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KingLouis

Extreme Frustration With Jr. Crowns

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This is a very specific issue, and I know a bunch of practitioners here will have a take on it. I apologize if it seems condescending, but the practice of criminal law is serious, and our resources as defence counsel are finite. I'm sure we can all relate to having our time abused if not wasted.

Due to stress/burnout/retirement, a few jurisdictions in which I work have had to hire very junior Crowns who now comprise a great portion of certain offices. It's all part of MAG's brilliant policy that says if Clay Ruby and someone who once did a Trespass prosecution apply for a Crown job, the latter has first dibs. (An exaggeration, but you'll take my point: if you've worked for MAG in Ontario, you're in an exclusive hiring pool).

When I say "junior," I mean very recent calls with limited or no trial experience. And, importantly, limited or no life experience. This has come at a time of expanding dockets and increasingly complex cases. It's also come at a time of increasingly minimal cases. The low-end stuff and the high-end stuff seem to be rising in frequency. Because the Senior Crowns are swamped with homicides, these Junior Crowns are taking almost every summary file.

The problem is that these juniors are running everything. They have no grasp at all of RPC or the Public Interest. Lest you think I'm crazy, I have three separate trials set where my youthful clients are accused of property offences so minimal that it would shock me if anything similar's gone to trial in the entire GTA since the advent of diversion. In one case, literally nothing was taken.

In another incredible case, the Crown was seeking a custodial sentence on a matter that I set for pre-trial on the premise that it was not, in fact, a crime. They persisted in seeking this sentence until the pre-trial judge indicated firmly that the client had not committed an offence and would be acquitted.

I have many more examples, but you get the picture.

I know the initial reaction might be, "Well, you're a defence lawyer. Running trials is your job." I am, but the system can't function that way. Proving my client's innocence in the most absurdly minimal cases is a responsibility I have, yes. But the Crown's job is to be a minister of justice. If they suddenly decided to prosecute everyone sampling grapes at the local Metro, I don't think it'd be wrong to complain if my docket were wholly grape trials taken pro bono as a matter of principle. I don't have unlimited energy and time. I feel like I'm litigating an endless stream of stupid cases where my client's accused of not reporting their change of occupation from bus-boy to pot-washer. Being burdened with them takes my attention away from more serious matters.

How do people here deal with Junior Crowns? I find them naturally suspicious of defence lawyers. So it's not like I can educate them on their responsibilities. And they often don't know enough actually to engage you in argument. How am I supposed to respond when someone tells me that my 90-year-old client (no record) committed criminal harassment by looking at another parishioner in church. Because, "Criminal Harassment can be committed by one act alone."

The nuclear option of a s. 7 remedy for being so poor with their discretion and judgment seems very unlikely to work. Lately I've considered applying for stays on matters well below the Jordan ceiling just because they're so minimal. But I'd still have to make the judgment argument and dredge up all that enmity and disdain.

And I'll point this out: they take the same positions with other counsel. This isn't restricted just to my files.

 

 

 

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How I deal with this is:

I always keep in mind that it's not my responsibility to make the Crown do its job or make the system work efficiently. It is my job to zealously advocate for my clients in a timely and effective fashion. It's not up to me to educate Crowns.

It ultimately doesn't matter what the Crown wants or thinks. What the judge decides is what is important. If I can get a reasonable concession or position from a Crown, great. If I can't, oh well - I will advocate in court and the judge will come to a conclusion that hopefully favours me.

If stupid Crowns want to waste everyone's time with nothing charges, that's their problem. If the judges get fed up with it, they can complain to the powers that be, or they can call the Crowns out in court or in pre-trials, as with happened with you.

So I do not worry about unreasonable Crowns. I run my bail or ask for the sentence I want or put the trial in. 

If small matters are taking up too much time, don't take them. I don't really do shoplifting and mischief and stuff like that any more because I do have big cases to work on. Those go to the junior or student unless I have a special bond with the client or something. And save your pro bono time for more important and interesting cases.

If a Crown tells me they're proceeding against the 90 year old because "criminal harassment can be proven by one act alone", what do I do? Laugh and say "ok, we'll see what the judge says", and make sure I have my case law ready to present and do the trial.

I don't think there is a Jordan or a stay argument. Run your matters - you're getting paid at the least. 

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Yeah, it's tough. If I don't take these cases, no one will. These clients don't have cash, and LAO isn't funding a Theft Under x1 trial. Other counsel refer clients to me 'cause no one else will do this kind of work--i.e. unpaid work. Fairness and justice are too important to me to say No. I say that selfishly in a way because I find the work emotionally satisfying. And these pro bono cases are good legal cases. I won't take everything.

Yet as much as I accept that I have to keep running this stuff, there must be some tipping point of absurdity. I ran that harassment trial, and it was laughed out on a non-suit. This was a 3-witness trial, including the on-side complainant. You can appreciate how silly that is.

Oh well. If anyone reads a reported decision staying a charge because of the lack of appropriate discretion in evaluating the public interest in a sidewalk-chalk-drawing case, I'll have been unmasked.

 

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I take a slightly different view, but it might not be your style.

When I was a young Call I remember very clearly the counsel who could have screwed me over but didn't, the ones who taught me even when I didn't realize it at the time. I especially remember the ones who tried to teach me when I wish I had listened.

So an approach I might take is to do the upfront work of a detailed, courteous letter outlining their policy manual (right down to direct quotes), the facts, the law, and an argument for why diversion is appropriate. I would also point out that obviously it would be completely inappropriate for the Crown to consider the trial itself a "punishment" for a charge they have no substantial likelihood of successfully prosecuting. Nor is it appropriate for them to run this kind of thing just to get "experience".

Maybe they won't listen. But after the acquittal I'd be referencing that letter again and forwarding it to their superior. And one day they might look back on it and cringe.

And maybe next time I'd insist on a PTC - like you outlined above - and get the judge to say it to them. People hate being embarrassed. But if you have young Crown setting trials for things they don't have a hope in hell of winning it strikes me as an appropriate strategy.

 

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1 hour ago, KingLouis said:

Yeah, it's tough. If I don't take these cases, no one will. These clients don't have cash, and LAO isn't funding a Theft Under x1 trial. Other counsel refer clients to me 'cause no one else will do this kind of work--i.e. unpaid work. Fairness and justice are too important to me to say No. I say that selfishly in a way because I find the work emotionally satisfying. And these pro bono cases are good legal cases. I won't take everything.

Yet as much as I accept that I have to keep running this stuff, there must be some tipping point of absurdity. I ran that harassment trial, and it was laughed out on a non-suit. This was a 3-witness trial, including the on-side complainant. You can appreciate how silly that is.

Oh well. If anyone reads a reported decision staying a charge because of the lack of appropriate discretion in evaluating the public interest in a sidewalk-chalk-drawing case, I'll have been unmasked.

 

You also have to think of your own sanity. I don't think it's sustainable to take everyone else's non-paying cases for no money and all this stress. I don't know your circumstances, but there is no way I could do that much unpaid work, and it seems most of the other lawyers you know feel the same way. This may not be a good long-term plan for your business.

In terms of the tipping point of absurdity, not really - the Crown has a lot of discretion. As @Hegdispointed out, they have policies, which outline when it is and is not in the public interest to prosecute, but those policies are not law. It may be worth trying the approach Hegdis suggested. It's not really my style to complain to peoples' supervisors, as tempting as it is sometimes, but I would probably send an e-mail referencing the policy, any applicable law, etc. 

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On ‎9‎/‎14‎/‎2018 at 9:07 PM, KingLouis said:

I know the initial reaction might be, "Well, you're a defence lawyer. Running trials is your job."

Guess what - that's still my reaction.  Mostly.

Look, I started out as a junior Crown, and am now a... much-less-junior-than-I-wish Crown.  Look, I will always remember this lesson.  I was on my own for I think the second time ever in a small town.  An experienced defence lawyer walks in and says I can't prove my impaired case - the second reading isn't within the two hours.

Somehow though I knew the answer to this - only the first reading needs to be within two hours.  I tell him this.  He didn't even blink.  He was totally trying to pull a fast one on me as a junior Crown.

And my junior Crowns tell me lots of stories like this - of experienced defence counsel trying to bully them, or snowball them, or just screw them into withdrawing, or taking a deal, that is just unconscionable.  It trains us very, very early on not to trust what defence counsel tell us.  Which is unfortunate for those of the defence bar who are trustworthy - and I gladly admit that they might even outweigh the number who aren't.  It is just that as a junior you don't know which are which.

If a junior Crown is taking an unreasonable position, calmly tell them so, then take it to trial and win.  Maybe do so a couple other times.  Help teach the Crown by doing your own job in a professional manner.

You think we as Crown don't deal with know-nothing defence counsel?  I've been on the other end of this exchange.  Junior defence counsel take unreasonable positions, won't make reasonable admissions... my go-to is to then run the trial, get the conviction, and then try to gently suggest afterwards how it might have gone better next time.

 

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2 hours ago, Malicious Prosecutor said:

Guess what - that's still my reaction.  Mostly.

Look, I started out as a junior Crown, and am now a... much-less-junior-than-I-wish Crown.  Look, I will always remember this lesson.  I was on my own for I think the second time ever in a small town.  An experienced defence lawyer walks in and says I can't prove my impaired case - the second reading isn't within the two hours.

Somehow though I knew the answer to this - only the first reading needs to be within two hours.  I tell him this.  He didn't even blink.  He was totally trying to pull a fast one on me as a junior Crown.

And my junior Crowns tell me lots of stories like this - of experienced defence counsel trying to bully them, or snowball them, or just screw them into withdrawing, or taking a deal, that is just unconscionable.  It trains us very, very early on not to trust what defence counsel tell us.  Which is unfortunate for those of the defence bar who are trustworthy - and I gladly admit that they might even outweigh the number who aren't.  It is just that as a junior you don't know which are which.

If a junior Crown is taking an unreasonable position, calmly tell them so, then take it to trial and win.  Maybe do so a couple other times.  Help teach the Crown by doing your own job in a professional manner.

You think we as Crown don't deal with know-nothing defence counsel?  I've been on the other end of this exchange.  Junior defence counsel take unreasonable positions, won't make reasonable admissions... my go-to is to then run the trial, get the conviction, and then try to gently suggest afterwards how it might have gone better next time.

 

These are not equivalent situations. I can agree, obviously, that there are difficult and less-than-fully-capable lawyers working on both sides. But the method of dealing with difficult defence lawyers who don't get it and difficult Crowns who don't get it just can't be treated as the same. It can't be "run it to trial and hope the other side learns its lesson." I know it's satisfying to imagine the same answer fits both problems, but this is just part of the inherent imbalance and different roles between Crown and defence. The bottom line is, it isn't you vs. me. It's your client (which is you, for all intents, in terms of decision-making and results) vs. my client (which is not remotely me).

Bottom line is this. Who gets screwed by a bad defence counsel? The accused person. Okay, sure, the Crown may waste some time. But honestly, you're on a bloody salary. Get over it. I know it's a pain. I know it's frustrating. But so be it. If an unfortunate accused has hired a bad defence lawyer, they are the ones who'll suffer. And that's a shame, but at least it's not your job as Crown to correct, because you aren't in a position to do so. And who gets screwed by a bad Crown? Again, the accused person. KingLouis is expressing the frustration from the perspective of defence counsel who is trying to help the accused at the same time the Crown may be screwing them over in ways that are frankly unjust. But it's still not the defence lawyer who ultimately suffers the most. It's the accused. And accepting that truth, which really is the truth, are you really prepared to stand by the suggestion that because sometimes defence counsel screw over their clients/accused by making things unnecessarily difficult, Crowns are also entitled to screw over the accused when it's their turn?

The Crowns have a special public trust. Defence lawyers are also officers of the court, but we are not wielding the power of the state when we make decisions about how to conduct a defence. To suggest we are operating in similar positions is frankly just wrong, and a terrifying abdication of the huge responsibility that Crowns hold in their hands. The experience of being prosecuted can ruin someone's life, regardless of outcome. Sometimes, it's simply the case that that's the way the cookie crumbles. Sometimes it's unavoidable. But it should only be the case that someone is dragged through a difficult prosecution when it's truly unavoidable. To suggest that potentially wrecking someone's life is within acceptable fudge factor, simply because the Crown is new, or got screwed over by defence at some earlier point in time, or just because they are having a bad day...we aren't actually having this discussion are we?

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.

Let me put it this way. Very often, when someone feels the Crown is misusing their authority, it's merely a question of perception. It far more often feels that way than it's actually true, I'll allow that. And when it is the case that the Crown is misusing their authority, there's very often no practical remedy other than, as you say, running the trial and hoping they learn. But allowing the truth of both those statements - even if people cry "wolf" too often and even if it's hard to know what to do when there is a wolf - it is still absolutely, totally, inexcusably wrong when it does happen that Crowns put an unprovable case through the wringer just to make some poor asshole squirm. It's as wrong as police drawing a pointing their gun at someone, just because they have one. And if you don't see that, we don't have nearly the common ground I thought we did.

 

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My outsider perspective, from my recollection of socializing with prosecutors and defence counsel, they each seemed to be wearing blinders, their perception of accused, judges, police, etc. severely skewed by which side of the court they sat on (and I'm referring to those I've met IRL, not indicting anyone on this board...).

Some exceptions, but many (I'd say most) had a skewed perspective. Not to pick on them, in all areas one runs the risk of blind spots due to perhaps subconsciously identifying with one's client and their cause, but one should take steps (and be taught to) try to avoid that. OP's reference to lack of life experience also rings true to me. Frustrating enough dealing with lawyers generally who don't know what they don't know in civil litigation, let alone (I assume) in criminal.

Anecdote, not a Crown, but a provincial offences prosecutor, I knew someone who discussed a matter with me (I wasn't their lawyer but am still being vague), it was something like being charged for trespassing because they stepped around freshly-poured wet cement and stepped on someone's lawn instead of the street side which had a big puddle, and the property owner called the police who charged the person, and there was evidence from the property survey that there was a public right-of-way that gave people the right to walk on that neighbour's lawn, etc. (that wasn't the situation, I'm just trying to come up with something similarly ridiculous where the alleged trespasser had a strong right-to-be-there as well as necessity justification, but prosecutor didn't care, went to trial for $50 and lost because the person charged was willing to fight over principle and hire a lawyer to do so).

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7 hours ago, epeeist said:

My outsider perspective, from my recollection of socializing with prosecutors and defence counsel, they each seemed to be wearing blinders, their perception of accused, judges, police, etc. severely skewed by which side of the court they sat on (and I'm referring to those I've met IRL, not indicting anyone on this board...).

AKA, the adversarial system.

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47 minutes ago, ericontario said:

AKA, the adversarial system.

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.

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8 hours ago, epeeist said:

My outsider perspective, from my recollection of socializing with prosecutors and defence counsel, they each seemed to be wearing blinders, their perception of accused, judges, police, etc. severely skewed by which side of the court they sat on.

This is certainly part of the problem. I don't know if it's the entire problem, but it's an issue. Whereas I might say, "This case is stupid," the Crown and Police might say, "This charge is serious." I agree that happens constantly. But I think there's an objective reality that survives that adversarial approach. I mean, if I said, "This arson is stupid. Why's the Crown running it? Only the first floor of the house burned," I'd deserve a kick in the ass. I'm not that delusional.

I'm talking about a person who's accused of being a party to the theft of a chocolate bar by pointing to a piece of candy which a friend then takes and eats without paying. I suppose that could go to trial on the premise that it's somehow worth the nominal penalty that'd ultimately issue, but how or why? It's a little like the example I gave of the churchgoer uncomfortable at the attention being paid by another parishioner. There are small elements of an actus reus there, but the equation should be a lot more complex from the Crown's perspective than whether or not something could theoretically be a crime. I know that most Crowns understand that calculus. It's the junior ones that I'm trying to figure out.

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?"

 

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Well, I know that a person’s PRIME history plays into the public interest aspect. 

As an example, a person who drunkenly slaps another person’s ass might not be prosecuted the first time... but a lengthy PRIME history of that kind of behaviour tilts the public interest toward prosecution. So maybe on the initial glance the actual case is dumb, but a little more digging gives it context. 

Not saying bad decisions don’t happen but sometimes there’s more to it. 

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The adversarial system is different for Crowns than for defence.   Crowns are supposed to advocate strongly for their position, but always have the overriding mandate to act in the public interest and do justice, while defence are supposed to advocate zealously for our client. We are all supposed to be ethical officers of the court, not engage in sharp practice, etc. And it is usually best for defence's clients to have a decent working relationship with the Crown. But at the end of the day, we're on different sides. I don't expect a Crown to agree with me or see things the way I do. I also don't have to agree with everything my clients do - sometimes they screw up and deserve a dose of reality. It hurts the system when the Crown is a blind partisan and it hurts our clients when defence is.

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21 minutes ago, KingLouis said:

This is certainly part of the problem. I don't know if it's the entire problem, but it's an issue. Whereas I might say, "This case is stupid," the Crown and Police might say, "This charge is serious." I agree that happens constantly. But I think there's an objective reality that survives that adversarial approach. I mean, if I said, "This arson is stupid. Why's the Crown running it? Only the first floor of the house burned," I'd deserve a kick in the ass. I'm not that delusional.

I'm talking about a person who's accused of being a party to the theft of a chocolate bar by pointing to a piece of candy which a friend then takes and eats without paying. I suppose that could go to trial on the premise that it's somehow worth the nominal penalty that'd ultimately issue, but how or why? It's a little like the example I gave of the churchgoer uncomfortable at the attention being paid by another parishioner. There are small elements of an actus reus there, but the equation should be a lot more complex from the Crown's perspective than whether or not something could theoretically be a crime. I know that most Crowns understand that calculus. It's the junior ones that I'm trying to figure out.

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?"

 

Are you sure? I think the average person says "Teach those punks a lesson before they do something worse." 

 

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1 minute ago, providence said:

Are you sure? I think the average person says "Teach those punks a lesson before they do something worse." 

 

Unless the punk is an 18 year old wealthy white male.

Edited by pzabbythesecond
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2 minutes ago, pzabbythesecond said:

Unless the punk is an 18 year old wealthy white male.

*insert* ---- Racial Identity Politics  

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11 minutes ago, pzabbythesecond said:

Unless the punk is an 18 year old wealthy white male.

They don't get prosecuted for pointing to a chocolate bar their friend stole, etc. etc. etc. And they (aka mommy and daddy) can afford counsel if they do and don't need someone to do it pro bono. 

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6 minutes ago, providence said:

They don't get prosecuted for pointing to a chocolate bar their friend stole, etc. etc. etc. And they (aka mommy and daddy) can afford counsel if they do and don't need someone to do it pro bono. 

Yes. But also, you rarely hear society Say "lock that punk up" if he's "just a good kid who fucked up" (A.K.A comes from a good family). But you hear them calling to try a 17 year old as an adult because he's from a bad neighborhood, is black/Hispanic/Muslim, etc.

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8 minutes ago, pzabbythesecond said:

Yes. But also, you rarely hear society Say "lock that punk up" if he's "just a good kid who fucked up" (A.K.A comes from a good family). But you hear them calling to try a 17 year old as an adult because he's from a bad neighborhood, is black/Hispanic/Muslim, etc.

That was my point.... the people this happens to most are likely the ones the average Canadian doesn’t give a shit about and wouldn’t care at all if they get prosecuted and/or punished.

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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. 

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