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KingLouis

Plea Extortion

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I've touched on this in other topics, but I'm curious what the practicing lawyers here do in circumstances where the Crown is openly extorting a plea. For example, a pre-trial judge tells the Crown that several egregious Charter breaches will guarantee your client's acquittal at trial. AND the facts won't add up to a conviction even if the Charter arguments fall short--which they will not. (Nothing is guaranteed, but this acquittal is GUARANTEED.) The judge suggests in the strongest possible language that the interests of justice demand the charges be withdrawn. The Crown, for no discernible reason, refuses. Your client faces catastrophic secondary consequences if they're convicted, so the Crown plucks a new charge out of thin air and says "Plead to this instead." The secondary consequences disappear, and even though the client would be acquitted at trial, they refuse to take that risk

I know the immediate reaction is something like, "Take instructions." Obviously it's the client's choice in terms of which path they choose. You give them your opinion, and they make an informed choice. If the facts establish an offence--criminal or otherwise--they can accept the allegations with your assistance. But I want to explore what you'd do or say with respect to the Crown. If it's the Senior Crown who's pulling this, there's really no one to complain to. Or at least no one who will care about your complaint. Do you write that Crown a letter? Confront them through the medium of a pre-trial judge? Bury your feelings and move on? 

I know some Crowns here will say, "Well, if the client committed an offence, where's the issue?" I'm talking about something where the client might be accused of a stranger rape with penetration (Crown seeking 8 years), but they turn around and offer a conditional discharge on a simple assault with facts as suggested by defence counsel IF the client chooses to resolve. "Well your client admits to greeting the complainant with a hug, Mr. Defence Counsel! He can plead to simple assault."

Has anyone ever had success actually hashing this out face-to-face with a Crown? Have you ever escalated something to MAG brass? 

Edited by KingLouis
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Go up the ladder. Explain your concerns in writing and order the transcript of exactly what the judge said. This is an exercise of discretion that needs to be reviewed. 

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7 hours ago, Hegdis said:

Go up the ladder. Explain your concerns in writing and order the transcript of exactly what the judge said. This is an exercise of discretion that needs to be reviewed. 

Pre-trials with counsel are off the record. There’s no transcript of that judge pointing out issues with the case. 

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4 hours ago, KrazyKanuck said:

Pre-trials with counsel are off the record. There’s no transcript of that judge pointing out issues with the case. 

Really? That is news to me. 

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In my jurisdiction a pre-trial report is generated by the pre-trial judge.  That very much suggests they are not "off the record" - but of course the trial judge can not see that report.

I do however take a pre-trial judge's comments with a good portion of salt.  First of all the good judge's never make that sweeping of a recommendation.  But mostly because no judge can necessarily assess your file based on a 10 minute meeting.

Complaining to a PTC judge gets you nowhere.  Judges do not get to question the exercise of Crown discretion.  Full stop.

If you absolutely must, you can write to that Crown's managers.  Perhaps request a meeting.  It helps if you have an otherwise good rapport with the Crown's office.  I can't guarantee you'll get much satisfaction, but they should at least hear you out.  Know of course that the manager is also going to ask that Crown for their side.

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My initial reaction on seeing this topic is I thought it might be crap. But KingLouis is a practicing lawyer whose judgment I respect, and so it's a very legit topic. Might be the most legit topic on this board in a while, relating to real practice issues in my area. It's interesting to see this community morphing over the years into a real practicing community.

Now I do want to say - for the Board and for KingLouis - that the terms in which this question is laid out are extreme. My instinct is to always distrust the narrator, whether it's my client or someone else entirely. So I hope this doesn't strike KingLouis as offensive, but I'd encourage him to at least review to ensure the situation is really as stark as he claims. Truthfully, I've never encountered the situation as he describes it and I have a hard time wrapping my head around it. Leaving aside Crown conduct, it's surprising to hear of a JPT judge opining in the extreme terms proffered here. But hey, maybe it could happen.

So, to my mind, there are two possible scenarios. First, if your client can legitimately admit the facts of the lesser plea the Crown is proposing, you can at least plead him guilty if that's what he wants. If he can't admit those facts at all (meaning, for the sake of anyone else reading this, if he does not indicate it's the truth) then your problem is "solved" in a way and you can't take the plea regardless.

Here's where I'm going to offer you the only new advice I haven't seen here yet. If the plea was not truthful there are lawyers who'd enter it anyway, but you know what you should do and what you ethically must do - you refuse the client's instructions and if he insists on proceeding anyway you get off the record. If the plea is truthful you don't have to do that for the same reason, but you could anyway, and that becomes the crux of my advice. Although this advice depends in part on a complex and strategic conversation with your client.

If he really wants to plead, you can't realistically stop it from going forward and you probably don't want to drop the client entirely. But you don't have to represent him in a proceeding you are ethically opposed to and which you find abusive. Plan this in advance. Let it proceed into plea court, and prepare your client for this properly, but when it comes to court you put your comments on the record and you withdraw. At that point the court is left with a self-represented accused. It will have to ask what he wants to do. Well, he wants to proceed with the plea, self-represented. Now the court has an obligation to assist him. And the Crown is stuck in a more complex role as well. It may still go ahead, but it leaves the door wide open for appeal, makes the Crown appear ridiculous, makes the Court complicit in whatever the result turns out to be, since it isn't relying on joint advice from counsel anymore but rather has an independent obligation to the self-rep, and preserves your professional dignity all at the same time.

Note - this advice is only based on the assumption the situation is as egregious as you originally state. Pulling this kind of move for anything less than that would look snitty rather than dignified.

Hope this suggestion helps to some degree.

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2 hours ago, Hegdis said:

Really? That is news to me. 

In Ontario, at least, a Juducial Pre-Trial would happen in chambers and not on the record in any formal way. Though there would be a written report as MP says. I would anticipate there would be verbal remarks at any JPT not captured by the official notes, and impossible to capture after the fact. A JPT for a self-rep would happen in court and on the record.

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26 minutes ago, Diplock said:

Note - this advice is only based on the assumption the situation is as egregious as you originally state. Pulling this kind of move for anything less than that would look snitty rather than dignified.

It is actually more egregious than I've stated. I've muted it for distribution on this board. I know I have a well-deserved reputation here for being anti-Crown, but I'll say this for the purpose of discussion: although I've obviously changed the facts a bit to have this debate in the abstract, this is a situation where the legal issues are so readily apparent and offensive that the JPT judge has twice lectured the Crown in heated terms (but obviously not in accusatory terms) that "the Crown" writ large would be acting contrary to the public interest by proceeding. And although I've never experienced this before, the judge has said, explicitly, that they would acquit my client if he were tried in their court. We've had at least a full hour of discussions before this jurist, and I have already filed my Form 1 with a detailed argument. So this is not just an off-the-cuff opinion. 

I take Diplock's point about not assisting in circumstances where things have devolved this ridiculously. I'll say that the lesser offence being offered is so broad that notionally benign conduct could still technically establish the elements. And the client is extremely vulnerable. And this other offence is not a CCC offence. 

So I've come up against a situation I've kind of anticipated for years: the only way to show what the Crown is doing is to have a trial. But the client will not proceed to trial given the kind of resolution being offered. 

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@KingLouis I will say this - I've generally thought it was awfully chintzy to take a plea to a non-crim offence just to say I got "something" on a file.  If I feel the file has merits then run it.  If it doesn't I should have the courage of my convictions and kill it.

The exception would be where I can point to something concrete I am getting - that this conviction means the Accused can't get his guns back, or can't practice in a profession, or whatever.

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I'm not familiar with the Code of Conduct in Ontario, but at least in Alberta, prosecutors have special duties to act in a fair and dispassionate manner and to seek justice rather than just a conviction (the SCC has set out similar duties in caselaw). While you shouldn't threaten to report the prosecutor, if at the end of the process you feel they have crossed a line, you may want to consider making a complaint to the Law Society. This won't impact your client, but at least it's a step you can take if you have serious concerns about the ethics of this particular prosecutor and the impacts of his or her character going forward. 

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10 minutes ago, jjbean said:

I'm not familiar with the Code of Conduct in Ontario, but at least in Alberta, prosecutors have special duties to act in a fair and dispassionate manner and to seek justice rather than just a conviction (the SCC has set out similar duties in caselaw). While you shouldn't threaten to report the prosecutor, if at the end of the process you feel they have crossed a line, you may want to consider making a complaint to the Law Society. This won't impact your client, but at least it's a step you can take if you have serious concerns about the ethics of this particular prosecutor and the impacts of his or her character going forward. 

I don't want to say you should never report opposing counsel, but I would think very long and hard about it.  I would also exhaust all other opportunities to solve the problem beforehand.

The reasons are that first I think the Law Society takes a jaded view when complaints are coming from opposing counsel.  It's one thing for a judge or colleague to report, a whole other thing when it's someone opposite you on a file. 

Also, it's a really good way to forever poison your relationship with that individual Crown.  It's one thing to just really go at it in court hammer-and-tongs, but we should be able to shake hands afterwards and be civil.  But when you start making personal allegations about the Crown's conduct, you've made things very personal.

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Just now, Malicious Prosecutor said:

I don't want to say you should never report opposing counsel, but I would think very long and hard about it. 

I would never report a Crown to the LSO for improperly exercising their discretion. Well, I can't say Never. But it would take a nearly criminal act of racism, sexism, antisemitism, homophobia, etc. to get me to pick up the phone. This is something I'd prefer to resolve face-to-face with the Crown. But in this case that will just mean expressing my feelings in a way that doesn't violate the code of conduct. 

I liked MP's comment earlier about not trying to get "something" out of a file. That's exactly the right thing to do. If you can't prove the case, withdraw the charge. Don't try to load up someone with conditions on a POA probation order or something. 

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3 minutes ago, KingLouis said:

I liked MP's comment earlier about not trying to get "something" out of a file. That's exactly the right thing to do. If you can't prove the case, withdraw the charge. Don't try to load up someone with conditions on a POA probation order or something. 

Unless there's a reason for it.  I could speculate and imagine something.  The Accused has a long history of violent offences, almost certainly committed another that I just can't prove, all of which was under the influence of alcohol.  I might try to get them on some kind of terms to deal with alcoholism, just to try and make sure I don't see this guy again and someone else gets hurt.

 

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I think it's definitely worth figuring out that Crown's chain of command and asking for a review of their decision.

 

This is why the reduction in the number/type of offences that attract prelims is so misguided, IMO. Assuming your case is of a type that would have attracted a prelim prior to the recent amendments, this is exactly the kind of case that just *begs* to be weeded out at the prelim stage.

 

Instead, best case scenario, court time and resources are wasted on a trial that should never proceed. Worst case scenario, your client pleads guilty to avoid the risk of a trial.

 

I know this is in no way helpful OP, but my ultimate hope for you in this situation is that your client takes it to trial, is acquitted, brings a suit against the Crown for malicious prosecution, wins that suit, and gets a bit of a windfall for the misery they had to go through.

 

Best of luck to you and your client.

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