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KingLouis

Extreme Frustration With Jr. Crowns

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39 minutes ago, Hegdis said:

Yeah I always get irritated with the whole idea of “he has every chance to never be back before the court - means, opportunity, education, employment and family support”. And he gets a discharge so he isn’t burdened by a permanent record, and his life stretches on unblemished.

Like, he had all that before, so how is this not aggravating?

...then the poor indigenous kid with the drug addiction gets jail because we’ve already given up on him. 

I don’t think it should be considered aggravating. We shouldn’t be throwing young white guys in jail for minor offences any more than we should be throwing young black guys. I think we should be working to rehabilitate both groups, in the hopes that they never progress to actual serious crimes. The solution, to me, is treating young black kinda better, not treating the white ones worse. 

Maybe it should be considered aggravating once they’re committing serious crimes, but even then I’m a bit weary. 

Edited by BlockedQuebecois

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16 hours ago, epeeist said:

No. The adversarial system requires one to (ethically etc.) represent one's client. Not to, in other aspects of one's life, adhere to that way of thinking blindly.

Yes.

I agree with respect to the Crown, who is supposed to embody a quasi-judicial body, and safeguard the interests of justice and so forth, but the defence is required to zealously advocate for their client. That doesn't mean lying, cheating, ignoring the rules of the Court, but it certainly does mean being blind to public perception and so on to a certain extent. 

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15 hours ago, Dreamer89 said:

*insert* ---- Racial Identity Politics  

Life beat you to it, champ.

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54 minutes ago, ericontario said:

Yes.

I agree with respect to the Crown, who is supposed to embody a quasi-judicial body, and safeguard the interests of justice and so forth, but the defence is required to zealously advocate for their client. That doesn't mean lying, cheating, ignoring the rules of the Court, but it certainly does mean being blind to public perception and so on to a certain extent. 

I'm not sure if we're just talking past each other or fundamentally disagree. If the latter fine we can drop it, if the former I'll try again to clarify.

I'm referring to Crowns and defence counsel who, outside of court, outside of policy, outside of office, in their personal life, in all interactions with other people, were like caricatures. Unable to see nuance and shades of gray. Even if that's desirable in a lawyer acting as such - and I don't think it is in a Crown at least - it's not desirable if it colours all interactions with everyone in their personal life, unrelated to the practice of law, they always vote for the candidate who promises to be harsher and not legalize drugs, etc. It's fine if that's how they genuinely feel, not so fine if it's a product of being unable to think for themselves in a non-professional context.

As I said, it was both Crowns and defence counsel (albeit differently) without much life experience, who seemed to have these one-dimensional views.

Let me give an IP example. I was perfectly able to support, advocate for, and promote the IP rights of clients, while at the same time, on a personal level, believing that e.g. copyright terms were too long, some patents were being granted for non-inventive developments, etc. My personal views were not dictated by the work I did.

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3 hours ago, ericontario said:

Yes.

I agree with respect to the Crown, who is supposed to embody a quasi-judicial body, and safeguard the interests of justice and so forth, but the defence is required to zealously advocate for their client. That doesn't mean lying, cheating, ignoring the rules of the Court, but it certainly does mean being blind to public perception and so on to a certain extent. 

To a certain extent, yes. But public perception is important to a lot of what we do, whether the test on 24(2) or tertiary grounds and discharges and the like, or for electing and picking juries and so on. And the Crown’s perception is important in negotiating sentences and other things. So it doesn’t serve our clients to be too ideologically blinded. 

2 hours ago, epeeist said:

I'm not sure if we're just talking past each other or fundamentally disagree. If the latter fine we can drop it, if the former I'll try again to clarify.

I'm referring to Crowns and defence counsel who, outside of court, outside of policy, outside of office, in their personal life, in all interactions with other people, were like caricatures. Unable to see nuance and shades of gray. Even if that's desirable in a lawyer acting as such - and I don't think it is in a Crown at least - it's not desirable if it colours all interactions with everyone in their personal life, unrelated to the practice of law, they always vote for the candidate who promises to be harsher and not legalize drugs, etc. It's fine if that's how they genuinely feel, not so fine if it's a product of being unable to think for themselves in a non-professional context.

As I said, it was both Crowns and defence counsel (albeit differently) without much life experience, who seemed to have these one-dimensional views.

Let me give an IP example. I was perfectly able to support, advocate for, and promote the IP rights of clients, while at the same time, on a personal level, believing that e.g. copyright terms were too long, some patents were being granted for non-inventive developments, etc. My personal views were not dictated by the work I did.

I don’t think it’s ever desirable to see things without nuance or shades of grey, including for defence counsel. 

I think the equivalent to your IP views is that as defence, we can strongly think that our clients are entitled to certain procedures and protections but not approve of the things they get convicted of. I don’t know too many defence who will tell you that murder and rape are great things. We do advocate strongly for clients  while simultaneously believing that certain acts are morally wrong. 

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On ‎9‎/‎17‎/‎2018 at 7:05 PM, KingLouis said:

I'm not for a second talking about Impaireds or substantial crimes of violence. My venting was about minor property or nuisance offences where the average Canadian, I think, would say, "Why the hell are we wasting time on this?"

 

KL, I understand what your complaint is about.  And it isn't without merit - but it is just part of the learning process of being a Crown.  While defence has only one client, as a Crown we have many, many stakeholders to try and keep happy: our bosses, cops, victims and the court.  All of whom can be very free with giving opinion on what they should do.

So yes, sometimes junior Crowns will default to running most files.  It's the easiest way to avoid getting any complaints.  They will do that until they get a better sense for what will get a conviction, and what will not.  But until they do.. you just have to do your job and run your trial.  There is no other option - trying to run an abuse of process argument will take longer, will really piss of your Crown, and will probably be unsuccessful at the end of the day (Crown discretion is nearly sacred).

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3 minutes ago, Malicious Prosecutor said:

KL, I understand what your complaint is about.  And it isn't without merit - but it is just part of the learning process of being a Crown.  While defence has only one client, as a Crown we have many, many stakeholders to try and keep happy: our bosses, cops, victims and the court.  All of whom can be very free with giving opinion on what they should do.

So yes, sometimes junior Crowns will default to running most files.  It's the easiest way to avoid getting any complaints.  They will do that until they get a better sense for what will get a conviction, and what will not.  But until they do.. you just have to do your job and run your trial.  There is no other option - trying to run an abuse of process argument will take longer, will really piss of your Crown, and will probably be unsuccessful at the end of the day (Crown discretion is nearly sacred).

I'm sorry but then the onus should be on the Crown (in general, not the one junior crown) to better supervise and advise juniors on matters. It's not fair that a prosecution that's bullshit occurs and ruins someone's life and leads to irreversible stress/character damage - just so the junior crown learns the ropes. The Crown should do a better job. It isn't a game.

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On ‎9‎/‎17‎/‎2018 at 1:02 AM, Diplock said:

We can have an interesting debate about how, when, and where unreasonable Crown positions should get corrected. But what you seem to be saying is that the Crown should be allowed to be unreasonable and the corrective remedy is simply the results of the trial. And that's wrong. It's wrong in practice, it's wrong on a philosophical level, and it's wrong at law. I take directions from a client. That client may be unreasonable at times, or even stupid, but the client is entitled to take whatever legal actions that he wants, in the course of conducting his defence. You act on your own authority on behalf of the Crown. You direct the awesome power of the state to either deal reasonably with the accused before the court, or to step on his neck just because you can. To suggest you have the right to choose between using that power properly, and abusing it out of ignorance, pique, or some misguided desire to get back at the last lawyer who wasted you time...no, you really don't.

 

"The awesome power of the state".  Feh.  If my power is so awesome how come I can't get Delta RCMP to execute a DNA warrant after a year of asking so that I can prove my case that I'm going to have to stay tomorrow?  But I digress.

Look, in a perfect world you'd get wise and experienced Crown on every single case who in every time and in every case exercised their discretion with Solomonic wisdom.  But it's not a perfect case.  Sometimes Crowns will assess a file wrongly.  It happens far, far less than defence counsel think it does, but it does happen.

The OP asked for suggestions on what to do.  In my experience, the best response is "to do your job and run your trial".  Complaining to the Crown's superiors will not help.  Seeking judicial remedies will not help.  Calmly and gently suggest to the Crown ahead of time why you think the case is a loser (and please - do it with a smile - we're supposed to be colleagues out there), and then when the case results in an acquittal just smile and say nothing.

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4 minutes ago, pzabbythesecond said:

I'm sorry but then the onus should be on the Crown (in general, not the one junior crown) to better supervise and advise juniors on matters. It's not fair that a prosecution that's bullshit occurs and ruins someone's life and leads to irreversible stress/character damage - just so the junior crown learns the ropes. The Crown should do a better job. It isn't a game.

It's not a perfect system.  Far from it (although I think improved supervision of Crowns is pretty far down the list of what I'd change, I think it would make the list).

But the OP asked what he should do in this situation, and I told him what the answer is.  Not in some theoretical "well wouldn't it be nice if" kind of way, but rather in a "what should I do if this happens to me tomorrow" kind of way.

Just do your job and run your trial.

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I agree with @Malicious Prosecutor which is why I answered as I did. Just as junior Crowns are learning, defence are learning too. And we need to pick our battles, save our energy so we can have a long career, and try to have cordial relationships with our colleagues. Low-level files do get frustrating over time and we have the option to not do them if they are that stressful. If we're going to do them, I agree - there is no option but to run it. Might as well enjoy it and not go crazy getting upset because the Crown won't stay it.

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15 hours ago, providence said:

To a certain extent, yes. But public perception is important to a lot of what we do, whether the test on 24(2) or tertiary grounds and discharges and the like, or for electing and picking juries and so on. And the Crown’s perception is important in negotiating sentences and other things. So it doesn’t serve our clients to be too ideologically blinded. 

I don’t think it’s ever desirable to see things without nuance or shades of grey, including for defence counsel. 

I think the equivalent to your IP views is that as defence, we can strongly think that our clients are entitled to certain procedures and protections but not approve of the things they get convicted of. I don’t know too many defence who will tell you that murder and rape are great things. We do advocate strongly for clients  while simultaneously believing that certain acts are morally wrong. 

That's not what I meant at all. I wasn't suggesting starting to think all crimes are okay by defence counsel.

It was more, some junior Crowns seem to think (this is memory of conversations) every time someone's acquitted, every time a judge doesn't believe a police officer over an accused, every time a sentence less than what the Crown argued for, is a travesty of leftist judges. And contrariwise for some junior defence counsel.

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9 hours ago, pzabbythesecond said:

I'm sorry but then the onus should be on the Crown (in general, not the one junior crown) to better supervise and advise juniors on matters. It's not fair that a prosecution that's bullshit occurs and ruins someone's life and leads to irreversible stress/character damage - just so the junior crown learns the ropes. The Crown should do a better job. It isn't a game.

To allow prosecutions that should never happen (whether or due to a combination of incredibly weak evidence, Crown policy, etc.) is, at worst, evil.

It may also be racist in effect (if e.g. due to policing practices more Indigenous, black, etc. people get arrested whether or not they did anything that "should" be prosecuted), but even if a straight white male is subjected to a bullshit prosecution just to help train a junior Crown, it is still vile.

I'm hoping I misunderstood some of the other responses. Perhaps they meant that weak, but not unfounded, prosecutions may still go ahead? As opposed to entirely unwarranted ones?

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14 minutes ago, epeeist said:

That's not what I meant at all. I wasn't suggesting starting to think all crimes are okay by defence counsel.

It was more, some junior Crowns seem to think (this is memory of conversations) every time someone's acquitted, every time a judge doesn't believe a police officer over an accused, every time a sentence less than what the Crown argued for, is a travesty of leftist judges. And contrariwise for some junior defence counsel.

No, I wasn't saying you said that - sorry if it came across that way. I was saying that to me that's one example of when a line would be crossed, but most people don't cross it.

 

16 minutes ago, epeeist said:

To allow prosecutions that should never happen (whether or due to a combination of incredibly weak evidence, Crown policy, etc.) is, at worst, evil.

It may also be racist in effect (if e.g. due to policing practices more Indigenous, black, etc. people get arrested whether or not they did anything that "should" be prosecuted), but even if a straight white male is subjected to a bullshit prosecution just to help train a junior Crown, it is still vile.

I'm hoping I misunderstood some of the other responses. Perhaps they meant that weak, but not unfounded, prosecutions may still go ahead? As opposed to entirely unwarranted ones?

 It's totally racist! But I as defence have little power to do anything about it on a case by case basis other than kick some ass in court.

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8 hours ago, Malicious Prosecutor said:

There is no other option - trying to run an abuse of process argument will take longer, will really piss of your Crown, and will probably be unsuccessful at the end of the day (Crown discretion is nearly sacred).

I take your point, yet I'm still probably going to do this when 1) I find the right case, and 2) I can figure out a way to structure the argument so it isn't petty finger pointing. We both have ideals that we've set aside-you mentioned the ability closely to supervise juniors; I've given up on the prospect of having a cordial relationship with all of my Crown colleagues. I'll pick my battle well, draft my factum, then let a judge give their perspective. While you're probably right, I can't accept that this power imbalance has no boundaries outside of an actual trial. If litigation is my only recourse I see this as part of that remedy. If it doesn't work, well, I've tried it. It'll stand as an example of how strongly I feel about fairness.

Yes, yes--it will make the Crown angry, then they'll screw me down the road in some way. Which is even less lawful than the original complaint I voiced, though I understand there's a reality here in terms of relationships, favours, etc.

Just one more thing: I know some posters have suggested talking to the Crown about these issues. You know, very gently saying how devastating a prosecution can be and how little point there is in proceeding when the co-accused was diverted and the client will receive, at most, a discharge. It doesn't work. It just doesn't work at all.

 

 

 

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13 minutes ago, KingLouis said:

I take your point, yet I'm still probably going to do this when 1) I find the right case, and 2) I can figure out a way to structure the argument so it isn't petty finger pointing. We both have ideals that we've set aside-you mentioned the ability closely to supervise juniors; I've given up on the prospect of having a cordial relationship with all of my Crown colleagues. I'll pick my battle well, draft my factum, then let a judge give their perspective. While you're probably right, I can't accept that this power imbalance has no boundaries outside of an actual trial. If litigation is my only recourse I see this as part of that remedy. If it doesn't work, well, I've tried it. It'll stand as an example of how strongly I feel about fairness.

Yes, yes--it will make the Crown angry, then they'll screw me down the road in some way. Which is even less lawful than the original complaint I voiced, though I understand there's a reality here in terms of relationships, favours, etc.

Just one more thing: I know some posters have suggested talking to the Crown about these issues. You know, very gently saying how devastating a prosecution can be and how little point there is in proceeding when the co-accused was diverted and the client will receive, at most, a discharge. It doesn't work. It just doesn't work at all.

 

 

 

We may be having two different conversations here. I agree that if the Crown is proceeding without any reasonable prospect of conviction, that's abusing. If they just aren't offering you the resolution you want ... that's dickish, if their position is unduly harsh. But I can't characterize it as abusive. 

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31 minutes ago, Diplock said:

We may be having two different conversations here. I agree that if the Crown is proceeding without any reasonable prospect of conviction, that's abusing. If they just aren't offering you the resolution you want ... that's dickish, if their position is unduly harsh. But I can't characterize it as abusive. 

No, same conversation. But it's really hard to draw that line. In the example I just used, I have a video of my client not committing the offence. My position is No RPC, but they can always come up with some theory that covers the elements of the offence. I mean, even where my client's charged with assaulting someone by walking toward them from 100 metres away, the Crown could still in theory believe they've covered the elements of the offence and a judge might convict. Maybe not a reasonable theory, but they're the ones in charge of defining reasonable.

That's a murky area that makes this problem so difficult.

Let's say Diplock and I walk into a Metro. He asks me if I prefer Royal Gala or Red Delicious apples. I say Red Delicious, and I point to one. He takes that specific apple and eats it without paying. Does the Crown have RPC if I'm charged with being a party to that theft? I'm saying No, but I'm also saying Give me a fucking break. I don't want to merge the issues, but they're not entirely separate ones.

Edited by KingLouis

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54 minutes ago, KingLouis said:

I take your point, yet I'm still probably going to do this when 1) I find the right case, and 2) I can figure out a way to structure the argument so it isn't petty finger pointing. We both have ideals that we've set aside-you mentioned the ability closely to supervise juniors; I've given up on the prospect of having a cordial relationship with all of my Crown colleagues. I'll pick my battle well, draft my factum, then let a judge give their perspective. While you're probably right, I can't accept that this power imbalance has no boundaries outside of an actual trial. If litigation is my only recourse I see this as part of that remedy. If it doesn't work, well, I've tried it. It'll stand as an example of how strongly I feel about fairness.

Yes, yes--it will make the Crown angry, then they'll screw me down the road in some way. Which is even less lawful than the original complaint I voiced, though I understand there's a reality here in terms of relationships, favours, etc.

Just one more thing: I know some posters have suggested talking to the Crown about these issues. You know, very gently saying how devastating a prosecution can be and how little point there is in proceeding when the co-accused was diverted and the client will receive, at most, a discharge. It doesn't work. It just doesn't work at all.

 

 

 

There's already case law on Crown discretion.

I have had success talking to Crowns about such things. I think your problem is that your earlier comments suggest you've already decided to torpedo your relationship with them. 

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2 hours ago, KingLouis said:

Just one more thing: I know some posters have suggested talking to the Crown about these issues. You know, very gently saying how devastating a prosecution can be and how little point there is in proceeding when the co-accused was diverted and the client will receive, at most, a discharge. It doesn't work. It just doesn't work at all.

I don't know you at all professionally, so I'm just employing some educated guess work on this point.

Having a reasonable conversation with a Crown can work.  I've certainly had my mind changed by talking with defence counsel.  I rather suspect if you're having a total lack of success talking with Crowns it may be because of your preconceived opinions about the Crown and how that influences your own behaviour.

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1 hour ago, Malicious Prosecutor said:

I don't know you at all professionally, so I'm just employing some educated guess work on this point.

Having a reasonable conversation with a Crown can work.  I've certainly had my mind changed by talking with defence counsel.  I rather suspect if you're having a total lack of success talking with Crowns it may be because of your preconceived opinions about the Crown and how that influences your own behaviour.

It's not that I've never been able to convince the Crown to do X, Y, or Z. While I'm disagreeable, I'm not some monster either deriding them or burdened with so much social awkwardness that I can't have a conversation. I'm saying only that there's a point where talking doesn't work. You've said--at that point--just set a trial. That's what I've been doing. If there's no way to avoid that, then I've answered one of my questions.

I'm curious if you've run a trial because you didn't like defense counsel or their approach. Or if you've withdrawn a case because Disagreeable Counsel was replaced by Agreeable Counsel?

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1 minute ago, KingLouis said:

It's not that I've never been able to convince the Crown to do X, Y, or Z. While I'm disagreeable, I'm not some monster either deriding them or burdened with so much social awkwardness that I can't have a conversation. I'm saying only that there's a point where talking doesn't work. You've said--at that point--just set a trial. That's what I've been doing. If there's no way to avoid that, then I've answered one of my questions.

I'm curious if you've run a trial because you didn't like defense counsel or their approach. Or if you've withdrawn a case because Disagreeable Counsel was replaced by Agreeable Counsel?

I have inherited cases from disagreeable defence counsel and have gotten better results than prior counsel did, even a stay or diversion. 

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