some law schools in some provinces, law students do impaireds.  I swear.


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