I Just Want to Get this Over With

This is perhaps the most common reason I am given when a person tells me that they want to plead guilty. The irony of course is that this is the one way to ensure that it will not be over with. People become so intimidated and so frustrated they get worn down and just want to throw in the towel. This ignores the fact that the guilty plea results in consequences which may include a jail sentence, probation, and a criminal record. A criminal record which may follow you for the rest of your life.

I recall one case where a gentleman was charged with Driving While Prohibited, an admittedly minor offence but one which carries a one year driving ban as part of the minimum sentence. We had set the matter down for trial but he was intending to plead guilty. I took his instructions and attended the trial date with the full intention of confirming that the witnesses were there and then pleading him guilty.

The hitch came when I arrived and he told me that the investigator had approached him to confirm his identity. This is one of the elements of the offence which must be proven beyond a reasonable doubt. When confronted, the investigator admitted that he had reviewed a booking sheet photo of the driver in preparation for Court. This was a real problem for the Crown as this investigator had not taken the photo and therefore had no personal knowledge of who was depicted in the photograph. This suddenly opened up a potential defence. The plan to plead guilty was promptly shelved and the trial proceeded. At the end of the trial, my client was walking out of Court still stunned when he asked me “Did you just do what I think you did?” He had been found not guilty.

While perhaps not a representative case, it provides a powerful lesson in why you might not want to plead guilty, especially where there is a mandatory minimum penalty.

Take the time to review all of the evidence and get proper legal advice. In many cases there are defences available and legal arguments to be made. At the very least get advice to ensure that if you are going to plead guilty, you are getting the best deal possible.

The Criminalization of Mental Illness

In last Sunday’s New York Times, one of the opinion columns was entitled, “Inside a Mental Hospital Called Jail”.

Reading this article Inside a Mental Hospital Called Jail I was reminded of how closely the Canadian experience mirrors that of our American friends.

In my time practicing criminal law in British Columbia, we have seen a steady erosion of services available to those who are most vulnerable. Various of our Provincial Governments have consistently closed facilities which operated to house and care for those with serious mental health problems. The result of this misguided policy has been replace health care workers with police officers as the point of contact for those who are ill. The results have sometimes been tragic, with people dying at the hands of police or seriously harming others while their illness goes untreated.

The rationale behind the closing of mental health facilities has been said to be that the patients would be better cared for in the community. If housing and resources were made available, this may well be true. The reality is that the mentally ill are often invisible. They are easily marginalized. And they may also suffer from serious addiction issues. The end result of this is the Mental Hospital called Jail.

Take a trip to any Provincial Court in the Lower Mainland and you will see a seemingly endless stream of people charged with mostly minor offences which can be directly related to their mental health issues. Often these crimes may involve their attempts to self-medicate with street drugs. What follows is the revolving door of petty crime such as shoplifting and drug possession and increasingly long periods in jail.

The cynical view may suggest that the Province viewed this simply as an easy way to off-load expenses onto municipalities. The province pays for health care, the hospitals and doctors to manage those with serious mental illness, while the cities pay for policing. As taxpayers, we are paying either way. But we do have a strong interest in society looking after those of us who are unable to care for ourselves. And as pointed out in the Times, it is far cheaper to help people than to imprison them.

The Attack on Legal Aid

In England and Wales this week, the Criminal Courts were largely shut down as a result of a mass protest on the part of the Criminal Lawyers to protest further cuts to the Legal Aid system. An entire half day of Court time was lost as Barristers and Solicitors rallied outside the various Criminal Courts, including the famous Old Bailey.

Similar Legal Aid protests have been occurring in British Columbia without any noticeable effect on government. The level of funding, and the corresponding number of lawyers who are prepared to act for people on the Legal Aid plan has been falling steadily for over a decade now.

On a purely practical matter, this is a tremendously short-sighted attempt to save public money which, in my opinion, actually costs far more than it saves. Anyone who has ever watched a Court proceeding in which a litigant is self-represented knows that it is a painful process.

I personally find it unbearable to watch.

The Accused often arrives without even a copy of the police report or a pen and paper. The Trial Judge must then explain the Court process to the person and ensure that they are ready to proceed without the assistance of Counsel. This will often take over thirty minutes.

While this occurs everything is on hold. Court Staff, Sheriffs, and often Police witnesses are waiting. These people are all getting paid by the taxpayer. When the trial eventually does begin, it takes far longer then needed because the Accused has little if any idea how to run a trial.

It also places the Crown in a very difficult position of working to present the evidence while fulfilling an overarching duty to ensure that the Accused gets a fair trial and is given every opportunity to explore legitimate defences and possible Charter arguments. I have personally prosecuted people defending themselves and can say that they are perhaps the most challenging trials. The tension between presenting a case while simultaneously safeguarding the rights of the Accused makes the entire process much more difficult and time consuming than it need be.

Quite apart from the additional cost to the taxpayer of the self-represented Accused, there is the issue of the unfairness to all involved. The first is to the Accused him or herself, who may be wrongfully convicted. There is the unfairness to the witnesses who may be subjected to long, unfocused cross-examination from an Accused who has little idea what he or she is doing. When one is represented by a competent Criminal Defence Lawyer, the case typically runs more quickly, more efficiently, and more fairly for all involved.

But these concerns are limited to cases where people are denied access to Legal Aid entirely.

Of equal concern is the refusal of many Criminal Defence Lawyers, myself included, to consider taking on Legal Aid cases. My personal practice is to only take on exceptional cases and consequently the number of Legal Aid cases that I defend is extremely low. Many experienced lawyers follow a similar practice.

The fallout is that people who are on Legal Aid often must seek out less experienced lawyers. This is not meant as a slight to the many lawyers who take Legal Aid cases and do marvelous work for some of the poorest and most vulnerable in our society. But the reality is that fewer and fewer of us are willing to work for the rates that are currently paid.

The attack on Legal Aid, coupled with increasing use of Mandatory Minimum Sentences, will result in more and more people unnecessarily spending longer and longer in jail. This is neither morally nor financially acceptable.

Mandatory Victim Fine Surcharges and Minimum Sentences

Once again the Federal Government has shown its disdain for the independence of the Courts. By introducing the new mandatory Victim Fine Surcharge, one which the Courts no longer have the discretion to waive for those who lack the means to pay, the government purports to make offenders “accountable for their crimes”.

Perhaps in my nearly twenty years practicing criminal law, I have misunderstood the objective of the criminal justice system. To me, the arrest, trial, and potential imposition of a penalty which may include jail, did a more than adequate job of holding people accountable for their actions. I fail to see how the arbitrary imposition of a one or two hundred dollar fee can ever enhance the accountability of offenders for their crimes. It seems to me to be simply one in a long line of cynical attempts to ignore facts and play to the Conservative base.

This has been in play for some time now and has included the vast expansion of the use of minimum sentences and the reduction of Judicial discretion. The practical effect of these moves ought to concern anyone with the slightest interest in the openness of the Courts and the public’s right to know why an offender has received the sentence they have.

When an offender is sentenced in open Court, the Crown and Defence make submission and the Judge provides reasons for the sentence. This is done openly and transparently. Any member of the public can see the sentence imposed and the reason for it.

With the imposition of mandatory minimum sentences, the discretion in many instances moves to the Crown Prosecutors. No longer is the public able to see the reasoning behind the sentence which is eventually imposed. This is because the Crown can now choose either a procedural step to avoid the mandatory minimum or agree to a plea on a similar charge to the one laid but which does not carry the minimum. We have now removed the public’s ability to know and challenge the reasoning behind the imposition of a particular sentence.

Some of these provisions relating to mandatory minimum sentences have already been struck down by the Courts and we are now seeing Judges resisting the imposition of the Victim Fine Surcharges on those who are most vulnerable in our community. You do not have to spend too much time on the Downtown Eastside of Vancouver, or the streets of Surrey or Maple Ridge to know that many, many people who come before the Courts have never had two hundred dollars to their name. Yet the Federal Justice Minister suggests that these people could sell some of their belongings to pay the surcharge.

We in the Criminal Justice system all have a responsibility to ensure that punishment meted out to offenders is proportionate to the offence, and to the offender. This precludes the arbitrary imposition of sentences and surcharges. Equally importantly, we have a duty to ensure that Justice be both open and transparent.